.% SISO Cornell University Law Librai^ The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nEnoRY OF JUDGE DOUGLASS BOARDMAN nPST DEAN OF THt SCHOOL By hi!. Wife and Dausrhter A. M. BOARDMAN and ELLEN D. WILLIA/Hs, 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/cletails/cu31924022869345 THE SUPERVISORS' MANUAL. PEACTICAl TREATISE ON THE lAW APPLICABLE TO THE DUTIES OF SUPERVISORS FROM THE DATE OF THEIR ELECTION TO THE END OF THEIR OFFICIAL TERM; ALSO, THE LAW RELATIVE TO TOWN BONDS, RAILROAD AID BONDS, DEFECTIVE ROADS AND BRIDGES, TOWN MEETINGS, ASSESSMENT AND COLLECTION OF TAXES, EQUALIZATION, TOWN OFFICERS' FEES, AUDITING OF ACCOUNTS, DUTIES OP THE CLERK, ETC., WITH THE DECISIONS OF THE COURTS AND NECESSARY FORMS. SEPTEMBER 1, 1889. Bt GEORGE C.'M^REHGUSE, Of the Utica Bar^ formerly one of the Supervisors of Oneida County, ALBANY: H. B. PAKSOSrS, PUBLISHER. 1889. Eniered according to Act of Congress, in the year one thousand eight hundred and eighty-nine, H. B. PARSONS, In the office of the Librarian of Congress, at Washington. WEED, PARSONS & CO., PRINTERS AND ELECTROTVPKRS. ALBANY, N. Y. PKEFACE TO THE SECOND EDITION. The numerous changes in the laws have rendered necessary a revi- sion of the Manual. The work has been re-written, enlarged and revised to date, and is believed to contain^ a correct statement of the law and practice governing the subjects treated. In order to accomplish this, a careful examination of the session laws, the decisions of the courts and the journals of proceedings of the seyeral boards throughout the State have been made, and the results embodied in the work. The same general plan contained in the first edition has been con- tinued in this, for the reason that it has met the hearty approval of the judges, lawyers, supervisors and others using the work, whose commendation is worthy of consideration, and whose experience and opinion command respect. Several chapters have been added upon those subjects which seem to be most necessary, such as Roads and Bridges, Defective Roads and Bridges, Municipal Debts, Railroad Aid Bonds, Town Meetings, etc., which occupy so large a part in the duties of towns, counties and their oflBcers, together with the decisions upon these questions which are both numerous and important. These have necessarily crowded out many local laws which would have been gladly inserted. G. C. M. September 1, 1889. The references to the Revised Statutes are to the seventh edition. PREFACE TO THE FIRST EDITION. One of the marked tendencies of legislation in this State, for the past few years, is that of intrusting the direction and control of purely local affairs to local officers, leaving the State legislature to act in those cases which affect the whole State. This is manifest in the additional powers conferred upon town and county officers, the responsibility of towns for the acts and negligence of their officers, and particularly in the extensive legislative powers granted to boards of supervisors over matters formerly under the ex- clusive control of the State legislature. The statutes defining the powers of supervisors were formerly con- tained in a page or two of the session laws; now a volume is required for the same purpose. With the extension of power comes a corresponding increase in duties and responsibilities and a consequent demand for more intelli- gent, better qualified officers. The questions to be acted on by boards of supervisors are perplex- ing and complicated, and require, if properly decided, great care, discretion, sound judgment, and a thorough knowledge of the statutes on the subject. Such knowledge is not intuitive nor inherited. It cannot be ac- quired except by diligent effort and careful study, and they are a wise people that, having found a competent officer, retain him in his place as long as he will consent to serve. It is the aim of this work to give the law and the practice per- taining to the office of supervisor, as they exist on November 1, 1886. For this purpose a careful examination of the statutes, the decisions of the courts and the practice of the several boards of supervisors throughout the State has been made. The work is an enlargement of a brief used by the writer while serving as one of the supervisors of Oneida county, and is arranged in the way found by him to be most convenient for practical, every- day use. IV Preface. Judging from experience and from an examination of the published journals of the several boards of supervisors in the State, such boards, are liable to err in two particulars : First. Blindly following in the steps of their predecessors without knowing whether or not tlie precedent followed is founded upon sound legal principles. Second. The assumption of more power than the law confers upon them. It cannot be too thoroughly understood that the board of super- visors possess only such powers as are expressly or by necessary impli- cation given to them ; that they are not invested with absolute powers over all legislative subjects; that within the limited field, expressly defined and marked out for them by the legislature, they are author- ized to act, and beyond this they cannot go ; that the first question to be settled by them in any given case is, not are we prohibited from acting in the matter but is there any statute conferring upon us the right to act therein? If no statute conferring such power to act can be found, then they have no right to act. The references in this volume to the Revised Statutes are to the seventh edition, by Banks Bros. Acknowledgment is hereby made to Hon. M. H. Merwin, Hon. W. B. Sutton, A. C. Miller, Esq., E. 0. Jones, Esq., of Utica, N. Y., to Messrs. Wauful, Lewis, Marshall, of the Oneida county board of supervisors, to R. B. Maxfield, clerk of the board, Hon. W. D. Biddlecome, school commissioner, Geo. E. Dunham, and Mr. John Kohlor, ex-county treasurer, for many valuable suggestions. To J. B. Cushman, of TJtica, N. Y., one of the oldest and best qualified supervisors in the State, I am especially indebted for the benefit of his experience and the suggestions he has given, which have rendered his assistance invaluable. G. C. M. November 1, 1886. CONTENTS. PAQE. Introductory chapter , , . . . vii CHAPTEK I. "What acts public officers are prohibited from doing 1 CHAPTER IL Election and qualification of supervisor 4 CHAPTER III. The supervisor 31 CHAPTER IV. Elections 145 CHAPTER V. Of the assessment and collection of taxes 185 CHAPTER VL •Corporations — assessment and taxation of 299 CHAPTER VII. Equalization 332 CHAPTER VIII. Auditing of accounts 337 CHAPTER IX. Of the powers and duties of counties as bodies corporate — Of the board of supervisors 447 CHAPTER X. Of the board of supervisors (continued) — Miscellaneous duties. . 513 Ti" Contents. CHAPTER XL PAOE. Organization of the board of supervisors 623^ CHAPTER XII. Committee on legislation — committee on ratio and apportion- ment 635 CHAPTER XIII. Of the duties of the clerk 64S CHAPTER XIV. Roads and bridges — Defective roads and bridges, etc 660 CHAPTER XV. Municipal indebtedness — Railroad aid bonds 709 CHAPTER XVI. Actions and proceedings by and against towns, the supervisors and counties 735' CHAPTER XVII. Towns as bodies corporate, town meetings, etc 765 CHAPTER XVIII. Digest of fees 794 Note "A" 809 SUPERVISORS' MANUAL. INTRODUCTORY CHAPTER. Jurisdiction of " local legislatures," etc. Local authorities apt to exceed their jurisdic- Extent of powers conferred. tion. The test to be applied. Jurisdiction of " liocal Legislatures," etc. — It is the theory of our government that the people is the sovereign and the Constitution of the State the organic structiire through which the predominating social forces there existing are made mani- fest ; that the sovereign power is exercised through the channels es- tablished for it by the Constitution, to-wit, the legislature, the execu- tive and the judiciary. The will of the sovereign people is expressed in the laws which it enacts through the legislature, and such enactments are limited and restrained only by the Constitution. There is another fundamental principle which also plays an im- portant part; that of local self-government, by the town meeting, the boards of supervisors and other local authorities, all of whose rights, powers and duties are specifically. defined and set forth in statutes enacted by the legislature under and subject to the provisions of the .Constitution. These local authorities are not the sovereign power, nor invested with any powers except in the special cases and upoA the specific subjects confided to them by the legislature, and the means by which it can be ascertained just what powers have been intrusted to them, must be found in some Statutes duly enacted by the legislature. In all cases and upon all subjects not thus specifically confided to them, the people have reserved the power to themselves. Jurisdic- tion means the limit within which power may be exercised. When the powers, the territory or the subjects over which jurisdiction may viii Introductory Chapter. be exercised, are confined within narrow limits, snch jurisdiction is said to be inferior. The jurisdiction of town and county authorities is inferior. They cannot act upon what they think the law ought to be, nor can they acquire jurisdiction by asserting it. Their jurisdiction is limited as to territory, persons and particular subjects, and unless some statute gives them power to act concerning such territory, persons or subjects, they have no right to ac£, and any act beyond their jurisdiction is void, of no more validity than are the acts of other individuals, and should such void acts cause in- jury to others, they are personally liable therefor. Hxtent of POTTers Conferred. — Statutes containing grants of power must be construed so as to include the authority to do all things necessary to make the object of the grant effectual, and to enable the donee of the power to accomplish the expressed pur- poses of the act. Mayor, etc., v. Sands, 105 N. Y. 210. The grant of an express power carries with it, by necessary impli- cation, every other power necessary and proper to the execution of the power expressly granted. 1 Kent's Com. 404. So far has this principle been carried, that the courts have sus- tained grants of power by the legislature to boards of supervisors, which could not be exercised by the legislature itself. People, exrel. Morrill, v. Supervisors, 112 If. Y. 585. When control over the whole subject is conferred, the legislative discretion as to all incidents and details and the mode of accomplish- ing the purpose, is also conferred, and cannot be reviewed upon appeal. Hubbard t. Sadler, 104 N. Y. 223. Local Authorities apt to Exceed their Ju- risdiction. — An examination of the proceedings of the boards of supervisors shows that it is tlieir custom to exercise powers not conferred upon them by law, to legislate upon subjects not com- mitted to them, to audit claims not legal charges, upon some notion of their own as to its equity, to act upon the theory that because they are not especially prohibited from acting in certain cases, that, therefore, they have the right to act therein, etc. iNTEODtrCTOEY. ChAPTBE. JX Tbe Test to be Applied.— It is not a difficult nor im- possible test to apply to the many questions presented to such boards, and that test is, what statute confers on us the right to act in this case ? If none can be found, then the right does not exist. It is hoped that this book will aid in answering such questions. CHAPTER I. Sbo. 1. Public officer not to be interested Acts of ofUcer de facto . in any sale, lease or contracts, Corrupt bargain for appointment etc. ' to office. Misappropriation, etc., and falsi- Sec. 3. Taking fees not authorized by law fication of accounts by public or for services not rendered, officers. Intrusion into public office. Other violations of law. Officer refusing to surrender books, Certain contracts may be declared etc., to successor, void . 4. Neglect of duty. 2. Penalty for acting in a public of- fice without qualifying. Section 1. Public Officer not to be Interested in any Sale, Lease or Contracts, etc. — A public officer or school officer who is authorized to sell or lease any prop- erty, or to make any contract in his official capacity, or to take part in making any such sale, lease or contract, who volnntarily becomes interested individually in such sale, lease or contract, directly or in- directly, is guilty of a misdemeanor. Penal Code, § 4?3, as amended by chap. 493, Laws of 1888. Misappropriation, etc., and Falsification of Accounts by Public Officers.— A public officer, or a deputy or clerk of any such officer, and any other person receiving money on behalf of, or for account of the people of this State, or of any department of the government of this State, or of any bu- reau or fund created by law and in which the people of this State are directly or indirectly interested, or for or on account of any city, county, village or town, who 1. Appropriates to his own use, or to the use of any person not .entitled thereto, without authority of law, any money so received by him as such officer, clerk or deputy, or otherwise ; or 2. Knowingly keeps any false account, or makes any false entry or erasure in any account of. or relating to. any money so received by him ; or 3. Fraudulently alters, falsifies, conceals, destroys or obliterates any such account ; or 4. Willfully omits or refuses to pay over to the people of this State or their officer or agent authorized by law to receive the same, 2 Supervisors' Maitual. or to such city, village, county or town, or the proper officer or au- thority empowered to demand and receive the same, any money re- ceived by him as snch officer when it is his duty, imposed by law, to pay over, or account for, the same; Is guilty of felony. Id., 8 470. See, also, id., § 528. Other Violations of Law. — An officer or other per- son mentioned in the last section, who willfully disobeys any provis- ion of law regulating his official conduct, in cases other than those specified in that section, is guilty of a misdemeanor, punishable by a fine not exceeding $1,000, or imprisonment not exceeding two , years, or both. Id., §4n. Certain Contracts may be Declared Void.— It seems that contracts in violation of section 1 above, may be de- clared void at the instance of the city, county, village or town inter- ested in such contracts. § S, chap. 57, Laws o£ 1348. § 2. Acting in a Public Office -witbout 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 ; and in addition to the punishment pre- scribed therefor, he forfeits his right to the office. Penal Code, § 42. Acts of Officer de facto not Affected.— The last section must not be construed to affect the validity of acts done by a person exercising the functions of a public office in fact, where other persons than himself are interested in maintaining the validity of such acts. T'enal Code, § 43. Corrupt Bargain for Appointments, etc.— A person who asks or receives, or agrees to receive, any gratuity or reward, or any promise thereof, for appointing another person, or procuring for another person an appointment to a public office or to a clerk- ship, deputation, or other subordinate position in such an office, is The Supbrvisoe. 3 guilty of a misdemeanor. If the person so ofEending is a public of- ficer, a conviction also forfeits his oflBce. Penal Code, §53. § 3. Taking Fees not Authorized by La^r, for doing any official act, Id., §§48,49. or Taking Fees for Services not Rendered, except in cases of charges for prospective costs, or fees demandable in advance in the cases allowed by law, is a misdemeanor. Id., § 50. Intrusion into Public Office. — A person who will- fully intrudes himself into a public office, to which he has not been duly elected or appointed, or who, having been an executive or ad- ministrative officer, willfully exercises any of the functions of his office, after his right so to do has ceased, is guilty of a misdemeanor. Id., § 56. Officer refusing to Surrender to Succes- sor. — A person who, ha^dng been an executive or administrative officer, wrongfully refuses to surrender the official seal, or any books or papers, appertaining to his office, upon the demand of his lawful successor, is guilty of a misdemeanor. Id., § 51. § 4. Neglect of Duty. — A pubhc officer, or person hold- ing a public trust or employment, upon whom any duty is enjoined by law, who willfully neglects to perform the duty, is .guilty of a misdemeanor. This and the preceding section do not apply to cases of official acts or omissions, the prevention or punishment of which is otherwise specially provided by statute. Id., § IIT; and see id., § 164. CHAPTER II. ELECTION AND QUALIFICATION. Sfc. 5. Election. Sec. 17. Tenure of office. 6. What qualifications a supervisor 18. If a supervisor not chosen at must possess. town meeting, bow proceed. 1. What offices a supervisor may not 19. Vacancies, what are, how filled. hold. 20. Form of order appointing super- 8. Who are ineligible . visor. 9. Penalty for refusing to serve. 21. Such appointment cannot be ques- 10. Oath of office . tioned collaterally . 11. Form of oath. 22. Resignation of office. 12. Before whom oath to be taken. 23. Supervisor elected to give security . 13. Certificate. 24. Form of bonds or security. 14. Certificate to be filed. 25. Qualifying, what is. 15. Penalty for acting without taking Credentials, what are, oath. 16. Notice to be given supervisor elected. Election and Qualification. § 5. XHection. — One supervisor shall be chosen at the annual town meeting in each town, 1 R. S. 808. by the electors of the town, who are to vote for him by ballot. Id. 816. The time for holding town meetings is not uniform throughout the State. It is generally fixed by the board of supervisors, by resolution, so that the town meetings of every town in the same county shall be held on the same day. § 15, chap. 389, Laws of 1839; 1 R. S. 815. See post, " Town Meetings." After being so fixed, it cannot be changed for three successive years. Id. In Kings county it was attempted to change the time for electing supervisors and other officers to the general election day in the fall. Some doubts exist as to whether such change was properly made or is valid. People, ex rel. Smith, v. Schiellein, 95 N. Y. 124. Each ward in a city usually has one supervisor also, but the counties of New York and Kings act under special laws, and the general statement above does not apply to them. § 6. Wbat Qualifications a Supervisor must Possess. — No person is eligible to the office unless he is an elector of the town for which he is chosen. 1 E. S. 817. An elector must be a male citizen of the age of twenty-one years. He must have been a citizen for ten days, and an inhabitant of this State one year, next preceding an election, and for the last four ElECTIOK AKD QuALinCATION. 5 months a resident of the county, and for the last thirty days a resi- dent of the election district in which he may offer his vote. Constitution, art. 2, § 1. § 7. What Offices a Supervisor may not Hold. — No supervisor can be appointed or elected to hold the office of superintendent of the poor in any county. Chap 852, Laws of 1829, as amended by chap. 80, Laws of 1853; 3 R. S. 1869. Nor appointed to or hold the office of county treasurer. 1 E. S. 363. Nor trustee of a school district, nor member of a board of educa- tion. 2R. S.1163. Nor commissioner for loaning the moneys of the United States. 1 K. S. 525. Nor a loan officer appointed under the act of the llth of March, 1792. Id. 817. In the above cases a supervisor is ineligible to election or appointment to said offices. If a supervisor is elected or appointed thereto the election or appoint- ment is a nullity. People T. Clute, 50 N. T. 451. But there is a number of cases in whicli a different question arises, e. g., the charter of the city of Brooklyn says: " No alderman shall, during the term for which he is elected, hold any other public office." An alderman was elected to Congress. It was held that the office of alderman became vacant. Thomas Kelly v. The Common Council of Brooklyn, 77 N. Y. 503. So in People v. Nostrand, a highway commissioner was elected sheriff. Section 1, article 10 of the Constitution provides that sheriffs shall hold no otter office. It was held that the election of the commissioner to be sheriff operated as a resig- nation of the office of commissioner. Armstead C. Henry v. James Nostrand, 46 N. Y. 375. So a Echpol commissioner, if elected supervisor, vacates his office as commis- sioner. 2R. S.1144. Illustrations of this principle may be found in People T. Carrlque, 2 Hill, 93; Tan Orsdall v. Hazard, 3 Hill, 243-249; People v. Board of Police, etc., 35 Barb. 535-540, 541-553; Angell & Ames on Corp. 443; People V. Conklm, 7 Hun, 188-194; James Ryan v. Andrew H. Green, 58 N. Y. 295-304. As boards of supervisors have jurisdiction to decide cases of contested member- ship, care must be used In examining the statute claimed to render a contestant eligible or ineligible. The above decisions will assist in a proper determination of the question. § 8. Who are Ineligri^^®* — The loan commissioners above mentioned are not eligible to the office of supervisor. 1 R. S. 525, 817. 6 SupEKVisoKs' Manual. Nor a railroad commissioner of a town. Chap. 720, Laws of 1873 ; 1 R. S. 879. In some towns, by special statutes, the office of railroad commissioner is abolished, and their duties devolve upon the supervisors of such towns. These acts being local are omitted. By chap. 402, Laws of 1889, every town is author- ized to transfer the powers and duties of the railroad commissioners to the su- pervisor by a resolution passed and adopted by a majority vote of all persons voting at the annual town meeting or at a special town meeting duly called for such purpose. § 9. Penalty for Refusing to Serve.— If any per- son chosen or appointed supervisor shall refuse to serve, he shall for- feit to the town the sum of $50. IR. S. 819, §25. If any person, so chosen or appointed, shall not take and subscribe the oath of office, and cause the certificate mentioned below to be filed as required, such neglect shall be deemed a refusal to serve. ' Id. 818, §16. § 10. Oatll of Office. — Before entering upon the duties of his office, and within ten days after he shall be notified of his elec- tion or appointment, every person chosen or appointed shall take and subscribe the oath of office. Id. 817. When notice to be given, see post, % 16. § 11. Form of Oatb. — The following oath will comply with the provisions of the law : STATE OF NEW YORK, ) County of Oneida, Town of Tkknton, I, Thomas J. Lewis, of the town of Trenton, in said county, having been elected supervisor of said town, do solemnly swear (or affirm) that I will support the Con- stitution 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 supervisor of said town, according to the best of my ability. 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. THOMAS J. LEWIS. Subscribed and sworn to before me, ] this 6th day of March, 1886. EOBEKT PrICHAKD, Justice of the Peace. CERTIFICATE OF JUSTICE. COUNTY OF ONEIDA, ) . Town of Trenton, ) ' I, Robert Prichard, justice of the peace in and for the town of Trenton, in said county (or town clerk of the town of Trenton, in said county), do hereby certify. Election and Qualificatiok. 7 that on the 6th day of March, 1886, personally appeared before me Thomas J. Lewis, of said town, who then and there duly took and subscribed the foregoing oath. ROBERT PRICHARD, Justice op the Peace. The Revised Statutes say that the form shall be that ' ' prescribed in the sixth article of the Constitution of this State." As the sixth article of the present Constitution does not prescribe any oath, but the twelfth article does, it is safer for an elected officer to follow the above form, which complies with the latter article. 1 R. S. 817; Constitution, art. 12. In case of an appointment, the latter part of the oath may be omitted. § 12. Before Wbom. Oatb to be Taken.— It may be taken before a justice of the peace or commissioner of deeds, Id. 8ir. or the town clerk of the town in which snch officer shall be elected. Chap. 172, Laws of 1838; 1 R. S. 820. Notaries public were given the power to administer oaths and affirmations in all cases where the same may be taken and administered by commissioners of deeds. Chap. 360, Laws of 1859; 3 R. S. 2375. By chapter 338 of 1840, the office of commissioner of deeds in towns was abolished. There are decisions holding that the statutes designating persons before whom the oath shall be taken are merely directory. Me parie Heath & Broome, 3 Hill, 42; 4E. D.Smith, 430; People v. Stowell, 9 Abb. N. C. 456-460; but see Ellen O'Donnell v. Robert Mclntyre, 37 Hun, 615-622; Craft V. Merrill, 14 N. Y. 456; The National Bank of Chemung v. City of El- mira, 53 id . 49. § 13. Cei*tificate. — The officer taking the oath shall certify in writing the day and year when the same was taken, and shall de- liver such certificate to the person by whom the oath was taken. IR. S. 818. For form of certificate see cmte, % 11. No fee or reward is to be paid for administering the oath, or for the certificate. Id. § 14. Oath to be Filed. — The supervisor taking the oath, within eight days thereafter, shall cause the certificate to be filed in the office of the town clerk. Id. 818. § 15. Penalty for Acting- Without Taking Oath. — If he enters upon the duties of his office before he shall have taken such oath, he shall forfeit to the town the sum of $50. Id. 820. See ante, §§ 2 and 3. § 16. Notice to be Given Supervisor Elected. If his name appears on the poll list, that is to be deemed a siiffi- 8 SuPEEvisoEs' Manual. cient notice of his election ; but if not, he is entitled to a notice of his election from the town clerk of the town, within ten days after the meeting at which he is chosen. Id. 817. § 17. Tenure of Office. — Supervisors shall hold their office for one year, and until others are chosen or appointed in their places and have qualified. Id. 820, and 365, § 9. 34 Hun, 408. Local statutes, extending the terms of oflBce to two years, have been passed for certain counties, but sucli statutes are unconstitutional People v. Henry Hoifman, 60 How. Pr. 324; affirmed, 24 Hun, 142. and contrary to article 3, section 18 of the Constitution. § 18. If a Supervisor is not Chosen at To'wn Meeting", lio'w Proceed. — If any town shall omit or neglect, at its annual town meeting, to choose its proper town offi- cers, or any of them, it shall be lawful for any three justices of the peace of said town, by a warrant under their bands and seals, within five days after such town meeting, to appoint such officer or officers ; and the person or persons so appointed shall hold their respective offices until others are chosen or appointed in their places, and shall have the same powers and be subject to the same duties and penal- ties as if they had been duly chosen by the electors ; but, if the jus- tices of the peace fail to so appoint, it shall be the duty of the town clerk, within thirty days thereafter, to call a special town meeting for the purpose of electing such officer or officers. 1 R. S. 821, as amended by chap. 543, Laws of 1874. The justices making such appointment shall cause such warrant to be forthwith filed in the office of the town clerk, who shall forth- with give notice to the person appointed. Id. The justices cannot appoint one of their own number. People V. Thomas, 33 Barb. 287. Should the electors omit, at their annual town meeting, to elect a supervisor as in the case of a tie vote or otherwise — the justices may appoint a supervisor immediately without waiting for a special town meeting; and a person so ap- pointed will be entitled to hold the office in preference to one elected at a special town meeting. A special town meeting can properly be called to elect a super- visor only where a vacancy occurs after an officer has been duly chosen at the an- nual town meeting. People V. Van Horne, 18 Wend. 515; Tappan v. Grey, 9 Paige, 607 ; People, emrel. Williamson, V. McKinney, 52 N. Y. 874. Election and Qualification. "9 § 19. Vacancies, Trhat are, how Filled.— Every office shall become vacant on the happening of either of the follow- ing events before the expiration of the term of such office: 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 the office b© local, of the district, county, town or city for which he shall have been chosen or appointed, or within which the duties of his office are required to be discharged. 6. His conviction of an infamous crime, or of any offense in volving a violation of his oath of office. 6. His refusal or neglect to take the oath of office within the time required by law, or to give or renew any bond within the time pre- scribed by law. 7. The decision of a competent tribunal, declaring void his elec- tion or appointment. 1 K. S, 370, § 34, and Penal Code, § W. See the cases in section 7, ante. If any person shall execute any of the duties or functions of any office, without having taken and subscribed the oath of office re- quired by law, or without having executed and filed in the propef office any bond required by law, he shall forfeit the office to which he may have been elected or appointed, and shall be deemed guilty of a misdemeanor, punishable by fine or imprisonment. IR. S. 369, §31. If any person elected, chosen or appointed to the office of super- visor, overseer of the poor, or other town office, shall refuse to serve, or shall die, or remove dut of town, or become incapable of serving, be- fore the next annual town meeting after he shall be elected, chosen or appointed, the town clerk shall, within ei^ht days after the happening of such vacancy, on the petition of not less than twenty-five legal vot- ers of the town, call a special town meeting for the purpose of supply- ing the same. In case a special town meeting be not so called, then and not otherwise, any vacancy so occurring^ shall be filled by appoint- ment, made by not less than three justices of the peace of the town. But this section shall not apply to the filling of vacancies in the of- fice of justice of the peace or any other town office, where special pro- vision is made by law for the mode and manner of filling the same. Id., § 34, as amended by chap. 391, Laws of 1881. 2 10 SuPBKVisoEs' Manual. If the electors shall not, within fifteen days after the happening of snch vacancy, supply the same by an election at town meeting, the same shall be supplied by the justices of the town, in the like manner and with the like effect as above provided. Id., § 35. Three Justices are necessary to make a valid appointment, but where there are less than three residing in a town wherein a vacancy occurs, the justice or justices residing in such town may associate with themselves one or more justices from an adjoining town as may be necessary to make the number of three. Id., § 87. "When the justices appoint they are to appoint some person, other than one of their own number, by a warrant under their hands and seals, and are to cause such warrant to be forthwith filed in the office of the town clerk, who shall forthwith give notice to the per- son appointed. Jnte, § 18. A special town meeting can properly be called to elect a supervisor only where a vacancy occurs after an officer has been duly chosen at the annual town meeting, or after he has been duly appointed by the justices. People T. Van Horn and Himrod, 18 Wend. 515; 1 R. B. 822. Where a supervisor whose term has expired continues to discharge the duties of the office, under the statute authorizing him to do so until his successor has quali- fied, the office is not vacant, Tappan v. Grey, 9 Paige, 507; People v. Woodruff, 82 N. Y. 855. unless there is some special law governing the case and prescribing that a failure to elect causes a vacancy. People V. Crissey, 91 N. Y. 616-634. If any person elected or appointed to the office of supervisor shall not take and subscribe the oath of office required by law, and cause the certificate thereof to be filed, as the law requires, such neglect shall be deemed a refusal to serve. IR. S. 818, §16. There can be no election without some valid authority behind it. A few voters putting tickets in a box, does not alone make an elec- tion, which implies an opportunity to reject or choose another. People V. Crissey, 91 N. Y. 616, 634-5. A person duly elected overseer of the poor, and who has taken and filed an oath of office which does not comply with the statute, but who has entered upon the duties of his office, has until a successor is elected, as provided by section 34, R. S. 370, ante, a sufficient right and title to office to enable him to institute and maintain an action to recover penalties for violation of the excise laws. Horton V. Parsons, 37 Hun, 44. Electiost and Qualification. 11 As to the distinction between a vaocmcy in office and the " expira- tion of the term of office," see People V. Gardner, 45 N. Y. 812-816. The omission of one elected to the office of highway commissioner to execute and file an official bond, as required by the statute, does not render his official acts void in such a sense as to make him liable as trespasser therefor. The office in such a case does not become, ipso facto, vacant. Nor is he simply an officer de facto, but holds by a defeasible title ; and until in and by a direct judicial or other authorized proceeding, the forfeiture 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. Foot v.. stiles,, 57 N. Y. 899-402, and oases cited. The omission of an excise commissioner, elected under chapter 444r, Laws of 1874, to execute an official bond approved by the su- pervisor, does not create a vacancy ; at the utmost, it only furnishes cause for a forfeiture of the office ; a vacancy can be effected only by a direct proceeding for that purpose. Croninv. Stoddard, 97 N. Y. 271. When, therefore, because of the failure of an excise commissioner to procure the approval of the supervisor to the bond presented by him, another was elected to fill the supposed vacancy, held, that a li- cense signed by the person so elected and by one of the three commis- sioners, was no defense to an action to recover a penalty for selling liquor without a license. Id. , An officer elected and who, hy the certificate of the proper au- thority to that effect, is or has become qualified to hold the office, is the rightful officer, although holding by a defeasible title when he does not take the oath of office. That omissimi may work a forfeit- ure, but unless and until such forfeiture is adjudged, he remains the rightful officer, as if he had taken the proper oath. People T. Crissey, 91 N. Y. 616-635. There is no room, therefore, for the suggestion, that the predeces- sors of the seven newly-elected aldermen held over because of the irregular oath. Id. 636. There is no merit in the objection, that the seven newly-elected aldermen did not lawfully take the oath of office. * * * The 12 SUPERVISOES' MaNCAL. action of these seven aldermen in voting for police commissioners would have been valid, if they had taken no oath. Id. 635. A representative in Congress holds a " public office, " within the meaning of the provisions of the charter of the city of Brooklyn, which prohibits an alderman from holding " any other public office " save as excepted, and declares that by an election to, and acceptance of, " such public office " during his term as alderman, " his office as such alderman shall immediately become vacant." Accordingly, held, where an alderman of said city was, during his term, elected repre- sentative in Congress and accepted such office, that thereby his office as alderman "immediately" became vacant, and he was no longer alderman . C. and said C. D. appeared before me, and due proof having been made of the service of said order, petition and all papers accompanying the same, I proceeded to inquire into the circumstances, which inquiry was continued before me from day to day until this day, the matter having been regularly adjourned, and said C. D. not having made oath that he has truly delivered to said D. D. 0. the said books, papers and records, and it ap- pearing that said D. D. C. is the successor to said office of supervisor of the town of Deerfield, and that said records, books and papers are still unlawfully with- held, and that said C. D. still omits and refuses to deliver up the same (*), now after hearing W. A. Matteson, Esq., attorney for said D. D. C, in favor, and D. C. Stoddard, Esq., attorney for said C. D. in opposltiop thereto, it is hereby Ordered, that said C. D. forthwith deliver to said D. D. C. all the records, books and papers belonging or appertaining to the office of supervisor of said town of Deerfield, to-wit: (here enumerate and describe the several records, books and papers), which have come to the hands of, in possession of or under the control of said C. D., or in default thereof, that a warrant issue to the sheriff of the county of Oneida to commit said C. D. to the jail of said county, therein to remain until he deliver to said D. D. C. said records, books and papers, to-wit: Qiere enumerate as before) or be otherwise discharged according to law. And the same being required by said D. D. C, it is furtner Ordered, that on such default being made by said C. D., a search warrant issue to said sheriff or any constable of said county, commanding him to search, in the day-time, the house of said C. D. situated {insert a particular designation or de- scription of said house, and of any other place to be searched), for said records, books and papers, to-wit: Qwre insert a pa/rticular description of the articles) so withheld, and seize and bring them before the undersigned. Dated August 15, 1885. W. B. SUTTON, Oneida County JtrcGE. If default be made in obeying the order after service of a copy thereiof on the person so withholding, a warrant and search warrant in the following form issue : § 35. Warrant of Arrest. The People op the State op New Yokk to the Shebipp op Oneida County: Whereas (recite the proceedings as in the last form to the asterisk(^) ). These presents are, therefore, to command you, the" sheriff of Oneida county, and you are hereby commanded to take the body of said C. D. and commit him to the jail of Oneida county, there to remain until he shall deliver the following records, book.s and papers, to-wit: (Jiere insert a pa/rticula/r description of the rec- ords, books and papers) or be otherwise discharged according to law. In witness whereof I have hereunto set my hand and seal, at my 6hambers in Utica, N. Y., this 18th day of August, 1885. W. B. SUTTON, [l. s.] Oneida County Judge. § 36. Searcli Warrant. The People op the State op New York to the Sheripp, or any Constable op Oneida County: Whereas (recite proceedings to tJie asterisk (*) as in the second form above), and said D. D. C. having further required a search warrant to be issued, you, the said sheriff of Oneida county, and any constable of said county, are hereby further commanded to search, in the day-time, the house of said C. D., situated (insert a 28 Supervisors' Makdal. particular designation or description of said house and of any other place to be searched) for said records, books and papers, to-wit: (Aere insert a partievia/r de- scription of tlie same) and seize and bring them before the undersigned. In witness whereof, I have hereunto set my baud and seal, at my chambers in Utica, N. Y., this 18th day of August, 1885. W. B. SUTTON, [l. s.] Oneida County Judge. § 37. To Demand from his Predecessor and other ToTrn Officers all School and To^tm Moneys. — It is his duty, so soon as the bond to the county treas- urer, by the third article of the third title of this act required, shaD have been given by him and approved by the treasurer, to deliver to his predecessor the treasurer's certificate of these facts, to procure from the town clerk a copy of his predecessor's account, and to de- mand and receive from him any and all school moneys remaining in his hands. 2 R. S. 1155, 1 6, subd. 7; chap. 555, Laws of 1864. The bond referred to is the same mentioned in section 23, " Second," ante Furnished with the treasurer's certificate and a certified copy of his predecessor's account from the town clerk, and the approval by the auditors of his bond, he is then entitled to demand and receive all scliool moneys. Unless this certificate and approval be produced the moneys should not be paid to him by his predecessor, nor should he pay these moneys to his successor when his term of ofiice expires. It is his duty, upon receiving such a certificate and approval from his successor, and not hefore, to pay him all school moneys remaining in his hands, and to forthwith file the certificate in the town clerk's office. Id., subd. 3. § 38. Keeping Accounts.— Having received the books, and it being his duty to receive and pay out the town and school moneys, it is necessary for him to keep proper accounts thereof. The supervisor of each town shall receive and pay overall moneys raised therein for defraying town charges, except those raised for the support of highways and bridges, of common schools, and of the poor where poor moneys shall be raised. 1 E. S. 826. He shall keep a just and true account of the receipt and expendi- ture of all moneys which shall come into his hands by virtue of his ofiice, in a book to be prepared for that purpose, at the expense of the town, and to be delivered to his successor in office. Id. The Supervisor. 29 In addition to the above, which relates to town charges, it is his duty to keep a just and true account of all the school moneys re- ceived and disbursed by him during each year, and to lay the same, with proper vouchers, before tte board of town auditors at each annual meeting thereof. Chap. 555, Laws of 1864; 2 R. S. 1155, § 6, subd. 4. To have a bound blank book (the cost of which shall be a town charge), and to enter therein all his receipts and disbursements of school moneys, specifying from whom and for what purposes they were received, and to wh(»m and for what purposes they were paid out, and to deliver the book to his successor in office. Id., subd. 5. Within fifteen days after the determination of his office, to make out a just and true account of all school moneys theretofore received by him, and of all disbursements thereof, and to deliver the same to the town clerk, to be filed and recorded, and to notify his successor in office of such rendition and filing. Id., subd. 6. The accounts and book last above mentioned (subds. 4, 5 and 6) are based upon his duties in relation to common schools. The law pertaining thereto is as follows : It is the duty of every supervisor 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 of a majority of the trustees, in favor of qualified teachers, or upon the order of the trustee of a separate neighborhood, in favor of any teacher of a school in an adjoining State, recognized by him and patronized by the inhabitants of such neighborhood. Such teacher shall be deemed a qualified teacher. Id., subd. 1. To disburse the library moneys upon, and only upon, the written orders of a sole trustee, or a majority of the trustees. Id., subd. 2. In the case of a union free school district, to pay over all the school money apportioned thereto, whether for the payment of teachers' wages or as library moneys, to the treasurer of such dis- trict, upon the order of its board of education. id., subd. 3. If the order is regular upon its face, that is to say, if it bears the signatures of ^ majority of the persons acting in fact as trustees of a district, under color of an 30 Supervisors' Manual. election, in favor of a person whom it states to be a duly qualified teacher, em- ployed by them in the district during the year in which it is drawn, and in pay- ment of his wages as such teacher, it is a sufiBcient voucher for the supervisor, and it is not for him to inquire whether the trustees have exceeded their authority or acted improperly in drawing the order. If presented by any other person than the teacher in whose favor it is drawn, it should bear his written indorsement or order for payment to a specified person. Code of Public Instruction, p, 179. § 39. Form of Account.— The following form is iu use in many towns and will be sufficient for general purposes : Thomas J. Lewis, Supbktisor, in account with the town of Trentou. Poor Fond. 1885. Dr. Cr. March 19. To amount received from L. G. W., late supervisor, $546 93 May 4. To cash from H. H., excise commissioner 390 00 June 1. To cash from H. H., excise commissioner 27 50 To cash transferred from dog fund 33 50 $987 93 Contra. 1885. March 37. By cash paid H. B., overseer of poor, voucher No. 1, $75 00 April 31. By cash paid R. W., overseer of poor, voucher No. 3, 30 00 Sept. 11. By cash paid H. B., overseer of poor, voucher No. 3, 75 00 30. By cash paidR. W., overseer of poor, voucher No. 4, 40 00 Oct. 29. By cash paid H. B., overseer of poor, voucher No. 5, 50 00 1886. Feb. 15. By cash paid R. W., overseer of poor, voucher No. 6, 30 00 By balance on hand , 687 93 $987 93 $987 93 March 1. To balance on hand $687 93 Local School Fund. 1885. Dr. Or. Feb. 32. To amount of said fund received of L. Q. W., late supervisor $353 OO To interest thereon one year 31 18 $374 18 1886. Contra. Feb. 33. By paid school district No. 1 (voucher No. 8) $5 00 By paid school district No. 3 (voucher No. 9) 15 00 By paid school district No. 3 (voucher No. 10) 1 18 By balance on hand invested in a mortgage dated February 1, 1885, made by J. D. and wife on real estate in said town for 353 qq $374 18 $374 18 To balance $353 00 ^^^^^^ The Supbkvisob. 31 Dog Fund. 1885. Dr. Cr. Mar. 9. To cash from L. G. W., late supervisor $80 00 1886. Feb, 20. To cash from W. M., collector 85 00 $165 00 1885. CONTKA. Nov. 5. By cash paid H. M. (voucher No. 74) $23 75 Nov. 5. By cash paid C. W. (voucher No. 75) .... 25 00 Nov. 5. By cash paid J. B. J. (voucher No. 76) 3 00 Nov. 5. By cash paid E. O. (voucher No. 73) 5 75 1886. Feb. 23. By cash paid poor fund 23 50 By balance on hand 85 05 $165 00 $165 00 1886. ^^^^ ^^^^^ Mar. 1. To balance on hand $85 05 And so on ■with each fund. The account book pertaining to school moneys contains two classes of accounts, viz.: 1st. The general account. 2d. The account with each school district in town, and is in the following form: (Under the first head, viz.:) 32 SuPBRVisoKs' Manual. d » o o o K o e pd § 03 i a> ^ ■♦a a 1 r 1 2 0. 1 1 Q a a 6 a 1 1 r k 1 1 .a •a 09 O e > p. "O O 63 ^ « «- a 3 o a iH to 1 1 3 ■s a • pH 4A »H S "^ ^ ^ ^ o i f» ,d o to «*H 2 o r of every town, in those counties where all the poor are not a county charge, to 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 board of town auditors, in each year, au abstract of all such accounts for the preceding year, which shall exhibit the number of paupers that have been relieved or supported in such town the preceding year, specifying the number of county paupers and of town paupers, the "whole expense of such support, and specifying the allowance made to overseers, justices, constables or other officers, and any other items which shall not comprise any part of the actual expense of maintaining the paupers. The said abstracts shall be delivered by the clerk of the board of supervisors to the county superintendents, to be included by them in their report aforesaid. Any supervisor who shall neglect or refuse to make such reports, abstracts or copies aforesaid, or who shall willfully make any false report, shall forfeit $100. 3 R. S. 1868, § T6. This report is only to be made by the supervisors of those coun- ties where all the poor are not a county chara;e. The boai-d of town auditors meet for this purpose on the Tuesday The Supeetisoe. 49 preceding the annual town meeting, so that this report must be made within fifteen days thereafter. The supervisor in office at the time the accounts are audited should make the report, but if he does not, his successor must do so, or he will be liable for the neglect. Form of report : To THE Clerk op the Boahd op Super visors: The undersigned, supervisor of the town of , in the county of re- spectfully reports as follows: The number of paupers supported or relieved in the town of , during the year ending the i day of , 18 , as appears from the accounts of the overseers of the poor, was Of these, the number of county paupers was " " town " The whole expense of such support was $ Of this sum there was paid for transportation of paupers Allowance made to overseers for their services ' ' " justices " " keepers and officers " " physicians for services and medicines " " overseers for support of county paupers " " for town paupers The actual value of the labor of the paupers maintained was Estimated amount saved in the expense of their support, in consequence of their labor, was [Insert any other clmrges there may 6«.] Of the whole number of paupers relieved by the overseers, there were foreigners, lunatics, idiot and mutes. The number of paupers under their charge, at the time of auditing their accounts, was ; of which were males and females. The vested poor money of said town amounts to dollars. The sum raised by tax upon the town, for the support of the poor for the year preceding this report, was dollars. I 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 , 18 , as they were settled by the town auditors. Dated , the day of , 18 . CD., SnPBRVISOR. Report, as to commitments or appointments to State benevolent institutions, within ten days. See post. Benevolent Institutions. § 65. To Make a Return of Moneys in their Hands to the County Treasurer. — On the first Tuesday in March in each year, each supervisor shall make a return in writing to the county treasurer for the use of the school com- missioners, showing the amounts of -school moneys in his hands not paid out on the orders of trustees for teachers' wages, nor drawn by them for library purposes, and the districts to which they stand ac- credited (and if no 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 apportion- ment ; and the moneys so returned by him shall be reapportioned as hereinbefore directed. Laws 1864, chap. 655, tit. 4; 2 R. S. 1155. 7 50 Supervisors' Manual. Form of report : To THE County Tbeasuber of the Cottntt of Rensselaer: The undersigned, supervisor of the town of Schodack, in said county, hereby returns and reports that the amount of school money in his hands not paid out on the orders of trustees, for teachers' wages, nor drawn by them for library purposes, is $700 00 That said moneys stand accredited to the districts as follows: District No. 1 50 00 District No. S ■ 75 00 $ Dated. (Signature.) § 66. To tlie State Eng'ineer and Surveyor.— State Boundary Monuments — The supervisors and commissioners of highways of any and all towns of this State which may adjoin any of the boundary lines of the State are hereby charged with the care and preservation of the monuments which have here- tofore been placed, or may hereafter be placed, by official action, to mark the said boundary lines. And the said supervisors and com- missioners of highways are hereby required to enforce the statutes of this State for the preservation of monuments and land-marks, so far as they may relate to said boundary moniiments, and to prose- cute any person who may injure, disturb or remove any of them. § 3. The State engineer and surveyor is hereby authorized and directed during the year eighteen hundred and eighty-seven, and every third year thereafter, to cause to be made an examination and inspection of all the said monuments upon the State boundary and to make a detailed report thereof to the legislature, and if any such monuments be found injured, displaced or removed, said State engi- neer and surveyor is hereby authorized and directed, in co-operation with persons duly authorized by the adjoining State, to restore and replace the same and to cause suitable stone monuments to be set wherever such are now lacking, at the points where said State boundary is intersected by the boundary of any towns or counties of this State or by any highway, and for the purpose of carrying out the provisions of this act the sum of three thousand dollars, or so much thereof as may be necessary, is hereby appropriated therefor, payable by the treasurer upon the warrant of the comptroller upon the certificate of the State engineer and sur- veyor, out of any money not otherwise appropriated. Chap. 449, Laws 1886, as amended by chap. 421, Laws 1887. § 67. Account of School Moneys.— To the TOTrn Cleric. — Within fifteen days after the determination of his office, to make out a just and true account of all school moneys theretofore received by him and of all disbursements thereof, and to deliver the same to the town clerk, to be filed and recorded, and to notify his successor in office of sucli rendition and filing. 2 R. S. 1155, § 6, subd. 6, or chap. 555, Laws of 1864. § 68. Supervisor of To^rn to make List of Corporations to the Comptroller. — The supervis- The Supervisor. 51 ors of each town, ward, city or district in this State for which a su- pervisor is elected shall, on or before the first day of May in each year, make an accurate list of every corporation, joint-stock com- pany and association incorporated by this or any other State or country, located or doing business in such town, ward, city or district for which such supervisor has been elected, and shall forthwith for- ward the same to the comptroller of this State, verified by their oath before some magistrate or person authorized to administer oaths, to the effect that such list is full and complete to the best of their knowledge, information and belief. The comptroller of this State shall, on or before the fifteenth day of April in each year, forward to the said supervisors suitable forms for making up the said lists so required to be sent to him. Chap. 166, Laws of 1881; 1 E. S. 865. § 69i All Suits Ag-ainst the ToTvn. — To the TO'wn Meeting. — In all legal proceedings against towns by name, the first process and all other proceedings required to be served shall be served on the supervisor of the town ; and whenever any such suit or proceeding shall be commenced, it shall be the duty of the supervisor to attend to the defense thereof, and to lay before the electors of the town, at their first town meeting, a full statement of such suit or proceeding for their direction in regard to the de- fense thereof. 1 R. S. 840, § 3. § 70. As to TO'wn Debt. — The report mentioned at sec- tion 59 is also to be made to the town meeting, See ante, § 59. > and add to it, the amount of bonds issued, and the amounts and in- terest paid since said report, up to the day and date of his term of office, duly attested before a justice of the peace. The forms for the more important reports, etc., are set forth ante. From these, the others can readily be made out . AS TO COMMON SCHOOLS, SCHOOL DISTEICTS. § 71. Li 1864, by chapter 555, the several statutes in relatiojj to common .schools were consolidated, and, so far as they pertain to the duties of the suoervisor, are as follows : Gospel and School Lots. § 72. Supervisor's Duties in Relation to.— The supervisor, by virtue of his office, is trustee for the gospel and 53 SuPEBTisoES' Manual. school lot funds, lands, etc., and vested with the following powers and duties: 1. To take and hold possession of the gospel and school lots of their town. 2. To lease the same for such time, not exceeding twentj-one years, and upon such conditions as they shall deem expedient. 3. To sell the same, 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 loans, 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 the gospel and schools, or either, as may be provided by law, in such manner as shall be thus provided. 8. To render a just and true account of the proceeds of the sales and the interest on the loans thereof, and of the rents and profits of such gospel and school lots, and of the expenditure and appropri- ation thereof, on the last Tuesday next preceding the annual town meeting in each year, to the board of auditors of the accounts of other town officers. 9. To deliver over to their successors in ofBce all books, papers and securities relating to the same, at the expiration of their re- spective oflBces ; and, 10. To take therefor a receipt which shall be filed in the clerk's office of the town. 2 R. S. 1202. § 73. "Wlieil Town Divided.— 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 another town or towns, such lands shall be sold by the trustees 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 The Supervisor. 53 interested therein, in the same manner as the other public moneys of towns, so divided or altered, are apportioned. The shares of such moneys, to which the towns shall be respect- ively entitled, shall be paid to the trustees of the gospel and school lots of the respective towns, and shall thereafter be subject to the provisions of this title. Whenever the " trustees of the gospel and school lots " are spoken of ahove it now means the supervisor of the town. 2 R. S. 1154; Taylor v. Gurnee, 26 Hun, 624. § 74. Moneys in tlie Hands of the Overseers of tlie Poor. — In 1829, by chapter 287 of the Laws of 1829, the right was given to towns, in counties that had abolished, or should thereafter abolish, the distinction between county and town paupers, to appropriate the moneys and funds remaining in the hands of the overseers of the poor of such town to such objects and for such purposes as shall be determined at a town meeting. If the town meeting determined to appropriate the moneys and funds for the benefit of common schools in the town, such moneys were de- nominated " the common-school fund of such town," and were placed under the care and superintendence of the commissioners of com- mon schools of said town. Afterward, the office of commissioners of common schools in towns was abolished, and their powers vested in the supervisor. The act of 1329 is given herewith, and wherever the comrais- sioners of common schools are mentioned therein the supervisor now acts in their place and is vested with their powers. The following is the act of 1829 (chap. 287) above referred to : § 1 . It shall he lawful for the iuhahitants of any town, in such counties as have abolished the distinction between county and town paupers, and in such counties as may hereafter abolish such distinctions, at any annual or special town meeting, to appropriate all or any part of the moneys and funds remaining in the hands of the overseers of the poor of such town, after such abolition, to such objects and for such purposes as shall be determined on at such meeting. § 2. If any such meeting shall appropriate such money or funds for the benefit of common schools in their town, the money so appropriated shall be denomi- nated "the common-school fund of such town," and shall be under the care and superintendence of the commissioners of common schools of said town. § 3. If any such meeting shall appropriate such money or funds for the benefit of common schools, after such appropriation shall have been made, and after the commissioners of common schools shall have taken the oath of ofSce, the over- seers of the poor of such town shall then pay over and deliver to the said com- missioners such moneys, bonds, mortgages, notes and other securities remaining i& their hands as such overseers of the poor as will comport with the appropria- tion made for the benefit of common schools of their town. § 4. The said commissioners may sue for and collect in their name of office the money due or to become due on such bonds, mortgages, notes or other securl- 54 SupEEVisoES' Manual. ties, and also all other securities by them taken under the provisions of this act. § 5. The moneys, bonds, mortgages, notes and other securities aforesaid shall continue and be a permanent fund, to be denominated the common-school fund of the town appropriating the same, the annual interest of which shall be applied to the support of common schools in such towns, unless the inhabitants of such town, in annual town meeting, shall make a different disposition of the whole of the principal and interest, or any part thereof, for the benefit of the common schools of such town. § 6. The said commissioners of common schools, whenever the whole or any part of the principal of said fund shall come to their hands, shall loan the same on bond, secured by mortgage on real estate of double the value of the moneys so loaned, exclusive of buildings or artificial erections thereon. § 7. The said commissioners of common schools may purchase in the estate on which the fund shall have been secured, upon the foreclosure of any mortgage, and may hold and convey the same for the use of said fund. § 8. The said commissioners of comnion schools shall retain the interest of said common-school fund, which shall be distributed and applied to the support of common schools of such town, in like manner as the public money for the sup. port of common schools shall be distributed by law. § 9. The said commissioners of common schools shall account annually, in such manner and at such time as town oflScers are required by law to account, and shall deliver to their successors in office all moneys, books, securities and' papers what- soever relating to said fund, and shall take a receipt therefor and file the same with the town clerk. 2 R. S. 1154, note 1. § 75. Disbursing of, and Accounts for School Moneys, see §§ 38 and 39, ante. § 76. Alteration of School District.— The school commissioner has power, with the consent of the trustees of all dis- tricts affected thereby, to make an order altering the same, but if the trustees of any such district refuse to consent to the alteration of a district, the commissioner may make and file, with the town clerk, his order making the alteration, bnt reciting the refusal, and direct- ing that the order shall not take effect, as to the dissenting district or districts, until a day therein to be named and not less than three months after the notice in the next section mentioned. § 3, chap. 555, Laws of 1864, as amended by chap . 406, Laws of 1867 ; 2 R. S. 1157. Within ten days after making and filing such order he shall give at least a week's notice in writing to one or more of the assenting and dissenting trustees of any district or districts to be affected by the proposed alterations, that at a specified time and -at a named place within the town, in which either of the districts to be affected lies, he will bear the objections to the alteration. The trustees of any district to be affected by such order may request the supervisor and town clerk of the town or towns within which such district or dis- tricts shall wholly or partly lie, to be associated with the commis- sioner. At the time and place mentioned in the notice the commis- The Supervisor. 55 sioner or commissioners, 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 decision must either confirni or vacate the order of the commissioner, and must be filed with and recorded by the town clerk of the town or towns in which the district or districts affected shall lie. Id., as amended by chap. 647, Laws of 1865 ; People v. Hooper, 13 Hud, 639. § 71. Form of Order Altering* or Forming- a .District. In the Matter of the Formation of Dis- trict No. , in the Town of , County of , and the consequent Alteration of District No. , in said Town, and District No. , in the Town of It is hereby ordered, by the undersigned school commissioner for commissioner district No. 1 of the county of , that a new school district be formed, to consist of part of district No. , in the town of , and part of district No. , in the town of , which new district is hereby numbered twelve and is bounded as follows: Beginning on the east bank of Allen's creek, at the point where the same is intersected by the north line of the highway leading from B. to P.; thence north- easterly along said creek to its junction with I. creek; thence south-easterly along I. creek to the west line of the town of B.; thence south along the boundary line between the towns of B. and P. to the north line of P. ; thence west on said north line to the State road; thence north along the State road to its intersection with the highway first above mentioned; thence north-westerly along said highway to the place of beginning.* This order is made with the consent of all of the trustees of each of said districts affected thereby, which consent is hereto annexed and to be recorded herewithf and shall take effect on ( ). Dated June 1, 1886. W. D. BIDDLECOM, School Commissioner. If a majority of the trustees, of any district affected thereby re- fuse their consent, the order should recite that fact and that it will not take effect until after three months' notice in writing to some tThe order should recite that trustees conseut. The consent of a district meeting is not a compliance with the statute. Inre Appeal of Charles Anderson, p. 121 of Eept. of Supt. Pub. Inst, for 1889. Under this, two weals districts may be consolidated. Id. See, also. In re Appeal Ling, id. 136 ; In re Chubbucis, Id. 145. But changes from a weak to a strong district will not be upheld. .In re Parks, id. 153. Changes to better accommodate school patrons, which do not materially afiTect the size or assessable valuation of a district, will be upheld. JnreCady, id. 65. 56 SupEKVTSoRs' Manual. one or more of such trustees, changing the order above from the asterisk (*) as follows : This order is made with the consent of all the trustees of said district No. The trustees of district No. not having consented to this order, the same will not take effect in respect to said last-mentioned district, until Septem- ber ( ), after three months' notice, in writing, shall be given to one or more of the assenting or dissenting trustees of said districts to be affected by said pro- posed alteration. Dated , 18 . (Signature as before.) § 78. Form of Consent by Trustees. At a meeting of the trustees of district No. , in the town of , county. 0f ^ called for the purpose of considering certain proposed alterations thereof, held on the day of , at which were present J. D. and K. S., and in the absence of P. T., a trustee, who having been duly notified of such meeting, failed to attend, it was Resolved, That the consent of the trustees of district No. , in the town of , be and loreby is given to the alteration of said district by an order bearing date June 1, 1886, made by W. D. Biddlecom, school commissioner of tlie first commissioner's district of Oneida county (or that said district be so altered as to be hereafter bounded as follows: describing the new boundaries fuUy). In witness, the undersigned, a majority of said Trustees, have hereunto sub- scribed their hands this day of J. D., R. S., Trustbbs. The school commissioner cannot call upon the supervisor and town clerk to act with him, for the jurisdiction of the latter depends upon au application to them by the trustees of some district to be affected thereby. In order to give them the opportunity to make such ap- plication and that it may be done, or the option waived within a reasonable time, the school commissioner should serve a written no- tice upon one or more of the trustees as follows : § 19. Form. To THE Trustees of District No. , in the Town of : Take notice that I intend on the day of , at , to make an order for the alteration of district No. , in the town of , so that its boundaries shall thereafter be as follows (specify fully the proposed boundaries of the district as altered as in the preceding order). Ton are, therefore, requested to meet without delay, and to adopt a resolution consenting to the above alteration, in which case you will please furnish me, at said time and place, with a copy thereof, certified under the hands of a majority of yon, or to adopt a resolution applying to the supervisor and town clerk of the town (or towns if the district is a joint one) of , to be associated with me at the time and place above mentioned in determining upon the propriety of such proposed alteration. In the latter case, you will please transmit copies of such resolution, certified under the hands of a majority of you, to the supervisor and town clerk without delay together with notice of the time and place above stated at which such alteration wUl be made by me, in case of their non-attendance. C. D., School Commissioner. The above forms, with a fevf changes, are taken from the Code of Public In- struction, p. 186 et seg. The Supervisob. 57 § »0. Form of Decision thereupon. In the Matter of the Formation of District No. , in the Town of , County of , and the consequent Alteration of District No. , in said Town, and District No. , in the Town of We, the undersigned, commissioner of common schools for the district of Rensselaer county, supervisor and town clerk of the town of Pittstown in said county, having met at the house of , in said town, on the day of , for the purpose of hearing and deciding the matter of the order made by such commissioner of common schools, on the day of , altering school dis- trict No. 5, in said town, which order is as follows (insert order) : And having heard all the objections presented to said order, do hereby decide that said order be confirmed (or vacated). Given under our hands the day of (Signatures.) Each of the orders above mentioned must be filed with and recorded by the town clerk of the town, or towns, in which said district or districts to be afEected shall lie. The failure of the supervisor and town clerk to affix their signatures to the or- der is not fatal; they may so affix them at any time. In re Parks. See Report of Supt. Pub. Inst, for 1889, p. 153. § 81. On the Dissolution of a District.— When a district is parted into portions, whicli are annexed to other districts, its property shall be sold by the supervisor of the town within which its school-house is situate, at public auction after at least five days' notice, by notices posted in three or more pubKc places of the town in which the school-house is, one of which shall be posted in the district so dissolved. The supervisor, after deducting the ex- penses 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 assessment-roll or rolls of the town or towns, and pay it over accordingly. The supervisor of the town within whicli the school-house of the dissolved district was situate, may demand, sue for, and collect, in his name of office, any money of the district outstanding in the hands of any of its former officers, or any other person ; and after deducting his costs and expenses, shall report the balance to the school commissioner, who shall apportion the same equitably among the districts to which the parts of the dissolved district were an- nexed, to be by them applied as their district meetings shall deter- mine. 58 SuPEEVisoEs' Manual. Though a district be dissolved, it shall continue to exist in law, for the purpose of providing for and paying all its just debts ; and to that end, the trustees and other officers shall continue in office, and the inhabitants may hold special meetings, elect officers to supply va- cancies, and vote taxes ; and all other acts necessary to raise money and pay such debts shall be done by the inhabitants and officers of the district. 2 R. S. 1158, §§ 9, 10 and 11, or chap. 555, Laws of 1864. § 83. Equalizing Taxes on Lands in Several TOT^ns. — When a district embraces parts of more than one town, it shall be the duty of the supervisors of such towns so in part em- braced, upon receiving a written notice from the trustee or trustees of such district, or from three or more persons liable to pay taxes upon real estate therein, to meet at a time and place to be named in such notice, which time shall not be less than five nor more than ten days from the service thereof, and a place within the bounds of the towns so in part embraced, and proceed to inquire and determine whether the valuation of real property upon the several assessment- rolls of said towns are substantially just as compared with each other, so far as said districts are concerned, and if ascertained not so to be, they shall determine the relative proportions of taxes that ought to be assessed upon the real property of the parts of such dis- trict lying in different towns, and the trustees of such district shall thereupon assess the proportion of any tax thereafter to be raised, according to the determination of such supervisors, until new assess- ment-rolls of the towns shall be perfected and filed, using the assessment-rolls of the several towns to distribute the said propor- tion among the persons liable to be assessed for the same. In cases where such supervisors shall be unable to agree, they shall summon a supervisor from some adjoining town, who shall unite in such in- quiring, and the finding of a majority shall be the determination of such meeting. Id. IITI, § 69, or chap. 555, Laws of 1864, as amended by chap. 567, Laws of 1875 tit. 7, art. 7, § 69. .• r i , The supervisors of Cazenovia and Sullivan were applied to under this statute to inquire and determine whether the valuations of real property upon the several assessment-rolls of those towns were substantially just as compared with each other so far as district No. 3, lying partly in each town, was concerned The two supervisors being unable to agree, a third was called in, and they determined that the amount of $10,650.31 should be added to the assessment of the town of Caze- novia for said district. The superintendent set aside their proceedings and held that they were irreeu lar. Their action was not such as is contemplated bylaw. Their duty was to determine the relative proportion of taxes that ought to be assessed upon the real The Supebvisor. 59 property of the parts lying in the different towns. Instead of this, the super- visors undertook to equalize the valuation of real property in the different towns so tar as said district is concerned, and for this no warrant of law can be found. Code of Pabhc Instruction, 475. Supervisors have no power to change the values as fixed in the town assess- ment-rolls. Their duty is to determine what proportion of a school district tax shall he paid by each town forming a joint district, so that relatively each shall pay the same. Trustees, in preparing a tax list, must use the last town assess- ment-roll after correction by assessors. In re Callendar; Report of Supt. of Instruction for 1887, p. 870. § 83. Annual Meeting- in Neighborhood.— The annual meeting of each neighborhood shall be held on the tirst Tues- day of August in each year, at the hour and place fixed by the last previ- ous neighborhood meeting or, if such hour and place have not been so fixed, then the same shall be held in the school-house at seven thirty o'clock in the evening. If a neighborhood possesses more than one school-house, it shall be held in the one usually used for that purpose, unless the trustees designate in the notice another. If there is no school building, or if the school-house shall be no longer accessible, then at such other place as the- trustees, or, if there be no trustees, the clerk shall in the notice designate. § 8, title 7, chap. 555, Laws of 1864, as amended by chap. 245, § 2, Laws of 1889. Annual District Meeting. — The annual meeting of each school district shall be hdld the first Tuesday of August in each year, and unless the hour and place thereof shall have been fixed by a vote of a previous district meeting, the same shall be held, in the school-house at seven thirty o'clock in the evening. If a dis- trict possesses more than one school house, it shall be held in the one usually employed for that purpose, unless the trustees designate another. If the district possesses no school-house, or if the school- house shall be no longer accessible, then the annual meeting shall be held at such place as the trustees, or, if there be no trustee, the clerk shall designate in the notice. Id., 8 9. § 84. Terms of OflBcers.— The terms of all ofiicers elected at the first meeting of a newly-erected neigl^borhood or district, except of a union free school district, shall expire on the first Tues- day of August next thereafter. Id., § 26. § 85. Trustees of new School Districts, etc.— On the first Tuesday of August, next after the erection of a district, at 60 SuPEBVisoRS' Manual. its first aunual meeting, the electors shall determine, by resolution, whether the district shall have one or three trustees, and if they re- solve to have three trustees, shall elect the three for one, two and three years, respectively, and shall designate, by their votes, for which term each is elected ; thejeafter in such district, one trustee shall be elected at each annual meeting to fill the office of the outgo- ing trustee. The electors of any district having three trustees, shall have power to decide, by resolution, at any annual meeting, whether the district shall have a sole trustee or three trustees, and if they resolve to have a sole trustee, the trustee or trustees in oflSce shall continue in office until their term or terms of office shall ex- pire, and no election of a trustee shall be had in the district un- til the offices of such trustee or trustees shall become vacant by the expiration of their terms of office or otiierwise, and thereafter but one trustee shall be elected for said district, until the electors of a district having decided to have but one trustee shall determine at an aimual meeting, by a two-thirds vote of the legal voters present thereat, to have three trustees ; in which case they shall, upon the adoption of such resolution, proceed to elect three trustees or such number as may be necessary to form a board of three trustees» in the same manner as provided in this section for the election of three trustees at the first annual meeting after the erection of a dis- trict ; and thereafter in such district, one trustee shall be elected for three years, at each annual meeting, to fill the office of the outgoing ■ trustee. Id., § 27. Trustees to Make Annual Reports, etc.— The trustees of each school district shall, between the twenty-fifth day of July and the first Tuesday of August, in each year make and direct to the school commissioner a report in writing, dated on the twenty- sixth day of July of the year in which it is made, and shall sign and certify it and dehver it to the clerk of the town in which the school- house of the district is situated ; and every such report shall certify : 1. The whole time any school has been kept in their district dur- ing the year ending*on the day previous to the date of such report, and distinguishing what portion of the time such school has been kept by qualified teachers, and the whole number of days, including holidays, in which the school was taught by qualified teachers. 2. The amount of their drafts upon the supervisor, for the pay- ment of teachers' wages during such year, and the amount of their The Supervisor. 61 drafts upon him for the purchase of books and school apparatus dur- ing such.year, and the manner in which such moneys have been ex- pended. 3. The number of children taught in the district school or schools during such year by qualified teachers, and the sum of the days' at- tendance of all such children upon the school. 4. The number of children residing in the district on the thirtieth day of June previous to the making of such report, and the' names of the parents or other persons -with whom such children did re- spectively reside, and the number of children residing with each. 5. The amount of money paid for teachers' wages, in addition to 'the public money paid therefor, the amount of taxes levied in said district for purchasing school-house sites, for building, hiring, pur- chasing, repairing and insuring school-houses, for fuel, for district "libraries, or for any other purpose allowed by law, and such other information in relation to the schools and the district as the super- intendent of public instruction may, from time to time, require. Id., § 60. § 86. Employment of School Teachers.— Trus- tees have power to contract with and employ all teachers in the district school or schools, but no person who is within two degrees of relation- ship by blood or marriage to any such trustee shall be so employed, except with the approval of tv/o-thirds of the voters of such district present and voting upon the question at an annual or special meeting of the district ; nor shall any sole trustee of a district make any con- tract for the employment of a teacher in and for said school district beyond the close of the school term commencing next preceding the expiration of his term of office, and continuing not longer than six- teen weeks, except with the approval of a majority of the voters of such district present and voting upon the question at an annual or special meeting of the district ; nor shall the trustees of any school district, having three or more trustees, make any contract for the employment of a teacher or teachers for more than one year in ad- vance. Nor shall any trustee or trustees employ any teacher for a shorter time than sixteen weeks, unless for the purpose of filling out an unexpired term of school; nor shall any teacher be dismissed in the course of a term of employment, except for reasons which, if appealed to the superintendent of public instruction, shall be held to be sufficient cause for such dismissal. Any -failure on the part of a teacher to complete an agreement to teach a term of school with- out good reason therefor, shall be deemed sufficient ground for the Q2 SxrPEKVisoEs' Manual. revocation of the teacher's certificate. Any person employed in disre- gard of the foregoing provisions shall have no claim for wages against the district, but may enforce the specific contract made against tlie trustee or trustees consenting to such employment as individuals. Id., §49, subd. 9, as amended by chap. 328, Laws of 1889. § 8T. District Taxes, bow Apportioned.— School district taxes shall be apportioned by the trustees upon all real estate within the boundaries of the district which shall not be by law ex- empt from taxation, except as hereinafter provided, and such prop- erty shall be assessed to the person or persons, or corporation owning or possessing the same at the time such tax list shall be made out, but land lying in one body and occupied by the same person, either as owner or agent for the same principal, or as tenant under the same landlord, if assessed as one lot on the last assessment-roll of the town after revision by the assessors, shall, though situated partly in two or more school districts, be taxable in that one of them in which such occupant resides. This rule shall not apply to land owned by non-residents of the district, and which shall not be occu- pied by an agent, servant or tenant residing in the district. Such unoccupied real estate shall be assessed as non-resident, and a descrip- tion thereof shall be entered in the tax list. The trustees shall also apportion the district taxes upon all persons residing in the district, and upon all corporations liable to taxation therein, for the personal estate owned by them and liable to taxation. They shall also appor- tion the same upon non-resident stockholders in banks or banking associations situated in their districts for the amount of stock owned by them therein, and upon individual bankers doing business in their district in accordance with the provisions of chapter seven hundred and sixty-one of the laws of one thousand eight hundred and sixty- six. Id., § 66. § 88. Supervisor may Consent to Rene^ral of "Warrant for Scbool Tax. — Whenever more than one renewal of a warrant for the collection of any tax list or rate bill may become necessary in any district, the trustees may make such further renewal, with the written approbation of the supervisor of any town in which a school-house of said district shall be located, to be indorsed upon such warrant. 2 R. S. 1175, § 87, tit. 7, chap. 655, Laws of 1864. The first renewal may be made by trustees, without consent of supervisor. The second and subsequent renewals require his consent. The Supervisok. 63 § 89. Form of Rene-w-al. With tlie approbation of tlie supervisor of the town of , we hereby renew the within (or foregoing) warrant in respect to delinquents for the period of thirty day^. Dated this day of , 1886. A. B., C. D., E. F., Tkustbbs of Disteict No. in the Town of The supervisor is to approve of the same, in writing, under the above. Approved this day of , 1886. G. H., SUPERTISOR OP THE TOWN OF Or as follows: I hereby approve and consent to a further renewal of the within (or foregoing) warrant for the period of thirty days. Dated , 1886. G. H., SUPEEVISOR OF THE TOWN OP In an action brought to recover damages forsaking and selling plaintifE's wagon, defendant claimed to have taken the property as a collector of school taxes under a warrant issued to him on the 30th day of October, 1885. Upon the trial it appeared that a few days after the warrant had expired it was renewed by an indorsement made thereon by the trustee in the following words: " Kenewed for ten days." On November 3d the trustee wrote upon it the additional words: " Renewed for twenty days from the time it ran out." The levy was made November 5, and the wagon sold on November 12. The court below held that, as the sale was made after the ten days had expired, it was not authorized by the first renewal, and that the second renewal was void for want of the written approval of the supervisor in- dorsed thereon, as required by the statute. The General Term held that the court below erred in so doing, that the words of limitation added to the first renewal, being unauthorized by the statute, were to be treated as surplusage, and that the renewal was to be regarded as the issu- ing of a new warrant of the same force and effect, in all respects, as the original warrant, and that the collector was, therefore, protected by it in making the levy and sale. Baker v. Lee, 41 Hun, 591. See, also, Duntley v. Davis, 25 N. Y. Week. Dig. 297; S. C, 42 Hud, 229. The cases on "Renewals of Warrants " are collated and discussed in 41 and 43 Hun, supra. § 90. Certain Duties and PoTrers of the Su- pervisor Abolished. — His consent is not necessary to the changing of site, or removal of a school-house. His power to fill vacancy in office of trustee was abolished by chapter 331, Laws of 1887, nor is his concurrence necessary in order to condemn a school- house. Chap. 592, Laws of 1887. §91. Duty of To^rn Clerk.— It is the duty of the town 64 SupEKTisoRs' Manual. clerk, under the school law, to report to the supervisor any loss of or injury to any books, maps, papers and records of his office touch- ing common schools ; to receive from the supervisor the certificates of apportionment of school moneys to the town, and record them in a book to be kept for the purpose ; forthwith to notify the district trustees of the filing of such certificates; to receive from the super- visor andrecord 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 ^end a copy thereof by mail to the superintendent of public instruction, whenever so required by him, and to file and preserve the vouchers accompanying the accounts. To receive and record in the same book the supervisor's final account of the school moneys received and disbursed by him, and deliver a copy thereof to the successor in office of such supervisor. 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. Laws of 1864, chap. 555, tit. 5 ; 2 R. S. 1156. There are other duties of the town clerk in connection with common .schools, but the above are the ones pertaining to his duties so far as the supervisor is con- cerned. § 92. Supervisor to sue for Penalties and Forfeitures imposed by lia^rs relating^ to ScllOOls. — It is the duty of the supervisor, by his name of office, when the duty is not elsewhere imposed by law, to sue for and recover penalties and forfeitures imposed for violations of this act, and for any default or omission of any town officer or school district board or officer under this act, and after deducting his costs and expenses, to report the balances to the school commissioner. Laws of 1S64, chap. 655, tit. i, § 6, subd. 9 ; 2 R. S. 1155, § 6, subd. 9. § 93. Certificate of Apportionment of School Moneys by School Commissioner.— The school commissioner shall certify to the supervisor of each town, the amount of school moneys apportioned to his town, and the portions thereof to be paid by him for hbrary purposes and for teachers' wages, to each such distinct separate neighborhood, district and part of a dis- trict. Id., tit. 3, § 27, subd. 10 ; 2 R. S. 1153. The Supervisor. 65 § 94. Duty of Supervisor. — On receiving the certifi- cate of the commissioners, each supervisor shall forthwith make a copy thereof for his own use, and deposit the original in the office of the clerk of his town ; and the moneys so apportioned to his town shall be paid to him immediately on his compliance with the re- quirements of the next section, and not before. Id., §30. " The requirements of the next section " are the giving of the hond, etc. The law may be found at section 23, "second," ante. § 95i Wlio May- Vote at Scliool Meeting-. — Every person of full age residing in any neighborhood or school dis- trict, and entitled to hold lands in this State, who owns or hires real property in such neighborhood or school district liable to taxation for school purposes, and every resident of such neighborhood or dis- trict who is a citizen of the United States above the age of twenty- one years, and who is the parent of a child or children of school age, some one or more of whom shaE have attended the district school for a period of at least eight weeks within one year preceding, and every such person not being the parent who shall have permanently residing with him or her such child or children, and every such resi- dent and citizen as aforesaid, who owns any personal property as- sessed on the last preceding assessment-roll of the town, exceeding $50 in value, exclusive of such as is exempt from execution, and no others, shall be entitled to vote at any school meeting held in such neighborhood or district. § 12, tit. 1, chap. 555, Laws of 1864, as amended by chap. 655, Laws of 1886. § 96. Supervisor to call District Scliool Meeting, -Wlien. — "Whenever the time for holding the annual meeting in school districts shall pass without such meeting being held in any district, a special meeting shall thereafter be called by the trustees, or by the clerk of such district, for the purpose of transacting the business of the annual meeting; and if no such meeting be called by the trustees or the clerk within twenty days after such time shall have passed, the supervisor or superintendent of public instruction may order any inhabitant of such district to give notice of such meeting in the manner provided in the second section of this title, and the officers of the district shall make to such meeting the reports required to be made at the annual meeting, sub- 9 66 SrPEETisoKs' Manual. ject to the same penalties in case of neglect ; and the officers elected at such meeting shall hold their respective offices only until the next annual meetinsr. and until their successors are elected and shall have qualified, as in this act provided. 2 R. S. 1160, or chap. 555, Laws of 1864, tit. 1, % 10. § 97. Notice to be Given Thereof. To C. D., A Taxable Inhabitant of School District No. , inthe Town op: Whereas, The annual meeting in said district has not been held for the year at the date prescribed by law, and no special meeting thereafter has been called by the trustees or clerk of said district for the purpose of transacting the business of the annual meeting therein, and more than twenty days have passed since said date: You are hereby required to notify every person of full age, residing in said irieigM>orhood or) school district and entitled to hold lands in this State, who owns or hires real property in such school district {or neighbm'hood) liable to taxation for school purposes, and every resident of such district {or neighborfiood) who is a citizen of the United States above the age of twenty -one years, and who is the parent of a child or children of school age, some one or more of whom shall have attended the district school for a period of at least eight weeks within one year nest preceding the date hereof, and every such person, not being the parent, who shall have permanently residing with him or her, such child or children, and every such resident and citizen as aforesaid, who owns any personal property assessed on the last preceding assessment-roll of the town, exceeding $50 in value, exclusive of such as is exempt from execution, that a .special district meet- ing of said district is hereby appointed to be held at , at o'clock of the day of next, for the purpose of electing officers and transacting the business of the annual meeting, as prescribed by sections 10 and 16 of title 7 of the General School Act. You are required by law to read this notice in the hearing of each inhabitant qualified as above described, or in case of his absence from home, to leave a copy of so much thereof as relates to the time and place of such meeting at the place of his abode at least six days before the time of the meeting. Dated this day of , 1886. A. B., Supervisor of the Town of § 98. Apportionment of Valuation of Rail- roads among- School Districts.— It is the duty of the town assessors, within hfteen days after the completion of their annual assessment lists, to apportion the valuation of the property of each and every railroad, telegraph, telephone and pipe-line com- pany, as appears on such assessment list, among the several school districts in their town in which any portion of said property is situ- ated, giving to each of said districts their proper portion according to the proportion that the value of said property in each of such districts bears to the value of the whole thereof in said town. Chap. 694, Laws of 1S67, S 1, as amended by chap. 414, Laws of 1884. Such apportionment shall be in writing, and shall be signed by The SuPEKVisoK. 67 said assessors, or a majority of them, and shall set forth the number of each district and the amount of the valuation of the property of each railroad, telegraph, telephone and pipe-line companies appor- tioned to each of said districts ; and such apportioment shall be filed with the town clerk by said assessors, or one of them, within five days after being made, and the amount so apportioned to each district shall be the valuation of the property of each of said com- panies, on which all taxes against said companies in and for said districts shall be levied and assessed until the next annual assess- ment and apportionment. Id., § 2. In case the assessors shall neglect to make such apportionment, it shall be the duty of the supervisor of the town, on the application of the trustees, or board of education of any district, or of any rail- road, telegraph, telephone or pipe-line company, to make such ap- portionment, in the same manner and with the like effect as if made by said assessors. Id., § 3, as amended by chap. 340, Laws of 1885. In case any alteration shall be made in any school district affecting the property of any railroad, telegraph, telephone or pipe-line com- pany, the officer making such alteration shall, at the same time, de- termine what change in the valuation of said property in such dis- trict would be just, on account of the alteration of district, and the valuation shall be accordingly changed. Id., § 5. § 99. Women Eligible to Vote at School Meeting and to Serve as Scbool Trustees.— No person shall be deemed to be ineligible to serve as any school officer, or to vote at any school meeting, by reason of sex, who has the other qualifications now required by law. Chap. 9, Laws of 1880 The fact that a woman is the wife of a man owning real estate in which she has a dower right, is not sufficient to qualify her to vote at school meeting. Nor is ownership of a reversionary interest in real estate which is subject to an unexpired life estate. In a case where two ladies swore that they owned real estate at the time of school meeting, but failed to disclose the location or any other facts con- 68 Supervisors' Manual. cerning the same, and the public record showed no conveyance to them, held, that they were bound to supply such facts, and raises the presumption that such ownership is not hona fide, and was ef- fected only to enable them to vote at the school meeting, and that their claim to do so could not be sustained. /»?■« Appeal Wilcox, p. ITS, Kept, of Supt. of Pub. Inst, for 1889. § 100. Under Compulsory Education Act.— The trustee or trustees of any school district, the president of any union school, or such officer as the board of education of a city, in- corporated village or town may designate, is to report in writing all violations of this act to the treasurer or chief fiscal officer of his city, or to the supervisor of the town. Chap. 421, Laws of 1874, § 5; 2 R. S. 1206. Penalties for violation thereof are to be paid to such officers or said supervisor, which penalties, when paid, are to be added to the public school money of said school district. Id., §6. The trustee, in case the parent, guardian or other person having control of any child between eight and fifteen years of age is unable to provide such child for said fourteen weeks with text-books * * * and shall so state in writing to said trustee, shall provide the text-books for fourteen weeks at the public school, and the ex- pense of the same shall be paid by the treasurer of the city or the supervisor of the town on the certificate of said trustee, specifying the items furnished for the use of said child. Id., §6. It does not say from what fund this shall be paid. Actions for such fines and penalties are to be brought in the name of said treasurer, chief fiscal officer of the city or the supervisor of the town, but shall be brought under the direction of said trustees. Id., s 9. § 101. Supervisor may Receive Real or Per- sonal Estate in Trust.— Eeal and personal estate may be granted, conveyed, devised, bequeathed and given in trust and perpetuity or otherwise * * * to any county, town or super- visor of a town * * * for the. support and benefit of common The Supekvisoe. 69 schools within such county, town, or within any part or portion thereof respectively, or for the support and benefit of any particular common school or schools therein. Laws 1864, chap. 555, tit. 3, § 15 ; 2 R. S. 1150. No such grant, conveyance, devise ot bequest shall be held void for want of a named or competent trustee or donee, but where no trustee or donee, or an incompetent one is named, the title and trust shall vest in the people of the State, subject to its acceptance by the legislature ; but such acceptance shall be presumed. Id., §16. A testator by his will gave and bequeathed to the school district in which he resided " the sum of $300 to be forever loaned by the town ofiicers mentioned in item sixth " (the town board or oflBcers of said town having charge of its financial matters), "and the in- terest thereon to be annually paid by such officers to the trustees of said school district, to be by them applied toward the support of the school in said district." Seld, that the bequest was valid, and that it was the testator's intention to authorize the supervisor of the town to invest the fund and pay over the income to the school district. Iseman t. Myres, 26 Hun, 651. ' As to whether such bequest or devise may be made upon condi- tion prescribed in the will, See In re Underbill, 3 N. Y. Sup. 205 ; Vail v. L. I. R. R., 106 N. T. 283. m RESPECT TO DOGS. § 102. There are, apparently, three different general statutes in relation to the taxation of dogs and the disposition of the moneys arising therefrom ; FIRST, UNDER THE REVISED STATUTES : TaiX upon Do^S, etc. — In all the counties of the State except the city and county of New York, the county of Kings and the county of Erie, there shall be annually levied and collected the following tax upon dogs over four months old : upon every bitch owned or harbored by any one or more persons or by any family, three dollars ; upon every additional bitch owned or harbored by the same person or persons or family, five dollars ; upon every dog, other than a bitch, owned or harbored by one or more persons or by any family, one dollar, and upon every additional dog, other than a bitch, owned or harbored by the same person or persons or family, two 70 SuPEEVisoEs' Manual. dollars. Every owner or harborer of every snch dog, except in the city and county of 'New York, the county of Kings and the connty of Erie, shall annually, on or before the first day of May, cause the same to be registered in a book to be kept for that purpose in the office of the clerk of the city, village or tovrn wherein such dog is owned or harbored, and to be by such clerk numbered and licensed for one year, which clerk shall be entitled to receive from such owner for such service a fee of fifteen cents for each dog so registered ; and such owner shall cause such dog to wear around its neck a collar which shall be distinctly marked with its owner's name and its regis- tered number ; and the said clerk shall annually, on or before the first day of June, furnish to the assessor of the town, village or city wherein such dog is owned a list of the persons or families owning or harboring any dogs which are so registered. Every person own- ing or harboring any such dog, who shall neglect or refuse to have the same registered, numbered and licensed, as prescribed in this sec- tion, shall be liable to a fine of not more than seven dollars, nor less than three dollars; in each case, to be imposed by any court having jurisdiction thereof, upon prosecution therefor in the name of the supervisor of the town or ward, or president of the village wherein such owner may harbor such dog, to be collected by authority of snch court, and to be paid to the county treasurer of the proper countyj and to be placed by such county treasurer to the credit of the fund constitiited for satisfying such damages as may arise in any year from killing or injuring sheep by dogs in such county. 3 K. S. 2116, § 1, as amended by chap. 466, Laws of 1889. Dog- not Registered or Collared may be Killed. — Any dog not registered or collared as provided for in section 1 of this act may be lawfully killed by any constable, game constable or policeman of any city, town or village, who upon pre- senting satisfactory proof thereof to the supervisor of the town or ward, or president of the village, wherein the same was killed, shall be paid the sum of fifty cents for each dog so killed, which shall be a charge upon said town or village, and shall be paid the same as other town or village charges. Id., § 2, as amended by chap. 466, Laws of 1889. Owner to Deliver Description of Dog^.— The owner or possessor of every dog liable to the above tax, shall, when- ever required by any assessor, deliver to him a description in writing, of every such dog owned or possessed by him. For every neglect The Supervisor. 71 or refusal so to do, and for every false statement made in any descrip- tion so furnished, he shall forfeit five dollars, to be recovered by the supervisor of the town. Id., § 3, as amended by chap. 244, Laws of 1862. Assessment and Collection of Tax.— The asses- sors of every town or city, or ward of a city, except the city of New York, shall annex to the assessment-roll of real and personal estate therein, made by them annually, the name of each and every person or persons liable to the tax imposed hereby, together with the num- ber of bitches and dogs for which such person or persons is or are assessed, and return the same to the supervisor of their respective towns, cities, or wards of cities, to be laid by said supervisor before the board of supervisors, to be by them collected in the same man- ner as other State and county and town taxes are collected. And if any person duly assessed shall refuse or neglect to pay the tax so assessed within five days of the demand thereof, it shall be lawful for any person, and it shall be the duty of the collector to kill the dog so taxed. Id., §4, as amended by chap. 244, Laws of 1862. Duty of Collector and Liability.— The collector to whom such list shall be delivered shall proceed and collect the sums of money therein specified, within the time now required by law for the collection of taxes laid by said supervisors, in the same manner and with the like authority in all respects, as in the collection of taxes imposed by the supervisors of the county, and shall pay the same to the county treasurer, after deducting the commissions allowed by law ; and the same remedies to compel such collection and the payment over of the moneys collected, may be had against such collectors and their sureties, as in the case of taxes levied by supervisors. Id., § 5. When "Dog may be Killed. — If any person duly as- sessed shall refuse or neglect to pay the tax so assessed, for five days after demand thereof, it shall be lawful for any person to kill the dog so taxed. Id., § 6. Collectors' Fees. — Each collector shall be allowed to retain a commission of ten dollars on every hundred dollars collected, and at that rate upon all sums collected by him pursuant to the direction of the supervisors ; and said collector shall also, on filing his affidavit 73 Supervisors' Majstual, of the fact with the connty treasurer, be entitled to retain as a further compensation from the moneys collected by him, the sum of one dollar for every dog or bitch killed by him, under the provisions of the second section of this act. H., § r. Tax, liow Applied. — The moneys so collected and paid to any county treasurer shall constitute a fund for the satisfying such damages as may arise in any year from dogs killing or injuring sheep in such county, and the residue for the use of the poor of the county. Id., 18. Liability of O-wners of Dog's for Injuries to Slieep. — The owner or possessor of any dog that shall kill or wound any sheep or lamb, shall be liable for the value of such sheep or lamb to the owner thereof, without proving notice to the owner or possessor of such dog, or knowledge by him, that his dog was mischievous or disposed to kill sheep. Id., S9. Fence Vie-vrers to Ascertain Damages, etc — The owner of any sheep or lambs that may be killed or injured by any dog, may apply to any two fence viewers of the town, or asses- sors of the city, or of the ward of the city, who shall inqiaire into the matter, and view the sheep injured or killed, and may examine witnesses in relation thereto, for which purpose either of them shall have power to administer oaths. If they are satisfied that the same were killed or hurt only by dogs, and in no other way, they shall certify such fact, the number of the sheep killed or hurt, and the amoimt of the damages sustained thereby by the owner, together with the value of the sheep hurt or killed. Id., § 10. Certificate to be Evidence.— The said certificate shall be presumptive evidence of the facts therein contained, in any suit that may be brought by the party injured against the owner or pos- sessor of any dog, if it shall appear on the trial of such suit that notice in writing of the time and place of such view shall have been served at least twenty-fonr hours before, on the said owner or pos- sessor, either personally or by leaving at his dwelling-house with a person who usually dwells therein, and who shall have arrived at the age of sixteen years, was given to the owner of the dog, of the intended application. Id., 5 11. The Supervisor. 73 Application for Damagres.— If the party injured cannot discover the owner or possessor of the dogs by which such damage was done, or shall fail to recover the value of the sheep killed or injured, against such owner or possessor, he may apply to the supervisor of the town, and upon producing to hira the certifi- cate mentioned in the tenth section, made as aforesaid, and his own affidavit that he has not been able to discover such owner or pos- sessor, or that he has failed to recover his damages from such owner or possessor, .the said supervisor shall lay the same before the board of supervisors of the county at their next meeting. Id., § 12. The board of supervisors shall issue their order on the county treasurer for the amount of the damages appearing by the certificate of the fence viewers to have been sustained by the owner of any sheep killed or injured by dogs, where they shall be satisfied that the owner or possessor of such dogs cannot be discovered, or that the party injured has failed to recover such damages of such owner or possessor ; which shall be paid by the county treasurer, from the fund to be raised by said tax, and from no other moneys. If the owner or possessor of any dogs doing such damage shall not be a resident of the county in which the damage was done, and the county treasurer of such latter county shall have paid such damages to the owner of such sheep, the board of supervisors of such county as may have paid such damages may institute suit against the county where such owner or possessor does reside, for the recovery of the amount so paid, unless such owner or possessor, or the county wherein he re- sides, shall, on notice and demand of payment, pay to the treasurer of the county where the damage was done the amount of such dam- age. Id., § 13, as amended by chap. 466, Laws of 1889 If Damages Recovered Subsequently to be Refunded. — If after receiving the amount of such damages from the county treasurer, the owner of the sheep so killed or in- jured shall recover the value thereof, or any part of such value, from the owner or possessor of any dog, he shall refund and repay to the county treasurer the sum so received from him, for which it shall be the duty of the supervisor of the town to bring an action against such owner in case of his refusal, in the name of the county treas- urer, and to pay into the county treasury the sum so collected. Id., i 14. 10 74 SnPEEVisoEs' Maitual. Dogs, ■when to be Killed.— Any person may kill any dog which he shall see chasing, worrying or wounding any sheep, nnless the same shall be done by the direction or permission of the owner of the sheep or his servant. Id., §15. Corner to Kill Dogf— Penalty, etc.— The owner or possessor of every dog, to whom notice shall be given of any injury done by his dog to any sheep, or of his dog having chased or worried any sheep, shall within forty-eight hours after such notice, cause such dog to be killed ; for every neglect so to do, he shall forfeit two dol- lars and fifty cents, and the further sum of one dollar and twenty- five cents for every forty-eight hours thereafter, until such dog shall be killed, unless it shall satisfactorily appear to the court before which a suit shall be brought for the recovery of the said penalties, that it was not in the power of such owner or possessor to kill such dog. Id., § 16. When Justice May Order O-wner to Kill Dog*. — If any dog shall attack any person peaceably traveling on any highway, or any horse, in a carriage, or upon which any person shall be mounted, and complaint thereof be made to a justice of the peace, such justice shall inquire into the complaint, and if satisfied of its truth, and that such dog is dangerous, he shall order the owner or possessor of such dog to kill him immediately. Id., § 17. Penalty for Neglects to Kill, etc.— The owner or possessor of any dog, who shall refuse or neglect to kill him within forty-eight hours after having received such order, shall forfeit the sum of two dollars and fifty cents and the further sum of one dollar and twenty-fis^e cents for every forty-eight hours thereafter, until such dog be killed. Id., s 18. Supervisor to Sue for Penalties.— Upon com- plaint being made to any supervisor of a town, of any penalties im- posed by this title having been incurred, he shall commence suit for the recovery thereof, in his name of office, and prosecute the same with due diligence, and the moneys recovered shall be by him paid to the county treasurer, to be added to the fund hereinbefore provided for the satisfaction of damages sustained by owners of sheep. Id., S 19. The Supervisor. 75 WbO Deemed. O'wnex'St — Every person in possession of any dog, or who shall suffer any dog to remain about his house for the space of twenty days, previous to the assessment of a tax, or previous to any injury, chasing or worrying of sheep, or any such attack made by a dog, shall be deemed the owner of such dog,, for all the purposes of this title. Id., : 20. The twenty sections cited above are from part 1, chapter 20, title 17 of the Revised Statutes. " Nothing in this act contained " (chapter 466, Laws of 1889, cited §§ 1, 2 and 13 last above), or in title 17 of chapter 20 of part 1 of the Revised Statutes shall be deemed to apply to any dog, bitch or puppy while the same is owned or possessed by any person or per- sons, association or associations, corporation or corporations in this State engaged in the business of breeding dogs, or rearing pedigreed or registered dog stock for thfe purpose of exhibition under the rules and regulations governing the American Kennel Club. Chap. 466, Laws of 1889, I 4. The moneys recovered are to be paid to the county treasurer. SECOND, UNDER THE ONTARIO COUNTY ACT : See this act in full at § 459, post. § 103. The taxes upon dogs, in counties adopting this act, are levied and collected as under the Revised Statutes, but the moneys collected therefrom are paid to the supervisor of the town, and con- stitute a fund for paying damages arising in said town from dogs killing or injuring sheep ; the balance thereof in the supervisor's hand, after a year, may by a majority vote at town meeting, be ap- propriated for building and repairing roads and bridges, or for the contingent expenses of the town. 3 R. S. 2120, §§ 1 and 2; chap. 197, Laws of 1864, §§ 1 and 2. The fence viewers inquire into any damages claimed, and make the certificate as under the Revised Statutes, which certificate is pre- sented to the board of town auditors for audit ; if so audited, they give an order on the supervisor for the amount allowed, who pays the same out of the dog fund. Id., 84. Whenever the amount of the orders for such damages exceed the amount of the dog fund in the supervisor's hands, the board of su- pervisors may add, to the town accounts, the amount of the orders 76 SuPEEvisoBs' Manual. then due and unpaid ; but such sum shall not exceed the amount theretofore received into the dog fund and diverted therefrom for roads, bridges or contingent expenses as aforesaid. Id., §5. If the owner of the sheep recover from the dog owner the dam- ages sustained by him, he must refund to the supervisor the sum so recovered; in case of his refusal so to do, the supervisor must sue therefor, in his name of office, which sum so recovered shall be returned to the dog fund. Id., § 6. The supervisor must account with the town auditors for moneys received and disbursed by him under this act. Id., § r. THIED, UNDER THE RICHMOND COUNTY ACT: § 104. There shall be annually levied and collected in the coun- ties of Richmond, Rockland and Westchester, the following tax on dogs : Upon every dog or bitch of six months old or upwards, kejit by any one person or family, fifty cents, and for every additioiuil dog or bitch, kept by the same person or family, the same tax as is provided to be levied and collected by part 1, chapter 20, title 17, and section 1 of the Revised Statutes; and the revenue so collected in the counties of Richmond, Rockland and Westchester shall be ap- plied in the same manner as directed by the said title of the Revised Statutes. Laws 1832, chap. 273. The provisions of the act entitled " An act imposing a tax on dogs in the connties of Richmond, Rockland and Westchester," passed April 25, 1832, are hereby extended to the counties of Co- lumbia, Dutchess, Allegany and Cattaraugus. Chap. IIV, Laws of 1835, § 1. Hew to be Ijevied. — The taxes hereafter to be levied upon dogs shall be levied and collected at the tune and in the man- ner directed in the Revised Statutes for the assessment and collection of taxes imposed by the supervisors of the county. Id., I 2. Hew to be Applied. — All moneys collected as taxes upon dogs shall constitute a fund for satisfying damages done by dogs in killing or injuring sheep, according to the provisions of the Revised Statutes ; and if there be any residue, after satisfying such The Supbevisoe. 77 damages, it shall, after the expiration of one year from the time of collection, be applied to the support of the poor of the town where the same shall have been collected, or to such other purpose as the inhabitants of the town shall at their annual town meeting direct. Id., §3. Repeail. — The provisions of any law of this State incon- sistent with the provisions of this act, are hereby repealed. Id., § i. The " act passed April 25, 1832," is chapter 273, Laws of 1832, ajiie. The provisions of chapter 117, Laws of 1835, were repealed as to the counties of Columbia, Dutchess and Cattaraugus, by chapter 82, Laws of 1839, and as to Allegany by chapter 188, Laws of 1840. There may be some question as to whether sections 2 and 3 of chapter 117, Laws of 1835, are local and confined to the counties named in section 1, and chapter 273 of 1832, ante, or are general laws. By chapter 482, Laws of 1876, subdivision 14, boards of super- visors are authorized " to impose taxes on dogs, to provide means to pay damages done to sheep," and most of the counties have availed themselves of this right, and there are various local statutes on the subject. The author is indebted to Davies' " System of Tax- ation," an admirable collection of laws on the subject, for the fol- lowing references to such local laws ; Westchester, chapter 146, Laws of 1843. Columbia, chapter 595, Laws of 1866. City and town of Lockport, chapter 52, Laws of 1871. Saratoga, chapter 200, Laws of 1865. Putnam, chapter 315, Laws of 1838. Cortland, chapter 314, Laws of 1865. DEAF-MUTES AND BLIND. § 105. Application to Supervisor.— Any paftent, guardian or friend of a deaf-mute child within this State, over the age of six years and under the age of twelve years, may make ap- plication to the overseers of the poor of any town, or to any super- visor of the county where such child may be, showing, by satisfac- 78 SuPERvisoEs' Manital. tory aflfidavit or other proof, that the health, morals or comfort of such child may be endangered or not properly eared for, and there- upon it shall be the duty of such overseer or supervisor to place such child in the New York Instituition for the Deaf and Dumb, or in the Institution for the Improved Instruction of Deaf-Mutes, or in the Le Couteulx St. Mary's Institution for the Improved Instruc- tion of Deaf-Mutes in the city of Buffalo, or in the Central New York Institution for Deaf-Mutes in the city of Home, or in any in- stitution in the State for the education of deaf-mutes. Chap. 325, Laws of 1863, § 2, aa amended by chap. 213, Laws of 1875 ; 3 R. S. 1948. Deaf-Mutes to be Placed in State Institution. Whenever a deaf-mute child, under the age of twelve years, shall be- come a charge for its maintenance on any of the towns or counties of this State, or shall be liable to become such charge, it shall be the duty of the overseers of the poor of the town, or of the super- visors of such county, to place such child in the New York Institu- tion for the Deaf and Dumb, or in the Institution for the Improved Instruction of Deaf-Mutes, or in the Le Conteulx St. Mary's Insti- tution for the Improved Instruction of Deaf-Mutes, in the city of Buffalo, or in the Central New York Institution for Deaf-Mutes, in the city of Rome, or in any institution of the State for the educar tion of deaf-mutes. Id., 1 1, as amended by Laws of 1875, chap. 213. Expense. — The children placed in said institutions, in pursu- ance of the foregoing sections, shall be maintained therein at the ex- pense of the county from whence they came, provided that such ex- pense shall not exceed $300 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 re- main in said institution. Id., §3. Id. — The expenses for the board, tuition and clothing for such deaf-mute children, placed as aforesaid in said institutions, not ex- ceeding the amount of $300 per year, above allowed, shall be raised and collected as are other expenses of the county from which such cliildren shall be received ; and the bills therefor, properly authenti- cated by the principal, or one of the officers of the institution, shall be paid to said institution by the said county ; and its county treas- urer or chamberlain, as the case may be, is hereby directed to pay The Stjpebvisor. 79 the same on presentatiou, so that the amount thereof may be borne by the proper county. Id., §4. Money may be Raised to Clothe Indigent Pupils. — The supervisors of any county in this State from which county pupils may be selected, whose parents or guardians are unable to furnish them with suitable clothing, are hereby au- thorized and required to raise in each year for this pui-pose, for each such pupil from said county, the sum of $30. § 3, chap. 244, Laws 1838, as amended by chap. 386, Laws 1864. The act applies to pupils in the New York Institution for the In- struction of the Deaf and Dumb. In 1874 another statute was passed, which reads as follows : Any parent, guardian or friend of any deaf-mute child within this State, over the age of six years and under the age of twelve years, may make application to the supervisor of the town or city where such child may be, for a permit or order to place such child in the New York Institution for the Deaf and Dumb, or in the Insti- tution for the Improved Instruction of Deaf-Mutes, or in any of the deaf-mute institutions of this State; and it shall be the duty of such supervisor, if in his judgment the means of the child or the parents or parent of such child will not enable them to defray the expense in a public institution, to grant such permit or ordei-, and to cause said child to be received and placed in such one of the institutions of this State for the education of deaf-mutes as the said supervisor shall select. 3 R. S. 1945 ; chap. 253, Laws of 1874. In 1876, chapter 331, the Western New York Institution for Deaf-Mutes at Rochester, and in 1884, chapter 275, the Northern New York Institution for Deaf-Mntes at Malone, were authorized to receive any deaf-mute child, between six and twelve years old, by an order from a supervisor or overseers of the poor; and the su- pervisors of towns and overseers of the poor were authorized to send to said institution such children in the same manner and upon the same conditions as are prescribed in chapter 325, Laws of 1863, ante. It would be safer, in these cases, to require the proof mentioned in the law of 1863, by affidavit or otherwise, that "the health, morals or comfort of the child may be endangered or not properly cared for," in addition to the other require- ments of the several acts above mentioned, passed subsequent to 1863. The supervisor should report to the county treasurer whenever he makes an order sending a child to one of these institutions, so that the treasurer may keep a record thereof. 80 Supervisors' Manual. § 106. Forms. APPLICATION FOE THE ADMISSION OF COtJNTT PUPILS. To be Made to and Retained by the Supervisor or Overseer of the Poor. STATE OF NEW YORK, ) . County of , ) ' " , of the town of , in said county, being duly sworn, says that he is the of , a deaf-mute child, residing in said town, and- who was born on the day of , 18 , and that, in consequence of the want of educa- tion, the health, morals and comfort of said child may be endangered or not prop- erly cared for; and the undersigned hereby makes application for the said child to be placed in the Central New York Institution for Deaf-Mutes, for support and education, pursuant to chapter 335 of the Laws of 1863, as amended by chapter S18 of the Laws of 1875. Dated , 18 . Signed, Sworn to, etc. CERTIFICATE. To be Granted by Supervisor or Overseer of the Poor and sent to the institution. STATE OF NEW YORK, ) . County op , ) I have this day selected , of the town of , county of , son {or daughter) of , who was bom on the day of , 18 , as a county pupil in the Central New York Institution for Deaf-Mutes, for the term of years, from the day of ,18 , to the day of ,18 , (he being then twelve years of age), to be educated and supported therein, during that period, at the expense of the county of , in conformity with the provisions of chapter 335, Laws of 1863, as amended by chapter 313 of the Laws of 1875. Dated , 18 . Of the town oj • AS TO THE BLIND. § 107. All blind persons of suitable age and capacity for in- struction, who are legal residents of the State, are entitled to the privileges of the New York State Institution for the Blind at Batavia, New York, without charge. § 1, chup. 744, Laws of 1887; 3 R. S. 1939. Applications for admission are made to the board of trustees thereof, but require a certificate from the county judge, county clerk or the supervisor or town clerk of the town, or the mayor of the city where the applicant resides, setting fortli that the applicant is a legal resident of the town, county and State claimed as his or her residence. Id., I 3, as amended by chap. 616, Laws of 1872. The certificate in the preceding form can be adapted to these cases. Provision for Clotlling-, etc.— When any blind per- son shall, upon proper application, be admitted into the institution, it shall be the duty of his or her parents, guardians or other friends, to The Supbrvisob. 81 suitably provide such person with clothing at the time of entrance and during continuance therein, and likewise to defray his or her travehng expenses to and from the institution at the time of en- trance 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 on account of sickness or other exigency. And whenever it shall be deemed necessary by the trus- tees to have such person permanently removed from the institution, in accordance with the by-laws and regulations thereof, the same shall be promptly removed upon their order, by his or her parents, guardians or other friends. Chap. 744, Laws 1867, § 13. If Friends neg'lect to Provide.— If the friends of any pupil from within the State of New York shall fail through neglect or inability to provide the same with proper clothing or with funds to defray his or her necessary traveling expenses to and from the institution, or to remove him or her therefrom, as required in the preceding section, the trustees shall furnish such clothing, pay such traveling expenses, or remove such pupil to the care of the overseers of the poor of his or her 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 pu- pil shall not exceed the sum of $60. And in case of the death of any pupil at the institution, whose remains shall not he removed or funeral expenses borne by the friends thereof, the trustees shall de- fray the necessary burial expenses, and charge the same to his or her county as aforesaid. Upon the completion of their course of train- ing in the industrial department, 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 $75 each, and charge the same to the proper county, as aforesaid. Id., § 14, amended by chap. 463, Laws 1873. Accounts ag-ainst Counties.— On October 1st of each year, the trustees shall cause to be made out against the re- spective counties concerned, itemized accounts, separate in each ease, of the expenditures authorized by the preceding section, and for- ward to the board of supervisors. The board is required to direct the county treasurer to pay the amount so charged to the treasurer of the institution on or before the first day of March next ensuing. Id., § 15. 11 82 SuPEEvisoKS^ Manual. This amouut can be collected from the parents or estates of the pupils, provided that at least. $500 value of property of such parents or estate shall be exempt from the payment of the accounts afore- said. Id., § 16. In New York, Kings, Suffolk and Queens counties the amount per year is $50. Chap. 166, Laws of 1870, § 3, as amended by chap. 166, Laws of 1871. MISCELLANEOUS. § 108, To cause Survey to be Made.— 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, it shall be the duty of such supervisor, within sixty days thereafter, to cause such survey to be made, and to transmit, by mail or other- wise, a map and description thereof to the State engineer and sur- veyor. 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 expense to be apportioned by the board of supervisors of the county. If any supervisor shall refuse or neglect to perform the duties enjoined in the last preceding section, he shall forfeit the sum of $50. 1 R. S 827, 1 9. See, also, id. 479, §§ 3 and 4. Disputes as to TOTrn Lines.— Whenever a dispute shall arise between the officers of two or more towns, respecting the bounds of either of such towns, on the same being represented to the surveyor-general (State engineer and surveyor), be shall hear the aEegations and proofs of the parties, and if necessary shall direct a survey to be made, and shall determine such dispute. 1 R. S. 479, §5. Determination to be Filed.— Such determination shall be filed in the office of the secretary of State, and shall be con- clusive upon the subject, until the legislature shall, by law, other- wise direct. Id., § 6. The board of supervisors also has power to establish disputed town lines. See post, § 568, subd. 15. The Supbrvisob. 83 § 109. Survey of Non-resident Lands.— When- ever it shall be deemed necessary, by the assessors of any town, to have an actual survey made, to ascertain the quantity of any lot or tract of non-resident lands which is divided by the town line, they shall notify the supervisor, who shall cause the necessary surveys to be made at the expense of the town. 2 B. S. 992, § 14. § 110. May Administer Oaths.— The supervisor of a town, or any ward in any of the cities of this State, has power to administer oaths to persons, necessary in relation to any matter or thing which may come before such supervisor, or the board of super- visors of which he is a member, in his or their official capacity. Chap. 69, Laws of 1870, § 1 ; 1 E. S. 828. § 111. Surplus Moneys. — Whenever there are surplus moneys, made by the sale of property distrained upon by a collector for the non-payment of taxes, and a controversy arises between the person for whose tax the property was sold, and a person claiming the surplus on the gi'ound that the property sold belonged to him, it is made the duty of the supervisor to receive and retain such sur- plus moneys until the rights of the claimants can be determined by law. 2 E. S. 1008, § 4. Whenever a surplus arising from the sale of any property dis- trained for taxes, paid over to the supervisor of a town, shall be claimed by any other than the person for whose tax such property was sold, and such claim shall be contested by such person, such ■claimant shall be entitled to maintain an action against such person ; and the person for whose tax such property was sold may also main- tain such action against such claimant, as for money had and received ; in which the right of the respective parties to such surplus shall be tried and determined. 3 B. S. 2459, § 28. For the purposes of such action, the defendant shall be deemed to be in possession of the surplus in the hands of the supervisor. Upon a certified copy of the final judgment that shall have been rendered in favor of either party, being produced to the supervisor, in whose hands such surplus shall be, he shall pay over the same to the party so recovering. And no supervisor shall be liable to any action in favor of any claimant of such surplus, the right of which shall be contested as provided in the fourth section of the third title 84 SuPEKvisoBs' Manual. of chapter 13 of the first part of the Revised Statutes, until he shall have refused to pay over such surplus upon the production of a judgment as aforesaid. Id., § 29. § 112. To Receive Moneys for Strays. —Where horses, cattle or sheep are sold as strays, in pursuance of the Revised Statutes, and the owner of such strays shall not appear and demand of the person selling the same, the residue of the money remaining after paying the lawful fees and charges, within one year after the sale — such monej's shall be paid to the supervisor of the town for the use of the town, and his receipt shall be a legal discharge to the keeper of such strays. If the person who shall have sold such strays shall not, within tliirty days after the expiration of the year, pay such residuary monej'S to the supervisor of the town, he shall forfeit to the town double the sum so remaining in his hands, together with the amount of such residuary moneys. 1 R. S. 830, §§ 27 and 28. § 113. Supervisor no Duties as Guardian in Binding' out Orplian CMIdren.— The law authorizing the supervisor to act, ex-officio, as guardian of orphan children for the purpose of enabling the officers of asylums to bind out such children is repealed. The law now in force may be found ^osi, § 728. 2 R. S. 1892. § 114. As to Buying and Canceling To-wn Bonds. — Under the Laws of 1874, chapter 410, section 3, when the town shall have voted, as provided in that act, to buy and cancel its bonds by issuing and selling new bonds, the su- pervisor shall receive from the county treasurer the money derived from the sale of the new bonds, giving security for the same in double the amount received, and shall purchase or pay the old bonds at ma- turity, and shall cancel the same in presence of the town board. By Laws of 1878, chapter 75, amended by Laws of 1884, chapter 244, and also by Laws of 1881, chapter 522, and chapter 316, Laws of 1886, provision is made for the retirement of town and county bonds The Supeevisok. 85 and the issuing of new bonds. These statutes will be found in chapter of this book. 1 R. S. 868, 869. § 1 1 5. As to Payment of Bonded Debt of Rail- X*Oaids. — Upon the application in writing of at least twelve citi- zens, tax payers of any town in this State, addressed to the super- visor of such town, asking for the payment, in whole or in part, of the bonded indebtedness of such town, created in aid of any railroad therein, specifying the amount of such indebtedness to be paid, and how much thereof shall be paid annually, and asking also for a vote of the people of such town upon the question, the time and the amount of such payment, the said supervisor shall, at the next an- nual town meeting to be held in such town, submit such question to the qualified voters of such town, and shall take the votes thereof in the manner following, to-wit : The said supervisor shall have pre- pared a suitable book in which shall be transcribed a copy of the aforesaid application, underwritten with the names of the signers thereof, and shall open the same, at the time of the opening of the polls of such town meeting, for the signatures of the qualified voters of such town, by reading aloud to the people the said application and the names of its signers. The said voters, together with other individuals paying taxes in said town, who shall favor such applica- tion, may, during the time the polls of such town meeting are open, subscribe in such book such transcribed application, or may author- ize the clerk of such town to subscribe the same for him or her. And any solvent moneyed, manufactiiring or other corporation or com- pany formed under the laws of this State and being assessed on real or personal property in such town, shall have all the rights and privileges under this act, so far as property representation is con- cerned, as other tax payers, to be exercised by its chief financial officer. Immediately after the close of the polls at such town meeting, the said supervisor shall affix his certificate next succeeding the last name subscribed in such book, to the effect that the persons whose names are subscribed in such book are qualified voters of such town, or tax payers therein, and assented to the proposition submitted in the said application at such town meeting, and shall forthwith, and within five days after such town meeting, transmit the said books so completed to the county judge of his county ; and it shall be the duty of said judge forthwith and within ten days thereafter, to pro- ceed to take proof as to the relative number and assessed property 86 SuPEEVisoEs' Manual. represented by such voters ; and If it shall appear satisfactorily to him that the persons who had so signed said application, and such other tax payers of said town as may then and there appear before him and express a desire to subscribe the same, do represent a ma- jority of the tax payers of said town, as shown by the last preceding tax list or assessment-roll, and do represent a majority of the taxable property upon said list or roll, he shall so adjudge and determine and cause the same to be entered of record, and shall forthwith certify the same to the board of supervisors of his county, to whom he shall also transmit such book, with its contents. It shall thereupon be the duty of the said supervisors, in accord- ance with the terms and request of such application, to cause to be assessed, levied and collected in such town as other taxes in such town are assessed, levied and collected, in each year, as the same is designated in such application, such sum or sums as shall be sufficient to pay off and discharge the said bonded indebtedness, either at one time and by one assessment, or by installments of yearly assessments and payments as may be designated in such application. The money so assessed, levied and collected shall be sacredly applied to the payment of the bonds of such town so given in aid of railroads, as designated in such application, and to no other pur- pose whatever ; except that in case there shall not be of such bonds as are then due and payable sufficient in amount to exhaust the whole sum so collected, and the holders and owners of such other bonds as may not then have matured, shall not be willing to accept payment thereof, the said supervisor shall cause the residue of said money so collected, after paying such bonds as he may be able to retire, to be invested in such State, county, town, city or village bonds as may have been issued in pursuance of the laws of this State, or in United States bonds, to be deposited with the treasurer of said county as a sinking fund, for the redemption and payment of the bonds of such town created in aid of any railroad therein, and the avails of such sinking fund shall be sacredly applied for the payment and redemption of the bonds of such town as the same become due. Chap. 328, Laws of 1875 ; aeepott, chapter on " Railroad Aid Bonds." § 116. Sale of Stock and Bonds of Bankrupt Railroads. — By chapter 585, Laws of 1875, on the applica- tion of the supervisor the railroad commissioners are authorized to sell the stock or bonds of any railroad adjudicated bankrupt or in the hands of a receiver, and the moneys received therefor shall be The Supeevisob. 87 paid over to the supervisor and applied by the town, after deducting the expenses of the sale, to the payment of bonds issued by the town in aid of the railroad, and any balance thereafter is applied to such other debts or charges as the quahfied voters may direct. § 117. To Supply Vacancy in Office of Audi- tor. — In case of a vacancy in the board of town auditors, by neg- lect or refusal to accept, death or removal, the supervisor of the town where the vacancy occurs may appoint some suitable and competent person to fill such vacancy until the next annual town meeting. (Form 2 may easily be adapted to this purpose.) Laws of 1875, chap. 180, § 5; 1 R. S. 837. See Law in full, § US. This act of 1875 applies to but few of the counties and towns of the State, viz.: to the towns of Ausable, Champlain, Peru and Platts- burgh, in the county of Clinton ; the town of Lenox, in Madison county, and the towns of Queensbury, Chester and Caldwell, in Warren county, and to Essex county. Chap. 130, Laws of 1883. In some counties special laws exist for electing town auditors and for supplying vacancies in such office by the supervisor. In most of the counties the town board is composed of the super- visor, town clerk, the justices of the peace, or any two of said jus- tices, and the above provisions of law do not apply to such counties. § 118. Attend Board of Supervisors,— The super- visor of each town shall attend the annual meeting of the board of supervisors of the county, and every adjourned or special meeting of such board, of which he shall have notice. IR. S. 827, §6. § 119. Duties under the Drainage Act.— The act of May 12, 1869, to amend the Kevised Statutes, relative to proceedings for the draining of swamps, etc., authorizes the super- visor of any town to make an application, on behalf of the town, to the county court by petition for the appointment of three com- missioners to drain such lands. Chap. 888, Laws of 1869, §§ 1, 16 ; 3 E. S. 2448. See Water Commissioners' Duties, § 141. Many local statutes concerning this subject have been passed since 1869, and it would be safer to consult such acts for the counties specified therein, before pro- ceeding in these cases. 88 SuPEKVisoEs' Manual. § 120. Summary Investig-ation of Unla-wful or Corrupt Expenditures. CHAP. 307. AN ACT to provide for the suinmary investigation of unlawful or corrupt ex- penditures by officers of towns or incorporated villages and for restraining the same. Passed May 17, 1879; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Section 1. If twenty-five freeholders in any town or incorporated village in the State shall present to any justice of the supreme court having jurisdiction therein an affidavit subscribed and sworn to by themselves, setting forth that they are freeholders, and have paid taxes on real estate within one year, and that they have cause to believe that the moneys of such town or incorporated village are being unlawfully or corruptly expended, it shall be the duty of such justice, upon ten days' notice to the supervisor or supervisors where there are more than one and the particular disbursing officer, if any, making the expenditure of such town or the trustees and treasurer of such incorporated village, to make a sum- mary Investigation into the financial affairs of such town or incorporated village, as the case may be, and the accounts of such disbursing officers or treasurer as the case may be, and at his discretion he may appoint an expert or experts to make such investigation, and may cause the results thereof to be published in such manner as he may deem proper. It shall be the duty of the supervisor or super- visors and disbursing officer of such town, or the trustees and treasurer of such incorporated village, as the case may be, to obey all orders of such justice di- rected to them, for facilitating such investigation, and any refusal or failure by said supervisor or supervisors or trustees to obey such orders may be punished as for contempt; the costs incurred in such investigation shall be taxed by said jus- tice, and paid upon his order by such supervisor or supervisors or trustees, as the case may be, whose expenditures shall be thus investigated, when the facts charged in such affidavit shall be substantially proved by such investigation, and by the freeholders making such affidavit, when the facts charged therein shall not be proved by such investigation. § 2. Upon the said justice becoming satisfied that any of the moneys of such town or incorporated village are being unlawfully or corruptly expended and be- ing appropriated to purposes to which they are not properly applicable or are im- provideutly squandered or wasted, he shall forthwith grant an order restraining and prohibiting such unlawful or corrupt expenditure, appropriation, squander- ing or waste of such moneys, under penalty for disobedience of fine or imprison- ment, or both, in the discretion of the court. Chap. 307, Laws of 18Y9, §§ 1 and 2. § 121. When Supervisor to Pay Judgment.— If the supervisor of a town, against whom any judgment shall have been rendered, which shall not be suspended by writ of error or otherwise, have sufiBcient moneys in his hands belonging to his town, not specially appropriated, he shall in like manner pay the amount of such judgment and interest thereon, upon the like evidence; and for a failure to do so, he shall in like manner be responsible, person- ally, to the party in whose favor such judgment was obtained. If the recovery be had against a town in its own name, the su- pervisor thereof shall, in like manner and upon the like evidence, pay the amount thereof, with interest, out of any moneys in his hands The Supervisoe. 89 belonging to such town, not specially appropriated; and for a fail- ure so to do shall be personally responsible for such amount to the party in whose favor such judgment was obtained. 3 S. S. 2403, §; 105, 106. See Decisions herein, S ^57, post. § 122. Suing' for Penalties.— He shall prosecute in the name of his town, or otherwise as may be necessary, for all penal- ties of $50 or under given by law to such town, or for its use, and for which no other officer is specially directed to prosecute. IE. S. 826, §2. § 123. Supervisor may Institute Supplement- ary Proceedings for Tax.— When a tax exceeding $10 in amount, levied by the board of supervisors of a county against a person, firm, estate or corporation, residents thereof, or by the board of trustees of a village against a person, firm, estate or corporation, residents of the county in which such village or the principal part thereof is located, is returned by a town or village collector uncol- lected, for want of goods and chattels out of which to collect the same, the supervisor of the town or ward, or the county treasurer and the president of a village as to a village tax, within one year thereafter, may apply on affidavit to the county judge, or special county judge of the county, and obtain an order requiring such per- son, firm, estate or corporation to appear before such county judge, or before a referee named in such order, and answer concerning bis, their or its property. The same proceedings may in all respects be had as in cases supplementary to execution, and the same costs and disbursements may be allowed against the person, firm, estate or cor- poration examined concerning his, their or its property, but none shall be allowed in his, their or its favor. The tax, if collected, shall be paid over to the county treasurer, or the supervisor of a town to which the same may belong, and, in the case of a village tax, to the treasurer of the village to which the same belongs, and the costs collected shall belong to the party instituting the proceeding, and shall be applied by him to the payment of the expenses of such proceeding. A county treasurer shall have no additional compensa- tion for such proceeding ; a supervisor shall have no other compen- sation except his per diem fees for time necessarily spent in the pro- ceeding, and a president of a village shall have no compensation for such proceeding. Chap. 361, Laws of 1867, as amended by chap. 640, Laws of 1881. This act shall apply to all villages, whether incorporated by spec- ie 90 SupERVisoEs' Manual. ial act or under the general acts providing for the incorporation of viEages, and shall also apply to all cases where returns have already been made by town or village collectors, as well as to all cases which may hereafter arise, provided that the proceeding be commenced within one year after the collector has made his returns. Id., § 2, as amended by Id., § 2. Upon this appeal from an order directing the commitment of appellant to prison, there to remain until he should pay the amount of a personal tax imposed upon him, it appeared that appellant sought to establish a want of jurisdiction on the part of the assessors by showing, by affidavit, by way of answer to the proceed- ings instituted against him, that he was a stockholder in and vice-president of a manufacturing corporation created and existing under the laws of New Jersey, whose- fabrics were deposited for sale in a wareroom in New York city, of whicli he had charge as the agent of the company. Held, that as the fact that the fabrics were in possession and charge of appellant at a place of business in New Tork city, while undisputed and unexplained, would justify the inference that he was their owner and engaged in carrying on the business, it gave the assessors juris- diction over the appellant, and that the appellant was not at liberty to attack their determination of that question by proof offered in this proceeding. In re McLean v. Jephson, 41 Hun, 479. It is competent for a person against whom supplementary proceedings for the collection of a tax have been instituted, expwrte, under the statute of 1867, (Chap. 361, Laws 1867) to move for a dissolution of the order for his appearance and ex- amination on the ground that it was improvidently granted. Where, upon such motion, the question as to whether the person proceeded against was a resident of the county was in dispute, and the evidence in rela- tion thereto was conflicting, held, that the question was not reviewable here. Code of Civil Procedure, $ 1337. Bassett v. Wheeler, 84 N. T. 466. § 124. Form of Affidavit therefor. In the Matter of Proceedings Supple- mentary for the Collection of Taxes from J. C. STATE OF NEW YORK, ) Oneida County, j ' Henry Lancaster, being duly sworn, says: That he is the supervisor of the town of , in said county. That from the 1st day of January, 1884, to the date hereof, said J. C. has been, and now is, an actual resident and inhabitant of said town, and during all of said period of time has been, now is, and on July 1, 1884, was the owner and occu- pant and in possession of certain real estate situated in said town, which said real estate was liable and subject to taxation in said town and county for the taxes and purposes prescribed by law. That, in pursuance of the statutes in such cases made and provided, and on July 1, 1884, the assessors of said town duly listed, valued and assessed the prop- erty in said town liable to taxation, both real and personal, including said reftl estate of said J. C, and duly entered the same upon the assessment-roll of said town, and thereafter, and on or before August 1, 1884, duly completed said assess- ment-roll and gave due public notice thereof as prescribed by law, and duly re- viewed their said assessments at the time and place specified in said notice, to- wit: on the third Tuesday of August, 1884, at the town hall in said town; and subse- The Supervisoe. 91 quent to said last-named date, duly verified said assessment-roll, wbicli was there- after, and on or about November 10, 1884, duly delivered to the board of super- visors of said county at their next meeting. That in said assessment-roll of said tovifn of , when so delivered to said board, said real estate was duly assessed to said J. C. at the valuation of $ That in December, 1884, said board of supervisors duly levied, extended and entered a tax upon the inhabitants of said town and county, and upon the property mentioned and described in the assessment-rolls of the several towns of said county, and in said assessment-roll of the town of , so delivered to them as aforesaid, and duly issued their warrant under the hands and seals of the mem- bers of said board, for the collection of said tax so levied by them as aforesaid, in the manner and form prescribed by law, to the several collectors of said county and to the collector of the said town of That in and by said tax-list, warrant and said assessment-roll, in and for said town of , a tax of $ was duly levied, extended and entered against said J. C, and against said real estate, and said tax-list, warrant and assessment-roll last above mentioned were duly delivered to the collector of said town of , for collection by him as prescribed by law. That thereafter said warrant to said collector of the said town of was, on the day of , 1885, duly returned by him with the said tax of $ against the said J. C. wholly uncollected, for want of goods and chattels out of which to collect the same, and said tax against J. C. still remains wholly unpaid. That only {three months) have elapsed since said warrant and said tax against said J. C. were returned wholly uncollected as aforesaid. That no previous ap- plication has been made for an order to examine said J. C. upon said uncollected tax and warrant.(*) Dated Ma/rch , 1885. HENRY LANCASTER. Sworn to before me, this ) day of , 1885. \ See Matter of Conklin, 36 Hun, 588; Inmaa v. Coleman, 37 id. 170. § 124a. Order Thereon. In the Matter of Proceedings Suppli mentary. :l It having been made to appear to me by the affidavit of Henry Lancaster, dated , 1885, that (here insert the aUegationa in said affidavit down to the asterisk (*)), and that said tax exceeds $10 in amount and was duly levied by the board of su- pervisors of Oneida county against said J. C, a resident of said town of and said county, and that a warrant for the collection thereof against said J. C. has been duly issued to the collector of said town upon said tax and that such warrant and tax against said J. C. has been duly returned by said collector, wholly uncollected for want of goods and chattels out of which to collect the same, and still remains wholly unpaid. I do therefore, hereby order that it be referred to , Esq., of, to examine the said J. C. and take his answers on oath concerning his property, and to reduce such answers and examination to writing ; and also to examine on oath such witnesses as may be offered by the respective parties, and reduce such examination to writing, and report such answers and examinations, and all his proceedings under and by virtue of this order, to me, with all convenient speed. And I do hereby appoint the said a referee in this action for the pur- And I do also further order and direct the said J. C. to appear before the said referee at in the of , on the day of , 18 , at o'clock in the noon, to answer before said referee concerning his property as_ afore- said • and for that purpose to appear before the said referee from time to time, as he shall direct and appoint. , ,.,, ^ ,. -. ^ , And the said J. C. is hereby forbidden from making or suffering any transfer or other disposition of, or interference with, the property of said J. C. not exempt from levy and sale by virtue of an execution, until further direction in the premises. i Dated the day of , lb . 92 SuPEEvisoRs' Manual, § 125. II. His Duties in Connection -with Otlier ToTvn Officers.— When Majority may Act. — Whenever any power, autliority or duty is confided by law to three persons, and whenever three or more persons or officers are authorized or required by law to perform any act, such act may be done and such power, authority or duty may be exercised and per- formed by a majority of such persons or officers upon a meeting of all the persons or officers so intrusted or empowered, unless special provision is otherwise made, and whenever a duty has been or shall be enjoined by law upon three or more persons or officers and one or more of them shall have died, or have become mentally incapacitated to - act, or shall refuse or neglect to attend a meeting of such persons upon reasonable personal notice thereof, then the action of a mar jority of the whole number appointed shall be binding and eflfective for all the purposes for which they were appointed, unless special provision is otherwise made in existing laws. Thus amended by Laws of 1874, chap. 821 ; 3 R. S. 2458, § 27. FIRST. WITH OVEESEER OF THE POOR AND OTHER SUPERVISORS. Duties on the Division of a Town. § 126. How Lands Disposed of.— When a town seized* of lands shall be divided into two or more towns, the super- visors and overseers of the poor of the several towns constituted by such division shall meet as soon as may be after the first town meet- ings subsequently held in such towns, and when so met, shall have power to make such agreement concerning the disposition to be made of such town lands and the apportionment of the proceeds as they shall think equitable, and to take all measures and execute all con- veyances which may be necessary to carry such agreement into effect. IR. S. 806i S4. § 127. On Alteration of a Town.— When any such town shall be altered in its limits, by the annexing of a part of its territory to another town or towns, the supervisors and overseers of the poor of the town from which such territoiy shall be taken, and of the town or towns to which the same sliall be annexed, shall, as soon as may be after such alteration, meet for the purpose and pos- sess the powers provided in the last preceding section. Id., 5 5. The Supervisor. 93 § 128. If no Agreement be Made, Land to be Sold. — If no agreement for tlie disposition of such lands shall be made by the supervisors and overseers within six months after such division or alteration, then the supervisor and overseer of the poor of each town in which any portion of such lands shall He shall pro- ceed, as soon as may be, to sell and convey such part of said lands as shall be included within the limits of such town, as fixed by the division or alteration ; and the proceeds arising from such sale shall be apportioned between the several towns interested therein by the supervisors and overseers of the poor of all the towns, ac- cording to the amount of taxable property in the town, divided or altered as the same existed immediately before such division or alteration, to be ascertained by the last assessment-list of such town. Id., I 6. § 1 29. Personal Property, boi^ Apportioned. — When a town possessed of or entitled to money, rights and credits, or other personal estate, shall be so divided or altered, such personal estate, including moneys belonging to the town, in the hands of town oflBcers, shall be apportioned between the towns interested therein, by the supervisors and overseers of such towns (who shall meet for that purpose as soon as may be after the first town meeting subse- quently held in such towns), according to the rule of apportionment above prescribed. Id.,§Y. § 130. Meeting* Under tbis Title, bow Called. — Whenever a meeting of the supervisors and overseers of the 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 said supervisors ; but the supervisor calling the same shall give at least three days' notice, in writing, to all the otlier officers-, of the time and place at which such meeting is to be held. Id., §8. § 131. Cemeteries Excepted. — The preceding sections shall not, however, apply to any cemetery or burial-grounds ; but the same shall belong to the town in which it may be situated, after a division shall have been made. Id.,s 9. 94 ScrpERVisoRs' Manual. § 132. Debts to be Apportioned — Debts owing by a town so divided or altered shall be apportioned in the same manner as the personal property of such town, and each town shall there- after be charged with its share of such debts according to such ap- portionment. Id., §10; 94 N. T. 263. A judgmeut creditor of a town which has been divided under the act of 1872 (Chap. 319, Laws of 1873), is not entitled to a mandamus requiring the hoard of supervisors of the county to levy and assess the amount due upon the territory formerly included in the town. It seems that the remedy of the creditor is by mandamus against the officers of the towns which have any portion of the territory of the old town, requiring them to meet and discharge the duties devolved upon them by the provisions of the Revised Statutes (1 R. S. 338, g§ 4 et seq.), which provisions are at least, in the first instance, exclusive and must be pursued. It seems, also, that the legislature had power to require the debts of the town to be paid in the way so prescribed. The act of 1880, to facilitate the collection of judgments against towns, etc. (Chap. 554, Laws of 1880), has no application to such a case; but simply had ref- erence to towns which have not been divided or altered. People, ex rel., v. Board of Supervisors of Ulster Co., 94 N. T. 263. § 133. Gospel and School Lots.— ISTothing contained in this title shall apply to any of the lots heretofore granted by the people of this State to any town for the support of the gospel and of schools, commonly called the gospel and school lots. Id., §11. SECOND. WITH COMMISSIONERS OF HIGHWAYS AND JUSTICES OF THE PEACE. § 134. Duty in Case of Fire in Woods. — When- ever the woods in any town shall be on fire, it shall be the duty of the justices of the peace, the supervisors and the commissioners of highways of snch town, and of each of them, to order such and so many of the inhabitants of such town liable to work on the high- ways and residing in the vicinity of the place where such fire shall be, as they shall severally deem necessary, to repair to the place where such fire shall prevail and there to assist in the extinguishing the same or in stopping its progress. 3K. S. 2086. A person who, having been lawfully ordered to repair to the place of a fire in the woods and assist in extinguishing It, omits, without lawful excuse, to comply with the order, is guilty of a misdemeanor. Penal Code, §414. The Supeevisoe. 95 Supervisors to be Town Protectors.— The su- pervisor of every town in the State in which wild or forest lands belonging to the State are located, except within the counties men- tioned in section 7 of this act, shall be by virtue of his office the protector of these lands, subject to the instructions he may re- ceive from the forest commission. It shall be his duty to report to the district attorney for prosecution any acts of spoliation or injury that may be done, and it shall be the duty of such district attorney to institute proceedings for the prevention of further trespass, and for the recovery of all damages that may have been committed, with costs of prosecution. The supervisors shall also report their pro- ceedings therein to the forest commission. In towns where the for- est commission shall deem it necessary, they may serve a notice upon the supervisor, requiring him to appoint one or more forest guards, and if more than one in a town, the district of each shall be prop- erly defined. The guard so appointed shall have such powers, and perform such duties and receive such pay as the forest commission may determine. Chap. 283, Laws of 1885, §17. The counties ' ' mentioned in section 7 " are the counties of Clinton (excepting in the towns of Altona and Dannemora), Delaware, Essex, Franklin, Fulton, Ham- ilton, Herkimer, Lewis, Oneida, St. Lawrence, Saratoga, Warren, Washington, ocedure are these others exempted by special statutes. 15. The superintendent of the Onondaga salt springs, his depu- ties and all persons engaged in the manufacture of coarse salt. Laws of 1859, chap. 346, § 128. The commission or appointment in writing of any such officer or deputy, and the certificate of any owner or agent of any coarse salt manufactory that any person is employed or engaged in attending upon such manufactory, shall be evidence of the facts stated therein. Id. 16. The keeper of every poor-house, alms-house, or other place 15 114 Supervisors' Manual. provided by any city, town or county for the reception and support of the poor. 3R. S. 1867, §72. 17. The resident oflSeers of the State lunatic asylums and of the asylum for idiots, and all attendants and assistants actually employed therein, and the certificate of the superintendent or other principal officer of the asylum shall be evidence of the fact of such employ, ment. ' Laws of 1842, chap. 135, § 10; id. 1862, chap. 220, § 10; Code of Civ. Proc, §1081. 18. Every collector of tolls, the clerks of each collector, not ex- ceeding two, having the collector's certificate that they are actually employed by him, and all superintendents of repairs, lock-tenders, inspectors of boats, and weigh-masters, while actually engaged in their respective employments on the canals while the same are navi- gable. 1 R. S. 702. 19. The members of city and village police forces are usually ex- empted from jury duty by the statutes organizing such forces. 20. Each of the persons composing the military companies organ- ized for the safety of Sing Sing and Auburn prisons is exempt. 3R. S. 2619. 21. And the members of the fire company organized at Auburn for the safety of said prison at Auburn. .Id. 2620. 22. And the members of a fire company appointed by the presi- dent and directors of any company incorporated for manufacturing cotton, woolen or linen yarns or cloths, and whose capital exceeds $25,000, who reside within the limits of land not exceeding twenty- five acres, purchased by said corporation for such manufacturing purposes, are exempt while they hold such appointment. Chap. 202, Laws of 1815; 2 R, S. 1728. Every commissioned officer and every enlisted man of the Na- tional Guard shall be exempt from jury duty during the time he shall perform military service ; and every such commissioned officer and enlisted man who shall have served his full term of enlistment and been honorably discharged shall forever after be exempt from jury duty. § 145, Military Code, amended by chap. 323, Laws of 1884. The operators, assistant operators, clerks and other persons in the The Supeetisoe 115 employ of the different telegraph companies in the State of New York and while doing duty in the offices of said companies, or along the routes of their telegraph lines, shall be exempt from serving on ju- ries, and from any fine or penalty for neglect thereof. Chap. 215, Laws of 1861. § 159. Who are Qualified to Serve as Jurors. — In order to be qualified to serve as a trial juror in a court of rec- ord, 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 sixty years of age. 3. Assessed for personal property belonging to him in his own right to the amount of $250 ; or the owner of a freehold estate in real property situated in the county, belonging to him in his own right, of the value of $150; or the husband of a woman who is the owner of a like freehold estate belonging to her in her own right. 4. In the possession of his natural faculties, and not infirm or de- crepit. 5. Free from all legal exceptions, of fair character, of approved integrity, of sound judgment, and well informed. Code of Civ. Proc, § 1027. But a person who was assessed on the last assessment-roll of the town for land in his possession, held under a contract for the pur- chase thereof, upon which improvements owned by him have been made to the value of $150, is qualified to serve as a trial juror, although he does not possess either of the qualifications specified in subdivision third of the last section, if he is qualified in every other respect. Id., § 1028. Great care sliould be exercised in making this list, for upon the character, integrity, intelligence and sound judgment of those selected depends the rights, property and lives of citizens and the due administration of justice in our courts. The qualifications required by subdivision 5 above, ought, especially, to be fully, fairly and conscientiously insisted on by those who select jurors. The law means just what it says; that jurors should be "free from all legal exceptions, of fair character, of approved integrity, of sound judgment and well informed." § 160. Duplicate Lists of Jurors Selected to be Made and Filed. — Duplicate lists of the names of the persons so selected, showing the place of residence and other proper additions of each of them, as far as those particulars can be con- veniently ascertained, must be made out and signed by the officers or a majority of them. Within ten days after the meeting one of 116 SuPEKVisoEs' Manual the lists must be transmitted by those officers to the county clerk, and filed by him, and the other must be filed with the town clerk. Id., §1037. In the city of Utica, one of the lists is filed with the city clerk. In cities gen- erally, the charter prescribes where the list should be filed. The town clerk of every town in this State, within ten days after said list is filed, must deliver a certified copy thereof to each justice of the peace in his town. He is entitled to a fee of $1 for each copy of said list. If he neglects to so deliver the same, he shall forfeit $10 for each failure, to be sued for and recovered by the overseers of the poor, for the use of the poor of said town. Id., S 2990, as amended by chap. 505, Laws of 1889. § 161. Form of List. COUNTY OF RENSSELAER, ) . Town of Pittstown, j " We, the undersigned, supervisor, town clerk and assessors of the town of Pitts- town, in the county of Rensselaer, do hereby certify that on the first Monday of July, 1881, we assembled at Kaymertown, a place within said town, appointed by said supervisor, for the purpose of making a list of persons to serve as trial ju- rors from said town, for the then ensuing three years, and that the following is a correct list of the persons so selected : Name. Occupation. Residence. Charles L. Puller Pittstown. do Edgar M. Krum Machinist do Israel Wiltze Farmer do Merriman J. Lester do do Dated the 6th day of July, 1869. A. B . , SXIPJBBVISOB, S. C, Town Clerk, R. F., T. W., Assessors. Pile one copy with the county clerk and one with the town clerk, within ten days after the meeting. § 162. Jurors to Serve Tliree Years.— Each per- son whose name is contained in a list so transmitted must, unless he is excused or discharged, serve as a trial juror for three years from the first Monday of August of that year, and thereafter until an- other list from his town is received and filed. Code of Civil Procedure, §1040. The Supekvisor. 117 EIGHTH. WITH JUSTICES OF THj: PEACE, AND TOWN CLERK. § 163. Duties as Board of Health.— The super- visor, justices of the peace, town clerk, and one citizen elected by them act as the board of health. The statutes governing their action are as follows : See Decisions at end of this law. CHAP. 370, LAWS OP 1885. AN ACT for tlie preservation of the public health, and the registration of vital statistics. Passed May 12, 1885 ; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Board of Health to he Appointed in all Cities except ; also in Villages. — Terms of Office, Duties, etc. Section I. It shall be the duty of the common council, upon the nomination of the mayor of every city in this State, except in the cities of New York, Buffalo Albany and Yonkers and Brooklyn, which are hereby excepted from the opera- tion of this act, to appoint a board of health for such city, to consist of six per- sons who are not members of said council (one of whom, at least, shall be a com- petent physician), who shall be nominated and appointed as follows: two persons for a term of one year ; two persons for a term of two years; and two persons for a term of three years. The mayor of such city shall be a member ex-offlcio of such board of health, and shall be president thereof. The said board of health, when duly organized, shall appoint a competent physician (not a member of such board), who shall be health officer for such city. Upon the expiration of the term of office of any member of the board of health, appointed as herein provided, his successor shall be nominated and appointed in like manner for the term of three years; and the said mayor and common council shall also have power to fill any vacancy caused in such board of health by the death, resignation or removal from the city of any member thereof. And it shall be the duty of the trustees of every incorporated village in this State to appoint once, in each year, a board of health of such village, to consist of not less than three nor more than seven persons (who are not village trustees) , who shall hold office for one year, or until their successors shall have been appointed. The said board of health thus constituted shall elect a president, and appoint a competent physician (not a member of such board) to be the health officer of such village. This section shall not be con- strued to remove any of the existing boards of health in any of the cities or vil- lages of this State, but the successors of such boards shall be appointed as in this section provided. Board of Seaith in Towns — Vacancy. — Appointment to be Mled. § 2. It shall be the duty of the supervisor, the justices of the peace, and the town clerk in each town in this State to meet in their respective towns within thirty days from the date of the town election in each year and elect a citizen of such town of full age, who with them shall constitute the board of health for such town for one year, or until their successors are chosen. The said board of health shall appoint some competent physician, not a member of said board, to be the health 118 SuPEEVisoES' Manual. officer for such town. If in any case a vacancy shall occur in the board of health of any city, village or town, by the death, resignation, inability to act or removal from said city, village or town of any member thereof, and if the proper author- ities, by inability, neglect or refusal, fail to fill such vacancy, it shall be the duty of the county judge of the county in which such city, village or town is situated, upon being satisfied that such vacancy should be filled without delay, to appoint in writing a competent person to fill such vacancy for the unexpired term. The written appointment to a board of health made by a county judge under this sec- tion shall forthwith be filed in the office of the clerk of the county in which said board of health is located. Notice of the membership and organization of all boards of health in this State and of all changes that may from time to time oc- cur therein shall be given forthwith to the State board of health. Powers, etc. § 3. The several boards of health now organized in any city, village or town in this State (except in the cities of New York, Brooklyn and Buffalo), and the sev- eral boards of health constituted under this act shall have power and it shall be their duty: 1. To meet at stated intervals in their respective cities, villages and towns; also whenever the State board of health, or the president and secretary thereof, shall, by notice to the presiding officer of any city, village or town board of health, request him to convene such board to take certain definite proceedings upon mat- ters concerning which the said State board of health, or its president and secre- tary, shall be satisfied that the action recommended by them is necessary for the public good and is within the jurisdiction of such board of health. Any willful violation of any lawful instruction of said State board of health shall be a mis- demeanor. Prescribe Duties of Health Officer, etc. 2. To prescribe the powers and duties of the local health officer, who shall act as executive officer of the board; to direct him from time to time in the perform- ance of his duties, and to fix the compensation he shall receive. To Guard Against Contagious and Infectious Diseases, etc. 3. To guard against the introduction of contagious and infectious disease, by the exercise of proper and vigilant medical inspection and control of all persons and things arriving in such city, village or town from infected places, or which, for any cause, are liable to communicate contagion; to require the isolation of all persons and things infected with or exposed to contagious or infectious diseases, and to provide suitable places for the reception of the same; and if pecessary, to furnish medical treatment and care for sick persons who cannot otherwise be pro vided for; to prohibit and prevent all intercourse and communication with or uee of infected premises, places and things; and to require, and if necessary, to pro- vide the means for the thorough purification and cleansing of the same before general intercourse therewith, or use thereof, shall be allowed. And it shall te the duty of every such board of health to report to the State board of health promptly facts which relate to infectious and epidemic diseases, and every case of small-pox or varioloid occurring within its jurisdiction; and to provide at stated intervals a suitable supply of vaccine virus of a quality or from a source approved The Supekvisor. 119 by the State board of healti; and during the existence of an actual epidemic of small-pox, said local board of health shall obtain fresh supplies of said virus at intervals not exceeding one week, and shall at all times provide thorough and safe vaccination for all persons within its jurisdiction who may need the same. Complaint as to Nuisances. 4. To receive and examine into the nature of complaints made by any of the in- habitants concerning nuisances, or causes of danger or injury to life and health within the limits of its jurisdiction; to enter upon or within any place or premises where nuisances or conditions dangerous to life and health are known or believed to exist, and by appointed members or persons to inspect and examine the same; and all owners, agents and occupants shall permit such sanitary examinations; and said board of health shall furnish said owners, agents and occupants a writ- ten statement of results or conclusious of such examinations; and every such board of health shall have power, and it shall be its duty, to order the suppres- sion and removal of nuisances and conditions detrimental to life and health found to exist within the limits of its jurisdiction. Registration of Births, Marriages and Deaths. 5. To supervise and make complete the registration of all births, marriages and deaths occurring within the limits of its jurisdiction, in accordance with the methods and forms prescribed by the State board of health, and to secure the prompt forwarding of the certificates of birth, marriage and death to the State bu- reau of vital statistics after local registration; and in so completing the said regis- tration the costs thereof shall be a charge upon such city, village or town, and shall not exceed fifty cents for each completely verified and registered record of birth, marriage or death, and to secure the completeness of the said registration, it shall be the duty of the parents or custodian of every child, and the groom at every marriage, or the clergyman or magistrate performing the ceremony, to se- cure the return of the record of such birth or marriage to the board of health or person designated by them within thirty days from the date of such birth or mar- riage, and each record shall be duly attested by the physician or midwife (if any) in attendance at such birth, or the clergyman or magistrate officiating at such marriage. And it shall be the duty of the health officer of every such board of health to receive and examine and secure the registration of all certificates and records of death and causes of death and findings of coroners' juries, and said board of health shall designate the persons who shall grant burial permits for the burial of the dead, and transit permits for' the transportation of the dead bodies of persons which are to be carried for burial beyond the limits of the county where the death occurs; and it shall be the duty of the undertaker, sexton or other person having charge of the body of any dead person, to procure a record of the death and its probable cause duly certified by the physician in attendance on the deceased during his last illness, or by the coroner where an inquisition is required by law, or in case no physician was in attendance, and the facts do not justify an inquest by the coroner, and no inquest shall have been held, such per- mit may be granted upon affidavit duly certified by some person or persons known to the officer granting such permit, to be reputable and entitled to credit, stating the circumstances, time and cause of death; and there shall be no burial nor re- moval of the body of any dead person until said duly certified record shall have been presented to the board of health, or person designated by them, and until 120 SuPEETisoKs' Manual. thereupon a permit for burial or transit shall have been obtained. And the said board of health shall prescribe sanitary regulations for such burials and removals of the dead; it shall also be the duty of every such board of health to provide for obtaining copies of the said registered records of births, marriages and deaths, and for the amount and payment of fees for such copies. Such copies duly at- tested by the local registering officer, and verified transcripts from the records preserved in the State bureau of vital statistics, shall be admitted in all the courts of this State as prima facie evidence of the facts therein set forth. If, in any place in this State, the State board of health ascertains that the said registration of births, marriages and deaths is not completely and well made, said State board of health shall notify the local board of health in such place that within one month from the date of such notice, said defects and neglect in the records must be amended and prevented; if, at the expiration of the time mentioned, the said defects and neglects are not overcome and prevented by the said local authorities, it shall be the duty of the said State board of health to take control of the said records and enforce the rules and regulations with reference thereto, and secure their completeness and proper registration within the limit of cost hereinbefore specified, and to continue such control until the said local board of health shall satisfy the said State board of health that they will actually make the said records and registry complete as required by law. Any person neglecting or refusing to make out or file for registration any record as aforesaid, and any person causing, permitting or assisting in the burial or removal of any dead body, unaccompanied by a permit for such burial or removal, duly issued by the local board of health having jurisdiction where the death occurred, and any officer or board that shall neglect or refuse to register and preserve the records and forward the certificates to the State bureau of vital statistics as above required, shall be deemed guilty of a misdemeanor, and may be prosecuted in any court of competent jurisdiction. As ameuded by chap. 309, Lawa of 1888. Publication of Regulations, etc.. Necessary to Successful Operation of This Act. 6. To make and from time to time to publish, in such manner as to secure early and full publicity thereto, all such orders and regulations as they shall think nee. essary and proper for the preservation of life and health and the successful opera- tion of this law; and to make, without publication thereof, such orders and regu- lations in special or individual cases, not of general application, as they may see fit concerning the suppression and removal of nuisances, and concerning all other matters in their judgment detrimental to public health, and to serve copies thereof upon any occupant or occupants and the owner or owners of any premises whereon any such nuisances or other matters aforesaid shall exist, or to post the same in some conspicuous place on such premises. Warrants of Arrest. 7. To issue warrants to any constable or police of their respective cities, villages and towns, to apprehend and remove such persons as cannot otherwise be subject to the orders and regulations by them adopted; and whenever it shall be neces- sary to do so, to issue their warrant to the sheriff of their respective counties to bring to their aid the power of the county; all which warrants shall be forth with executed by the officers to whom they shall be' directed, who shall possess the like powers and be subject to the like duties in the execution thereof, as if the same had been duly issued out of any court of record in this State. The Supeevisok. 121 Employing Subordinates. 8. To employ all such persons as shall be necessary to enable them to carry into effect the orders and regulations they shall have adopted and the powers vested in them by this act, and to fix their compensation. Penalties, and Action for. 9. To impose penalties for the violation of, or non-compliance with their orders and regulations, and to maintain actions in any court of competent jurisdiction to collect such penalties, not exceeding one hundred dollars in any one case, or to restrain by Injunction such violations, or otherwise to enforce such orders and regulations. 10. Boards of health organized under this act shall have the same power to issue subpoenas, to compel the attendance of witnesses and to administer to wit- nesses oaths and compel them to testify under oath, as is now given or which may hereafter be given by law to justices of the peace in this State. The State board of health shall have the same*power to issue subpoenas, to compel the at- tendance of witnesses and to administer oaths to witnesses and to compel them to testify under oath, as is now given or may hereafter be given to the Supreme Court of this State, but witnesses may be compelled to attend and give testimony before said State board of health within the county where they reside or have a place of business without the payment of any fees therefor. No subpoena shall be served upon any person who, at the time of such service, was outside the juris- diction of the board of health issuing the same, and no witness shall be questioned nor be compelled to testify upon matters not related to the interest of the public health. And such boards of health shall have, in their discretion, power to des- ignate by resolution one of the members thereof to issue and sign such subpoenas. Added by chap. 146, Laws of 1888. Willful Refusal to Obey Order, Misdemeanor, Fine and Imprisonment. — Bnter on Premises and Suppress or Remove Matter Detrimental to Public JBealth. — Ex- pense a Charge on Property. — Judgment a Lien Priority. — How Lien Satisfied. § 4. Every person who shall willfully violate or refuse to obey any order or regulation made and published by the board of health of any city, village or town in this State, or any order made and served, or posted as aforesaid, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be subject to fine or im- prisonment, or both, in the discretion of the court, such fine not to exceed one thousand dollars nor such imprisonment six months. And in any case of non-com- pliance with any order or regulation which shall have been served or posted, as provided in subdivision six of section three of this act, the said board or its ser- vants or employees may lawfully enter upon any premises to which such order or regulation relates, and suppress or remove the nuisance or other matters in the judgment of said board detrimental to the public health mentioned in such order or regulation, and any other nuisance or matter of the description aforesaid found there existing; and the expense thereof shall be a charge upon the occupant or any or all of the occupants of said premises, or upon the person or persons who have caused or maintained the nuisance or other matter of the description afore- said, and may be sued for and recovered with costs by said board in the name of such board in any court having jurisdiction. Whenever execution upon any judg- ment so obtained shall have been returned wholly or in part unsatisfied, said judgment, for the amount so unsatisfied, shall be a lien upon said premises, hav- 16 123 SuPEKvisoEs' Manual. ing preference over all other liens or incumbrances whatsoever. But in order to acquire such lien such judgment, if in a court not of record, shall first have been docketed in the same place and manner as by law now required to make judg- ments in such courts liens upon real estate. And whenever any lien upon any premises shall have become fixed as aforesaid, the said board may cause the said premises to be sold at public auction, for a term of time, for the payment and satisfaction of such lien, and the expenses of such sale, giving notice of such sale for twelve weeks successively, once in each week, in one or more newspapers published in the city, incorporated village or town where the premises are situ- ated, as the case may be; or if no newspaper be published in said village or town, then in the newspaper published nearest said premises, and also serving a copy of such notice of sale personally on the owner or agent of said premises, if known, and a resident of said city, village or town, at least fourteen days previous to such sale, or by depositing the same in the post-office, directed to such owner or agent at his place of residence, if known, or the nearest post-oflSce thereto, at least twenty-eight days previous to such sale. And the said premises shall be sold to the person who shall ofEer to take the same for the shortest time, paying the amount remaining unpaid upon such judgment, with interest, and the expenses of such notice and sale. A certificate of such sale, signed by the president and countersigned by the secretary of such board, shall thereupon be made and de- livered to the purchaser,' and may be recorded in like manner and with like effect as deeds of conveyance of lands, and thereupon the purchaser, his heirs or as- signs, shall be entitled to the possession of said premises so sold as aforesaid, and if unoccupied may immediately enter, and if occupied may have remedy against any occupant by action or by summary proceedings, as against a tenant holding over after expiration of his term ; and in case the costs of such action or proceed- ing shall not be collected by such purchaser of the defendant therein, the same shall be a lien upon said premises, having the like preference as the lien afore- said, and the term of the said purchaser shall be extended during a time bearing the same proportion to the original term as the amount of such costs bear to the amount paid by such purchaser on such sale. And such term shall commence when such purchaser shall have acquired possession. At any time after such sale, and within six mouths after the recording of such certificate as aforesaid, the owner or any lienor or incumbrancer of such premises, or of any part thereof, may redem by paying to the purchaser the amount paid by him on such sale, and all costs and expenses he may have incurred in any action or proceeding as afore- said to obtain possession, with ten per cent interest thereon. If such redemption be made by the owner, the right of the purchaser shall be extinguished ; and if by such lienor or incumbrancer, the amount paid by him to redeem shall be added to his lien or incumbrance, or if he have more than one, to the oldest , and shall thenceforth partake of the nature thereof and be collectible by any remedy adapted thereto. ~ Expenses Incurred, how Ghargeable, Collected and Paid. § 6. All expenses incurred by the several boards of health in the execution and performance of the duties imposed by this act shall be a charge only on their re- spective cities, villages and towns, and shall be audited, levied, collected and paid in the same manner as other city, village and town charges are audited, levied, collected and paid. Health of Persons in Poor-houses Infected with Disease. § 6. Whenever any pestilential or infectious or contagious disease shall exist in The Supertisor. 123 any county poor-house in tliis State, or in the vicinity of any such county poor- house, and the physician of such county poor-house shall certify that such pesti- lence or disease is likely to endanger the health of the persons supported at such poor-house, the superintendent of such county poor-house shall have power to cause the persons supported at such poor-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, town or village within which such poor-house shall be sit- uated, there to be maintained and provided for at the expense of the county, with all necessary medical care and attendance, until they shall be safely returned to the county poor-house from which they were taken, or otherwise discharged Boards in Incorporated Villages. — Boa/rds may GomMne § 7. Any legally organized board of health in an incorporated village, which comprises parts of several towns, or less than a whole town, shall have full au- thority in regard to all matters relating to public health within said village, and such village shall not be subject to the sanitary regulations or health officers of the township or towns within which such village is located ; nor shall the taxable property of any such village, while maintaining its own board of health, be sub- ject to taxation for maintaining any town board or boards of health, or for any expenditures authorized by such town boards ; but such expenditures of the town boards of health shall be assessed and collected exclusively on property in the town outside of said village. But nothing in this act shall be construed to prevent the boards of health of two or more towns adjacent to each other, or of towns and villages therein situated, from uniting in a combined sanitary and registration district by the appointment of one health officer and registering officer for such district, whose authority in all matters of general application shall be derived from the several boards of health having jurisdiction within such district; and in special cases, not of general application, arising within the jurisdiction of any such board of health, the said officers shall derive their authority from such board alone. Such combined district shall be formed subject to the approval of the State board of health. Mandamus. % 8. Any duty prescribed or enjoined by this act upon any local board of health, or any member or officer thereof, or upon the common council of any city or any member thereof, or upon the board of trustees of any village or any member thereof, or upon any officer of any city, village or town, may be enforced by a mandamus at the instance of the State board of health, its president, secretary or any member thereof. BepeaMng Ola/me. § 9. Chapter one hundred and fifty-two of the laws of eighteen hundred and forty -seven, chapter three hundred and twenty-four of the laws of eighteen hun- dred and fifty, and the several acts amendatory- thereof, chapter five hundred and twelve of the laws of eighteen hundred and eighty, except subdivision thirty- four of section one of said act, and all other acts or parts of acts, general or spe- cial, inconsistent with the provisions of this act are hereby repealed. DECISIONS. The defendant, tlie Board of Healtli of Newtown, claiming that it possessed the power to prevent burials in the cemeteries of the town, in any case where the body was brought from New York or 124 Supervisors' Manual. Brooklyn, unless a permit was obtained from it authorizing the burial, refused to permit the burial of bodies coming from these places, even if accompanied by a transit permit issued by the board of health of the city where the death occurred. Held, that where a burial or transit permit has been procured from a board of health of the place where the death occurred, the body may be buried in the county or transported and buried out of the county where the death occurs, without further ceremony or permission. That the plaintiffs, undertakers residing in the city of New York, who brought this action in their own behalf and in behalf of all other undertakers of New York and Brooklyn who might come in, to restrain tlie defendant from requiring such additional permits to be taken out, and from issuing the same, were entitled to the relief sought. Eickelberg v. Board of Health, 4? Hun, 871. Chapter 270 of 1885, providing for the preservation of the public health and the registration of vital statistics, was passed to provide a uniform system for the organization of boards of health through- out the State, and it is applicable to every incorporated village in the State, except those in which boards of health, separate and dis- tinct from the trustees of the village, existed at the time of its passage. Subdivision 12 of title 9 of chapter 674 of 1870, the charter of the village of Edgewater, empowering the trustees of the village to take such measures as they might deem proper for the prevention or removal of any pestilential or infections disease, and constituting them the board of health of the village, was repealed by the passage of the said act of 1885, and from and after that time it became the duty of said trustees to appoint a board of health for the village, as thereby required. In case the trustees fail to comply with the provisions of the said act, any citizen of the village may apply to the court for a mandamus to compel the trustees to appoint and organize the board of health, as required by the act. It is the fixed and established rule of this State that every citizen has a right to compel the performance by public ofScers of the duty imposed upon them of executing the laws of the State, which are enacted for the benefit of the community. People T. Daley, 87 Hun, 461. The Supeevisok. 135 Under the provisions of chapter 790, Laws of 1867, sections 3 and 4, the occupant of land upon which there is a nuisance, which he fails to remove after notice from the board of health of a village, is to be charged with the expense of abating such nuisance and not the village. The expenses with which, under chapter 324, Laws of 1 850, sec- tion 5, as amended by chapter 761, Laws of 1868, the village is chargeable, are expenses other than those incurred by an abatement done pursuant to chapter 790, Laws of 1SG7, sections 3 and 4, sv/pra. Prendergast v. Tillage of Sobaghticoke, 25 N. Y. W. Dig. 120. TJnder Laws of New York, 1885, chapter 270, sections 3 and 4, requiring an order of the board of health for the removal of a spe- cial nuisance to be served on any occupant and the owner of the premises where the nuisance exists, and in case of disobedience, au- thorizing the removal of the nuisance and making the expense thereof a charge on the occupant, an orcler directed to the one having an interest in the premises whereon a nuisance exists, for its removal, and served on his agent, who was in the occupancy of the premises, does not require the agent to remove the nuisance. Ly decker «< aZ. T. Bells, 3 N. Y. Supp. 323. In an action, brought by the board of health of the town of Brighton, organized under the provisions of chapter 431 of the Laws of 1881, to restrain the defendant, a municipal corporation, from discharging the contents of certain sewers, or permitting the same to run over lands in the town of Brighton, or into any of the creeks, streams or waters of that town, the right of action was claimed to exist by virtue of the provisions of chapter 351 of the Laws of 1882. Held^ that the last-mentioned act was repealed by section 9 of chapter 270 of the Laws of 1885, providing that "chapter 152 of the Laws of 1847, chapter 324 of the Laws of 1850, and the several acts amendatory thereof; chapter 512 of the Laws of 1880, except- ing subdivision 34 of section 1 of said act, and all other acts or parts of acts, general or special, inconsistent with this act, are hereby repealed." That the act of 1882, entitled " An act supplemental to chapter 431 of the Laws of 1881, entitled ' An act to amend chapter 324 of the Laws of 1850,'" was, within the provisions of the repealing act above mentioned, an act amendatory of chapter 324 of the Laws of 1850. 126 SuPEEVisoEs' Makual. That the claim that the act of 1885 only repealed Bncli portions of the act of 1850 and the acts amendatory thereof as were incon- sistent with the provisions of the act of 1885 could not be sustained, as it was plain that the words " inconsistent with," etc., in the act of 1885, qualified only the words " all other acts or parts of acta," and did not qualify the preceding enumeration of acts including the acts of 1882. Hoghsonv. The City of Rochester, 49 Hud, 45. Under the act of 1850 (chapter 324, Laws of 1850), providing for the organization of boards of health, as amended in 1882 (chapter 351, Laws of 1882), while the board of health of a town may not summarily execute its orders as to the abatement of a nuisance by going outside of the boundaries of the town for that purpose, it may invoke the aid of the court to restrain a violation of its order and to enforce the abatement of the nuisance, although the cause thereof arises in an adjoining municipality. It is not essential to the validity of the service of a special order made by a board of health, requiring the abatement of a nuisance, that it be served on the occupant of the premises whereon the nuisance exists, within the territorial jurisdiction of the board ; a service outside of the jurisdiction is sufficient. The city of R. having, under legislative authority, acquired land in the adjoining town of B., and opened ditches thereon to carry oS the drainage of the city, dug such ditches and constructed sewers which discharged into the ditches near the boundary between the city and town, and the sewage was thus carried upon and over the town lands into a creek, creating a nuisance in the town dangerous to public health. Plaintiffs, constituting the board of health of the town, passed a resolution declaring that such discharge of sewage was a nuisance, ordered it to be suppressed and authorized the com- mencement of an action to restrain a violation of the resolution. A copy of the resolution was served upon the city by delivering it to the proper city authorities, the delivery being made in the city. The city, in violation of the order, continued the nuisance by per- mitting the sewage to be discharged as before. Held, that an action was maintainable to enforce the order and to restrain the continuance of the nuisance ; that while the board could not go into the city and interfere with its sewers, it could enforce its orders and prevent the discharge of the sewage upon the lands of the town where it created a nuisance ; that the order related to a matter within tbe town and within the jurisdiction of the board ; also, that the city was, within The Supbrvisok. 137 the act, an occupant of tlie premises in the town on which the nui- sance existed, and was properly served with notice ; and that a con- tinuance of the discharge of the sewage after service was a violation of the order. Gould et al. v. City of Rochester, 105 N. T. 46. CHAP. 329, LAWS OP AN ACT to prevent tlie spread of contagious and infectious diseases. Passed May 13, 1886. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Body to he Inclosed in Sealed Casket. Sectioit 1. Whenever the body of any deceased person is to be transported over the railroads of this State, or upon any passenger steamboat plying upon the livers of this State, the board of health to which application is made for a transit permit for the transportation of such body shall, if the physician's certificate or the permit accompanying such body, state the cause of death to have been a con- tagious or infectious disease, require that such body be inclosed in an hermeti- cally sealed caslset of metal or other indestructible material. See Decisions last above. Destruction of Adulterated Wines. ~ Adul- terated Wines Defined, etc. Section 1. "Adulterated Wine" Defined.— All liquors denominated as wine, containing alcohol, " except such as shall be produced by the natural fermentation of pure, undried fruit juice," or compounded with distilled spirits, or by both methods, except as permitted by section 2 of this act, whether denominated as wine or by any other name whatsoever, in the nature of articles for use as beverages, or for compounding with other liqiiors intended for such use, and all compounds of the same with ;^ure wine, and all preserved fruit juices compounded with sub- stances not produced from undried fruit, in the character of or in- tended for use as beverages, or for use in the fermentation or prepa- ration of liquors intended for use as beverages, and all wines, imita- tion of wines, or other beverages produced from fruit which shall contain any alum, baryta salts, caustic lime, carbonate of soda, car- bonate of potash, carbonic acid, salts of lead, glycerine, salcylic* acid, or any other antiseptic, coloring matter, other than that produced from undried fruit, artificial flavoring, essence of ether, or any other foreign substance whatsoever which is injurious to health, shall be denominated as adulterated wine, and any person or persons who * So in the original. 128 Supervisors' Manual. shall mauufacture with the intent to sell, or shall sell, or of- fer to sell, any of such wine or beverages shall be guilty of a misdemeanor, and shall be punished by a fine of not less than $200, or more than $1,000, or imprisonment in the county jail for a term of not less than six months, or more than one year, or by both such fine and imprisonment iu tlie discretion of the court, and shall be liable to a penalty of $1 for each gallon thereof sold, offered for sale or manufactured with intent to sell, and such wine or beverage shall be deemed a public nuisance and forfeited to the State, and shall be summarily seized and destroyed by any health ofiicer within whose jurisdiction the same shall be found, and the reasonable expense of such seizure and destruction shall be a county charge. § 2. " Pure Wine " Defined. — For the purpose of this act the words "pure wine" shall be understood to mean the fer- mented juice of uudried grapes or other undried fruits, provided, however, that the addition of pure sugar to perfect the wine, or the addition of pure distilled spirits to preserve it, not to exceed eight per centum of its volume, or the using of the necessary things to clarify and fine the wine, which are not injurious to health, shall nbt be construed as adulteration, but such pure wine shall contain at least seventy-five per centum of pure grape or other undried fruit juice. § 3. " Half Wine " Defined. — For the further purpose of this act, should any person or persons manufacture with the in- tent to sell, or sell or offer to sell, any wine which contains less than seventy-five per centum and more than fifty per centum of pure grape or other undried fruit juice, and is otherwise pure, such wine shall be known, branded, marked, labeled and sold as "half wine," and upon each and every package of such wine which shall contain more than three gallons, there shall be stamped upon both ends of such package, in black printed letters, at least one inch high and of proper proportion, the words " half wine," and upon all packages which shall contain more than one qiwt and up to three gallons, there shall be stamped upon each of such packages, in plain, printed black letters at least one-half inch high, and of proper proportion, the words " half wine," and upon all packages or bottles of one quart or less, there shall be placed a label, securely pasted thereon, on which label the words "half wine" shall be plainly printed in black letters at least one-fourth of an inch high and of proper proportion. Should any number of The Supeetisoe. 139 such packages be inclosed in a larger package, as a box, barrel, case or basket, snch outside package shall also receive the stamp " half wine, " the letters to be of the size according to the amount of such wine obtained in such outside package, provided further, that any person or persons who shall sell, offer for sale or manufacture with the intent to sell any wine which shall contain less t^ian fifty per centum of pure grape or other undried fruit juice, and is other- wise pure, such wine shall be known, stamped, labeled and sold as "made wine," and shall be stamped, marked and labeled in the same manner as prescribed in this section, except the words shall be in this case " made wine." § 4. Sales in Violation Hereof, Jolo-w Punished. If any person or persons shall sell, offer for sale, or manufacture with intent to sell any wine of the kind and character as de- scribed in the third section of this act, which shall not be stamped, marked or labeled after the manner and mode therein prescribed, siich person or persons shall be guilty of a misdemeanor, and shall be punished by a fine of not less than $200, or more than $1,000 for each and every offense, or by imprisonment in the county jail not less than three months, or more than one year, or by both fine and imprisonment in the discretion of the court, and in addition thereto, shall be liable to a penalty of one-half dollar for each gallon thereof so sold, offered for sale, or manufactured with the intent to sell or offer for sale. All penalties imposed by this act may be re- covered with costs of action by any person, in his own name, before any justice of the peace in the county where the offense was com- mitted ; where the amount does not exceed the jurisdiction of said justice, or when such action shall be brought in the city of New York, before any justice of the district, or of the city court of said city, and such penalties may be recovered in the like manner in any court of record in the State, but on recovery by the plaintiff in such case for a sum less than $50, the plaintiff shall only be entitled to costs to an amount equal to the amount of such recovery. It shall be the duty of any district attorney in this State, and he is hereby required to prosecute or commence actions in the name of the people of this State, for the recovery of the penalties allowed herein, upon receiving proper information thereof, and in all actions brought by such district attorney, one-half of the penalty recovered shall belong to, and be paid over to the person or persons, giving the information upon v/hich the action is brought, and the other half shall be paid to the treasurer of the county in which said action is 17 130 SuPEKVisoKs' Manual. brought within thirty days from the time of its collection, and the said one-half shall be placed to the credit of the poor fund of the town or city in which the cause of action arose. All judgments recovered in pursuance of the provisions of this act, with the inter- est thereon, may be collected and enforced by the same means, and in tiie sajne manner as a judgment rendered in an action to recover damages for a personal injury. Two or more penalties may be in- cluded in the same action. § 6. The provisions of this act shall not apply to medicated wines, such as are put up and sold for medical purposes only. § 6. This act shall take effect on September first, eighteen hundred and eighty-seven. Chap. 603, Laws of 1887. See Decisions, ante. Destruction of Animals Afflicted \rith " Glanders."— Duty of Boards of Health.— It shall be the duty of the local boards of health in this State to destroy or cause to be destroyed, all animals found within their jurisdiction affected with the disease called glanders. The proceedings of said boards of health under this act shall be controlled and directed by such rules and regulations as the State board of health shall from time to time prescribe. Chap. 53, Laws of 1888. See Decisions, ante. Seizure or Destruction of Milk. Section 1. Whenever any health officer or other oflBcial in the discharge of his duties shall seize or destroy, or cause to be seized or destroyed, any milk belonging to another person, such health officer or other official shall take a sample of such milk in the presence, at least, of one witness, and shall, in the presence of such witness, seal the said sample, and shall tender, and if accepted, deliver said sample to the vendor or person in custody or charge of the same, with a statement, in writing, of the cause of such seizure or destruction, and the date of such destruction or seizure. § 2. Any health officer or other official who shall violate the pro- visions of this act, shall be liable to a penalty of $50, to be prose- cuted for by the person or persons aggrieved. § 3. This act shall take effect immediately. Chap. 397, Laws of 1889. The Supebvisoe. 131 Obstructing- Health Officer a Misdemeanor. — A person who willfully opposes or obstructs a health officer or physician charged with the enforcement of the health laws, in per- forming any legal duty, is guilty of a misdemeanor. Penal Code, § 396. Willful Violation of Healtli La-ws.— A person who willfully violates any provision of the health laws, the pun- ishment for violating which is not otherwise prescribed by those laws or by this code, and a person who willfully violates or refuses or omits to comply with any lawful order or regulation prescribed by any board of health or health officer, or any regulation lawfully made or established by any public officer under authority of the health laws, is punishable by imprisonment not exceeding one year, or by a fine not exceeding $2,000, or by both. Id., §397. For definition of a "public nuisance" and other crimes against the public health, see Penal Code, §§ 385-447. NINTH. WITH JUSTICES OF THE PEACE, TOWN CLEEK AND HIGHWAY COMMISSIONEKS. § 164. Formation of Water-vrorks Company. — Number of Persons Required. — Any number of persons not less than seven may hereafter organize in any town or village of this State a water-works company, under the provisions of this act. Chap. 737, Laws of 1873, § 1. Application to Form Company, etc.— Whenever any persons, to the number of seven or more, shall organize for the purpose of forming a water-works company to supply water to any of the towns or villages and the inhabitants thereof in this State, they shall present to the town or village authorities an application setting forth the persons who propose to form said company, the pro- posed capital stock thereof, the proposed number and character of the shares of such capital stock, and the sources from which water is intended to be supplied. Such application shall be signed by the persons who propose to form said company, and shall contain a re- quest that the authorities of such town or village shall consider the apphcation to supply such town or village of this State or the in- habitants thereof with pure and wholesome water. Said authorities 133 SuPEEVisoKs' Manual. shall, -within thirty days of the presentation of said apph'eation, de- termine by vote whether said application shall be granted ; and the authorities of any town or village in this State are hereby author- ized and empowered to make such determination, and when the same shall be made, to sign a certificate to that efEect and immediately transmit the same to the persons making such application, or either of them. If such application is granted in whole, or in part, dupli- cate certificates of such determination shall be filed in the ofiice of the clerk of said town or village, and in the office of the county clerk of the county in which the town or village granting such ap- plication shall be situated. The persons named in such application shall thereupon meet and organize as a water-works company under such corporate name as they may select. They shall file in the office of the secretary of State a certificate of such organization. Said certificate shall recite the fact of such application and determination, and shall contain the name of the corporation, the names of the members of said corporation and their residences, the amount of capital stock, the location of the office of said company. Such cer- tificate shall be subscribed by the persons by whom such application was made, and sworn to by a majority of such persons. Upon the filing of said certificate said water-works company shall be known and deemed a body corporate, and shall be capable of suing and be- ing sued by the corporate name which they shall have selected in any of the courts of this State, and shall have the right to lay and maintain their pipes and hydrants for delivering and distributing water in any street, highway or public place of such town or village for which consent shall have been given as heretofore provided. The capital stock of said company shall be paid in in the manner and within the time provided by the " Act to authorize the formation of corpo- rations for manufacturing, mechanical or chemical purposes," passed February 17, 1848, and the several amendments thereto, and the stockholders of said companies shall be personally liable for the debts of said companies in the same manner and to the same extent as is provided by said act and the amendments thereto, but they shall not be liable for any debt secured by a mortgage. The authori- ties in this act authorized and referred to are as follows, to- wit: For any incorporated village, the board of trustees thereof and the su- pervisor of the town ; and for any town, the supervisor, justices of the peace, town clerk and highway commissioners thereof. And all acts to be done under this act by such authorities may be done by a majority of their number at a meeting duly called or held. Id., § 2, as amended by chap. 213, Laws of 1881. The Supebvisoe. 133 Town Authorized to Contract.— It shall be the duty of such corporations and they are hereby authorized and em- powered to contract with the authorities or with any of the inhabit- ants of any town or village through which the conduits or mains of such corporations may pass, or wherein such corporations may have organized to supply any of such inhabitants or authorities with pure and wholesome water at reasonable rates and cost, to all persons or corporations, who may wish to use the same, and such corporations or persons so contracting are hereby authorized and empowered to make all necessary connections with any of its conduits or mains for that purpose, and the board of trustees of any incorporated village of this State, whether incorporated under the act entitled " An act for the incorporation of villages," passed April 20, 1870, and acts amendatory thereof and supplementary thereto, or by special charter or act, shall have tlie power, and they are hereby authorized and empowered to contract with any such corporation in the name and behalf of the village of which they are such board of trustees ; and the authorities specified in section 1 of this act, or two-thirds of such authorities of any town, shall have the power and they are hereby authorized and empowered to so contract in the name and behalf of the town of which they are at the time of making such contract such authorities, for the delivery by such company of water, through hydrants or otherwise, for the extinguishment of fires, and for sani- tary and other public purposes ; and the amount of such contract agreed to be paid shall be annually raised as a part of the expenses of such village, or town, and shall be levied, assessed and collected in the same manner and at the same time as other expenses of such village or town are raised, and when collected shall be kept separate from other funds of said village or town, and shall be paid over to such watei' company according to the terms and conditions of any such contract. And any such contract so made shall be vahd and binding upon such village or town ; provided, however, that no such contract shall be made for any incorporated village for a longer period than five years, nor for a sum exceeding in the aggregate two and one-half mills for every dollar of the taxable property of such village, per annum, unless the proposition for the same be submitted to a vote of the electors of such village in the manner provided in sections 4 and 5 of title 4 of chapter 291 of the Laws of 1870, and approved by a majority of the voters entitled to vote, and voting on such question at any annual election, or at any special election duly called ; and any board of trustees, when so authorized, may contract 134 SUPEBVISOKS' MaKUAL. for a term not exceeding thirty years, the amount of such contract to be paid annually, or in semi-annual installments; and no such con- tract shall be made for any town for a longer period than thirty years, nor for a sum exceediug in the aggregate three mills for every dollar of the taxable property of such town, per annum, payable an- nually, or in semi-annual installments ; provided that in towns where there shall be at the time of making such contract an incorporated village, constituting a part only of such town, no tax shall be as- sessed, levied or collected upon property within the limits of such village, for the purposes of this act, except in pursuance of an agree- ment with the board of trustees of such village ; and in any town where it is proposed to supply with water only a portion of such town, or the inhabitants of a portion of the town (such portion not being an incorporated village), the aforesaid authorities of the town may contract, as hereinbefore prescribed, for a supply of water as aforesaid for such portion of the town, or for the inhabitants of such portion, and the whole town shall be bound by such contract when duly made ; but the entire annual rental or expense, or such portion thereof as they may deem just, may be directed by said town au- thorities to be assessed and levied upon, and collected from, the tax- able property of that portion of such town which will be benefited by such supply of water ; provided, always, that such expense shall in no case exceed per year three mills upon each dollar of the taxable property of that portion of the town. Any corporation organized under the provisions of this act shall have power to borrow money for the construction of its works, and to issue bonds and to mortgage its property and franchises to secure payment of the same. Noth- ing herein contained shall in any manner apply to Kings county. Id., § 5, as amended by chap. 346, Laws of 1889. A company organized under the above act, which has contracted with a town or village to furnish it with water facilities at an agreed compensation, is not thereby constituted a governmental agency, and its property is subject to taxation. People T. Forrest, 97 N. Y. 97. The act of 1873, chapter 737, is constitutional, and under it such companies may take lands by condemnation upon making compen- sation. In re New Roohelle Water Co., 46 Hun, 525. Id., § 5, as amended bv chap. 369, Laws of 1889. J V • By the act of 1889 the above act of 1873 shall not apply to any The Stjpbrvisoe. 135 village the population of which exceeded fifteen thousand by the census of 1880. Chap. 369, Laws of 1889, § 1. By chapter 483, Laws of 1883, any company organized under any law of this State, or which may hereafter be so organized for the pur- pose of supplying any city, town or village with pure and whole- some water, shall have the power to enter into a contract with any other town or village, or the authorities thereof, in the county in which it shall have organized, or in any adjoining county, for the purpose of supplying such town or village, or the inhabitants thereof, with pure and wholesome water, and said contract so made shall be as valid and binding, and of like force and effect as if the said com- pany had duly organized for said purpose in such town or village. § 1 as amended by cliap. 422, Laws of 1885. But this does not apply to Kings county, nor to any village ex- ceeding fifteen thousand. See chap. 369, Laws of 1889, ante. All rights, privileges and powers conferred, and all duties and ob- ligations imposed by chapter 737, Laws of 1873, ante, were con- ferred and imposed upon such company, and said acts and amend- ments not inconsistent therewith, made applicable to such company, and town or village. By chapter 386, Laws of 1884, another act was passed as follows : AN ACT to extend the operation and effect of chapter 40 of the Laws of 1848, entitled " An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes," and the amendments made thereto. Passed May 28, 1884 ; three-fifths being present. TTie People of the State of New York, represented in Senate and Assembly, do enact as folloios : Section 1. Corporations, Iiott Formed. — Any three or more persons may organize and form themselves into a corporation in the manner specified and required in and by chapter 40 of the Laws of 1848, entitled " An act to authorize the forma- tion of corporations for manufacturing, mining, mechanical or chemical purposes," and the amendments thereof and supplements thereto, for the purpose of boring, sinking, digging for, accumulat- ing, conducting by underground pipes, conduits and reservoirs, and famishing water, to be used for power and fire purposes. 136 SuPEKTisoKs' Manual. §2. Subject to Provisions of Act of 1848.- Every corporation so formed and the stockholders thereof slial] be subject to all the provisions, duties and obligations contained in the above mentioned act and the amendments thereof and supple- ments thereto, and shall be entitled to all the rights, benefits and privileges thereby conferred. § 3. Pcwers. — Any corporation formed under this act shall have power to lay its pipes and conduits through and under the streets, avenues and highways of any city, town or village where it may be located, with the consent of the municipal authorities of such city, or the local authorities of such town or village, and under such reasonable regulations and conditions as they may prescribe, except in the city of New Tork, where pipes and conduits may be laid in the streets and avenues by any such corporation with the consent and by the authority of the commissioners of the sinking fund of said city § 4. May Contract Tritli ToTrn, etc. — Any corpo- ration formed under this act may contract with any city, town or vil- lage iu which it may be located to furnish water for the purposes stated in section 1 of this act ; but any contract that may be made under the authority hereby conferred between the city of New York and any such corporation shall be made only by the com- missioners of the sinking fund of said city upon such terms and conditions as the said commissioners shall deem for the best interests of said city And the comptroller of the said city of New York is hereby authorized to issue revenue bonds of said city in sufficient amount to raise such sums as the said commissioners of the sinking fund shall certify to be necessary to execute any contract made in behalf of said city under the authority hereby conferred, and a sum sufficient to pay said bonds, with the interest thereon, shall be in- cluded in the final estimate and raised by taxation, either in the year in which said bonds are issued or in the following year. § 5. AJl acts or parts of acts inconsistent herewith are repealed. § 6. This act shall take effect immediately. Chap. 386, Laws of 1884. § 165. In Relation to Roads and Bridges.— In case any road or roads, bridge or bridges, shall be damaged or destroyed by the elements or otherwise, after any town meeting shall have been held, and since the 15th day of February, A. D., 1865, then and in that case it shall be lawful for the commissioner or com- missioners of highways, by and with the consent of the board of The Supeevisob. 137 town auditors, or a majority thereof, of the town or towns in which such road or roads, bridge or bridges, shall be situated, to cause the same to be immediately repaired or rebuilt, although the expenditure of money required may exceed the sum now authorized to be raised by law upon the taxable property of the town or towns for such purposes; and the commissioners of highways shall present the proper vouchers for the expense thereof to the town auditors, at their next annual meetingj and the said bill shall be audited by them, and the amoimt audited thereon shall be collected in the same man- ner as amounts voted at town meetings as now required. The com- missioners acting under this act shall be entitled to receive, for each day's service actually rendered, $2. The board of town auditors may be convened in special session by the supervisor, or, in his absence, the town clerk, upon the written request of any commissioner of highways, and the bills and expenses incurred in the erection or repairs of any such roads or bridges, may then be presented to and audited by such board of town auditors ; and the supervisor and town clerk shall issue a certificate, to be sub- scribed by them, setting forth the amount so audited and allowed, and in whose favor, and the nature of the work done and material furnished ; and such certificate shall bear interest from its date, and the amount thereof, with interest, shall be levied and collected in the same manner as other town expenses. Chap. 103, Laws 1858, a3 amended by chap. 442, Laws 1865, inland 2; 2B. S.1218. See this law in full and notes, post, chap. XIV. § 166. Form for Consent. COUNTY OF ONEIDA, ) . Town of Vebnon, ) ' At a meeting of the board of town auditors of the town of Vernon, in said county, held August 1, 1886, the following resolution was duly passed: Whereas, the bridge known as the bridge, over the creek, was de- stroyed by fire, on July 1, 1886, and after the annual town meeting in said town, and there are not sufficient funds in the hands of the commissioner of highways, to rebuild the same, and said bridge is a public necessity, therefore, Resolved, that we hereby consent that said commissioner of highways cause said bridge to be immediately rebuilt. MORRIS S. MILLER, SXJPBHVISOR. A. B., Town Clbek. CD., E. P., G. H., J. K., Justices of the Peace. 18 138 SuPEEVisoRS' Manual. TOWN OF VERNON, ) . CiiEKK's Office, j ' ' I hereby certify that I have compared the foregoing transcript of the proceed- ings of the board of town auditors of said town, duly held on August 1, 1886, with the original thereof on file in this office, and that it is a correct transcript therefrom and of the whole of said original. Dated August 2, 1886. A. B., Town Ceeiik. This copy should be given to the highway commissioner to protect him in his action thereunder; of course the records of the town clerk should show the pro- ceedings in full. It seems to be the practice in some counties to present a copy of the above to the board of supervisors, with a request to "■legaUze" the same, as provided by chapter 326, Laws of 1885. As the town board has jurisdiction to act in the mat- ter, their action needs no confirmation by the board of supervisors; the expenses are to be audited by the town board, at their next annual meeting, or at a special meeting, duly convened as required by section 2 of the statute. The following form will bring the matter before the board of supervisors. To THE HOKORABLE THE BOAED OF SUPERVISORS OP ONBIDA COUNTT: In pursuance of the statute in such cases made and provided, I herewith pre- sent a duly certified copy of the resolution and proceedings of the board of town auditors of the town of Vernon in relation to roads and bridges, which said copy is hereto annexed and marked Exhibit A {annex a copy of the form preceding and mark it Exhibit A). That in pursuance of said resolution, the commissioner of highways in said town duly erected said bridge, and thereafter presented his vouchers and account therefor to the said board of town auditors, whereupon the said board duly audited the same as more fully appears from the proceedings thereof, a certified copy of which is as follows: At the annual meeting of the board of town auditors of the town of Vernon^ held at , on the day of , 1886: The account and expenses of , highway commissioner of said town, in- curred in pursuance of the consent of this board, given August 1, 1886, by reso- lution hereto annexed, marked Exhibit A, are hereby audited and allowed at the sum of $800, payable as follows: In whose favor. Nature of work done and material furnished. Amount claimed. Amount allowed. Grotou Bridge Company. . A. B $700 00 10 00 50 00 10 00 $700 00 Five days' services in erecting tbp SHTne 10 00 CD 2,000 feet plank at $25 Five days' services in erecting bridge 50 00 E. F 10 00 (And so on). Total $800 00 $800 00 (Signed.) Supervisor. Town Clerk. Justices of the Peace. The Supeevisoe. 139 Town of Vbknon, ) **"' We hereby certify that we have compared the foregoing transcript of the pro- ceedings of the board of town auditors of said town, duly held on the day of , 1886, with the original thereof on file in the town clerk's oflSce, and that the same is a correct transcript therefrom and of the whole of said original. Dated , 1886. A. B., Supervisor. C. D., Town Clerk. In connection therewith I ask the passage of the following resolution: Besolved, That the sum of $800 be and the same is hereby levied upon the tax- able property of the town of Vernon, and orders therefor be drawn payable to the several persons specified in said auditor's certificate for the amounts set op- posite their respective names. All «f which is respectfully submitted. A. B., StTPERTISOH. Dated , 1886. The board of supervisors have no discretion as to the amount to be raised. They are to raise the amount audited by the town board. People T. Supervisors of Queens, 1 Hill, 195 ; Osterboudt v. Eigney et al., 98 N. T. 222-280. § 167. Meeting' to Determine What Amount Shall be Borro^red.— On the first Monday of March, in each year, at ten o'clock in the morning, at the town clerk's office, the supervisor, commissioners of highways, town clerk and justices of the peace, shall meet to determine what amount, if any, shall be borrowed on the credit of the town, for building or repairing any road or roads, or bridge or bridges, in such town, or partly in such town and partly in an adjoining town, or to pay any existing debt incurred in good faith by, or on behalf of, such town before the pas- sage of this act, and for what roads or bridges such amount shall be borrowed or appropriated, and for the same purposes a meeting or meetings of said officers may, and shall also be held, upon the call of the town clerk, whose duty it shall be to call the same within one week after the receipt of the written request of twelve tax pay- ers of the town therefor, and any such meeting may be adjourned for want of a quorum, or in default of any final determination of any question arising, concerning such appropriation ; but no such meeting shall be held subsequent to the first Monday of October, in each year. Chap. 855, Laws of 1869, §1, as amended by chap. 250, Laws of 1882. The amount to be borrowed cannot exceed one-half of one per 140 SuPERVisoEs' Manual. cent of the assessed valuation of taxable property of the town for such year. Id. The minutes of the meeting should be properly kept in town books of record and show the whole proceedings to be regular. The following petition will bring the matter before the board of supervisors and also shows the proper method of keeping the record of the proceedings of the town officers. PETITION — FORM OF. To THE HONOKABLE THE BOARD OP SlTPEIlVISOBS OF ONEIDA COUNTY. The petition of the undersigned, supervisor of the town of Marshall, in said county, respectfully represents: That at a meeting of the supervisor, town clerk, commissioner of highways and justices of the peace of said town, held at the town clerk's office in said town, on the first Monday of March, 1886, in pursuance of chapter 855, Laws of 1869, and the acts amendatory thereof, the following proceedings were had, viz. : At the annual meeting of the supervisor, town clerk, commissioner of high- ways and justices of the peace of the town of Marshall, held at the town clerk's office, March 1, 1886, all of said town officers being present. On motion of A. B. Mi. Day was chosen chairman and C. D. clerk. On motion of Mr. F., the following resolution was adopted: Resolved, That we ask the board of supervisors of Oneida county to authorize the supervisor of the town of Marshall to borrow $500, for and on the credit of said town ; for the purpose of opening the road running from N. to W. as laid out in the fall of 1885, and issue bonds therefor, payable in one year, at six per cent interest, at the First National Bank of Utica, and deeming the same to be necessary, we hereby consent thereto. On motion of L. M. the meeting adjourned. (Signed.) JULIUS A. DAY, Supervisor. CD., Town Clerk. E. F., Commissioner op Highways. G. H., L. M., R. S., T. v., Justices op the Peace. CLERK'S OFFICE, 7 . Town of Marshall, ) " I hereby certify that I have compared the foregoing transcript of the proceed- ings of the town officers of said town, with the original on file in this office, and that the same is a correct transcript therefrom and of the whole thereof. C. D., Dated November 1, 1886. Town Clerk. That the assessed valuation of the taxable property of said town for the year 1886, is $1,000,000. The Supervisor. 141 Wherefore, your petitioner prays that the supervisor of the said town be au- thorized, in pursuance of such resolution and consent and the statute aforesaid, to borrow the sum of $500, for and on the credit of said town, and that your board fix and prescribe the form of obligation to be issued and the time and place of payment as prescribed by law. JULIUS A. DAY, Dated November 6, 1886. Supervisor. This petition should be presented to the board, and is generally referred to the committee on ' ' Legislation " or "Laws," for the reason that the proper form of a resolution authorizing such loans is quite technical and requires careful prepara- tion. A form for such resolutions may be found in a subsequent chapter, post. See "Committee ou Legislation.'' These forms can be adapted for use, in the cases of additional amounts to be raised at town meetings or special town meetings, or upon the application of the town officers as provided in Chap. 274, Laws of 1832; chap. S14, Laws of 1838; chap. 615, Laws of 1857, and chap. 482, Laws of 1875, as amended by chap. 451, Laws of 1885. When Supervisor may Purchase Stone Cruslier. — The supervisor of any town in the State of Newr York may, when authorized so to do by a majority vote of the electors voting thereon at the annual or at a special town meeting, purchase a machine for crushing stone, to be used for the improve- ment of the roads of said town, and shall present his account and vouchers for such purchase, to the board of the town auditors of his town, for audit. Chap. 220, Laws of 1884, § 1. Notice of Election.— The town clerk, on the application of the road commissioners of the town, or a majority of them, shall give at least ten days' notice that such vote will be taken, by posting notices of the same in not less than five public places in the town and the vote when taken shall be by ballot, which, written or printed, shall read as follows: " For a stone crusher," or " Against a stone crusher." Id., s 2. Custody of Machine. — Such machine, when purchased, shall be deemed to be, and shall be, under the care and custody of the supervisor of the town, and where there is an incorporated vil- lage constituting a separate road district in any town, he shall permit an equitable use of said machine to said separate road district. Id., § 3. Tax to Pay the Same. — The board of supervisors of the county shall cause to be levied and collected by tax, on any town 142 StJPEEvisoEs' Manual. having authorized the purchase of a stone-crushing machine, in the same manner as other town taxes are levied and collected, such sum as shall be necessary to pay for the purchase of the same. Id., §4. Election as to Purcliasing' Stone, etc.— When- ever any town shall have purchased a machine for crushing stone, by virtue of the provisions of this act, the town clerk of such town, on the application of the commissioners of highways, or a majority of them, shall call a special town meeting of the electors of said town, to vote upon the question of raising by tax a sum of money, to be specified in said call, not exceeding $2,000 in any one year, for the purpose of purchasing rock or stone, quarrying, breaking, crush- ing and placing the same on the highways in said towns, and to de- fray all the expenses of operating said stone-crushing machine ; such vote to be taken, either at a special town meeting called for that purpose or at any annual town meeting. In either case the town clerk shall give at least eight days' notice that such vote will be taken, by posting notices thereof in not less than five public places in said town ; and the vote, when taken, shall be by ballot, either written or printed, and shall read as follows: "For the appropriation to defray the expenses of supplying and operating the stone crusher," or " Against the appropriation to defray the expenses of supplying and operating the stone crusher." If a majority of the ballots cast are " For the appropriation to defray the expenses of supplying and operating the stone crusher," the board of supervisors of the county shall cause to be levied and collected by tax, in any town having voted as aforesaid, either at special or annual town meeting, the amount so voted, in the same manner as other town taxes are levied and collected, and the same shall be paid over to the commissioners of highways, to be used by them for the purposes aforesaid. Id., § 6, added by chap, ill, Laws of 1887. Supervisor's Duties in Preventing' Spread of Diseases in Peacli Trees, etc. — Fruit Trees Infected -vritli Yellcws. — It shall be un- lawful for any person to knowingly or willfully keep any peach, almond, apricot, or nectarine tree infected with the contagious disease known as the yellows, or to offer for sale or shipment, or to sell or ship to others any of the fruit thereof; that both tree and fruit so infected shall be subject to destruction as public nuisances, as hereinafter provided, and no damages shall be awarded in any court in this State for entering upon premises and destroying such The Supervisob. 143 diseased trees and fruit, if done in accordance with the provisions of this act ; and it shall be the duty of every person as soon as he becomes aware of the existence of such disfease in any tree or finiit owned by him, to forthwith destroy or cause the same to be de- stroyed. Chap. 403, Laws of 1887, § 1. Supervisor may Appoint Town Commission- ers. — In any town in this State in which such contagious disease «xists, or in which there is good reason to believe it exists, or danger may be justly apprehended of its Introduction, as soon as such in- formation becomes known to the supervisor thereof, it shall be the duty of said supervisor to appoint forthwith three competent free- holders of said town, as commissioners, who shall hold office during the pleasure of said supervisor, and such order of appointment and of revocation shall be entered at large upon the town records. Id., § 2. Commissioners to File Acceptance. — To-wn Clerk to Keep Record. — It shall be the duty of said commissioners, within ten days after appointment as aforesaid, to :file their acceptances of the same with the clerk of said town, and said clerk shall be eoa-officio clerk of said board of commissioners, and he shall keep a correct record of the proceedings of said board in a book to be provided for the purpose, and shall lile and preserve all papers pertaining to the duties and actions of said commissioners, or either of them, which shall be a part of the records of said town. Id., § 3 Duty of To-wn Commissioners. — It shall be the duty of the commissioners, or any one of them, upon or without complaint, whenever it comes to their notice that the disease known as yellows exists or is supposed to exist within the limits of their town, to proceed without delay to examine the trees or fruit sup- posed to be infected, and if the disease is found to exist, a distin- guishing mark shall be placed upon the diseased trees and the owner notified personally, or by a written notice left at his usual place of residence, or if the owner be a non-resident, by leaving the notice with the person in charge of the trees or fruit, or the person in whose possession said trees or fruit may be. The notice shall con- tain a simple statement of the facts as found to exist, with an order to effectually remove and destroy, by fire or otherwise, the trees so marked and designated, within ten days, Sundays excepted, from the date of the service of the notice ; and in case of fruit so in- 144 SupKKTisoRs' Manual. fected, such notice shall require the person in whose possession or control it is found, to immediately destroy the same or cause it to be done ; said notice and order to be signed by the full board of commissioners. Id., §4. Duties of Commissioners Wben Order Re- fused. — Whenever any person shall refuse or neglect to comply with the order to remove and destroy the trees marked by the com- missioner, as aforesaid, it shall become the duty of the commission- ers to cause said trees to be removed and destroyed forthwith, em- ploying all necessary aid for that purpose, the expense for such re- moval and destruction of trees to be a charge against the town ; and for the purpose of said removal and destruction the said commis- sioners, their agents and workmen, shall have the right and power to enter upon any and all premises within their town. Id., § 5. Failure of 0\^ner to Destroy Trees a Mis- demeanor. — If any owner neglects to remove and destroy, or cause to be removed and destroyed, as aforesaid, such diseased trees or fruit after such examination and notification, and within the time hereinbefore specified, such person shall be deemed guilty of a misdemeanor, and punished by fine not exceeding $100, or by imprisonment in the county jail, not exceeding three months, or both, in the discretion of the court ; and any justice of the peace of the town where such fruit is sold, shipped or disposed of, as aforesaid, shall have jurisdiction thereof ; and all such fines so col- lected shall be turned over to the supervisor of said town, to be placed by him in the contingent fund of said town. Id., §6. Pay of Commissioners a To-vrn Charge.— The commissioners shall be allowed for services under this act, $2 for each full day and $1 for each half day, and their other reasonable charges and disbursements hereunder to be audited, as well as any other charges and disbursements under this act, by the board of town auditors, to be paid to said commissioners as other town accounts are paid. Such fees and all reasonable charges and disbursements of said commissioners in each case may be recovered by the town, in the name of the supervisor, from the owner of the diseased fruiter trees on account of which such fees, charges and disbursements be- came payable or were incurred. Id., s 7. CHAPTER IV. ELECTIONS. Sec. 168. Preparation for general election. Sec. ISO. Caption. 169. Order dividing town into election 181. Unlawful to distribute other bal- districts. lots. 170. New towns, election districts in. 182. Penalty. 171. Alteration of districts. 183. Repeal. 172. Order altering election districts. 184-205. Canvass of votes by inspectors. 173. To give notice of time and place 206-207. Statements of canvass. of holding election. 207X- Duties of supervisors. 174. Notice of holding an election. 208-223, Board of county canvassers. 175. Inspectors of election to be 224-237. Duties of county clerk. elected annnally. 238-243. Official canvass. 176. Form of appointment for third 244. When to order special election. inspector in towns. Inspect- 245. Notice for. special election, ors, vacancy in office. 246-256. Digest of decisions. 177. When to appoint inspectors; 255. Court may correct errors; man- who eligible as inspectors. damns. 178. Appointment of inspectors to fill 256. Practice therein ; Broome connty; vacancies. instructions for inspectors, etc., 179. Ballots must be on plain paper in. and uniform. DUTIES UNDEE ELECTION LAWS. § 168. Preparation for General Election.— When may Divide To^rn into Districts.— The supervisor, assessors and town clerk of each town shall meet at the town clerk's office in such town on the first Tuesday in September next, at ten o'clock in the forenoon, and form themselves into a board. And in case a majority of said officers, for any cause, do not attend on that day, it shall be the duty of those who do attend, to adjourn to some future day, not exceeding five days, and shall immediately thereupon give notice to those officers who do not attend, of the time of such adjournment ; and it shall be the duty of all said officers to attend on such adj6urned day, and to proceed in the same manner as though a majority had attended on the day appointed by law; and adjournments from time to time may be had by said officers, as occasion may require ; but no such adjournments shall extend beyond the first day of October in said year. They shall, in all cases where any town shall contain more than five hun- dred electors, divide tlie same into a convenient number of election districts, so that each district shall be in a compact form within their town, and shall contain not more than five hundred electors, as far as the number can be ascertained. But where any town shall contain less than five hundred electors, the board may, in their dis- cretion, divide the same into districts. They shall make a certificate 19 146 Supervisors' Manual. of such division, under their hands, in which such districts shall be numbered and described by known boundaries, which shall be imme- diately filed in the office of the town clerk. The town clerk shall, at least two weeks before the day of election, put up copies of the said certificates in at least four public places in each of said districts, within ten days after such meeting ; and he shall deliver a copy thereof to an inspector in each district before the day of election. 1 R. S. 382. Tliis law was passed in 1843. See next three sections. 1 169. Order Dividing- To-wn into Election Districts. COUNTY OF RENSSELAER, ) . Town of Pittstown, ) " We, the undersigned, supervisor, town clerk and assessors of the town of Pitts- town, in the county of Rensselaer, having met at the town clerk's office in said town on the first Tuesday in September, 1868, for the purpose of dividing said town into election districts, and a majority of said officers being present, did then and there divide said town into two election districts, which districts shall be known as election districts No. 1 and 3. Said district No. 1 shall comprise and consist of all that part of said town lying and being within the following bounda- ries, viz : (describe each district carefully by known boundaries.) Said district No. 3 shall comprise, etc. Dated this l4 O ^ ^ O 1— 1 H J O f^ H-; CQ w <1 hJ § P3 w P 5z; fS w S a i5 1 <) 1 OQ >^ « tD o O H o 1* < o Q (— 1 i* ^ s O s m P=^ o r/3 en <1 > ^ <1 o (-5 <1 1— 1 o 1— 1 P=R I^H O 8 » o e Hi H !>■ o O SuPEBVisoBs' Manual. (-eojBO qass qi|uu ao os pny) ■piusSzi)!^ 'f eanejM«^ •qojJia -a seiJsqO §ii CDUSS •B910A JO jaqmnu oioq^ sis 'J9ieqs -g no8i9K | i"^ ■nopiaqg "rc Jio^JspBja ^ss-^ •njdBqo -0 PSJJIV QOesfU ■qiJOAispBji. "Ai SBcaor ■sa}OA }o jaqmna sioq^ -mmu -ji sSjosq 'snCAQ pjVMps 3;s-* ■Jiooo JtoiJapo'd: •pOO^ 'S 008UV OQCDN •BejOA JO laqmna aioqjii. easQ 'ai DBiniT IBejouiaa saninaaj- 'M •senof M poBAipa •irao -g qdasof ' sa^oA JO jequinii ajoq^ ■sanof '0 aSjoBO 'mooBna A^io H JSS SS'^ ■mn 'a piabq •}jodaeACQ cjj 'sa^OA JO Jaqmnn aiOT(^ m«ias 'd "d "O TJ 'd "O 'O "O "O "O « * d « «3 * cc rt * rt ■ • • <»S : -oEQ tfcfd edce 00 eS i bS -a S.^ m i2 «i35i2 == " o « o-O fe-C Elections. 169 This report is embodied in the following statement, to-wlt: § 239. Statement. Statement of the board of county canvassers of the county of Oneida, in rela- tion to the votes given for the offices of governor, lieutenant-governor, secretary of State, comptroller, treasurer, attorney-general, State engineer and surveyor, justice of the supreme court and State senator. The board of county canvassers of the county of Oneida having met at the office of the clerk of said county, on the 10th day of November, 1885, to canvass and estimate the number of votes given in the several election districts of said county, at the general election held on the 3d day of November in the year aforesaid, do certify as follows, to-wit : That it appears on such estimate and canvass that the whole number of votes given for the office of governor was twenty-five thousand six hundred and ninety-mne, of which Ira Davenport received twelve thousand five hundred and ninety-six. David B. Hill received eleven thousand six hundred and ninety-three. H. Clay Bascom received thirteen hundred and fifty-one. i George 0. Jones received fifty. Hill received one. Blank received six. And so on with each one. Certificate. We certify this statement to be correct, and have caused the same to be attested by the signatures of the chairman and secretary of this board, this 12th day of November, A. D. one thousand eight hundred and eighty-five. FRANCIS A. WILLABD, Chaikman, M. JESSE BRAYTON, Deputy County Clerk and Secbbtaet. § 340. Statement. Statement of the board of county canvassers of the county of Oneida, in rela- tion to the votes given for the offices of sheriff, county clerk, superintendent of the poor, coroner and justice for sessions. The board of county canvassers of the county of Oneida having met at the office of the clerk of said county on the 10th day of November, 1885, to canvass and estimate the votes given in the several election districts of said county, at the general election held on the 3d day of November, in the year aforesaid, do certify as follows: That it appears on such estimate and canvass that the whole number of votes given for the office of sheriff, was twenty-five thousand six hundred and eighty- fpur, of which John Batchelor received thirteen thousand two hundred and sixty-four. Robert A. Jones received eleven thousand one hundred and eighty-one Joshua E. Davies received twelve hundred and twenty-one. Blank received fourteea Defective received three And so on vnth each one. {Add certificate as above.) 32 ir^Q SUPEEVISOKS' MANUAL. § 241. Statement. statement of the board of county canvassers of the county of Oneida, in rela- tion to votes given for members of assembly. The board of county canvassers of the county of Oneida having met at the ofSce of the clerk of said county, on the 10th day of November, 1885, to canvass and estimate the votes given in the several election districts in each of the several assembly districts of the said county, at a general election held on the 3d day of November, 1885, do hereby certify as follows, to-wit: That it appears on such estimate and canvass that the number of votes given for the office of member of assembly in the first assembly district of said county was eight thousand five hundred and sixty-nine, of which Benjamin Hall received two thousand nine hundred and eighty-eight. Charles K. Qrannis received two thousand seven hundred and thirty-four. Henry A. Steber received two thousand four hundred and seventy. Herbert S. Stoddard received three hundred and silty-five. Blank received seven. And so on with each one, (Add certificate as alxme.) All the above statements, except the certificate, are read through by the clerk, whereupon the following resolution, in writing, should be moved and adopted. Jtesohed, That the statement of the result of the general election held in this county on the 3d day of November, 1885, as read by the secretary, be, and the same is, hereby declared the official canvass thereof, and that the chairman and secretary be, and they are, hereby authorized and directed to sign and certify the same for record. Also the following resolution in writing should be moved and adopted. Besolved, That John Batchelor, by the greatest number of votes cast at said elec- tion for the office of sheriff was, and hereby is, declared duly elected to said office; that M. Jesse Brayton, by the greatest number of votes cast at said election for the office of county clerk, was, and hereby is, declared duly elected to said office; that {and so on with each county officer or mernher of assembly). The chairman and secretary should then sign the " Certificates " to the " State- ments " above. They should also sign and certify as foUows: §242. CEETIFICATE OF THE ELECTION OF COTJNTT OFFICERS. The board of county canvassers of the county of Oneida, having canvassed and estimated the votes given in the several election districts of the said county, at a general election held on the 3d day of November, 1885, hereby certify, deter- mine and declare That John Batchelor, by the greatest number of votes, was duly elected sheriff within and for said county. That M. Jesse Brayton, by the greatest number of votes, was duly elected county clerk within and for said county. That Theodore S. Comstock, by the greatest number of votes, was duly elected superintendent of the poor within and for said county. That Richard R. Jones and James E. Secor, by the greatest number of votes, were duly elected justices for sessions within and for said county. That Willis E. Millington, by the greatest number of votes, was duly elected coroner within and for said county. Elrctioks. 171 We certify this statement to be correct, and have caused the same to be attested by the signatures of the chairman and secretary of this board, this 13th day of November, A. D. one thousand eight hundred and eighty-five. FRANCIS A. WILLARD, Chairman. M. JESSE BRAYTON, Deputy County Clbrk and Secretabt. §243. CERTIFICATE OP THE ELECTION OP MEMBERS OF ASSEMBLY. The board of county canvassers of the county of Oneida, having canvassed and estimated the votes given in the several election districts in each of the assembly districts of the said county, at a general election held on the 3d day of November, 1885, do hereby certify, determine and declare That Benjamin Hall, by the greatest number of votes, was duly elected mem- ber of assembly in and for the first assembly district in said county. That Robert W. Evans, by the greatest number of votes, was duly elected mem- ber of assembly in and for the second assembly distri,c1> in said county. That Israel J. White, by the greatest number of votes, was duly elected mem- ber of assembly in and for the third assembly district in. said county. We certify this statement to be correct, and have caused the same to be attested by the signatures of the chairman and secretary of thi^ board, this 12th day of November, A. D. one thousand eight hundred and. eighty-five. FRANCIS A. WILLARD, Chairman. M. JESSE BRAYTON, DBPurr County Clerk and Secretary. A similar certificate for school commissioners, if any elected, should be made. These certificates are to be recorded in the county .clerk's office. A certified copy is to be delivered by the county clerk to each person elected. These certificates are evidence of the election of the persons therein declared to have been elected. 1 R. S. 366, S W. They are conclusive evidence thereof in every form in which the question could arise, except that of a direct proceeding in the nature of quo warranto to try the right to office. People T. Jones, 17 Wend. 81 ; People v. Tail, 20 id. 12 ; People y. Van Slyck, 4 Cowen, 297; People T. Ferguson, 8 id^ 102; People v Cook, 8 X. T. 67; People T. Livingston, 80 id. 66 ; People v. 'Willlaiu M. Thornton, IS N. Y. W. Dig. 280. and give the officers named therein, the right prima facie to take the office, exer- cise its powers and perform its duties and receive the emoluments thereof, until the certificate has been corrected or shown to be false by a judicial determination. People v. Livingston, 80 N. Y. 66-69. In such judicial determination, the court may go behind the certificate of the canvassers and even behind the ballot-box for testimony as to the intention of the voters. See cases cited above. § 244. When to Order Special Zllection.— When any county officer, proper to be chosen at any general election, shall not have been chosen by reason of a tie vote, it is the duty of the board of county canvassers to order a special election for the 172 Supervisors' Makual. election of such officers omitted to be cliosen. They shall, ■without delay, direct and cause to be delivered to the sheriff, clerk or county judge of the county in which such election is to be held, a notice specifying the officer to be chosen ; the time for which he is to be chosen, and the day on which snch election is to be held; which day shall not be less than twenty nor more than forty days from the date of such notice. Such notice is to be signed by the chairman, and clerk of the board. Laws of 1842, chap. 130, titles 2 and 3; 1 R. S. 879. § 245. Notice for Special Election. To THE Sheriff op the CoDNTr of Eenssklaek: Whereas, At the last general election held in said county of Rensselaer on the day of November, there was a failure to elect a person to fill the office of , by reason of a tie vote, and the board of county canvassers having duly ordered a special election for the purpose of filling the vacancy in such office, — Now, therefore, you are hereby notified, that a special election will be held in the county of Rensselaer on the day of November nezt, for the purpose of electing a person to fill the said vacancy in the office of , and t'' at said offi- cer will be chosen for years and till the 1st of January, 18 Datedj ete. A. B., Chairman, Board of County Canyabsebs. CD., Clerk, Board op County Canvassers. DIGEST OF DECISIONS. 1. As TO Inspectors of Election. ^ §246. Writing' on Printed Ballots.— The writing of a name upon a printed ballot in connection with the title of an office is a designation for that office of the name so written, al- though the printed name for which it is intended as a substitute be not erased. The writing prevails over the printed letters as the highest evi- dence of the voter's intention. People V. Saxton, 22 N. T. 809. § 247. As to Rejection ofVote by Inspectors, for Crime Committed by Voter.— Where a person offering to vote was challenged as a deserter, and after taking the preliminary oath, refused to answer questions upon that subject, and thereupon his vote was rejected, held that the inspectors acted without authority. Such rejection can only be upon proof by a duly authen- ticated record of the conviction. Goetchens t. Matthewson et al., 61 N. Y. 420. Elections. I73 The jurisdiction of inspectors of election, in questioning a person challenged, is limited to inquiries in reforcnce to his place of resi- dence and qualifications as an elector as prescribed by the Constitu- tion. Id. A board of election officers have no power to question the right to citizenship of one who has been naturalized as a citizen by a court of competent jurisdiction. 9 Abb. N. C. i65. § 248. Defective Ballots. All ballots which are so ir- regular, ambiguous or informal that they cannot be canvassed, are denominated " defective ballots." These must he preserved and attached to the statements of results, though they must not be counted in. Ballots may be defective in various ways, for example : If under the designation " For Governor," two or more names should be written or printed, or if under the designation of any office, more names than there are officers of the kind to be elected, should be placed on the ticket, then the ballot would be defective, or if several designations of office are united, as " For County Clerk and Coroners," the names attached to or in connection with sucb blended designations cannot be canvassed, and the ballot is de- fective. If the Christian or surname, or part of a name, only, is given, the ' ballot is defective. But v^^-Tcnown and established abbreviations, by which the meaning is as clearly conveyed as though the names had been written at full length, as Wm. for William, Jno. for John, Abm. for Abraham, etc., may be allowed, counted and returned as if written in full. "Where the name is misspelled, as Jacvh for Jacob, Jonson for Johnson, but so that the pronunciation is not varied, the ballot should be counted and returned as if spelled aright. Where there is a change or the omission or addition of a middle letter, or of Jr., or Junior, to a name, the vote, if. regular in other respects, should not be regarded as defective, but must be counted, and return thereof made separately from the others. Where tbere is reasonable doubt, that is, where two confficting constructions can be fairly given to the ballot, it is defective. A ballot may be defective as to one or more names or designations of office upon it, and, so far, not counted, while the remainder may 174 Supervisors' Manual. be regular and counted. The wTioU ballot should, in such case, be attached to the statement. Klection Code, p. 327; People t. Ferguson, 8 Cowen, 106; People v. Stevens, 6 Hill, €17; People V Cook, 8 N. Y. 80. Where votes are cast for "Henry F. Yates," for "H. F. Yates" and for "Frey. Yates" they cannot properly count for Henry F. Yates the votes cast for " H. F. Yates " or " Frey. Yates." Each should be returned separately. People V. Ferguson, 8 Cowen, 106. So votes cast for " Benjamin Welch, Jr.," " Benjamin C. Welch" and for " Benjamin Welch " must be returned separately, they can- not all be counted for " Benjamin Welch, Jr." People V. Cook, 8 N. Y. 67. So votes for " Andrew C. Getty " add ^' Andrew H. Getty " must be returned separately, not all counted for Andrew C. Getty or Andrew H. Getty. Kortz V. Board of Canvassers of Green Co., 12 Abb. N. C. 84. The original returns should be given to the supervisors. The inspectors of election should deposit the original election re- turns, not copies, with the supervisor. People V. Wise, 2 How. Pr (N. S.) 92. § 249. True Statement Must be Made.— It is the duty of the inspectors to make, in their return, a true statement of the result of the election in their district ; and, until they have done so, their duty is not discharged. It is not discharged by making a false or erroneous return. Their Duty Trhen Returns are Returned for Correction. — Where a return is remitted to a board of inspectors of election for correction, it is their duty to hold a con- sultation free from the interruptions and suggestions of others. Their action should not be influenced by outside pressure from friends of interested candidates. "When they deliberate, they should exclude spectators ; and, after a quiet conversation and consultation, they should affix their names to a statement showing the result of the poll. People, ex rel. Sanderson, v. Payne, 12 Abb. N. C. 108; 8. C, 2 Civ. Free. R. 452. They cannot Alter any Decision Made by Them. — The corrections to be made are only the corrections of derical mistakes, not to alter any decision before made by them. People V. Cook, 8 N. T. 85. Elections. 175 § 250. Returns Valid as to Facts Required to be Set Forth. — The returns are valid only so far as they are confined to the facts which the inspectors are required to set forth ; and if they go beyond these, and state other facts, such state- ments will be treated as mere surplusage. £x parte Heath and others, 3 Hill, i2. When but one person can be elected to an office and three persons are named on the same ballot, the ballot is void. People, earel. Hovey, v. Ames, 19 How. 551. An inspector of election is not bound to accept the decision of the poll-clerks and sign the returns as prepared by them. It is his duty and he has authority to examine, investigate and correct them. Boland v. People, 25 Hun, 423. An inmate of the Soldiers' Home at Bath is an inmate of an " asy- lum" within the meaning of the provision of the Constitution de- claring that for the purpose of voting no person shall be deemed to have gained or lost a residence * * * while kept at any alms-house or other asylum at public expense. Prior to coming to the Home, plaintiff was a resident and voter in New York city. Held, that he was not entitled to vote in the town of Bath. Silvey v. Lindsay, 107 N. Y. 55. See cases under §§ 351-255, post. 2. As TO Board of County Canvassers. § 251. Poorer of Canvassers. — The duties of the canvassers are mainly ministerial. They are to make their canvass from the certificate of the district inspectors, provided it is regular on its face, and delivered to the proper office within the time allowed by law. They cannot reject such certificate, nor ascertain the intent •of the voters by examining witnesses, or testimony of any descrip- tion except that which is in the certificate itself. Thus, when a re- turn of an election district, regular upon its face, signed by three persons as inspectors of election, who in fact had acted as such upon mistaken information, had been rejected by the county canvassers, on the evidence of a certificate of the town clerk that the persons acting were not inspectors, it was held that the canvassers had ex- ceeded their power in receiving such evidence, and that the return of the inspectors should have been admitted. People V. Cook, 8 N. Y. 67; People v. Jones, 17 W. 81 ; People v. Vail, 20 id. 12; People V. Van Slyck, 4 Cowen, 297; People t. Ferguson, 8 id. 102; People v. LiTingston, 80 N. Y. 66. 176 SuPEEvisoKs' Manual. They are to count what appear, on their face, to be the original returns, and which are apparently regular. People V. Board of Canvassers of Wayne Co., 12 Abb. N. C. 77; S. C, 04 How 334. See ante, "Defective Ballots." § 252. Cannot Correct Errors in Returns. — Section 15 of the statute above cited, which authorizes the county board to depute one of their number to return the certificates of the district inspectors to those oflSeers, to supply omissions and correct clerical mistakes, if any exist, and to adjourn in the meantime to allow the correction to be made, is all the correcting or revising power which the county board has over the district board. The cor- rections are to be made by the latter board, and are only to be cor- rections of clerical mistakes and not to alter any decision before made by them. 8 N. Y. 85. See ante, " Defective Ballots." The rejection by a board of county canvassers of an original return of an elec- tion district, upon aflBdavits that the duplicate or copy which had been filed with the clerk had been changed by the inspectors after filing and upon observing the original, as presented by the supervisor, contains a like change, is in excess of their powers and will be corrected by mandamus, although the majority of the board did not consider it to be the original. People V. Board of Canvassers of Wayne Co., 12 Abb. N. C. 77 ; S. C, 64 How. 834. § 253. Loss of Ballots.— The accidental loss of ballots in a single election district, even though it prevent a return from tiiat district, will not prevent the board of canvassers from completing their canvass or making their return on the votes cast in districts regularly returned. Heath's Case, 8 Hill, 42. § 254. When Po-wer Exhausted.— When the board of canvassers have completed their canvass and made their certificate their power is exhausted, and they cannot afterward reverse their decision and make a different determination. Hadley v. Mayor of Albany, 33 N. T. 603; People, ex rel. Gaige, v. Reardon, 9 Hun, 425. See next section. Where there is reasonable ground to believe that the return of a board of inspectors of an election district is not accurate, a man- damus will issue requiring the board of county canvassers to remit such return to the board of inspectors for such correction as they may see fit to make. People V. Board of Canvassers of Greene Co., 12 Abb. N. C. 95. Elections. 177 Such mandcmius will issue although the canvass has been com- pleted and a certificate of election granted to one who has already qualified for the office in dispute. Id. It is the duty of inspectors to make in their return a true state- ment of the result of an election in their district, and until they have done so their duty is undischarged. Their duty is not dis- charged by making a false return, nor do they thereby become functus officio. Id. The duplicate return of the inspectors of an election district, re- quired by Laws 1880, chap. 56, § 14, to be filed in the county clerk's office in the absence of an original return made by such in- spectors at the close of the election, is the return which the board of county canvassers are required to canvass. People V. Canvassers of Albany Co., 20 Abb. N. C. 19; S. C, 46 Hun, 390. Such duplicate being in the possession of the county clerk, who is ex-officio secretary of the board of county canvassers, is practically in the possession of the board ; and, in the absence of a proper origi- nal produced by the supervisor, should be canvassed as the original, under its control. And the board will be compelled to do so by mandamus. Id. After the inspectors have, on the day of election, made two proper statements, and have separated, and have filed one in the county clerk's office and one in the town clerk's office, a second return six days thereafter by two of the three inspectors and signed and de- Hvered to the supervisor, is not an original return, and the board of county canvassers will, after a reasonable time to make a proper can- vass of the duplicate in the county clerk's office, be restrained from acting upon or canvassing such second return. Id. See cases, §§ 246-354, 255. POWER OF COURT TO CORRECT ERRORS. § 255. Board of County Canvassers may be Compelled by Supreme Court to Correct Er- rors in Determination. — Whenever it shall appear by affidavit that errors have occurred in the determination of the board of county canvassers in any county in this State, the supreme court 23 178 SuPEEVisoBs' Manual. may, by order, require said board to correct such errors, or show cause why such correction should not be made, and in the event of the failure of said board to make such correction, or show cause as aforesaid, the said court may compel said board by writ of ma/iidamus to correct such errors; and if such board of county canvassers shall have made its determination and dissolved, such court may compel it to reconvene for the purpose of making such corrections. For the purpose of making such corrections as the court shall order, the meeting of the board of county canvassers shall be deemed a con- tinuation of its regular session, and the statement and certificates shall be made and filed as the court shall direct ; and so far as the same shall vary from the original certificates and statements, the statements and certificates made under the order of the court shall stand in lieu thereof, and shall in all places be treated with the same effect as if such corrected statement had been a part of the original required by law. §1, chap. 460, Laws of 1880: People v. Board of Canvassers of Wayne Co., 12 Abb. N. C. 11. At the close of an election held in the eleventh district of the town of Watervliet, the inspectors of election made and signed, in dupli- cate, two statements of the result of the election in that district, re- specting the votes cast for the office of senator, and delivered one of these statements to the town clerk and one to the county clerk to be filed, instead of delivering one of these statements to the supervisor of the town, and having a copy filed in the town clerk's office, as required by law. Six days thereafter, two of the inspectors made and signed what purported to be a copy of the original statements, but differing from them in that it was stated therein that Henry Russell received forty-five votes less, and Norton Chase forty-five votes more, for the office of senator, than was certified and deter- mined by the inspectors and set forth in the two original statements. Upon the hearing of an application, made under the provisions of chapter 460 of 1880, for a writ of mandamus to compel the board of canvassers of Albany county to canvass the statement of votes filed with the county clerk, and disregard the one filed with the su- pervisor, it appeared that the board of canvassers had laid the state- ment delivered to the supervisor before a committee of their body charged with making a preliminary statement of the votes cast at the election, and that the facts contained in the second statement were entered in a tabulated statement prepared by that committee for the final adoption of the board as their determination of the re- sult of the canvass. Held, that the inspectors were not possessed of Elections. 179 power or jurisdiction to make this change in the statement, and that the second statement was wholly invalid as an efficient and legal change of their first determination and statement. That a proper case was presented for the aid of the court in ju- dicially investigating the true nature of this second statement. That a mandamus should issue directing that the board of can- vassers should not canvass the returns as stated in this irregular paper, and that it should substitute the return filed in the county clerk's office for the said irregular return, and use the same in its further proceedings as the genuine return. People T. County Board of Canvassers of Albany Co., 46 Hun, 390. The remedy by writ of mcmdamus may only be resorted to where a clear legal right is made to appear, and there is no proper adequate or legal means to obtain it. When asked against public officers to compel the performance of an alleged public duty, the granting or refusing of the writ is some- what a matter of discretion. The relators, claiming to represent the united labor party of the city of New York, which party, they allege, polled more than fifty thousand votes at "the next preceding election," on proof that the board of police had refused to appoint inspectors of election of the political faith and opinion of that party, as required by the amend- ment of 1887 (chap. 490, Laws of 1887), of the consolidation act, applied for a peremptory writ of mandamus to compel such ap- pointment, which was denied. The record, on appeal to this court, showed that two other organizations claimed to be the sole and proper representatives of the voters who deposited the votes in ques- tion, and that they were entitled to the additional inspectors. Held, that the writ was properly denied ; that in the exercise of a legal and proper discretion, upon being satisfied from the record that there was an honest dispute as to material facts which should be deter- mined, the court was justified in refusing a peremptory writ, al- though the issues were in a strict and technical construction of the papers inartificially or loosely made up. An alternative writ was granted, to which two of the four mem- bers of the board made a return, the other two refusing to join therein. Held, that the return was properly received and enter- tained; that the court would not be driven into issuing a peremp- tory writ to guide the conduct of public officers charged with a public duty upon any narrow construction of a return to its alterna^ 180 SuPEKVisoEs' Manual. tive writ, where, from all the papers, it is seen that there is a sub- stantial and material issue of fact. People, exrel., v. Board of Police, 107 N. T. 235. At a charter election for city officers for the city of Binghamton, held on the 14th day of February, 1888, the board of inspectors of election in the second district of the fifth ward, in said city, con- sisted of the appellants, together with one Myron Kaught. Upon the closing of the polls the ward ballot-box, in which the ballots for aldermen were deposited, was opened before the box containing the votes cast for the city ticket was opened. The ballots were counted, and being found to exceed by one the number of votes shown by the poll-list to have been cast for the office of alderman, were returned to the box and one ballot was drawn therefrom. On opening the city box five ward ballots were found therein, which were, by the appellants, against the objection of Myron Raught, placed in the ward box, together with the one ballot which had been already drawn therefrom ; six ballots were then drawn therefrom, to make the same conform with the poll-list, and the ballots remaining in the box were again counted. The appellants, two of the said inspectors, there- upon made a return of the said ward election certified to by them, to the city clerk, showing the result of the second counting ; their associate, Kaught, refusing to join in making the same, insisting that such return was illegal and in violation of the provisions of the election law. This action of the inspectors changed the result of the election. Upon an appeal from an order of the Special Term granting a per- emptory mandamus, directed to the appellants and Myron Eaught, commanding the said board of inspectors to forthwith reassemble, meet and make, sign and deliver to the city clerk of Binghamton a full, true and correct return of the votes cast for the several candidates for alder- men in said second district, and that, in making such return, they do not take into account or include any action, or the result of any ac- tion, taken by them, or any of them, in regard to the ward ballot- box, or the ballots therein contained or placed, after they had opened the,city ballot-box of said second district. Held, that as the board of inspectors, upon making and filing its certificate, had fully discharged its official duty, and thereafter become functus officio as a board, a writ directed to them would be of no effect, and they would not be compelled by a mandamus to reconvene and recanvass the ballots. That as to the provisions contained in the writ commanding the board "not to take into account or include any action, or the result Elections. 181 of any action, taken by them, or any of them, in regard to the ward ballot-box, or the ballots therein contained or placed after they had opened the city ballot-box," the court found no authority for the ex- ercise of such a power, and was not willing to concede its existence, as it would establish a dangerous precedent in regard to a matter of the utmost importance to the people, and, in a government like ours, one fraught with incalculable mischief. SemUe, that the remedy of the relator was by quo warranto after the certificate of election had been given to his adversary and the office was in his possession. People, ex rel,, y. Keardon, 49 Hud, 425. § 256. Practice to be tlie Same as in Man- damus. — The practice in such proceedings in mandamus shall be the same as in cases of mandamus against a board of supervisors, and for the purpose of service of papers and other proceedings, the board of county canvassers, as organized and existing at the time of making the original canvass, shall be deemed a continuing board. Id., s 2. Broome County— Instructions for. — At a meet- ing of the board of county canvassers of Broome county, held at the office of the county clerk, November 10, 1885, the following preamble and resolution were unanimously adopted : " "Wheeeas, It appearing to this board by the returns of the sev- eral election districts that a great majority of them are incorrect, by reason of a misconstruction of the law relative to pasting and re- ■turning ballots upon the returns, causing great inconvenience and delay in canvassing, and incurring great expense to the county; therefore Sesol/oed, That the county clerk, as secretary of this board, be and he hereby is authorized and directed to formulate and publish for distribution annually to the inspectors of election of the several elec- tion districts of the several towns and wards of this county a pam- phlet of instruction setting forth and explaining the method and manner of returning and pasting tickets upon returns, in conformity with the law as construed by this board." In compliance therewith I have formulated the follovring instruc- tions, hoping thereby that the present law, upon which tlie instruc- tions are based, may be made to appear more plain to those upon whom devolves the important duty of making election returns. No portion of the Election Code has so puzzled the inspectors and clerks of election as that relating to "attaching" ballots to the re- turns. This seems to be due to the difference of opinion prevailing 182 SuPEEVisoBs' Manual. in nearly every board of inspectors, as to the meaning of the in- structions on page 331 of the Code, which read as follows : [" And so proceed with each kind of regular ballot received."] Had the codifier used the words " and so proceed with one oi each kind of all ballots received," it seems to us that the true intention of the law would have been set forth and been more readily understood, for it must be borne in mind that all hallots are regular that are not re- jected as defective. Section 723, at page 327, tells which are de- fective ballots, therefore the idea that by regular is meant only straight tickets is erroneous ; a split ticket is regular if not defective. By a careful reading of section 730, on page 333, of the Code, it will appear that one of each kind of the regular ballots found to have been given for the ofi&cers then to be chosen, must be securely attached to the statement, etc. Then follows the requirement of the law that " a statement must then be written, partly on such ballot and partly on the paper to which it is attached (as illustrated on page 331 of the Code), setting forth the whole number that were received corresponding with the one so attached. Therefore, keeping in mind what regular ballots are wlien we at- tach one of each kind and write partly on it and partly on the paper tQ which it is attached, the whole number received like the one at- tached, we have performed our task. That is to say, if we find fifty regular ballots of one kind, where the names are all the same upon it, no matter whether Republican, Democratic or otherwise, we attach one, and, complying with the law, say, " the whole number like this received was lifty. " Then finding forty of another kind with names all the same we attach one of that kind and proceed in the same manner, writing partly upon it the number received, viz., forty, etc., and so continuing with one of each kind where the names are found to be the same for the respective officers. In thus doing we have proved the statement made in the written portion of the returns as to how many votes each candidate received. It would be erroneous to attach all the split tickets, as supposed by some ; only one of each kind is required. Therefore we think, if the following rules are observed, they will be found of advantage in making proper returns of election : As the law distinctly says (§ 304, page 117), "The remaining ballots not so pasted or attached shall be destroyed," etc., the neces- sity for providing for emergencies is apparent. Therefore : 1st. Early in the day let some one of the inspectors secure of the tickets of the different parties, if possible, at least three for each name on it, together with some of the pasters of the several candi- dates, which will be found useful in making duplicate ballots for the balance of the returns in case one split of a kind only is found to have been voted. If pasters cannot be found, duplicate of the bal- lot voted can and should be made by erasing the name over which the paster is put and writing the name voted either above or be- low it. Elections. 183 2d. The back of each sheet of the printed returns will be found blank. On this blank space let the ballots for the officers mentioned in the printed portion of the sheet, if possible, be attached, then at the bottom of the page upon which the ballots are pasted put the usual certifl-cate and sign same, for it being part of the returns should be certified in the same manner as the rest. Avoid attaching ballots on the extreme back of the return, or in any manner so that they extend beyond either edge. Such precau- tions will prevent them being torn off by handHng. The practice of attaching ballots on the edge or margin of returns should be dis- continued. The practice of attaching one ballot, and opposite each name thereon writing the number received, is not correct, and should not be so returned. In attaching ballots the following plan may be followed, for in- stance : The straights of all parties having been separated from the splits, take : 1st. One of the straight Eepublican, of the box first canvassed, attach it and write partly on the ballot and partly on the paper the number of ballots received corresponding therewith, being the whole number of straight Eepublican ballots. Then, 2d. Take one of each kind of Eepublican split ticket, attach and say how many of each like that (that is, with the same names upon it for the same offices) were received; it may b? one or more. Having thus disposed of one party tickets, proceed in the same man- ner with the others. To further illustrate : For instance, you find among the splits ten of the straight Eepublican tickets, excepting, that ip place of the first name on the ticket the candidate of an opposite party is pasted, attach one of that kind, and say, whole number like this is ten ; then finding, for instance, three Eepublican tickets straight in every par- ticular excepting that the name of an opposing candidate is pasted over the second name, paste one of these and say whole number like it is three ; and so continue with the balance of that ticket, and with the spKts of other party tickets. Not forgetting to attach all ballots rejected as defective as re- quired by law, duplicates being made where necessary. If but one split appears, as in some instances, by use of the pasters and tickets procured as above suggested, duplicates for the other re- turns may easily be made. It can readily be seen that by a strict compliance with the above plan of attaching ballots, the county canvassers have before them the contents of every ballot-box in the county, and can easily prove by computation the written statement of the return, which to ns seems to have been the primary object of the law in having the ballots so attached. While it is claimed by some that the object of the law in having tickets so attached is to show the form and style of ballots voted, and while it may so operate, yet the fact that tickets were required 184 SuPEEvisoBS' Manual. to be so attached hefore the change in the law requiring tickets to be of certain prescribed size, color and type, is a su£5cient answer to such theory. It will be observed by the law, section 734, page 335, that the returns delivered to the supervisor and county clerk, respectively, are to be executed in duplicate, while that for the town or city clerk should be a certified copy. Section 735. The returns should be carefully compared to see that all are in every respect alike. The practice of simply copying the returns and not carefully comparing them is productive of many errors often occasioning delay and expense. The number of votes received is required to be written at length in the statement. This must be done, but the practice of setting opposite the number so written, the same in figures, in the column prepared for them, is a good one, and aids much in computation. It should not be forgotten that the law requires one of the returns to be dehvered to the supervisor and another at the county clerk's office, within twenty-four hours after the closing of the polls. CHAS. F. TUPPER, County Clerk and Secretary Board of Camvaasers. The author acknowledges his obligation to Mr. Tupper for a copy of the law as interpreted in his county. CHAPTER V. OF THE ASSESSMENT AND COLLECTION OF TAXES. POWEES OF THE LEGISLATUEE TO IMPOSE TAXES. Sbo. 257. 258. 259. 260. 261. 262. 263. 264. 267. 268. 269. 270. 271. 272. 273. 274. 275. 276. 277. 278. 279. 281. 282. 283. 284. 285. 286. 287. 289. 290. 291. 294. 2^5. 296. 297. 299. Property liable to taxation. Sbo. Land, real estate — what is. Flankroads and turnpike roads. State lands in Forest Preserre. Assessment of State lands for local improvements. Real estate of corporations. Lands sold by the State. Personal property. Debts owing to non-residents. Debts and obligations due or ow- ing residents of this State. Taxable personal property of cor- porations. Property exempt from taxation. Personal property of ministers of the gospel. Property exempt by law from exe- cution . Homestead not exempt from tax- ation . Agricultural society lands . Flankroads and turnpikes — toll- houses. Soldiers' monument associations. Firemen in incorporated villages. Cemeteries. Warner's Observatory. Indian reservations. Light-houses — lands ceded to the United States. Owner of stock. New York city bonds. Bonds, mortgages, etc., for collec- tion. Deposits in savings banks. Co-operative or assessment life in- surance companies. Registered vessels. Gas-light companies. United States securities. Town, city, village and county bonds. Where property to be assessed. Lands of corporations. Definition of land. Occupied lands. Divided by town or county line. How if boundary of town, city, etc., passes through dwelling- house or building. Occupancy defined. TJnocccopied lands. When the line between two towns, wards or counties divides a farm. Where personal property to be as- sessed. Personal property belonging to a resident of the State, in the hands of an agent. 24 300. Committee of the estate of a lunatic. 301. Where a person has two or more residences. 302. Personal estate of corporations. ^03, Duties of the assessors. 304. Assessment districts. 305. Inquiry to be made. 306. Time when an assessment is made. 307. Assessment-roll — residents. 308. Trustee, guardian, etc. 309. As to corporations. 310. Assessment-roll — non-residents. 311 . Duty of assessors, as to rents. 312. Duty of board of supervisors. 313. Debts owing for the purchase of real estate. 314. Agents of non-resident creditors to report to county treasurer. 315. Penalty for not making report. 316. Abstract to be sent to assessors. 317. Name and amount due to be entered on assessment-roll. 318. Unpaid taxes — how collected. 319 . Warrants therefor — how made out. 320. Lien of warrant. 321. Sheriff — how proceeded against for neglect to return warrant. 322. Proceedings when warrant returned unsatisfied. 323. Expenses of treasurer and assessors — how paid. 324. Yaluation of real and personal property. 325. Omitted lands. 326. Assessment-roll — deposit for in- spection — notice thereof. 327. Contents of notice. 328. Review day — reduction of valuation. 329. If assessors neglect to meet on re- view day, boarA of supervisors may review and correct assess- ment. 380. Assessment- roll — when to be com- pleted and delivered to the su- pervisor — oath to, by assessor. S31, Bolls to be delivered to town clerk, etc. 332. Boll to be delivered to supervisor. 333. Neglect of assessors. 334. Duties of the supervisors after de- livery of the roll. 835. Assessment-roll — ^ form of. 336. Tax on land vacant by removal of occupant. 337. Duties of boards of supervisors as to assessment-rolls — committee on form of assessment-rolls. 338. Form of report. S39-342. Committee on erroneous assess- ment. 186 Supervisors' Manual. Sec. 343. Correcting mistakes, manifest Sec. 364. Suits for neglect to pay. errors, etc. 865. Statement of arrears. 844. Form of report. 366. Rejected taxes. 345. Resolution confirming alterations 367. Taxes on lands imperfectly de- in the rolls. scribed. 346. As to State taxes. 368. Transcript to be delivered to super- 847. Refunding taxes. visor. 848. Overcharges. 369. Description of land to be made. 348}^. Overcliarges to be recharged to 370. If not made, tax assessed upon town. county. 371. How assessed in case of division of 349. Town to be liable therefor. town . 349}^. Tax to be extended. 372. Tax — when canceled. 350. Collectors fees not to be added. 373. Account to be transmitted to super- 851. Form of assessment-roll with tax visors. extended. 374. Comptroller may require correct re- 352-3. Assessment of lands — where one turns. person owns two or more sepa- 375. Duty of supervisors thereupon. rate, distinct and discounected 376. Where sales are invalid — tax to be pieces or parcels thereof. re-assessed. 354. Delivery to collector. 377. Purchase of land for benefit of 855. Warrant to be annexed — its con- county. tents. 878. Certificate of sale of lands bid in. 356. Cities. 379. Deed to and vesting of title in su- 857 . Account to be transmitted to county pervisors. treasurer. 380. Rejected taxes. 858 . Where collector neglects to qualify. 381 . Proceedings by supervisors in case 859. Where collector refuses to serve. collector neglects to pay over 859X. Collector's warrant — town col- money. lector. 382. Certificate of unpaid taxes. 360. Tax for road scraper, road machine, 383. Apportionment of State tax. etc. — noxious weeds. 384. Lands imperfectly described. 361. Board of supervisors may extend 885. Arrears — how paid. time. 386. Accounts with county treasurer. 362. Losses by certain officers — on 387. Suits for neglect to pay. what to be charged. 387X- Unpaid sonool taxes. 863. When supervisors to furnish map. 387%. Hignway labor not worked. In the preparation of this chapter, the author acknowledges his obligations to the excellent work, " System of Taxation," by Julien T. Davies, Esq. Po-wer of the Legislature to Impose Taxes, to Determine Taxable Persons, Property, etc. — The rule seems to be that except as restrained by the Constitution of the United States and the Constitution of the State, the power of the legislature is unlimited. The following cases show the decisions : The legislature has power to determine the amount of a tax for a local im.'pro'oement, and the property to be assessed therefor, and its action in these respects is conclusive. It may impose one portion of the cost upon one designated district and the balance upon another. Spencer v. Merchant, 100 N. Y. 585. It is the settled law of this State that the power of taxation and the apportionment of taxation are vested in the legislature, and are identical and inseparable ; that there is no constitutional restraint upon the exercise of that power, and that it includes the right and power of determining what portion of a pubhc burden shall be borne by any individual. Litchfield v. Vernon, 41 K. T. 123, 187, and cases cited. Of the Assessment and Collboxion of Taxes. 187 It is within the power of the legislature to impose a tax upon a locality for any purpose deemed by it proper, and this power is not restricted by the Constitution. Id.; People V. Brooklyn, i id. 42T; Horn v. Town of New Lots, 83 id. 100; People V. Equitable Trust Co., 96 id. 387; Thomas v. Leland, 24 W. 65; Pumpelly v.Vil- io^^j" n9f ^®S°' ** ^""^ ^^^' ^^°P'« "• ^'"gg- ^8 N. T. 405; In re Van Antwerp, OD id. 2ol . Its power, at least as regards the purposes for which it is to be exercised, is not without limit, and it is within the power of the courts to determine whether, in a particular case, the extreme boundary of legislative power has been reached and passed; it must be made quite clear, however, that the legislature has erred before the court can interfere with its action. Weismerv. Village of Douglass, 64 N. Y. 91. It has no power to authorize a municipal corporation to issue its obligations for the purpose of raising money wherewith to pay a subscription of said corporation to the capital stock of a private corporation, and to provide for payment of such obligation by taxa- tion ; it has not power to tax for private purposes only. Id. " The power of taxation " (of the legislature) " must be exercised for a ptiblic purpose. Spencer v. Merchant, 100 N. Y. 585-8 ; Cole v. La Grange, 113 U. S. 1. The power of apportionment is included in the power to impose taxes, and is vested in the legislature, and in the absence of any con- stitutional restrictions the exercise of it cannot be reviewed by the courts. Gordon v. Comes, 47 N. Y. 608. A tax imposed on a particular locality to aid in a public purpose, e. g., a normal school * * * inequality in the apportionment of the expenses, with reference to the benefits resulting respectively to the State and to the locality, cannot be alleged for the purpose of impugning the validity of the law. Id. The legislature cannot provide for a local assessment without no- tice to those affected, and the right to a hearing and an opportunity to be heard. It cannot dispense with all notices, but it may pre- scribe the kind of notice and mode in which it shall be given. Id. In order to invalidate a tax, it is not enough to show that it is op- pressive and unfair in its effect. People T. Supervisors, 36 Hun, 491. For a discussion and statement of the restrictions imposed by the Constitution of the United States and of the State, see " System of Taxation," by Davies, chaps. 1 and 2, and cases cited. 188 SuPERVisoBs' Manual. § 257. The Property Liable to Taxation— All lands and all personal estate, within this State, whether owned by individuals or by corporations, shall be liable to taxation, subject to the exemptions hereinafter specified. 2R. S. 981, SI. See Decisions, under § 259. § 258. Land, Real Estate, What is.— The term " land," as used in this chapter, shall be construed to include the land itself above and under water ; all buildings and other articles and structures, substructures and superstructures, erected upon, un- der or above, or affixed to the same ; all wharves and piers, includ- ing the value of the right to collect wharfage, cranage or dockage thereon ; all bridges ; all telegraph Hues, wires, poles and appurte- nances ; all surface, underground or elevated railroads; all railroad structures, substructures and superstructures, tracks and the iron thereon ; branches, switches and other fixtures permitted or author- ized to be made, laid or placed in, upon, above or under any public or private road, street or grounds ; all mains, pipes and tanks laid or placed in, upon, above or under any public or private street or place ; all trees and underwood growing upon land ; and all mines minerals, quarries and fossils, in and under the same, except mines belonging to the State. The terms " real estate " and " real prop- erty," whenever they occur in this chapter shall be construed as hav- ing the same meaning as the term " land," thus defined. 2 B. S. 981, thus amended hy chap. 293, Laws of 1881. See Decisions, under § 359. § 259. Plankroads and Turnpike Roads.— So much of such road and of the toll-houses, gates and other appurte- nances thereof constructed by virtue of the " act to provide for the incorporation of companies to construct plankroads, and of compa- nies to construct turnpike roads," as shall be within any town, city or village, shall be liable to taxation in such town, city or village as real estate. Chap. 210, Laws of 1847, §48. As to bridge companies, see post, § 397. See exemptions hereof, post, § 273. " The tunnels, tracks, substructures, superstructures, stations, via- ducts and masonry of the New York Central and Hudson River Eailroad Company, situated on and under Fourth avenue " in the city of NewTork, are laud within the meaning of the above statute. People V. The Commissioners of Taxes, 101 N. Y. 822; reversiDg 8. C. in 23 Hun, 687. Of the Assessment axd CoLLBCTioiir of Taxes. 189 As regards taxation it is immaterial whether a railroad is laid upon the surface, placed on pillars or carried through a covered way or tunnel ; the structures adapted to sustain it or facilitate and pro- tect its use are within the meaning of the statute defining land. Id. Where a lessee is the owner of the buildings upon the demised premises, the fact that the lessor has, by the lease, a right of re- entry in case of non-performance by the lessee, does not affect his present right to the buildings, or the right to assess them to him. In such case the buildings are real estate within the above statute. People T. Board of Assessors of Brooklyn, 93 N. Y. 308. The foundations, columns and superstructure of an elevated rail- way are included in the words "lands." and "real estate " as defined in above statute, and are taxable as such. People T. Commissioners of Taxes, 82 N. Y. 459 The term " lands " as used in this statute includes such an interest in real estate as will protect the erections or affixing and possession of buildings and fixtures thereon, though unaccompanied by the fee ; and such an interest, with the buildings and fixtures, may be assessed to the owner, although the fee in the land upon which it is laid is in another. People T. Cassity, 46 N. Y. 46. The track of. relators, consisting of stringers, ties and rails aSixed to the land, is real property. Id. Parties may, by contract, so regulate their respective interests in real estate that one may be owner of the buildings and the other of the land. In such case each interest may be assessed to its owner, and an assessment of the buildings as real estate is proper. People, ex rel. Mailer, t. Board of Assessors, 93 N. Y. 808; People, ex rel. Van Nest, T. Comra., 80 id. 573; Smith v. Mayor, 68 id. 552. A mere ^^ franchise" or " moorporeal hereditament" of any kind, is not taxable, except by special statute, but a pier constructed in the harbor of New York, upon lands belonging to the city, under a grant from it of the right to construct and maintain the pier, and to charge wharfage for its use, is land within the meaning of the above statute and liable to be assessed to the owner and taxed as such. Smith V. Mayor, etc., of New York, 68 N. Y. 552 The '^franchise" of a corporation is not within the tax laws, to be reckoned as realty. It seems that corporate franchises are not, on general principles, to be considered as real property. People, exrel. P. B. R., v. Comrs., 104 N. Y. 240, and cases cited. 190 Supervisors' Makital. Certain lands under water were granted by the city of New York reserving a portion of the land "for the use and purposes of pub- lic streets and highways," the grantee covenanting to erect a wharf, keep it in repair, and always to be used as a wharf, the grantee to have the wharfage. B.eld, that his interest was taxable as "land." People, exrel. Smith, v. Comra., 10 Hun, 207. The interest of a lessee for nine hundred and ninety years at a mere nominal rent, the estate then to go to the executor or ad- ministrator for distribution as personalty, held taxable as real estate. Elmirav. Dunn, 22 Barb. 402. Where a society whose real estate was exempted from taxation so long as its revenues were disposed of in accordance to the act incor- porating it, gave leases for twenty-one years, the lessees being re- quired to erect buildings thereon and pay rent and all ordinary taxes, held, that the buildings erected in pursuance of the lease were subject to taxation and properly assessed to ilie lessees as real estate. People r. Board of Assessors, 27 Hun, 559. A corporation organized under the act of 1873, chapter 737 ; 1876, chapter 415; 1877, chapter 171, providing for the formation of water-works compatiies, 'which has contracted with a town or vil- lage to furnish water for an agreed compensation, is not thereby constituted a governmental agency and its property is subject to tax- ation. People V. Forrest, 97 N. Y. 97. / In this proceeding, instituted to review an assessment made by the assessors of the village of Olean, upon the property of the re- lator, a foreign corporation doing business in said village, it was shown that its property, within this State, consisted of mains, pipes and tanks for the reception and distribution of natural gas, laid or located beneath, or upon the streets of the village under a grant from it, and that its business was the sale and distribution to con- sumers of natural gas for fuel and light, the company itself pro- ducing no gas of its own, but receiving under a contract with an- other company, its supply of gas from the pipe line of the latter company into its own mains at the village limits. From the return made by the assessors it appeared that the method adopted by the assessors, in arriving at the valuation in question, involved some estimate of the value of the relator's /rawoAise from the village ; of its contract with the company furnishing the gas, and of its income and the profits of its business resulting from that contract ; if not as parts of its property, at least as elements of the value of that property. Held, that the assessment was erroneous. People, ex rel. Kingston Gas Co., v. Martin, 48 Hun, 193. That the system of mains, tanks and service pipes, as well as a small lot on which the tanks stood, were required by chapter 293 of 1881, to be assessed as real estate, "at its full and true value," and Of the Assessment and Collection of Taxes. 191 that tlie value of the rights and privileges granted by the village to the company and of the contract with tlie other company, could not be considered m determining that value. Id. The referee appointed * * * before whom the hearing was had, actmg pursuant to the provisions of chapter 37, Laws of 1885, based his valuation upon the cost of furnishing and laying the gas mains and pipes, considered as an investment, held, that it was error to ap- ply the rule prescribed by that act to the valuation of real estate, as it applied only to personal property. Id. The lands of India/ii tribes were not subject to taxation under the Eevised Statutes, but such lands were taxable as "non-resident lands" when the Indian tribes, although actually occupying them, were so doing under a treaty which had extinguished their owner- ship. Fellows T. Dennistpn, 23 N. T. 420. A toU-hridge over a navigable river is properly assessed and taxed as real estate. Hudson K. Bridge Co. t. Patterson, 1i N. T. S65. § 260. State liands in Forest Preserve. CHAP. 280. AN ACT to provide for the taxation of forest land in the counties known as the Forest Preserve, Passed May 5, 1886; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Section 1. All wild or forest lands belonging to or which may hereafter be acquired by the State within the limits of the Forest Preserve as established by chapter 283 of the Laws of 1885, shall be assessed and taxed at a like valuation and at a like rate as those -at which similar lands of individuals within such counties are assessed and taxed, subject, however, to the provisions of this act. On or before August first in every year the assessors of the town within which the lands so belonging to the State are situated shall file in the oflace of the comptroller and in the oftice of the forest commis- sion, a copy of the assessment-roll of the town which, in addition to the other matters now required by law to be stated therein, shall state and specfy which and how much, if any, of the lands assessed are for- est lands, and also, and separately, which and how much, if any, of the lands assessed are lands belonging to the State ; such statements and specifications to be verified by the oaths of a majority of the said as- sessors. The comptroller shall thereupon, and before the first day of September following, and after hearing the assessors and the forest 192 SuPEKVisoRS' Manual. commission, if tbey or any of them so desire, correct or reduce any as- sessment of State land which may in his judgment be in iinfair propor- tion to the remaining assessments of lands within the town, and shall in other respects approve the assessment and communicate such ap- proval, and no such assessment of State lands shall be valid for any purpose until the amount of the assessment is so approved by the comptroller, and such approval attached and deposited with the assessment-roll of the town and therewith delivered by the as- sessors of the town to the supervisor of the town, or other ofScer authorized to receive the same from the assessors. No tax for the erection of a school-house or opening a road shall be imposed upon State lands, unless such erection or opening shall have been first ap- proved in writing by the forest commission. Payments of the taxes which may be imposed according to law and the provisions of this act, upon lands so belonging to the State, shall in every year be made by the treasurer of the State upon the certificate of the comptroller as to the lawful and just amount of such taxes, by allowing to the treasurer of the county in which any such lands may be situate a credit of the amount of such taxes due upon such lands, upon the amount payable by such county treasurer in such year to the State for State taxes ; providing, however, that no fees shall be allowed by the comptroller to the county treasurers in adjusting their accounts for such portion of the State tax as is so paid. § 2 . This act shall take effect immediately. See Comptroller's Instructions, § 351, post. § 261. Assessment of State It. Wardens, etc., St. James' Church t. Mayor, 41 Hun, 309. A similar decision was made in Washington Heights M. E. Church V. Mayor, a case also arising in New York city, by the general term in the same department. 20 Hun, 29T. In this case, the plaintifE, in the fall of 1868, began to erect a church, and in December, 1868, the corner-stone was laid. In June, 1869, it received a deed of the land. The tax was not confirmed until September, 1869. Held, that the property was exempt from the time plaintifE entered into possession and began to build a church. Id. In Association, etc., v. Mayor, in the court of appeals, the facts were, that on July 31, 1877, the plaintiff (an exempt institution) took title by deed, to land in New York city. The land was assessed and taxed for the year 1877, but the tax was not " confirmed " until Oc- tober, 1877. The plaintifE contended that because the tax was not " confirvied" until October, and it received its title July 31, that it was exempt for 1877. The court held, that it was not exempt. So that it may be considered settled that the time when a tax is " confirmed ' ' is not the date that fixes the taxable status of prop- erty, thus overruling the decisions in 41 Hun, 309, and 20 id. 297. But the court, in its opinion, uses the following language ; " From this review of the law it is seen that the initial steps to levy a tax commence in September of one year and are not con- cluded by the receipt of the tax warrants by the receiver of taxes until the September following, covering a whole year in the process. Even if real estate not on the annual record of assessed valuation at the time when the books are open for examination could be placed on, or if real estate that is on could be taken from the record up to the time of the closing thereof, in the following May, it is clear that no such alteration could be made after that date, and it is equally clear that the general scheme of taxation is to enter as assessable that property which is of that character up to the time when the record-book is open for examination. If then assessable, its charac- Of the Assessment and Oolleotion of Taxes. 201 ter would seem to be fixed for the year, but in any event, if assess- able and assessed at the time the books close, it must remain so for the purpose of taxation under the assessment-roll that is to be com- piled from the record of that year. There is no power anywhere after that to take real estate out of that record and out of the roll, because since the closing of the record the property has passed into the hands of an ibstitution exempt from taxation. The exemption must be held, in such a case as this, to be prospective in its opera- tion. There is no provision made for any amendment or alteration of the record after the first day of May, in regard to the assessment of property (with an exception that does not touch this case, § 820), and all subsequent proceedings are based upon the absolute stability of the record from that date, and the assessment-rolls are to be cor- rect and certified transcripts of the same. Upon this basis the taxes are carried out by the aldermen, and the rolls, with the proper war- rants annexed, are delivered to the receiver of taxes, and thus at no period of time intermediate the closing of the books on the first of May and the reception of the assessment-rolls and the warrants an- nexed thereto by the receiver, could any one legally drop this prop- erty from the assessment-roll. Whether or not the tax had become a lien at the time when the plaintiff took title is a fact of no mo- ment. It may be conceded that technically there was then no lien. For the reasons already given the property was, nevertheless, rightly on the roll and conld not be legally taken ofi', and the tax was properly laid and was payable by the plaintiff if it desired to clear its title to the property." Assn. for Colored Orphans v. Mayor, 104 N. T. 581-9 (decided March 1, 1887). The head-note of this case says as follows : " Held^ that as by the general scheme of taxation applicable to said city * * * the character of real estate for the purposes of taxation is fixed for the year on May 1, and if then assessable it remains so, and there is no power lodged anywhere to take it out of the record-book or the roll for that year, the tax was properly laid and was payable by plaintiff if it desired to clear its title ; and this without regard to the ques- tion as to whether the tax had become a lien when plaintiff took title." Id. The language of the head-note is stronger than the decision seems to justify, and is questioned in 51 Hun, supra, and not followed. Prior decisions in cases outside of New York county had fixed July 1 as the date fixing the status of property for taxable purposes, Mygattv Washburn, 15 N.T. S16; Clark v . Norton, 49 id. 243; Bell v. Pierce, Slid. 12-16; Overing v. Foote, 65 id. 263; Boyd v. Grey, 34 How. 328-332. and that on " review day" the assessors can only reduce not increase valuation, and that such reduction can be made only upon the tax payer's application, not upon the assessor's own motion. 49 N. T. 243, mpra; 96 id. 544. 26 202 SuPEKTisoBs' Manual. After the assessors have published the notice required (of the com- pletion of the roll) they are not authorized to add the name of & party to the roll simply by giving him verbal notice. Overing v. Foote, 65 N. T. 268. From a review of the cases, until further legislation or decisions are rendered, definitely settling the question, it is advised that July 1 be considered the date fixing the taxable status of property (out- side of New York county), uuless some special act governing a county exists, and that changes made in the title of property after July 1 be disregarded. If property is taxable or exempt on that day, so it should remain for that year. Local Improvements or Assessments.— Gener- ally speaking, the " exemption " referred to above, does not refer to assessments for local improvements, sewers, streets, highways, etc., Buffalo City Cemetery v. Buffalo, 46 N. T. 606; Eoosevelt Hospital v. Mayor, 84 id. 108; In re St. Joseph's Asylum, 69 id. 853; Hussan v. City of Rochester, 6T id. 528. even if it be State property. 67N. T. 528. It appears that exempt property should not be placed on the roll by the assessors. In re Second Avenue M. E. Church, 66 N. Y. 395-9. Query : Whether the assessors have power to assess exempt prop- erty for purposes of local improvement. 69 N. Y. 353; but see People, ex rel. Weatbrook, t. Trustees, 48 id. 390; 70 id. 476 ; 69 id. 353, 462. Rig-lit to Exemption may be Rescinded.— A statute stating that service in the militia should forever exempt from taxation to the amount of $500, is not a "contract," and the repeal of the statute took away the privilege although the service had been rendered. People, ex rel. Cunningham, v. Boper, 35 N. Y. 629. So when a hospital was exempted and a later statute made its property taxable, held properly subject to taxation thereafter. People, ex rel. Davies, v. Comrs.,47 N. Y. 501. So held of the Midland railroad, which was formerly exempted from all taxes, but by a later statute made taxable. Hewitt T. N Y. & 0. M. R. B., 12 Bl. 452; Stevens v. Same, 13 id. 104. See People, e rel. Sears, v. Assessors, 84 N. Y. 610. So an exemption to a railroad, Jield not to pass by mortgage of its charter, etc., or included in transfer of franchise to be a corporation to the purchaser at a judicial sale. Memphis B. R. v. Comr., 112 U. S. 609; Chesapeake & 0. B. B. v. Mills, 114 id. 176. Of the Assessment aijd Collectiok of Taxes. 203 PEOPERTY EXEMPT FROM TAXATION. Property Exempt from Tasation. — The follow- ing property shall be exempt from taxation 2R. S.982, |4. By the Constitution, etc. — 1. All property, real or personal, exempted from taxation by the Constitution of this State, or under the Constitution of the United States. Public Lands. — 2. All lands belonging to this State, or the United States. 2 B. S. 982, § i, subd. 1 and 2. Lands held for a governmental and public use are generally ex- empt. Subdiyision 2, above, is probably repealed. See chap. 191, Laws of 1878; chap. 140, Laws of 1879; People, exrel. Canajoharie Nat. Bk., V. Bd. Supervisors, 67 N. Y. 109. As to taxing State lands in Forest Preserve. See chap. 280, Laws of 1886, in full, ante. In the city of New Torli, the mint or branch mint, lands upon which the same are built, its buildings, machinery, bullion or money deposited, are exempt. Chap. 46, Laws of 1852. and the assay office, with its buildings, machinery, metal, bullion, coin, is exempt. Chap. 406, Laws of 1853. The property of a municipalUy, acquired and held for governmental and publie uses and used for a public purpose is not taxable, unless specially included. This exemption does not depend upon the origin of the title of the municipality, or the location of the property, but applies whether it was acquired by purchase or voluntary grant, or as the product of taxation, or whether the property is situated within or without the territorial limits of the municipality ; that the municipality uses the property as a ferry thrdugli lessees and derives revenue from the rental and not by its own operation of the ferry, did not make the franchise or the land- ing taxable. So held of a ferry between New York and Brooklyn where the assessors of Brooklyn had assessed the premises in Brooklyn used as a ferry landing place. People, ex, rel. Mayor, v. Assessors, 111 N. Y. 505. Where the city of Rochester, under a statute, imposing upon the city a system of water- works " for the use of the inhabitants and the extinguishment of fires,'' purchased lands and constructed a, reservoir in the town of Rush, — Held, that the work was to be regarded as executed for the public benefit and the property as held for public purposes, and in the absence of an express legislative decla- ration authorizing it, it was not taxable, and that a tax imposed thereon in said town was illegal and void. City of Rochester v. Town of Rush, 80 N. T. 802. 304 Sttpervisoks' Manual. But a private corporation, organized as a water works company, which has con- tracted to furnish a town or village with water, for compensation, is not exempt. See People t. Forrest, 97 N. Y. 97 ; § 258, ante. See, as to exemption of appraiser's warehouse in New York city, Chap. 129, Laws 1889. and of certain lands for " aid of navigation in the East river," Chap. 445, Laws 1889. College, Churches and Seminary Buildings. — Every building erected for the use of a college, incorporated academy, or other seminary of learning, and in actual use for either of such purposes, every building for public worship, every school- house, court-house and jail used for either of such purposes, and the several lots ■whereon such buildings so used are situated, and the furniture belonging to each of them. 2R. S. 982, §4, subd. 3. In New York city the use must be exclusively for piiblic worship. Consolidation Act, § 827, chap. 282, Laws 1852. The Toung Men's Christian Association, in N. Y. city, formed for the improve- ment of the spiritual, mental and social condition of young men by means of ser- mons, libraries * * » and other incidents, such as lectures, gymnasium, con- certs and other entertainments, owned and exclusively occupied a building in that city containing twenty-two rooms, one only of which was used for public wor- ship, and that not exclusively, as it was also used for lectures. Held, that thiB building was not exempt. Toung Men's Christian Assoc' n v. Mayor, 113 N. Y. 187. Lands owned by a corporation, the object of whose corporation is " to provide and maintain a place of refuge for colored orphans, where they shall be boarded and suitably educated," and by the " house rules *' religious services are required to be held once a day each Sunday and on certain other days specified, but no visitors to be admitted Sunday except under pressing circumstances. Held, an " alms-house," and exempt. It is not a "school-house" nor a " building for public worship." An ' ' alms-house " is not necessarily such as are the property of the public, and used and controlled by the public authorities as receptacles for public paupers. Ass'n for Colored Orphans v. Mayor, 104 N. Y. 581. Where the upper story of a building in New York city is used exclusively as a synagogue, while the lower story contains the living apartments of the janitor, bath-tubs, accessible for a pecuniary consideration * * * \)y all Jews, whether ■worshippers at that synagogue or not, it is not exempt. Congregation Kol., etc., v. Mayor, 5 N. Y. Sup. 608. A church edifice, erected and used for purposes of religious worship, and subse- quently sold under a judgment of foreclosure to a party who, for a time, during which certain taxes are levied upon the property, allows it to be used tor public worship, is not exempt. The law was intended to benefit church societies and corporations, and as no religious society can be benefited by the exemption of the Of the Assessment awd Collection of Taxes. 205 property in the hands of a private individual, he cannot maintain an action to have the taxes declared void. Black V. Brooklyn, 51 Hun, 681. In order to he exempt, the title to the property must be in the church, college, etc. People, exrel. Swigert, v. Anderson, 7 N. E. Rep. 625. Contra, Church of St. Monica v. Mayor, 55 Super. Ct. (J. &S.)160- S. C. 13 N y. State Rep. 808. / , . • Real estate rented by a religious society is not exempt. Hebrew Free School t. Mayor, 99 N. T. 488. Lands set apart as a situation for a church to be built are not exempt, nor do lots used for a cemetery become exempt by the erection on them of a burial chapel. Trinity Church v. Mayor, 10 How. 138. A " vacant lot" is not a "building for public worship" however appropriately dedicated to be used for the erection of such a building; neither is a chapel erected for religious services at interments in a cemetery. Id. A "parsonage," although it stands on the same real estate as the church, front- ing on the same street and only separated by a narrow space, is not exempt. People, ex rel. Hutchinson, v. Colllson, 22 Abb. N. C. 52. An incorporated academy or seminary of learning does not waive or forfeit the exemption from taxation by leasing the building and" premises used by it as a boarding-house, during the usual summer vacation . Temple Grove Seminary v. Cramer, 98 N. Y. 121 ; affirming S. C, 26 Hun, 309. The word " scJiool-house" refers only to such buildings with the sites upon which they are situated, as the district would have been compelled to pay a tax upon as owner, had it not been for the exemption created by the statute . People T. Board of Assessors of Brooklyn, 82 Hun, 457 ; affirmed, 97 N. Y. 648. Where the board of education leased for school purposes a building thereupon used as a dwelling-house, held not exempt. Id. A building erected for the use of and occupied as a private boarding school is not exempt from taxation. Chegaray v. Mayor, etc., of N. Y., 13 N. Y. 220; and see Association v. Mayor, 104 id. 581-4. \ The school-houses referred to in this statute are those used for the public com- mon schools. Id. Buildings erected and used for private unincorporated seminaries of learning are not exempt from taxation. Id. See, also, People v. Campbell, 93 N. Y. 196. Contra, Church of St. Monica v. Mayor, 55 Super. (J. & S.) 160 j S. C, 13 N. Y. State Rep. 308. Where premises of. a parochial school were held exempt, and that incorpora- tion was not necessary therefor. Poor-Houses, Aims-Houses, etc.— 4 Every poor- house, alms-liouse, house of industry, and every house belonging to 206 SuPBKVisoRs' Manual. a company incorporated for the reformation of offenders, or to im- prove the moral condition of seamen, and the real and personal property used for such purposes belonging to or connected with the same. 2B. S. 982, §4, snbd.4. Every poor-house, alms-house or other place provided by any city, town or county, for the reception and support of the poor, and all real and personal property whatever belonging to or connected with the same, shall be exempt from all assessment and taxation levied either by the State or by any county, city, town or village. SR. S. 186r, §72. See 104 N. T. 581, last above. "The Home for the Friendless," organized to prevent vice and moral degrada- tion by the publication and diffusion of books, papers and tracts, and by other moral and religious means, and for maintaining houses of industry, etc., is ex- empt. In re Mary R. Miller, 26 N. Y. W. Dig. 187. The building of a corporation organized for the gratuitous medical and sur- gical relief of the poor and used as a hospital for indigent sick and as a dispen- sary for the relief of the poor, no fee or return being exacted, is exempt. Western Dispensary v. Mayor, 4 N. T. Sup. 547 ; but see People v. Campbell, 93 N. Y. 196. The property owned by a charitable corporation used for taking care of found- lings and other infants, and also containing lying-in wards, are exempt. New York Infant Asylum v. Supervisors of Westchester County, 31 Hun, 116. Buildings owned by an incorporated society and used for the custody, educa- tion and employment of dependent, destitute and friendless children, is a house of industry and exempt from taxation. Hebrew Benevolent Orphan Asylum v. Mayor, etc., of New York, 11 Hun, 116. Where an exempt institution leased its lands, with covenants of renewal, the lessor having the privilege, at the expiration of term, to resume possession upon paying lessees the appraised value of the buildings erected by them on the land, lessees to pay ordinary taxes, the lands of lessor being exempt, — Hdd, that the buildings erected by lessees were not exempt. People V. Assessors, 93 N. Y. 308 ; see 27 Hun, 559. Where relator was incorporated ' ' for the purpose of affording pecuniary and other relief to such persons, natives of Switzerland, or of Swiss origin, as may be in the United States and in need of assistance," and purchased real estate " to give a temporary home, asylum and relief to the sick, necessitous and others who may be proper objects of its bounty, in accordance with its charter," — Held, exempt. People, ex rel. Swiss Benev. Society, v. Comrs., 36 Hun, 811. The edifice of a corporation created for the relief of a class of poor and needy persons, and used exclusively to give a temporary home, asylum and relief to the sick and necessitous, the corporation deriving no income from the premises and Of the Assessment and Collection of Taxes. 207 constantly relieving persons who would otherwise be likely to become a public charge, is an alms-house and exempt. Id. X]:*ies. — 5. The real and personal property of every public library. A society incorporated for the encouragement of geographical science, and the agres, etc., for Collection. — When any bond, mortgage, note, contract, account or other de- mand, belonging to any person, not being a resident of this State, shall be sent to this State for collection, or shall be deposited in this State for the same purpose, such property shall be exempt from tax- ation ; and nothing contained in this chapter shall be construed to render any agent of such owner liable to be assessed or taxed for such property ; but every such agent shall be entitled to have any such property deducted from his assessment, upon making affidavit before the assessors at the time appointed by them for reviewing their assessments, that such property belongs to a non-resident owner, and therein specifying his name and residence. 2 K. S. 1049, § 3 ; Williams t. Bd. of Supervisors, 78 N. Y. 562. §283. Deposits in Savings Banks.— The deposits in any bank for savings which are due to depositors, and the accu- mulations in any life insurance company organized under the laws of this State, so far as the said accumulations are held for the exclusive benefit of the assured, shall not be liable to taxation, other than the real estate and stocks which may be owned by such bank or com- pany, and which are now liable to taxation under the laws of the State. Chap. 456, Laws of 1857. See § 406, post. § 284. Moneys, Relief, etc., of Life or Casu- alty Insurance Upon the Co-Operative or As- sessment Plan, Wben Exempt. See post, ' ' Corporations . " §285. Regr^S^^^^d Vessels. — All vessels registered at any port in this State, and owned by any American citizen or asso- ciation, 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 cor- porations, 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 for the period of fifteen years. Chap. 433, Laws of 1881. 314 SupEKVisoEs' Manual. §286. Gas-light Companies. — Such companies or- ganized under chapter 37, Laws of 1848, may have their persoTial property exempted from taxation for not exceeding three years from their organization by the city, town or village authorities wherein such companies are located. § 18, as amended by chap . 95, Laws of 1871 . §28?. United States Securities.— AH stocks, bonds, treasury notes, and other obligations of the United States (which include all bonds, certificates of indebtedness, national currency, coupons, United States notes, treasury notes, fractional notes, cer- tificates of deposit, bills, checks or drafts for money drawn by or upon authorized officers of the United States, stamps and other rep- resentatives of value of whatever denomination, which have been or may be issued under any act of congress), are exempt. 2U. S. R. S_., §§ sroi and 5413. § 288. Town, City, Villag-e and County Bonds. — All bonds of towns, cities, villages and counties isBiied under the provisions of chapter 316, Laws of 1886, and prior acts, chapter 522, Laws of 1881, and its supplements are exempt until the period when they are made payable. For Exemption of Corporations, see post, chapter VI. WHERE PROPERTY TO BE ASSESSED. § 289. Irel. MuUer, v. Board of Asseaaors, 93 N. Y. 308, and casea cited ; People, ex rel. Van Neat, v. Comra., 80 id. 573. § 292. Occupied Lands. — Lands occupied by a person other than the owner may be assessed to the occupant, as lands of non-residents, or if the owner resides in the county in which such lands are located, to such owner. 2 R. S. 989, I 2, aa amended by chap. 152, Laws of 1878. See Decisions, g§ 293, 295-9, 801, 308, 310. A tax sale of lands under an assessment to a person other than the owner or occupant, is invalid. Zink T. McManus, 49 Hun, 583. This act has no reference to lands divided by a town or county line in respect to the place of taxation. People, ex rel. Vanderveer, t. Wilaon, 5 N. Y. Sup. 280. See this case more fully set out in next section. The assessors have no jurisdiction of the person of a non-resident of the county whereby they can lawfully initiate a charge against him personally for a tax be- cause of lands owned, but not occupied by him in their town. Hilton V. Fonda, 86 N. Y. 339. Persons may be assessed in the town of their residence for lands owned and occupied by them therein, or owned by them therein and wholly unoccupied; or occupied by them therein and owned by another; or for adjoining lands, part of a farm or lot occupied by them in another town; and in another town of the county of their residence, for lands owned by them in that town. Id. 316. It is only when there is occupation of a tract, or part of it, by a resident of the town, that the assessment may be made against the name of a person and then the name used must be that of the occupant resident in the town or of the owner resident in the county. Id. 347. If lands in a town owned by one not a resident of the county are occupied by a person other than the owner, they may be assessed to the occupant. Id. Where the owner is a non-resident of the State, the land situated in and occu- pied by one S., a resident of the town, who used the land for the storage of lum- ber, held, that the sole jurisdiction of the assessors was to value the land against the resident occupant, and so initiate a charge upon him personally. They had no jurisdiction to value the lands against the owner, since he was a non-resident, nor could they be assessed as non-resident lands since they were not unoccupied. Stewart t. Cryaler, 100 N. Y. 378. 216 SuPEEVisoKs' Manuai. § 293. Divided by Town or County Line.— When the line between two towns, wards or counties divides a farm, or lot, the same shall be taxed, if occupied, in the town, ward or county where the occupant resides; if unoccupied, each part shall be assessed in the town, ward, village or county where the same shall lie. 2 R. S. 989, as amended ty chap. 815, Laws of 1886. See Decisions, §§ 293, 295-9, 301, 308 310. Where a fann, the whole of which is occupied, and which lies partly in each of two adjoining towns, is assessed by the assessors of the town in which the oc- cupant does not reside, the assessment and tax founded thereon are illegal and void, and the assessors are personally liable for damages resulting therefrom. Dorn T. Backer, 61 N. T. 261; Dorn t. Fox, id. 264. The whole farm should be assessed in the town in whicn tne occupant resides. Eelator owned a farm which was intersected by a town line, and lived with his father on an adjoining farm, owned by the father and wholly within another town. Work was done on relator's farm with the father's teams and tools, and the father's cows were pastured there, but milked on his own farm. Produce was brought from relator's farm to that of the father, where the teams were kept. MM, that relator's farm was " occupied" jointly by the father and son, and tax- able in the town where the father and son resided. People, ex rel. Dixoa, t. Gaylord,5 N. Y. Sup. 348. S. C. 62 Hun, 335. Relator owned a farm consisting of a single tract, a part of which is in the town of F., a part in the town of B. and a part in the city of Brooklyn, on which latter portion he resided. Mdd, properly assessed in Brooklyn. People, ex rel. Vanderveer, v. Wilson, 6 N. Y. Sup. 280. S. C. 52 Hun, 885. When the part of the farm lying in each town was assessed in such town a bill of interpleader will lie by the owner of the farm against the two town collectors holding the warrants for the collection of such taxes. Dornv. Fox, 61 N. Y. 264. And in such a case where the taxes had been collected a mandamus will lie against the board of supervisors to compel them to ascertain the amount that the owner should recover back. People V. Supervisors of Essex Co., W N. Y. 229. § 294. HoTT if Boundary of Town, City, etc., Passes Tbroug*!! Dwelling-House or Build- ing. Section 1. In all cases where the boundary line of a town or city, or the boundary line between two towns in the same or in different counties, passes through any dwelling-house or building, which, to- gether with the land on which it stands and owned in connection therewith, shall be assessed at the same time in both said town or city, or in both said towns in the same or in different counties, and Op the Assessment and Collection of Taxes. 217 taxes levied thereon, which shall remain unpaid by the owner or oc- cupant in both said town and city, or in both said towns in the same or in different counties at the time of the passage of this act, it shall be lawful for the occupant of such house or building to elect as his place of residence either said town or city, or either of said towns in the same or in different counties, and said house or build- ing, and the adjacent land owned and occupied in connection there- with, shall be assessed and taxed only in the town or city which the occupant elects as his place of residence, and snch residence shall re- main as fixed by said election. § 2. The occupant shall cause to be served upon the assessors, or upon one of them m both said town and city, or in both of said towns in the same or in different counties, at least thirty days prior to the date fixed by law for the date of assessment, a written notice of his said election, together with a copy of this act, or his said elec- tion shall be invalid. Said election shall be final and conclusive upon said owner or occupant. § 3. In all cases where taxes have been heretofore levied in more than one place, town or city, upon the same real property which was or is intersected by the boundary line of a town or city, or the boundary line between two towns in the same or in different counties, and remain unpaid by the owner or occupant at the time of the pas- sage of this act, payment of said taxes shall be enforced by that place, city or town only which the occupant shall elect as his place of resi- dence pursuant to sections 1 and 2 of this act. § 4. This act shall take effect immediately. Chap. 342, Laws of 1883, as amended by chap. 59, Laws of 1886. Held, that this act authorizes tax payers to elect in which of two towns they will pay school taxes. Report of Supt. Pub. Inst, for 188?. ' § 295. The occupancy spoken of in the statute refers to the possession of some individual or individuals, who might themselves be taxed in respect to the land. When neither an Indian tribe or the individual Indians were liable to be taxed, but are in possession of land, such possession does not answer any of the pur- poses of the " occupancy " referred to in the act. Such lands would, therefore, be properly assessed as " non resident." Fellows T. Denniston, 23 N. Y. 420-436. An assessment to "Joseph Foster or occupant " is void. Dubois T. Webster, 1 Hun, 371. § 296. Unoccupied Lands.— Unoccupied lands, not owned by a person residing in the ward or town where the same are 28 218 SupEEvisoEs' Manual. situated, shall be denominated " lands of non-residents," and be assessed as hereinafter provided. 2R. S. 989, I 2. See Decisions, §§ 293. 293, 295-9, 301, 308, 310. § 29T. When the line between two towns, wards or counties divides a farm. See ante, % 293. § 298. TVliere Personal Property to be As- sessed. — Every person shall be assessed iu the town or ward where he resides when the assessment is made, for all personal estate owned by him, including all personal estate in his possession or under his control as agent, trustee, guardian, executor or administrator, and in no case shall property so held, under either of those trusts, be as- sessed against any other person ; and in case any person possessed of such personal estate shall reside, during any year in which taxes may be levied, in two or more counties, towns or wards, his residence, for the purposes and within the meaning of this section, shall be deemed and held to be in the county, town or ward in which his principal business shall have been transacted ; but the products of any State of the United States consigned to agents in any town or ward of this State, for sale on commission for the benefit of the owner thereof, shall not be assessed to such agents, nor shall such agents of moneyed corporations or capitalists be liable to taxation under this section for any moneys in their possession or under their control, transmitted to them for the purposes of investment or otherwise. Id. 939, §5. See ante, % 267, and Decisions, §§ 292-8, 301, 308, 810. § 299. Personal property belonging to a resident of this State, iu tlie hands o( an agent iu another county and which is subject to the order and control of the owner, is taxable to him at his place of residence and not to the agent. Boardmau v. Supervisors, 85 N. T. 359. It seems that the plan of taxation is to reach all personal property iu the State, save as excepted, by assessing the owner at his home if in the State, the beneficial owner iu the person of his trustee, and the non-resident through his agent. Id. § 300. The committee of the estate of a lunatic is not an agent or trustee within the meaning of the above statute. It seems that the personal estate of a lunatic should be assessed to the lunatic, at his place of residence. People, ex rel. Smith, v . Comrs., 100 N. T. 215. See Decisions under § 267, ante. The assessment is properly assessed to the "agent " without the addition to his Op the Assessmekt and Collection op Taxes, 219 name of his representative character, but as to trustees, guardians, executors or administrators, see § 308. Feop\e,exrel. Hofieman, v. Bug, 13 Abb. N. C. 169. Where intestate, a non-resident, died in another State, leaving personal estate and debts here, Tidd, his administrator was taxable here. In re McMahon, 67 How. 113. When personal property of testator dying in New York city and whose will was probated there, hdd taxable in New Tork city, although one of his executors who had actual control and possession of the property, resided in another State, the other executors being residents of New Tork. People, ex rel. Campbell, v. Comrs., 38 Hun, 536. The treasurer of a county is not a ' ' trustee " within the meaning of this act. People, ex rel. Brodie, v. Cox, 14 State Eep. 632. Nor a court officer holding funds in custody. In re KilUnger, 9 Paige, 62. Upon the hearing of an application to correct an assessment of $375,000 for personal property, made by the commissioners of taxes of the city of New York against the relators John Duer and Julia Hallgarten, as executors of the estate of Adolph Hallgarten, it was shown that the relator resided in the city of New York; that John Duer resided in the county of Richmond, and that Julia Hallgarten resided in Germany; that part of the property of the estate consisted of rail- road bonds, registered in the names of all three executors, and of bonds and mortgages taken in their names, and of bonds registered in the name of the de- ceased, all of which were deposited in a safe deposit vault, in a box or safe, rented by said deceased during his life-time and still standing in his name, though the rent had, since his death, been paid by his executors. The commissioners cor- rected the roll by striking out the names of the two executors not residing in the city of New York, leaving an assessment for the full amount as against the relator. Hdd, that the property was in the possession of the relator, or under his con- trol as executor or trustee, within the meaning of section 5 of 1 Revised Statutes (6th ed.), 934, and that an assessment for the full value thereof was properly im- posed upon him. People, «i; «2. Neustadt, t. Coleman, 42 Hun, 581. See People, eaj rsZ. Caswell, T. Comrs., 11 Hud, 293. Property in a receiver's hands, held liable to tax. Stevens V. N. Y. &0. M. E. R., 13 Blatchf . 104. When an infant's estate is vested in executors and trustees, none of whom re- side in the county, liM, his guardian could not be assessed therefor. Douglass V. Supervisors, 1 N. Y. Sup. 126. § 301. Wbere a Person Has T-^o or More Residences* — In such cases, it is sometimes difficult to deter- mine where he should be assessed. The statute of 1883, chaptei" 392, answers for most cases. Ante, § 266. The residence of a person for the purposes of taxation, is where he exercises 230 Supervisors' Manual. his political rights, such as voting for public officers, and discharges his political duties, such as paying taxes for the support of the government. Hitt v. Crosby, 26 How. 413. But if a non-resident of the State comes into this State, intend- ing to become a resident thereof, and buys both a city and a country residence, situated in different tax districts, a difficult question arises as to taxing his personal property. The following decisions may as- sist in determining the question. A person was assessed in West Seneca for his personal property, who lived the greater portion of the year in Buffalo, both places being in the same county but in different tax districts . He had a summer residence in West Seneca, which he occupied with his family in the hot summer; the rest of the year he lived in Buf- falo, where he personally carried on and superintended a foundry business, going to West Seneca at night, returning to Buffalo mornings, but occasionally sleeping in Buffalo. On July first, he was living with his family in West Seneca and assessed by the assessors in West Seneca. Held, that he was properly assessed . Bell V. Pierce, 51 N. Y. 16. See, also, Chaine v. Wilson, 1 Bos. 6Y8; Douglas v. Mayor, 2 Uuer, 110 ; Bartlett v. City of New York, 5 Sandf . 44 ; In re Nichols, 64 N. Y. 62. 52 Hun, 13. Where plaintiff's place of business was in New York city and during the winter months he resided there, though during the summer months he resided else- where. Held, taxable in New York. Bartlett v. Mayor, 5 Sandf. 44. Belator, executrix of her husband's will, after his death in New York city in Feb- ruary, removed to her summer residence in the country, taking with her her house- hold servants. The city house was closed but not abandoned. In the autumn, they returned thither and remained during the winter. Held, a case of double residence, so as to make the personalty of her husband's estate in relator's hands taxable in the city, unless she transacted business elsewhere . The country resi- dence stood on about ten acres. Relator maintained the place, employing some nine servants in and about the house and grounds, not cultivating the ground for gain, nor traflScking in its products, but consuming some part of them in her own household. Held, not a transaction of the business of farming. People, ftc rel. Taylor, v. Comrs., 3 N. Y. Sup. 674. During June, July and August, an owner of property resided in a town. HM, that assessors had jurisdiction to assess him. Boyd V. Gray, 34 How. 323. §303. Personal Estate of Corporations. — All the personal estate of every incorporated company, liable to tcmation on its capital, shall be assessed in the town or ward where the prin- cipal 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 town or ward where the operations of such company shall be carried on. In the case of toll-bridges, the company owning such bridge shall be Of the Assessment and Collection of Taxes. 221 assessed in the town or ward in which the tolls are collected ; and where the tolls of any bridge, turnpike or canal company are col- lected in several towns or wards, the company shall be assessed in the town or ward in which the treasurer, or other officer authorized to pay the last preceding dividend, resides. 2R. S. 990, §6. See post, "Corporations," Chap. VI. The provisions above as to bridge, turnpike and canal companies relate to the personal, not the real, estate of such companies. Id. DUTIES OF THE ASSESSOES. §303. Of the Assessors.— The officers chosen or ap- pointed to take the initial steps in collecting means for the support and expenses of government are the assessors. Before^ entering upon their duties, they must take the oath of office, and file the same in the town clerk's office. See Decisions, §§ 257-303, 304-336, 339, 343, 351, 353, 388-413. The purpose of the statute is to include all taxable property, dogs, etc. In cities, particularly, the assessors assume that, because there can be no application of the fund created by the tax on dogs to the payment of any sheep killed, they need not assess therefor, and whoUy ignore the law in that particular. It is as much their duty to assess dogs as it is real estate or any other property. Their duties cease when they have properly complied with the law and have as- sessed all, that the legislature has made taxable. They are not re- sponsible for the uses to be made' of the taxes collected, nor is it any of their duty to inquire whether dogs or any other property should equitably be assessed. The legislature says that dogs are to be assessed iy the assessors, and they have no right to ignore this re- quirement. §304. Assessment Districts.— The assessors chosen in each town or ward may divide the same by mutual agreement into convenient assessment districts, not exceeding the number of assessors in such town or ward. 2 R. S. 990, % 1. Although this division into districts may be made for convenience, yet one assessor cannot make the assessment or valuation ; it is the joint act of aU, or at least of a Tnajority of the assessors. All that 222 Sdpervisoes' Manual. is done by the assessors in taking down the nanaes and entering descriptions and amounts in their respective districts, previous to the first of July, is merely obtaining the information preliminary to the assessment to be made when all the assessors meet in July and ex- amine and correct and alter such memoranda when they make out the assessment-roll. People, ex rel. Mygatt, y. Supervisors, UN. Y. 571, 572. §305. Inquiry to be Made. — Between the first days of May and July, in each year, they shall proceed to ascertain, by diligent inquiry, the names of all the taxable inhabitants, in their respective towns or wards, and also all the taxable property, real or personal, within the same. 2R. S. 990, §8. Penalty for Making False Statement.— A per- son, who, in making any statement, oral or written, which is re- quired or authorized by law to be made as the basis of imposing any tax or assessment, or of an application to reduce any tax or assess. ment, willfully makes, as to any material matter, any statement which he knows to be false, is guilty of a misdemeanor. Penal Code, § 485. § 306. The Time When an Assessment is Made. — This time is the first day of July. The assessment is regarded, in law, as made on this day, July first, and all persons whose names appear on the assessment-roll must be residents of the town or ward on that day. Mygattv. Washbnm, 15 N. T. 816; Clark v. Norton et al., 49 id. 243; Bell v. Pierce, Slid. 12-16; Overing v. Foote, 65 id. 263; Boyd v. Gray, 34 How. 823- 832, and cases cited . This does not apply to the county of New York. People, ecrel. Twenty-third St. R. R. Co., v. Comrs., 91 N. Y. 598. See Decisions on this subject, under § 268, ante, sub-heading "The Time When an Exemption Begins." When a person shall have acquired a residence in any town, vil- lage or ward * * * and shall have been taxed therein, such residence shall be presumed to continue for the purposes of taxation, until he shall have acquired another residence in this State or shall have removed therefrom. Chap. 392, Laws of 1888; In re Nichols, 54 N. Y. 62. If a sale or exchange of property takes place after July first, the seller and buyer must each be assessed on the property he owned on Of the Assessment and CoLLBCTiour of Taxes. 223 July first. No change can be made by the assessors in the assess- ment, by which the buyer, after July first, will stand assessed for the property purchased and the seller for the purchase-money. Welty Lawof Assessments, 13 ; O'Connellr. Molntyre, 37 Hun, 622. Assessors have power not only to add persons and property assessable on July 1 to the tax-roll, but also to strike from the roll those not assessable on that day, if such change be made in July and before making and depositing the fair copy and giving the notice. Marsh v. Bowen, 12 Abb. N. C 1. See post, "Assessment-roll, when to be completed." § 307. Assessment-roll. For form of assessment-roll, see § 351. For Decisions, see §§ 351-3, 308, 310. RESIDENTS. 9.* The assessors shall prepare an assessment-roll, in which they shall set down in four separate columns, and according to the best information in their power : 1. In the first column, the names of all the taxable inhabitants in the town or ward, as the case may be. 2R. S. 991, §9. In New York county, the name is not necessary to the validity of a tax upon land. The only effect of an omission of, or an error as to the name of the owner, is to deprive the city of its right to collect the tax from the owner's personal property, and confines its remedy to the enforcement of the lien on the lands. Haight T. Mayor of New York, 21 Dig. 450; S. C, 99 N. Y. 280. In Kings county the rule is the same as in New York. Chap. 411, Laws of 1885, §§ 2 and 3. For town of Oswegatchie, see chap. 457, Laws of 1889. See Decisions, next page. The term " taxable inhabitants," " person " or " persons " includes corporations as well as individuals. Chap. 636, Laws of 1857; People, exrel. U. & B. R. E., v. Shields, 6 Hun, 556. 2. In the second column, the quantity of land to be taxed to each person. 3. In the third column, the full value of such land, according to the definition of the term " land," as given in the first title ef this chapter. See ante, § 258, and post, § 824. 4. In the fourth column, the full value of all the taxable personal * Repealed as to counties containing upwards of 300,000, chap. 411, Laws of 1885, §19. 324 SuPBRVisoKs' Makual. property owned by such person, after deducting tlie just debts owing by him. R. S. 991. As to " Property Liable to Taxation," see §§ 257-302. As to Taxation of Corporations, see Chapter YI. Where a part of the debt was a promissory note of $25,000, on demand, the proceeds whereof were used by the one claiming the deduction, to purchase U. S. bonds, which were pledged as collateral for the note, held, that in the absence of proof that the debt was not a just one and enforceable, he was entitled to have it deducted, and this although the transaction was a device to escape assessment and taxation. People, mrd. Tburman, 7. Ryau, 88 N. T, 142. § 308. Trustee, Guardian, etc.— Where a person is assessed as trustee, guardian, executor or administrator, he shall be assessed as such, with the addition to his name of his representative character, and such assessment shall be carried out in a separate line from his individual assessment ; and he shall be assessed for the value of the real estate held by him in such representative character, at the full value thereof, and for the personal property held by him in such representative character, deducting from such personal property the just debts due from him in such representative character. 2R. S. 991, §10. "Where taxes have been imposed upon an executor or administra- tor, before the estate had been settled by the surrogate' s decree, it 'is the duty of such administrator or executor, before making distri- bution, to ascertain what the liabilities under it were, whether for taxes or otherwise. MoMahoQ T. Jones, 1 How. (N. S.) 270. An assessment to an "agent " seems to be properly assessed to him in Ma name and without the addition of words indicating his representative character. People, exrel. Hoffman, v. Bug, 13 Abb. N. C. 169. Where executors retained moneys of the estate ' ' for the payment of disputed and other claims and the further expenses of administration," and there were unpaid claims against the estate exceeding .the amount of assets in their hands, which claims were contested by the executors, and it did not appear that their validity had been established, held, that their application to strike out an assess- ment f jr such moneys was properly denied. People, ex rel. Osgood, v. Comrs., 99 N. T. 154. (See other Decisions under §§ 299-301, also 267.) The committee of a lunatic is not such a trustee. It seems that such personal property should be assessed to the lunatic, at his place of residence. People, ex rel. Smith, v. Comra., 100 N. Y. 215. Of the Assessment akd Collection- of Taxes. 225 It is very common to assess property in these cases as follows: " The estate of John Doe." Such assessment is void. Trowbridge v. Horan, 78 N. Y. 439. " The widow and heirs of Henry Jones." This is questionable and ought not to be adopted, although it is sustained in Wheeler T. Anthony, 10 Wend. 346. " J. K. and others, legal heirs of J. K., late of the city of New York, deceased, or their heirs or assigns." Such assessment is void. Cruger v. Dougherty, 1 Lans. 464. So is one to "John Smith or Edward Brown." Id. 468. or to "Joseph Foster or Occupant." Dubois T. Webster, 7 Hun, 371. to "P. H., Agent," is imTpTOTpei. People, ex rel. Hofeman, v. Bug, IS Abb. N. C. 169. to " Sharp " giving no Christian name, is improper. Sharp V. Spier, 4 Hill, 76. Where intestate resided and died out of the State leaving some personal prop, erty here, held, that the tax having been imposed before the estate had been set. tied up, it was the administrator's duty to ascertain what the liabilities were, whether for taxes or otherwise; that it was too late to question the quantum of the tax, and the tax was legally imposed. inr^MoMahon t. Jones, 1 How. (N. S.) 270. Where trustees of a sinking fund, raised and owned by a foreign corporation, are residents of this State, they are properly assessed as such trustees to the full value of the fund, in the place of their residence. People, ex rel. W. K. R., .. Bd. of Assessors, 40 N. Y. 154. § 309. As to corporations, see^os^, " Corporations." §310.* 2. Non-Residents. — The lands of non-residents shall be designated in the same assessment-roll, but in a part thereof separate from the other assessments, and in the manner prescribed in the two following sections. 2 E. S. 991, § 11. If the land to be assessed be a tract which is subdivided into lots, or be part of a tract which is so subdivided, the assessors shall pro- ceed as follows : 1. They shall designate it by its name, if known by one, or if it 29 226 SuPBEVisoBs' Mastual. be not distinguished by a name, or the name be unknown, they shall state by what other lands it is bounded ; 2. If they can obtain correct information of the subdivisions they shall put down in their assessment-rolls, and in a first column all the unoccupied lots in their town or ward, owned by non-residents, by their numbers alone, and without the names of their owners, begin- ning at the lowest number and proceeding in numerical order to the highest ; 3. In a second column, and opposite to the number of each lot, they shall set down the quantity of land therein liable to taxation ; 4. In a third column, and opposite to the quantity, they shall set down the valuation of such quantity ; 5. If such quantity be a fuU lot, it shall be designated by the number alone ; if it be a part of a lot, the part must be designated by boundaries, or in some other way by which it may be known. Id., § 12. § 13.* If the land so to be assessed be a tract which is not subdi- vided, or if its subdivisions cannot be ascertained by the assessors, they shall proceed as follows : 1. They shall enter in their roll the name or boundaries thereof, as above directed, and certify in the roll that such tract is not subdi- vided, or that they cannot obtain correct information of the subdi- visions, as the case may be; 2. They shall set down, in the proper column, the quantity and valuation as above directed ; 3. If the quantity to be assessed be the whole tract, such a descrip- tion, by its name or boundaries, will be suflScient ; but if a part only is liable to taxation, that part, or the part not liable, must be par- ticularly described ; 4. If any part of such tract be settled and occupied by a resident of the town or ward, the assessors shall except such part from their assessment of the whole tract, and shall assess it as other occupied lands are assessed ; and if they cannot otherwise designate such parts, they shall notify the supervisor of the town, who shall cause a sur- vey and two manuscript maps to be made, for the purpose of ascer- taining the situation and quantity of every such occupied part : 5. One of those maps shall be delivered by the supervisor to the county treasurer, to be by him transmitted to the comptroller, and the other shall be delivered in like manner to the assessors ; ♦ Repealed as to towns in counties containing upward of 800,000, chap. 411, Laws of 1885, S 19. Of the ASSESSME3JT AND COLLECTIOJSr OF TAXES. 237 6. The assessors shall then complete the assessment of the tract, and shall deposit the map in the town clerk's office, for the informa- tion of future assessors. And the expense of making such survey and maps shall be immediately repaid to the supervisor, out of the county treasury ; and it shall be added by the board of supervisors to the tax on the tract, distinguishing it from the ordinary tax. 2 R. S. 991, § 13. § 14. "Whenever it shall be deemed necessary by the assessors of any town to have an actual survey made, to ascertain the quantity of any lot or tract of non-resident lands which is divided by the town line, they shall notify the supervisor, who shall cause the necessary surveys to be made at the expense of the town. 2 R. S. 992, § 14 Lands of non-residents must not be assessed in the name of the owner, N. T. & H. R. V. Lyon, 16 Barb. 651 ; Hilton v. Fonda, 86 N. Y. 3S9-3i7. See ante, § 293. but if they are actually occupied, they must be assessed to the resident OBOwpant, not against the owner by name or as non-resident. Stewart V. Crysler, 22 N. Y. Week. Dig. ; lOON. Y. 378. See ante, § 293. If unoccupied and the lot is part of a tract distinguished by a name, the name of the tract shall be given. HubbelT. Weldon, Hill & D. Supp. 139. If not so distinguished, or the name is unknown, then by designating the lands by which the tract is bounded. Subdivision o, above, does not dispense, where the land to be assessed is a full lot; with the particularity required by the pre- vious parts of the section in the designation of the lands of non-residents; it re- lates simply to the description of the quantity of land assessed, providing that if such quantity be a full lot, the designation of the number of the lot is suffi- cient; otherwise, the quantity must be designated by boundaries, or in some other way by which it may be known. Id. Where a township which has not been subdivided into lots is non-resident land and is assessed as such, it is the duty of the assessors to assess it by its number as one lot; they have no right to subdivide it into lots and to assess them at dif- ferent valuations. Thompson v. Burhans, 61 N. Y. 52. If the tract is not subdivided into lots, or they cannot ascertain the subdivision, they are to certify accordingly and give the boundaries on the roll. Dikev. Lewis, 4 Denio, 237; Tallman v. White, 2N. Y. 66. If the tract is subdivided and they can obtain correct information concerning them, the assessors must put down in the roll the number of the lots so assessed. Id. 228 Supervisors' Mastual. A wrong number will vitiate. Dikev. Lewis, 4 Denio, 237. An accurate designation or description is essential. Id. ; Pink v. Barberi, 17 N. T. Week. Dig. 521 ; Inre Application N. Y. C. & H. R. R. R., 15 id. 137; 4 Denio, 237; 2N. Y. 66. See Decisions under § 351. AS TO RENTS AND DEBTS OWINQ NON-EESIDENTS. As TO Rents. § 311. Duty of Assessors.— It shall be the duty of the assessors of each town and ward, while engaged in ascertaining the taxable property therein, by diligent inquiry, to ascertain the amount of rents reserved in any leases in fee, or for one or more lives, or for a term of years exceeding twenty-one years, and chargeable upon lands within such town or ward, which rent shall be assessed to the person or persons entitled to receive the same as personal estate, which it is hereby declared to be, for the purpose of taxation under this act, at a principal sum, the interest of which at the legal rate per annum shall produce a sum equal to such annual rents ; and in case such rents are payable in any other thing except money, the value of such annual rents in money shall be ascertained by the as- sessors, and the same shall be assessed in manner aforesaid. And in case the name or names of the person or persons entitled to receive such rents cannot be ascertained by the assessors the same shall be assessed against the tenant or tenants in possession. Laws of 1846, chap. 827, § 1, as amended by chap. 809, Laws of 1873; 2R. S. 997. § 312. Duty of Board of Supervisors.- The board of supervisors in each county shall assess the taxes to be raised for town, county and State purposes, upon the person or per- sons entitled to receive such rents within the town or ward where the lands upon which such rents are reserved and situated, in the same manner and to the same extent as any personal estate of the inhabitants of sneh town. And in case the names of the persons entitled to such rents have not been ascertained by the assessors the board of supervisors shall assess the tax against such tenants in pos- session, and the warrant shall direct the collection accordingly. Id. The assessors shall, in all cases of assessments under chapter 327 of the Laws of 1846, specify in the assessment-rolls each rent so as- sessed, and the value lixed upon articles, other than money, in Of the Assessment and Collectiomt op Taxes. 229 which such rents are payable, and whenever assessments are made against any person in any town or ward in which he does not reside, the board of supervisors of the county to which such assessments are returned shall have in all respects as full power and authority, and it shall be their duty to correct such assessments as to the valu- ation of the rents, and as to the gross amount for which such per- son shall be assessed, as the assessors have as to a resident of the town; and such board of supervisors may reduce the amount of such assessments in the respective towns or wards of the county, in proportion or otherwise, as the nature of the corrections require to make such assessments just. Laws of 18S8, chap. 357; 2K. S. 999. In People v. Superviaors, 60 N. Y. 381, it was held that the provisions of the act of 1858 (§ 1, ehap. 357), authorizing boards of supervisors to make corrections in assessments against non-residents upon rents reserved, in certain cases, simply confers the same power of correction in the case of a non-resident tax payer, which the assessors have in the case of a resident of the town. It does not au- thorize a variation from the rule prescribed by the statute for the assessment of such rents § 1, (chap. 827, Laws of 1846), although it be made to appear that the assessors have, in violation of their duty, assessed other descriptions of taxable property at less than their just and full value, thus making the owner of the rents bear more than his just proportion of the taxes. Such assessment must specify ' ' ecicA rent assessed," and against the name of the person entitled to the rent. Cruger v. Dougherty, 43 N. Y. 107. Where the assessment in 1864 was assessed to a person not the owner of the rents, and upon petition duly made, the assessors, in 1865, put the property on the roll, assessed to the true owner, held, such reassessment was legal, OveriDg v. Foote, 43 N. Y. 290. and that it might be made by the assessors after the time fixed by law for com- pleting the roll for public inspection. Id. AS TO DEBTS OWING FOR THE PURCHASE OF REAL ESTATE. § 313. Debts OTTin^ for tlie Purchase of Real Estate Taxable. — All debts owing by inhabitants of this State to persons not residing within the United States for the pur- chase of any real estate, shall be deemed personal property, within the town or county where the debtor resides, and as such shall be liable to taxation in the same manner and to the same extent as the personal estate of citizens of this State. Laws of 1851, chap. 371, § 1 ; 2 R. S. 983. See Decisions, § 367, ante. 330 SuPEKvisoRs' Manual. § 314. Ag-ents of Non-Resident Creditor to Report to County Treasurer.— If there shall reside in any county of this State an agent of any non-resident creditor having debts owing to him of the description mentioned in the first section of this act, he shall, on or before the twenty-fifth of July, in such year, furnish to the county treasurer of each county, where such debtor resides, the true and accurate amount of debts of the description mentioned in the first section of this act, which were owing on the first day of January preceding, to the principal of such agent, iu each town in such county, which shall be verified by the oath of such agent taken before any officer authorized to admin- ister, oaths. Id., $ 2. § 315. Penalty for not Making- Report.— Auj such agent who shall refuse or neglect, without good and sufficient cause, to furnish such fist shall forfeit the sum of $500 to the use of each county in which such debtor resides, to be sued for by the treasurer of such county in his name of office, and to be recovered upon proof that the principal of such agent had debts owing to him by the inhabitants of such county, of the description mentioned in the first section of this act, and that the existence of such debts was known to such agent. Id., 8. § 316. Abstract to be Sent to Assessors.— The county treasurer, on receiving such statement, shall immedi- ately make out and transmit to the assessors of the several towns of his county, in which any such debtor resides, an abstract or copy of so much of such statement as relates to the town of such assessor, with the name of such creditor. Id., §4. § 317. Name and Amount Due to be Entered on Assessment-roll. — The assessors, on receiving such abstract or statement from the county treasurer, shall, within the time in which they are now required by law to complete their as- sessment-roll, enter thereon the name of such non-resident debtor, and the aggregate amount due him in such town on the first day of January preceding, in the same manner other personal property is entered on said roll. Id., § 5. §318. Unpaid Taxes, bow Collected. -- When it shall appear by the return of any collector, made according to law Op the Assessmekt and Collection of Taxes. 231 to a county treasurer, that any tax imposed upon a debt owing to a person not residing in the United States, remains unpaid, such county treasurer shall, after the expiration of twenty days from the return of such collector, issue his warrant to the sheriEE of any county in this State, where any debtor of such non-resident creditor may reside, commanding him to make of the goods and chattels, and real estate of such non-resident, the amount of such tax to be specified in a schedule annexed to the said warrant, together with his fees and the sum of $1 for the expense of issuing such warrant, and to return the said warrant to the treasurer issuing the same, and to pay oyer to him the money which shall be collected by virtue thereof, except the said sheriffs fees, by a certain day therein to be specified, within sixty days from tbe date of such warrant. Id., I 6. § 319. TVarrants Therefor, hoTr Made Out.— The taxes upon several debts owing to the non-resident shall be in- cluded in one warrant, and the taxes upon several debts owing to different non-residents may be included in the same warrant, and where several non-residents are included in the same warrant, the sheriff shall be directed to levy the sums specified in the schedule thereto annexed, upon the personal and real property of the non- residents respectively, opposite to whose names, respectively, such sums shall be written, together with the sum of fifty cents upon each non-resident, for the expense of such warrant. Id., § r. § 320. liien of Warrant. — Such warrant shall be a lien upon, and shall bind the real and personal estate of the non-resi- dents, against whom the same shall be issued, from the time an actual levy shall be made upon any property by virtue thereof ; and the sheriif, to whom such warrant shall be directed, shall proceed upon the same, in all respects, with the like effect and in the same manner as prescribed by law in respect to executions against prop- erty, issued upon judgments rendered in the supreme court, and shall be entitled to the same fees for his services in executing the same, to be collected in the same manner. Id., § 8. § 321. StierifT, lio-w Proceeded Ag-ainst for Neglect to Return Warrant.— In case of the neglect of any sheriff to return such warrant according to the directions therein, or to pay over any money collected by him in pursuance thereof, he shall be proceeded against in the supreme court, by at- 232 SupEBTisoBs' Manual. tachment, in the same manner and with the like eflfect as for similjir neglects in reference to an execution issued out of the supreme court in a civil suit, and the proceedings thereon shall be the same in all respects. Id., § 9. § 322. Proceedings -vrlien Warrant Re- turned Unsatisfied. — If any such warrant shall be returned unsatisfied, in whole or in part, the county treasurer, or in the city and county of New York, the comptroller therein, under the direc- tion of the board of supervisors, may obtain an order from a judge of the supreme court, or a county judge of the county to which said warrant was issued, requiring such non-resident, or any person hav- ing property of such non-resident, or indebted to him, to appear and answer concerning the property of such non-resident, and the same remedies and proceedings may be had in the name of the county treasurer or comptroller before the officer granting such order, and with the like effect as are provided by the statute in case of a judg- ment debtor after the return of an execution against him, unsatisfied in whole or in part. Id., e 10. § 323. Expenses of Treasurer and Assessor, llOTT Paid. — The expenses of county treasurers, and such com- pensation as their boards of supervisors shall allow them for their services in executing this act, shall be county charges ; and the ex- penses and charges for the services of assessors under this act shall be town charges, and audited and paid as such. Laws of 1851, chap. 3Y1, § 11. It seems that the assessors are not bound by the statement furnished by the agent of the non-resident creditor, mentioned in section 3 of chapter 371, Laws of 1851 (§ 314, above). It is their right to inquire and ascertain by other agencies the amounfwhich may be due within their district. SI N. Y. 344; 76 id. 64. If no statement is furnished, the assessors fix the valuation from the best in- formation and examination they can get. Id.; People, exrel. Mutual Tel. Co., v. Comrs., 21 Dig. 438; S. C, 99 N. T. 254. The amount determined by the assessors to be due is conclusive on that point until set aside by a proceeding instituted for that purpose. Id.; Albany & W. S. R. R. v. Town of Canaan, 16 Barb. 244; Mayor, etc., v. Dav- enport, 92 N. Y. 604-613; People, exrel. Stephens, v. Halsey, 87 id. 344. § 324. Valuation of Real and Personal Prop- erty- — The oath which the assessors are required to take is to the Of the Assessment and Collection of Taxes. 233 effect that all property, real and personal, has been valaed and as- sessed by them at full valite, and admits of no fractional assess- ments. Chap. 201, Laws of 1885. The Revised Statutes, which have not been expressly repealed, read as follows : All real and personal estate liable to taxation shall be estimated and assessed by the assessors at its full and true value, as they would appraise the same in payment of a just debt due from a solvent debtor. 2R. S. 992, 5 17, as amended by chap. 176, Laws of 1851. The preceding section shall be followed in all assessments made under this chapter, except where the assessors shall be specially re- quired by law to observe a different rule. Id., i 18. The oath is inserted iu full hereafter. The rule to be deduced from the above is that all taxable property is to be valued and assessed at its full value. In fixing the amount the assessors act upon their own judgment as to the actual value. They are to ascertain the value as any person would, desiring to buy or sell the same. The mental process by which the assessors arrive at their estimate of value is not the subject of judicial inquiry. The law furnishes, except in few instances, no system for ascertain- ing values ; and within the requirement that property must be as- sessed at its full value and that all assessments must be equal and uniform, leaves the matter of values to the judgment of the assessors. Marorv. Davenport, 92N. Y. 604^613; A »•« Hermanoe, 71 id. 481-488; Albany & W. S. R. R. V. Town of Canaan, 16 Barb. 244; Welty Law of Assessments, 235; People, exrel. Supervisors, v. Hadley, 1 Abb. N. C. 441-4. An assessment made on a basis of one- third of the value of property is illegal, and a tax deed, under such an assessment, is invalid. Tierney v. Union Lumbering Co., 2N. W. Rep. 289. The decision as to valuation is not the act of one assessor only, but the act of all, or at least of the majority of the assessors acting together. People, ex rel. Mygatt, v. Supervisors, 11 N. T. 663, and cases cited. The judgment of the assessors as to values, upon conflicting evidence, is not re- viewable in the court of appeals. People, exrd. R. W. & 0. R. R., v. Haupt, 104 N. T. 377. It is reviewable by certiorari under chapter 269, Laws of 1880. See ante, Property "Liable to taxation," Exemptions and Corporations. 30 234: Supervisors' Manual. OMITTED PEOPERTY, ASSESSMENT AND VALUATION OF. § 325. Omitted Lands of Preceding Year to be Taxed. — Whenever it shall appear to the assessors of any town, city or ward in this State that any land or property legally liable for taxation in said town, city or ward has been omitted in the assessment-roll of the next preceding year, it shall be the duty of said assessors, upon the application of any three tax payers in said town, city or ward who shall consider themselves aggrieved, to enter said land or property in the assessment-roll of the current year, at the valuation of the year in which said tax was omitted, or, if not then valued, at the valuation of the preceding year, in a separate line from the valuation of the current year. Laws of 1865, chap. 453, § 1; 2 R. S. 1002. See Comptroller's Instructions, § 337, post. The assessors must enter the property at the valuation of the year preceding, if it was valued upon the assessment-roll of that year; if not, of the year preced- ing that. They cannot ciiange the valuation. If the property was not valued in one of those years the assessors have no power to enter it upon the assessment- roll. People, exrel. Oswald, v. Goff, 52 N. Y. 434; 42 Hun, 27. Where certain property (rents accruing from perpetual leases) had, in 1864, been in fact assessed, but to a person not the owner of the rents, and upon peti- tion duly made to the assessors, the same property was put on the roll of 1865, and assessed to the true owner and a tax levied upon it for 1864, held valid. Overing v. Foote, 43 N. Y. 290. See S. C, 65 id. 263. Boards of supervisors have not jurisdiction, after the delivering to them of the assessment-roll, to add, on the suggestion of the assessors, a person or property the assessors had deliberately omitted as being non-assessable. Marsh v. Bowen, 12 Abb. N. C. 1. nor have they jurisdiction to add property at a valuation in excess of the preced- ing year. Id. The supervisor of a town, a. member of the board of supervisors, adding a tax to the roll, in a case where they have no jurisdiction to do so, who delivers the roll and warrant to the collector * * by whom the property is sold, is liable indi- vidually to the tax payer, in an action for the trespass. Id. On July 15, notice of the completion of the roll was given. After that date, plaintiff's agent examined the roll but plaintiff's name did not appear thereon — nor on any memoranda, nor was there any thing to indicate that they were to be assessed. The agent was notified by the assessors, that they intended to assess Of the Assessmen-t and Collection- op Taxes. 235 them, when the requisite information was obtained; against this he protested. Subsequently the names of plaintife and their property was entered on the roll by the assessors, a tax laid by the board of supervisors and the property sold for taxes. HM, that the acts of the assessors were illegal and the assessment and tax void. Overing V. Foote, 65 N. Y. 263. It seems that the notice might have been countermanded and a new one given, on or iefore August first. Id. Held, also, that chapter 453, Laws of 1865, did not provide for reassessment of omitted taxes of a former year, without notice, or after the assessors have com- pleted the roll and given the notice. Id. The general notice of the completion of the roll is suificient. People, exrd. B. C. K. R., v. Assessors, 92N. Y. 430. Where property was omitted in 1880 and the property was assessed in 1881 and in addition for the omitted year, the valuation of 1879, being taken, held, valid. Id. Corporations omitted are subject to the same rules above. People, ex rel. Brooklyn City R. R., y. Board of Assessors, 92 N. Y. 430. Having properly inserted the lands legally liable to taxation, which were omitted in the assessment-roll of the next preceding year upon the application of three tax payers, the assessors petition the board of supervisors, showing all these facts, whereupon the hoard have the right to levy a tax thereon, at the same rate per cent of the tax imposed upon land or property in said town, city or ward in the preceding year. Chap. 453, Laws of 1865, § 2; 2 R. S. 1002. Lands Omitted, Current Year.— Upon the petition of the assessors of any town, city or ward, that any land or property in any town, city or ward in the State has been omitted in the assess- ment-roll of the current year, the board of supervisors shall insert the same in the assessment-roll of said town, city or ward, at the valuation of the preceding year, and tax the same at the rate per cent of the current year. Id. See Comptroller's Instructions, § 337, post. The valuation must be of the preceding, not the current, year. They have no power to assess it at any other valuation whatever except that of the preceding Marsh v. Bowen, 12 Abb. N. C. 1 : People, ex rel. Oswald, v. GofE, 52 N. Y. 434; People, ex rel. Brooklyn City R. R., v. Board of Assessors, 92 id. 430. 336 SuPEKTisoEs' Manual. If the property does not appear on last year's assessment-roll it cannot be valued or taxed in the current year. Id. See Decisions under Omission of preceding year Amount to be Deducted £roiu Other Taxes.— The whole amount of tax levied upon land or property omitted in the tax levy of the preceding year shall be deducted from the aggre- gate of taxation to be levied upon said town, city or ward for the current year, before such tax is levied, and shall be collected by the same authority and in the same manner as the ordinary taxes of the current year are collected. Chap. 453, Laws of 1865, § 3; 2 R. S. 1002. § 326. Assessment-roll, Deposit for Inspec- tion, Notice Thereof. — The assessors shall complete the assessment-rolls on or before the first day of August in every year, and shall make out one fair copy thereof, to be left with one of their number. They shall forthwith cause notices thereof to be left with one of their number ; they shall forthwith cause notices thereof to be put up at three or more public places in their town or ward. 2 K. S. 992, § 19, aa ameaded by chap. 110, Laws of 1858, and chap. 536, Laws of 1857. Where the notices were posted by the clerk of the board of assessors, by their direction, it was held sufficient. The court says: "Inasmuch as the statute pro- vides that the assessors ' shall cause notices thereof to be put up in three or more public places,' etc., we think the posting of the notices by the person, other than an assessor, answers the requirements of the statute." Board of Supervisors of Oswego County y. Betts, decided by General Term, Fourth Dept., July, 1889, and not yet reported. This opinion contains an able discussion, by Mr. Justice Hakdin, of the va- • lidity of tax deeds under sales for unpaid taxes. See Decisions, §§ 325, 327. § 327. Contents of Notice.— Such notices shall set forth that the assessors have completed their assessment-roll, and that a copy thereof is left with one of their number at a place to be specified therein, where the same may be seen and examined by any person interested, until the third Tuesday of August; and that on that day the assessors will meet, at a time and place also to be speci- fied in such notice, to review their assessments. On the application of any person, conceiving himself aggrieved, it shall be the duty of the said assessors on such day, to meet at the time and place speci- fied, and hear and examine all complaints in relation to such assess- ments that may be brought before them; and they are hereby Of the Assessment and Collection of Taxes. 237 empowered, and it shall be their duty, to adjourn from time to time, as may be necessary, to hear and determine, in accordance with the rule prescribed by section 15 of said title 2, such complaints. But in the several cities of this State, the notices required by this section may conform to the requirements of the respective laws regulating the time, place and manner for revising assessments in said cities in all cases where a different time, place and manner is prescribed by said laws from that mentioned in this act. Id., § 20, us amended by Laws of 1851, chap. 176, and chap. 536, Laws of 1857. The term " person or persons" in the above section includes corporations. Laws of 1857, chap. 536. The assessor with whom such assessment-roll is left, shall submit the same during the twenty days specified in such notice, to the in- spection of all persons who shall apply for that purpose. 2 R. S. 992, § 21. The use of the words "complete" and "completed," in the above, is mislead- ing. The same words are used in a subsequent section wherein, on "review day," or the day for reviewing assessments, they are required to lessen the valuations on certain proofs being furnished, and thereafter are required to go before some officer and verify the assessment after they shall have " completed " the same, showing that the roll is not complete and ready for delivery to the super- visors, until after it is verified, and it cannot be verified until after review day. 6Jo that the assessors do not complete, or finish their duties, with respect to the roll until they verify it ready for delivery to the supervisors. Westfall v. Preston, 43 N. Y. 349; People, exrel. Gillies, t. Suffern, 68 id. 321-326. An affidavit to or verification of the assessment-roll prior to the third Tuesday of August is a nullity. Id. The giving of the notice above mentioned is essential to the validity of the tax.. The full time required by law must be given. Wheeler v. Mills, 40 Barb. 644 ; see People v. Turner, 49 Hun, 466. A substantial compliance with the statute, in the measures preliminary to the taxation of persons and property, in all matters which are of the substance of the procedure and designed for the protection of the tax payer, is a condition prece- dent to the legality and validity of the tax. Westfall V. Preston, 49 «. T. 349. After the completion of the roll and formal notice thereof given, the assessors have no jurisdiction to change either the persons or property assessed or the ad- judged valuations except upon the complaint of the party aggrieved. People, ecrel. Chamberlain, v. Forest, 96 N. T. 544. Nor where property is sold to an exempfrinstitution after July 1st. See section 267, Decisions under heading, " The Time when an Exemption begins." In this case the assessors intended to assess the plaintiff for $40,000, but entered 238 SuPERVisoKs' Manual. it on the roll for $4,000. Before notice of the completion of the roll was given (the notice of August 1st), the mistake was noticed, but not corrected by the as- sessors, through neglect. After said notice was given and after August 1st, but hefore review day, one of the assessors changed the assessment to $40,000, which act was ratified by his associates. Held, that the mistake was not a mere clerical error but one of pure negligence, which concerned the very substance and extent of the assessment, and that the plaintiff was entitled to have the assessment reduced 5y the ccncrt to $4,000. 96 N. T. 544, supra. What the property-owner finds in the roll left with one of the assessors as above prescribed, he has a right to rely on, as the determinp.tion of the assessors to be the amount for which he is to be assessed and taxed for that year. Id.; Overing V. Foote, 65 N. T. 263. It seems that where the roll is completed and notice given prior to August 1st, and a mistake is discovered after such completion and before that day, that the notice may be countermanded, the roll corrected and completed, and a new notice given on or before August 1st. Id. ; 65 N. T. 263. § 328. Revie-w Day, Reduction of Valuation. — ^Whenever any person on his own behalf, or on behalf of those whom he may represent, shall apply to the assessors of any town or ward to reduce the value of his real and personal estate, as set down in the assessment-roll, it shall be the duty of such assessors to ex- amine such person, imder oath, touching the value of his or their said real or personal estate ; and after such examination and such other supplementary evidence, under oath, as shall be presented by the party or person aggrieved, they shall fix the value thereof at such sum as they may deem just, under the rule prescribed by sec- tion* of this title ; but if such person shall refuse to answer any question as to the value of his real or personal estate, or the amount thereof, or present sufficient supplementary evidence under oath, to justify a reduction, the said assessors shall not reduce the value of such real or personal estate. ■ The examination so taken shall he written, and shall be subscribed by the person examined, and shall be filed in the office of the town clerk of the town or city in which such assessment shall be made ; and any person who shall willfully swear false on such examination before the assessors shall be deemed guilty of willful and corrupt perjury. It shall also be the duty of the assessors, whenever the valuation fixed tof them, after such examina. tion, shall exceed that sworn to by the aggrieved party or person, to * It is omitted in the original statute. + So in the original. Of the Assessment and Collection of Taxes. 239 indoi-se on the written examination the words " Disagreed to by the undersigned assessors, under the rule prescribed for making assess- ments bj section 15, article 2, title 2, chapter 13, part 1 of the Ke- vised Statutes, and in view of the obligations imposed by the depo- sition and oath, subscribed and made on the completion of the as- sessment-roll, to which this disagreement refers." It shall be the duty of the assessors, on the same occasion, to furnish the aggrieved party or person a duplicate copy of the before-mentioned written examination, together with the indorsement of disagreement afore- said, duly signed. 2 K. S. 994, as amended by Laws of 1857, chap. 536, § 5. The assessors have power to administer the oath to any person applying to them tinder the provisions of the above section. Id. ; Laws of 1851, chap. 17S. Making' a False Statement, is a Misdemeanor. Penal Code, § 485. See this section of the Penal Code in full, at section 305, ante. One who fails to subscribe a -written examination has no right to have the de- duction claimed by him made, even though his examination shows him clearly entitled to it. Vose V. Willard, 4T Barb. 20. If he applies for reduction on his personal property upon the ground that he was indebted to an amount more than equal to the value of all the personal prop- erty owned by him, and upon being examined under oath in respect to the amount he was owing, and the persons to whom he was indebted, stated that he could not remember whom he owed, the assessors were right in refusing to reduce the assessment under the evidence. Id. The assessors have the right to "disagree to" the written examination of a per- son applying for a reduction if it is not satisfactory to them. Id. They are to fix the value, after such statement as they may deem just, having in view the duty to assess the property at its full value. People V. Fredericks, 48 Barb. 173; 104 N. T. 240, 377. They are the judges of value and are not bound by proof produced before them, but are required to exercise their own judgment, notwithstanding such proof. People, ex, rel. Weatbrook, v. Board of Trustees, 48 N. T. 390. See, also, "Corporations," " Trustee, Executor," etc., ante. If the claimant does not furnish evidence to discharge himself from such assess- ment on grievance day, and the assessors have, in good faith, used all proper means in their power to ascertain whether he is liable, the assessment is valid. Yates V. Hugbson, 14 Dig. 271. 240 SuPEKvrsoRs' Manual. It seeins, that assessors are not required to apply the rigid rules of evidence, in investigations before them, when assessments are contested. People, ex rel. R., W. & 0. R. R., y. Hicks, 105 N. Y. 198. Where the assessors make no objection to the sufficiency of an affidavit pre- sented for such reduction, but partially make the reduction, the application will be deemed sufficient to authorize a certiorari to review the assessment. People, ex rel. Eckerson, t. Christie, 21 N. E. Rep. 1024 (June 11, 1889). In certiorari to reduce an assessment, it is unnecessary that the property should be compared with the general rate of assessment of the town, but it is sufficient to compare it with other tracts of land in the town used for the same purpose. Id. In assessing property, if the assessors have jurisdiction over the person and property they are not individually liable for errors, otherwise they are liable. People, ex rel. Mygatt, v. Supervisors, 11 X. Y. 563; Mygatt v. Washburn, 15 id. 316. It will be noticed by the above, that the only powers to be exercised by the assessors on review day are to reduce, not increase, valuation, and that such reduction can be made only upon the application of the person aggrieved, not upon the assessors' own motion. Clark V. Norton, 49 N. Y. 243; People, ex rel. Chamberlain, v. Forrest, 96 id. 544. See notes to preceding section. The affidavit must be sworn to iefore the assessors. People T. Supervisors, 15 Barb. 607. Even if the owner dies after August 1st, the roll should not be changed, although the amount might be reduced on review day upon proper proof. McMahon v. Beekman, 65 How. 427; so held where owner died July 11th, 37 Hun, 162. § 329. If Assessors Neglect to Meet on Re- vie\r Day, Board of Supervisors may Review and Correct Assessment.— If the assessors shall will- fully neglect to hold the meeting specified in the last preceding section, each assessor so neglecting shall be liable to a penalty of $20, to be sued for and recovered before any court having juris- diction thereof, by the supervisor of the town, for the use of the poor of the same town, and in case of such neglect to meet for review, any person aggrieved by the assessment of the assessors may appeal to the board of supervisors, at their next meeting, who shall have power to review and correct such assessment. Laws of 1851, chap. 176; 2 R. S. 998. § 330. Assessment-Roll, -when to be Com- pleted and Delivered to tbe Supervisors.— Oatb to, by Assessors. — When the assessors, or a majority Of the Assessment and Collection of Taxes. 241 of them, sliall have completed their roll, they shall severally appear before any oflScer 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 assessment- roll, all the real estate situated in the town (or ward, as the case may be), according to our best information ; and that, with the exception of those cases in which the value of the said real estate has been changed by reason of proof produced before us, 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 named in such roll over and above the amount of debts due from such persons respectively, and excluding such stocks as are other- wise taxable, and such other property as is exempt by law from taxation at the full value thereof, according to our best judgment and belief; which oath shall be written or printed on said roll, signed by the assessors and certified by the officer, and shall be in place of the official certificate now required by law. And every assessor who shall willfully swear false in taking and subscribing said oath shall be deemed guilty of and liable to the penalties of willful and corrupt perjury." Chap. 201, Laws of 1885. If the venue is omitted, the oath is not defective. Colman t. Shattuck, 62 N. Y. 348. An assessment-roll not verified by one of the assessors, and not accompanied by a certificate of the other assessors stating the cause of such omission, is not defect- , ive; and the omission to properly verify it, is not fatal to its validity. Id. The roll is not "completed" until the oath is duly written or printed, and certified as required, nor until the assessors have discharged their whole duty in reference thereto. People, exrel. Gillies, t. SufEern, 68 N. Y. 321-326. And the assessors can amend the oath, and thereby supply defects therein. Parish V. Golden, 35 N. Y. 467 ; K., W. & 0. E. R. v. Smith, 39 Hun, 882; People T. Jones, 106 N. Y. 330; People t. Haupt, 104 Id. 377. The oath and certificate must be in substantial compliance with the statute. Id.- Buffalo & S. L. R. E. T. Board of Supervisors, 48 N. Y. 93; Parish t. Gol- den, 35 id. 462; Colman v. Shattuck, 62 id. 348. As to defective oaths, — See Hinckey t. Barto, 22 Hun, 253; Beach v. Hayes, 58 How. 17; The Nat'l Bank of Chemung V. City of Elmira, 53 N. Y. 49; Brevoort v. (Mty of Brooklyn, 89id. 128; Inman v. Coleman, 37 Hun, 170; Tan Eensselaer t. Wliitbeok, 7 N. Y. 617; Bellinger T. Gray, 51 id. 610. The mfe method is to comply with the statute fully. 31 242 Supervisors' Manual. This verification cannot be made until after the third Tuesday of August. If made before it is a nullity. Westfall V. Preston, 49 N. T. 349. Where it appeared in the oath to the assessment-roll instead of the words "by reason of proo/ produced before us" the word "hereof" was substituted, the variance was held to be fatal, and the assessment was void. Shattuckv. Bascom, 105 N. Y. 39. When a roll, made out in 1849, was not signed by the assessors as required by the law then in force, but the certificate, which was written upon the roll itself, and which referred to it as " the above assessment-roll," and as having been the work of the assessors, was signed, held, that the defect was not jurisdictional, and so not beyond the reach of the act of 1882. Ensign v. Barse, lOY N. Y. 329. It seems, that if the certificate had been written on a separate piece of paper and attached to the roll, the conclusion would have been the same. Id., distinguishing 105 N. T. 39, ante. In that part of the certificate which related to the mode of valuation, the words "solvent creditor" were written instead of "solvent debtor," held, not a jurisdictional defect. Id. In the city of Brooklyn the assessment-roll shall be sworn to by at least two of the nine assessors to the effect inter alia, " that they have together personally ex- amined within the year past, each and every lot or parcel of land, etc." An aifl- davit was subscribed and sworn to by all of the nine assessors, containing the averment " that at least two of the assessors have together personally ex- amined," etc., held, a compliance with the statute. Kane v. Brooklyn, 21 N. E. Rep. 1053. Also, held, that the law requiring the tax rolls to be signed by the board of su- pervisors before delivery to the collector, is complied with by their signing the warrant annexed to the tax rolls. Id. § 331. Rolls to be Delivered to To-wn Clerk, etc. — ^11 assessment-rolls, when linally completed and verified by the assessors, shall, in towns, on or before the first day of Septem- ber, and in incorporated villages and cities, at the time prescribed by their respective charters, or laws applicable to them, be delivered to the town, village or city clerk, or other officer, to whom such rolls are or may be required by law to be delivered, and there to remain with such clerk, or other officer, for a period of fifteen days for pub- lic inspection. The assessors, or other officers, who complete and verify the assessment-roll, shall, after they have delivered the same to the said town, village or city clerk, or other officers, forthwith give public notice by posting the same in at least three of the most public places in said town, village or city, or by publishing the same in one or more newspapers published therein, that such assess- ment-roll has been finally completed, the officers to whom the same has been delivered, and the place where the same will be open to public inspection. The fifteen days from wliich to complete the time within which the application for the writ of c&rUorari can be Of the Assessment. awd CoLtECTiOK of Taxes. 243 made under this act shall be the time when said public notice is first given. Chap. 269, Laws of 1880, § 9 ; People, exrel. U. & D. R. B., v. Burhans, 25 Hun, 186. See Decisions under § 333. § 332. Roll to be Delivered to Supervisor.— The roll, thus certified, shall, on or before the first day of September in every year, be delivered by the assessors of each ward in the city of New York to the clerk of the city, and by the assessors of every other town or ward, to the supervisor thereof, who shall deliver the same to the board of supervisors, at their next meeting. 2B. S. 993, §27. After delivering, the assessors cannot add names, nor in any way change the roll, Clark T. Norton, 49 N. T. 243. except, perhaps, to amend the oath. See cases in preceding section. •Where the supervisor took out the leaves containing the non-resident lands and taxes and Inserted copies, it was held not to vitiate. Colman v. Shattuck, 62 N. T. 848. Such practice ought not to be followed. In some cities the time for delivering the roll is difEerent from the above. The charter of each will govern in these cases. The assessors in some cities are required to file the original rolls and deliver certified copies to the supervisors. Such certificate must be in writing, and this requirement is jurisdictional. A tax appearing upon a book, not so certified, is void. O'Donnell v. Molntyre, 37 Hun, 615 ; see, also, People, ex rel. Twenty-third Street B. R., T. Comrs., 91 N. Y. 593-602. The provision that the rolls must be filed on or before September 1, is directory merely, and a delay in filing does not vitiate the assessment. An omission to give notice of the completion of the roll results in the right to review being un- limited as to time. People, ex rel. R., W. & 0. E. B., v. Haupt, 104 N, Y, 377; Same v. Jones, 43 Hun, 131. Forms Furnished by Comptroller.— The asses- sors, in the execution of their duties, shall use the forms and pursue the instructions which shall, from time to time, be transmitted to them by the comptroller. 2 R . S . 993, § 28. See § 337, "Instructions of Comptroller." 244 SuPEEVisoEs' Manual. § 333. Neglect of Assessors.— If any assessor shall neglect, or from any cause omit to perform his duties, the other as- sessors, or either of them, of the town or ward, shall perform such duties, and shall certify to the supervisors with their assessment-roll the name of such delinquent assessor, stating therein the cause of such omission. Id., §30. § 334. Duties of the Supervisor after Deliv- ery of tlie Roll. — The supervisor should carefully examine the roll delivered to him by the assessors, and see if it is correct in form and footings, and if not, return it for correction. While the assessors have no right to make any changes affecting the substantial requirements of the roll, they do have the right, and it is their duty, to amend and correct informalities. R., W. & 0. R. E. T. Smith, 89 Hun, 382. See Instructions of Comptroller, § 337. See post, "Committee on Form of Assessment- rolls," and "Form of Assess- ment-roll." The comptroller, in a circular issued in 1889 (which is set out in in full at section 337, post), among other things, says : " Your attention is called to the requirements of law which are: that you are to add to the assessment-roll of your town for the year 1889, accurate descriptions of the lands on which non-resident taxes of 1888 and resident and omitted taxes of 1887 have been rejected, and the correct amount of taxes thereon. Where you reduce the number of acres, the valuation thereof and taxes thereon must be reduced in the same proportion; but when the acres are increased, the valuation and taxes must remain as they were. That no interest is to be added to such re-levied taxes. That you are to furnish the comptroller with all maps and sur- veys required by him, that unless you fully comply with the above requirements, the comptroller cannot admit any such rejected taxes re-levied on the roll for 1889, but that such taxes must then be charged on your town ; and that all taxes assessed as resident or omitted for years prior to 1887, and all assessed as non-resident for years prior to 1888, mv,st be charged on your town. They cannot be hereafter admitted, nor legally collected, under any circumstances. * * * As the law further provides that boards of supervisors Of the Assessment and Collection of Taxes, 245 shall cause corrected assessment- rolls of each town, or a fair copy thereof, to be delivered to the collector of taxes for such town, it be- comes yowr duty to see that the roll delivered to the collector of your town for this year, is made to fully conform to the i-equire- ments of law, and that the descriptions, etc., thereon, are free from all the errors and defects which caused the rejection of the 1888 taxes * * *." These instructions are applicable every year, and by changing the dates above given to correspond with the year in which the super- visor is acting thereon, he can know just what his duties are. It is the general practice for the supervisor to make a copy of the roll given him by the assessors, iefore he attends the annual session of the board of supervisors and not to wait until after the equalization has been made. In People, ex rel. Wright, v. Chopin, the court intimates that the board of supervisors should deliver the '■' original " assessment-roll to the collector, and the " copy " to the supervisor to be filed in the town clerk's office. 38 Hun, 272-4; see, also, Bradley v. Ward, 68 N. Y. 401. Both of these should be alike, the one an exact duphcate of the other, from the first page to the last. But in some cities, the original is required to be filed and a certi- fied copy made by the assessor for the supervisor, to be delivered to the board of supervisors. In such cases a second copy should be made by the supervisor. It is the assessors' duty to foot each page. It is the practice also for the supervisor to insert in the back part of the roll a recapitular tion of the footing of each page of the roll as follows : § 335. To-wn of WMtesto-wn. EKCAPITUIiATION POOTHfOS. Real. Personal. Aggregate. Dogs. First page $2,000 00 3,000 00 4,000 00 $1,000 00 2,000 00 1,000 00 $3,000 00 5,000 00 5,000 00 1 Third Daa-e 5 And so on with each page of the roll. Total $3,000,000 00 S800.000 00 $3,800,000 00 50 246 SuPEKVisoRs' Makual. SnllMABT. Total valuation, personal $800,000 00 Total valuation, real 3,000,000 00 Aggregate valuation of Town $3,800,000 00 Total number of dogs taxed, 50. B. A. JONES, SUPEKVISOR. When the committee on footings enter upon their duties, their labor will be lessened by the above, as they have only to check the results. § 336. Tax on Land Vacant by Removal of Occupant. — If the taxes on any farm or lot of land, assessed to a resident, shall be returned as unpaid, in consequence of such premises becoming vacant by the removal of the occupant before the collection of the tax imposed thereon, or in default of goods and chattels of the occupant to satisfy such tax, or if the taxes on any land occupied by or used in connection with any railroad, which was assessed to any person, company or corporation, owning, operating or constructing such railroad, shall be returned as unpaid, the supervisor of the town or ward in which such land was assessed shall add a description thereof to the assessment-roll of the next year in the pari thereof appropriated to taxes on lands of non- residents, shall charge the same with the uncollected tax of the pre- ceding year ; and the same proceedings shall be had thereon, in all respects, as if it was the land of a non-resident, and as if such tax had been laid in the year in which the description is so added. The land occupied by or used in connection with any railroad assessed to any person, company or corporation owning, operating or construct- ing such railroad, may be described in the following form : "A strip of land owned and occupied by the railroad company, in the year , extending about feet on each side of the railroad track, and embracing the same, together with all the depots, stations, turnouts, switches and other improvements thereon and connected therewith, commencing at a point where such railroad track crosses the boundary line in entering the ward of the city of , or town of , and extending to the point where such track crosses the boundary line leaving such ward of the city of , or the town of , or to the point of termination in the same, containing acres more or less." Laws of 1855, chap. 427, § 6, as amended by Laws of 1876, chap. 101 ; 2 B. S. 1019. In the case of land becoming vacant by removal of the occupant, the return by the collector unpaid, the land should be entered hy the supervisors, as " non-resident " as to such unpaid tax with the proper description, and all proceedings for the collection thereof must thereafter be had as if it were land of a non-resident. Newman v. Board of Supervisors, 45 N. T. 676. Of the Assessment and Collection of Taxes. 347 This act does not give to the comptroller the authority to sell for unpaid taxes, resident lands, assessed and returned as such. Bennett v. Peck, 112 N. T. 649. The amount of such tax can be ascertained from the return of the county treasurer, and no charge can be included or added to such tax, except the collectors' fees (five per cent), which is so made when re- turned to the treasurer by the respective collectors. The heading of the return should describe what lands they are, and the collectors' affidavit should state the reason why such tax was not collected. It is also requisite that these lands should be described and added to the assessment-roll of the yearrhext after that in which the tax was levied. This is also the case in regard to non-resident lands rejected by the comptroller. In all cases the lands must be returned the next year following such rejection ; otherwise the comptroller has no authority to admit them. It will be seen from the foregoing, that no authority exists for relevying uncollected resident taxes of a preceding year, and adding the amount to the resident tax upon the same property the succeed- ing year, and that such relevy can only be done in the manner pro- vided by said chapter 101, herein quoted. The- "description" therein referred to must be such as will enable the comptroller (in case of sale by him for the delinquency) to accurately and suflBeiently de- scribe the same in the deed thereof issued by him in such cases. Where the taxes so returned include those for school and highway purposes, these items so described should be stated separately. The entry so made of resident lands in the portion of the assess- ment-roll assigned to nonresidents should contain the accurate de- scription (as heretofore stated) with the valuation, and then be charged as follows : Besident tax of 18 $ Highway tax 188 School tax of 188 These items must be separate from the tax of any other year im- posed upon the same property. 248 SuPEBVisoRs' Manctal. DUTIES OF BOARDS OF SUPERYISOES AS TO ASSESS- MENT-ROLLS. .] §33T. STATE OP NEW YORK, ciomptbollee's office, Albany, ,1889. To THE Supervisor of the Town of , County of , N. T.: Sir, — Herewith you will receive from the treasurer of your county the state- ment of unpaid taxes of the year 1888, on lauds of non-residents in your town, which have been rejected by me in accordance with the requirements of law. The examination has been full and complete, and, on the statement of rejections, I have endeavored to fully and clearly point out the causes of rejection, and to state the requirements necessary to secure the admission of such of said taxes as can possibly be admitted . Tour attention is called to the requirements of law, which are : That you are to add to the assessment-roll of your town for the year 1889, accu- rate descriptions of the lands on which non-resident taxes of 1888 and resident and omitted taxes of 1887 have been rejected, and the correct amount of taxes thereon. Where you reduce the number of acres, the valuation thereof and taxes thereon must be reduced in the same proportion ; but where the acres are increased, the valuation and taxes must remain as they were . That no interest is to be added to such relevied taxes. That you are to furnish the comptroller with all maps and surveys required by him. That unless you fully comply with the above requirements, the comptroller cannot admit any such rejected taxes relevied on the roll for 1889, but that such taxes must then be charged on your town ; and That all taxes assessed as resident, or omitted, for years prior to 1887, and all assessed as non-resident for years prior to 1888, must be charged on your town. They cannot be hereafter admitted, nor legally collected, under any circumstances. Before extending the taxes on the assessment-roll of your town for the year 1889, you will please examine said roll and see : That the assessor's oath, worded strictly as required by law, signed by the asses- sors and certified by an " oificer of their county authorized by law to administer oaths," is written or printed thereon. That the assessors of your town, after the third Tuesday of August, 1889, severally appeared before such oflScer, and made and subscribed said oath; and That the following provisions of law are fully complied with, viz. : § 31. The board of supervisors shall also make such alterations in the descrip- tions of the lands of non-residents, as may be necessary to render such descrip- tions conformable to the provisions of this chapter, and if such alterations cannot be made, they shall expunge the descriptions of such lands, and the as- sessments thereon, from the assessment-rolls." See2R. S. (7th ed.) 996. The provisions referred to in said section are substantially as follows, viz.: 1st. Unoccupied lands, 7wt owned by a person residing in the town or ward where the same are situated, mij^t be assessed in a part of the assessment-roll separate from the other assessments, under the heading, "lands of non-RESI- DENTS.". Of THE ASSESSMBKT AND OOLLECTIOlir OF TAXES. 249 2d. If such lands be a part of a village, patent, purchase, reserve, townsliip, or other large tract, the name (and number thereof, if numbered), must be set down on the roll, above the list of lots therein, the name of the larger division first, followed by the smaller divisions thereof in their proper order. 3d. If such village, patent, purchase, reserve, township, or other large tract, or any smaller division thereof, is subdivided into numbered lots, sections or sub's, the land in each of the smallest subdivisions thereof which are numbered, must be iepa/rately assessed (unless buildings are so located thereon that it is not divisible, in which case the fact should be stated), and the lot numbers must be set down in the proper column, in numerical order, witliout the name of the owner. Where toTiole sub's or lots are assessed, all descriptions and boundaries thereof should be omitted. 4th. Where the land assessed is not the whole of a named tract, or of a num- bered sub or lot, the part assessed must be described, by giving the exact location and dimensions, a survey, or the complete boundaries thereof. Where bounda- ries are given, and the laud joins the tract, sub or lot line, it must be bounded thereby; in other cases, by giving the name of the owner or occupant of the ad- joining property, or by other definite lines. Where a survey is given, the bound- ary and point of termination of each line, must be stated. The description should commence on a line with and following the sub or lot number, and should termi- nate on the line with and preceding the number of acres. 5th. Where the land assessed is "NOT ON ant map, nor in ant village, OR NAMED TKACT," Or the " NAME OF TRACT IS OBSOLETE," , each parcel of such lands must be separately assessed, under such heading, and be definitely described • by giving the exact location and dimensions, or the complete boundaries thereof. 6th, The quantity of land must, in all cases, be set down on the assessment- loll, in the proper column. For city or village lots, the dimensions should be stated, instead of the acres. 7th. All other taxes against the same parcel of land, should follow the regular town and county tax thereon, on the lines below ; and neither the lot number, description of land, acres, nor valuation, should be I'epeated. 8th. When two or more school taxes are separately relevied against the same land, by the board of supervisors, on the roll for any one year, the date of the original warrant of the school trustees for the collection of each tax, must be stated on said roll. 9th. Each rejected, resident, canceled or omitted tax, must be described as such, the year of such tax must be stated opposite each item of tax, and each year's tax, and each kind of tax, must be separately extended. The amount of taxes heretofore rejected, annually, at this office, has varied from $51,000 to $71,000. Of this amount, for years past, not one-sixth has been relevied so as to become a legal charge on the lands. The remainder has, or must eventually become a charge on the towns in which the lands are located. If yoii and the other members of your board of supervisors will take this matter in hand and faithfully perform your duties, this evil can be corrected in your county, and the taxes for 1888 be collected /j-oro these lands, which have heretofore virtually escaped taxation. The form, on the following page,* will give you a general idea as to the proper construction of an assessment-roll of lands of non-residents. As the law further provides that boards of supervisors shall cause corrected as- * See Assessment-roll, " Lands of Noa-residents," § 351. 33 350 SupERvisoBs' Manual. sessment-rolU of eachtoten, or a fair copy thereof, to be delivered to the collector of taxes for such town, it becomes ymir duty to see that the roll delivered to the collector of your town for this year, is made to fully conform to the requirements of law, and that the description, etc., thereon, are free from all the errors AKD defects which CAUSED THE REJECTION OF THE 1888 TAXES, wMch errors and defects are fully set forth in the statement herewith. Believing that you will esteem it a privilege to be instrumental in having all taxes In your town legally levied, in relieving the tax payers thereof from every unnecessary charge, and in placing such charge where it properly belongs, 1 remain, respectfully yours, EDWARD WEMPLE, Comptroller. CoMMTTTEE ON FoEM OF AsSESSMENT-RoLLS. On presenting the rolls to the board of supervisors, they are gen- erally referred to the "committee on forms of the assessment-rolls," whose duty it is to examine the same and see if the rolls are correct in "form ; " that is to say, to see that the proper affidavits and cer- tificates are attached and sworn to after the third Tuesday of Au- gust, and that the other /o/'?/ia^i^ias specified in the preceding sections are complied with. From this committee the rolls go to the one below. The proper Form of Assessment- Roll is set out at section 351, Form of Report. To THE Board op Supervisors of Oneida County: Tour committee appointed on forms of assessment-rolls respectfully report: That they have examined the assessment-rolls of the several towns and wards in the county, and find the same to be correct. JACOB DURB, Chairman. Committee on Footing of Assessment-Rolls. The duties of this committee are to see that the roUs are correctly footed. They cannot complete their work until the committee on " erroneous assessments " report, so that the changes in assessments can be properly made and inserted in the roll before the footing oonumttee finish the footings. Of the Assessment and Collection op Taxes. 251 § 338. Form of Report. REPORT OF THE COMMITTEE ON FOOTING ASSESSMENT-ROLLS. To THE BOABD OP SUPEIKVISOBS OP THE COTINTY OP ONBIDA: Your committee beg leave to submit the following tabular statement, compiled from the rolls of the several towns and wards, as the assessed valuation of this county for the current year: TOWNS. Acres. Keal Estate. Personal. Total. Dogs. 187 Dog Tax. 38,152 tS70,418 00 $13,700 00 $S81,U8 00 $199 00' 7ai,870X $48,129,373 S8 $1,993, 428 20 963,123,301 78 1554 All of which is respectfully submitted. Utica, BeceTnb&r 30, 1885. J. F. GETMAN, Chaiblian. § 339. Committee on Erroneous Assess- ments. — An examination of the proceedings of the board of supervisors throughout the State shows that the duties and powers of the board in relation to assessments and assessment-rolls are greatly misunderstood ; that they are altering and changing the rolls in many cases where they have no right so to do. It is wise to remember that their jurisdiction is inferior, local and limited. They are not vested with absolute powers of legislation nor with absolute control of assessments or the assessment-rolls. Such powers as they have are conferred by some statute, expressly or by necessary implication. If no statute can be found, allowing them to act, they ought not to act in the matter. With two exceptions which are stated below, the board of super- visors have no right to review the proceedings of the assessors, or to interfere with the vahtation decided on by the assessors who are the sole judges of vc^es, exemptions, property liable to taasation, etc. If the assessors decide that certain property is "■exempt" the board of supervisors cannot decide that it is not exempt, and insert it in the roll ; People, exrel, Sup. of Monroe, v. Hadley, 1 Abb. N. C. 441. 252 SuPEEVisoEs' Manual. or that fart of it is exempt. Id. Seeamte, "Review Day," § 328, and " Assessment-Roll," § 307; "Deposit for Inspection," § 336, and "Omitted Property," § 325; "Manifest Errors," § 348; " Refunding Taxes," § 347; " Instructions to Committee," §§ 269, 344, and "Val- uation of Property," § 824. Marsh v. Bowen, 12 Abb. N. C. 1 ; Westfall v. Geere, 49 N. Y. 349. It is the duty of tax payers to examine the assessment-rolls during the time the same are open for public inspection. If over assessed, to appear before the assessors on review day, submit their proofs properly, and if denied relief there, to apply to the courts^ not to the board of supervisors for relief. If they neglect to do so the courts will rwt aid them, In, re Hermance, 71 N. T. 481-486 ; People, ex rel. Mutual Union Tel. Co., t. Comrs, 99 id. 254; Sherman v. Trustees, 27 Jiua, 390; Mayor y. Davenport, 92 N. Y. 604- 613; In re McMahon r. Palmer, 102 id. 176. and there is no other tribunal, but possibly, the legislature of the State, which can reHeve them, except the two cases mentioned below. If the board attempt to act in cases wherein they have no juris- diction, the members are individually liahle therefor. Westfall V. Preston, 49 N. Y. 349 ; Clark v. Norton, id. 243 ; Bellinger v. Gray, 61 id. 610. So that it is quite important for the members to know, that a statute authorizes their action in these cases, otherwise they may be compelled to foot the expenses and costs of illegal acts out of their own pockets. § 340. FiPSt. — If the assessors neglect to meet on " review day " any person aggrieved by the assessment may appeal to the board of supervisors at their next meeting, who shall have power to review and correct such assessment. Chap. 176, Laws of 1851 ; 2 R. S. 993. This gives them full power, where the assessors fail to so meet, to review and correct the assessment, not of the whole assessment-roll, but of such persons only as appeal. § 341. Second.— Reserved Rents in Leases, in Fee, Etc.— By chapter 327, Laws of 1846, see ante, § 311, the assessors are to ascertain the amount of rents reserved in any leases in fee, or for one or more lives, or for a term of years exceeding twenty- one years, and chargeable upon lands within a town or ward, and to assess to the person or persons entitled to receive the same as per- sonal estate * * * at a principal sum, the interest of which, at Of the Assessment and Collection of Taxes. 253 the legal rate per annum, shall produce a sum equal to such annual rents ; and in case such rents are payable in any other thing except money, the value of such annual rents in money shall be ascertained by the assessors, and the same shall be assessed in manner aforesaid. If the names of the owners thereof cannot be learned by the assessors, the same shall be assessed against the tenant or tenants in possession of the lots as rent reserved. Chap. 327, Laws of 1846 ; 2 R. S. 997. The assessors shall, in all cases of assessments under chapter 327, Laws of 1846, specify in the assessment-rolls each rent so assessed, and the value fixed upon articles, other than money, in which such rents are payable, and whenever assessments are made against any person in amy town or ward in which he does not reside, the board of supervisors of the county in which such assessments are retv/rrbed, shall home in all respects as full power a/nd authority, and it shall 1)6 their duty, to correct such assessments as to the valuation of the rents, and as to the gross amount for which sueh person shall he assessed, as the assessors have, as to a resident of the town,' and such hoard of supervisors m,ay reduce the amount of such assessments in the 7'espective towns or wards of the county, in proportion or other- wise, as the nature of the corrections require to make such assess- ments just. Chap. 357, Laws of 1858; 2 R. S. 999. These are rare cases. The only power the board of supervisors have in the matter is in the case of a non-resident of the town or ward. People, ez rel. Youmans, T. Sup., 60 N. Y. 881-4. And if the assessors have assessed correctly according to lano, even then the board cannot change their work. Id., and 47 How. 24. § 342. Third.— Non-Resident Lands.— The board of supervisors shall also make such alterations in the descriptions of the lands of non-residents as may be necessary to render such de- scriptions conformable to the provisions of this chapter ; and if such alterations cannot be made, they shall eapunge the descriptions of such lands, and the assessments thereon, from the assessment-rolls. 2 R. S. 996, § 32. COERECTING MISTAKES, MANIFEST ERRORS, ETC. § 343. Po-wers of Boards of Supervisors to liOvy Tax in Cases of Mistakes in Transcrib- ing Assessment-Rolls. — Whenever it shall be made to ^54 SuPERVisoBs' Manual. appear to the supervisors of any county by the petition of the asses- sors of any town in said county, or otherwise, that any land or prop- erty legally liable to taxation in said town has, by any mistake in transcribing or copying the assessment-roll of the preceding year, been placed on the assessment-roll annexed to the warrant delivered to the collector at a valuation less than that actually appearing upon the origimal assessment-roU signedhy the assessors, said board of supervisors shall proceed to levy tax on the same upon a valuation equal to the difierence between the actual valuation made by the assessors and the amount at which, by such mistake, it was placed upon such roll, and at the rate per cent of the tax imposed upon land or property in said town in the year in which said mistake oc- curred. Chap. 453, Laws of 1865, and chap. 575, Laws of 1868j 2 B. S. 1002, § 4. See notes to section 335 and chap. 306, Laws of 1886. "Manifest Errors." — The board of supervisors of any county, except New York, Kings and Albany, by a vote of two- thirds of all the members elected thereto, may correct any manifest •clerical or other error in any assessments or returns made by any town officer to such board, or which shall properly come before such board for their action, confirmation or review. Chap. 855, Laws of 1869, as ameoded by chap. 826, Laws of 1885. See chap. 806, Laws of 1886. See Refunding Taxes, §§ 347, 348, post. Albany county has a special act, chap. 533, Laws of 1887, and the Bangs county act is at § 617. As these two cases are governed by the same principles they will be discussed together. It is these cases which seem to be most misunderstood. They are interpreted as allowing the board to correct almost every thing that may be asked for; as sanctioning the reviewof the assessors' valuations and decis- ions; as allowing names, amounts and taxes to be changed at pleasure on the roll, as allowing clergymen and others to be given deductions and exemptions on their assessment, etc. The meaning of the statute is clear. It does not give the board of supervisors power to review valuations, and then increase or diminish them, according to their notions of what they should be. It is simply to compare the copy of the assessment-roll brought to them by a supervisor, with the original roll made and deposited by the assessors, for public inspection, on or before August first (and if on review day reductions were made on the application of a tax payer, such reductions should appear on the original). Whatever thus appears on the original ought to appear in the copy used by the board of supervisors, and the said copy may be changed to correspond with the original under this law. The sources to which they can look for the errors are the original and copy only. If the error is not " manifest " on suchcom/pa/Hson, it is not within the power of the board of supervisors to correct it. The valuation, fixed by the assessors is conclusive on that point, until set aside by a proceeding in the courts, instituted for that purpose. Albany & W. S. R. R. v. Town of Canaan, 16 Barb. 244; Uayor etc., v, Davenport, 92 N. T. 604; People, acrd. v. Halsey, 87 id. 844. Of the Assessment and Collection of Taxes. 255 If the rolls are regular on tlieir face, the board of supervisors cannot enter into an examination to see if the assessors have done their duty^ Id. ; Westfall v. Geere, 49 N. T. 349. The authority to correct any manifest clerical or other errors in any agsess- meuts or returns was not intended to and does not subject all assessments to review or permit a correction of all errors, but simply of those which are mani- fest, that is apparent by an examination of the assessment-roll or return, needing no extrinsic evidenee to make them clear, and which are also clerical or other errors in the assessments or returns, that is some error otform in the assessment- roll, not an error of the assessors in making the assessment, nor any substantial error of judgment or of law. In re Hermanoe, 71 N. T. 481 ; People, ex rel. Chamberlain, v. Com'rs, 96 id. 544. The words " or other errors " mean errors of "form," not mbstance. Id. The omission of the assessors to deduct the assessed value of the real estate of a bank from-the value of its shares of stock is not a " manifest clerical or other error" to be corrected by the board of supervisors. In re Farmers' National Bank of Hudson, 1 T. & C. 383. Where Mr. W. petitions that he is assessed for 278 3-4 acres, when in fact he only owns 249 3-4 acres, and is assessed therefor at $4,759 instead of $4,266, the board of supervisors have no power or right to help him — his remedy was on " review day" before the assessors, and if refused, to apply to the courts. That is the only method prescribed by law. Mistakes in addition can be properly changed. In one county the name of ' ' John Fisher " was changed on the assessment roll to "John Fuhrer," and his assessment from "$1,000" to " $500." This was illegal and improper unless the name of "John Fuhrer" and "$500" appeared on the original roll. Another struck ofE the name of " G. E. U." assessed for real estate $200. This was also illegal and improper for a like reason, except as above provided. Another changes the assessment of " T. D. as guardian," to " F. B." This is also illegal. Another changes the assessment of N. K. to Mrs. N. K. These are also illegal unless the original showed the name of " F. B." and "Mrs. N. K." The reason for the limitation of the supervisors' power is quite obvious. They "levy the taxes. If they could also change the assessment-rolls in names and amounts, at their own pleasure, then all the taxes could be placed on one man, one corporation or one town, and the rest stricken from the rolls, as "manifest errors." To avoid this, two separate and distinct classes of officers are provided, to fully and finally complete assessments. One, the assessors who " ®aZM« " and "name;" the other the board of super- visors, who levy taxes and place the amount, on the roll, opposite the " name " and " value " furnished by the assessors. The functions of the two classes are distinct, entirely separate and independent. The safe rule for the supervisors to adopt, as a general thing, is to place oppo- site the names and values they find on the assessment-rolls produced before them, the amount of tax levied. If the assessors have acted illegally, the tax payer has his remedy against them. If the tax payers neglect to avail themselves of " review day " and proceedings through the courts, they have only themselves to blame for it. If the rolls are regular on their face, the supervisors should, as a rule, leave them alone. The exceptions to the rule are given in the statutes above quoted. If an assess- meut-roU is not regular on its face a different question arises — For instance — A. is assessed for " $10.000 — United States securities." Such an assessment "is void. The property is whoUy exempt. Being void, and the roll showing, on 256 SuPEEVisoEs' Manual. its face, such fact, the supervisors could not levy a tax thereon without making themselves personally liable. In such case it is properly stricken from the roll, not because it is a manifest clerical error, but because a " void " act is void, always and everywhere. Westfall V. Gere, 49 N . T. 349; Bellinger v. Gray, 51 id. 610; 5SN.T. 49; 86 id. 839. The assessors never had any jurisdiction over such property, and for the pur poses of taxation it is the same as if it never existed, or as if it were situated in the moon. But if the property does come within the jurisdiction of the assessors, as a clergyman's property assessed $1,500.01 which is partly exempt, in such case the board, have no right to alter, change or interfere with the valuation. Id.; Barhyte v. Shepherd, S5 N. Y. 238; Weaver v. Devendorf, S Demo, 116. See, also, Decisions under § 269. § 344. Form of Report. To THE Honorable Board op Supervisors of Onondaga Countt; Tour Committee on Erroneous Assessments, to which were referred the several matters hereinafter set forth, beg leave to report as follows: Town op A. On the petition of the aissessors of the town of A., to correct the assessment roll of 1885 of said town, in the case of Frank P. Avery, your committee report in favor of said petition, and that the sum of $4,490 be added to the town roll and assessed to Frank P. Avery, that being the amount assessed to him in the year 1884. (And so on with each town in alphabetical order.) All of which is respectfully submitted. Dated , 1885. A. B., C. D., E. F., COMUITTEE. In Oneida county this committee is furnished with a printed report blank, hav- ing upon it the instructions for the committee's use. A copy is as follows: To THE Board op StrpERVisoRS of the Countt op Oneida: The Committee upon Erroneous Assessments, to which was referred the appli- cation of , for the correction of errors in the assessment-roll of , the current year, report that they have duly examined the same and find that the alleged errors are sustained, and recommend that the same be corrected by the supervisor thereof, in accordance with the prayer of the petition. Dated Utica, , 18 . , Chairuan. (The committee will detach these instructions from the report.) INSTRUCTIONS TO THE COMMITTEE ON "ERRONEOUS ASSESSMENTS." " Whereas, Applications for the correction of alleged errors in the several as- sessment rolls of this county are becoming numerous, rendering it very important that a uniform system should be established by this board upon such applications; therefore " Resolved, That in the future all such applications must be presented within five days from the commencement of the annual sessions of the same. Of the Assessment and Collectiok of Taxes. 257 "Resolved, That such applications must he upon the petition of aggrieved parties, clearly stating the basis of the alleged error, which statement must be duly verified by the applicant and accompanied by tlie certificate of a majority of the assessors of the tovm, or city where tlie property %s located, asserting that the said statement of errors is correct; except in cases of double assessments, which may be established by the production of the assessment-rolls containing such assessments. "Resolved, That upon the presentation of such petitions, the same shall be re- ferred to the standing Committee on Erroneous Assessments, who shall proceed ' 'First. To examine the same and determine whether it is in conformity to this resolution. " Second. To ascertain if it is within the powers and jurisdiction conferred upon this board by chapter 855, Laws of 1869 (as amended by chapter 326, Laws of 1885). "Third. To ascertain and determine if the averments of error are fully estab- lished, and report each case separately with their conclusions thereon to the board for its action. "Resolved, That the action and judgment of a majority of the assessors in each of the several cities and towns In fiaing and determining the value of real estate therein is final and coneluswe, and this board will not hereafter entertain applica- tions to change the same." § 345. Resolution Confirming' Alterations in tlie Rolls< — Having made such changes in the rolls as the board are authorized to make, a resolution in the following form will make the changes so made by the committee, the act of the board of supervisors : Whereas, Certain manifest clerical errors and errors in footing existed in the assessment-rolls and assessments presented to this board by the officers of the several towns and wards of this county for their action, confirmation or review, and the same have been corrected by the committee on footing assessment-rolls, as follows: {here specify t7i,e changes). Resolved, That the corrections so made by said committee, and the assessments and valuations as corrected on said assessment-rolls, be, and the same are hereby ratified, confirmed and legalized in pursuance of chapter 855, Laws of 1869, as amended by chapter 336, Laws of 1885. The duty of passing upon the question of a corrected assessment-roll, and certi- fying to its accuracy and completeness as a perfected roll is a judicial duty which cannot be delegated. People T. Hagadorn, 104 N. Y. 516. The board of supervisors, not a committee nor individual supervisor, must act thereon, as a board AS TO STATE TAXES. § 346. To Ies to be Recliarg-ed to County. — If the whole amount of the tax, in case of such over- charge, shall have been paid to the county treasurer, out of the treasury of this State, the comptroller shall charge the amount so refunded, with interest and charges thereon, to the treasurer of the county from which the tax was returned and shall transmit an ac- count thereof to him. 2 R. S. 1023, § 31. § 349. To-wn to be Liable Therefor.— Such county treasurer shall deliver such account to the board of supervisors at their then next meeting, who shall cause the amount thereof to be added to the proportion of the charges of the county to be raised in the town in which the tax was laid. Id., § 32. The above relate to the collection of taxes on lands of non-residents. § 349^. Tax to be Extended.— After the committees on erroneous assessments and footing assessment-rolls report, the rolls go to the equalization board or committee. The subject of " Equalization " will be treated later. See "Equalization." The board of supervisors shall also estimate and set down in a fifth column, to be prepared for that purpose in the assessment-rolls, opposite to the several sums set down as the valuations of real and personal estates, the respective sums in dollars and cents, rejecting the fraction of a cent, to be paid as a tax thereon. 2 R. S. 996, § 33. The hoard is required, not only that it shall establish a ratio upon which the tax is to be based, but also, that it shall compute and enter in the roll, in a column opposite the valuation of real and personal estate, the amount of tax levied thereon ; this must be done under the supervision of the board and before the roll can be certified to as completed. People V. Hagadom, 104 N. Y. 516. The board of supervisors cannot amend the roll of any town, after they have finally acted on it and issued their warrant to the collector. People, exrel. Lorillard, v. Supervisors, 15 Barb. 607; People, ex rel. Weeks, v. Supervisors Queens Co., 82 N. Y. 275. 362 SuPEKVisoKs' Manual. The assessment-roll must be completed (the tax inserted and confirmed) before the warrant is annexed thereto. Bellinger v. Gray, 51 N. Y. 610. Where a board of supervisors adjourned sine die, and delivered to a supervisor the assessment-roll of his town, with no figures a « ». .a S a c " OS S "S a a o £■ . m o o o » aj3 O V V 9 sjA Q O O O ©CO aaaaa PiCU as o o o o aa ^S" Of the Assessment and Collection of Taxes. 265 ASSESSMENT-ROLL OF THE TOWN OP , THE YEAR 1889. Lands op Non-Rbsidents, COUNTY OF , FOR No. of lot. S 10 Nahb op Teact, Patent, etc,, and De30biption op Part. No. of Acres. 88 1 20 6S HARDENBURGH PATENT, Obeat Lot No . 3, &th Allotment, Division 3, S. E. }i. Highway Highway School Highway School Highway Highway 48 Division 6, North i. Rejected 1888 Rejected 1888 Rejected 1888 Resident 1887 Resident 1887 E. part, bounded W. by land of John Squeers, 17,000 Aa-e Tract, Division 7, S. W. Corner, bounded N. by P. B. Buckley & Son's land and E. by Hoit Brothers' land, Gbbat Lot 4, ^aat Division, Middle Allotment, N. E. Corner, 20 chains long N. and S. and 15 chains wide E. and W., N. W. Corner, bounded E. by Highway and S. by land of John P. .Tones, School West Division, East Allotment, Ray's Tract, All in this County, NOT ON ANT MAP, NOR IN ANT VILLAGE OR NAMED TRACT, Bounded N. and W. fey lands of C. V. Baker, E. by the Hudson River and S. by land of John Sill, School OLD MILITABT TRACT, Township 1, ITiorn's Snrveiy, Except N. B. 1^, . „ „ N. E. 3^, except undivided J^ paid by Smith Bell, Township 12, Michardi Survey, Sub. 1, N. part, 60 chains wide N. and S., All in this town. Resident 1888 Thorn's Bwney, Bounded N. and S. by lot lines, E. by the Highway and W. by land of Peter Mesiok, tonawanda tillage. Block 2, WISCOT VILLAGE, Main Street, Sodth Side, Bounded N. by Main Street, E. by land of John Riggs, S. by land of Paul Kidder, and W. by land of Samuel Davis, Highway Valu- ation. 100 160 17 158 93 120 172 386 708 $64 20 100 120 287 287 30 40 66x132 50x200 Amount of tax. 34 79 193 400 73 146 Feet. 186 1 120 20 80 60 80 50 366 SupBRvisoEs' Manual. The following description of non-resident lands was held sufficient: LIST OP LANDS BELONGING TO NON-EESIDENTS IN TOWNSHIP NO. 1. RANGE 3. Formerly known as the Holland Land Company's Lands. Number of lot. Number of township. Number of range. Number of acres. Full value of land, in dollars. Amount of tax in dollars. Bemarks. S4 1 8 150 $500 00 See Colman v. Shattuck, 5 T. & C. 84-39 ; S. C, 62 N. T. 848-862, or the following form. Tbe FolloTTing Descriptions and Rolls liave been lield Insufficient. COLUMBTJSVILLE. Street. Side. Number. Block. Size. Tax. Newtown road North « P. 25 ?5 Pink T. Barbin, 17 Dig. 621. ^ Distance from Tax. *! •a d g ■g what street. u O 0) 3 o o s .a' O 1 1 I o .a 03 t > ■a I o 5 98 •• 65 185 30 N. E. rear. Exchange. S. 2074 E. Beak. $8,500 00 44 10 /» rt N. Y. C. & H. R. R. Co., 90 N. Y. 342. CITY OP KINGSTON TAX-ROLL POR THE YEAR 1872. Ward No. 8. Names of taxable inhabitants. Quantity of land. Value, real. Value, personal. Total valuation. General tax. Foster, Joseph, or occu- pant ,,, ,. 11,200 $1,200 $86 07 Dubois V. Webster, 7 Han, 871. Of the Assessment and Collection of Taxes. 267 lots returned for buffalo street improvement. Middle Sbction. Names of possessors or reputed owners. General tax. of Ogden, lot 40 $2.35 Hubbell V. Weldon, Hill & Denio, 139. "The following piece * * ♦ in the county of Snllivan.Minisink patent, divis- ion one (1) lot twenty-eight (38), four hundred and fifty-five (455) acres, more oi less, bounded north and south hy the lot lines, east ly resident land and west hv the town of Forestburgh." ' Oakley t. Healey, 88 Hun, 244. The faulty houndary was " east ly resident land." ^n'i-i''l"''n-'^- '■^l?;■ Iv^- * ^- I^-^I^vIi-. W N. T. 191; Hubbell v. Weldon, HiIlA Demo, 139; Thompson v. Biirhaas, 61 N. T. 52; Tallman v. White! 2 id. 66. ^^ The above will illustrate the principles determining these cases. The following circular sent out by the comptroller shows his views in the matter: (No. 200.) STATE OP NEW YORK : Comptroller's Office, Albany, 'ICB, \ , 188 . ) To THE Assessors op the Town of- Gentlembn — Inclosed herewith we send you a copy of chapter 280 of the Laws of 1886, which authorizes, under certain conditions, the taxation of " wild or forest lands " belonging to the State within the Forest Preserve. In order to sat- isfy this department and the forest commission that no unjust discrimination has been made against the State in the valuation of such lands, but that State lands in your town are assessed for no larger sum than lands of the same class belong- ing to individuals, as well as to facilitate compliance with the provisions of said act, aM the requirements of which vnil he strictly enforced, you will please care- fully read and observe the following general directions, viz. : Mrst. Your assessment-roll must be divided into three parts, respectively headed, "Resident Lands," "Non-resident Lands," and "Wilder Forest Lands belonging to the State. " Second. All the laws governing the assessment of non-resident lands will apply to and must govern the assessment of State lands ; and, furthermore, the assess- ment of all lands, no matter under what head they may come, must show the character of the lands assessed. In designating such character, the following words, which will have the meaning set opposite each, will be employed : " Cleared." Meaning improved lands of any kind, including fallows, "Meadow." Meaning wild, unused meadow lands. If pastured or mowed, or nsed by any one, they become thereby cleared lands. " Water." Meaning lands covered by considerable bodies of water. 368 SuPEEVisoEs' Manual. "Waste." Meaning rocky, barren or sterile lands, incapable of raising a forest. " Burnt." Meaning lands burnt over since June 1, 1885. " Denuded." Meaning lands stripped of timber, by fire, prior to June 1, 1885, or from any other cause, at any time, and not yet occupied by a new growth of trees. " Lumbered." Meaning forest lands from which the soft timber has been re- moved. " Forest." Meaning virgin forests, unharmed or untouched by ax, fire or floods." In many instances a lot or parcel of land may possess a variety of characters, in which cases the proportion, as near as the same can be estimated without an actual survey or measurement, as well as the value of each part, must be separately and plainly given. The following examples, adapted to each division of the assess- ment-roll, fully and clearly illustrate the mode of characterizing land and valuing it in accordance with its character : Resident Lands. Names of Taxable Inhabitants. Acres. Value of Land Taxed. Total Valup. Doe John 50 cleared $500 00 "640'66 40 00 160 00 640 00 $500 00 800- ' 80 water 160 cleared 80 burnt 160 lumbered.... 320 forest 1,480 00 Non-Eesident Lands. No. of Lot. Description of Land. Acres. Value of Land. Total Value. 1 Totten and Crossfield's Purchase, Township 44 1050 -maoAry,^ $3,100 00 400 00 120 00 50 00 60 00 $2,100 00 5 1050- 1050- '100 cleared.... 600 water 100 burnt 250 denuded . . 820 water 630 00 8 550 forest ^180 lumbered.. 2,200 00 360 00 2,560 00 Ob the Assessment and Collection of Taxes. 269 Wild ok Fokest Lands BELONGrrrG to the State. No. of Lot. Description of Land.. Acres. Value of Land. Total Value. 9 Benson Township. 160 IROh burnt $40 00 20 00 40 00 20 00 '"iiooo 66 1,000 00 1,300 00 $40 00 14 80 waste 29 ^"^ \ 80 lumbered . . 60 00 20 00 Totten and Crossfield's Purcliase, Township 8, S. W. i, S. W, cor. 100 cleared ... 250 water ^^°^j 1000 lumbered. [650 forest 3,300 00 TJiird. As wild or forest lands are the only State lands subject to assessment, the acreage thereof " cleared" or " water " should be designated, but such acreage should not be assessed. Fourth. Your oath, as assessors, cannot be made on the roll until after review day, or the third Tuesday of August; but such roll can be so progressed by the middle or latter part of July as to be virtually completed, a copy of which, show- ing your assessment of State lands subject to taxation, must, on or before August first in every year, be filed in this oflice, and another in the office of the forest commission. At the end of the said copy-rolls to be filed in this oflice and the office of the forest commission, you should cause to be written the following form of oath, which should be sworn to by each assessor or by a majority of the board, before a competent officer: " We, the undersigned, assessors of the town of . in the county of. , do severally depose and swear, that the preceding is a true copy of the assessment-roll of said town for 188 ; that we have set down in the foregoing assessment-roll all lands in said town that we have been informed belong to the State ; that we have designated to the best of our information and belief, the character of each parcel of land assessed, whether belonging to the State or individuals; that the value of State lands has been de- termined from their character, and the value of lands of the same class and char- acter assessed to individuals or as non-resident lands ; and that no fallows, or cleared or improved lands of any kind, belonging to the State, have been assessed, but that the only State lands assessed by us have been wild or forest lands," ASSKSBOKS OF THE TOWN OF- Subscribed and sworn to before me, this ) day of . loo ■ ) See " Section 352," post. 270 SupBKVisoRs' Manual. § 352. In assessing lands, if one person own two or more separate, distinct and disconnected pieces or parcels thereof, each piece or parcel should be assessed and valued separately and so entered upon the roll. The amount of tax against it should be entered opposite to this separate entry and not " aggregated " or combined. This is especially to be followed in assessing non-resident lands, wherein the name of the owner does not appear and consequently no personal liability attaches to him. In such case, the lien is upon the land only. Not a general lien upon all the lands owned by him in that town, but upon the particular separate piece mentioned and de- scribed in the roll. It is the safest course in every case, resident or non-resident, to assess separately each separate disconnected piece. Welty law of Assessment, §§ 110 «i seq. In fact, the better way is to abolish the use of the " aggregate " or *■'■ total " column now printed in the assessment-rolls, both for real and personal property. " Where real and personal property, also where separate parcels of real property and distinct classes of personal property, are embraced in the same assessment to the same owner, each should be valued separately." Id., S 141. " The tax payer has a right to know how much each tract and class of property has been valued at, so that he may exercise his right to apply * * * for correction or reduction." Id. § 353. If a change in ownership is made between July first and the time taxes are levied by the board, the rolls will show on their face what piece is affected by the tax set opposite, and the persons interested in that particular piece can pay the amount levied, and thereby relieve the lien. Where such pieces are in the possession of tenants, or are worked on shares, etc., each person wiU be enabled to pay the tax on the piece in which he has an interest, without regard to other pieces owned or in the possession of other persons. No matter how large the tract, if owned by the same owner, and is not subdivided by him, and is connected and used as one tract or parcel, the assessor must assess and value separately. This is the rule in this State. Thompson v. Burhans, 61 N. T. 62. Of the Assessment and Collection of Taxes. 271 In coTinties having lands of the kind mentioned in the comp- iroller's circular, care must be used in carrying out the separate assessment of separate, distinct parcels. For insttoce : In resident lands to "Eichard Eoe, 800 acres." The "form" suggested is cor- rect, provided the 800 acres are in one parcel. If there were two or more parcels disconnected, separate and situated in different parts of the town, it would not be correct. § 354. Delivery to Collector.— The boards of super- visors of the several counties in this State shall cause the corrected assessment-roll of each town or ward in their respective counties, or a fair copy thereof, to be delivered to the collector of such town or ward on or before the fifteenth day of December in each year. 2 R. S. 996, § 86. Upon an application to the comptroller for the cancellation of a sale of non-resi- dent land for the non-payment of taxes assessed against it in 1870, it was shown by the applicant that the original tax roll for that year was lost, that a paper on file in the town clerk's office, which purported to be a copy of the corrected as- sessment-roll of the town for that year, did not have upon or annexed to it the oath of the assessors, nor was there any " fifth column " as required by the stat- ute, nor was the amount of the tax set down in dollars and cents. The affidavits of the collector and the certificate of the county treasurer, filed in the office of the comptroller as required by law, were sufficient in form and substance to au- thorize the comptroller to make the sale. Held, that the defects in the copy filed in the town clerk's office did not estab- lish the existence of those defects in the original roll. That the fact that the copy filed in the office of the town clerk for the use of the town as required by section 35 of 1 Revised Statutes, 396, was not a correct copy of the original roll, did not invalidate the sale. That the action of the comptroller in refusing to cancel the sale should be affirmed. People, ex rd. Wright, v. Chapin, 38 Hun,_ 272. § 355. 'Warrant to be Annexed ; Its Con- tents. — To each assessment-roll, so delivered to a collector, a war- rant, under the hands and seals of the board of supervisors, or a majority of them, shall be annexed, commanding such collector to -collect from the several persons named in the assessment-roll the several sums mentioned in the last column of such roll opposite to their respective names. If the warrant be directed to the collector of a town, it shall direct the collector, out of the moneys so to be collected, after deducting the compensation to which he may be legally entitled, to 373 SuPERvisoKS' Manual. 1. To the commissioners of common schools of his town such sum as shall have been raised for the support of common schools therein. 2. To the commissioners of highways of the town such sum as shall have been raised for the support of highways and bridges therein. 3. To the overseers of the poor of the town, if there be no county poor-house, or other place provided in the county for the reception of the poor, such sum as shall have been raised for the support of the poor in such town. 4. To the supervisor of the town all other moneys which shall have been raised therein to defray any other town expenses ; and, 5. To the treasurer of the county the residue of the moneys so to be collected. If the warrant be directed to the collector of a ward, it shall direct the collector to pay all the moneys to be collected, after deducting Ms compensation, to the treasurer of the county. In all cases, the warrant shall authorize the collector, in case any person named in the assessment-roll shall refuse or neglect to pay his tax, to levy the same by distress and sale of the goods and chat- tels of such person ; and it shall require all payments therein speci- fied to be made by such collector on or before the first day of Feb- ruary then next ensuing. Id., 8 sr. See Decisions under § 356. See Kane v. Brooklyn, 21 N. E. Eep. at § 330, ante. By chapter 377 of the Laws of 1878, as amended by Laws of 1879, chapter 67, it is directed that all moneys raised and collected upon the taxable property of any of the towns of this State, for highway and bridge purposes, shaU. be paid over by town collectors of taxes to the commissioners of highways of the towns in which said moneys are so raised and collected, and to no other oflScer or person whatso- ever. It shall be the duty of the board of supervisors to issue warrants to the collectors of towns requiring the paying over by them of all moneys raised and collected for highway and bridge purposes to the commissioners of highways of towns ; and it shall not be lawful for the board of supervisors of any county to issue warrants to town collectors directing them to pay over any moneys raised and collected upon any town for highway and bridge pur- poses to the village authorities of any incorporated village, situated wholly or partly in any town. But nothing in this act shall prevent boards of supervisors from raising money imder section 2 of chap- ter 855 of the Laws of 1869, and from issuing warrants to collect Of the Asskssmbut and Collection of Taxes. 273 the necessary money to repay the same. And said boards of super- visors may appoint a commissioner or commissioners to spend and account for any moneys raised for road or bridge purposes under said chapter 855 of the Laws of 1869, under such regulations as said board shall deem proper. Section 2 of the act of 1878 requires that the money raised be expended in the town where raised, and section 3 excepts from the operation of the act incorporated villages constituting a separate road district, and special road districts provided for by special act. See Decisions under § 356. §356. Cities. — Wherever the laws respecting cities shall have directed the moneys assessed for any local purpose to be paid to any person or officer other than those named in the preced- ing thirty-seventh section, the collector's warrant may be varied ac- cordingly, so as to conform to such alteration. Id., 8 39. For Form of Warrant, see § i In the case of towns bonded for railroads, it seems that the amount required to he paid to the county treasurer and held by him as a " sinking fund," should be specified in the warrant. Clark v. Sheldon, 106 N. Y. 104; Stroughv. Supervisors, 50 Hun, 54; Wood v. Supervisors, id. 1; People, exrel. National Exoh. Bank, v. Stupp, 49 id. 544; Bridges V. Supervisor, 92 N. Y. 570; People, eerd. Martin, t. Brown, 55 id. 180. In towns bonded for certain railroad companies, the tax collected in such towns for the purpose of making payments upon the bonds goes to the railroad com- missioners. People, ex rel. Martin, v. Brown, 55 N. Y. 180. A delay in delivering the warrant until after December 15th does not invalidate the warrant. The statute is directory. People V Allen, 6 W. 486 ; Bradley v. Ward, 68 N. Y. 401 ; Board of Supervisors of Oswego Co. V. Betts, decided July, 1889, 4th Department, not yet reported. It seems to be the law and is the practice for a seal to be affixed opposite the signature of each supervisor on the warrant, Bellinger v. Gray, 51 N. Y. 610. and that the seal of the board as follows: " Seal, Herkimer County Board of Su- pervisors," is- not sufficient. Id. The official designation of the one so signing the warrant should be added also, Sheldon v. Van Buskirk, 2 N. Y. 473. although a warrant is valid if the said designation is omitted. Id. 35 274 Supervisors' Manital. The omission of the dollar mark " $ " does not render the warrant irregular or invalid. Jones V. Chamberlain, 21 Dig. 537 ; American Tool Co. v. Smith, 14 Abb. N. C. 378; 107 N. Y. 329; 36 Hun, 24. It should always appear, or the column heading specify what it represents. " In most of the other States such an omission is fatal." Welty Law Assessments, § 22.'> and notes. Moneys for the poor and highway purposes should be paid over to the proper officer, not to the supervisor . The warrant should so direct. People V. Pennock, 60 N. T. 421. § 357. Account to be Transmitted to County Ti:*eaiSUX*ei:*« — As soon as the board of supervisors shall have sent or delivered the rolls, with such warrants annexed, to the col- lectors, they shall transmit to the treasurer of the county an account thereof, stating the names of the several collectors, the amount of money they are respectively to collect, the purposes for which the same aj-e to be collected, and the persons to whom, and the time when the same are to be paid ; and the county treasurers, on receiv- ing such account, shall charge to each collector the sums to be col- lected by him. Id., 5 88. See Form below. See Report of Committee on " Ratio and Apportionment," post. § 358. "Where Collector Neglects to Qualify. — In case the collector of any town in this State shall neglect or re- fuse to execute his bond as required by law, or the supervisor of the town shall refuse or neglect to appear and file such bond within the time prescribed by law, and if no new collector shall have been appointed ^^ithin ten days after the time for filing such bond as re- quired by law has expired, the board of supervisors of such county are authorized and empowered to deliver the corrected assessment- roll, or a copy thereof, with a warrant of said board of supervisors, or a majority of them, annexed, to the sheriff of the county, who shall proceed in the collection of said taxes in like manner as collect- ors are now authorized by law to do, and with the like powers and subject to the same duties and obligations ; such warrant shall re- quire all payments therein specified to be made by such sheriff within sixty days after its receipt by him ; and the expenses of collection, if any, over and above the fees lawfully chargeable by the collector, to be audited by the board of supervisors, shall be a charge on the town. Laws of 1857, chap. 585; 2 R. S. 1013. Of the Assessment and Collection of Taxes. 275 § 359. Where Collector Refuses to Serve.— If any person chosen or appointed to the office of collector of any town or ward in this State shall refuse to serve, or shall die, resign or move out of the town or ward before he shall have entered upon or completed the duties of his office, or shall be disabled from com- pleting the same, by reason of sickness or any other cause, the super- visor and any two justices of such town or ward shall forthwith appoint a collector for the remainder of the year, who shall give the like se- curity and be subject to the like duties and penalties, and have the same powers and compensation, as the collector in whose place he was appointed ; and the supervisor shall forthwith give notice of such appointment to the county treasurer. But 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 prior to any appointment under the last section, the original war- rant, if the same can be obtained, shall be delivered to the collector so appointed, and shall be considered as giving him the same power as if originally issued to himself ; but if such warrant cannot be ob- tained, a new one shall be made out by the clerk of the board of supervisors of the county, which shall be directed to the collector so appointed. And upon every such appointment, the supervisor of the town or ward, if he shall think it necessary, may extend the time limited for the collection of the taxes for a period not exceeding thirty days ; of which extension he shall forthwith give notice to the county treasurer. 2 R. S. 1009, §§ 11 and 12. § 359^. Collector's Warrant — Town Col- lector. STATE OF NEW YORK, ) . County op Oneida, j ' THE PEOPLE OF THE STATE OF NEW YORK: To John Dob, Collector of the Town of Camden, in said Countt, Greeting: You are tereby required and commanded to collect from tlie several persons named in the assessment-roll, to whicli this warrant is annexed, the several sums mentioned in the last column thereof, to- wit, the fifth column, and set opposite to the names of such persons respectively, together with your fees thereon. And for that purpose you are required, immediately after receiving this war- rant, to cause notices of the reception thereof to be posted up in five public places in said town, and so located as will be most likely to give notice to the inhabitants thereof; and you are required to designate in such notice one or more convenient nlaoes in such town where you will attend from nine o'clock, forenoon, till four 276 SuPEEvisoKs' Manual. o'clock, afternoon, at least three days in each week, for thirty days, which days shall also be specified in such notice, for the purpose of receiving payment of taxes; and you are required to attend accordingly; and any person may pay his taxes to you at the time and place so designated, or at any other time or place, on pay- ing one per cent fees thereon, -within thirty days from the first posting of said notices; and you are not allowed to receive over one per cent fees for receiving or collecting any taxes within the said thirty days; but you are entitled to receive- one cent fees on every amount of tax under one dollar paid in or collected within said thirty days, except in cases where it is now otherwise provided by law. And, after the expiration of the said thirty days, you are to proceed and collect the unpaid taxes in the manner provided by the 3d title of the 13th chapter of part 1st of the Revised Statutes, and statutes subsequent thereto; and it will be your duty, for that purpose, to call at least once on each person taxed, or at the place of his usual residence, if in said town, and to demand payment of taxes charged to him on his property; in case any person or persons named in said assessment- roll shall refuse or neglect to pay the tax imposed on him or them, you will levy the same by distress and sale of the goods and chattels of the person or persons^ who ought to pay the same, or of any goods and chattels in his or their possession, wheresoever the same may be found within your district; and no claim of prop, erty to be made thereto by any other person, shall be available to prevent a sale. In case any person or persons upon whom any tax is herein assessed shall have removed from the town or ward after such assessment, and before the tax thereon ought by law to be collected; or if any person or persons sball neglect or refuse to pay any tax which is assessed upon any estate situated out of the ward or town in which they shall reside, and within this county, you will levy and collect the tax of the goods and chattels of the person or persons so assessed,, which may be found in any ward or town within said county to which such per- son or persons shall have so removed, or in which they shall reside. And in every case where the tax shall be received or collected after the expira- tion of the said thirty days, you are entitled to charge, collect and receive the same fees which are provided by law (independently of the act of May 10, 1845), namely, five per cent fees upon the amount received and collected for tax in each, case; which said fees shall be collected with said unpaid taxes from the several and respective persons named in said tax list And you are further required and commanded that out of the moneys to be col- lected by you (exclusive of your compensation for collection, to be received or collected as aforesaid), you do on or before the first day of next, pay: 1. To the commissioners of highways in said town, the sum of. ___ 3. To the supervisor of the said town, the sum of. 3. To the treasurer of the county of Oneida, the sum of — u.. R \. S. t,. S. 1.. H. L. t). L. S. being the whole residue of the sum to be collected by you (exclusive of your fees) as aforesaid. (See note.) In -witness whereof, the board of supervisors of said county, in annual meeting assembled, have hereunto set their hands and seals, this day of — 18 . A. B. C. D. E. F. G. H. J. K. L. M. {And so on with each member of the Boa/rd of Bwperxiisors.) In counties which have no county poor-house or other place provided for the- reception of the poor, or those acting under the Livingston county act, or where^ the board, by resolution, have acted under the provisions of chapter 655, Laws of 1887, which reads as follows : (The board of supervisors" of any county in this State may, by resolution, direct that the money to be raised in the several towns of said county, for the support of the poor in said towns, be paid to the overseers of the poor of the respective towns, instead of to the county treasurer, and that the warrants attached to the tax-rolls in said county direct accordingly . ) Insert, after 3d above, to- wit : "to the overseer of the poor, the sum of ." This does not apply to New York, Kings or Onondaga counties. Of the Assessment and Collection of Taxes. 277 In towns having towns bonded for railroad debts, the warrant should specify that the amount to be paid into the " sinking fund " should be paid to the oflBcer «ntitled thereto. See Decisions under § 356. Collector's "Warrant— Do^ Tax. (Heading as before.) To Collector op the Town of , in said Cottntt, Greeting: You are hereby required and conunanded to collect from the several persons named in the annexed assessment-roll, the sums charged thereto, in the appro- priate column thereof, being the taxes imposed by law by the said board upon the «aid persons, respectively, for taxes upon dogs the current year. And you are hereby authorized to levy upon any personal property which you may find in the possession of any person or persons so assessed, and to sell the iame in like manner as in the case of default in the payment of any tax imposed upon real or personal estate. You will deduct from the amount which you shall ■collect ten per cent as your compensation or fees for such service; and in case of levy and sale of property for such tax, you will add the same costs thereto which are allowed to constables for similar service. Any tax which you may return as unpaid for want of goods or chattels upon which seizure or sale thereof could be made, a schedule of such taxes, with the name of the delinquent and the amount of the tax against the said person or per- sons must be made, to which your affidavit must be attached that you have made diligent efforts to collect the same, and that you have been unable to find any property from which such collection could be enforced. The omission or refusal to fully discharge any of the duties directed by this warrant will subject you to a penalty of $10 for every such omission or refusal, to be recovered by the supervisor of your town. You will return the moneys so collected (less ten per cent for collection) to the ■supervisor of said town, within the time you are required to make other returns thereto. The amount upon the roll so payable to said supervisors, is $ In witness whereof, etc. (as before). (Signatures and seals as before.) The above warrant applies to counties acting under Ontario county law. In other counties acting under the Revised Statutes, the money goes to the bounty treasurer. The form can be varied to suit the statute governing the locality. MISCELLANEOUS. § 360. Tax for Road - Scraper, Road-Ma- Cliine, etc. — The commissioners of highways, whenever they ■shall think it necessary or useful, may direct and empower any over- seer of highways in their respective towns to procure a good and sufficient iron or steel-shod scraper, road-machine, plough, or either . of them, for the use of his road district ; or such tools, or any of them, may be purchased, owned and cared for, for and on behalf of two or more road districts in any town, jointly by the overseers thereof, whenever they shall be empowered to do so by the commis- sioners of highways and the town board of such town ; each district to pay toward the expense thereof, in proportion to the highway 278 SuPEEVisoKs' Manual. tax assessed thereiu, or the commissioners may make said purchase for the town at large, such expense to be paid for by a portion of the road tax of such district or town not exceeding one-half thereof in any one year, and which may be required to be paid in money for such purpose and be assessed and levied upon the property of said districts and collected in the same manner as taxes are now so assessed, levied and collected in the town in which such districts are situated, except that the part thereof so required to be paid in money shall be put in a separate column upon the tax-roll, and the board of supervisors of the county in which such town is situated shall cause such sums as shall be certified by said town board to be levied upon the taxable property of said districts. 2 R. S. 1215, as amended by chap. 344, Law3 of 1886. Stone Crusher. — Where a town has voted to purchase a machine for crushing stone (see ante, § 167), the board of supervisors of the county shall cause to be levied and collected by tax in any town having authorized the purchase of the same, in the same man- ner as other town taxes are levied and collected, such sum as shall be necessary to pay for the purchase of the same. Chap. 220, Laws of 1884, § 4. Tax to be I;i H. Y. 348. CHAPTER VI. CORPORATIONS — ASSESSMENT AND TAXATION OF. Sbc. 38S. Assessment and taxation of. 389. Real estate of corporations. 390. Railroad — Real estate. 391. Foreign railroads. 392. Railroad — Personal property. 893. Foreign railroads— Personal prop- erty. 894. Telegraph and telephone lines. 895. Plankroads and turnpikes. 896. Pipe-line companies. 897. Toll bridges. 398. Apportionment for school dis- tricts. 899. Corporations — Where assessed. 400. Corporations — Personal property. 401. Officers to deliver statements to assessors. Ssc. 402, What is liable to taxation there- under. 403. Banks — Shares in — Personal estate — How taxed. 404. Non-resident stockholders. 403. Banks to retain dividends. 406. Savings banks. 407. Insurance companies. 408. Co-operative or assessment insur- ance or casualty companies. 409. Fire and marine insurance. 410. State tax on franchise, etc. 411. Application for reduction. 412. Exemption. 413. Duty of board of supervisors asto incorporated companies. § 388. Assessment and Taxation of.— The law re- lating to the assessment of corporations is in a very complicated condition. The following rules will, so far as the duties of the supervisors are concerned, furnish them with the necessary informa- tion. § 389. Real Estate of Corporations.— The real estate of all incorporated companies is liable to taxation in the town or ward in which the same is situated, in the same manner as the real estate of individuals. 2 R. S. 990. See Decisions, §§ 259, 390, 401. § 390. Railroad, Real Estate. —The real estate of railroad companies is to be assessed in the town or ward where the same is located. Id. All real estate owned, possessed or appropriated by railroad com- panies is to be assessed. People V. Brie R. R. Co., 52 Barb. 105. A railroad should be regarded as a resident of the varions towns and wards through which its road extends, and assessed therein for its real estate the same as taxable inhabitants, and not as " non-resident lands." People V. Fredericks, 48 Barb. 173 ; People, ex rel. Dunkirk & F. R. K., v. Cassitv etal., 46 N. Y. 46; Buffalo & State Line R. R. v. Bd. of Suprs. of Erie Co., 48 id. 93. 300 Supervisors' Manual. The real estate of railroad corporations should be assessed at its value for the purposes to which it has been adapted, and not as mere farming lands; and in estimating the same, the assessors are not bound to consider it as mere land and superstructure isolated in their town from the other parts of the road. They are entitled to estimate the value of that part of the real estate within their jurisdic- tion which contributes to make up a complete and useful railroad, extending be- yond the town they represent. People V. Fredericks, 48 Barb. 173. The assessors, in estimating the value of railroad property within the town, are not to be governed solely by its cost, but rather, though not exclusively, by its productiveness for railroad purposes, the sum it would sell for at a fair, free and well advertised sale. People, exrtl. Ogdensburgh & L. C. R. R., v. Pond, 18 Abb. N. C. 1 ; People, ex rel. Citizens* Gas-light Co., v. Assessors, 89 N. Y. 81. The taxable value of a railroad should not be determined alone by the long, narrow strip of land for farming or any other purpose, except its use for the bed of a railroad. Nor should the portion of a railroad situated in a particular town be estimated by the cost of any expensive rock cut, or quicksand filled, or a long tunnel located in that town. It should be valued as a part of a whole, a continu- ous way to carry passengers and freight from one commercial business point to another and the profits of its use for that purpose. People, exrel. Ogdensburgh & L. C. R. R., v. Pond, 13 Abb. S. C. 1, and cases cited. The consideration of profits should have a large if not controlling influence upon the value of almost every thing, except when considerations of taste or pleas- ure or comfort are involved. A thing to be worth its cost must be able to pay out of the profits from its use and enjoyment an income bearing some relation to the interest due from an investment or loan of a sum of money equal to such cost, and overaud above the loss by wear or waste. Id. Although in determining the value of railroad or canal property, for the par- poses of taxation, the cost of creating it may be considered, yet its earning capacity should be the more controlling consideration or test. People, «r rel. Pres, D. & H. Canal Co., v. Roosa, 2 How. (N. S.) 464. It seems that to arrive at the assessed value of real estate not situate in the town or ward, if within the State, it may be ascertained from the proper assessment- rolls ; if in another State or country, or if, for any other reason, its assessed value cannot be ascertained, the price paid, in the absence of proof or of any other standard, may be taken as the assessable value. People, ex re2.Twenty-tbird St. R, Co., v. Commissioners, 95 N, Y. 664. See { 401, .post. In proceedings instituted under chapter 269 of 1880, to review an assessment of real estate belonging to the relator, it is proper to make the test of the value of the property for assessment for the purposes of taxation, to consist in its earning capacity, rather than to adopt for that purpose the cost of its construc- tion, not that its earning capacity should be taken as an absolute test of its value, but that it should be treated as an element in the problem, and as a safer and more just guide than is the cost of construction. This is especially the case when estimating the value of the real estate of a railroad, when the road is of small intrinsic value as compared with its original, actual cost. People, ex rel., v. Keator, 36 Hun, 592. In proceedings instituted by the relator, a railroad company, to review an assess- ment made by the town assessors, the court at a special term reduced the as.sess- ment imposed upon the main track of the relator upon the ground that certain sums should have been deducted from the earnings of the relator in determining its net earnings. COKPO RATIONS — ASSESSMENT AND TAXATION OF. 301 Tlie method adopted by the court was based upon the a/eerage of the earnings tat the preceding five years, and consisted in deducting from the gross earnings: 1. The net earnings of its freight cars on other roads; 2. The value of the use of its freight cars on its own road at the same rate; 3. The amount received fromrentals of its real property not used in its business; 4. Interest at the rate of five per cent upon the value of its side tracks; 5. Interest at the rate of five per cent upon the value of its coaches and cars, other than freight cars; 6. Interest at the rate of five per cent on the value of its locomotives; 7. Interest at the rate of five per cent upon the value of its depots, docks, sheds and lands outside of the main track not rented but used in its business. This residue was capitalized at five per cent, and that sum divided by the num- ber of miles in length of such track, was fixed upon as its value per mile. Held, that in the absence of any evidence tending to show that the results of the five years' business did not fairly indicate its present financial importance, or of mismanagement tending to show that the earnings failed to represent reason- ably the productive character of the road, or that there existed undeveloped fa- cilities upon which to found, or which necessarily required an estimate of present value in addition to that produced by the net earnings, the general term could not say that the method of estimate adopted by the special term was erroneous. The length of the relator's road, including its branches and leased lines, was 417 8-100 miles, of which that of the leased lines was 36 58-100, and that of its other branches 96 37-100. The rent paid for the leased lines exceeded largely their net earnings. To ascertain the value per mile the court divided the sum of the capitalized average net earnings per annum for the five years by the whole number of miles of road, less the leased lines. Held, that it did not err in so doing. People. «a! «?. Eome, W. &0. E. E. Co., v. Hicks, 40 Hun, 598; affirmed, 105 N. Y. 198. It is proper for assessors in vahiing the property of a railroad corporation in their town liable to assessment, to take into consideration the verified reports of the company as to earnings, made as required by law. It seems that assessors are not required to apply the rigid rules of evidenee in itivestigations before them where assessments are contested. People, exrd. R., W. & 0. R. E. Co., v. Hicks et at., 105 N. T. 198. § 391. Foreign Railroads. — AH corporations formed under the provisions of the "Act to authorize the formation of cor- porations for the purpose of acquiring, constructing and operating railroads in foreign countries," shall be subject to taxation upon the amount of the real or personal property owned by such corporations within this State. Laws of 1881, chap. 468, 8 13; People v. Equitable Trust Co. of New London, 96 N. Y. S87. Consolidated Companies.— It shall and may be law- ful for any railroad company or corporation, organized under the laws of this State, or of this State and any other State, and ope- rating a railroad or bridge, either wholly within, or partly within, and partly without this State, to merge and consolidate its capital stock, franchises and property with the capital stock, franchises and property of any other railroad company or companies organized un- 302 Supervisors' Manual. der the laws of this State or under the laws of this State and any other State, or under the laws of any other State or States when- ever the railroads or branches, or any part of the railroad or branches of the companies or corporations so to be consolidated, shall or may form a continuous or connected line of railroad with each other, or by means of any intervening railroad bridge or ferry. Chap. 917, § 1, of 1869, as amended by chap. 685, of 1881 . Assessment of Real and Personal Property of Xe\r Corporation in this State. — The real estate of such new corporations, situate within this State, shall be assessed and taxed in the several towns and cities where the same shall be situated in like manner as the real estate of other railroad corpora- tions is, or may be taxed and assessed, and such proportion of the capital stock and personal property of such new corporation shall in like manner be assessed and taxed in this State, as the number of miles of its railroads situate in this State bears to the number of miles of its railroad situate in the other State or States. Chap. 917, § 6, of 1869. § 392. Railroad— Personal Property.— The per- sonal property of a railroad is to be assessed in the town, or ward where the principal business office is located. In assessing such property, the same rules prevail as in taxing and assessing the personal property of other corporations for such property. See poit. The officers of railroad corporations shall, on or before the first of July in each year, deliver to the assessors of any town or ward, where they are liable to taxation, a written statement, specifying the real estate owned in each town and its cost, the capital stock paid or secured to be paid, and the proportion of any held by the State or any incorporated literary or charitable institution, and the town or ward where their principal business is transacted. See section 401. §393. Foreign Railroads. — The personal property within this State owned by the companies formed for the purpose of acquiring, constructing and operating railroads in foreign countries shall be subject to taxation. Laws of 1881, chap. 469, § 13. COEPOEATIONS — ASSESSMENT AND TAXATION OF. 303 §394. Telegraph, Telephone and Electric Tiight Iiines are to be assessed in each town, or ward, for the portion thereof situated therein. The -word " lines " shall include the interest in the land on which the poles stand, the right or license to erect such poles on land, all poles, arms, insulators, wires and apparatus, instruments or other things connected with, or used as a part of such line, in such town or ward and belonging either to the owner of such line or the per- son, corporation or association in control thereof. Lairs of 1886, chap. 659, So that the real estate is now assessed and taxed in the town, or ward, where situated. The telegraph and telephone companies also pay a State tax on their franchise. See post, State "Tax on Franchise." Every company incorporated under the " Act to provide for tlie incorporation and regulation of telegraph companies," owning or using a line of electric telegraph, partly within and partly beyond the limits of this State, shall render to the proper officer a true report of the cost to such company of their works within this State; and the stock of such company in amount equal to such cost, or the dividends thereof, shall be subject to taxation, in the same manner and at the same rate as the stocks or dividends of other companies incorporated by the laws of this State are subject. Laws of 1853, chap. ill. These statutes make such companies liable on personal property for the State tax, to the State officer.s, and they should not be included in that part of the levy made by the board of supervisors for State taxes on personal property, but are liable, on such property, for county and town taxes, at the place where their principal office is located. People T. Gold & Stock Tel. Co., 98 N. Y. 67. The failure of such companies to make the required report does not deprive the assessors of jurisdiction to assess the property, and they were authorized, in fixing the amount, to proceed upon such information as they had. People, exrtl. Mut. Un. Co., v. Com'rs, 99 N. Y. 254. A telegraph company under the act of 1853 (chapter 471, Laws of 1853), and owning a line partly within and partly without this State, omitted to render to the proper officer a true report of the cost of its works within the State, for the pur- pose of taxation, as required by said act ; the whole amount of its capital stock was entered in the assessment lists as the valuation of its property liable to taxa- tion ; which sum was entered by the board of commissioners of taxes and assess- ments in the city of New Tork, in the " annual record," and notice was given that the books were open for examination and correction as required by the act of 1859 (section 8, chapter 303, Laws of 1859). The company did not appear or make any objection to the assessment until after the expiration of the time within which the commissioners had a right to correct it. Held, that the failure of the com- 304 SuPEKVisoEs' Manual. pany to make tlie report did not deprive the tax commissioners of jurisdiction to assess its property, and they were authorized, in fixing the amount, to proceed upon such information as they had ; and that as the assessment was regular and the company omitted to apply for a correction, it was not entitled to relief. People, exrd., v. Comrs. of Taxes, etc., 99 N. Y. 254. The American Bell Telephone Company of Massachusetts licenses corporations to do husiness in the State of New York under the "exchange system," by which a central oflBce is established, and communication carried on through it. The instruments are supplied by the company, and remain its property, and a royalty is paid to it on each, though they are leased by the local corporations to their subscribers. The other apparatus belongs to the local corporations. The latter make the leases, and collect the rents, but each lease stipulates that the company owns the instruments, and the company reserves the right to intervene and col- lect its portion of the rents. Another form of contract with the local corporations provides for connecting lines on si mil ar terms, reserving to the company the right to use the telephones thereon, and to connect the lines with the lines of the local corporations in order to forward through messages, and provides for a division of the tolls, and that the leases shall express the title of the company to the instru- ments and the company may enforce, or require the local corporation to enforce, all its rights against the subscriber. Leases for private lines are made directly with the company, and countersigned by the local corporations, which collect the rents, and transmit them to the company. The company also has lines connecting with the oflBces of the Western Union Telegraph Company, under an arrangement with the latter, by which it receives a certain portion of the income derived from that business. Held, that the local corporations are merely the agents of the company, which thus does business wUhin the State as intended by Laws of 1881, chapter 361, sections 3, 6, said act being an amendment of Laws of 1880, chapter 542, and is liable to pay the percentage, at least on its capital employed in the State, and on the dividends realized on said capital, as prescribed by section 3 of the act of 1881, and also the tax of five-tenths per cent on its gross earnings in the State. People V. American Bell Tel. Co., 50 Hun, 114. § 395. Plankroads and Turnpikes.— So much of any such road and of the toll-houses, gates and other appurtenances thereof, constructed under the provisions of " An act to provide for the incorporation of companies to construct plankroads and of com- panies to construct turnpike roads," as shall be within any town, city or village, shall be liable to taxation, in such town, city or village, as real estate. Laws of 1847, chap. 210, 8 48 ; 2 R. S. 1337. § 396. Pipe-Iiine Companies.— The real estate and personal property in this State, of such companies, shall be assessed and taxed in the several towns, villages and cities, in the same man- ner as the real estate and personal property of railroad corporations are assessed and taxed, and such company may commute therefor and pay the same in the same manner as railroad companies. Laws of 1878, chap. 203, S 36; 2 E. S. 1649. CoEPOitATioxs — Assessment and Taxation of. 305 §397. Toll-Bridg-es.— In the case of toll-bridges, the com- pany owning such bridge shall be assessed in the town or ward in which the tolls are collected ; and where the tolls of any bridge, turn- pike, or canal company are collected in the several towns or wards, the company shall be assessed in the town or ward in which the treas- urer or other officer authorized to pay the last preceding dividend resides. 2 R. S. 990. The real estate of such company is assessed in the town or ward in which it lies. Hudson E. R. Bridge Co. v. Patterson, 74 N. Y. 865. Its personal, where tolls are collected. Id. Bl*id,ge CompaillieSt — So much of any such brido;e or toll-houses constructefl by virtue of this act, as shall be within any town, city or village, shall be liable to taxation in such town, city or village, as real estate. § 14, chap. 359, Laws of 1848. This is the general act for incorporating bridge companies. Natural Gas Companies. — In this proceeding, insti- tuted to review an assessment made by the assessors of the village of Oleau upon the property of the relator, a foreign corporation doing business in the said village, it was shown that its property, within this State, consisted of mains, pipes and tanks for the reception and distribution of natural gas, laid or located beneath or upon the streets of the village under a grant from it, and that its business was the sale and distribution to consumers of natural gas for fuel and light, the company itself producing no gas of its own, but receiving, under a coiitract with another company, its supply of gas from the pipe line of the latter company into its own mains at the village limits. Prom the return made by the assessors it appeared that the method adopted by the assessors, in arriving at the valuation in question, involved some estimate of the value of the relator's fran- chise from the village; of its contract with the company furnishing the gas, and of its income and the profits of its business resulting from that contract ; if not as parts of its property at least as elements of the value of that property. neld, that the assessment was erroneous. That the system of mains, tanks and service pipes, as well as a small lot on which the tanks stood, were required, by chapter 293 39 306 SopEETisoKs' Makual. of 1881, to be assessed as real estate, " at its full and true value," and that the value of the rights and privileges granted by the village to the company, and of the contract with the other company, couJd not be considered in determining that value. The referee appointed in these proceedings, before whom the hearing was had, acting pursuant to the provisions contained in chapter 37 of 1855, based his valuation upon the cost of furnishing and laying the gas mains and pipes, considered as an investment. Held, that it was error to apply the rule prescribed by that act to the valuation of real estate, as it applied only to personal property. People, exrel., v. Martin, 48 Hun, 193. § 398. Apportionment for School Districts by Assessors. — Of railroad, telegraph, telephone and pipe-line companies by assessors. • See ante " Commoa Schools," § 98. § 399. Corporations.— Wbere Personal Prop- erty of Corporations Assessed. The place named in the certificate of incorporation of a manafacturing corpora- tion, organized under the general act, as the place where the operations of the company are to be carried on, and where the manufactory is situated, determines the location of the corporation in respect to its liability to taxation. It makes no difference that a treasurer's office is kept and the financial operations of the com- pany are chiefly managed at another place. Oswego Starch Co. t. Dilloway, 21 N. T. 449 : Western Trans. Co. v. Schen, 19 id. 408; Union Steamboat Co. r. City of Buffalo, 82 id. 351. This applies to their personal property. § 400. Corporations.— Personal Property.— Capital Stock. — The capital stock of every company ImbU to taxation, except such part of it as shall have been excepted in the assessment-roll, or as shall have been exempted by law, together with its surplus profits or reserved funds exceeding ten per cent of its capital, after deducting the assessed value of its real estate and all shares of stock in other corporations actually owned by such com- pany, which are taxable upon their capital stock under the laws of this State, shall be assessed at its actual value, and taxed in the same manner as the other personal and real estate of the county. Laws of 1857, chap. 456; 2 R. S. 1036; People, exrd. Twenty -third Street R. Co., V. Com'rs of Taxes, 95 N. Y. 554; People, em rel. Butchers, v. Asten, 22 N. Y. Week. Dig. 458. And see decisions under § 390. § 401. Officers to Deliver Statements to As- sessors. — The president, cashier, secretary, treasurer or other proper officer of every such, incorporated company shall on or before COEPOBATIONS — ASSESSMENT AND TAXATION OF. 307 the first day of July in each year make and deliver to the assessors or one of them of the town or ward in which such company is liable to be taxed, according to the provision of the sixth section of the second title of this chapter, a written statement, specifying, 1. The real estate, if any, owned by such company, the towns or wards in which the same is situated, and the sums actually paid therefor. 2. The capital stock actually paid in and secured to be paid in ex- cepting therefrom the sums paid for real estate and the amount of such capital stock held by the State, and by any incorporated literary or charitable institution. And, 3. The town or ward in which the principal office or place of transacting the financial business of such company is situated ; or if there be no such principal office, the town or ward in which its operations are carried on, or in which it is liable to be taxed under the provisions of this chapter. » R. S. 1036. s p. The third section required a report to be delivered to the comptroller, and ia omitted. The fourth and fifth prescribed a penalty for omissions to furnish such state- ments and for prosecuting therefor. The sixth section directed how the assessors should enter such companies on their assessment-roll, and is omitted for the reason that the Court of Appeals de- cides that the amendment made by chapter 456, Laws of 1857, " changed the details of such assessments and that the rolls should be made substantially as follows: "In the first column insert the name of the corporation; " III the second, the quantity of real estate owned by it, situate in the town or ward; " In the third, the assessed value of its real estate; " In the fourth, the value of capital stock after making the exemption and de- ductions required by the act of 1857." People, ex rel. Twenty-third Street P.. Co., t. Com'rs, 95 N. T. B54. The act of 1857 is quoted above, § 400. It seems also, that to arrive at the assessed value of the real estate not situate in the town or ward, if within the State, it may be ascertained from the proper assessment-rolls; if in another State or country, or if for any other reason its as- sessed value cannot be ascertained, the price paid, in the absence of proof or of any other standard, may be taken as the assessable value. Id. The capital stock is to be assessed at its actual value, from which is to be de- ducted the assessed value of its real estate and the other items specified in the above act. People, ex rel. Butchers & H. Assoc., v. Asten, 22 N. T. Week. Dig. 458 (100 N. T. 697); People, exrel. Twenty -third Street R. R. Co., v. Com'rs of Taxes, 95 N. Y. 554. While the fact that the corporation has but little personal property; that its business of late has produced no dividends and sworn statements that the stock has no value, are subjects for consideration, they are not conclusive upon the question of value. 308 SupEKVisoBs' Manual. While the indebtedness of a corporation is a proper subject for consideratioa in estimating the value of its capital stock, there is no authority for deducting it from such value after such estimate has been made. People, «z rtl. Butchers & H. Assoc, v. Asten, 22 S, T, Week. Dig. 458. Under the act of 1857 (Chap. 456, Laws of 1857), in reference to the assessment of taxes on corporations, the capital stock of a corporation, less the part thereof owned by the State or by literary or charitable institutions, or exempted from taxation by the Revised Statutes (1 R. S. 388, § 4), is to be assessed at its actual value, whether more or less than its nominal amount, deducting, however, there- from the assessed value of its real estate and shares owned by it in other taxable corporations, and, also, from its surplus or reserved fund, if any, an amount not exceeding ten per cent of its capital stock. Where a corporation, liable to taxation under said act, has real estate in another State or country, the provisions directing a deduction of the assessed value pf such real estate requires that the deduction shall be measured by its actual value, and, in the absence of other and better evidence, the price paid for the real estate may be taken as representing such value. The franchise of a corporation is not, within the tax laws, to be reckoned as realty. (1 R. S. 387, §§ 1, 3.) It seems, that corporate franchises are not, on general principles, to be con- sidered as real property. People, ex rel., v. Com'rs of Taxes, 104 N. Y. 240. 1. Taxes; corporate statement to assessors. Under 1 R. S. 414, § 22 (R. S. [7th ed.] 1036), which requires oflBcers of all moneyed or stock corporations, deriving income or profit from their capital, or otherwise, to make and deliver annually to the tax assessors, or one of them, of the town or ward in which such company is liable to be taxed, a written statement of taxable property, the assessors to whom the statement is to be furnished, respecting real estate of a railroad com- pany, are those of every town in which real estate of the company is situated. The rule to this effect in People, ex rel. Dunkirk, etc. R. R. Co., v. Cassity, 46 N. Y. 46, 56, reaffirmed as an authoritative decision, and not a mere dictum. 2. The same; omission to furnish corporate statement. The omission of a cor- poration to furnish such a, statement neither prevents assessors of a town from assessing corporation real estate within its limits, nor the corporation from appear- ing before them and asking that an erroneous assessment be corrected, and if this be refused, from reviewing the proceedings by certiorari. People, exrel. Sodus Bay, etc., R. R. Co., v. Cheetham, 20 Abb. N. C. 44. For the purpose of taxing the personal property of the relator, the appellants, the commissioners of taxes and assessments of the city of New York, assessed the value of its capital stock and surplus at $1,459,447, and the deduction for ex- emptions, to which it was by law entitled, at $1,734,851, which exceeded the value of its capital and surplus. The commissioners also assessed upon separate assessment-rolls relating to national bank stock, national bank stocks owned by such company (such national bank stock having been included in the valuation of the capital stock and surplus of the relator, and being stated, in the list of exemp- tions prepared by the commissioners, to be of the value of $19,425), and declined to allow any deduction or exemption therefrom. Held, that as the national bank shares went to make up the value of the capital stock, and were included in its valuation, and as after the deductions and exemp- tions allowed by law had been made the corporation was not liable to taxation upon its personal property, such national bank stock was not liable to taxation, and could not be assessed without a violation of the Federal statute. People, exrel. Hanover Ins. Co., v. Coleman, 44 Hun, 47. Under the provision of the act of 1857 (§ 8, chap. 456, Laws of 1857), in refer- ence to the taxation of the capital stock of certain corporations, which provides that such stock, after certain specific deductions, "shall be assessed at its actual value and taxed in the same manner as the other personal and real estate of the company," 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- CORPOBATIONS — ASSESSMENT AND TAXATIOiT OF. 309 ures of any value which were ordinarily adopted for business purposes in estimat- ing values. When the assessors have so exercised their judgment it is subject to no review or correction, except as prescribed by law. Accordingly, held, that in making such an assessment, the assessors were not limited to the market value of said stock less the statutory exceptions, and where they took as the measure of value the " book value," i. e., estimating all the assets as they appeared on the corporate books, deducting all the liabilities and other matters required to be deducted by law, that their action, if it did injustice to the corporation, was subject to review in the Supreme Court under the act of 1880 (chap. 269, Laws of 1880); but that this court had no power to interfere with the assessment. People, ex rel, v. Colemaa et al., lOY N. Y. 541. The commissioners of taxes and assessments of the city of New York, in valu- ing Jhe property of an insurance company for the purposes of taxation, fixed the value of its capital stock and net surplus as $321,319, according to the report of the insurance department, to which they referred. That report fixed the value of the stock at $300,000, its par value, and the net surplus at $31,319, which was arrived at by deducting from the gross surplus the liabilities for unearned pre- miums. Prom the aggregate valuation the commissioners deducted United States bonds held by the company amounting to $304,577, and the balance, $16,644, was determined to be the sum for which the company was liable to taxation. On certiorcm, brought to review the assessment, held, that, as by the act of 1857 (chap. 456, Laws of 1857), only the part of the surplus exceeding ten per cent of the capital was liable to assessment, the assessment of any part of it was error; and that the question as to whether, in estimating the property of an insurance com- pany any deduction should be made on account of unearned premiums was not presentud and could not be decided; that the commissioners having made the deduct! n could not be heard to say it was erroneous; also, that their error could not be obviated by proof that the surplus was, in fact, much larger than was fixed by them. People, exrel., v. Coleman, 112 N. Y. 565. Laws N. Y. 1857, chap. 456, § 3, provides that the capital stock of corporation shall be assessed at its actual value ' ' after deducting the assessed value of its real estate," etc. Relator's capital stock was of the value of $75,000, and it owned land in Connecticut, which was there assessed at |42,400, and it gave that valuation to the assessing oflBcers, and there was no evidence that the actual value was greater. Held, that the assessed valuation was properly treated as the actual value. 3. The mere statement that all of relator's capital stock, $150,000, was issued in payment of its land in Connecticut, is not equivalent 1o a statement that the land is worth $150,000. People, ex rel, v. Coleman et al., 21 N. E. Rep. 1056. A corporation having its principal office in the city of New York, and having a capital stock of $70,000 of which $35,000 had been paid in, was the owner of a certain steamboat which had been sent to the Zulia river, in Venezuela, which had cost about $17,000; the balance of the paid-up capital stock had, most of it, been expended on account of the transportation of the vessel to South America. The commissioners of taxes and assessments assessed the company upon the full amount of $35,000. Seld, that an objection on the part of the corporation that inasmuch as the permanent location of this personal property was shown to be outside of the ter- ritorial limits of the State of New York, the company was entitled to exemption from taxation in this State, was not well taken. That the intention of the law was that the assessment on the capital stock of the corporation should be made without regard to the actual location of its per- sonal property. People, ex rel. Z. S. Co., v. Oomrs. of Taxes, 51 Hun, 312. The provision of the Revised Statues (E. S. 388, § 4, sub. 7), exempting from taxation " the personal property of every incorporated company not made liable 310 SuPEKvisoRs' Manual. to taxation on its capital in tlie fourth title" of the chapter containing it, does not include an incorporated college or religious society. It seems the words " incorporated company " were intended to designate only such business and stock corporations as by the chapter are, under special circum- stances, exempted from taxation on their capital, and do not embrace corporations for religious, literary or charitable purposes not having a capital. The acts of 1853 and 1857 (Chap. 654, Laws of 1853, and chap. 456, Laws of 1857), which repeal certain sections of said chapter, and so greatly restrict the operation of said provision, do not change the construction of the words " incor- porated company," or extend their meaning so as to embrace other corporations than those to which they originally referred. Catlin V. Trustees of Trinity College, 113 N. Y. 133. See, also, Decisions imder § 390. §402. What "is Liable to Taxation" there- under— Companies Liable to Taxation.— All moneyed or stock corporations deriving an income or profit from their capital, or otherwise, shall be liable to taxation on their capital. 2 R. S. 1036. The personal estate of every incorporated company, not made liable to taxatioa on its capital, as above, is exempt from taxation. 2 R. S. 982. They are taxable, although the income does not equal the expenses. People, exrel. Com. Ins. Co., v. Supervisors, 18 W. 605. When a corporation, having acquired a fund from earned premiums for insur- ance paid to it, could not, under its charter, divide it among its members, and it had no other assets, held, taxable on such fund as capital. Mutual Ins. Co. v . Supervisors, 4 N. T. 442. Joint-stock companies formed solely by private agreement and not under any statute, are not corporations within the meaning of this law. People, exrel. Winchester, v. Coleman, 6 N. Y. Sup. 394. So held of the National Express Company. But see People, ex rel. Piatt, v. Wemple, id, 581, as to the U. S. Express Co . § 403. Banks, Shares in Personal Estate, ho^r Taxed- Stockholders of Banks to be Taxed.— The stockholders in every bank or banking association organized nnder the authority of this State or of the United States shall be assessed and taxed on the value of their shares of stock therein ; said shares shall be included in the valuation of the personal property of such stockholders in the assessment of taxes at the place, city, town or ward where such bank or banking association is located, and not else- where, whether the said stockholders reside in said place, city, town or ward or not ; but in the assessment of said shares, each stockholder shall be allowed all the deductions and exceptions allowed by law in assessing the value of other taxable personal property owned by individual citizens of this State, and the assessment and taxation shall COKPOEATIONS — ASSESSMENT AXD TaXATIOX OF 311 not be at a greater rate than is made or assessed upon other moneyed capital in the hands of individual citizens of tliis State. In making such assessment there shall also be deducted from the value of such shares such sum as is in the same proportion to such value as is the assessed value of the real estate of the bank or banking association, and in which any portion of their capital is invested, in -which said shares are held, to the whole amount of the capital stock of said bank or banking association. Nothing herein contained shall be held or construed to exempt the real estate of banks or banking associa- tions from either State, coimty or municipal taxes, but the same shall be subject to State, county, municipal and other taxation to the same extent and rate, and in the same manner according to its value as other real estate is taxed. The local authorities charged by law with the assessment of the said shares shall, within ten days after they have completed such assessment, give written notice to each bank or banking association of such assessment of the shares of its respect- ive shareholders, and no personal or other notice to such shareholders of such assessment shall be necessary for the purpose of this act. Laws of 1882, chap. 409, § 312. See Williams v. Weaver, 75 N. T. 30. See decisions under § 390. The actual and not the par value is the basis of assessment and taxation. People T. Comrs., 67 N. Y. 516. Subject to these two restrictions, to-wlt: 1st. That the taxation shall not be at a greater rate than is assessed upon other moneyed capital In the hands of individuals; and 2d. That the shares of any national banking association, owned by non-resi- dents of any State, shall be taxed in the city or town where the bank is located and not elsewhere; the shares of any national bank association are subject to the above restrictions, properly included in the assessment of the owner or holder thereof, U. S. Rev. Stat., §5219; Van Allen v. Assessors of Albany, 3 Wall. 573; People v. Comrs. of N. Y., 4 id. 244; Bradley v. People, id. 459. and taxed at their market value. Hepburn v. School Directors, 23 Wall. 113 ; People v. Commissioners of N. Y., 94 U. S. 415. The taxation of the capital of national banks is not. proper or legal. Id. Where the capital of a national bank was $1,000,000, divided into 25,000 shares of $40 each, and assessed at $56 per share, aggregating $1,400,000, and the real estate assessed at $200,000, being one-seventh, — Held, that the deduction from each share as assessed should also be one'Seventh, or $8. People, ex rel. Tradesman's N. Bk., v. Comrs., 69 N. Y. 91. The system of taxing the shares of national bank stock in this State is not re- pugnant to the restriction imposed upon such taxation by the national banking act (U. S. R. S., § 5319); i- e., that the taxation shall not be at a greater rate than is assessed upon " other moneyed capital " in the hands of individual citizens of the State ; the statute simply brings the capital invested in national banks within 312 SuPERvisoEs' Manual. the taxing power of the State and places it on terms of equality in respect thereto with all other assessable personal property. Matter of Application of MoMahon v. Palmer, 102 N. Y. 176. The assessment of bank shares is not subject to a deduction for the debts of the owner, and a refusal to allow such deduction is not a violation of the provision of the act of congress as to the rate of taxation. Williams v. WeaTer, 75 N. T. 30. Contra, Kiohards v. Rook Eapids, 31 Fed . Kep . 605. Failure to serve on the bank the required notice will not vitiate the assessment. People V. Smith, 50 Hun, 39. The shares of a bank whose capital is invested in United States stocks are to be assessed at the place where such bank is located and not elsewhere. People, ec rel. Kennedy, v. Comra., 35 N. Y. 433 ; Williams v. Weaver, 76 id. 80. liist of StOCkllOlders. — There shall be kept at all times in the office where the business of each bank or banking association, organized under the authority of this State or of the United States,' shall be transacted, a full and correct list of the names and residences of all the stockholders therein, and of the number of shares held by each ; and such list shall be subject to the inspection of the offi- cers authorized to assess taxes, during the business hours of each day in which business may be legally transacted. Law3 of 1882, chap. 409, § 813. § 404. Non-Resident Stockholders.— When the owner of stock in any bank or banking association organized under the laws of tliis State or the United States shall not reside at the same place where the bank or banking association is located, the collector and county treasurer shall, respectively, have the same power as to collecting the ta.x to be assessed by this act as they have by law when the person assessed has removed from the town, ward or county in which the assessment was made ; and the county treas- urer, receiver of taxes or other officer authorized to receive such tax from the collector may, all, or either of them, have an action to col- lect the tax from the avails of the sale of his, her or their shares of stock, and the tax on the share or shares of said stock shall be and remain a lien thereon from the day when the property is by law assessed, till the payment of said tax, and if transferred after such day, the transfer shall be subject to such lien. Id., § 314. § 405. Banks to Retain Dividends.— For the pur- pose of collecting the taxes to be assessed under the last three pre- ceding sections of this act, and in addition to any other law of this State, not in conflict with the Constitution of the United States, relative to the imposition of assessment and collection of taxes, it COEPORATION-S — ASSESSMENT AND TAXATION OF. 313 shall be the duty of every such bank or banking association, and the managing officer or officers thereof, to retain so much of any divi- dend or dividends belonging to such stockholder as shall be necessary to pay any taxes assessed in pursuance of the last three preceding sections of this act, until it shall be made to appear to such officer or officers that such, taxes have been paid. Id., § 315. The shareholders of any bank, banking association or corporation doing a banking business under the general banking law or a special cliarter of this State, shall be assessed and taxed, with respect to their shares of stock, only at the same rate and place, to the same extent, and in the same manner, as shareholders of national banks may be liable at the same time to be assessed and taxed by authority of the State of ISTew York ; provided, however, that no debts shall be deducted from any such assessment of any person applying for the benefit of this act, which have been deducted from the assess- ment of other personal property of such person; and, in making application for such deduction, every person making the application shall make oath that he has not applied to have such debts deducted from any other assessment against him, and that no such deduction has been made. Id., §318. It will be seen from the above that banks are not taxed directly upon their ecvpi- tal; but the individual shareholders are assessed and taxed in the town or ward where the bank is located, upon the shares owned by them, after making the de- ductions above specified. Individual Bankers — Oatb of Individual BanbLez*S. — Every individual banker doing business under the laws of this State is hereby required to declare upon oath before the assessor the amount of capital invested in such banking business, and each $100 of such capital, for the purpose of this act, and for the purpose of taxation, shall be held and regarded as one individual share in such banking business, and such shares are hereby declared to be personal property. If such banker have partners, he shall declare upon oath before the assessor the number of shares held by each of them in such banking business, ascertained as above provided, and the shares so held by any partner shall be included in the valuation of his taxable property in the assessment of all taxes levied in the town, school district or ward where such individual banker is located, and not elsewhere ; and such individual banker shall pay the same, and make the amount so paid a charge in his accounts with such partners ; and if such individual banker have no partners, he shall be held to be sole owner of all the shares in such business of banking, and the same shall be included in the valuation of his personal property in the assessment of all taxes 40 314 Supervisors' Manual. levied in the town, school district or ward where his bank is located, and not elsewhere. Id., § 320. See ante, % 367. An " individual banker " is one who has availed himself of the banking statntes of this State, and has become empowered to do banking thereunder, and thus or- ganized as " bankers" under the statute. One or more persons doinp a banking business under an individual or firm name, or as, for example, " The Farmers' Bank of Batavia," receiving deposits, discnunting notes, selling exchange, etc., but not issuing notes to pass as money, and not organized under the banking law, are "private bankers," not " indimdual bankers."" People V. Doty, 80 N. T. 225; Perking v. Smith, 41 Hun, 47; Spaulding v. Kelly, 43 id. 801. Foreig>ii Banking* Corporations.— These pay a State tax directly to the State officers. Id., §321. § 406. Savings Banks.— The privileges and franchises granted by the legislature of this State to savings banks, or institu- tions for savings, are hereby declared to be personal property, and liable to taxation as such in the town or ward where they are located, to an amount not exceeding the gross sum of their surplus earned (after deducting the amount of such surplus invested in United States securities), and the officers of such banks or institu- tii^ns may be examined on oath by assessors as to the amount of such surplus and securities ; and the property of such banks and institu- tions shall be liable to seizure and sale for the payment of all taxes assessed upon them for said privileges and franchises. Laws of 1866, chap. 761, as amended by Laws of 1867, chap. 861. This statute is held to be still in force. People, exrel. Ithaca Sar. Bank, v. Beers, 67 How. 219. Its history may be traced in chap. 371, Laws of 1875; chap. 409, Laws of 1882. Under this statute of 1867, if the surplus of the savings bank was not invested in United States securities, the assessors had authority to assess the bank for its privileges and franchises as personal property, to the extent of its surplna not so invested. Before it can be held that there is a surplus * * » which is liable to assess- ment and taxation, there must be deducted from the total assets of such bank: First, the amount of all just debts owing by it; and, second, the amount of its assets which are actually invested in United States securities, and the remainder is the only surplus which is subject to assessment and taxation. Id. Deposits in Savings Banks.— The deposits, in any bank for savings which are due to depositors, and the accumulation in any life insurance company organized under the laws of this State, so far as the said accumulations are held for the exclusive benefit of the assured, shall not be liable to taxation, other than the real estate and ptocks which may be owned by such bank or company, and which are now liable to taxation under the laws of the State. Laws of 1857, chap. 456; 2 R. S. 986. But see Laws of 1 884, chap. 853 (sec. 408, poet). OOEPOEATIONS — ASSESSMENT AND TAXATION OF, 315 §407. Insurance Companies— Life Insurance. — Chapter 534, Laws of 1880, which exempted those companies incorporated under the laws of this State from assessment or taxa- tion, except for the State tax, was repealed by chapter 699, Laws of 1887. Taxation of Mutual Life Insurance Compa- nies. Any mutual life insurance company incorporated in this State previous to the passage of the general insurance law on the 10th day of April, 1849, shall be sub- ject to taxation in the sum of $100,000 for personal property and no more, and it is hereby declared that such was the intention, and it is the real construction of said act of June 39, 1853, in regard to any taxes imposed on such companies after said act took effect . Chap. 83, Laws of 1855. But by section 4, chapter 679, Laws of 1886 (set out in full, post, § 409) it is provided, " that the personal property, franchise and business of all insurance companies incorporated under the laws of this State, or any other State or country and doing business in this State, and the shares of stock of said companies shall hereafter be exempt from all assessment or taxation, except as provided in said act, and provided that this section shall not affect the fire department tax of two per cent now required to be paid." Held, that this act exempted from all assess- ment and taxation all personal property, except as therein provided, and that taxes imposed en a mutual insurance company incorporated under the laws of this State, were illegal . Dutchess Co. Mutual Life Ins. Co. v. City of Poughkeepsie, 51 Hun, 595. Of course, their real estate was to be assessed and taxed in the same manner that an individual's is. §408. Co-Operative or Assessment Insur- ance or Casualty Companies.— All money, benefits, charity, relief or aid, received or collected by any corporation, asso- ciation or society doing a life or casualty insurance business or both, upon the co-operative or assessment plan under the act of 1883, chapter 175, and which money, benefits, charity, relief or aid are de- ' rived from admission fees, dues and assessments, or any interests or other accretions thereon, and which are to be used for the payments of assessments or for death losses, or for benefits to disabled members, shall be exempt from assessmei't and taxation ; Laws of laSi, chap. 353. and the part thereof paid to the widow of a deceased member is also exempt. Laws of 1884, chap. 116. § 409. Fire and Marine Insurance.— In 1886 a statute purporting to be an "Act to provide for the taxation of fire and marine insurance companies" was passed, which reads as follows: 316 SuPERvisoEs' Manual. CHAP. 679. AN ACT to provide for the taxation of fire and marine insurance companies. Passed June 15, 1886; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Section 1. Every fire or marine insurance company, incorporated or organized under the laws of this State, or incorporated or organized under the laws of any foreign country, and doing business in this State, shall, annually, on or before the first day of August, pay to the treasurer of the State, as a tax on its corporate franchise or busi- ness in this State, a sum equal to one-lialf of one per centum upon the gross amount of premiums received by such company during the year ending the preceding thirtieth day of June, on business done in this State by such company, whether the said premiums were in money or in the form of notes, credit or any other substitute for money. § 2. Every such insurance company shall, annually, on or be- fore the first day of August, make a return to the comptroller of the State, signed and sworn to by its president and secretary or mana- ger, giving the total amount of premiums received by such company during the year ending the preceding thirtieth day of June, on busi- ness done in this State by such company, whether the said premiums were in money or in the form of notes, credits or any other substitute for money. § 3. If any officer of any insurance company required by the pre- ceding section to make and execute a return shall refuse or willfully neglect to make and execute the same, such officer shall be guilty of a misdemeanor, and any such officer who in such return shall make a willful false statement shall be subject to the pains and penalties of perjury. All taxes unpaid when due by such company under this act may be collected by actions brought in the supreme court in the name of the people of the State, by the attorney -general at the instance of the comptroller, and in such action the court may issue an injunction restraining the further prosecution of the business of- the corporation named therein until such tax due and unpaid, together with interest and the costs of the action, are paid, and until the return required by this act is made. § 4. The lands and real estate of such insurance companies shall continue to be assessed and taxed where situated for State, city, OoRPOBATiosrs — Assessment akd Taxation of. 317 town, county, village, school or other local purposes ; but the per- sonal -property, franchise cmd business of all insurance companies incorporated under the laws of this State, or any other State or country and doing business in this State, and the shares of stock of said companies shall hereafter be exempt from all assessment or taxation except as in this act prescribed ; provided that this section shall not affect the fire department tax of two per cent now required to be paid. § 6. The taxes imposed by this act, and the revenue derived there- from, shall be paid into the treasury for account of the general fund, and shall be applicable to the payment of the ordinary and current expenses of the State. ^ § 6. This act shall take effect immediately. This statute is quite peculiar in its phraseology. Its title purports to relate to the taxation of fire and marine insurance com- panies. The fourth section says: " The personal property, franchise and business of all insurance companies * * * * doing business in this State and the shares of stock of said companies shall hereafter be exempt from aU assessment, or tax- ation, except as in this act prescribed," to- wit, the State tax on franchise. Heretofore such companies were liable to pay 1. The State tax. Laws of 1880, chap. 542, as amended by Laws of 1881, chap. 361. 3. The county and town, or city taxes. What the judicial construction of the act may be it is not for the editor to say. It is quite evident that it attempts to rid those companies of their share of the county and town taxes, under the false title set forth in the statute. This act was before the court and it says, " We are unable to say it is uncon- stitutional." Dutchess County Mutual Life Insurance Co. y. City of Po'keepsie, 51 Hun, 695. Meld, also, where the plaintifE, a mutual insurance company, incorporated un- der the laws of this State, was assessed and paid taxes on its personal property, that such taxes were illegally imposed. Id. See the Decision under S 407, ante. FOREIGN FIRE INSURANCE COMPANIES. The capital of a foreign fire insurance company was determined by the superin- tendent of the insurance department, who issued a certificate thereof. Such capi- tal, as determined and certified, was assessed at the place where the principal office of such company was located. Laws of 1871, chap. 883, §§ 2, 8, 7. See, also, Laws of 1866, chap. 82o. Tax on Premiums of Fire Insurance Com- panies* — There shall be paid to the treasurer of the lire depart- ment of every city or village of this State, whether incorporated or unincorporated, having a fire department company or organization for the use and benefit of such fire department, and when no treas- urer of a fire department exists, then to the treasurer or other finan- cial officer of such city or village, who, for the purpose of this act, 318 SuPBRVisoKs' Manual. shall have the same powers as the treasurers of fire departments, on the first day of February of each year, by every person who shall act as agent for or on behalf of any individual or association of indi- viduals, or corporation not incorporated by or under the laws of this State, whose business is insuring against loss or injury by fire upon property in this State, although such individual, association or cor- poration may be incorporated for that purpose by any other State or country, the sum of two dollars upon the hundred dollars, and at that rate upon the amount of all premiums which during the year, or part of a year, ending on the last preceding thirty-first day of De- cember shall have been received by such agent or person, or received by any other person for him, for any insurance effected or procured by him as such agent or broker against loss or injury by fire, upon property situate within the corporate limits of such city or village. Chap. 465, Laws of 1875, as amended bj chap. 604, Laws of 1886. These provisions do not apply to the cities of New York or Buffalo. Id., § 5, as amended by chap. 520, Laws of 1887. The limits of any unincorporated village in this State shall he determined for the purposes of this act by the town board of the town in which such village is situated. S 7, chap. 604, Laws of 1886. TAXATION OF BUSINESS CAPITAL OF NON-RESIDENTS. The statute on this subject is set out in full at § 267, and the decisions thereon. § 410. The State Tax on Franchise, Etc. — In 1880 a new and distinct system was introduced in this State, for the purpose of raising moneys from corporations for the use of the State, by which domestic and foreign corporations doing business within the State, except certain ones, were to make returns, or reports, to the comptroller, and to pay a certain sum to State oflBcers for State purposes. The corporations, etc., included in this system were ; OK FRANCHISE. Every corporation, joint-stock company, or association whatever, now or hereafter incorporated, organized, or formed under, by, or pursuant to law in this State or in any other State or country, and doing business in this State, except only savings banks and institu- tions for savings, life insurance companies, banks, foreign insurance companies, manufacturing or mining corporation?, or companies wholly engaged in carrying on manufacture, or mining ores within this State, and agricultural and horticultural societies or associations, ■which exceptions, however, shall not include gas companies, trust Corporations — Assessment and Taxation op. 319 companies, electric or steam heating, lighting and power companies, shall be liable to and shall pay a tax, as a tax upon its franchise or business, into the State treasury annually, to be computed as follows : If the dividend or dividends made or declared by such corporation, joint-stock company or association, during any year ending with the first day of November, amount to six or more than six per centum upon the par value of its capital stock, then the tax to be at the rate of one-quarter mill upon the capital stock for each one per centum of dividends so made or declared ; or if no dividend be made or de- clared, or if the dividend or dividends made or declared do not amount to six per centum upon the par value of said capital stock, then the tax to be at the rate of one and one-half mills upon each dollar of the valuation of the said capital stock made in accordance with the provisions of the first section of this act ; and in case any such corporation, joint-stock company, or association shall have more than one 'kind of capital stock, as, for instance, common and pre- ferred stock, and upon one of said stocks a dividend or dividends, amounting to six or more than six per centum upon the par value thereof, has been made or declared, and upon the other no divi- dend has been made or declared, or the dividend or dividends made or declared thereon amount to less than six per centum upon the par value thereof, then the tax shall be at the rate of one-quarter mill for each one per centum of dividend made or declared upon the capital stock upon the par value pi which the dividend or divi- dends made or declared amount to six or more than six per centum, and in addition thereto tax shall be charged at the rate of one and one-half mills upon each dollar of a valuation, made also in accord- ance with the provisions of this act, of the capital stock upon which no dividend was made or declared, or upon the par value of which the dividend or dividends made or declared did not amount to six per centum. § 3, chap. 542, Laws of 1880, as amended by chap. 353, Laws of 1889. Second. Every insurance company and every association organ- ized or incorporated by or under any law of this State, and of every person or partnership doing an insurance business in this State, except life insurance companies and purely mutual beneficial associ- ations, whose fund for the benefit of members, their families or heirs, is made up entirely of contributions of their members and the accumulated interest thereon ; and Every company or association organized under the laws of any other State or country, and every person or partnership doing an insurance business in this State, except as aforesaid ; and Every corporation formed for railroad, canal, steamboat, ferry, express, navigation or transportation purposes, and every elevated railway company, and every other corporation, joint-stock company or association now or hereafter incorporated or organized by or under 320 Supervisors' Manual. any law of this State, or now or hereafter incorporated or organized by or nnder the laws of any other State or country, and doing busi- ness in this State, and owning, operating or leasing to or from another corporation, joint-stock company or association, any railroad, canal, steamboat, ferry, express, navigation, pipe-line or transportar tion route or line, or elevated railway or other device for the trans- portation of freights or passengers, or in any way engaged in the business of transporting freights or passengers, and every telegraph company or telephone company incorporated under the laws of this or any other State, and doing business in this State, and every ex- press company or association, palace-car or sleeping-car company or association, incorporated or unincorporated, doing business in this State, are required to pay a State tax to the State officers. Id>,§§6aud6. The corporations, joint-stock companies and associations mentioned in this act as taxable, shall hereafter be exempt from assessment and taxation for State purposes, except upon their real estate and as herein provided ; but they shall in all other respects be liable to as- sessment and taxation as heretofore. Id., § 8. And are exempt from assessment and taxation for State purposes (except npon their reai estate); in other words, are not liable to pay, except on real estate, that part of the State taxes included in the levy made by the board of supervisors, but are liable for the county and tov?u taxes included in said levy. People, exrel. Westchester Fire Ins. Co., v. Davenport, 25 Hun, 680; S. C, 91 N- Y. 674; People, exrel. Eastern Trans. Line, v. Comrs., 26 Hun, 446; 98N. Y.67. The amount of capital stock which shall be the basis for tax is the amount thereof employed within this State. Id., § 11, as amended by Laws of 1885, chap. 501, Defendant, a foreign corporation, organized under the laws of Utah, for the pur- pose of carrying on the business of mining and other business incidental thereto. It mined silver ore in that territory, which was manufactured into base bullion ; this was shipped to Chicago and there refined . It was then shipped to the United Slates Assay OflSce in New York city where it was refined into standard silver bars, for doing which defendant paid two per cent of the silver . In action to re- cover taxes and penalties under said act, held, that defendant was not a manu- facturing corporation, carrying on manufacture within this State, within the ex- ception in said act ; that conceding it was a manufacturing corporation, this was not suflBcient to exempt it from taxation under said act ; it must also carry on manufacture in the State. People v. Horn SJlver Mining Co., 105 N. Y. 76. This act is constitutional. People T. Gold & Stock Tel. Co., 98 N. Y. 67; People v. New York Floating Dry Dock Co., 63 How. 451. Racing* Associations also pay a State tax to the comp- troller. Chap. 479, Laws of 1887. Corporations — Assessment and Taxation of. 321 §411. Application for Reduction.— Corporations may apply to the assessors for a reduction of their assessments in the same manner as private persons heretofore given. Laws of 1857, chap. 536, S S. § 412. Exemption. — Corporations are entitled to the same exemptions of property from taxes as individuals. People T. Gommisstoners of Taxes, 23 N. T. 192. § 413. Duty of Board of Supervisors as to Incorporated Companies. — The amount of taxes &&■ sessed on all incorporated companies liable to taxation shall be set down by the board of supervisors in the fifth column of the corrected assessment-roll, and shall form a part of the moneys to be collected by the collector. 2 R. S. 1037, 1 15. The board of supervisors, having completed the assessment, shall transmit to the comptroller, with the aggregate valuations of the real and personal estate in their county, a statement showing the names of the several incorporated companies liable to taxation in such county ; the amount of the capital stock paid in, and secured to be paid in, by each ; the amount of real and personal property of each as put down by the assessors, or by tliem ; and the amount of taxes assessed on each. In those counties in which there is no such com- pany, the boards of supervisors shall cerfify such fact to the comp- troller with their returns of the aggregate valuations of real and personal estate. 2 R. S. 1038, §16. See Assessment-roll, § 351 . The supervisor is to make a list of corporations for the comp- troller. See § 68, ante. In counties containing more than 300,000 inhabitants, special pro- visions are applicable in relation to assessment and collection of taxes, etc. See chap. 411, Laws of 1885. 41 CHAPTER VII. EQUALIZATION. Sec. 414. Equalization bj the board of su- Sec. 421. Appeal from equalization by su- pervisors, pervisor. 415. Aggregate Taluation . 422. Proofs thereon . 416. Assessment-roll to be delivered to 423. Nature of evidence. clerk. 424. Appeal where heard. 417. To publish proceedings. 425. Costs on appeal. 418. Clerk to transmit return to comp- 426. Procedure on appeal. troller. 427. Form of notice of appeal and 419. Board of equalization in the affidavit. county of Oneida — Laws relating Decision of State Board review- thereto . able on certiorari. 420. Form of report. § 414. Equalization by tlie Board of Super- visors. — The board of supervisors of each county in this State at their annual meeting shall examine the assessment-rolls of the sev- eral towns in their county, for the purpose of ascertaining whether the valuations in one town or ward bear a just relation to the valu- ations in all the towns and wards in the county ; and they may increase or diminish the aggregate valuations of real estates in any town or ward by adding or deducting such sum upon the himdred as may, in their opinion, be necessary to produce a just relation between all the valuations of the real estates in the county ; but they shall, in no instance, reduce the aggregate valuations of all the towns and wards below the aggregate valuation thereof as made by the assessors. 2 R. S. 996, § 81. See Decisions under § 418. § 4 1 5. AggvegSLte Valuation.— They shall also add up and set down the aggregate valuations of the real and personal estates in the several towns and wards as corrected by them ; and shall cause their clerk to transmit to the comptroller, by mail, a cer- tificate of such aggregate valuations, showing separately the aggre- gate amount of real and personal estates in each town or ward, as corrected by the board. Id., S 34. See Decisions under § 418. Bqfalizatiok. 323 § 416. Copy of Corrected Assessment-Roll to be Delivered. — They shall cause the corrected assessment- roll of each town or ward, or a copy thereof, to be delivered to each of the supervisors of the several towns or wards, who shall deliver the same to the clerk of their city or town, to be kept by him for the nse of such city or town. Id., i 35. See Decisions under § 418. Delivery to Collector.— The boards of supervisors of the several counties in this State shall cause the corrected assessment- roll of each town or ward in their respective counties, or a fair copy thereof, to be delivered to the collector of such town or ward on or before the fifteenth day of December in each year. Id., § 36. See ante, § 354, and Decisions thereunder. § 417. To Publisli Proceeding's.— It is the duty of the board of supervisors annually to publish in one or more public newspapers in such county their proceedings upon the equalization of the assessment-roll. Laws of 1839, chap. 369 ; 2 B. S. 929. §418. Clerk to Transmit Return to Comp- troller. — The clerk of the board of supervisors of the several coimties in this State shall, on or before the second Monday in De- cember in each year, transmit to the comptroller by mail, in the form which shall be prescribed by the comptroller, a certificate or re- turn of the aggregate valued amount of real and personal estate in each town or ward, as corrected by the board of supervisors. The clerk who shall neglect or refuse to make such return shall forfeit to the people of this State the sum of $50. Laws of 1886, chap. 117 ; 2 R. S. 997 If it is deemed necessarj^ to add to the aggregate valuation of real estates in any town or ward, the strict letter of the law requires them, instead of adding a gross sum to the aggregate valuation, to add to the assessed valuation a specified sum upon each hundred dollars. Thus, where a board of supervisors, deeming it necessary to add $800,000 to the aggregate valuation of the real estate of a particu- lar town, resolved to add the sum in gross, it was held that the board should have voted to add $19.54 to eveiy hundred dollars, amounting in the aggregate to $300,000 ; but that adding a gross sum was not such a material departure from the statute as would vitiate the tax. Talmadge T. Bd. of Supra, of Rensselaer Co., 21 Barb. 611. 324 Supervisors' Manual. The duties imposed by the tax laws upon boards of supervisors, of examining the assessment-rolls and equalizing the valuation of the real estates in the different towns and wards are quasi judicial, and cannot be delegated, but must be performed by the board as such. Bellinger t. Gray, 51 N. Y. 610. In equalizing assessments, the board cannot make allowances for omissions of taxable persons or property, from the roll by assessors. People, ex rel. Suprs. of Monroe Co., v. Hadley, 1 Abb. N. C. 441. They are simply to equalize valuations as between the several towns and wards in the county. They deal with the towns and wards as units. If tie as- sessors have omitted persons or property, they cannot take the fact of such omis- sion or whether personal property was assessed below the true value into con- sideration, for the purpose of increasing the valuation in the town or ward where the omission occurred. Id. The power of equalization by the board is confined to real property only. Id.; People, exrel. Board of Supervisors of Westchester Co., v. Hadley, 76N. T.8S7. They are confined to the valuation of real estate. Id. It seems the price paid on private sale of real estate and a, comparison of the difference between the consideration stated in transfers of real estate and the as- sessed valuation thereof, is not conclusive or cogent evidence to show that the assessed valuation in one county is nearer the real value than in the other. People, ex rel. Mayor, v. McCarthy, 102 N. T. 630. The same rule would seem applicable for boards of supervisors, in comparing the valuations of towns. The court says, " the price paid on sales of real estate, between individuals, is not, in any view, competent evidence of value. " Id. 688. " Prices obtained upon public sales are, for obvious reasons, considered some proof of the value of the property sold, and are receivable as evidence upon the question of value." Id. 639. The valuation of property is necessarily a matter of opinion among men, and must, under all circumstances, be finally determined by the judgment of indi- viduals, and the scheme of the statute seems to be to leave its decision to the of- ficers selected for that purpose, and to make their determination conclusive evi- dence of such value, for the purposes of taxation. Id. 642-3. Except for the provision of the statute authorizing parties whose property is assessed, to appear before the town, ward or city assessors, and make affidavit as to the circumstances and value of property assessed to them respectively, no pro- vision is made for the hearing of such parties, by any of the administrative bodies engaged in perfecting the valuation of taxable property, and it is to be implied by irresistible inference, therefore, that the law contemplates that such bodies shall proceed in the performance of their duties, upon their own knowledge, information and judgment, and so far as they may be deficient therein that they will, in their own way, inform themselves of such facts, as it may be necessary to know, in order to discharge their duties intelligently." Id. 643. Equalization. 325 §419. Many inquiries having been made as to the county board o( equalization in Oneida county, the law relating to it is here inserted. LAWS OF 1881, CHAP. 673. AN ACT to create a board of equalization in the county of Oneida. Section 1. At the annual sessions of the board of supervisors of the county of Oneida, the said board shall, within the first three days thereof, appoint a com- mittee of three persons in each of the assembly districts therein, which shall be known and designated as the board of equalization in and for said county. § 2. The said committee for each of said districts shall be nominated by the rep- resentatives within the same, subject to confirmation by the board, and no city, town or ward shall be represented in said board of equalization by more than one person in each year. § 3. The said committee shall be chosen in equal numbers as near as can be done from each of the two leading political parties, and no person holding the office of supervisor, or any office arising from or connected with the board of super- visors, shall be eligible thereto. § 4. No person shall be eligible to such appointment who was not assessed upon the assessment-rolls of the city or town in which he resides made next pre- ceding such appointment, for a freehold estate in his own right to an amount in cities not less than $1,000, and in towns not less than $500,or who holds any county office, the compensation of which is determined and provided by said board of supervisors, or who is not at the time a resident of the assembly district from which the selection shall be made. § 5. The said board of equalization shall meet annually within the first twenty- five days (Sundays excepted) of the annual sessions of the board of supervisors, at the place where such annual sessions shall be held, and shall equalize the assessed valuation of the real estate of said county in the manner and in the form which boards of supervisors are authorized and required to do, and shall report the result of their action to the board of supervisors, and such result, concurred in by at least seven members of said board of equalization, shall be the equalized valuation in said county, and shall be conclusive and final for such year. The day for the meeting of said board of equalization as herein provided, shall be designated by the board of supervisors, and upon notice thereof by the chairman or clerk of said board, the board of equalization shall convene as herein required, and enter upon the discharge of such duties. As amended by chap. 298, Laws of ]88Y. § 6. The members of said board of equalization shall, previous to entering upon the discharge of the duties hereby conferred, take ,and subscribe the constitu- tional oath of office, which shall be filed in the office of the clerk of said board of supervisors. § 7. The said board of equalization shall each be paid a compensation of $3 per day for each day actually and necessarily employed in the discharge of their duties, and mileage at the rate of eight cents per mile for once going to and returning from the sessions of said committee, computing the distance by the usual traveled route, but the aggregate per diem to each member shall not exceed five days. § 8. If any member of the committee appointed inr pursuance of this act shall decline, omit, resign, or be unable from any cause to discharge the duties thereof, the vacancy shall be filled in the manner provided by section two hereof imme- diately upon the announcement of such vacancy. § 9. All acts and parts of acts inconsistent or in conflict with the provisions of this act, so far as the same are applicable to the county of Oneida, are hereby repealed. This law has been in successful operation and effect for eight consecutive years without controversies, material friction or irritation. The report of the board of equalization upon the subject is final and conclusive, and thus far in its history, with two exceptions, it has received the signatures of 326 SuPBEvisoBs' Manual. its nine members, and the board of supervisors have uniformly and unanimoudy approved their action and conclusions. Previous to its passage the county had annual appeals to the State board, involving controversies most bitter, and ex- penses equally exhaustive. No one, having any knowledge of, or practical experience with, this subject, would deny that equalization by the board of supervisors is the cause of more annoyance, friction and trouble than any other matter which comes before them. It seems to enter into about every important question dealt with by the board, from its first meeting to its final adjournment; is the source and cause of unjust and partisan action on other subjects and almost invariably results in the forma- tion of a clique, the object of which is to shift the burden of taxation, from them- selves to others. Perhaps such an object may be very agreeable when one is "in," but it is not so pleasant when one is "out." Whatever may finally be decided upon as the best method of equalization, one thing seems certain, that equalization by the board of supervisors, or its committee, is not an approxima- tion, even, to a good one and has, so far, proved a failure, as an examination of the Journal of Proceedings of the different county boards and the bitter litigations in Erie, Lewis, Chenango, Ulster and other counties would demonstrate. Boards of supervisors have a sufficient number of difficult and perplexing questions to deal with, without being called on to decide that of equalization, which would seem to require men who have given to that subject sufficient time, study and attention to know their duties, who are not obliged to consider, or act upon other questions constantly arising during a busy session, who are of ap- proved integrity, non-partisan in number, and independent of any other body. For such an equalization board, one would be glad to destroy the so-called sym- metry and uniformity of existing laws upon this subject, and submit to a local arrangement that confessedly produces perfect results. The following is the form of report as made by this board of equalization in pursuance of the law quoted. No concurrence or confirmation by the board of supervisors is requisite, the action of the first board being "final " In the other counties, the report of the committee upon this subject, is a re- commendation only, to be concurred in by the board of supervisors, and the form of their report should be varied and prepared accordingly, The tabulated por- tion of the form will apply to all counties, §420. Form of Report. REPORT OF BOARD OF EQUALIZATION. To THE Board of Supervisors of the County op Oneida: The committee created by your body for the purpose (in pursuance of chapter 673, Laws of 1881), having examined and compared the assessed valuations of real estate in this county for the current year, have established, fixed and equalized the same in the several towns and cities, as contained in the following tabulated statement thereof. Equalization. 327 TOWNS. No. of acres Real estate by assessors Real estate ai equalized Personal Total. AnasviUe 36.152 16,617 22,ri6 43-529 14, 6ae 32,185 22,392 32.319 7-16 20,8gi 41.47s 19.780 1-2 28.208 18,956 1-4 19,388 23,566 43.801 15-100 17.503 3-4 25.782 3-4 27.677 1-2 $570,418 00 818,845 00 276,100 00 998,160 00 654.445 00 1,072,288 00 881.852 00 282,810 00 573,607 00 74.683 58 1,834.025 00 647, 395 00 729,126 00 1,034.420 00 2,002,892 00 1.450.350 00 411,421 CO 6,612.653 00 1.532.953 00 464.571 00 1.003,830 00 15.939.471 00 1.076,353 00 1,825.800 00 415,920 00 764.870 00 1.351,800 00 2.828.305 00 $570,418 00 818,845 00 266,100 00 998,160 00 654,445 00 1.007,388 00 926,853 00 288,810 00 521,607 00 74,683 58 1,834,025 00 647.395 00 719.126 00 1,126,420 00 1,827,892 00 '? 287,350 00 416,421 00 5,762,653 00 1,347.953 00 474.571 00 1,008,830 00 17.351.471 00 1,141,353 00 1,885.800 00 415,920 00 764,870 00 1,201,800 00 2,788,305 00 $13,700 00 108,650 00 6,775 00 127,040 00 41.705 00 170,970 CO 3,000 00 3,400 00 32,827 00 550 00 43.400 00 15.550 00 18,880 00 ' 44.700 00 293-950 00 213,200 GO 54,340 00 581,753 20 169.227 00 10,420 00 67,530 00 2.446,734 00 160,497 00 63,530 00 12.700 00 49.200 00 47,900 00 191,300 00 $584,118 00 927.495 00 272,875 00 1,125,200 00 696,150 00 X, 178,258 00 929,852 00 292.210 00 554.434 00 75.233 58 1,877,425 00 662,945 00 738,006 00 1.171,120 00 2,121,842 00 1,500,550 00 470,761 00 6,344,406 20 1,517,180 00 484,991 00. 1,076,360 00 19, 798, 205 00 1,301.850 00 1)949.330 00 428,620 00 814,070 00 1,249,700 00 2,979,605 00 Roonvilte Bndgewater Camden Deerfield Floyd , Foreslport, Kirkland Lee Marshall New Hartford Pans Remsen Rome . . Sangerfield Trenton Ulica 23.916 42.142 37.698 33,306 25.574 16.210 Verona Vienna Western Westmoreland Whitesiown 721,870 1-2 $48,129 363 58 $48,129,363 58 $4,993,428 20 $53,122 791 78 All of wUicli is respectfully submitted. ' EVAN J. EVANS, E. S WILLIAMS, D. A. CRANE, J. W. COOK, PHILIP MILLER, S. M. SMITH, T. S. GEARY, JAMES G. PRESTON, WILLIAM BRILL. Board op Equalization in and for said Countt. Dtica, December 4, 1885. TABLE PREPARED BY THE BOARD OF EQUALIZATION, 1885. TOWNS Real estate by- assessors, 1885. Annsville Augusta Ava Boonville Bndgewater.... Camden Deerfield Kloreace Floyd Forestport Kirkland Lee Maroy Marshall New Hartford.. Paris Rome Remsen Sangerfield.. .. Steuben Trenton Utica Vernon Verona Vienna Western Westmoreland . Whitestown , . . . J57' 818, 276 998, 654 1,072, ' 2B2 573: 74: 1.834: 647: 729 i,°34 2,002 1.450 6,612 411 1,53= 464 1,003 15,939 1,076 1,825 764 1 1351 3,838 418 00 ,845 00 100 CO 160 00 445 0° 288 CO ,852 00 ,8iD 00 ,607 00 ,683 58 ,025 00 , 395 00 ,126 00 ,420 00 ,829 CO 1 350 00 ,653 00 ,421 00 .953 00 .571 00 ,830 00 471 00 j3S3 00 ,800 CO ^920 CO ,870 00 800 00 305 00 Incorporated property . $38,478 ■5, 5°o 38s 109,100 51.41S "5. 950 S.020 280 66a Village property. 221,850 101,836 69,000 497.490 228,980 1,415,528 33. 829 72.275 27, 291 101,980 3,072,816 140,500 698,200 66,970 118,950 '.075,230 866,730 172,745 9.995 348,350 72,020 363.453 123.545 20,0IC 12,890 16,420 434.250 79.09s 6,350 93.440 394,002 171,300 3,829,100 58,220 558.365 6,410 153.570 "8,550 ZO4, 840 48,020 64,460 82,300 547.440 Equalized valuation. $570,418 818,845 266,100 998,160 654 445 1,007 28S 926, 853 288,81a 521,607 74.683 1.834,825 647.395 719,120 1,126,430 1,827,839 " .287,350 5,762,653 416,421 1,347.953 474.571 1,008,830 17,351,47' I,I4«,353 1,885,800 415.920 764 , 870 1,201,800 2,788,303 E. J. EVANS, Chairman. 328 Supervisors' Manual. §421. Appeal From Equalization by Super- T'isOX*. — Any supervisor may appeal in behalf of the town, city or ward which he wholly or in part represents, to the State assessors, from any act or decision of the board of supervisors in the equaliza- tion of assessments, and the correction of the assessment-rolls, under the provisions of the first title of chapter thirteen of the first part of the Revised Statutes. Such appeal shall be brought by serving a notice thereof, within ten days after the corrected assessment-rolls shall be completed by the board of supervisors or the chairman and clerk of said board, and also filing such notice in the office of the clerk of the county, together with the affidavit of the supervisor so appealing, that, in his opinion, injustice has been done to such town, city, or ward, by the act or decision appealed from, and a notice of such appeal shall be served on the State assessors by filing the same in the office of the secretary of State within ten days after the final completion of the corrected assessment-rolls by the board of 8upe^ visors, and such notice shall also be served on the chairman of said board of supervisors within the same time. Laws of 1859, chap. 812, § 13; Laws of 1874, chap. 351, 9 S, as amended br Laws of 1880, chap. 80; 2 R. S. 1001, 1004. See forms below. Under the petition of the relator, as supervisor of the town of Ontario, alleging that the defendant, the board of supervisors of the county of Wayne, had adopted an erroneous method in equalizing the assessments made by the assessors of the several towns of the county, and that the result was prejudicial to his town, a writ of certiorari was issued to review the proceedings of the board. Held, that the writ should he quashed, as the relator might have appealed from the equalization, in behalf of his town, to the State assessors, and upon such ap- peal have obtained a decision whether or not injustice had been done to the town, and if there had been, have had the requisite correction made. That the provision of section 2122 of the Code of Civil Procedure, declaring that, except as otherwise expressly prescribed by statute, » writ of certiorari can- not be issued ' ' where the determination can be adequately revie wed by an appeal to a court, or to some other body or oflBcer," did not violate the provision of the Constitution (art. 6, § 6), that ' ' there shall be the existing Sup reme Court with general jurisdiction in law and equity," nor deprive the relator of any right which he had to prosecute his remedy by "the law of the laud," but simply denied to him the right to demand the exercise of the discretion of the court in issuing a writ of certiorari on his application when he had an adequate remedy by appeal. It appeared that the equalization sought to be reviewed was produced by the adoption and use of a table of decimals, one for each town, which represented the percentage of the aggregate assessed valuations with which the towns, respect- ively, were charged in the equalization as made, and that, in their application and use by the defendant of those factors, the assessed valuations of the personal as well as of the real estate were included, by which means the valuations, in the respestive towns, of the personal property, as they appeared in the assessment- rolls, were modified, and for some of the towns increased and for others diminished, hut the aggregate valuations of the real and personal estate of all the towns remained the same as that of the assessed valuations. Held, that this method was clearly irregular and erroneous for the reason that the board of supervisors, in making the equalization, lawfully had nothing to do with the assessed valuations of personal property other than to continue them as made by the assessors of the respective towns. Equalization. 329 That while the equalization rests wholly in the judgment of the board of super- visors, and the results must depend upon the action of a majority, when all the members do not concur, the error in the manner of doing it is not simply one of judgment, where the proceeding is in evident violation of the statute, as was that under consideration; nor was it justified by the recognized use of that method in the county of Wayne for several years preceding that in question; nor is the prin- ciple of estoppel applicable to the action in that respect of any supervisor as the representative of his town. People, ex rel. Hill, v. Supervisors, 49 Hun, 476. § 422. Proofs Tbereon. — The State assessors shall liear the proofs of the parties which may be presented in the form of affidavit or otherwise, as they shall direct ; after hearing such proofs they shall determine whether any, and if any, what deduction ought to have been made from the corrected valuations of such town, city or ward ; and in the assessment and collection of taxes of the next following year, such town or city shall be credited with the amount of taxes levied from it on such excess of valuation, and the same shall be levied and collected from the other towns and cities of the county. Id. See Nature of Evidence, post, 423, and decisions thereunder. The State assessors shall have power to subpoena witnesses and to compel their attendance and to examine them under oath in the same manner as though such subpoena had issued from a court of record of this State, and all State, county, city and town officers shall furnish them with all information belonging to or connected with their respective offices and copies of all papers in their various offices which the assessors may require of them in the proper dis- charge of their duties. ' ws of 1859, chap. S12, 1 4, as amended by Laws of 1834, cbap. 435. § 423. Nature of Evidence — State Assessors to Determine Appeals.— On every such heanng or trial, the evidence shall in part relate to the assessment and full and true value of real and personal property, and the said State assessors shall determine whether or not injustice has been done to the town, ward or city, so appealing, in the equalization of real and personal property assessed therein, as compared with the other wards, towns or cities of said county, and shall determine whether any, and if any, what deduc- tions ought to be made from the aggregate corrected valuation of said real and personal property, as made by the said board of supervisors, and shall also determine to what town or towns, ward or wards, city or cities, in such county, said deductions, if any, shall be added, and 42 330 SupEBVisoKs' Manual. shall certify their deterininatioD in writing to said board of super- visors and forward the same by mail within ten days thereafter, to the clerk of said board of supervisors, directed to him at his post- offioe address. Laws of 1876, chap. 49, ! S ; 2 R. S. 1005. Under this act it is held that the State assessors are authorized and it Is their duty, upon appeal, to determine 1st, Whether the town appealing has suffered injustice as compared with other towns in the county. 3d. Whether such town shall have a deduction from its valuation and the amount thereof 3d. Upon what other town or towns such deductions shall be placed and the portion thereof which shall be placed on each. People, exnl Bd. of Suprs. of Westchester Co., v Hadley, 76 N. Y. S87. The comparison is not between the town appealing and the residue of the county as an entirety, but between it and the other towns as distinct and separate organi- zations. Id It is essential that said assessors shall take into consideration the valuation of all the towns in the county separately, and if they find injustice has been done to the appealing town by an excessive valuation as compared with some of the towns, they may remedy it by thus placing the excess upon those towns, and this although other towns which havenot appealed, have suffered alike injustice; for the purpose of correcting the injustice complained of these towns cannot be regarded. Id. The State assessors are not required upon such an appeal to talis testimony as to the amount and value of the personal property in the towns. As a board of supervisors in making equalization are confined to the valuation of real estate, the State assessors have no authority beyond tliis. Id. It is not an available objection where the decision of the State assessors was forwarded by mail in due season, that it was not filed with the clerk of the board of supervisors before the beginning of the next annual meeting. Id. When such decision was certified and forwarded by mail to the board of super- visors, withm ten days after it was made and signed by the State assessors, but not until after the commencement of the next annnal session, and the board omitted to carry the decision into effect, held that a mandcmms would lie to com- pel the execution of such decision. People, ex rei. Robison, v. Bd. of Suprs. of Ontano Co., 85 V. Y. 328. The court cannot on certiorari review the rulings of the body or ofiBcer in ad- mitting or rejecting evidence. An order made by the State assessors In a county other than that in which ap- peal originated in respect to certain documentary evidence and the time within which it should be produced, is not such a part of the trial as to violate section 2 of chapter 49, Laws of 1876. Section 3 of that act does not prohibit the board from taking evidence as to the value of real estate aliunde the assessor's valuation, nor an inquiry into the value of personal property. People, « ret., , . The Board of State Assessors, 22 N. Y. W. Dig. 468. Equalization 331 § 424. Appeal, Where Heard.— Every each appeal duly brought shall be heard by said board in the county in which such appeal originated, at a time and place to be fixed by said board, and they shall notify the supervisor of the town, ward or city ap- pealing, by mail, of the time and place so fixed upon, at least twenty days prior thereto. In case the appellant or his successor fails to appear and produce evidence to sustain the appeal, at the time and place appointed, or on the day to which such hearing or trial shall have been adjourned, if an adjournment shall have been had, said State assessors shall make an order dismissing said appeal as not sustained, which shall have the same effect, in all respects, as if said appeal had not been sustained after a trial or hearing on the merits on evidence. Laws of 1876, chap. 49, § 2 ; 2 R. S. 1004. See Decisions under g 423. § 425. Costs on Appeal. — Whenever any appeal so made shall not be sustained, the State assessors shall certify the reasonable costs and expenses arising therefrom and connected therewith on the part of the respondent and appellant, and such costs and expenses so certified shall be a charge upon the town, city or ward whose ap- peal is not sustained, which shall be audited by the board of super- visors, and levied upon the taxable property of said town, city or ward ; and whenever any appeal so made shall be sustained, the State as- sessors shall certify the reasonable costs and expenses arising there- from and connected therewith, on the part of the appellant and respondent, and such amounts so certified shall be audited by the board of supervisors and levied and collected from all the towns and cities of the county in the assessment and collection of taxes for the current year, excepting those towns and cities in which such appeal was sustained; and whenever more than one town or city in a county shall have appealed, some of which are sustained and some dismissed, it shall be the duty of the State assessors to decide what portion of the costs and expenses shall be borne by the town or towns, city or cities in which such appeal was dismissed. Chap. 312, Laws of 1859, § 15, as amended by Laws of 1884, chap. 435. Stenograsher's fees part of the costs. Laws of 1884, chap. 280. By the rules of the State assessors the amount of costs and expenses is limited fo $2,000. See "Rule 10," below. 332 SUPBEVISORS' MaKUAL. The statute seems to limit the amount of costs and expenses which the board of supervisors can audit against the defeated party to the amount certified by the State assessor. So that the case of The People, ex rd. Burhans, v. SupervisorB, will not now apply. 32 Hud, 607. At a meeting of the board of supervisors of the county of U., bills of expenses, duly verified, incurred by it in equalization proceedings, were presented. The supervisors and counsel of the city of K., the party appealing, had notice as early as November thirteenth of the amount of expenses claimed to have been incurred by the board. On November twenty-first, the board, then in session, appointed a committee to examine the bills and report thereon. On December first the coun- sel for the city notified the committee that the city desired to be heard. On De- cember third, the committee made a report to the board, and upon its being read, the supervisors of the city requested that consideration thereof be postponed until the next day in order to give them time to examine the bills and present objec- tions ; the board, however, proceeded to act upon the report and made the audit, no specific objections being made by the city supervisors to any of the items ; it was the practice of the board to adjourn on the fifth. In proceedings by man- damus to compel the common council of the city to levy and collect the sum au- dited, hdd, that under the circumstances disclosed, no legal right of the city was invaded by the denial of the application for delay. Also, held, that the board of supervisors had such an interest in enforcing the collection of the costs that it could authorize the proceedings ; that the expenses, when incurred, were in the first instance, on its credit, and so were county charges, it simply having a remedy over against the city in case the latter failed on its appeal . The board passed a resolution on December fourth, authorizing the employment of counsel named, "in all matters of litigation" growing out of the equaliza- tion, and authorizing him "to take all necessary and proper proceedings in the name of the board." Subsequently a committee of its members was appointed with full power to do all things necessary in the litigation. HdA, that ample authority was thus conferred to institute the proceedings. The charter of the city provides a special system for the collection of taxes therein. It was objected that the charge against the city could not be enforced, Eeld, untenable ; that the direction in the act of 1873 (chapter 327, Laws of 1873), requiring the sum audited by the board of supervisors to be "levied upon the taxable propeity in said * * * city," is to be carried out by causing the same to be levied in the usual way provided for levying and collecting taxes in the city. People, ex rel. Board of Supervisors, v. The Common Council of the (Mty of Kings- ton, 101 N. Y. 82. Laws N. Y. 1884, chap. 435, which provides that, on the decision of an appeal from the equalization of the board of county supervisors, the State assessors shall certify the reason- able costs and expenses, to be paid by the losing party, does not deprive attorneys who have resisted such an appeal on behalf of the supervisors from recovering the agreed com- pensation for their services, though such compensation exceed the amount certified for their services by the State assessors . Where the supervisors refuse to audit the bill for such compensation for want of authority under said statute, mandamva will lie to compel them to do so . People, ex rel. Anihal, v. Sup., 6 N. Y. Supp. 591. § 426. Procedure on Appeal. — The State assessors are empowered, subject to the approval of the comptroller, to prepare forms of petition and notice of appeal, rules and regulations in rela- tion to bringing such appeals, and the hearing or trial. Laws of 1876, chap. 49, § 1 . The following are the forms and rules prescribed: ^2T. Form of Notice of Appeal and Affidavit. To THE Board of Supervisors of the Coontt of Gentlemen — Take notioajhat, as supervisor of the town of , I hereby appeal to the StaWassessors of the State of New York, in behalf of said town, from the act or decision of the board of supervisors of said county of in the equalization of assessments and correction of the assessment-rolls of the different towns in said county, made on the day of A D 18 Dated , A. D. 18 . Equalization'. 333 STATE OP NEW YORK, ) County, ,. . ., , in said county of , being duly sworn, deposes and says he is the supervisor of the town of , and in his opinion in- justice has been done to said town by the act or decision of the board of super- visors of the county of , in the equalization of assessments and the correction of the assessment -rolls of said county, as made on the day of A. D. 18 Signed ( ,) Subscribed and sworn to before me, this ) day of . A. D. 18 . ) Rule 1st of January 22, 1884. The other rules are as follows- Second. On the hearing, the appellant shall be deemed to have the affirmative, and the action of the board of supervisors shall be regarded prima facie, as cor- rect, until such presumption is overcome by evidence establishing the allegation of injustice done to the appealing town, ward or city. Third. The board of supervisors shall be deemed the respondent. Fourth. In order to establish the allegation of injustice and erroneous equali- zp.tion, the appellant must show by evidence, oral documentary (or by deposi- tions, when said board so directs), the full and true value of sufficient property in each town, ward or city of said county, to determine the full and true value of the whole of the property of said town, ward or city, with reasonable accuracy. Mfth. The board of State assessors will require the production of all the assess- ment-rolls on which the board of supervisors made the equalization appealed from, and such rolls will be regarded as a part of the evidence in the case. Sixth. The appellant will be required to present a correct statement of the rail- roads in each of the towns and cities of the county. Such statement must contain the name of the railroad, miles of road-bed and width of the same, number of continuous tracks and length of switches or side tracks, real estate, if any, outside of road bed, and the estimated full value of all buildings, as depots, workshops, round-houses, water tanks, etc. Seventh. The appellant will also be required to present at such hearing, the area in acres and assessment (for purpose of county and State taxation) of each incorporated village in the county. This will not be required in counties where assessors have made separate assessments for farm and village property. Eighth. The appeal will be heard at the time and place appointed, unless sufficient cause shall then and there be shown by affidavit, why an adjournment should be granted. Ninth. After the fixing of the time and place for the hearing of said appeal, it shall be the duty of the appellant or his successor, to serve notice of the said hearing and the time and place thereof, on the clerk of the board of supervisors of the county wherein said appeal originates, at least fourteen days prior to the time so appointed, personally or by mail, addressed to him at his place of resi- dence, or of his usual post-office address; and to furnish said board of State assessors at the time of hearing, proof by affidavit of the due service of said notice, made by the person making such service, or by the written admission of such service, signed by said clerk (unless some person duly authorized shall appear at said hearing in behalf of the respondents). In case of vacancy in the office of clerk of the board of supervisors, then such notice shall be served by the said appellant or his successor, upon the clerk of the said county, within the time and in the manner hereinbefore provided. It shall be the duty of the clerk receiving such notice, to immediately serve a copy of the same on each of the supervisors of said county, personally or by mail, addressed to him at his place of residence, or of his usual post office address. Tenth. The board of State assessors will require a detailed and itemized state- ment of all expenses claimed by the respective parties, verified by affidavit proving the amount of such disbursements and charges and showing the necessity thereof before said board will proceed to certify the reasonable costs and expenses arising from and connected with said appeal. But the aggregate of all the 334 Supervisors' Manual. expenses and counsel fees which may be certified to the appellant shall not exceed two thousand dollars, nor shall the aggregate of all the expenses and counsel fees which may be certified to the respondent exceed two thousand dollars. Eleventh. When more than one appeal shall be pending in a county, brought by difierent supervisors, on behalf of different towns, wards or cities, said appeals shall all be heard at the same time and together. Twelfth. Not more than one counsel will be heard on either side, on the final argument of the matter, unless for special reason then shown. Thirteenth. Subpoenas will be furnished on request, by the State assessors, to either party. Bules issued January 23, 1884 Decision of tlie State Board of Equalization Revie-wable on Certiorari. — This proceeding was in- stituted to review a decision of the State assessors, sustaining an ap peal taken by the supervisor of the town of Perth, from the equali- zation of the assessments of the county of Fulton, made by the board of supervisors of Fulton county, and directing that a sum therein named should be credited to the town. Upon the. hearing of the re- turn made to the writ of certiorari it appeared that the State asses- sors admitted in evidence records of deeds of conveyance of lands in the several towns of the county against the objection of the relator, and that subsequently the considerations expressed in the several deeds thus admitted, were claimed by the town of Perth to furnish some evidence as to the value of the several pieces of real estate de- scribed in them. Held, that the decision of the State assessors, in admitting the evidence, was not a violation of " any rule of law, ajBEecting the rights of the " relators, as these words are used in subdivision 3 of section 2140 of the Code of Civil Procedure, for the reason: First. That in the disposition of appeals like the one in question, the State assessors are governed and controlled by statutory provi- sions, and the rules and regulations made by them in pursuance of the authority so to do conferred upon them by the said acts ; and Second. That while they have not full power to render a decision of their own volition and without evidence, yet they are, to some extent, vested with a discretionary power to take action, without re- stricting their proceedings to strict technical rules. People, ex ret. Schabacker, v. State Assessors, 47 Hun, 450. The action of the State board of equalization in the discharge of the duty imposed upon it of equalizing the State tax among the several counties of this State, is judicial in its character, and when it has acquired jurisdiction any error in its judgment or mistake in its conclusions can be asserted only in some direct proceeding for review. Mayor, etc., of New York v. Davenport, B2 N. T. 604. Equalization. 335 The fact that said board did not have before it at its meeting a written digest of facts to be prepared by the State assessors, is not a jurisdictional defect, and is immaterial. Id. The fact that the board increased the valuation of a county with- out swearing and examining witnesses is immaterial; that is the duty of the State assessors, and iipon the information given by them to the board, it is authorized to act. Id. Nor does the fact that the board, after a short secret session, adopted a schedule of equalization, prepared by one of the assessors, affect the validity of its decision. Id. The fact that the S.tate board of equalization, after giving a county full opportunity to present proof, information and argument, went into secret session when deliberating upon the equalization of assess- ments, excluding the representatives of the county from participa- tion therein, and declined their assistance and advice in making such equalization, does not justify a charge of misconduct against the board. People V. McCarthy, 102 N. T. 631. Nor is it just ground for such a charge against the State assessors, that, in seeking information as to the value of real estate in the county, they did not accept offers of assistance and advice tendered by the county tax and assessment officers. Id. It seems the price paid on private sale of real estate is not compe- tent evidence of value, and a comparison of the difiEerence between the consideration stated in transfers of real estate, and the assessed valuation of such real estate in two counties of the State is not con- clusive or cogent evidence to show that the assessed valuation in the one county is nearer the real value than in the other. The statutory scheme of valuation for purposes of taxation stated and explained. Id. The court will not reverse a decision upon certiorari, as against the preponderance of evidence, under Code of Civil Procedure, sec- tion 2140, subdivision 5, if there was evidence before the body whose decision is sought to be reviewed, legitimately tending to sup- port the determination as to all material facts. 336 Supervisors' Manual. So hdd, upon certiorari to review the decision of the State asses- sors npon appeal by tlie supervisors of a city from the equalization of assessments of the county made by its board of supervisors, the material fact being the value of the real estate of the several towns and in the city. People, a. rel. WyM, v. Williams, 17 Abb. N. C. 366. CHAPTER VIII. AUDITING OF ACCOUNTS. Skc. 428. Practice and principles governing. 429-440. Rules goTerniug the auditing of accounts . 441 . Greneral form of accounts to be pre- sented . 442. Special form of account. 443. Uow accounts should be audited. 444. Who are to audit accounts. 445-448. Laws governing the action of town auditors. 449. Who compose the board of town auditors. 450. Auditors of supervisors' account. 451. When to meet. 452. Accounts of overseers of the poor. 453. Account of the overseer of the poor under the poor law of Livingston county. 454. Account of highway commission- ers. 455. Auditors to state account. 456. Auditors to meet, when. 457. Town charges. 458. For certain expenses, judgments, etc. 459. Accounts for sheep killed by dogs. 460. Justices' and constables' fees in criminal cases chargeable to a town. 461. Form of justice's account. 462. Form of constable's account. 463. Statement with account. 464. Costs. 465. Town bonds. 466 . Cancellation of bonds and coupons. 467. Commissioners to keep records. 468. Board of town auditors to prescribe bond of railroad commissioners. 469 . Duty on vote of town to levy a tax for the purpose of buying and canceling bonds. 470. Old bonds may be paid up or re- tired by issuing new bonds. 471 . Bonds need not be audited . 472. Gospel and school lot funds . 473. Town notes, so called, etc. 474. Certificate of town auditors. 475a. Supervisors to raise amount audited . 476b. Abstract of town accounts. 477. County charges. 478. Town charges. 479. Principles and practice. 480. When accounts to be presented. 481. Items to be stated and verified. 482. Accounts to be numbered. 483. What are county charges. 484. Printing calendar. 43 Sec. 485 . Printing session laws . 486. fiesolutions, publishing of . 487 . Terms of court — Advertising. 488. Printing, expenses of . 489. Election notices and official can- vass. 490. Census. 491 . Salaried county officers. 492. Judgments. 493. Proceedings for removal of county officers. 494. Default of tax collectors. 495. Default of county treasurer. 496 . Support of the poor. • 497. Game and fish. 498. Insuring buildings. 499. Court criers. 500. Damages by mobs. 501 . Election expenses, criminals, etc. 502. Stenographers. 503. Stenographer for county court, etc. 504. Costs. 505 . Contingent charges . 506. Torts. 507. Court-rooms and other county property, etc. ail f 508. Jail furniture. 509. Counsel. 510. Counsel to assist district attorney. 511 . Counsel assigned by the court. 512. Counsel employed by the super- intendent of the poor, etc. 513. Excise commissioners. 514. Coroners. 615. Ph^icians. 516. Coroner's jurors — Fees of. 517-518. Jurors. 519. Lunatics. 520. Idiots. 521. Orphan asylums. 522. Militia. 523. Moneys necessarily expended. 524. Referee's fees. 525. Superintendent of the poor. 526. Account and report of superin- tendent of the poor. 527. Supervisors' accounts. 528. Taxes. 529. Form of general account. 530-532. Accounts of justices of the peace. 533a. Justice's report. 534. Form of justice's account. 535. Accounts of constables. 536. To publish audits. Albany county, system in . 338 yuPEKTisoEs' Manual. The word " audit" means to hear and examine, to pass upon and adjust, a judicial investigation and decision as to the merits of a claim. In re Murphy, 24 Hun, 592-4. § 43S. Practice and Principles Governing.— The general practice and principles governing the auditing of ac- counts, either by town or county boards of auditors, are the same, and are as follows : § 429. First. The powers of such boards are strictly limited by statute. They cannot admit and audit a claim upon any notion of their own of its equity ; but are simply to admit and audit such claims only as are made by statute, expressly or by necessary impli- cation, legal charges. People V. Lawrence, 6 Hill, 24i ; Osterhoudt T. Eigney, 98 N. Y. 222. When they transgress the limitations prescribed by statute their acts are void. Osterhoudt v. Eigney, 98 N. Y. 233. Boards of supervisors cannot hind their counties by an act not within the limits of the express powers conferred upon them hy statute, they cannot allow a claim on any notions of their own as to its equity. Chemung Canal Bank v. Supervisors, 5 Denio, 617. They are bound to provide funds to pay orders drawn by the superintendents of the poor and certificates given for service as ju- rors, and if the funds are wasted or lost, to provide otters to replace them. Id. They cannot make hills of exchange. County orders paid by the treasurer have lost their vitality and cannot again become valid se- curities in the hands of an innocent holder ; but where, without any fraudulent intent, the bolder of large county orders exchanged them with the treasurer for smaller ones which he had paid but which had never been allowed in his accounts, the debt represented by the large orders is not extinguished. Id. § 430. Second. Amount Fixed by Statute.— When the amount of a charge is fixed by statute the board have no discretion over it, and must audit the claim according to such statute. People, exrel. Kinner, t. Supervisors of Cortland Co., 40 How. 63; 98 Jf. T., tupra, 232. Where a salary is fixed by law which the board are required to audit and allow they have no discretion, and are liable to be fined for refusing so to do. Morris v. People, 3 Denio, 381. Auditing of Accounts. 339 lui^i'!'^ ^^X^^ imposed upon an officer, since his salary was fixed, he is not entitled to additional pay therefor. ."<"=. um People, ex rel. Phoenix, v. Supervisors, 1 Hill, 362. K person holding a public office has a j^rma facie right to the salary thereof, although he be physically disabled from performing his duties. If there be no law or regulation authorizing the discontinuance of the compensation during the disability, the only remedy is his removal. Sleigh V U. S 9 Ct. 01. 369; 5 Wait's Act. and Def. 20; People, ex rel. Ryan v French, 91 N. Y. 265; O'Leary v. Bd. of Education, 93 id. 1. ^ ' A salaried officer is not entitled to a per diem allowance for performing a new duty imposed upon him, even for Sunday labor. Palmer t. Mayor, 2 Sandf. 318. See Baker r. City of Utioa, 19 N. Y. 326 • City of Poughkeepsie y. Wiltsee, 36 Hun, 270. ' Where an officer, entitled by law to a fixed annual salary, 'h&s been prevented for a time, through no fault of his own, from performing the duties of his office, and has during that time earned wages in another and different employment, he cannot be compelled, in an action to recover his unpaid salary, to deduct the amount so earned. Fitzsimmons y. City of Brooklyn, 102 N. T. 536. There is no contract between an officer and the State or municipality by force of which his saXa/ry is payable, but it helongs to him as an incident to his office so long as he holds it, and when improperly withheld, he may recover the amount. Id. TJneamed saXa/ry of a public officer is in no respect salary and may be changed at any time during the term of office when the legislative power is unrestricted by the Constitution. Board of Supervisors of Erie Co. v. Jones, 28 N. Y. W. Dig. 502. When the legislature, by statute, made the compensation of a county treasurer a salary, in place of fees which before then he was entitled to receive, the act taking efEect January 1, 1883, held, that a county treasurer elected in November, 1881, was entitled to the salary so fixed and should account to the county for the fees received by him. Id. §431. Third. If not Fixed by Statute.— When the amount is not fixed by statute, but the claim is a legal charge, the board are to determine the amount. However much the board may err in judgment, so long as it keeps within its jurisdiction and acts in good faith its audit cannot be overhauled, but is final both to the claimant and to the tax payer. Id.; People, ex rel. Johnson, v. Supervisors, 45 N. Y. 196-9; Metropolitan Gas-light Co. v. Mayor, 9 Hun, T06; Hobbs v. City of Kingston, 102 N. Y. 13. If they audit an account not legally chargeable, it is not only void, but may be disregarded by other town or county officers, and is not binding and conclusive upon a succeeding board. Board of Supervisors of Richmond Co. v. Ellis, 59 N. Y. 620; id. (above). And may be recovered. kossy. Supervisors, 38 Hun, 20, and cases supra; People, ex rel. McSpedon, v. Stout, 4 Abb. 22; People v. Lawrence, 6 Hill, 244. Boards of supervisors, in auditing and allowing accounts, are limited to the powers conferred upon them by statute . If the subject-matter of the account be within the jurisdiction of the board of 340 SUPBEVISOES' Manuai. supervisors, and they allow it, the county treasurer has no right to refuse pay- ment on the ground that the allowance was for too much, or was made upon in- sufficient evidence. Otherwise, if it appear on the face of the account that the subject-matter was not within the juriscUction of the board. People T. Lawrence, 6 Hill, 244. The auditing of an improper item does not vitiate the whole levy of taxes. Parish t. Golden, S5 N. T. 462. But a mandamus lies to annul the illegal item. People, ex rel. Lawrence, v. Suprs., TS M. T. 173. If it could not be ascertained what amount of the illegal claim was allowed, or whether the deduction was made therefrom, or from the items which the board had jurisdiction to audit, the whole audit will be vacated. Osterhoudt t. Rigney, 98 N. Y. 222. No court can audit a. claim, or order the officer to pay it, unless some statute authorizes it so to do. In re Tinsley,!90 N. T. 231 ; People, ex rel. Johnson v. Bd. of Suprs., 45 id. 196, 200. In all cases where the exercise of discretion is required, and the board is not satisfied with the sum charged, it is better, it is just, that notice be sent to the claimant with a request to appear and explain, before making a blind and arbi- trary reduction of the account without evidence or knowledge to support their decision. People, ex rel. Sherman, v. Supervisors, 30 How. 173; 45 Hun, 62. In settling the amount if the claim is for any matter the price of which is fixed by law, by custom, by authority, or by contract with one having authority to contract on behalf of the county, the board have no discretion, but must settle or declare the amount according to such law, custom or contract. Id. An act of the legislature (Laws of 1867, chap. 938) " authorized and empow- ered " the boards of supervisors of certain counties therein mentioned to hear and determine claims for illegal assessments upon United States securities, and to repay the amount collected upon such assessments. Held, that the act was man- datory, and not merely permissive. And that, upon the presentation of a claim thereunder, the only questions to be determined by the board, and in reference to which it has any discretion, are whether the claimant has such a claim, and, if so, the amount thereof. That, when the fact of the existence of the claim is undisputed, the board has no authority to reject it as illegal ; and it can be com- pelled, by mandamiiS, to exercise its discretion upon the facts, and the amount of the allowance. People, ex rel. The Otsego County Bank, v. Supervisors of Otsego, 51 N. T. 401 ; S. C, 53 Barb. 564. The only subject upon which the judgment of the board of supervisors is to be exercised, in such a case, is whether it is established before them that bonds, stocks or national securities not subject to taxation have been taxed; and, if so, the amount so erroneously taxed and paid, and who is entitled to the repayment thereof. People T. Supervisors of Herkimer, 56 Barb. 452. The board act judicially in examining, settling and allowing accounts. This involves the right to receive evidence, hear, consider and determine the justice of the claim presented. People, ex rel. Baldwin, v. Supervisors, 12 How. 204; People, ex rel. Brown, v. Supervisors of Herkimer Co., 8 How. (N. S.) 241; Osterhoudt v. Bigoey, 98 N. T. 222. Under an act giving a marshal $2 per day for each day actually and necessarily employed, he presented a claim for fifty-nine days; the board found and detei- Auditing of Accounts. 341 mined that he was not necessarily and actually employed fifty-nine days, but only forty days; held, the decision was a judicial determination which could not be reviewed on mandamus. 12 How. 204, tupra. It is the office of a common-law certiorari to review the determinations of a board of supervisors; and this remedy is proper in case such a board rejects, as not just or legal, a claim which the legislature has declared, by statute, to be just and legal, and directed the board to audit and allow. Although the court cannot, by certiorari, compel a performance of this duty, it can reverse the erroneous decision, leaving the party, in case of further refusal to perform its duty, to such further remedy, by mandamus or otherwise, as the law gives him. People V. Supervisors of Madison, 51 N. T. 442. Where a tax upon the capital stock of a bank, including that portion invested in United States securities, was assessed, levied and paid prior to the decision of the supreme court of the United States, holding that the portion so invested was exempt from taxation; and where a claim was made to a board of supervisors, under the provisions of the act of 1867 (chap. 938) to provide against illegal tax- ation, for the repayment of that portion of the tax so illegally assessed, it was Mid that it was no answer to the claim that the claimant did not appear before the assessors and object to the assessment, or that it paid the tax voluntarily. Id. A county board of commissioners of excise has power to employ an attorney to conduct the prosecutions for penalties which they are authorized to institute ; and as it acts as the agent of the county in so doing, the claim for such services is a county charge. People T. Supervisors of Delaware, 45 N. T. 196. An account for such legal services must be presented to the board of supervis- ors, and must be audited and allowed by them; but the amount to be allowed, in the absence of express contract or statute, is somewhat in their discretion. If they are legally chargeable to the county, it is the duty of the board to audit them, and on their refusal, a m^indcmius is the proper remedy. Id. The auditing of a claim against the county of New York, by the board of super- visors, is an allowance of the claim, and when funds are provided for its pay- ment, no further auditing is required. Such auditing is conclusive upon the board and their successors; and no subsequent board of supervisors will be authorized to require the same to be audited a second time. People V. Green, 64 Barb. 162. Where any body of men is directed, by law, to audit a claim, it seems that an order of the court, directing the amount at which such claim shall be allowed, would be improper; except in case of salaries and claims where the amount to be recovered is fixed by statute. In other cases, the board which is to audit must settle the amount to be allowed. Id. Where a bill is presented for services rendered to the county, the board of supervisors — unless the compensation for such services be fixed by law, author- ity, custom or binding contract — have to consider and pass upon the charges, and allow such sum as, in their judgment, is right and proper. In such cases they have a discretion, which will not be interfered with by a mandamus directing how that discretion shall be exercised. People V. Supervisors of Cortland, 58 Barb. 139 ; S. C, 40 How. 63. If the statute prescribes the sum to be received for such services, the board are required to allow the bill according to such statute. They have no discretion over it. If the sum is fixed by a binding contract, the board are equally bound to allow the bill in accordance therewith. Id. 343 Supervisors' Manual. An individual having been employed by a county clerk or surrogate to do his printing, at an agreed price, such employment being within the scope of the clerk's or surrogate's authority, and the sum agreed to be paid being no more than a reasonable compensation for the services, the board of supervisors are not at liberty to interfere with such contract, but should cause to be levied and paid the amount due thereon. Id. The relator having done printing for the sheriff, at his request, but without any contract as to the price, such printing consisting of legal notices, required by law to be published, held, that he was entitled to charge therefor the sum allowed by law; and that the board of supervisors should have allowed him that amount, without any deduction. Id. Where the statute allows an individual to collect, for a service rendered the county, not more than a sum specified, he cannot be compelled to take less. Id. After a board of supervisors had passed upon an account presented by the relator, it caused to be made and delivered to him an order on the treasurer, for the payment of the amount allowed. The relator refused to receive it in full of his claim, and notified the person handing it to him that he should at once com- mence a proceeding to compel the board to allow him the balance claimed. He subsequently tendered back the order to the same person, who refused to receive it. He afterward received and retained the avails of the order. Held, that the relator was not estopped, by this act, from disputing the correctness of the action of the board. Id. The acceptance of the amount audited^ precludes the claimant from further prosecuting the claim for the residue of the bill. People, ex rel. McDonough, v. Superrisors, 33 Hun, 305 ; People, ex rel. Brown, v. Supervisors of Herkimer Co., 3 How. (N. S.) 241. A legal claim against a county is not made so by its audit by the board of super- visors ; what are and what are not county charges are settled by law; and when the board of supervisors determine the amount of the debt due from the county, resulting from services rendered or goods furnished which relate to a county charge, their decision is conclusive, inasmuch as they act judicially. Whether a claim is a county charge depends upon facts; and, in a proper case, they may be inquired into upon issues raised on an alternative manda/miis issued for the payment of the claim. People, ex rel. Tracy, v. Green, 7 How. 382. A person can contract with a municipal corporation only through its a/iithorizei agents and is chargeable with notice of the limitations upon their official authority imposed by general laws. Lyddy v. Long Island City, 104 N. T. 218. Where the common council of a city has no authority to create a liability against it by express contract, it cannot legalize such a claim by acknowledgment, ratijkOr tion or otherwise. Id. The board of excise • * * being charged with duties involving the exercise of discretion, cannot delegate their authority to be exercised by another. The board may employ an attorney to conduct any prosecution commenced by them, but cannot give general authority to such attorney to commence such prose- cution at his discretion. Board of Commissioners v. Saokrider, 35 N. T. 154. Auditing of Accoxjkts. 343 Where a board of supervisors passed a resolution authorizing the employment of counsel named '• in all matters in litigation " growing out of the equalization and authorizing him "to take all necessary and proTpet proceedings in the name of (Ae 6oawc2," subsequently a committee was appointed with full power to do all things necessary in the litigation. Held, that ample authority was thus conferred to institute the proceedings. People, exrel. Supervisors, v. Common Council of Kingston, 101 N. Y. 82. An application was made by relator to compel the board of town auditors to cer- tify to the board of supervisors as town cha/rges the amount of a judgment against relator, as commissioner of highways, in an action brought by him to recover a penalty from an overseer, and also an amount found due him by a former board of town auditors; upon the hearing it was admitted that the tills had been presented to the board in 1885, that they had examined them, decided that the town was not legally liable to pay for the whole, or any part of them, and rejected them. Held, that a wri; of mandamus should not be issued, as the board had made a decision, and that relator's remedy was by certiora/ii and not by mandanvus. People, exrel. Myers, v. Barnes, 4i Hun, 574. § 432. Fourth. Accounts Must be Presented on, or Before, Some Certain Day. " The supervisors of the counties of Onondaga, Tioga, Oneida, Fulton, Monroe, Broome, Delaware, Cayuga, Orange, Jefferson, Richmond, Livingston, Chenango, Chemung, Ulster, Dutchess, Steuben, Niagara, Columbia and Herkimer, by their clerks, shall provide boxes with suitable inscriptions thereon, and with openings in the top, to be kept in the offices of the clerks of said counties and in their charge under lock and key, in which shall be deposited, by said clerks, all accounts and claims against said counties, duly verified according to law; and whenever said boards shall severally for themselves order, the clerks of said boards shall take from said boxes all bills and accounts against said counties, which they shall then file and number, and it shall not be lawful for the said boards of supervisors, in any one year, to audit, as against said counties, any other Oil or account than such as shall have been deposited in said boxes, or otherwise in their possession, upon tlie morning of the fourth day of the annual meeting of the said boards, except bills for the services of supervisors, their clerks and janitors, and except bills for services or disbursements rendered or made during the session of the boards." Laws of 1861, chap. 83, as amended by Laws of 1862, chap. 245. All officers or trustees, whose duty it is by law to make annual reports to the boards of supervisors of the several counties named in this act, are hereby re- quired to make the same within six days from the first day of the organization of the board, in each year, and if any such officer or trustee willfully neglects or re- fuses to inake such report, he shall be deemed guilty of a misdemeanor. Id., §2. See " Board of Town Auditors." The clerks of the boards of supervisors of the several counties named in this act shall annually give notice, in at least two of the newspapers published in each of the said counties, of the time of holding the annual meeting of said boards in each year, to be inserted in said papers at least once in each week for four weeks previous to such meetings, and requiring all persons having bills or accounts against the said counties to deposit the same with the county clerk, duly verified, on or before the third day of the next annual meeting of said boards, and in default thereof, that such bills or accounts will not be audited by said annual meetings. Laws of 1861, chap. 8S, 3. 344 SuPKKVisoEs' Manual. Whenever the board of supervisors of any county of this State shall by resoln- tion declare that the provisions of this act shall be extended and made applicable to such county, the provisions of this act shall thereafter be applicable to such county. Id., 83 amended by Laws of 1862, chap. 245. The above provision applies to all claims, whatever their form, which are required by law to be submitted to the supervisors for audit, save those specific cally excepted. Thus a judgment, although a legal claim upon the county, must be so presented. Burrows v. Monroe, 23 How. 395. See " Town Auditors." But bonds issued by town or county need not be presented for audit. Parker v. Supervisors, 106 N. T. 392. The determination of the board is not binding upon a claimant whose claim is presented without his knowledge. Herrick v. Mayor, 9 N. T. Week. Dig. 179. If a town's negotiable bonds be lost, it may be compelled to pay the amount due upon receiving a proper bond of indemnity. Manhattan Savings Inst. v. Town of East Chester, 44 Hun, 537. Neither the report of a committeB of the supervisors, setting forth the items of the claim, nor an official report made by the claimant as a public ofBcer, can be regarded as a presentation of the claim. People, exrel. Johnson, v. Supervisors, 9 Abb. (N. S.) 416. A county treasurer is not authorized to collect from trust funds the fees allowed him by law for selling lauds for taxes, which are struck ofi to towns, mthovi the audit of the town boord. Warren v. Baldwin, 105 N. Y. 534. Such claim must be presented for audit. Id. § 433. Fifth. Accounts Must be Properly Itexaized and Verified. — No account shall be audited by any board of town auditors or supervisors, or superintendents of the poor, for any services or disbursements, unless such account shall be made out in items and accompanied with an affidavit attached to and to be filed with such account, made by the person present- ing or claiming the same, that the items of such account are correct, and that the disbursements and charges therein have been in fact made or rendered, or 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 said board, or either of said superintendents, is hereby authorized to administer any oath required under this section. Laws of 1845, chap. 180, as amended by Laws ot 1847, chap, 490; 1 R. S. 845. Nothing in the preceding section shall be construed to prevent any such board from disallowing any account in whole or in part, when so rendered and verified. AUDITISTG OF AOCOUNTB. 345 nor from requiring any other or further evidence of the trnth and propriety thereof, as such board may think proper, la. Unless the account is properly verified the board has no jurisdiction to act upon it. Osterhoutv. Bigney, 98 N. Y. 233; Hawley v. Mclntyre, 24 Hun, 459; People v. Supervisors of Monroe Co., 18 Barb. 567; People, exrel. Johnson, v. Super- visors, 9 Abb. (N. S.) 416. If an account is not properly verified it should be returned to the claimant with notice that he may appear and correct it. People, ex rel. Sherman, v. Supervisors of St. Lawrence Co., 80 How. 173: People, exrel. Brown, v. Supervisors of Herkimer Co., 3 How. (Jf. S.) 241; People v. Supervisors, 45 Hun, 62. Or if the WU is informal, e. g., in not specifying the name and residence of the complainant, etc. , it should be allowed to be amended. People V. Supervisors, 45 Hun, 62. If the hoa/rd refuse to aUow it to be corrected, it may be compelled to by ma/n- dwmui. Id. Where a claim, consisting of separate items, is presented for audit * * * it is the duty of the board to examine each of the items separately and allow or dis- allow the same accordingly as it shall be found correct or incorrect. It is error for the board in such a case to deduct a gross sum from the amount of the claim, without passing upon or specifically altering any of the items of which it is com- People, ex rel. Thurston, v. Board of Town Auditors, 20 Hun, 150. The auditing board must act speciflcaMy on each item of the account presented. An arbitrary reduction from the gross amount of a bill for various services or items, is not an audit thereof. People, exrel. Thurston, v. Board of Town Auditors, 82 N. Y. 80; People, exrel. Johnson, v. Supervisors, 45 id. 196. It cannot reject or refuse to audit one item which is a legal charge, on the ground that it is illegal. An afBdavit before a commissioner of deeds is sufficient. People V. O'Reilly, 9 Abb. N. C. 77. An affidavit, stating that the service was performed, and that no part of the claim had been paid by the board of supervisors or any one on their behalf, is not sufficient. People, exrel. Cagger, v. Supervisors, 2 Abb. (N. S.) 78. §434. Sixth. If for seT-wces in which no specific compensation is fixed by law, a just and true statement, in 'v^riting, of the time actually and necessarily devoted to the performance of such services should also be produced. All town and county officers, and all other persons who may present to the board of supervisors accounts for their services, to be audited and allowed, shall, before any such account or claim shall be passed upon or allowed, exhibit a just and true statement in writing of the nature of the service performed by them. 2 R. S. 978, S 1. In all cases in which a specific compensationjfor any service is not provided by law, the officer or person presenting an account therefor shall also exhibit, in writing, a just and true statement of the time actually and necessarily devoted to the performance of such services. ''•'''■ 44 346 SupEEVisoBs' Manual. § 435. Seventh. Tlie Account claimed Must be a Le^al Cliarge.— The statute defines what are " legal charges." As to towns, see " Town Charges," §§ 457-473, post. As to counties, see "County Charges, §§ 4S3-5S5," post. And does not include such demands as have their origin in "torts." McClurev. Board of Supervisors, i Abb. N. S. 202: MoClure v. Board of Super- visors, 50 Barb. 594; Howell v. City of Bufealo, 15 N. T. 512; McGaffin v. City of Cohoes, 74id. 387; Newman v. Supervisors of Livingston Co., 45 id. 678-689; Quinlan v. City of Utica, 11 Hun, 217; affirmed, 74 N. Y. 603; Ross v. Super- visors, 38 Hun, 20. A "Tort " is a private or civil wrong or injury. A wrong independent of contract. Bouvier's Diet. Such as damages from riots; injuries to person or property; the wrongful tak- ing of property; injury to personal or real property; negligence and the like. The right of action therefor is'generally founded, either upon: 1st. An invasion of some legal right of person or property; or 2d. On the violation of some duty toward the public, which has resulted in some damage to the plaintiff or claimant; or 3d. In the infraction of some private duty or obligation which has been pro- ductive of damage to the complaining party. 2 Waifs Law & Pr. 418. The first two are the ones involved in town or county charges. Claims for torts ought not to be presented for audit. But, in cases of damages to persons, or property, by reason of defective highways, or bridges, the board of town auditors, by special statute, have power to audit and pay such claim, if they deem it just so to do, as a town charge, an amount in settlement of any one claim not to exceed $500, and any judgment already recovered and not paid, and any judgment hereafter recovered against any commissioner or commissioners of highways for such damages, whenever they shall be satisfied that the commis- sioner or commissioners against whom the same was rendered, have acted in good faith, and the defect causing such damage shall not have been caused by the willful misconduct or neglect of the commissioner or commissioners. They may be convened in special session for such purpose by the supervisor, or in his ab- sence by the town clerk, upon the written request of the claimant or commis- sioner of highways. § 4, chap. 700, Laws 1881, as amended by chap. 146, Laws 1889. The statute is set out in full. See " Defective Bridges," post, § 858. In each year from 1875 to and including 1879, the board of super- visors of the county of Cayuga included in the taxes imposed upon the taxable property of the city and town of Auburn, in that county, the whole amount of the fees and charges audited and allowed by the said board of supervisors to the sheriff for receiving, keeping and boarding prisoners committed to jail by the courts of special sessions and police justices in the said city, while the statute required that the said amount should be assessed upon the taxable property of the county as a county charge. This action was brought by the plaintiff to recover the illegal amounts so added to the taxes imposed upon the property of the plaintiff's assignors, and by them paid to the city treasurer and tax receiver, by whom they were paid to the sheriff upon checks drawn by the supervisors of Auburn. AUDITIITG OF ACCOUKTS. 347 Held, that as the board of supervisors had no statutory authority to impose these taxes upon the city their action was wholly without jurisdiction, and that the plaintiff could maintain this action to re- cover the amounts so paid without first procuring the assessment to be vacated in proceedings instituted directly for that purpose. That as the plaintiffs claim was founded upon the illegal and wrongful action of the board of supervisors, it was not necessary for him to present it to that board for audit before bringing this action. Rosa V. Supervisors, 88 Hun, 20. Where an assessment for a local improvement is valid upon its face, but is in fact void because the assessors had not jurisdiction to impose it, an action may be maintained to recover bacK money invol- untarily paid in satisfaction thereof without first having the assess- ment set aside or vacated. Payment to an officer who has a valid warrant for the collection of such an assessment and who threatens to execute the same is not a voluntary payment. ' No demand for a return of the money so paid is necessary before the commencement of an action to recover the same. Brueoher v. Tillage of Port Chester, 101 N. V . 240. Under the provision of the act (chapter 296, Laws of 1874) sub- jecting the property of the N. T. & O. M. R. R. Co. to taxation, and appropriating the amount of the county taxes thereon, in any town which has issued bonds in aid of the construction of the road of said company, to such town, to be devoted to the payment of its bonds, after any such tax has been collected, the moneys belong to the town, and any diversion thereof from their lawful object is an injury to the rights of the town, which may be protected by an ap- propriate action in its behalf. Bridges V. Board of Supervisors of Sullivan County, 92 N. Y. 570. Since the act of 1855 (Laws of 1855, chapter 427) upon return by the town collector of a tax, laid upon real estate, uncollected for want of goods and chattels of which to make the same, the land is to be classed as non-resident, as to such unpaid tax, and all proceed- ings for the collection thereof must thereafter be had as if it was the land of a non-resident, pursuant to that act. Where the board of supervisors assume to add the amount of a tax so returned to the assessment-roll of residents, and thus charge it upon one who has succeeded to the occupation of the land as- sessed, their action is without jurisdiction and void, and the tax thus laid against him is illegal. If such illegal tax is collected and paid into the treasury of a county, an action as for money had and received will lie against the county for its recovery. The money having come to the treasury of the county by the wrono-ful act and with the knowledge of its officers, no demand is 348 Supervisors' Manual. necessary before suit, nor is it necessary to present the claim there- for to the board of supervisors for audit and allowance. Newman v. Supervisors of Livingston County, 45 N. Y. 676. A county can only be made liable for money alleged to have been wrongfully demanded and collected or had and received by it for the benefit of another, where the moneys have come to its treasury for its use, or where it has had, or might have had, the benefit thereof. In pursuance of the provisions of the act appointing commission- ers for draining certain lands in the town of Royalton, Niagara county (chapter 774, Laws of 18t)7), defendant caused the expenses to be assessed upon the owners of lands benefited, among whom was plaintiff. The assessment was levied and collected and paid over to the treasurer of the county, and by him paid to the commissionere, as prescribed by the act. The proceedings of the commissioners having been vacated on certiorari, this action was brought to re- cover the amount collected, as for moneys wrongfully demanded and collected by defendant, and by it had and received for plaintiff's use and benefit. Held, that the county, by its board of supervisors, ex- ercised simply an agency under the act ; that the treasurer, in the receipt and disbursement of the money, acted as agent and treasurer of the commissioners, not of the county ; the money paid did not go into the county treasury, and was never, in any sense, received, ap- propriated by or in the possession of defendant ; and, tlierefore, that the action could not be maintained. Dewey v. Supervisors of Niagara County, 62 N. Y. 294. Where, however, the said property was assessed by the town as- sessors and the city paid the tax to the town collector, who paid it over to the county treasurer, by whom it was applied " in the same manner as other taxes assessed and collected in said town," i. «., a portion paid to the authorities of the town, a portion to the proper State officers, and the residue retained for coimty purposes. Held, that an action could not be maintained against the town to recover back the tax, or that portion thereof paid over to the town officers, as the town has no treasurer, and its officers, to whom the money was paid, do not represent it, their functions being prescribed by statute, and the money they received being expended in the per- formance of official duty. Chapman v. City of B., 40 N. T. 872; National Bank of C. v. City, of E., 68 id. 49; Newman v. Supervisors of L., 45 id. 676, distinguished. It seems, however, that the city has a remedy in such case under the provision of the statute extending the powers of boards of super- visors (chapter 855, Laws of 1869, as amended by section 5, chapter 695, Laws of 1871), which requires the board of supervisors of a county, to refund the amount of any tax illegally or improperly assessed. City of R. V. Town of E., 15 Hun, 239, reversed. City of Rochester v. Town of Rush, SON. Y. 302. AuDiTi2 — A public officer who asks or receives, or agrees to receive, a fee or other compensation for his official service, either, 1. In excess of the fee or compensation allowed to him by statute therefor; or, 2. Where no fee or compensation' is allowed to him by statute therefor ; Commits extortion, and is guilty of a misdemeanor. Id., § 557. Auditing of Accounts. 353 Presenting Fraudulent Claims. — A person who, knowingly, with intent to defraud, presents, for audit, or allowance, or for payment, to any oflBcer 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. Id., 8672. TVlien Board Xeglects to Act Upon a Claim Presented. — A claim presented to a board of supervisors who permitted their session to expire without taking any action upon it, is to be regarded as rejected for the purposes of a manda7nus to compel its allowance. People, airel. Aspinwall, v. Supervisors, 20 N. Y. 252. The facts in this case were not very fully reported, and the above is taken from the head-note. The editor understands that in the fifth judicial district, a writ of mandamus was refused, where the action was begun, after the board had adjourned sine die, by service of the papers upon the chairman of the adjourned board, upon the ground that suit could not be begun after final adjournment by such service. The case is not reported, and he has been unable to verify this statement. 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 T. Supervisors of Chenango Co., 8 N. Y. 318. The supervisors, or their successors, can be convened for that purpose. Id. 330; see also People v. Supervisors, 10 W. 363; Caswell v. Allen, 7 J. 68, 68; People, exrel. Case, v. Collins, 19 W. 56. A mandamvas lies to require the chairman and clerk of the board of supervisors to reconvene the board and declare a resolution carried, and the clerk to so record it, where the chairman had before illegally declared it lost. People, ex rel. Burroughs, v . Brinkerhoff, 68 N. Y. 259. Where one Auditing- Board Neglects a Legal Duty, a Subsequent One may be Com- pelled to Perform it. — In 1872, at the animal session of the board of supervisors, a claim was presented, audited and allowed at $5,500, on condition that it should not be levied or assessed, until the claimant executed a bond of indemnity against certain litigations pending, which condition was illegal, under the statute giving them 45 354 Supervisors' Manual. power to act. No tax was levied to pay the claim. On September 28, 1874, an alternative writ was issued to the board of 1874, to show cause why the $5,500 should not be levied, collected and paid. Hdd, that it was the duty of the board to cause the tax to be levied, and mandamus was proper to compel the board to assess and collect the amount allowed. People, exrel. Conway, t. Supervisors, 68 N. Y. 114. The facts are more fully given in 6 Hun, 572. The board have no riglit to audit a claim to " get rid of it," or as a gratuity. Hill V. Supervisors, 19 J. 259-263. § 441. General Form of Accounts to be Pre- sented. — As accounts are to be filed and preserved, they should be properly made out on suitable-sized paper for filing and folding, clearly written on only one side of the sheet, fully itemized, verified and handed in in due season. Each account should explain itself. In most counties large-sized bill paper, with the last column blank, is oreferred. THE TOWN OF To Jones & Hower. Dr. 1885. Feb. 31, 1207 lbs. broken rice, at six cents $72 43 May 12, 2400 lbs. imported beans, forty bushels, at $2. IS 86 00 June 10, 200 lbs. cod, at six cents 54 00 $212 42 Verification to be added, viz. : Oneida County, »«.; , being duly sworn, says that the items of the annexed account are correct; and that the disbursements and services charged therein have been in fact made or rendered; and that no part thereof has been paid or satisfied. Sworn to before me, , 188 1 Signed ( .) Forms for general accounts can be adapted from the above. § 442* Special forms are required for justices of the peace,' con- stables, highway commissioners, overseers of the poor, railroad commissioners and supervisors. See ■poit, §§ 453, 454, 460, 462, 526, 527, 533A, 534, 535. Auditing of Acooukts. 355 § 443. How Accounts Should be Audited. 1. BY TOWN BOARDS. They are Fvrst. To examine and determine wlietlier the account is properly verified and proper in form. Second. If so, to see if it is properly chargeable against the town. Third. To settle and fix its amount. Fourth. Allow it as thus settled. People, ex ret. Sherman, v. Supervisors, 30 How. 173. See "Principles and Practice,'' ante. 2. BY COUNTY BOARD. In addition to the fonr requirements above mentioned, the county board must Mfth. Provide means for its payment. ' Id. § 444. Who are to Audit Accounts. There are two boards for the auditing of accounts, viz. : 1st. The board of town auditors. 2d. The board of supervisors. The acts of each board are governed by laws, which prescribe what their powers and duties are, and each is limited to the powers and duties so prescribed. The " town charges " ought to be presented and audited by the board of town auditors. Such is the general practice and the evi- dent intent and spirit of the law, while all county charges are acted on by the county board. But, with certain exceptions, as justices' and constables' accounts for services in criminal proceedings, the county board has concurrent jurisdiction over "t6wn charges" with the town board, and should such town charges be presented to the county board for audit, it would be their duty to act on them. People, exrel. Millspaugh, t. Town Auditors, 1 How. (N. S.) 226. § 445. I*iz*st. In most of the counties the town board act under the following statute : LAWS OF 1840, CHAP. 305. AN ACT in relation to the accounts of Town Officers. Board of Town Auditors. Section 1. The supervisor, town clerk, and justices of the peace, or any two of the said justices of the peace of the several towns in this State, shall constitute a board of town auditors for the purpose of auditing and allowing the accounts of all charges and claims payable by their respective towns. 356 SupEKvisoKs' Manual. To Meet Annually. § 2. The said board of auditors shall meet for the purpose of auditing and allowing such accounts annually in each town, at the place of holding the last town meeting, on the last Thursday preceding the annual meeting of the board oj supervisors of the county. Thus amended by Lairs of 1844, chap. 288. To Make Gertifieaiei. % 3. The said board shall make a certificate to be signed by a majority of said board, specifying the name of the person in whose name the account is drawn, the nature of the demand and the amount allowed, and shall cause a duplicate of said certificate to be made, one of which shall be delivered to the town clerk of said town, to be by him kept on file for the inspection of any of the inhabitants of the town, and the other shall be delivered to the supervisor of said town to be by him laid before the board of supervisors of his county at their annual meeting. Dutff of Board of Supervisors. % 4, The said board of supervisors are hereby authorized and directed to cause to be levied and raised upon said town the amount specified in said certificate in the same manner as they are now directed to levy and raise other town charges. 1 R. S. 885. LAWS OF 1860, CHAP. 58. AN ACT conferring additional powers on boards of Town Auditors. AddUvmai Powers of Town Auditors. Section 1. The board of town auditors of the several towns of this State, in addition to the authority now vested in such board, shall have the power and, it shall be their duty at their annual meeting to audit the accounts of the justices of the peace and constables for fees in criminal cases, which are by law charge- able to any such town, and the amount thereof shall be included in their certifi- cate and assessed by the board of supervisors of the county upon such town, in the same manner as other town charges are now assessed and collected. Thus amended by Laws of 1866, chap. 832. Hepeal. % S. All acts and parts of acts inconsistent with this act ar« hereby repealed. 1 R. S. 835. LAWS OF 1863, CHAP. 173. AN ACT in relation to the accounts of Town Officers. Duty of Toum Auditors. Section 1. The town auditors in the several towns of this State shall examine the accounts of the overseers of the poor and the commissioners of highways of such town, for all moneys received and disbursed by them, and shall meet for the purpose of examining the same, annually, in each town of this State, on the Tuesday preceding the annual town meeting to be held in each town. Certain Officers to Account for Moneys. § 2. The commissioners of highways in each towns of this State, and all town omcers who receive or disburse any moneys belonging to their respective towns AuDiTiKG OF Accounts. 357 shall, on the last Tuesday preceding the annual town meeting of their town account with the board of town officers of such town for all moneys recSvedTnd disbursed by them by virtue of their offices. receivea ana Auditors to State Account. § 3. The said board of town auditors shall make a statement of such accounts ??f ft^F^f .*^''^*° ^ certificate to be signed by a majority of the board. shoTng the state of the accounts of the said highway commissioners and other officers at the date of the certificate; which statement and certificate shall be filed with the town clerk of the town, and be by him produced at the next annual town meet- mg, and publicly read. "iooi. IR. S. LAWS OP 1866, CHAP. 833. AN ACT to amend an act entitled " An act conferring additional powers on boards of Town Auditors," passed March third, eighteen hundred and sixty. Appeal to Supervisors of County. § 2. In every case where any account of a justice of the peace or town con- stable, for fees in criminal cases, is audited by a board of town auditors of any town, any tax payer of said town may appeal from such auditing and allowance to the board of supervisors of the county, and such board of supervisors shall thereupon have power to audit and allow such bill; and in case any such accoun' shall be disallowed, or the amount thereof reduced, the party presenting the same shall have the same right of appeal as above provided. As to justices, see Laws of 1860, 1866, ante, § 445, and Laws of 1869, chap. 855, on nest page below. Within what Time to be Taken, § 3. Such appeal shall be taken within five days after the allowance or disal- lowance of a bill by such town auditors, in whole or in part, by the service of a notice of appeal in writing on the town clerk, and said town clerk shall forth- with thereafter transmit said bill to the board of supervisors of said county to be audited and allowed by them, and said board of town auditors shall have no further jurisdiction over any such bill after the service of said notice of appeal. When Bill not to be Levied, etc. § 4. If after service of any notice of appeal, the bill is not transmitted to the board of supervisors, as herein provided, no part thereof shall be levied or col- lected. Collected by Tax. § 5. Such part of the town bills audited by the board of supervisors after such appeals as shall be allowed, shall be assessed, levied and collected by the said board in the same manner as other town charges. § 1 is set forth in Laws of 1860, chap. 68, ante; Laws of 1869, chap. 855; 1 R. S. 836. The bills rendered by justices of the peace for services in criminal proceedings shall, in all cases, contain the name and residence of the complainant, the offense charged, the action of the justice on such complaint, the constable or officer to> whom any warrant on such complaint was delivered, and whether the person charged was or was not arrested, and whether an examination was waived or had and witnesses swore thereon; and the account shall also show the final action of the justice in the premises. At any time within fifteen days after the board of town auditors of any town shall have filed with the town clerk thereof, the cer- tificate of accounts audited as required by law, any tax payer of said town may appeal from the action of said board of town auditors, in auditing the account of any justice of the peace, to the board of supervisors of the county. Said appeaL 358 SupBRTisoRs' Manual. shall be nuide by serving notice thereof, in writing, on the town clerk of the town, and on the clerk of the board of supervisors, within the time above limited. The said supervisors shall thereupon audit the accounts of such justices of the peace, and their decision in the auditing and allowing of said accounts shall be final. Laws of 1869, chap. 855, § 6, as amended bj Laws of 1871, chap. 274. The statutes of 1840, 1860, 1863, 1866 and 1869 contain all the provisions of the Revised Statutes, and the latter are, therefore, omitted. § 446. Second. Some few towns, viz.: Ausable, Cham- plain, Peru and Plattsbnrgh in Clinton county ; Lenox in Madison county ; Queensbury, Chester and Caldwell in "Warren county, and the county of Essex, are acting under chapter 180, Laws of 1875, which provides for the election of three town auditors, who form the board of town auditors, having all the powers conferred by the laws above set forth. The following is the law : TO'Wn Auditors. — In addition to the officers now author- ized by law to be elected at town meetings, there shall be chosen in the manner hereinafter provided, in each of the towns of this State, at the next annual town meeting held after the passage of this act, and annually thereafter, three town auditors, whose terms of office shall continue during one year after their election, and who shall form the board of town auditors of the town for which they are elected. Laws 1875, chap. 180, § 1. POTTers and Duties. — AH the powers conferred by law upon boards of town auditors, and all duties required by law to be performed by such boards, are conferred upon and shall be required of the town auditors elected or appointed under and pursuant to this act. All bills and claims must be presented on the first day of their session. Id., § 2. Voting fox*. — Such town auditors shall be voted for upon the same ballots as other town officers, and the ballots received and can- vassed, and their election certified, excepting, however, that only two of such auditors shall be voted for on each ballot, and the two persons having the highest number of votes shall be declared elected as two of such auditors, and the person having the next higheet number of votes shall be appointed by the presiding officer of such town meeting, or in case the election is held in election districts, by the supervisor and justices of the peace of such town, or a majority of them, as the other of such auditors. Id, §8. Wlio Eligible. — No person shall be elected or appointed as such town auditor, or shall hold office as such, unless he is a free- Auditing of Accoukts. 359 holder of the town for which he shall be elected or appointed, and no person so elected or appointed shall hold any other office in such 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 such town, he shall immediately cease to bo a town auditor, and the va- cancy in his office shall be supplied in the manner hereinafter re- quired. Id., § 4. Compensaition. — Each of such town auditors shall be entitled to and shall receive for his services $3 per day for each day (not exceeding three) actually employed by him in the per- formance of the duties of his office, except in towns having a popu- lation of over six thousand, in which towns they may sit not to exceed six days. In case of any vacancy occurring in the board of town auditors by the death or removal from the town of any or either of such au- ditors, or by his neglect or refusal to accept such office, the super- visor of the town in which such vacancy occurs may appoint some suitable and competent person to fill such vacancy until the next annual town meeting thereafter. Id., § 5, as amended by Laws 1881, chap. 8V0. Repealing' Clause.— Chapter 180 of the Laws of 1875, entitled " An act creating a board of town auditors in the several towns of this State and to prescribe their powers and duties," and also all the acts amendatory thereof, are hereby repealed, " except in the towns of Ausable, Champlain, Peru and Plattsburgh, in the county of Clinton ; and the town of Lenox, in the county of Madi- son ; and towns of Queensbury, Chester and Caldwell, in the county of Warren, and the county of Essex." Laws 1883, chap. 48, as amended by Laws 1883, chap. 130. Under this act it is held that the commissioners of highways are required to account annually before the board of town auditors, and not before the board of town officers. People, ex rel. Bechtel, v. Welbrook, 27 Hun, 598. § 447« Tbird. In 1886, another statute was passed, by which the electors of any town may determine, by ballot, to elect a board of town auditors. The following is the law : ToTrn Meeting may Adopt this Act.— The electors in each of the several towns of this State may, at any annual town meeting held after the passage of this act, determine by ballot whether there shall be elected at the next succeeding town meeting, held in the town, a board of town auditors iji and for said town, in the manner and under the restrictions hereijiafter prescribed. Laws 1886, chap. 585, § 1. 360 Supervisors' Manual. Notice and Ballots Required.— If requested so to do by a request in writing, signed by at least twenty freeholders resid- ing in the town, the assessors, or a majority thereof, shall give notice by posting in three conspicuous places in the town ten days before the annual town meeting to be held therein, a written notice ; if there is a newspaper published in said town, such notice shall be published therein for two successive weeks immediately before said town meeting, to the effect that the electors of the town will deter- mine such fact at the ensuing town meeting. The said assessors shall thereupon have prepared, at the expense of the town, ballots to be used at said town meeting for the purpose herein named, on which shall be printed the words in plain type, " For Town Auditors," and " Against Town Auditors," respectively. A separate ballot-box shall be provided, in which said ballots shall be deposited by the electors who shall vote at said town meeting. The ballots shall be canvassed the same as the ballots cast for town officers at the said town meeting. Id., §2. Terms of Office. — If a majority of such ballots so cast shall be in favor of electing a board of town auditors, there shall be chosen, in the manner prescribed in the next section, at the next succeeding annual town meeting, three town auditors, one of whom shall be elected for one year, one for two years and one for three years and annually thereafter, unless otherwise determined as provided in this act, one town auditor to serve three years and who shall form the board of town auditors of said town. Id., §3. HO'W Voted for. — Such town auditors shall be voted for upon the same ballots as other town officers, and the ballot received and canvassed and their election certified. Id., § i. Powers of. — All the powers conferred by law upon boards of town auditors, and all duties required by law to be performed by such boards are conferred upon and shall be required of the town auditors elected or appointed under and pursuant to this act. On the Tuesday preceding the annual town meeting in each year they shall examine and audit the accounts of the supervisor for money received and disbursed by him, and the supervisor shall account with them, instead of with the justice of the peace and town clerk, as now pro- vided by law. All bills and claims must be presented to such audi- tors on the first day of their session. Id., § 5, as amended bj Laws 1888, chap. 488. Wlio Eligible— to Hold no Other Office.— No person shall be elected or appointed as such town auditor, or shall hold office as such, unless he is a freeholder of the town in which he is elected, and liable to pay taxes therein ; and no person so elected or appointed shall hold any other office in said town during the term AuDiTiH^G OF Accounts. 361 for which he is elected or appointed ; and if he shall accept an elec- tion or appointment to any other office iu said town he shall imme- diately cease to be a town auditor, and the vacancy in his office shall be supplied in the manner hereinafter required. Id, § 6. Present To-wn Auditors to Appoint, etc.— The several persons composing the board of town auditors in and for the town in which the electors have determined to elect a board of town auditors, as provided in this act, or a majority of them, shall, within sixty days after the election where it was so determined, convene at some suitable place in the said town, at the hour of ten o'clock in the forenoon, and proceed to appoint, in writing, under their hands and seals, three persons having the qualifications prescribed by this act, to be town auditors of said town, and shall immediately cause such appointment to be filed with the town clerk of the town. The persons so appointed shall within ten days after receiving notice of their appointment, take, subscribe and file in the town clerk's office of the town, the oath of office prescribed by the Constitution and laws of this State. The persons so appointed and qualified shall compose the board of town auditors of said town, and shall possess and exercise all the powers and duties of town auditors, as prescribed by tliig act, and shall hold and discharge the duties of tiie said office until the next annual town meeting to be held in said town after their appointment. Id., 5 7. Compensation — Filling Vacancies. — Each of such town auditors shall be entitled to receive for his services $3 per day for each day, not exceeding ten days. In case of any vacancy occurring in the board of town auditors by the death or removal from the town by either of such auditors, or by his neg- lect or refusal to accept such office, the supervisor of the town shall appoint some suitable and competent person to fill such vacancy until the next annual town meeting thereafter. Id., §8. Town Meeting Trben to Discontinue Board. — At any subsequent town meeting after the election of a board of town auditors, as herein provided, the electors of the several towns may determine, by ballot, to discontinue the election of such board and reinvest the town boards of audit, as now constituted in the several towns, with the powers and duties they now possess. Such determination shall be made in all respects as provided in the first and second sections of this act for determining whether such boards of town auditors shall be chosen in the first instance. But such de- termination to discontinue the election of a board of town auditors shall not be had within five years after a board of town auditors has been elected pursuant to the provisions of this act. Id., % 9, 46 362 Supervisors' Manual. Act, Where not to Apply. — The provisions of this act shall not apply to the counties of Warren, Essex, Albany and Saratoga, and said counties shall continue to elect boards of town auditors as provided by the special acts applicable to said counties. Id.,.§ 10, as amended by Latrs of 1887, chap. 108. § 448. Fourtll. Some cities and counties also have special acts on this subject. The principles governing the auditing of accounts are the same, under which- ever law the board may be acting, and are given above. THE BOAKD OF TOWX AUDITORS. § 449. Who Compose the Board.— In towns acting under the statutes enumerated under "first," supra, the super- visor, town clerk, justices of the peace, or any two of said justices^ constitute the board of town auditors as to all accounts except that of the supervisors. The latter account is audited as follows : § 450. Auditors of Supervisor's Account.— The justices of the town, or a majority of them, and the town clerk shall, on the Tuesday preceding the annual town meeting in each year, examine and audit the accounts of the supervisor, for moneys received and disbursed by him. The accounts so audited shall be filed in the office of the town clerk, as above provided. 1 R. S. 835, g 49. On Tuesday preceding the annual town meeting, the supervisor must account with the justice of the peace and town clerk of the town, for the disbursement of all moneys received by him. At every such accounting the justices and town clerk shall enter a certificate in the supervisor' s book of accounts, showing the state of his accounts at the date of the certificate. If any supervisor shall neglect to account or shall render a false account, or shall con- vert to his own use any money or securities which may come to his hands by virtue of his office, proceedings may be commenced against him in the name of the town of which he is supervisor, in the su- preme court, by action or otherwise, by the justices of the peace and town clerk of said town, to compel him to render such account, or to recover any money or property of the town which he has not djily accounted for. 1 R. S. 826, 827. SS 4 and 5. For form of keeping the supervisor's books and certificate to be entered therein, see ante, §§ 39, 40. After the term of the supervisor has expired and another has succeeded to the office, a writ of mandamus will not lie to compel the former to meet and account with the justices and town clerk, under this law. People, ex rel. Johnson, v. Martin, 43 How. 52. Auditing of Accounts. 363 The remedy of the town is by action upon the supervisor's bond, or by action in the name of the town under chapter 534, Laws of 1866, to compel them to ac- count, and for the recovery of any money or property, not duly accounted for. Id. § 451. "When to Meet. — There are two meetings provided for, viz. : First. — On the Tuesday preceding the annual town meeting, the board meet to audit the following accounts : A. The supervisor's account. See next section above. B. The accounts of the overseers of the poor and the commis- sioners of highways, and ail other town officers who receive or dis- burse any moneys belonging to the town. A special meeting ipay be called to settle claims for damages to persons or property, by defective bridges. See § 435, and "Defective Bridges," po«i. To Fix Penalty of Supervisor's Bond — Within ten days after town meeting, the board is to meet, in towns which have voted to transfer the powers of railroad commissioners to the supervisor, to fix the penalty of his bond, etc. See law in full, § 23, ante. § 452. Accounts of Overseers of tbe Poor.— In those counties where there are no county poor-houses established, the overseers of the poor of the respective towns shall enter, in books to be provided at the expense of their towns, an account of all matters transacted by them relating to their official duties ; of all moneys received by them, specifying from whom, and on what account ; of all moneys laid out and disbursed by them ; to whom and by what authority, and specifying in each case whether to county poor or to town poor; the names of all persons applying for rehef, and ordered to be relieved as aforesaid ; the day and year when they were admitted to have relief ; tbe weekly or other sums of moneys allowed for that purpose, and the cause of giving such relief. 8 K. S. 1864, § 51. For accounting in counties acting under the Livingston county law, see that law below. Money expended by the overseer for the support of a poor person, at her re- quest, may be sued for and recovered. City of Albany v. McNamara, 49 Hun, 356. 364 Supervisors' Manual. On the Tuesday next preceding the annual town meeting of every town, the overseers of the poor shall lay the said original books before the board of town auditors, together with a just and true account of all moneys by them received and expended for the use of the poor, and in what manner, together with an account of the earnings of the poor persons by them employed ; which accounts shall be verified by the oaths of the overseers, and shall be filed with the town clerk. The board of town auditors shall compare the said account with the entries in the poor books aforesaid ; shall examine the vouchers in support thereof, and shall audit and settle the same, and state the balance due from such overseers, or to them, as the case may be. No credit shall be allowed to any overseer for moneys paid, unless it shall appear that such payment was made pursuant to a legal order. Id., § 52. Every person who, having been an overseer of the poor, shall refuse or neglect to present such original books, or to exhibit such accounts, to the board of town auditors, as required in the last section, shall forfeit the sum of $250, to be re- covered by and in the name of the overseers of the poor of such town. Id., 8 53. See " Form of Account," post, § 454. Tbe Living-ston County Poor Juovr. LAWS OF 1845, CHAP. 334. AN ACT in relation to the temporary relief of the poor in the county of Living- ston, and such other counties as may adopt the provisions of this act. Tovms in which Persons Believed Beside, to Pay Expenses. Section 1. The expenses which shall be incurred in the relief or support of in- digent persons entitled thereto by law, in the county of Livingston, before re- moving such persons to the county poor-house of such county, pursuant to the provisions of the Revised Statutes for the relief and support of indigent persons, including the charges of overseers of the poor for services rendered in providing for such relief and support (but not the expense of such removal), shall be a charge upon the towns in which the persons so relieved or supported shall respect- ively be. § 2. The overseers of the poor of said county shall provide for such relief or sup- port, pursuant to the order of a justice of the peace, to be obtained in the manner provided by the forty-sixth section of the Revised Statutes above mentioned, ex- cept for medical services to an amount not exceeding five dollars, for which no order shall be required, until such person shall be removed to the county poor- house of such county, or until the necessity for any further expenditure shall cease; and it shall not be necessary to obtain the sanction of a superintendent of the poor to authorize the expenditure of a greater sum than ten dollars for the re- AuDiTHifG OF Accounts, 365 lief of any one poor person or family. Provided that such orders granted pur- suant to this section shall be granted without fee or reward. See chap. 655, Laws of 1887, next page. § 3. The overseers of the poor shall keep a book, to be procured at the expense of the town, 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 person a pauper, so far as the same can be ascertained. They shall also enter in such book 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. Book to be Laid Before the Town Auditors. 8 4. On the Tuesday next preceding the annual town meeting, in every year, and also on the Thursday next preceding the annual meeting of the board of su- pervisors of such county in every year, the overseers of the poor shall lay the said book before the board of town auditors, together with a just and true account of all moneys received and expended by them for the use of the poor since the last preceding meeting of the said board of town auditors. The said board of auditors shall compare said account with the entries in the poor book aforesaid, and shall examine the vouchers in support thereof, and audit and settle the same, and state the balance due from the overseers, or to them, as the case may be. The said account shall be filed with the town clerk; and at every annual town meeting, the town clerk shall produce such poor accounts for the then preceding year, and read the same if required by the meeting. Accounts, Sow Audited. % 5. The accounts of overseers of the poor for their services in affording the re- lief and support mentioned in this act shall be audited, certified, levied, collected and paid in the manner now provided by law in respect to other town accounts. Toton Auditors to Certify the Names, Ages, etc., of Persons Believed. § 6. At the annual meeting of the board of town auditors on the Thursday pre- ceding the annual meeting of the board of supervisors, the said board of town auditors shall make a certificate to be signed by a majority of the board specify- ing the name, age, sex and native country of every person who shall have been relieved or supported by the overseers of the poor during the then preceding year, and stating the causes, either direct or indirect, which shall have operated to render such person a pauper, and the amount of money expended for the use of each and every person so relieved or supported as allowed by the board of audit- ors; together with the amount allowed to each overseer for services rendered in relation to the temporary relief of the poor as aforesaid; which certificate the said board of auditors shall cause to be delivered to the superintendents of the poor of such county, or one of them, on or before the first day of December then next. Estimate to he Made of Amount Neeessa/ry for Next Tear. § 7. The board of town auditors shall also at their annual meeting mentioned in the last preceding section, make an estimate, to be signed by a majority of the board, of the sum which they shall deem necessary for the temporary relief and support of the poor the ensuing year, and to supply any deficiency in the preceding year, and shall cause the said estimate to be laid before the board of supervisors of such county, on the first day of their then next annual meeting. The board of supervisors shall cause the said sum to be levied and collected in the town where the same was estimated to be necessary as aforesaid, in the manner now provided by law in respect to other town charges, and to be paid to the overseers of the poor of such town. § 8. It shall be the duty of the board of supervisors of such county to ex- amine the accounts of the superintendents of the poor and audit the same. 8 R. S. 1871. 366 Supervisors' Manual. Whenever the board of supervisors of any county in this State shall, by resola. lion, declare their intention to adopt the provisions of the Livingston county act, all the provisions of said act shall extend and apply to said county. Chap. 245, Laws 1846, § 1. not applicable to Kew Tork nor Kings county. Id., § 2. Temporary Relief.— Chapter 655, La^rs 1887. — The board of supervisors of any county in this State may, by resolution, direct that the money to be raised in the several towns of said county, for the support of the poor in said towns, be paid to the overseers of the poor of the respective towns, instead of to the county treasurer, and that the warrants attached to the tax rolls in said county direct accordingly. Chap. 655, Laws 1387, §1. The board of supervisors of any county may make such rules and regulations as it may deem proper in regard to the manner of fur- nishing temporary or out-door relief to the poor of the several towns in said county, by the overseers of the poor thereof, and also in re- gard to the amount such overseers of the poor may expend for the relief of each person or family, and after the board of supervisors of any county shall have made such rules and regulations, it shall not be necessary for the overseer of the poor of the towns in said county to procure an order from a justice of the peace, or sanction of the superintendent of the poor to expend over $10 for the relief of any person or family, unless the board of supervisors of such county shall so direct ; but this shall not apply to the counties of New York, Kings and Onondaga. Id., § 2. In counties working under the Livingston county act, and which have not adopted chapter 655, Laws 1887, ante, the statutes provide that relief shall be furnished (except for medical services not exceeding $5), only upon an order of a justice of the peace. Osterhoadt t. Rigney, 98 N, T. 237; see chap. 655, Laws 1887, just above. And in other counties which have not adopted chapter 655, Laws of 1887, it seems to prescribe that no credit shall be allowed overseers of the poor, unless it shall appear that such payment was made pursuant to a legal order of a justice of the peace. Id. 233. except where omly one overseer is elected in the town; such overseer seems to be vested with the discretionary power to expend not exceeding $10 for the relief of one poor person or family. Laws of 1845, chap. 180, § 1 ; see ante, 8 62A. Revised Statutes of New Tork, part 1, chap. 80, tit. 1, § 31, provides that no person shall be removed as a pauper from any city or town to any other city or town of the same or any other county, or from any county to any other county, but every poor person shall be supported in the county where he may be; that if Auditing of AccouifTS. 367 he has gained a settlement in any town in such county he shall be maintained by such town; and that if he has not gained a settlement in the county in which he shall become poor, sick or infirm, he shall be supported and relieved by the su- perintendent of the poor at the expense of the county. Such statutes as amended by Laws of New York, 1885, chap. 546, provide that any pauper who shall, of his own accord, come or stray from one city, town or county into another city, town or county not legally chargeable with his support, shall be maintained by the su- perintendent of the county where he may be; and that by taking certain proceed- ings the liability of the county or town from whence he came for his support may be fixed, if such county is so liable, neld, that one who had always been able to support himself and family by manual labor, though the wages earned by him were not more than sufBcient for that purpose, was not a pauper within the mean- ing of the statute; and where, having been a resident of the city and county of New York, he went to another county, and there met with an accident which ren- dered him unable to support himself, the county from whence he came is not liable for his support. Wood Sup. Pr. T. Simmons, Com., etc., 4N. Y. Sup. 36S. When, upon application for a mandamus, the defendant proceeds to a hearing ■without traversing the averments in the affidavits presented by the relator, this is equivalent to a demurrer on the part of defendant, and the truth of the aver- ments is to be considered as admitted. The act of 1883 (chap. 28, Laws of 1882), making the town of Oswegatchie, St. Lawrence county, a, separate and distinct poor district, did not operate as a repeal of the privilege, extended to the supervisors of the county by the act of 1846 {chap. 245, Laws of 1846) to adopt the " Livingston County Act " (chap. 334, Laws of 1845). The said act of 1882 refers simply to the rights and liabilities of the several towns of the county, in respect to town poor, leaving those rights and lia- hihties, so far as concerns the county poor, as they before existed, subject to the general powers conferred upon the board of supervisors to regulate the subject. Where, therefore, the board of supervisors of said county, by resolution, adopted the •" Livingston county act " in proceedings by mandamus to compel the said board to audit an account presented by the superintendents of the poor of •the town of Oswegatchie for moneys expended for out-door relief in the tempo- rary support of the county paupers, held, that the board of supervisors had the light to adopt such resolution, and thereby it simply added to the responsibilities of the several towns by imposing upon them respectively the duty of extending necessary temporary relief to such county paupers as might be within their sev- eral jurisdictions, and thereby the town was deprived of its right of reimburse- ment from the county for such expenses. People, ex rel., v. Board Supervisors of St. LawreDce Co., 103 N. Y. 541. 1 Rev. St., N. Y., pp. 628, 639, §§ 58-63, provide that it shall be a misde- meanor to remove or entice any poor person from any city or town, or county, -without legal authority, to any other city, town or county, with intent to make the latter chargeable with his support, and provide for the return of such pauper to, and his support by, the other county or town for its expenses incurred in the pauper's support, and in securing his return. Laws N. Y., 1885, chap. 546, ap- plied the provisions of the above sections to "any pauper," who shall of his ac- •cord come or stray from any city, town or county, not legally chargeable with his support." Hdd, that this amendment did not give a right of action for the support of a pauper by a county into which he had voluntarily removed, at a 368 Supervisors' Manual. time when he was not a pauper, against the county from which he had so re- moved. Bellows V. Courter, 6 N. T. Sup. 73. § 453. Account of the Overseer of the Poor, Under the Living'Ston County Poor LaTe. Account of the overseer of the poor of the town of , of moneys received and expended, together with the name, age, sex, native country, and cause of pauperism of each poor person relieved or supported by them. NAMES OF PAUPERS. 1 Sex. Place of nativity. Cause of pauperism. Date of order for relief. 4^1 29 68 45 I 44 4 Female. Male.... Male.... Female. Female. Male.... United States.. England Ireland Upper Canada.. United States.. United States.. January 1,1846... December 3, 1846. Januarys, 1847... February 4, 1846.. February 7, 1847.. March 2, 1847.... $25 41 13 63 6 76 12 25 16 68 8 75 J. Fay P. O'Eaflerty... Mary Kelly. ... Fanny Wright.. James Cook Disease Intemperance . do. of parents. Debauchery.... lUeglt. child... Auditing of Accounts, 369 CO P3 OS f£ o m » 1^ M O fH EH iz; o o Pi o P4 47 S O O gj 'n OO S ^ _*a> H t. « o 0| .o«p3 J3 ^ . ; ^ ; 3 g ja » : t>^ o H «= 1 < 6 GO CO fl I-* r-i » ja US ^ S9 o o -»> >^*S <3 iO O S Sao O (M ^■gS. iSH : : B< . : -=2^'2 -*» d »)5»j'o s^ o a o s-s>.s s b»ll -,» S a o.a 03 t- m o_ _a o , Cts Onwl II" ' ^ c a* . t* I S o cs : ^ V . & a • a s 14 f^ ow 00 00 o'g" i-< rH S.t o" — K ti 00 oo sas <^2 370 SuPEEvisoEs' Manual. § 454. Account of Hi^h-way Commissioners. — The commissioners of highways of each town shall render to the board of town auditors, at their annual meeting for auditing the accounts of town officers, an account in writing, stating, 1. The labor assessed and performed in such town. 2. The sums received by such commissioners for fines and com- mutations, and all other moneys received under this chapter or from any source ; also itemized accounts of all moneys paid out during the year, receipted in full by the respective parties to whom such money was paid. 3. The improvements which have been made on the roads and bridges in their town during the year immediately preceding such report, and an account of the state of such roads and bridges ; and, 4. A statement of the improvements necessary to be made on such roads and bridges, and an estimate of the probable expense of making such improvements beyond what the labor to be assessed in that year will accomplish. 2 S. S. 1213, as amended by Laws of 1884, chap. 396. See Form below. ANNUAL ACCOUNT OP COMMISSIONER OF HIGHWAYS. The undersigned, commissioner of highways of the town of Trenton, in the county of Oneida, hereby renders to the board of auditors of said town his annual account for the year en(fing February 1, 1886. 1. The highway labor assessed in said town for the year ending on the said first day of February was seven hundred and ten days, and the highway labor per- formed in said town during the said year was five hundred and eighty-nine days, as appears by the account rendered us by the several overseers of highways in said town- 2. The said commissioner has received during the said year the following sums of money for fines and commutations, under the statute relative to highways, to- wit: Date. From whom received. On what account. Amount. Auditing of Accounts. 371 He has also received from other sources under said statute, or from any other source, as follows: Date. From whom received. On what account. Amount. 3. The following is an itemized account of all moneys paid out during the year, receipted in full by the respective parties to whom such money was paid, which said receipts are herewith presented. Dace. To whom paid. On what account. No. of voucher. Amount. 4. The improvements which have been made on the roads and bridges in said town during the said year are as follows: (specify improvements.) And the roads and bridges in said town are (give state of tliem and specify whether they are m good repair or otherwise). , ^i j j 5. The following improvements are necessary to be made on the roads ana bridges in said town, to-wi^: (specify necessary improvements.) , , , 6. The probable expense of making such improvements, beyond what the labor assessed in this year will accomplish, is by me estimated at $1,000. (Signed), JEROME B. WATKINS, Highway Commibsionbr. Dated , 1885. See § 458; and "Defective Bridges," post. § 455. Auditors to State Account.— The said board of town auditors shall make a statement of such accounts, and append thereto a certificate, to be signed by a majority of the board, showing the state of the accounts of the said highway commissioners and other officers at the date ©f the certificate; which statement and certificate shall be filed with the town clerk of the town, and be by him produced at the next annual town meeting, and publicly read. Laws of 1863, chap. 172, g 3; 1 B. S. 836. 373 SuPERVisoES' Manual. FORM OF STATEMENT. ONEIDA COUNTY, ) . Town op . ) " We, the undersigned, composing the hoard of town auditors of said town, do hereby certify that we have this day examined and audited the accounts and vouchers of the town officers who have received or disbursed any moneys belong- ing to said town during the year last past, and that the state of the accounts of said officers is as follows: 1. Supervisor — a Statement of the Account op Supervisor. ' Disburse- Amount NAME OF FUND. Receipts. ments. on hand. Poor fund $600 00 $500 00 $100 00 Dogfund 100 00 90 00 10 00 School moneys 1,000 00 1,000 00 ... Local school fund 505 00 5 00 500 00 Total $2,205 00 $1,595 00 $610 00 {And so on with each officer.) (Signed) A. B., Supervisor. CD., Town Clerk. E. F., G. H., J. K., Justices of the Peace. § 456. Second. Oq the Thursday preceding the annual meeting of the board of supervisors. On this day the board of town auditors meet for the purpose of auditing and allowing the accounts of all charges and claims payable by their town. No notice thereof is necessary to be posted. It wonld be well to post some public notice so that claims may be presented properly. § 457. TOTm Charges. — The following shall be deemed town charges : 1. The compensation of town officers for services rendered for their respective towns ; But no town officer shall be allowed any per diem compensation for services, unless ei^essly provided hy law. Laws of 1815, chap. 180, § 23. 2. The contingent expenses necessarily incurred for the use and benefit of the town ; 3. The moneys authorized to be raised by the vote of a town meetmg, for any town purpose ; and, 4. Every sum directed by law to be raised for any town purpose ; 1 B. S. 841. Auditing of Accounts. 373 The accounts of the members of the board of town auditors for services are town charges and audited by the town board ; So are The accounts of the assessors ; The per diem allowance of overseers of the poor in performing their duties ; The charges of highway commissioners for their services ; The claims of inspectors of election for services ; The railroad commissioners' services ; Laws of 1869, chap. W, § 3. The excise commissioners' compensation except in counties where all the poor are a county charge ; Laws of 1874, chap. 444. The expenses of school books for indigent pupils ; Laws of 18T4, chap. 421, § 6. The pay of town officers acting at election, printing and posting notices of election are town charges ; ' Chap. 130, Laws 1842, title 3, § 78. All expenses of the board of health incurred in the execution and performance of the duties imposed by chapter 270, Laws of 1885 ; See Laws of 1885, chap. 270, § 5; ante, § 163. But tlie taxable property of an incorporated village which comprises parts of sev- eral towns or less than a whole town, while maintaining its own board of health, is not subject to taxation for maintaining any town board or boards of health, or for any expenditures by such town boards. Id., §7. Insuring town buildings a town charge. Laws of 1847, chap. 294. See, also, §§ 458-473. § 458. Certain Expenses, Judgments, etc.. Employing Counsel. — Legal services in relation to matters connected with the control and management of highways or counsel employed by the supervisor or other town officers in matters relating to the duties of their office are town charges. DuntZT. Duntz, 44 Barb. 459. Certain charges, disbursements and fees (under chap. 403, Laws of 1887), in relation to peach and other trees diseased are town charges. See the law in full, § 167, ante. For charges in relation to Fires, Forest Preserve. See § 134, ante. 374 SuPERTisoEs' Manual. Va>CCilia. 38. See chapter XV, post. § 471. Bonds Need not be Audited. Such obligations do not require to be allowed and audited by the board of au- ditors It il the dutv of the town to provide means for the payment of its bonds, kwfuilv issued In case of failure to perform this duty, the holder of the bonds mTy ma^ntaTn an action against the town thereon, and this, although by the act Srwhich they were islued, it is made the duty of the board of supervisors to impose and levy a tax to pay the bonds. Marsh V. Town of Little Valley, 64 N. Y. 112. 390 Supervisors' Manual. § 472. Gospel and School IiOt Funds. The board of auditors in each town shall annually report the state of the ao counts of the trustees of the gospel and school lots in that town, to the inhabit' ants thereof, at their annual town meeting. 2 B. S. 1203, ; 4. The supervisor is " trustee " of said funds. § 473. " Town Notes," so Called. It is a very common practice, especially in relation to roads and bridges, for the- town board and other officers to give promissory notes, or " town notes," as they call them, for various claims, signing them with their own names and their offi- cial designation. They seem to be under the impression that they have a legal right to do so, and that such obligations bind the town therefor, and that the town is " back of them." Public officers have such powers as, and no others than, are conferred by statutes. If they go beyond these, their acts bind themselves individually, but do not bind the town, or county. If it was intended to give such officers power to contract debts, issue notes or other obligations, in behalf of towns, or counties,, some statute must exist therefor. It would be wise for such officers to examin» the statutes and see if any such exist, allowing them to malie, at their pleasure, "town notes." The following decisions may be of interest. The board of supervisors cannot make bills of exchange. Chemung Canal Bank v. Board of Supervisors of Ctienango Co., 6 Denio, 517. Highway commissioners have no power to contract a debt against a town by- borrowing for the repair of roads and bridges. Barker v. Loomis, 6 Hill, 463. Orders drawn at the request of the overseer of the poor, by the board of town, auditors upon the supervisors and accepted by them, create no liability against tbo town. Osterhoudt v. Eigney, 98 N. Y. 222. A note by highway commissioners, purporting to bind them in their official capacity, is not binding on their successors. Van Alstyne v. Freday, 41 N. Y. 174 ; Barker v. Loomis, 6 Hill, 468. The duty of the highway commissioners in repairing roads and bridges and keeping them in repair is co-ordinate only with the means furnished as prescribed by statute and does not authorize, either expressly or by implication, the incur- rence of any debt or obligation upon the part of the town. People, exrel. Everett, v. Board of Supervisors, 93 N. Y. 897. In order to make a judgment against the highway commissioners a to wn charge, it must have been recovered upon a liability incurred by them acting within the scope of their avthority, and in such case, the claim therefor must be presented to be passed upon and audited by the town board of auditors. Id. Where a bridge is carried away by a freshet, after the town meeting, the high- way commissioners, provided they lume the consent of the board of town auditors, are authorized to contract to pay for rebuilding the bridge upon the completion thereof. Boots V. Washburn, 79 N. Y. 207. It seems that the consent of the board to rebuild must first be obtained before a. legal contract could be made by the highway commissioners. Id. 211. Where public officers exceed their powers they are individually responsible to those with whom they contract, if any responsibility is thereby created. People, ex rel. Everett, v. Supervisors, 93 N. T. 397; Mygatt v. Washburn, 16 id. 816. Auditing of Accounts. 391 M., a county treasurer, being in default in the payment of the State tax levied upon his county, executed two notes in his name of office purporting to be by au- thority of the board of supervisors, but without any actual authority from that body. These notes were discounted by plaintiff, the proceeds credited in the in- dividual account of M. and paid out on his checks to the State treasurer to apply on his account with that officer. Held, that an action was not maintainable against the board of supervisors to recover the amount as for so much money had and received by the county for its benefit and use; that the indebtedness to the State discharged by the money procured from plaintiff, was not that of the county but of M. ; but that conceding it to have been a county indebtedness, plaintiff, hav- ing voluntarily furnished M. with the means to discharge the debt, without any request or promise to pay on the part of the county, did not thereby become its creditor and no liability on its part was created. Nat. Bk. of Ballstou Spa v. Board of Supervisors, 106 N. T. 488. In December, 1887, the ten supervisors elected from, the city of Auburn drew upon the city treasurer an order, of which the following is a copy: "$21,550. Auburn, N. Y., Dec. 27, 1887. '• City Treasurer of the City of Auburn, on or before February 8, 1888, pay to railroad commissioners of city of Auburn, or order, twenty-one thousand five hundred and fifty dollars." The order was delivered to the commissioners, two of whom, as such, sub- scribed their names to an indorsement, making it payable to the First National Bank of Auburn for deposit, and delivered it so indorsed to the cashier of that bank, who afterward, on January 12, 1888, indorsed and transferred the order to the National Exchange Bank of Auburn. The First National Bank suspended payment January 33, 1888. The city treasurer having refused, after its maturity, to pay the amount of the order to the National Exchange Bank, a motion was made by it for a writ of mandamus requiring such payment to be made. The sum of money mentioned in the order was levied by the board of super- visors of Cayuga county in December, 1887, to pay the interest, which became due in 1888, upon certain bonds of the city which had been issued in aid of the construction of a railroad, and was embraced in the moneys which, by the war- rants then issued by the board to the city treasurer, he was authorized and directed to collect. The statute, pursuant to which the amount of money in question was issued, directed that when collected it was to be paid to the railroad commissioners, while the warrants issued to the city treasurer directed payment to the super- visors of the city of Auburn, of the sums mentioned in them. Setd, that the commissioners were the proper depositary of the money, and that the direction contained in the warrants did not have the legal effect of diverting the fund from its legitimate destination; that, as the drawers of the order were not entitled to the money, and as their order to any person other than the com- missioners would not entitle the payee to it, the order did not create an indebted- ness on the part of the city to the commissioners: that the city members of the board of supervisors had no authority to make, nor had the commissioners au- thority to transfer, by indorsement, a negotiable bill of exchange, nor was their power to make and transfer it supported by presumption, as all their powers were given by statute; that the order, as indorsed and delivered to the First National Bank, gave to the bank no title to the draft, or to the fund to be covered by it; but, at most, was a mere authority to receive the money from the treasurer, when it should be received or collected by him, for deposit in behalf of the commis- sioners and for their use; that an order denying the motion for a writ of mandamus should be affirmed. People, exrel. Nat. Exoh. Bk., v. Stupp, 49 Hun, 554. Excess of Excise Bf oneys.— If the yearly receipts of excise moneys are in excess of the amount required to support the 392 Supervisors' Manual. poor, the town board may expend tlie balance thereof on other ordinary town expenses. Laws of 1872, chap. 143; 3 R. S. 1990. But in counties where all the poor are a county charge, the ex- cise moneys go to the county treasurer. Laws of 1874, chap. 444, § 2; 3 R. S. 1990. Expenses for Entertainment, etc., not a Proper dxSbVge, — The common council of Buffalo have no authority to furnish an entertainment for the citizens and guests of the city at public expense Hodges V. City of Buffalo, 2 Den. 110. EELIEF OF INDIGENT SOLDIEES, SAILOKS, ETC. To^rn or City Auditors may Grant Relief.— For the relief of indigent and sutfering soldiers, sailors and marines, who served in the war of the rebellion, and their families or the families of those deceased, who need assistance in any city or town in this State, the proper auditing board of such city or town, or in those counties where the poor are a county charge, the superintend- ent, if but one, or superintendents of the poor, as said 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 quartermaster of any post of the Grand Army of the Republic in said city or town, upon the recommendation of the relief committee of said post, in the same manner as is now provided by law for tlie relief of the poor, provided said soldier, sailor or marine, or the families of those deceased are and have been residents of the State ■ for one year or more ; and the orders of said commander and quar- termaster shall be the proper voucher8 for the expenditure of said sum or sums of money. Laws of 1887, chap. 706, § 1, as amended by Laws 1888, chap. 261, In case there is no Post in Town.— In case there be no post of the Grand Army of tiie Republic in any town in which it is necessary that such relief as provided for in section 1 should be granted, the town board of said town, or the superin- tendent or superintendents of the poor, shall accept and pay the oi-ders drawn, as hereinbefore provided, by the commander and quartermaster of any post of the Grand Army of the Republic, located in the nearest city or town, upon the recommendation of a relief committee, who shall be residents of the said town in which the relief may be furnished. Id., § 2, as amended by Laws 1888, chap. 261. Auditing of Accounts. 393 Commander of Post to Give Notice.— Upon the passage of this act, the commander of any post of the Grand Army of the Republic, which shall undertake the relief of indigent vet- erans and their families, as hereinbefore provided, before the acts of said commander and quartermaster may become operative in any city or town, shall file with the city clerk of such city, or town clerk of such town, or the superintendent or superintendents of the poor of such county, a notice that said post intends to undertake such relief as is provided by this act. Such notice shall contain the names of the relief committee of said post in such city or town, and of the commander and other officers of said post. And the commander of said post shall annually thereafter, during the month of October, file a similar notice with said city or town clerk, or the superin- tendent or superintendents, and also a detailed statement of the amount of relief furnished during the preceding year, with the names of all persons to whom such relief shall have been furnished, together with a brief statement in each case from the relief com- mittee, upon whose recommendation the orders were drawn. Id., § 3, as amended by Laws 1888, chap. 261 . Bond may be Required.— The said auditing board of any city or town, or the superintendent or superintendents of the poor of those counties where the poor are a county charge, may require of the said commander or quartermaster of any post of the Grand Army of the Republic undertaking such relief in said city or town, a bond with sufficient and satisfactory sureties for the faithful and honest discharge of their duties under this act. Id., §4, as amended by Laws 1883, chap. 261. Indig-ent Soldiers, etc., not to be Sent to Poor-House. — Superintendents and overseers of the poor are hereby prohibited from sending indigent soldiers, sailors or marines (or their families, or the families of those deceased), to any alms- bouse (or orphan asylum) without the full concurrence and consent of the commander and relief committee of the post of the Grand Army of the Republic, having jurisdiction as provided in sections 1 and 2. Indigent veterans with families, and the families of de- ceased veterans, shall, whenever practicable, be provided for and re- lieved at their homos in such city or town in which they shall have a residence, in the manner provided in sections 1 and 2 of this act. Indigent or disabled veterans of the classes specified in section 1, who ar^ not insane, and who have no families or friends with whom they may be domiciled, may be sent to any soldiers' home. Any indigent veteran of either of the classes specified in section 1, or any member of the family of any living or deceased veteran of said classes, who may be insane, shall, upon recommendation of the com- mander and relief committee of such post of the Grand Army of the Republic, within the jurisdiction of which the case may occur, 50 394 StJPERvisoEs' Manual, be sent to any insane asylum and cared for as provided for indigent insane in section 26 of chapter 135 of the Laws of 1842. Laws of 1887, chap. 706, § 5. This act does not prescribe how these auditing boards shall pro- vide this money. Probably a certificate from the board, that a cer- tain sum is necessary for the purposes aforesaid, delivered to the board of supervisors, and that amount levied by them on the town, would answer the purpose. Lands for Monument Purposes.— Trustees, etc., May Acquire Title to Lands on Which to Erect Soldiers' Monument, etc. — It shall be lawful for the board of trustees of any incorporated village, or the trustees of any monument association, or the town board of any town within this State, to purchase or acquire title to lands for the erection of a soldiers' monument, or for the ei-ection of a monument or other structure as a memorial or mark of some distinguishing or important event in the history of this State or this nation, not to exceed three acres in quantity, to be laid out and held as a public park or square, providing such lands are vacant or have buildings thereon not ex- ceeding $2,500 in value ; and providing that a judge of the county or justice of the supreme court within whose district such monu- ment or memorial is to be erected, shall certify that the quantity of land proposed to be purchased or acquired is proper and necessary for such purpose. Chap. 226, Laws 1881, §1. Ho"W Title may be Acquired. — If the said board of trustees of any incorporated village, or the trustees of any monu- ment association or the town board of any town, be unable to agree with the owner or owners of such lands mentioned in the first sec- tion of this act, for the purchase of such lands, then and in that event the said board of trustees of any incorporated village or the trustees of any monument association, or the town board of any town, may proceed to acquire title to such lands in the same manner, so far as the same is applicable, as prescribed by chapter 140 of the Laws of 1850, entitled "An act to authorize the formation of rail- road corporations and to regulate the same," and the acts amendatory thereof and supplementary thereto. Id., % 2. Tas for Monument Purposes, Repairs, etc. Chapter 273, Laws of 1866, as amended by chapter 299, Laws of 1888, provides "for the incorporation of associations to perpetuate the memory of soldiers who fell in defense of the Union." It says, "A tax may be imposed, levied and collected on the taxable prop- erty in any town or city in which such monument or monuments may be erected, for the purpose of repairing or improving the same Auditing oy Accouxts. 395 and the grounds thereof ; such tax shall be Imposed in the manner prescribed by law for imposing general taxes in such town or city as are now authorized to be imposed." § 6, chap, 2?3, Laws of 1866, as amended by chap. 299, Laws of 1888. § 4T4. Certificate of Town Auditors.— The said board shall make a certificate, to be signed by a majority of said board, specifying the name of the person in whose name the account is drawn, the nature of the demand, and the amount allowed ; and shall cause a duplicate of said certificate to be made, one of which shall be delivered to the town clerk of said town> to be by Mm kept on file for the inspection of any of the inhabitants of the town, and the other shall be delivered to the supervisor of said town, to be by him laid before the board of supervisors of his county at their annual meeting. Laws of 1840, chap. SOS ; 1 R. S. 835. FORM OF CERTIFICATE. ■\' COUNTY OF Town of We, the undersigned, the board of town auditors of said town, do hereby cer- tify that at the time and place prescribed by law for holding the annual meeting of said board, said board was duly convened and organized; that the following is a true and correct statement of all accounts audited by said board at said meeting. Naubs o; ihe Febsons fob WHOM &CC0DNT IS Drawn. Nature of demand. Amount allowed. A. B Services as insDector of election $4 00 13 oa CD Services as commissioner of highway E. P 100 00 Total $116 00 Dated October 188 (Signatures), BoABD OF Town Auditoks. Pile one copy with the town clerk. Deliver one to the supervisor. § 4'75A. Supervisors to Raise Amount Audited. — The said board of supervisors are hereby autKorized and directed to cause to be levied and raised upon said town the amount specified in said certificate in the same manner as they are now directed to levy and raise other town charges. Id. 396 Supervisors' Manual. The certificate of the board of towu auditors, 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, and the supervisors have no discretion but to direct the amount specified in the certificate to be levied and raised upon the town. People V, Supervisors of Queens Co., 1 Hill, 195. The board of supervisors are required to cause the amounts specified in the certificate of the town board to be levied npon the town, and they cannot reverie or review the action of the town board. Osterhoudt v. Rigney, 98 N. Y. 222-285. § 476B. Abstract of Town Accounts.— It shall be the duty of boards of town auditors to make annually brief abstracts of the names of all persons who have presented to said board ac- counts to be audited, the amounts claimed by each of said persons, and the amounts finally audited to them respectively, and shall de- liver said abstracts to the clerk of the board of supervisors, and the said clerk shaU cause the same to be printed, with the statements re- quired to be printed by him, by the fourteenth section of this act. La-va of 1847, chap. 465, § 24; 1 R. S. 861. FORM OF SUCH ABSTRACT. COUNTY OF , ) Town op f We, the undersigned, the board of town auditors of said town, do hereby certify: That the following is an abstract of the names of all persons who have presented to said board, accounts to be audited, the amounts claimed by each of said per- sons, and the amounts finally audited to them respectively, to-wit; NAMES. Amount claimed. Amount allowed. A. B $40 00 500 00 $35 00 SCO 00 C. D Dated 188 (Signed) E. F., Supervisor, Q. H., Town Clerk, J.K., L. M., N. O., Justices op the Peace, Board of Town AuDrroRS. Deliver the abstract to the clerk of the board of supervisors. AuDiTiij-Q OF Accounts. 397 2. BOAED OF COUNTY AUDITOES. CotJNTY ChAKGES. § 411. Tlie Board of Supervisors.— All accounts chargeable against a county are to be examined, settled and allowed by the board, of supervisors, who direct the raising of such sums as may be necessary to defray the same. Accounts for county charges of every description shall be presented to the board of supervisors of the county, to be audited by them. 2 K. S. 926, §4, subd. 2, 3; id. 979, S 4. The following is the law : PO"wers of tlie Board.— The board of supervisors of each county in this State, shall have power at their annual meetings, or at any other meetings, 2. To examine, settle and allow all accounts chargeable against such county, and to direct the raising of such sums as may be necessary to defray the same ; 3. To audit the accounts of town officers and other persons against their respective towns; and to direct the raising of such sums as may be necessary to defray the same. §4, subds. 2 and 3, 2 B. S. 926 (m. p. 365). Aceoimts for county charges of every description shall be pre- sented to the board of supervisors of the county, to be audited by them. §4, 2R. S. 979 (m. p. 386). To Levy Taxes to Pay the Same.— The moneys necessary to defray the county charges of each county, shall be levied on the taxable property in the several towns in such county, in the manner prescribed in the thirteenth chaptfer of tliis act. Id., § 5. The " thirteenth chapter of this act " is the law pertaining to the assessment and collection of taxes, etc., set forth in Chapter V. of this book. May Cause Sums for " Conting^ent Expenses" to be Raised in Advance. — And in order to enable their respective county treasurers to pay such contingent expenses as may become payable from time to time, the boards of supervisors of the several counties shall annually cause such sum to be raised in ad- vance, in their respective counties, as they shall deem necessary for that purpose. Id.,S5- 398 Supervisors' Manual. § 4T8. TO"Wn Chiarges.— With the exception of the ac- counts of justices of the peace and constables for services in criminal cases, cha/rgeMe to a town, which must be audited by the proper town board, the board of supervisors seem to have concurrent jurisdiction with the board of town auditors to audit town charges. But if either board lias acted on a claim upon the merits, the other has no right to review or reverse such decision. People, ext rel. Onderdonk, v. Supervisors, 1 Hill, 195; Osterhoudt v. Eigney, 98N. Y. 222. § 479. Principles and Practice. — The principles and practice are the same for the county as the town board. See ante, §§ 428-431. § 480. When Accounts to be Presented. See ante, § 432. The law in relation to presentation of accounts in the counties named is set out in section 432. There are many local laws on this subject. The county of Albany has so excellent a system on this subject that it is set out in full at the end of this chapter. § 481. Items to be Stated and Verified. See ante, % 433. Account for Services. — All town and county officers, and all other persons who may present to the board of supervisors accounts for their services, to be audited and allowed, shall, before any such account or claim shall be passed upon or allowed, exhibit a just and true statement in writing of the nature of the service per- formed by them. 2R. S. 978. In all cases in which a specific compensation for any service is not provided by law, the officer or person presenting an account therefor, shall also exhibit in writing a just and true statement of the time actually and necessarily devoted to the performance of such services. 2 R. S. 978. § 482. Accounts to be Numbered.— All accounts presented in any year to the board of supervisors of any county, shall be numbered, from number one upwards, in the order in which they are presented, and a memorandum of the time of presenting the same, of the names of the'persons in whose favor they shall be made out, and by whom they shall be presented, shall be entered in the minutes of the board to which they shall be presented ; and no Auditing of Accounts. 399 such account after being so presented shall be withdrawn from the custody of the board or its clerk for any purpose whatever, except to be used as evidence upon a judicial trial or proceeding ; and in such case it shall, after being so used, be forthwith returned to such custody. Laws of 1845, chap. 180, § 28; 1 B. S. 846, $ 28. But informalities in an account may be amended and the account withdrawn in order to correct them. People, ex rel. Mason, v. Supervisors, 45 Hun, 62. § 483. Wbat are County Charges. The following shall be deemed county charges (2 K. S. 978) : 1. The compensation of the members of the board of supervisors, ■of their clerk, and of the county treasurer ; 2. The fees of the district attorney, and all expenses necessarily incurred by him in criminal cases arising within the county ; • See note to subd. 9. 3. The accounts of the criers of the several courts within the county, for their attendance in criminal cases ; 4. The compensation of sheriffs for the commitment and discharge of prisoners on criminal process within their respective counties ; See 67 N. Y. 330. See note to subd. 9. 5. The compensation allowed by law to constables for attending courts of record, and reasonable compensation to constables and other officers, for executing process on persons charged with criminal ■offehses ; for services and expenses in conveying criminals to jail ; for the service of subpoenas issued by any district attorney ; and for other services in relation to criminal proceedings, for which no spe- cific compensation is prescribed by law. See note to subd. 9. But not for issuing or serving any subpoena in any criminal case or proceeding •on behalf of a defendant. 3 R. S. 2548. 6. The expenses necessarily incurred in the support of persons charged with, or convicted of crimes, and committed therefor to the several jails of the county ; See 67 N. T. 330. 7. The sums required by law to be paid to prosecutors and wit- nesses in criminal cases ; 400 Supervisors' M^lNUAl. 8. The accounts of the coroners of the county, for such services as are not chargeable to the persons employing them ; 9. The moneys necessarily expended by any county officer in executing the duties of his office, in cases in which no specitic com- pensation for such services is provided by law ; In Ulster county, no fees, comniitjsions or percentage are allowed to the district attorney, county treasurer or superintendent of the poor in addition to their salary, nor can there be allowed to the sheriff for services and expenses in any year more than $6,000, nor to the county clerk in any year for his services and expenses more than $1,200. Chap. 355, Laws of 1879, as amended by chap. 231, Laws of 1884. See below "Moneys Necessarily Expended." 10. The accounts of the county clerks, for services and expenses incurred under the sixth chapter of this act ; , 11. All charges and accounts for services rendered by any justice of the peace, under the laws for the relief and settlement of the poor of such county, and for their services in the examination of FELONS, not otherwise provided for by law ; See note "A." 12. The sums necessarily expended in each county in the support of county poor-houses, and of indigent persons whose support ie chargeable to the county ; 13. The sums required to pay the bounties allowed by law for the destruction of wolves and other noxious animals, and chargeable to the county ; 14. The sums necessarily expended in repairing the court-houses and jails of the respective counties ; 15. The contingent expenses necessarily incurred for the use and benefit of a county ; and, 16. Every other sum directed by law to be raised for any county purpose, under the direction of a board of supervisors. 2 R. S. 978, § 8. Accounts of sheriffs for paying the fees of clerks of counties for drawing grand juries, for attending and drawing grand juries, and for summoning constables to attend courts, shall hereafter be pre- sented to and audited by the boards of supervisors of the counties respectively in which such service shall be rendered, and such accounts shall not hereafter be chargeable to this State. Laws of 1831, chap. 380, § 22. See note to subd. 9, § 483, ante. AuDiTiKG OF Accounts. 401 § 484. Printing Calendar.— The supreme court, a su- perior city court or a county court may, from time to time, by order, require the clerk to cause to be printed for the use of the members and officers thereof the necessary copies of the calendar of causes pre- pared for a term of the court, or in the supreme court, for the circuit court. But this section does not apply to the city and county of New York. Code of Civil Procedure, § 19. The expense of printing the copies of the calendar for a term shall be a charge upon the county in which the term is held ; and must be audited, allowed and paid, by the board of supervisors thereof, in like manner as other contingent county charges. Id., § 20. § 485. Printing' Session LaTrs.— The expenses of printing the session laws in two newspapers are county charges. See the Law in full at § 632, post. § 486. Resolutions — Publislling' of— are a county charge. Laws of 1875, chap. 482, § 2. § 487. Terms of Court — Advertising— pursuant to an order of a court, is not a county charge. People, exrel. Cole, v. Supervisors, 39 Hun, 299. § 488. Audits — Publislling of, are a county charge. — These must be published. Laws of 1839, chap. 369 ; 2 R. S. 929. Equalization proceedings must be published and are a county charge. Id. § 489. Election Notices and Official Canvass. —Publishing the election notices and official canvass m not exceed iiig two newspapers are a county charge, the compensation to be fixed by the board. Laws of 1875, chap. 482, S 7 . The printing and posting of election notices by the town officers are town charges. See § 458. Cornell University — Examination, etc., for. A competitive examination, under the direction of the Department of Public Instruction, shall be held at the county court-house in each county of the State, upon the first Saturday of June in each year, 51 402 SuPEEVisoEs' Manual. by the city superintendents and the school commissioners of the county. Subd. 1, § 9, chap. 585, Laws of 1865, as amended by chap. 291, Laws of 1887. Notices of the time and place of the examinations shall be given in all schools having pupils eligible thereto, prior to the first day of January in each year, and shall be published once a week for three weeks in at least two newspapers in each county immediately prior to the holding of such examinations. The cost of publishing such notices and the necessary expenses of such examination shall be a charge upon each county respectively and shall be audited and paid by the board of supervisors thereof. Subd. 8, Id. This examination is to select a State student for the free scholar ships in the university. Printings Judg-ment-Roll, etc., in Criminal Caed) on said defendant at To taking said defendant into custody on mittimus To miles traveled in going from to (Uticaor Rome jail, as the case may be) in order to deliver said defendant. To taking charge of jury. To keeping prisoners days. To notifying complainant, complainant's name was and he resides at ^e services herein were rendered by the direction of The said defendant was (discharged or committed or bailed as the case maybe) by said magistrate. AUDITIKG OF ACOOUNTS. 427 Travel fees are to be computed from the place where mandate or process is served or executed to the place where it is returnable, unless a difEerent rate is Bpecially prescribed by statute; where two or more mandates are served or exe- cuted m one special proceeding, or against two or more persons in one action or proceeding, the constable is entitled, in all, to only ten cents for each mile neces sanly traveled. Code of Civ. Pro., §§ 3322, 3323. A constable, who charges any traveling fees, must show by affiOmit that the travel was necessary to perform the service with respect to which it is charged; that no more miles are charged for than were actually and in good faith traveled for that purpose; that he had, at the time, no other official or private business upon the route so traveled, and that the traveling fees are charged upon one mandate only, which must be attached or described in the affidavit. Id., § 3324. The two sections above probably relate to civil cases. Whenever a subpoena for witnesses in criminal cases or complaints, containing one or more names, shall be served by a constable or other officer, such officer shall be allowed for mileage only for the distance, going and returning, actually traveled to make such service upon all the witnesses in such case of complaint, and not separate mileage for each witness, unless the board of supervisors audit- ing accounts for such services shall deem it equitable to make a further allowance. Chap. 606, Laws of 1836, § 1. FORM OF ACCOUNT FOB SERVICE OF SUBP(ENA, The People vs. A. B. Subpoena issued by Offense charged was Number of names in precept Number of persons upon whom served. Place where each witness was served was as follows- Knmber of miles actually traveled to make such service, going and returning, and not separate mileage for each witness Notifying complainant Precept returned to Offense was committed in town of at , STATE OF NEW YORK, ) . Oneida County, f " I (insert name of person making the affidavit), being duly sworn, do depose and say: That the items of the foregoing account are correct, and that said account, or any part thereof, has not been presented by me, or by any one in my behalf, to any preceding board of supervisors for audit; that the disbursements and services charged therein have been in fact made or rendered, and that no part thereof has been paid or satisfied; that the travel charged in serving the process in each of the above-entitled cases was necessary on the process on which it was charged, and that no more miles are charged for than were actually and in good faith traveled 428 Supervisors' Manual. on tho execation of such process; that at the time I executed said process I had no other private or official business on such traveled route, and that the charge for going and returning is made only upon one process, which process is attached ot described in this account and affidavit. (Signed) Sworn to before me, this day of, 188.. CD., JOSTICK OP THE PEACE, ONBIDA CODKTT, 1 , N. Y J § 536. To Publish Audits.— It shall be the duty of the boards of supervisors in each county in this State, annually to pub- lish in one or more public newspapers in such county, the name of every individual who shall have had any account audited and allowed by said board, and the amount of said claim, as allowed, together with the amount claimed, and also their proceedings upon the equalization of the assessment-roll. Laws of 1339, chap. 369 ; 2JL.S. 829. If the purpose of the above law is to benefit the tax payers, or to protect the public from "raids" upon its treasury, it would seem better and wiser to publish the claims presented, hefore the auditing board is allowed to act on them at all, not after the claims are audited, the board adjourned and all chance for relief has passed. A judicious use of "printer's ink " before claims are acted on would be an economi- cal measure worth trying ; and if this were followed by publishing, before the final adjournment of the board, the number of the claim (numbered as in the first publication), and amount " as allowed," it would protect the people and the claimant, the former from the "raids," and the latter from unjust redactions, made without cause or reason, and give time to correct, by legal proceedings, if necessary, any injustice. The fact that a claim would be published in full, would alone be a safeguard and protection. At any rate, if any money is to be expended in publishing claims, let it be expended at a time when it can accomplish some good. THE SYSTEM OF AUDITING ACCOUiTTS IN ALBANY COUNTY (UNDER CHAP. 283, LAWS 1881). Accounts, Form of, to be Published.— All claims and demands against the county of Albany, which are to be passed upon by the board of supervisors of such county, must be presented to the board in the manner now required by law, in the form of ac- counts, itemized and verified as hereinafter provided for. Such ac- counts, after being presented, shall be delivered to the clerk of the AUDITISTG OF ACCODNTS. 429 board, and shall (excepting the verification thereof) be printed under the direction of said clerk, at an expense not exceeding the ordinary price paid for such work, and shall be distributed under his direc- tion to each member of the board within eight days after such ac- counts have been presented ; and no claim or demand against snch county of the character above described shall be in any manner acted upon by the board (except to refer the same to an appropriate committee for examination and report), until three days after such account has been printed and distributed as herein required. A willful neglect to have snch accounts as are above described, printed or distributed, as is by this act required, and within the time herein specified, and the presentation of an account known to the person presenting it to be fictitious and without any foundation, shall be a misdemeanor. Laws 1881, chap. 288, § 1. Wlia/t Account Must State. — Each account must state when and where the work was performed or materials furnished, and by what contract or under what authority it was performed or the materials furnished, and must state, with reasonable detail, the character and amount of the work done and materials furnished. The account must contain the names of each person interested in the same, or who makes any claim to any share or portion of the sum to be paid. Id., §2. Hew Verified. — Such account must be verified by one at least of the parties in whose name the same is presented, and must be to the effect that the same is presented in the name or names of the real party or parties in interest, and that the contract was not made or the work performed or materials furnished in the name of one person for the benefit of another ; and that no county officer or mem- ber of any board, or commission, of the county, or salaried employee thereof, is or has been directly or indirectly interested therein, either in the doing of the work or' the furnishing of the materials, or has been paid or promised any thing for the letting of the contract. That the work as charged for was actually done, and the materials specified actually furnished and used at the times and places men- tioned, and are of the value charged, or are at the prices specified in the contract. That no bill has been presented or claim made thereto- fore for the payment for such work or materials, or for any part or item of such work or materials, except as therein stated, and if such bill has been theretofore presented, or such claim has been thereto- fore made, for the whole or any part thereof, it shall be stated to whom or what board, body or commission it was presented or made, the time or times thereof, and the action of such person, board, body or commission thereon, and when such action was taken. Id., §3. 430 SuPEEVisoBs' Manual. Blank Form of VeriScation to be Furnished by Clerk. — The clerk of the board shall prepare a blank form of veritication, uDder the last section, to be approved by the district attorney, and it shall be printed and furnished by said clerk gra- tuitously to all persons demanding the same, and who have a claim or demand of the aforesaid character to present to the board, and no account shall be presented to the board, or received or paid, or or- dered paid, or acted upon by it, unless the verification is in the form prepared by said clerk, and in no case shall the account be paid until five days after the proceedings of the board allowing or auditing the account have been printed and distributed, as herein provided for, of which the certificate of the clerk of the board to that efEect shall be evidence ; and such account shall not be paid by the county treas- urer at all unless the verification and the bill presented complies with the provisions of this act. When paid the original account or bill having the verification attached shall be receipted by the party receiving the money, or by his duly authorized agent, and filed with the county treasurer, and is hereby declared to be a public record in his oflBce. All claims and demands presented, including verifica- tion, which shall not be allowed or paid, shall be retained and filed, with the proper indorsement of the name, date and amount, by the clerk of the board, in his office, and shall be public records. Id., § i. Proceeding's of Board to be Printed.— The proceedings of the board of supervisors shall also be printed and distributed, under the direction of its clerk, within the time above mentioned for the printing and distribution of the aforesaid accounts. In addition to the number of copies that may be required by the clerk of the board, for the distribution above provided for, there shall be printed 300 copies, which shall be kept by said printer in some safe place, and immediately after the first day of January in each year such copies for the preceding year shall be bound in good law sheep at the prices ordinarily paid for such work, under the direc- tion of the clerk of the board, with an index list of county officers, committees, et cetera, to be prepared by him, and the same shall be distributed under the direction of the board. Id., §5 "When Tax Payers May Have Copies.— Upon payment of $10 to the county treasurer of the county, any tax payer may have for one year a printed copy of the proceedings of the board, and of the printed bills as they are from time to time dis- tributed, and at the times above described for their delivery to the members of the board delivered to him at some place to be desig- nated by him, and within one-quarter of a mile from the place in which the board holds its meetings. Id., § 6. Auditing of Accounts. 431 Sa>la- pense of the cowvty. Hodge T. Mayor, 2 Denio, 110. Where they neglect to perform any duty required by law, m,an- damus lies to compel them to meet again and perform it. People, exrel. Scott, v. Supervisors, 8 N. T. BIT. Or where an individual supervisor neglects or refuses to perform it he is liable to an action therefor. Clark V. Miller, 54 N. T. 628. § 547. When Their Po-vrers Cannot be Dele- gated to a Committee or other Persons.— When They May, etC: — The powers confery ed upon the board of supervisors when not Tnerely ministerial or adminisira-' iive, must be exercised by the board, not by a committee or any other persons. It may refer questions, claims, etc., to a committee for investigation, examination, to consult counsel, etc., and to report the results, with their advice as to the best course to be pursued, but the final decision must be made by the board itself, embodied in a resolution to be duly entered in its records and done while it is still in actual session and capable of corporate and co-operative action. See " Decisions " under § 149, ante, and those cited under § 440, cmte. The action of the board of supervisors in attempting by resolu- tion to delegate to a committee composed of five of its members the right to locate and purchase & site for the "Children's Home," where, in their judgment, the interests of the county would be best subserved, and in their discretion to incur indebtedness upon the 456 SuPEBVisoKs' Manual. county therefor, and for the erection of a building on such Bite, with all other and further action whether by the board or by the committee, having in view the carrying into effect the resolution, is without sanction of law and void. People, exrel. Kimball, v. Supervisors, 25 Hun, 131. Where the common oounoil of a city, by its charter, was au- thorized to make " by-laws and ordinances, ordering and directing any of the streets * * * to be pitched, leveled, paved, flagged * * * or for the altering or repairing the same, within such time and in such manner as they may prescribe, under the superin- tendence and direction of the city superintendent." The common council passed an ordinance by which they directed State street, be- tween certain points, to be " pitched, leveled and flagged * * * in such manner as the city superintendent under the direction of the committee on roads and bridges of the common council, shall di- rect and require." Held, that the ordinance was void because it did not prescribe the manner in which the street and sidewalks were to be pitched, leveled and flagged. The common council were required by the statute, to determine, themselves, the manner in which the improvement should be made, and could not delegate that power to any officer or committee. Thompson T. Schermerhorn, 6 N. Y. 92. If discretion and judgment are to be exercised, either as to time, or manner, the body or oflicer intrusted with the duty must exer- cise it, and cannot delegate it to any other officer or person. Birdsall t. Clark, 73 N. T. 73. The ioard of cliarilies of Utica were created hy statute, which gave them the same 'powers as were theretofore possessed by over- seers of the poor. Held, that the board had no authority to adopt a resolution in advance, authorizing their cleric to commence and carry on, in their name, any and all prosecutions in cases of alleged bastardy, without further order of the board. People, exrel. Board of Charities, v. Davis, 15 Hun, 209. An authority to do acts merely ministerial or mechanical ma/y, it seems, be delegated ; but not so, when the act involves the exer- cise of judgment or discretion. Powell V. Tattle, 3 N. Y. 396. Held, that a sale of lands made by one of the " loan commis- sioners " is irregular and void. Both commissioners must be present and concur in the sale. Id. Nor does a subsequent conveyance by both commissioners render the sale valid. Id. Powers and Duties of the Boakd. 457 Wliere a committee was " authorised to advertise for sealed pro- posals for certain work to be let to the lowest responsible bidder, the committee, together with the architect, to furnish the necessary plans and specifications * * * to include in their proposals for work in the county house the building of necessary fences." The architect made plans and specifications for these fences and left them with the committee. The committee advertised for proposals. The relators submitted to the committee proposals for building the fences. The committee received other proposals, compared them, found the relators to be the lowest bidders and thereupon the chairman made the contract with them, under which they did the work and furnished the materials. After the contract was let, a supervisor offered a resolution in the board, preceded by a preamble, reciting that " the building committee of this board have, by direction of the board, gone on, advertised for proposals and awarded contracts for certain work of grading, build- ing fences, etc., on the county farm, to certain contractors, and such contractors have commenced such work and nearly completed the same," the resolution directing the borrowing of money to pay for the work. The preamble and resolution were offered to show notice to the board — what action was taken by the board upon the resolu- tion was not offered to be shown. A subsequent board repudiated the contract as unaiithorized and excessive and audited the claim, at a less price. Held, that the com- mittee was not authorized to enter into any contract. They were authorized to take all the preliminary steps to the execution of the contract, and no more. ^\i& preanible accompanying the resolution which was subsequently offered in the board, /aHs short of a ratifi- cation of the action of the committee because no action upon the resolution is shown, and hence no ratification is shown. Relators not having a valid contract, are not entitled to a man- damus to compel an audit upon the basis of a contract price, and the audit of the board is final and conclusive. People, ex. rel. Vaughn, v. Supervisors, 5 N. T. Sup. 600; S. C, 52 Hun, 446. The provisions of the charter of the city of ITew York of 1873 (§ 91, chap. 335, Laws of 1873), in reference to letting work by con- tract, imperatively requires that where an aggregate expenditure of more than $1,000 is involved in the completion, in all its parts, of any particular job to be thereafter undertaken for the corporation, or in obtaining supplies to be furnished to it for any particular piir- pose, the same shall be, by contract, awa/rded to the lowest bidder after advertisement for sealed proposals, unless otherwise ordered by a vote of three-fourths of the members elected to the common coun- cil. * * * * CTnder an ordinance of the common council, adopted by a three-fourths vote, in December, 1873, the work of improving One Hundred and Forty-fifth street was undertaken. The ordinance directed the work to be done in such manner as the commissioner of public works " may deem expedient &n6.for the hest 58 458 Supervisors' Manual. interests of the city and property-owners." The work was done by day^s work without a contract, involving an expenditure of over $107,000 ; and an assessment was laid to defray such expenditure. In proceedings to vacate the assessment, held, that the commissioner of public works as succeeding to the powers of the commissioners of Central Park, had no authority under said acts of 1865 and 1866 to cmise the work to be done by day^s ioork ; that the improvement fell within the provision of the charter of 1873 above specified; that the clause in the ordinance attempting to delegate to the commis- sioners the power to determine the method of doing the work was unauthorized ; that the expense was incurred in violation of said charter provision and could not form the basis of a valid assess- ment ; and that, therefore, the assessment was void. Matter of Pet. of Emigrant Ind. Sav. Bank, 75 N. Y. 888; see People r. Stout, 28. Barb. 849. Section 3 of chapter 230 of 1884:, providing for the purchase of a county farm and the erection of buildings thereon by the board of supervisors of Kings county, directs that whenever the plans and specifications shall be approved by the said board of supervisors, " it shall advertise, as now provided by law, for proposals for the erection of the buildings and improvements thereby contemplated to be erected and made, and shall award the contract to the lowest re- sponsible &i<^(^er or bidders." Under this act the board advertised for sealed proposals and reserved the right to reject any and all bids. The relator and others submitted proposals for separate portions of fhe work. A portion of the work was awarded to the relator, but a number of his bids were rejected. Claiming that the board had no power to annex to their advertise ment the condition reserving the right to reject any and all bids, the relator moved for a peremptory mandamus to compel the board to accept the rejected bids. Held, that even if the hoard had no authority to annex this con- dition, yet, as it did. in fact do it, the relator, who made his bids under the advertisement containing it, could not com,plain that the board exercised the right so reserved against him. That the statute was intended to be beneficial to the county, and if such a construction could be spelled out of its terms, it was the duty of the court to be sedulous in giving it such an interpretation. It seems, that the fair interpretation of the act is, that when the contract is awarded, it shall be to the lowest bidder. People, exrel., v. Supervisors, 42 Hun, 456. The supervisors of Cattaraugus county had power under the act of April 17, 1865 (chap. 479, p. 860), to appoint three building com- missioners to locate and erect county buildings at Little Yalley, who should have authority to consider donations of land and money in determining the location ; by their resolution of appointment they di' rected their appointees to select and procure the title to a proper site for a sum not exceeding $1, and to proceed to erect the buildings Powers and Duties oy the Board. 459 thereon, but neither to obtain the tiUe, nor take any binding steps until security should be given by bond of individuals and otherwise, guaranteeing payment for erection of the buildings without expense to the county. Seld, that the power to accept donations of money was vested in the supervisors, by whom provision for supplying the means to erect the building had to be made, and not in the building commissioners, and that a bond given as security for payment of donations, under the resolutions, was within the policy of the law and valid. And the said building commissioners having proceeded according to the terms of the resolution to locate, erect and furnish the county buildings, in part upon the faith of a bond given to secure payment of money promised in that respect, held, that such bond was founded upon sufficient consideration. And that one who had at the day of its date and before delivery indorsed upon the same over his signature, " I guarantee payment of the within bond," was bound by the guaranty, and that this was so irrespectively of the amendment of the statute of frauds (1863, chap. 464). Marsh t. Chamberlain, 2 Lans. 287. Ministerial ox* Administrative Po-wers» "What are. — It may appoint agents, or give directions to subor- dinate officers of a ministerial or administrative character. Id. Where the common council of a city has decided to lease certain rooms for city purposes, it may confer upon a committee appointed by it, the power to arrange the rooms and procure the necessary fur- niture therefor. Edwards t. City of Watertown, 24 Hun, 428. It may appoint the recorder of the city one of such a committee, although he is not a member of the common council. Id. The charter of the city of Albany (Laws of N. Y., 1876, chap. 173) provides that "it shall not be lawful for any member or mem- bers of the common council, whether a committee or otherwise, to make any disbursements, or to incur any expense on behalf of the city for repairs or supplies, or to audit accounts therefor, unless previously ordered by the common council." ^eZcZ,. that under au- thority from the common council to " fit up " rooms for city offi- cers, a committee may make contracts with a tradesman for the necessary supplies, though the council have not specified the amount to be disbursed for such purpose, Kramrath y. City of Albany, 6 N. Y. Sup. 34. In executing such authority the committee acted informally, the supplies, etc., being furnished on the order of one member with the 460 Supervisors' Manual. approval of another ; but before the committee could meet to for- mally approve their acts, a new committee was appointed, which dis- allowed the bill, though it was not disputed that the supplies and services were proper and the charge reasonable. Held, that the irregularity of the first committee's action could not defeat the tradesman's just claim. Id. In an action for such supplies, etc., the admission of evidence that, in other cases somewhat similar, the common council had au- dited and allowed the claims of other tradesmen, was harmless, plain- tiff having established his claim independently of it. Id. Their powers as an auditing board are contained in chapter VIII, and the powers, etc., of a county as a body corporate, in the preced- ing sections of this chapter, and as to assessment and collection of taxes, in chapter V. § 548. HoTT tbeir PoTirers are to be Exer- cised. — The powers of a county as a body politic can only be ex- ercised by the board of supervisors thereof, or in pursuance of a resolution by them adopted. 2 R. S. 924, § 4 (see ante, % 540). T\\e proper mode by which a board of supervisors renders itself legally liable, is by resolution entered in its minutes. Chemung Canal Bank t. Supervisors, 5 Denio, 517-523; People, exret. Masterson, v. Gallup, 12 Abb. N. C. 64 (reversed on another question, 30 Ilun, 501). lUeg-al Condition in Resolution, Void.— Where by statute, a board of supervisors were " authorized to adjust and audit the claims of" C. and others, " to allow so much for the work done and materials furnished as the same was worth, not exceeding the contract price * * * to cause to be levied and collected upon the towns of G. and L. such sums as shall be found necessary, etc." The claim was referred to a committee, who recommended that certain sums be allowed, but that the several amounts awarded should not be levied or assessed until there was a compliance with a resolution of the board, which reads as follows: Resolved, That the levying and assessing of any sums upon the towns of G. and L. for the payment of the claims of 0. "(and others)" be conditioned upon the execution of a proper and acceptable and sufficient bond for the sum of $5,000, to be made by each * * * to protect the county from any expense arising from any litigation which may grow out of the action of the board upon these claims, and a proper discontinuance of the several suits now pending upon these claims. PowEBS AXD Duties of the Boaed. 461 The report of the committee was adopted by the board. C. did not comply with the resolution ; held, that the condition was unau- thorized ; that having determined the amount and that it should be paid by the towns, it was the duty of the board to cause the tax to be assessed. People, exrel. Conway, t. Sapervisora, 68 N. Y. 114. The board was only authorized by the statute to do two things : First, to ascertain, audit and allow the amount to be paid to the claimant ;. second, to determine whether the amounts thus allowed should be paid by the two towns or by the county. Id., i 121 . They had no right to exact, as a condition, that the claimant should give the bonds and discontinue pending suits. Id., §i22. Repoi^ts of Comiuittees, lio-w Confirmed lay 1(lie Boaifd. — " The report of a committee should generally close or be accompanied with formal resolutions covering all of their recommendations, so that the adoption of their report would have the effect to adopt all the resolutions necessary to carry out their recommendations. If the report of a committee were written in this form, 'Tour committee think the conduct of Mr. A., at the last meeting, so disgraceful that they would recommend that he be expelled from the society,' the adoption of tlie repo^'t would not ha/oe the effect to expel the member." Roberts' Rules of Order, § 29 . As the board are to act hy resolutions, it would be safer to em- body in a resolution just what the board have decided to do, and if they are acting upon the report of a committee, either the report should conclude with such resolution as the committee deem proper in the premises, in which case the adoption of the report would pass all resolutions contained therein ; or if the report does not con- tain any resolutions, then one should be offered, which should ex- press what the board decides in the matter. "When the report contains resolutions the proper motion is : Resolved, That this board agrees to the resolutions contained in the report of the committee 6n Id., § SI. It is not the correct practice, and may lead to trouble, to act on such questions in the manner following : A committee makes a report after this fashion : 463 Supervisors' Manual. " Your committee, to whom was referred the claim of John Smith, have carefully examined the claimant and the claim presented, and recommend that the same be allowed at $50." Whereupon some member moves that the report of the commit- tee be "adopted," which is "carried," and the matter dropped. Under the authorities on parliamentary practice, this is not an allowance of the claim, nor an audit by the board, but simply that it adopts the statement of the facts as made by the committee, and ^^ recommends" that the claim be allowed at $50, but "by whom," or "when," or "where," it should be so allowed, is not stated. At any rate, there is sufficient douht as to this being the proper method of acting in the matter, and one that can be so easily cleared up by passing a proper resolution covering the whole matter, that it is needless to leave any doubtful question in the case. It has been decided that a report containing a resolution in due form, whereupon the chairman of the board put the question thus, " All in favor of adopting the resolution will answer in the affirmativl, those opposing, in the negative," was valid. People, exrel, Maaterson, v. Gallup, 12 Abb. (N. S.) 64. The court says : " It is argued that the resolution was never passed because in form it was not written on a distinct and separate piece of paper, but was offered in the report of a committee and that this was simply the adoption of a report of a committee * * * The report of the committee recommended the adoption of the resolution wAicA was written out. After accepting the report, the board fixed upon a time to consider it. When it re-assembled it had before it a writ- ten resolution offered by a committee of its members. The resolu- tion was read and the chairman put the question." (Set out in full just above.) " The proceeding could not have been misunderstood ; each member as his name was called responded. * * * The reso- lution precisely as read, was entered upon the journal and the vote duly recorded. It is difficult to see what more was needed or re- quired to make the action effective." Id . 73-74 ; reversed on another point in 30 Hun . The final question is sometimes stated merely on the acceptance of the report, but a better form is on agreeing with the committee in the resolution, order, or whatever else the conclusion of the report may be, as amended, or without amendment ; and the resolution or order, is then to be entered in the journal., as the resolution, etc., of the assembly and not as the report of the committee accepted)' Cushing's Manual, g 195. Powers akd Duties of the Board. 463 and " the question should be on agreeiiig to the resolutions * * * recommended by the committee." Id., §296. Resolutions under chai)ter 482, Laws of 18Y5, and certain otbere, liave a form prescribed for them. See "Committee on Legislation,'' po«i. POWEKS OF THE BOAED, BY STATUTE. The following are its powers, conferred by law. See Decisions at end of this section. § 549. 1. Under the Revised Statutes. Annual and Special Meetings. The supervisors of the several cities and towns in each of the counties of this State shall meet annually in their respective counties for the despatch of busi- ness as a board of supervisors. They may also hold special meetings, at such times and places as they may find convenient; and shall have power to adjourn from time to time, as they may deem necessary. §1, art. 1, titl6 2, chap. 12, part 1, Revised Statutes, 2 R. S. 926. Powe^-s. The board of supervisors of each county in this State shall have power at their annual meetings, or any other meetings: 1. To make such orders concerning the corporate property of the county as they may deem expedient; 3. To examine, settle and allow all accounts chargeable against such county, a,nd to direct the raising of such sums as may be necessary to defray the same; 3. To audit the accounts of town officers and other persons against their re- spective towns, and to direct the raising of such sums as may be necessary to de- fray the same ; and. See note A. ^ 4. To perform all other duties which may be enjoined on them by any law of -this State. Id.,S4, 2E. S. 926. Quoriim. A majority of the supervisors of any county shall constitute a quorum for the "transaction of business ; and all questions which shall arise at their meetings shall be determined by the votes of the supervisors present. Id., §5. Certain questions require two-thirds of all elected, and others the vote of a ma- jority elected. See post. Meetings, Public. The board of supervisors shall sit with open doors, and all persons may attend their meetings. Chairman. They shall, at each annual meeting, choose one of their number as chairman, who shall preside at such meeting, and at all other meetings held during the year. In case of his absence at any meeting, the members present shall choose one of their number as a temporary chairman. Id.,§V. 464 StrpEEVisoEs' Manual. May Administer Oath. Every cbairman shall have power to administer an oath to any person, concern- ing any matter submitted to the board, or connected with their powers or duties. Id., §8, 2R. S. 926. Clerks to he Appointed. Each board of supervisors shall, as often as may be necessary, appoint some proper person to be their clerk, who shall hold his oflBce during their pleasure, and whose general duty it shall be: 1. To record in a book to be provided for the purpose, all the proceedings of the board; 2. To make regular entries of all the resolutions or decisions, on all questions concerning the raising or payment of moneys; 3. To record the vote of each supervisor on any question submitted to the board, if required by any member present; and 4. To preserve and file all accounts acted upon by the board. Id., § 9, 2 R. S. 927; As to Kings Co., see chap. 853, Laws of 1878; As to Erie Co., see chap. 195, Laws of 1876. His Pay. The clerk shall receive a reasonable compensation for his services, to be fixed by the board of supervisors, and to be paid by the county. Id., §10. Books, Records, etc. The books, records and accounts of the boards of supervisors shall be deposited with their clerk, and shall be open, without reward, to the examination of all persons. Id., §11. Accounts to be Filed. It shall be the duty of the clerk to designate upon every account upon which any sum shall be audited and allowed by the board, the amount so audited and allowed and the charges for which the same was allowed; and he shall also deliver to any person who may demand it, a certified copy of any account on file in his office, on receiving from such person six cents for every folio of one hundred and twenty -eight words contained in such copy. Id., § 12. Court-Souses and Jails, etc. It shall be the duty of the several boards of supervisors, as often as shall be necessary, to cause the court-house and jail of their respective counties, to be duly repaired, at the expense of such counties; but the sums expended in such repairs shall not exceed five hundred dollars in any one year. Id., §13. This amount has been enlarged by subsequent laws. See Laws 1838, chap. 314, § 1, subd. 3, and Laws 1875, chap. 482, 1 1, subd. 1. Solitary Cells. They shall also cause to be prepared within the jails of their respective coun- ties, or elsewhere, at the expense of such counties, so many solitary cells for the reception of convicts who may be sentenced to punishment therein, as the court of common pleas of the county may direct. . 2 R. S. 927, § 14. Section 15 relates to the pay of supervisors, and is superseded by the Laws of 1875, chap. 483, § 8, post. Powers akd Duties op the Boakd. 465 PeruUty Against Supervisor for Neglect of Duty. 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 oSense, forfeit th« sum of two hundred and fifty dollars. Id., § 16. New York County. The mayor, recorder and aldermen of the city of New York shall be the super- visors of the city and county of New York, and all the provisions of this article shall be construed to extend to them respectively except where special provisions inconsistent therewith, are or shall be made by law, in relation to the city and county of New York. Id. 928, a 17. Decisions — Under Revised Statutes. AS TO TOWN CHAEGES — BOAED MAY AUDIT. The clium was unliquidated. If the town auditors have not, the board of su- pervisors of the county have, ample power, and it is their duty to audit the accounts of town officers against their respective towns, and direct the raising of such sums as may be necessary to defray .the same. If in a proper case, the town auditors or board of supervisors neglect or refuse to audit and allow a just and legal claim of a town officer, the party has an ample remedy by Tnandamus. Preabyterian Society of Enozboro v. Seacb, 8 Hun, MA. ILLEGAL AUDITS. A board of supervisors has no power to audit and allow accounts not legally chargeable to their county, and such an audit is null and void; it may be disre- garded by the officers of the county, and is not binding and conclusive upon a succeeding board. The payment of such an account so audited is not a voluntary payment by the county; but an unauthorized act of its agents, and an action lies at the suit of the county to recover back the moneys paid. Board of Supervisors v. Ellis, 59 N. Y. 820. The provisions of the Bevised Statutes declaring that a majority of the super- visors of a county shall constitute a quorum for the trsmsaction of business, and that all questions arising shall be determined by a majority of the supervisors present, cannot be altered by a rule of the board. People, ex rel. Burroughs et al., v. Brinkerhoff, 68 N. Y. 256. The provision of the Bevised Statutes authorizing a tar collector to levy an unpaid tax " by distress and sale of the goods and chattels of the person who ought to pay the same, or of any goods or chattels in his possession," refers to actual, physical, and not merely legal or constructive possession, and an actual possession by the consent of the owner, although unaccompanied by any owner- ship in the possessor, is a possession within the meaning of the statute. Hersee ti al. t. Porter, 100 N. Y. 40$. In New York county the mayor, recorder and aldermen constitute the board of supervisors. Jn re New York Cable Co. t. Mayor, 104 N. Y. 1. See "Auditing of Accounts," chapter VIII; "Assessment and Collection of Taxes," chapter V. 59 466 SuPERvisoBs' Manual. § 550. Under the Laws of 1838, chapter 314. See Decisions at end of this section. AN ACT to enlarge the powers of board of supervisors. Power to Raise Money. Section 1. The hoard of supervisors of each county in this State shall, in addi- tion to the powers now conferred on them by law, have power, at their annual meeting, or when lawfully convened at any other meeting: For Bridget. 1. To cause to be levied, collected and paid, to the treasurer of the county, such Bums of money as may be necessary to construct and repair bridges therein; and to prescribe upon what plan and in what manner the moneys so to be raised shall be expended. See Decisions post; 3 R. S. 928. See Roads and Bridges, chap, XIV. Apportionment of Tax. 2. To apportion the tax so to be raised, among the several towns and wards of their county, as shall seem to them to be equitable and just. See Laws of 1883, chap. SiS, poet; 2 R. S. 928. For Oourt-Eouae and Jail. 3. To cause to be levied, collected and paid, all such sums of money as they shall deem necessary for rebuilding or repairing the court-house or jail of their county; or for building, rebuilding or repairing the clerk's oflBce of the county, and to prescribe upon what plan and in what manner the moneys so raised shall be expended. 2 R. S. 928. lo Appoint Special Commissionera of Highways. 4. To appoint special commissioners to lay out public highways in those cases where they shall be satisfied that the road applied for is important, and that the authority now conferred by law upon commissioners of highways cannot or will not be exercised to accomplish the laying out of such road. See Laws of 1848, chap. 164, § 1 ; 2 R- S. 928. Momeyfor Roads and Bridges. 5. To cause to be levied, collected and paid, in the manner now provided by law, such sum of money, in addition to the sum now allowed by law, not exceed- ing five hundred dollars in any one year, as a majority of the qualified voters of any town may at any legal town meeting have voted to be raised upon their town, for constructing or repairing roads and bridges in such town. See Laws of 1349, chap. 194, § 4, subd. 9; Laws of 1869, chap. 855, S 1; Laws of 1875, chap. 482. § 1, subd. 6 and 29. See Roads and Bridges, chap. XIV, post. Notice to he Put Up. § 2. No moneys shall be raised under the authority conferred by the fifth sub- division of the preceding section, unless a written notice of the application to such town meeting to raise such amount shall be posted on the door of the house where the town meeting is to be held and also at three public places in such town for two weeks before the town meeting, and be also openly read to the electors present, immediately after the opening of the meeting. 2 R. J. 928. Powers and Duties of the Boakd. 467 Notice to he Published. % 3. All persons intending to apply to any board of supervisors for the impos- ing any tax pursuant to the first section of this act, except in cases under the fifth subdivision of that section, shall cause a notice of such application to be published once in each- week for four successive weeks immediately preceding the meeting of the board of supervisors at which such application shall be made, in a news- paper printed in such county; but if no newspaper be printed in the county, then such notice shall be published, in like manner, in some public newspaper printed nearest thereto. Id. Special Commissioners to he Paid. % 4. The supervisors shall have power to provide for the payment to the special commissioners to be appointed under the fourth subdivision of the first section of this act, for their time and expenses The decisions made by said commissioners may be appealed from, and reviewed in the same manner and with like authority as is allowed by law in the cases of roads laid out by the commissioners of high- ways of any town. The roads so to be laid out by such special commissioners, or the same as settled on appeal, shall be recorded, opened and worked as public highways of the towns in which they are respectively situated in the same manner as other highways of the town are now required by law to be recorded, opened and worked. Id. 929. Special Meetings of Boa/rd. § 5. Special meetings of the board of supervisors of any county may be called by the clerk of the board at any time, on the written request of a majority of the supervisors of the county. Id. Decisions Under I services during the sessions of 484 SuPERYisoBs' Manual. the board besides mileage now allowed by-law; but such supervisor shall not be entitled to receive any other compensation whatever, except as the same is spe- cially provided for by law. Id. See "Poor, Support of," post. J) or pay ot supervisors, see Laws of 1875, chap. 482, § 8 ; as to auditing accounts of superintendents of the poor, see Laws of 1886, chap. 355. On Written Application of Town Officers, Queens County Board of Supervisors may Autlioi-ize Supervisor of Town to Borroio Money to Lay Out, etc. , Roads — Tax to lie Imposed to Pay Principal and Interest as it Falls Due — Proceedings to Pur- chase Toll Roads, etc. — Notice to be Published. % 9. The board of supervisors of Queens county, in addition to the powers con- ferred by the first section of this act, shall have power, at any meeting of which notice is given as hereinafter provided, to authorize the supervisors of any town or towns in such county, on written applications of the supervisor, town clerlt, justices of the peace and commissioners of highways, or a majority of them, of such town, or if more than one town is affected thereby, then of said officers, or a majority of them, of each of such towns, to borrow such sum of money for and on the credit of such town or towns as the said town officers may deem necessary to lay out, build, widen, grade, macadamize or repair any road or roads, or to pur- chase, for public use, any plankroad, turnpilie or toll road or toll bridge in such town or towns, or to pay any existing debt incurred in good faith by or on behalf of such town, for such purpose before the passage of this act; and the said board of supervisors shall have power to prescribe the form of obligation to be issued on any such loan, and the time and place of payment, the time not to exceed ten years from date of such obligation, and the rate of interest thereon not exceeding seven per cent per annum. And the said board of supervisors shall have power, and it shall be their duty from time to time, as the said obligations shall become due and payable, to impose npon the taxable property of such town sufficient tax to pay the said principal and interest of such obligations according to the terms and conditions thereof. In case the bridge or road so laid out, built, widened, graded, macadamized or repaired shall ba situated in two or more towns in said county, then the said board of supervisors shall have the power to apportion the expense thereof among- such towns in such proportions as may be just. If in the case of the building, widening or improving any road, or of the purchase for public use of any toll road or toll bridge, the supervisors of the town or towns in which such road is located shall not be able to agree with the owners of the land required for such improvement or of such toll road or toll bridge, as to the price to be paid there- for, then the board of supervisors of the county shall have power to apply to the supreme court of the judicial district in which said county is situated, for the appointment of three commissioners to appraise and determine the value of the land so required, or of such toll road or toll bridge. Such application and appoint- ment shall be made as in proceedings by railroad corporations to acquire title to real estate under existing statute, and the commissioners so appointed shall act and make report, and the owners of such lands or roads or bridges shall have similar right of appeal, and all incidental proceedings shall be conducted as in such railroad proceeding. When the value of said lands or roads or bridges shall in such manner have been finally determined, the said lands or roads or bridges shall vest in the town or towns in which they are respectively located, upon payment by said town or towns of said determined value, to the owners thereof, within six months after such final determination. Upon receiving the written application of town officers hereinbefore mentioned, the said board of supervisors shall publish a notice in every newspaper published in the town or towns affected by such appli- cation, which notice shall contain a copy of such application and shall name a. time and place when and where said board will meet to consider such application. Added by Laws of 1872, chap. 285. When Consent of Trustees Micst be Obtained. § 10. In case the road or roads, or bridge or bridges, referred to in the first sec- tion of this act shall be wholly or partly within the limits of any incorporated PowEES AND Duties of the Boaed. 485 village, the consent of a majority of the trustees of such, village shall be necessary for the action af supervisors of towns under said seotioTi, in a'iflitinn to the con- sent of the commissioner or commissioners of highways, town clerk and justices of the peace of such town. Added by Laws of 1873, chap. 323 ; 2 R. S, 940. Decisions, Undei:* Laws of 1869, Chapter 855. Under Section 1. Under section one of the act extending the power of boards of supervisors, which confers power on said boards, with the consent of certain town of- ficers, to authorize the borrowing of money on the credit of a town for the build- ing and repair of roads and bridges, it is not essential that the town oiflcers named should meet for the purpose of determining the amount to be borrowed, on the lirst Monday of September; the provision of said section requiring a meeting on that day in each year is directory merely, and it is sufficient, if a meeting is held prior to the first Monday of October. The provision of said section authorizing the board of supervisors to prescribe the form of obligation to be issued for the loan, includes the naming of the town officer who is to execute the obligation, and they may impose this duty upon the supervisor of the town. Where tho specified officers of a town have laet within the time limited by the section and have determined tne amount to be borrowed, and the board of super- visors have conferred the requisite authority to issue bonds of the town for the amount, no subsequent meeting of said officers is necessary for the purpose of authorizing or consenting to such issue. Where a supervisor of a town is required by the board to execute the bonds, it is no excuse for a refusal, that the certificate of consent required by said section to be indorsed by the town clerk upon the bonds is not indue form; a proper certificate can be added as well after as before the execution, and it is the duty of the supervisor to see that any error is rectified. Section 3 of said act provides for a different and distinct class of cases from those provided for in section 1; and a supervisor of a town required to issue bonds, under and in pursuance of section 1, is not justified in refusing so to do because two-thirds of the members of the board ot supervisors did not assent to the resolution authorizing the loan and directing suon issue, or because it did not receive his affirmative vote, as required in cases included in section 3. People, exrel. Atltinson etaL. — Each surrogate may appoint, and at pleasure remove, as many clerks for his offic§, to be paid by the county, as the board of supervisors of his county authorize him so to appoint. The board of supervisors must fix the compensation of the clerk or clerks so appointed ; and may authorize them, or either of them, to receive, for their or his own use, the legal fees for making copies of any record or paper in the oifice of the surrogate. A surrogate may appoint, and at pleasure remove, as many additional clerks, to he paid by him, as he thinks proper. Code CiT. Pro., § 2508. § 663. Examiner of Guardians' Accounts.— The surrogate is required in February of each year to examine, or cause to be examined, all inventories and accounts of guardians filed since February first of the preceding year. When the surrogate seasonably certifies in writing to the board of supervisors, or in New York county, to the board of aldermen, that the examination required by this section cannot be made by him, or the clerk of the surro- gate's court, or by any clerk employed in his office and paid by the county, the board must provide for the compe^nsation of a suitable person to make the examination. Id., § 2844. § 664. Local Officers to Discharge Duties of Surrogate and County Judges.— The legislature may, on the application of the board of supervisors, provide for the elec- tion of local officers, not to exceed two in any county, to discharge the duties of county judge and of surrogate, in case of their ina- bility, or of a vacancy, and to exercise such other powers in special cases as may be provided by law. Coust., art. 6, § 16. §665. County Judge to be Surrogate.— The county judge shall also be surrogate of his county; but in counties having a population exceeding forty thousand the legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be the same as that of the county judge. Id., §15. § 666. May Provide for Election of Surro- gates.— In s5l cases where any county (except New York and 72 570 SuPEKTisoBs' Manual. Kings) shall have a population exceeding forty thonsand, the board of supervisors therein, at any meeting of such board, special or regu- lar, called in the usual form, may, by resolution thereof, provide for the election, at the following general election, of an officer other than the county judge, wlio shall perform the duties of surrogate therein. Laws of 1871, chap. 859, § 3; 1 R. S. 41S. Such resolution shall be immediately delivered by the clerk of the board of supervisors to the county clerk, whose duty it shall be to file the same in his office, and keep the same, as part of the records thereof. A certified copy of such resolution is also to be filed and kept in the office of the secretary of State. Id., s i. Resolutions as to Vacancies in Offices of County Judg-e and Surrogate, and Abolish- ing* Office of Surrogate. — Whenever the office of county judge shall be vacant in a county having a population exceeding forty thousand, the board of supervisors of that county, if there be a separate officer to perform the duties of the office of surrogate in said county, may resolve that there shall be no such officer in said county ; and thereupon the office of such officer shall be deemed vacant and abolished from the time the office of county judge shall be filled ; and if there be no such officer, such board may resolve that there shall be such officer in snch county ; in which case such officer shall be elected at the time and in the manner, in all respects, that the county judge in said county shall be elected. Id., 9 6; 1 R. S. 413,414. The salary of the county judge is to be fixed by the legislature. Eealy v. Dudley, 5 Lans. 115. So is that of the surrogate. Spring T. Wait, 22 Hun, 442. Section 15 of the new judiciary article (article 6) of the Constitution, in provid- ing that the salaries of county judges "shall be established by law," confines the power of fixing such salaries to the legislature. And held, that the statute conferring power on boards of supervisors to estal)- lish such sijaries is unconstitutional and void. Heyley v. Dudley, 5 Lans. 115. Under the provisions of the State Constitution, in reference to the ofiBce of sur- rogate (Art. 6, § 15), and the statute of 1871 (chap. 859, Laws of 1871, as amended by chap. 613, Laws of 1881), when a vacancy occurs in that office, outside of the counties of New York and Kings, caused by the death of the incumbent, which, under the Constitution, is to be filled by an election at the next general election, the election must be for a full term of six years, beginning on the first day of January after the election, not merely for the unexpired term of the deceased Board of Sttpervisors — Miscellaneous Duties. ' 571 surrogate. It was competent for the legislature to provide, as it did by the said act of 1871 (§ 5), that the person so elected to fill a vacancy shall enter upon th& discharge of the duties of the office Immediately. The constitutional term is not thereby enlarged, but begins on the first day of January after the election, and the provision simply furnishes a mode of filling the vacancy up to that time. People, ex rel., v. Townsend, 102 N, Y. 430. § 667. Appointment by Supervisors.— In any county except New York or Kings, if the surrogate is disabled, by reason of sickness, absence or lunacy, or the office of surrogate be- comes vacant before the expiration of a full term, and there is no special surrogate or special county judge of the same county who i& competent and able to act as surrogate, the board of supervisors may, in its discretion, appoint a suitable person to act as surrogate, until the surrogate's disability ceases, or his term of office expires, if tlie disability continues until then, or until a special surrogate or a special county judge is elected or appointed. A person so appointed must, before entering upon the execution of the duties of his office,, take and file an oath of office, and give an official bond, as prescribed by law, with respect to a person elected to the office of surrogate. Code Civ. Pro., S 2i92. For Kings county, see chap. 490, Laws of 1884; for New York county, see chap.. 30, Laws of 1884. § 668. His Compensation. — An officer or a person ap- pointed by the board of supervisors, who acts as surrogate of any county during a vacancy in the office, or in consequence of disability, as prescribed in the last section, must be paid for the time during which he so acts a compensation equal pro rata to the salary of the sun-ogate; or, in a county where the county judge is also 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 surro- gate, or of the county judge, as the case may be. Where an officer of the county performs the duties of the surrogate, with respect to a particular matter wherein the surrogate is disqualified or precluded from acting, the supervisors of the county must allow him a just compensation for his services therein, to be audited and collected iit the same manner. Id., § 2493. Report by, to Supervisors. — The surrogate of each county, except New York, must, at his own expense, make a report to the board of supersvisors of the county on the first day of each annual meeting thereof, containing a statement, verified by Iiis 573 SuPERvisoKS' Manual. oath, of all fees received or charged by him for services or expenses, ^ince the last report, and of all disbursements chargeable against the same or the county, stating particularly each item thereof. Id., § 2501 . § 669. Court-Room, Furniture, etc. — Except where other provision is made therefor by law the board of super- visors must provide each court of record, appointed to be held therein, with proper and convenient rooms and furniture, together with attendants, fuel, lights and stationery, suitable and sufficient for the transaction of its business. If the supervisors neglect so to do, the court may order the sheriff to make the requisite pro- vision ; and the expense incurred by him in carrying the order into effect, when certified by the court, is a county charge. Code of Civil Procedure, § 31. The board of supervisors of M. county provided a, proper and convenient room and furniture for the use of the surrogate at F., and refused to provide one at A., when requested so to do by the surrogate. Thereupon the latter made an order establishing the office at A., and directed the sheriff to furnish a suitable office and furniture therefor at A. Upon an application to compel the board to pay the rent and expenses thereby incurred, TielA, that as the board had provided a proner office and furniture therefor, it could not be compelled to pay for any other, People, exrel. Westbrook, v. Supervisors, 34 Hun, 599. Books Required to be Kept by Surrogate, County Charg'e. — Each surrogate must provide and keep the following books ; 1. A record-book of wills, in which must be recorded, at length, every will, required by law to be recorded in his office, with the de- cree admitting it to probate, and also, if the probate is not contested, the proof taken thereupon. 3. A record-book of letters testamentary and letters of adminis- tration, in which must be recorded all sucli letters issued out of his court. 3. A record-book in wliich must be recorded every decree, whereby the account of an executor, administrator, trustee or guardian is settled. 4. A book, containing a minute of every paper filed, or other pro- ceeding taken, relating to the disposition of the real property of a decedent and a record of every order or decree made thereupon ; ■with a memorandum of every report made and other proceeding taken, founded upon a decree for such a disposition. 5. A book, containing a record of every decree or order, the record of which is not required by this section to be kept elsewhere ; together with a memorandum of each execution issued and of the satisfaction of each decree recorded therein. 6. A book, in which must be recorded all letters of guardianship issued out of his court. BoAKD OF Supervisors — Miscellaneous Duties. 573" 7. A book of fees and disbursements in which must be entered by items, all fees charged or received by him for services or expenses, and all disbursements made or incurred by him, which are chargeable against those fees or to the county. The expense of providing the books specified in this section is a county charge. Code Ci7. Pro., §2498. He may keep two or more books for a further division of the subjects specified in either subdivision of the last section. Id., part of § 2489. RELATIVE TO THE SHEEIFF. § 670. Sheriff, Jails, Etc.— Custody of Jails. — The sheriff of the city and county of New Tork shall have the custody of the jail in that city, used for the confinement of persons committed on civil process only, and of the prisoners in the same ;■ and the sheriff of every other city and county of this State shall have the custody of the jails and of the prisons thereof, and the prisoners in the same. And the sheriffs respectively may appoint keepers of such jails and prisons, for whose acts they shall severally be responsible. 2 R. S. 967, i T5. §671. Services for the State.— Whenever a sheriiBf shall be required by any statutory provision to perform any service in behalf of the people of this State, and for their benefit, which shall not he made chargeable ly law to his county, or to some oflBcer or person, his account for such services shall be audited by the comptroller and be paid out of the treasury. . Id., § Y6. § 672. County Charges, Accounts, Etc. See ante, "County Charges," §8 483, 501, 506, 507-8, and post, "Fees of Sheriff." § 673. Maintenance of Prisoners — Prisoners Confined on Civil Process.— The boards of supervisors of the counties of this State are hereby authorized and empowered to contract with the sheriff of said counties, or the jailer of the com- mon jail therein, for the support and maintenance of such persons as may be confined in such jail upon any writ, process or proceeding, as stated in the first section of this act, and such sheriff or 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 574 SuPEBvisoEs' Manual. support and maintenance was furnished, and the length of time each person was so supported. Laws of 1875, cbap. 251, § 2. King^s and Monroe Counties Excepted — Nothing in this act shall be construed as repealing the present pro. visions of law relating to the care, custody, support or maintenance of such prisoners in the counties of Kings and Monroe. Id., §3. On Criminal Process.— Prisoners detained for trial and those under sentence shall be provided with a sufficient quantity of inferior but wholesome food, at the expense of the county ; but prisoners detained for trial may, at their own expense, and under the direction of the keeper, be supplied with any other propei' articles of food. 3R. S. 2589, §8. § 674. Jails. — The building and repairing of the county jails are under the control of the board of supervisors, who are to cause to be levied, collected and paid, all such sums of money as they shall deem Tiecessary therefor. See ante, "General Statutes pertaining to their Powers and Duties." § 675. Solitary Cells. — They shall also cause to be pre- pared within the jails of their respective counties, or elsewhere, at the expense of such counties, so many solitary cells for the reception of convicts who may be sentenced to punishment therein as the court of common pleas of the county may direct. 2 R. S. 927, 1 14. § 676. Disinfectants for Jails.— The board of super- visors of the several counties in this State, for the penitentiaries and jails under their charge, are hereby authorized and directed to cause to be purchased disinfectants and the means of applying the same, at an expense not greater than the equivalent of one cent per day for the time the same may be used, for each and every cell in each and every prison, penitentiary and jail under their respective charge, and direct the application of the said disinfectants as often as, in the opinion of the physicians of the several prisons, penitentiaries and jails, respectively, the same may be deemed requisite. Law3 of 1868, chap. 599; 3 R. S. 2640. BoABD OF Supervisors — Miscellaneous Duties. 575 § Qfi. To Contain a Sufficient Number of Rooms.— Each county prison shall contain : 1. A sufficient number of rooms for the confinement of persons committed on criminal process and detained for trial, sepcvrate and distinct from prisoners under sentence. 2. A sufficient number of rooms for the conjmement of prisoners under sentence. 3. A suffixdent number of rooms for the separate confinement of persons committed on civil process, for contempt or as witnesses. 8 R. S. 2589, § 2. §678. Certain Prisoners to be Kept in Sep- arate Rooms. — Prisoners committed on criminal process and detained for trial, and persons committed for contempts, or upon civil process, shall be kept in rooms sepa/rate and distinct from those in which persons convicted and under sentence shall be confined, and on no pretense whatever^ shall prisoners be detained for trial, or per- sons committed for contempt, or upon civil process, be kept or put in the same room with convicts imder sentence. Id., § 4. Male and female prisoners (except husband and wife) shall not be kept or put in the same room. Id., § 5. § 679. To be Employed at Hard Labor.— It shall be the duty of the keeper of each county prison to cause each prisoner under sentence, except such as are under sentence of death, to be constantly employed at hard labor when practicable, during every day except Sunday, and it shall be the duty of the county judge, or the inspectors appointed by him, to prescribe the kind oi 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. Id., 8 9; see Laws of 1884, chap. 21 . Convicts May be Employed on Hig^hTrays, Etc. — The keepers of said prison shall, respectively, have power, with the consent of the supervisors of the county, from time to time, to cause such of the convicts under their charge, as are capable of hard labor, to be employed upon any of the public avenues, highways, streets or other works, in the county in which such prisoners shall be confined, or in any of the adjoining counties. 576 StJPEEVisoRs' Manual. upon such terms as may be agreed upon between said keepers and the officers or other persons under whose direction such convicts shall be placed. Id., § 10. But see Laws of 1884, chap. 21, just below. The superintendent of State prisons shall not, nor shall any other authority whatsoever, renew or extend any existing or pending con- tract, or make any new contract for the employment of any convicts in any of the prisons, penitentiaries or reformatories within this State. Laws of 1884, chap . 21 . § 680. Houses of Detention.— The Laws of 1875, chapter 464, also provide : " Section 1. The boards of supervisors of each of the connties in this State, except in the county of Kings and city and county of New York, are hereby authorized and empowered to procure, by lease or purchase, a suitable place or places other than common jails, for the safe and proper keeping, and care and keep of women and children charged with offenses and held for trial, and all persons detained as witnesses; such places to be termed houses of detention. " 8 R. S. 2542. '' The sheriff is to have charge and control thereof, and entitled to collect from the county the same fees and compensation for care and board of said persons as are now allowed by law for the care and board of prisoners confined in the com- mon jail. Id., § 4. § 681. Penitentiaries— Agreement for Keep- ing' Prisoners in Penitentiary.— 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 confine- ment therein, by any court or magistrate, in any of the said several counties in the State, for any term not less than sixty days. When- ever such agreement shall have been made, it shall be the duty of the said several boards of supervisors of the several counties afore- said to give pubhc 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. Laws of 1859, chap. 289, aa amcDded by Laws of 1874, chap. 209 ; 8 B. S. 2632. Board op Supervisoes — Miscellaneous Duties. 577 It was made the duty of courts, police justices, justices of the peace, or other magistrates, by whom any person may be sentenced in the several counties of this State, for any term not less than sixty days, during the continuance of the agreement mentioned in the first section of this act, to sentence prisoners for any crime or misde- meanor, not punishable by imprisonment in the State prison, to such penitentiary. Id., s 2. § 682. Itshallbedutyof the sheriffs, deputy sheriffs, constables or policemen in and for the several counties of this State, to whom any war- rant of commitment, for that purpose, may be directed by any court or magistrate in this act mentioned, to convey forthwith such person, so sentenced, to the penitentiary referred to in the second section of this act, and there deliver such person to the keeper of such penitentiary, whose duty it shall be to receive such persons so sentenced, during the continuance of said agreement, authorized by the first section of this act, to be there safely kept and employed according to the rules •and discipline of such penitentiary ; and the officers thus conveying such convicts so sentenced shall be paid such fees and expenses there- for as the several boards of supervisors of the several counties of this State shall prescribe and allow. Id., § 3, as amended by chap. 108, Laws of 1876. Under Laws 1847, chap. 455, sec. 26, providing tbat all fees of officers in crinii- nal proceedings shall be paid by the several towns or cities where the offense shall have been committed, except in case of felonies or proceedings in any court of oyer and terminer or court of sessions of the county, a constable's fees for con- veying persons convicted in the special sessions of Yonkeraof misdemeanors com- mitted in that city to Albany penitentiary are chargeable against the city of Yon- kers and not against the county of Westchester. People, exrel., v. Board of Supervisors, 6 N. Y. Sup. 153. See ante, § 460. Held, that the act of 1874 (Laws of 1874, chap. 209) is constitutional and valid which authorizes boards of supervisors to agree with any county having a peni- tentiary therein, to receive into and keep any per.son sentenced to confinement for a term not less than sixty days, and making it the duty of every court, in a county so agreeing, to sentence to such penitentiary any person convicted of an offense not punishable with imprisonment in a State prison, who is sentenced for a term not less than that specified. Brown r. The People, 75 N. Y, 437. The provisions of " the act to reduce the number of town officers " (chap. 180, Laws of 1845, § 36, as amended by chap. 455, Laws of 1847, § 13), providing for the payment of the fees of magistrates and other officers for certain criminal proceedings by the towns or cities where the offense was committed (see § 460, ante), "does not embrace the fees of a sheriff, as jailer, or otherwise. It was intended only to apply to the fees of local officers in preliminary criminal proceedings in cases under the grade of felony; not to afliact the liability of a county for services of county officers after commitment, either for trial or upon sentence." 73 578 SupEKvisoEs' Manual. The accoants of a sheriff for receiving prisoneiB into and discharging them from jail and for their board while confined therein, are properly county charges. People, exrel. Van Tassel, v. Supervisors, 67 N. T. 830. The accounts of a sheriff for receiving prisoners into and discharging them from jail, and for their board while confined therein, are proper county charges. (Laws of 1847, chap. 460, § 8, tit. 1, art. 1 ; 1 R. S. 385, § 3.) The liability of a county extends not only to such official services in cases strictly criminal, but in- eludes also quaii criminal oifenses, such as violations of city ordinances, the only distinction being that, in the latter cases, instead of the statutory fee, the board of supervisors have power to fix the compensation. Accordingly held, that the granting of a writ of mandamua was proper to com- pel a board of supervisors to audit the accounts of the county sheriff as jailer, for receiving, discharging and boarding prisoners committed by the officers of a city for misdemeanor and violations of city ordinances. Id. ; Russ V. Board of Supervisors, 38 UuD, 22. It is not essential to the validity of a sentence to imprisonment in a county penitentiary, under the statute authorizing such imprisonment (chap. 209, Laws of 1874, as amended by chap. 108, Laws of 1876), that it shall etate that the pris- oner is "to be received, kept and employed in the manner prescribed by law and the rules of the penitentiary," That provision of the statute is no part of the sentence, but is simply directory to the keeper of the penitentiary. People, exrel., v. Sadler, 97 N. T. 146. § 683. Expenses, -when a State Cbarg^e.- Whenever any person shall be convicted of an offense punishable witli imprisonment in the State prison, in either of the judicial districts of the State having a county penitentiary within said judicial district, and such person so convicted shall be sentenced to imprisonment for a term not exceeding three years, the court before which such con- viction shall be had may, in its discretion, sentence the prisoner so con- victed to be imprisoned in the county penitentiary situated within that judicial district instead of a State prison. Laws of 1875, chap. 671 ; 8 B. S. 2644. The expenses of removing such convict to and maintaining at said penitentiary are a State charge. Id., § 2. A similar law exists for female convicts convicted of crimes pun- ishable by imprisonment in a State prison. Laws of 1877, chap. 172; 3 R. S. 2646. 684. Jail Physicians The board of supervisorsof 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 ap- point a physician to each. He holds his office at the pleasure of the board, except in Kings county where his term of office is three years. Code of Civ. Pro., { 126. BOAKD OF StJPEBVISORS — MlSCELLAJIEOITS DUTIBS. 579 WEIGHTS AND MEASURES. §685, State Superintendent. — A superintendent of weights and measures for this State, who shall be a scientific man, of sufficient learning and mechanical tact to perforin the duties of his office, shall be appointed by the governor, lieutenant-governor and secretary of State, or any two of tliem, at a meeting called for this purpose by the secretary of State, and shall hold his office during their pleasure. Chap. 134, Laws of 1851, § 16. His Duties. — It shall be the duty of the superintendent to take charge of the standards adopted by this act as the standards of the State ; to see that they are deposited in a fire-proof building belonging to the State from which they shall in no case be removed, and to take all other necessary precautions for their safe-keeping. It shall also be his duty to correct the standards of the several cities and counties, and provide them with such standards, balances and other means of adjustment, as may be necessary ; and as often as once in ten years, to compare the same with those in his possession ; he shall, moreover, have general supervision of the weights and measures of the State. Id., § ir. § 686. All Counties to be Supplied ; Expenses. — That for the better enabling the State superintendent of weights and measures to carry into effect that clause of the seventeenth section ante) "which requires that the said superintendent shall pro- vide the several counties of the State with such standards and bal- ances as may be necessary," he is hereby authorized to contract with such manufacturers as he may select for their abihty and experience, for the making and furnishing so many sets of weights and measures and such and so many balances as shall be necessary to supply those counties that are not yet provided with a proper and efficient set of standard weights and measures and balances to meet the requirements of the said act in relation to weights and measures, as specified more particularly in the twenty-first section of the same, together with one additional set of such standards, to remain on deposit in the office of the said State superintendent, as a model whereupon to construct new standards for such counties as may be hereafter erected within this State. The said standard shall be fabricated and manufactured of such materials, denorainatioos and fashion of workmanship as 580 SuPEEvisoEs' Manual. shall be directed by the said superintendent and conformed by the manafactnrers as nearly as practicable to the standard established by the United States government. The cost and expenses of the said standards shall be paid by the treasurer of the State, on the warrant of the comptroller, based upon the certificate of said superintendent, stating that the said sets of weights, measures and balances have been delivered into his possession and have been examined and ap- proved by him ; provided as an essential condition, that the said standards are obtainable at such rates as shall be deemed just and reasonable by the superintendent. Chap. 326, Laws of 1854, § 1. § 687. Examination and Distribution.— On re- ceiving the aforesaid weights, measures and balances, the State super- intendent of weights and measures shall forthwith pi'oceed to examine the balances and compare each set of weights and measures with and conform the same as exactly as possiblcto the State standard weights and measures in his possession ; and shall thereupon forward one set of such standard weights and measures, together with the requisite balances, to the county clerk or county sealer of each county in the State not already supplied with the same, for the use of the county sealer of such county, as specified in the twenty-first section of the act to which this is an addition (see below, § 690), the cost of transpor- tation to be defrayed out of such county treasury respectively, and the fees and expenses of the State superintendent for verification and sealing to be paid by the county treasurers to the said superintendent, on his order. Id., §2. § 688. Prime Cost to be Charged to the County. — In order to indemnify the State treasurer for the ex- penses incurred under the first section of this act, the prime cost of each set of standards shall be charged to the county to which the same is assigned, and shall remain to the debit of said county until fully repaid, but without interest for one year after the date of the delivery of such set of standards ; and the board of supervisors of every such county at their first annual meeting after the reception of such set of standards, shall provide the means to meet the ex- penses and charges incident thereto, and shall authorize the county treasurer to pay into the treasury of the State the prime cost of such standards, together with the interest accruing upon the same from one year after the reception of such standards. Id., § 8. Board oe Supervisors — Miscellaneous Duties. 581 § 689< County Sealex*. — The board of supervisors of each county shall, at their annual meeting, appoint a county sealer of weights and measures, who shall hold his office during the pleas- ure of the board. Chap. 134, Laws of 1851, § 20. § 690> His Duty. — It shall be the duty of the county sealer to take charge of the county standards and standard balances, and provide for the safe keeping; to provide the town with such standard weights and measures and standard balances as may be wanting, and to compare the town standards with those in his possession as often as once in every five years. In case any town shall fail to procure or obtain l;he proper standards of weights and measures for said town, or in case there be no sealer of weights and measures in said town, then in such case it shall be the duty of the county sealer, in the county where such town is situated, to act in said town, aiad perform the duties of a town sealer in such town, and shall be entitled to the fees as is al- lowed by section 27 of said act; and also may perform and execute the duties of town sealer in such towns, and for such times as said towns may not have therein a qualified town sealer, or may not have the requisite standard of weights and measures therein, and shall re- ceive for such services the same fees as are allowed to town sealers for similar services. Id., § 21, as amended by chap. 77, Laws of 1863, and chap. 666, Laws of 1865. § 691. Tcwn SeSrlei*. — A town sealer of weights and measures shall be appointed by the supervisor and justices of the peace of the town, and shall hold his office during their pleasure. Id., S 22. § 692. His Duty. — It shall be the duty of the town sealer to take charge and provide for the safe-keeping of the town stand- ards, and to see that the weights, measures and all apparatus used for determining the quantity of commodities used throughout the town, which shall be brought to him for thai purpose, agree with those standards in his possession. Id., §23. § 693. Copies of Standards for Counties.— The supervisors of each county shall, at their first annual meeting after the passage of this act, provide for procuring the proper standards of weights and measures for their respective counties, and for each 583 Supervisors' Manual. of the towns therein ; and all expenses directly incurred in f urDish- ing the several cities, counties and towns with standards, or in com. paring and adjusting those already in their possession, shall be borne by the respective cities, counties and towns for which such expenses shall have been incurred. Id., §24. Modification of tb.e Above.— So much of the twenty- fourth section of the act * * * of 1851 (§ 693, cmte), " as requires the supervisors of each county to provide for procuring a set of county standards, is modified by the preceding third section of this act" (§ 688, ante)," so far as respects the several counties that have not acted under said twenty-fourth section; but the remainder of the sec- tion shall remain in full force, to the effect that the supervisors of each county shall, soon after the passage of this act, provide for procuring the proper standard weights, measures and balances for each of the towns in said county, at the expense of such towns respectively." Chap. 826, Laws of 1854, § 4. § 694. Devices for Weig'b.ts and Measures.— The State superintendent of. weights and measures shall see that there are impressed on all the city and county standards the emblem of the United States, the letters " N. Y.," and such other device as he shall direct for the particular county ; and the county sealers shall see that, in addition to the above device, there is impressed on the town standards such other device as the board of supervisors shall direct for the several towns. Chap. 134, Laws of 1851, § 25. § 695. Weights and Measures to be Marked* — Whenever the several sealers of the cities, counties and towns shall compare weights and measures, and find or make them to cor- respond with the standards in their possession, they shall seal and mark such weights and measures with the appropriate devices. Id.,S26. § 696. Fees. — Each sealer shall be entitled to receive for his services at and after the following rates : For sealing and marking every beam, ten cents. For sealing and marking measures of extension, at the rate of ten cents per yard, not to exceed fifty cents for any one measure. Eor sealing and marking every weight, five cents. BoAKD OF Supervisors — Miscellaneous Duties. 583 For sealing and marking liquid and dry measures, ten cents for each measure. He shall also be entitled to a reasonable compensa- tion for making weights and measures conform to the standards in his possession. Id., §2T. § 697. In Case ofVacancies, Standards to be Delivered to Successors in Office.— « « ^ When any city, county or town sealer shall resign, be removed from oflSce or remove from the city, county or town in which he shall have been appointed or elected, it shall be the duty of the person so resigning, remqved or removing, to deliver to his successor in office all the standard beams, weights and measures in his possession. Id., §28. § 698. Id., in Case of Death.— In case of the death of any such sealer of weights and measures, his representative shall in like manner deliver to his successor in oifice such beams, weights and measures. Id., §29. § 699. Penalty for Refusal.— In case of refusal or neglect to deliver such standards, entire and complete, the successor in office may maintain an action against the person or persons so refusing or neglecting, and recover double the value of such stand- ards as shall not have been delivered. And in every such action in which judgment shall be rendered for the plaintifE he shall recover double costs. Id., §30. § 700. Damagres, ho^r Disposed of.— One-half of the damages in every such action shall be retained by the person so recovering, and the other shall be applied to the purchase of such standards as may be required in his office. Id., §81. § 701. Usin^ False Weig^hts, Measures, etc.— A person who injures or defrauds another by using, with knowledge that the same is false, a false weight, measure or other apparatus, for determining the quantity of any commodity or article of mer- chandise, or by knowingly delivering less than the quantity he rep- resents, is guilty of a misdemeanor. Penal Code, 8580. 584 SuPEKVisoEs' Manual. § 702. Keeping False Weig-lltS.— A person who re- tains in his possession any weight or measure, knowing it to be false, unless it appears beyond a reasonable doubt that it was so retained without intent to use it, or permit it to be used in violation of the last section, is guilty of a misdemeanor. Id., §581. § 703. False Weights and Measures Author- ized to toe Seized. — A person who is authorized or enjoined by law to arrest another person for violation of the last two sections, is equally authorized and enjoined to seize any false weights or measures found in the possession of the person so arrested, and to deliver the same to the magistrate before whom the person so arrested is required to be taken. Id., § 582. § 704. May be Tested by Committing Magis- trate, and Destroyed or Delivered to District Attorney. — The magistrate to whom any weight or measure is delivered, pursuant to the last section, must, upon the examination of the defendant, or if the examination is delayed or prevented, without awaiting such examination, cause the same to be tested by compari- son with standards conformable to law ; and if he finds it to be false, he must cause it to be destroyed, or to be delivered to the dis. trict attorney of the county in which the defendant is liable to in- dictment or trial, as the interests of justice in his judgment re- quire. Id., § 583. § 705. Shall be Destroyed after Conviction of OflTender. — Upon the conviction of the defendant, the dis- trict attorney must cause any weight or measure, in respect whereof the defendant stands convicted, and which remains in the possession or under the control of the district attorney, to be destroyed. In., § 584. §. 706. Stamping False Weights or Tare on Casks or Packages. — A person who knowingly marks or stamps false or short weights, or false tare on any cask or package, or knowingly sells or offers for sale any cask or package so marked, is guilty of a misdemeanor. Id., § 585. It is the practice in many towns to eleet town sealers of weights and measures in the same manner as other town officers are elected. Sealers so elected acquire Board of Supbrvisobs — Miscellaneous Duties. 585 DO authority for the discharge of such duties, and none can be acquired except by appointment as herein provided. No authority exists for county or town sealers to visit, uninvited, the business dealers and examine or compare the apparatus used by them in determining quantities furnished by such dealers, and these officers are empowered to exam- ine and compare the weights and measures only which are " brought to them for this purpose." SUPPORT OF THE POOR. § 707. Supervisors May Erect Poor-House. — The board of supervisors of any county in this State in which a county poor-house is not already erected may, at any annual or special meeting thereof, determine to erect such house for the reception of the poor of their county ; and upon filing such deter- mination with the clerk of the county they may direct the superin- tendents of the poor of such county to purchase one or more tracts of land not exceeding two hundred acres and to erect thereon one or more suitable buildings for the purpose aforesaid. To defray the expenses of such purchase and buildings, the said board may raise by tax on the real and personal estate of the inhabitants of the same county, a sum not exceeding $7,000, by such installments and at such times as they may judge expedient. The said tax shall be raised, assessed and collected in the same manner as the other county charges, and shall be paid by the county treasurer to the superin- tendents of the poor of the county, to be applied in defraying the expenses aforesaid. 3R. s. 1856, §ir. See Decisions, § 716, post. The board of supervisors have power to purchase, for the use of their county, any real estate necessary to the erection of public buildings and for the support of the poor of such county, and to locate the site of buildings when they are not already located. Laws of 1849, chap. 194; see, also, Laws of 1875, chap. 482, § 1, subd. 1. § 708. Supervisors to Determine Number of Superintendents.— It shall be lawful, hereafter, for the board of supervisors in any county at any annual meeting of such board, to direct, by resolution, that thereafter only one county superintendent of the poor shall be elected in and for such countv, who shall hold his office for three years, but in all counties where no such resolution shall have been passed, three county superintend- ents of the poor shall be elected. And after the board of super- 74 586 Supervisors' Manual. visors of any county shall have, by resolution, directed that only one superintendent of the poor shall be elected in and for such county, the said board may, at any annual meeting thereof, revoke such resolution, and may, by resolution, direct that thereafter three superintendents of the poor shall be elected in and for such county. The superintendent of the poor who shall be in ofSce at the time of the adoption of the resolution hereby authorized shall hold his office (subject to all provisions of law) until the expiration of the terra of office for which he was elected. If the term of office of such super- intendent will expire on the 31st day of December of the same year of the adoption of said resolution, then three superintendents of the poor for said county shall be elected at the next general election, whose term of office, respectively, shall be determined in accordance with the provisions of section 3 of said chapter 498. If the term of office of the superintendent of the poor in office at the time of the adoption of said resolution will not expire during the year of the adoption of said resolution, then, at the general election to be held next thereafter, there shall be elected two superintendents of the poor for said countj', and their term of office shall be determined ia accordance with the provisions of the Laws of 1847, chapter 498, section 3, but for such term that the terms of the three superintend- ents of the poor shall so expire that one of them shall be to be filled at each annual election thereafter. In any county where. such reso- lution has been already adopted, there shall be elected annually there- after, at the general election in each year, one county superintendent of the poor, who shall hold his office for three years. Laws of 1847, chap. 498, §1, as amended by Laws of 1862, chap. 298; 8R. S. 1878; not applicable to New York county . § 709. Who are not Eligible.— No supervisor is eli- gible to the office of superintendent of the poor, nor shall any su- perintendent of the poor be appointed to the office of keeper of the poor-house in any county in this State. Chap. 852, Laws of 1829, as amended by Laws of 1853, chap. 80. In some countieB, by special act, he may be appointed keeper, and in others the office of keeper is abolished. A supervisor is not merely ineligible to bold the office of superintendent of the poor, but he is ineligible to an election or appointment thereto. The People, «z rel. Furman, v. Clute, 50 N. T. 451. And where the charter of a city provides that supervisors of wards, elected thereunder, shall be subject to all the provisions applicable to supervisors in the towns, a supervisor of a ward of such city is brought within the provisions of the act of 1863, chapter 80, above referred to, and is ineligible to the office of the superintendent of the poor. Id. Board of Supervisors — Miscellaneous Duties. 587 § 710. Term of Office. — In counties where only one su- perintendent of the poor shall be chosen he shall hold his office for three years, but in counties where three are chosen, one of the said superintendents so elected shall hold his office for one year, one for two years and one for three years, and the clerk of the county shall, on the first day of January after such election, determine, by lot, which of said superintendents shall hold his office for one year, which for two, and which for three years, and annually thereafter, there shall be elected one superintendent, who shall hold his office for three years. Chap. 498, Laws of 1847, § 3. Not applicable to New York county. Term of Office w-hen only One Superintend- ent. — In any county in this State, in which the board of super- visors is authorized by law to direct by resolution that thereafter only one county superintebdent of the poor should or shall be elected in and for such county, and has so directed, or may hereafter sa direct, the person elected as superintendent of the poor of such county, at the election of such officer, next after the passage of such resolution, shall be and is superintendent of the poor of such county, to hold his office for three years from the first day of Janu- ary next after election ; and at the general election next preceding the expiration of his said term, and triennially thereafter, one super- intendent of the poor shall be elected in and for such county. Laws of 1854, chap. 188, §1. ' Unexpired Term of Others.— In any county having more than one superintendent of the poor in office at the time of the passage of such resolution, heretofore or hereafter, as specified in the preceding section, the passage of such resolution shall not be deemed to affect the then unexpired terms of such superintendents ; but the- place of those then having one or two years yet to serve, whenever vacated by death, resignation or expiration of their term, or other- wise, shall not be filled, either by appointment or election. Id., § 2. § 711. Vacancies, hO"W Filled.— Boards of supervis- ors shall appoint county superintendents of the poor to fill vacan- cies which may happen in such offices. Chap. 498, Laws of 1847, § 4. Not applicable to New York county. In People v. Comatock, 78 N. Y. 366, this statute was held to be constitutional. 588 Supervisors' Manual. The provision of the State Constitution (art 10, § 2) declaring that county offl- ceis, whose election or appointment is not provided for in the Constitution, Bhall be elected by the electors, or appointed by the board of supervisors of the county, as the legislature sliall direct, includes superintendents of the poor; and the power conferred upon the legislature embraces the power to fill vacancies in that office. Under the provisions of the statute of 1854, declaring that in counties wherein the boards of supervisors determine to have but one superintendent of the poor, he shall hold his office for three years, and providing for triennial elections thereto (Laws of 1847, chap. 498), authorizing boards of supervisors to fill va cancies in that office, where a vacancy occurs in a county whose board of super- visors have determined to have but one superintendent, said board may flU the vacancy by appointment for the unexpired term. People, ex ret. Hatfield, v. Comstock, IS N. Y. 858. Accordingly held, where the superintendent of the poor of Oneida county, who •was elected in 1876, was removed by the governor, and defendant was appointed in October, 1878, by the board of supervisors to fill the vacancy, that defendant's term did not expire until January 1, 1880, and that, therefore, the election of re- lator to that office at the annual election in 1878 was unauthorized. Id. 356. § 712, Pay of Superintendent.— The board of su- pervisors liave the power to fix the compensation to be paid to the superintendent of the poor. Chap. 482, Laws of 1875, %i, subd. 2. See law in full, § 559, ante. In Ulster county the salary is fixed by the legislature at $1,500, and no other fees, commissions or percentages shall be allowed. Chap. 355, Laws of 1879, as amended by chap. 231, Laws of 1884. § 713. To Give Bond.— Every person hereafter elected to the office of superintendent of the poor shall, within ten days after his election, give a bond to the supervisors, with two or more suf- ficient sureties to be approved by the board of supervisors, and in such sum as they shall direct, conditioned that such person shall faithfully execute the duties of his office, and shall pay according to law all money which shall come to his hands as superintendent of the poor, and render a just and true account thereof to the board of supervisors. Such bond, with the approbation of the board of supervisors in- dorsed thereon by their clerk, shall be filed in the office of the county clerk. Laws of 1848, chap. 327; 3 E. S. 1875. Not applicable to New York county. It shall be the duty of the board of supervisors of the several counties to fix the penalty of the bonds of superintendents of the poor, at their next annual session ; and the sureties may be approved by the county clerk in the recess of the board of supervisors. Laws of I860, chap, 12. Board of Supekvisors — Miscellaneous Duties. 589- Superintendents of the poor hereafter to be elected may have until the first day of January next after the election to take the oath of office and file their official bond. Id, § 714. Powers and Duties Of Superintendent. — They shall be a corporation by the name of the superintendents of the poor of the county for which they shall be appointed, and shall possess the usual powers of a corporation for public purposes ; they shall meet as often as the supervisors of the county shall direct, at the county poor-house, if there be one, or at the place of holdinp^ courts in their county, or at one of the places of holding courts, if there be more than one, and at such other times and places as they shall think expedient ; they shall have a general superintendence and care of the county poor who may be in their respective counties ; and shall have power, and it shall be tl^eir duty, 1. To provide suitable places for the keeping of such poor, when so directed by the supervisors of any county where houses for that purpose have not been erected by the county ; and for that purpose, to rent a tenement or tenements, and land not exceeding fifty acres,^ and to cause the poor of the county to be maintained in such places. 2. To establish and ordain prudential rules, regulations and by- laws, for the government and good order of such places so provided, and of the county poor-houses, and for the employment, rehef, management and government of the persons therein placed ; but such, rules and regulations shall not be valid until sanctioned by a ma- jority of the judges of the county courts of such county in writing. 3. To employ suitable persons to be keepers of such houses or places, and all necessary officers and servants, and to vest such powers in them for the government of such houses as shall be necessary, re- serving to the paupers who may be placed under the care of such keepers the right of appeal to the superintendents. 4. In the counties where a poor-house is erected, or other place- provided for the poor, to purchase the furniture, implements and ma- terials that shall be necessary, from time to time, for the maintenance of the poor therein, .and their employment in labor or manufactures, and to sell arid dispose of the proceeds of such labor as they shall deem ex-f>edient. 5. To prescribe the rate of allowance to be made to any persons for bringing paupers to the county poor-house or place provided for the poor, subject to such alterations as the board of supervisors may,, by a general resolution, make. 590 SuPBRvisoEs' Manual. 6. To authorize the keepers of such houses or places so provided, to certify the amount due to any person for bringing such paupers ; which amount shall be paid by the county treasurer, on the produc- tion of such certificate, countersigned and allowed by any two super- intendents. 7. To decide any dispute that shall arise concerning the settle- ment of any poor person, summarily, upon a hearing of the parties; and, for that purpose, to issue subpoenas to compel the attendance of witnesses, and to administer oaths to them in the same manner, with the like power to enforce such process as is given to justices of the peace in any matter cognizable by them ; 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. 8. To direct the commencement of suits by any overseers of the poor who shall be entitled to prosecute for any penalties or upon any recognizances, bonds or securities taken for the indemnity of any town or of the county ; and in case of the neglect of any such over- seer, to commence and conduct such suits, without the authority of such overseers, in their names. 9. To draw from time to time on the county treasurer for all necessary expenses incurred in the discharge of their duties, which drafts shall be paid by him out of the moneys placed in his hands for the support of the poor. 10. To render to the board of supervisors of their county, at their annual meeting, an account of all moneys received and expended by them, or under their direction, and of all their proceedings. 11. To pay over all moneys remaining in their hands within fif- teen days after the expiration of their oflSce, to the county treas- urer, or to their successors. 2R. S. 1855, §16. See Decisions under §§ 715-6. § 715. Further Po"wers.— The superintendents of the poor in the several counties in this State shall 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 or transportation of county paupers ; and shall from time to time draw on tiie county treasurer for the amount of the accounts which they shall so audit and settle. Laws of 1832, chap. 26, § 1 ; 3 R. S. 1870. BOAED OF SUPEEVISOES — MISCELLANEOUS DUTIES. 591 This latter act has been construed to mean that it has no reference to services per- formed by the servants and laborers who are employed at the county po6r-house. Hayes v. Symonds, 9 Barb. 268. Nor to services of an attorney in bastardy proceedings. Neary v. Superintendents, 98 N. Y. 81. Nor to contracts made by the superintendents, and so make them sit as judges upon questions relating to their own conduct, and their own corporate liability, t^ seems. Id. 84. See decisions after next section. Wbento Appoint Keeper and Physician.— In each county where there is inoref than one superintendent of the poor and where there is a poor-house, the superintendents shall appoint a keeper and physician for the poor-house. Chap. 532, Laws of 1851. n some counties by special acts, the superintendent acts as keeper. § 716. Keports of commitments, appointments to asylums, reformatories, or other institutions, to be made to the clerk of the board of supervisors. See " Benevolent Institutions." As to whether the statute (Laws of 1833, chap. 36) authorizing superintendents of the poor to " audit and settle all accounts. * » * For services relating to the support, relief or transportation of county paupers," confers upon those officers power to audit claims under contracts made with them, quere ? A claim of an attorney for services rendered by him on the employment of superintendents of the poor in bastardy proceedings is not one " relating to the support, relief or transportation " of paupers within the'meaning of that statute, and no power is conferred upon the superintendents to audit such a claim. Said officers have power to employ an attorney to conduct such proceedings; they are responsible to the attorney for his services, and he may enforce his claim against them by action. It seems that every expense they incur by such employment is a county charge, subject to the audit of the board of supervisors. Neary v. Robinson et al., 98 N. Y. 81. The superintendents of the poor of the county have no power to expend money for the temporarj relief of the poor. The right or duty devolves upon towns and their officers. Nor can the superintendent afford support to paupers elsewhere than at the poor-house, or place provided for that purpose under the direction of the board of supervisors. Gallup v. Bell, 20 Hun, 172. The superintendents of the poor audit all accounts for services relating to the support of the county paupers, and draw directly on the treasurer for the amount of the accounts they audit (Laws of 1833, p. 48, § 1); in regard to compensation to jurors, boards of supervisors may direct an allowance to tnem, in which case they are to raise the necessary sum for the purpose, and the jurors are paid directly by the treasurer on the certificate of the clerk of the court of their attendance. In relation to these two classes of claims, therefore, boards of supervisors have no duty to perform as auditors. Their only duty is to raise money to be placed in the treasury sufficient to meet their probable amount. Chemung Canal Bank v. The Supervisors of Chemung, 6 Denio, S64. 592 SuPERVisoBs' Manual. TEe board of supervisors of a county has no power to direct the county treas- urer not to pay, out of the poor funds, any drafts drawn by the superintendents of the poor to their own order, or to the order of either of them, nor to direct him not to pay any draft, unless the object for which the money is to be piud be specified therein. People, «a; rel. Serren, v. Demarest, 16 Hun, 123. They are bound to provide funds to pay orders drawn by the superintendents of the poor and certificates given for service as jurors, and if the funds are wasted or ]ost, to provide others to replace them. Chemung Canal Bank v. Board of Supervisors of Chemung County, B Denio, 617. The ofiBce of superintendent of the poor, though vested with corporate powers, is, notwithstanding, a mere agency of the county, and the relation between the county and its superintendent is that of principal and agent. People V. Bennett, 37 N. T. 117. An action cannot be maintained against the superintendents of the poor upon an account for services relating to the support of county paupers. Should the superintendent refuse to audit such an account the proper remedy is by certiorari, it seems. Tedder v. Superintendents, etc., of Schenectady, 5 Denio, 564. Where a person sells to superintendents of the poor, provisions for the poor- house, upon an agreement that it is to be a cash sale, or if an order shall be given, that it shall answer as cash, whereupon the superintendents give him an order upon the treasurer of the county, for the amount, and upon presentment of such order to the treasurer payment is refused, for want of funds, the vendor is re- mitted to his original right of action against the superintendents, and may recover of them the value of the supplies. In such a case the county is liable on the contract made by its authorized agents, in the business specially committed to them by the statute; and that liability Is to be enforced in a suit against the superintendents. Paddock v. Symonds, 11 Barb. 117. Superintendents of the poor are not bound to audit the accounts of physicians and others for services rendered to county paupers by request of the overseers of the poor of the several towns; and this, though the services were rendered in pursuance of orders for temporary relief. It is the duty of the overseers to adjust such accounts and charge them in their bills against the county. The employment of a physician by the superintendents of the poor of a county does not supersede the right of the overseers of the several towns to employ other physicians to attend county paupers entitled to temporary relief. Serrible, per COWEN, J. Exparte Green & Brown, i Hill, 558. The statutes relating to the support of the poor at county poor-houses furnish no authority for a discrimination between county and town poor, in respect to the application of the income of the poor-house farm. On the contrary the legis- lature intended the income should be applied to the support of the poor of tho county generally at the poor-house without distinction. The statutory provisions obviously contemplate that the benefits resulting from the poor-house and farm shall be common to the county and towns, in re- spect to the support of the poor at the poor-house, without any regard whatever to the general oljligation of each to support its own poor. The occupancy of the property, the products of the farm consumed thereon and in the poor-house, the labor of the poor in carrying on the farm and the business of the poor-house, the avails of sales of products of the farm and the labor of the poor, are all to go, and be applied, to reduce the expenses of the support of the poor generally, at the poor-house, without any discrimination. Thus, where the city of Rochester was, by law, in the condition of a town, in respect to the mode of supporting its poor at the county poor-house, it was held that the income of the poor-house farm in Monroe county ought to be applied to BoAED OF Supervisors — Miscellaneous Duties. 593 the support, indiscriminately, of the county, town and city poor, kept at the county poor-house on said farm. City of Rochester t. Supervisors of Monroe, 22 Barb. 248. A public officer, who is liable to be sued for services rendered for the public at his request, may confess a judgment in his official capacity for the amount. The supervisors of the county are, however, not concluded by the judgment; they have a right to go behind it and inquire whether the whole or any part of the cause of action was a county charge. The overseer of the poor cannot incur for the county a liability beyond the sum of $10, for relief in a single case, without the consent of one of the superintend- ents of the poor. But with this restriction his power of giving temporary relief is independent of the control of the superintendents of the poor. Gere v. Sapervisors of Cayuga 7 Hovr. 255. See "Auditing of Accounts," ante, § 458, for the auditing oi judgments, etc. Under the provisions of the Revised Statutes, the board of supervisors in each county had power to examine, settle and allow all accounts chargeable against the county. This power was exclusive of all other authority over the subject, to this extent, at least, that when exercised it was subject to no review, and that no action could be maintained against a county for a county charge. Huff V. Knapp, 5 N. T. 67; Brady v. Supervisors of New York Co., 10 id. 260; People V. Lawrence, 6 Hill, 244; People v. Supervisors of Dutchess Co., 9 Wend. 508 ; Supervisors v. Briggs, 2 Denio, 26, 39 ; People, ex rel. Outwater, v. Green, 56 S. Y. 469. Superintendents of the poor should sue in the corporate name given them by the Statutes, and not in their individual names, describing themselves as superintend- ents of the poor. Pomeroy v. Wells, 8 Paige, 405. Superintendents of the poor are not authorized to receive paupers into the county poor-house to be supported at the expense of the county, unless an order to that effect has been made by the overseer of the poor, or a warrant has been issued for the removal of the pauper to the county poor-house as a lunatic. ^ Id. The principles to be deduced from the above decisions seem to be these : That the superintendents acting within the powers conferred upon them, are First, a corporation having the superintendence and custody of the poor-house, its inmates, the furnishing of supplies and materials, attendants, etc.; Second, that they are agents of the countyto this extent at least, that acting within their legal powers, they can bind the county as to third persons, who, upon reeeiv ing orders upon the county treasurer for legal contracts, materials, etc., duly fur- nished, are entitled to be paid therefor; but that the accounts of the superintend- ent are to be examined, settled and allowed, the same as other county charges are audited, and thereby the board have a check upon the superintendent as to the amounts expended for which his bondsmen are liable. See "Audit of Superintendent's Account," fod. It is, therefore, essential that the bond, in these cases, be sufficiently large and well secured, as there seems to be no limit to the amount of " orders " that may be dra-wn by the superintendent upon the county treasurer, nor any satisfactory method of knowing how many have been issued and set afloat. The whole system of laws on this subject is in a very unsettled and chaotic condition, and deserves a thorough revision. Some counties have special acts on the subject. § 717. Majority of Superintendents to Act.— 8R. S. 1854, §16 75 594 SuPEETisoRs' Manual. The provision of the Revised Statutes, declaring that a majority of the super intendentsof the poor of a county "shall beat all times competent to tran^i business and to execute any powers vested in the board of superintendents " authorizes the majority to act, irrespective of and without consultation with the minority. The authority to bind minors as apprentices given to said superintendents may therefore, be executed by a majority, without a meeting of, or a notice to all. Johnson v. Dodd, 56 N. Y. 76. § 718. Audit of Accounts of Superintendent. — By subdivisiou 10 above and by Laws of 1869, chapter 855, section 8, the superintendents are required " to render to the board of super- visors of their county, at their annual meeting, an account of all moneys received and expended by them or under their direc- tion and of all their proceedings, and it is the duty of the board to audit the accounts of the superintendents of the poor. As to counties acting under the Livingston county act, see " Livingston County Poor Law," ante. § 719. Supervisors to Make Regulations as to Accounts. Section 1. The boards of supervisors of the several counties of this State are hereby authorized to make such regulations and require- ments concerning the keeping of poor accounts, and disbursements by overseers of the poor, and their report to town auditors, and also con- cerning the keeping of poor accounts and disbursements, and the man- ner of auditing bills presented to them and their report to the board of supervisors by county superintendents of the poor as the efficiency of the service and the protection of the interests of the public may re- quire, all such rules, regulations and amendments thereto to be adopted by such boards of supervisors at a regular session of the board. § 2. This act shall not aoply to the county of Eichmoud. Laws of 18S6, chap. 855. See form of superintendents' report, ante, § 526. May Reg-ulate Temporary Relief, Direct Moneys to be Paid Overseers Instead of County Treasurer. — The board of supervisors of any county in this State may by resolution direct that the money to be raised in the several towns of said county, for the support of the poor in said towns, be paid to the overseers of the poor of the re- spective towns, instead of to the county treasurer, and that the war- rants attached to the tax-rolls in said county direct accordingly. Chap. 655, Laws 1887, § 1. The board of supervisors of any county may make such rules and Board of Supebvisoes — Miscbllakeous Duties. 595 regulations as it may deem proper in regard to the manner of fur- nishing temporary or out-door relief to the poor of the several towns in said county by the overseers of the poor thereof, and also in re- gard to the amount such overseers of the poor may expend for the relief of each person or family, and after the board of supervisors of any county shall have made such rules and regulations it shall' not be necessary for the overseer of the poor of the towns in said county -to procure an order from a justice of the peace, or the sanction of the superintendent of the poor to expend over $10 for the relief of any person or family, unless the board of supervisors of such county shall «o direct, but this shall not apply to the counties of New York, Kings and Onondaga. Id., §2. § 720. Warren County Act — Poor to be a County Charge in Certain Counties.— In the coun- ties of Warren, Washington, Saratoga and Genesee, poor persons -entitled to support as aforesaid, shall be maintained at the expense of the said counties respectively ; and all costs and charges attend- ing the examinations, conveyance, support and necessary expenses of paupers within the said counties respectively, shall be a charge upon the said counties, without reference to the number or expenses of paupers which may be sent to the poor-house of said counties from or by any of the towns therein. The said charges and expenses shall be reported by the superintendents of the poor of the said counties to the boards of supervisors therein respectively, and shall be assessed, levied and collected of and upon the taxable real and personal estate in the said counties, in the same manner as other ■county charges. 3 R. S. 1857, § 23. § 721. When a County Charge in Other Coun- liies. — The board of supervisors of any county in this State, at any annual meeting, or at any special meeting called for that pur- pose, may determine to abolish all distinction between county poor and town poor in their counties respectively, and to have the ex- pense of maintaining all the poor a county charge ; and upon their iling such determination, duly certified by the clerk of the board, with the county clerk, the said poor shall be maintained, and the expense thereof defrayed in the manner prescribed in the preceding section relative to the counties of Warren, Washington, Saratoga and Genesee. Id. 1858, i 24. 596 Supervisors' Manual. The supervisors may revive or abolish the distinction between town and county poor except in New York county. Laws of 1849, chap. 194, § 4, subd. 10. § 722. Notice of Determination of Super- visors. — In those counties where the supervisors shall determine to abolish the distinction between town poor and county poor, and to have aR the poor a county charge, it shall be the duty of the clerk of the board of supervisors immediately to serve notice of such determination on the overseers of the poor of every town iu the county. Within three months after the service of such notice, the overseers of the poor of every town shall pay over all moneys which shall remain in their hands, after discharging, all demands against them as such overseers, to the county treasurer, to be apphed by him toward the future taxes of such town. In case of neglect to pay over such moneys, the county treasurer may maintain an action therefor, in which he shall recover interest on the moneys withheld, from the time they should have been paid over. 8 R. S. 1857, 6 21. The clerk of the board must also serve notice of such determi- nation on the clerk of eaclitown, village or city within such county.. Id., § 25. In order to render the expense of maintaining all the poor of a county a county charge, pursuant to 3 R. S. 1857, § 34, the board or supervisors must not only determine to abolish the distinction between county and town poor, but must Gle such determination with the county clerk. Until such determination be filed, the duties of the officers arising out of such change in the poor system do not attach. The service of the resolution of the board of supervisors on the town clerks is not essential to effect a change of system, the provisions respecting such service being only directory. TbomsoQ V. Smith, 2 Denio, 177. See Decisions under § 658, ante. § 723. HOTT Supported. — In all the other counties of this State, except the counties of "Warren, Washington, Saratoga, Gene- see, and those counties of which the board of supervisors shall file the determination aforesaid, the poor, having a settlement in- any town in such county, shall be supported at the expense of such town, and the poor not having such settlement shall be supported by the county in which they may be. 8 R. S. 1858, § 28. § 724. Expenses of Supporting Poor, how Defrayed, — In those counties where the respective towns are BoAED OF Supervisors — Miscellakeous Duties. 597 required to support their own poor, tlie county treasurers thereof shall respectively open and keep an account with each town, in which the town shall be credited with all moneys received from the same, or from its officers, and shall be charged with the moneys paid for the support of the poor chargeable to such town. And if there be a county poor-house, or other place provided in such county for the reception of the poor, the superintendent of the poor of the county shall, in each year, before the annual meeting of the board of supervisors of such county, furnish to the county treasurer a statement of the sums charged by them, as hereinafter directed, to the several towns for the support of their poor, which shall be charged to such towns respectively, by the county treasurer in his accounts. 3 R. 9. 1863, § 47. In those counti'es in which a poor-house shall be established, or a place provided, by the superintendents, for the reception of the poor, and in -which the several towns shall be liable for the support of their ■poor respectively, it shall be the duty of the superintendents, annually, and during the week preceding the annual meeting of the board of supervisors, to make out a statement of all the expenses incurred by them the preceding year, and of tl^e moneys received, and exhibiting the deficiency, if any, in the funds provided for the defraying such expenses; and they shall apportion the said deficiency among the said several towns, in proportion to the number and expenses of the paupers belonging to the said towns, respect- ively, who shall have been provided for by the said superintendents, and shall charge the said towns with the said proportious ; which state- ment shall be by them delivered to the county treasurer, as before 43irected. Id., s 48. At the annual meeting of the board of supervisors, the county treasurer shall lay before them the account so kept by him ; and if it shall appear that there is a balance against any town, the said 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 a sum for interest, at the rate of seven dollars on the bundred, as will reimburse and satisfy any advances that may be made, or that may have been made, from the county treasurer, for such town ; which moneys, when collected, shall be paid to the county treasurer. Id., § 49. The superintendents of the poor in each county shall annually present to the board of supervisors, at their annual meeting, an esti- 598 Supervisors' Manual. mate of the snm which, in their opinion, will be necessary, durioff the ensuing year, for the support of the county poor ; and the said supervisors shall cause such sum as they may deem necessarv for that purpose, to be assessed, levied and collected, in the same manner as the other contingent expenses of the county, to be paid to the county treasurer, and to be by him keut as a separate fund, distinct from the other funds of the county. Id., § 50. For the relief of indigent soldiers, sailors, etc., see chap. 706, Laws of 1887, as amended by chap. 261, Laws of 1888, in full, ante, §473. By the Laws of 18Y5, chapter 482, section 1, subdivision 15, boards of supervisors have power " to direct the payment, by justices of the peace, of all fines and penalties imposed by and paid to such justices in their respective towns, to the supervisors of such towns, on the first Monday in each month, to be applied by them toward the support of the poor of said towns, or to the superintendents of the poor, when the support of the poor is a county charge, and to direct the justices, of the peace of such town to report the amount, of all fines collected by such justices to the board of town auditors on Tuesday preceding the annual town meeting. As amended, Laws of 1881, chap. 129; 2 K. S. 945. As to raising moneys by, and reports, etc., to, the board for counties under the Livingston county act, see that act, ante. Under the Revised Statutes and Warren county act, any neglect by the superintendent to render an account or statement as above required, or to pay over any moneys, shall forfeit $250. § 725. Certain Counties may Restore the Dis- tinction Bet'ween ToTrn and County Poor.— The board of supervisors in any of the counties of Livingston, Sulli- van, Broome, Cortland, Orange, Allegany, Seneca, Franklin, Onon- daga and Ulster, at any annual meeting, by a vote of a majority of all the members elected in favor thereof, may determine to restore the distinction between county poor and town poor in their counties respectively ; and upon their filing such determination, duly certified by the clerk of the board, with the county clerk, the distinction be- tween the county poor and town poor shall thereupon be restored, from and after the time to be fixed by such board of supervisors, either at the commencement or the close of the year for which said supervisors were elected to serve. It shall not be lawful for any officer, whose duty it may be to provide for the maintenance, care BOAKD OP SUPEBVISOKS — MISCELLANEOUS DUTIES. 599 or support of the poor and indigent persons a public expense, to put up at auctiod or sale, or the keeping, care or maintenance of any such poor or indigent person to the lowest bidder, and every contract which may be entered into for the support, care or maintenance of any such poor or indigent person, in pursuance of or accordance with any bid or bids made at any auction or public competition for the support, care or maintenance of any such poor persons, shall be abso- lutely void. Laws of 1848, chap. 176 ; 3 R. S. 1874. Like power has been given to other counties by special acts, but chap. 194, Laws of 1849, § 4, subd. 10, gives all boards, except New York county, power so to do. See note above as to abolishing the distinction between town and county poor, §722. § 726. No Child Bet\reen Ttto and Sixteen Vears to be kept at Poor-House.— It shall not be lawful for any county superintendent or overseer of the poor, board of charity or other officer, to send any child between the ages of two and sixteen years, as a pauper, to any county poor-house or alms-house for support and care, or to detain any child between the ages of two and sixteen years in such poor-house or alms-house ; but such county su- perintendents, overseers of the poor, boards of charities or other officers shall provide for such child or children, in families, orphan asylums, hospitals or other appropriate institutions, as provided by law. The boards of supervisors of the several counties of the State are hereby directed to take such action in the matter as may be necessary to carry out the provisions of this section. When any such child shall be so provided for or placed in any orphan asylum or such other institution, such child shall, when practicable, be so provided for or placed in such asylum or such other institution as shall then be con- trolled by persons of tlie same religious faith as the parents of such child. Laws of 1884, chap. 438, § 2. See Decisions under § 728, post. § 727. Removal of Cbildren from One Insti- tution to Anotbex*. — While any child which shall have been placed in such asylum or other institution, as a pauper, in pur- suance of the second section of this act (§ 726, ante), shall remain therein at the expense of the county or town to which such pauper child is chargeable, the superintendents of the poor of such county, or the overseer of the poor of such town, may, in their discretion. 600 SUPEKVISOBS' MaNTTAL. remove snch child from such asylum or other institution, and place such child in some other such institution, or make such other dis- position of such child as shall then be provided by law. The name of no such child shall be changed while in such institution, as in this section aforesaid. But no parent of such pauper child, so in such asylum or other institution, as in this section aforesaid, shall be entitled to the custody thereof except in pursuance of a judgment or order of a court or judicial officer of competent jurisdiction, ad- judging or determining that the interest of such child will be pro- moted thereby, and that such parent is fit, competent and able to duly maintain, support and educate such child. Id., § 4 § 728. Children may be Bound out, etc.— The fifth section provides that any child which shall have been absolutely surrendered to the care and custody of any incorporated orphan asy- lum or other institution incorporated for the care of orphan, friendless or destitute children, or which shall have been placed therein as a pau- per under the second section of this act, or which shall have been left to the care of such corporation, with no provision by the parent, relative or legal guardian of such child for its support for one year then next preceding, may be bound out to be a clerk, apprentice or servant. Id., §5. Surrender of Children to Corporation "When Public Expense.— The first section provides that the guardianship of the person and the custody of any indigent child may be committed to such corporation by the parents, if living, by the surviving parent, if one be dead, or if either parent shall have abandoned any child for six months then next preceding by the other parent, or if the father shall have neglected to provide for his family during the six months then next preceding, if a bastard by the mother, if both parents be dead, by the legal guardian, duly approved, or if no parents or legal guardian, or if the parents have abandoned .ihe child for said six months, by the mayor of the city or county judge in which such corporation shall be located, upon such terms, for such time and subject to such conditions as may be agreed upon by the parties, and such written instrument may pro- vide for the absolute surrender of such child to such corporation. But no such corporation shall draw or recevoe money from pviblio funds for the support of any such child committed under the pro- BOABD OF SCPBRVISOES — MISCELLANEOUS DUTIES. 601 visions of this section, unless it shall have been determined by a ^ourt of competent jurisdiction, that such child has no relative, pa- rent or guardian living, or that such relative, parent or guardian, if living, is destitute and actually unable to contribute to the support of such child. H.,§1. The power of the supervisor to act as guardian in binding out children no longer exists. The provisions quoted and the law itself would seem sufficient to protect the interests of the children as well as those of the public from any undue retention of children by such corporations, for prose- lyting, or other improper purposes. This action was brouglit by the plaintifE, a corporation organized under the laws of this State for the care, education and support of poor orphan children, to re- cover the amount due it for supporting certain children between the age of two and sixteen years, residents of Long Island City-, and whom it had received, cared for and supported, on authority of written orders given by the overseer of the poor of the defendant city. Seld, that the plaintiff was entitled to recover, as it had acted under the direc- tion of an oflScer, who had fall power to give such direction, and who was com- pelled by law to furnish the support for such children outside of the poor-house, and in an incorporated orphan asylum. That, as the relief of the children was permanent and not temporary, the $10 limitation imposed by section 43 of 3 Revised Statutes (7th ed., p. 1861), did not apply to them. Nuns of St. Dominick v. Long Island City, 48 Hun, 306. § 729. Excise Moneys. — In counties where the poor are a, county charge, the excise moneys go to the county treasurer sub- ject to the control of the board of supervisors ; in other counties they are disposed of as the town board directs. Laws of 1874, chap. 444, § 2, as amended by Laws of 1886, chap. 459. In the town of Oswegatchie, St. Lawrence county, see chap. 458, Laws of 1889. § 730. Support of Prisoners Confined Upon Civil Process. — In any county, if a prisoner actually confined in jail makes oath before the sheriff, jailer or deputy jailer, that he is unable to support himself during his imprisonment, his support is a county charge. Code Civ. Pro., § 112. If a person imprisoned on attachment, or any civil process, or for the non-payment of a militia fine, becomes insane, the county judge may examine the case, and if it shall be proved to his satisfaction that the prisoner is insane, he may order him sent to a State lunatic asylum. His expenses while there and of sending him back to jail, if remanded, are county charges, recoverable from his estate, from 76 602 SuPEEVisoKS' Manual. any relative, town or city that would have been bound to provide for and maintain him. Chap. 446, Laws of 1874, tit. 1, § 27. § 731. State Pauper, Who is.— Every poor person who is blind, lame, old, impotent or decrepit, or in any other way disabled or enfeebled, so as to be unable by work to maintain himself, who shall apply for aid to any superintendent or overseer of the poor, or other officer charged with the support and relief of indigent per- sons, and who shall not have resided sixty days in any county of this State within one year preceding the time of such application, shall be deemed to be a State pauper, and shall be maintained as herein- after provided. Chap. 661, Laws of 1873, § 1. § 732. County or To-wn Pauper, Who is.— Every poor person who is blind, lame, old, sick, impotent, or decrepit, or in any other way disabled or enfeebled, so as to be unable by his work to maintain himself, shall be maintained by the county Or town in which he may be. 8 R. S. 1854, § 14 (tit. 1, chap. 20, part 1 of the Rev. SJat.) It requires "one year's residence to gain a settlement. Id., §29. But no such residence in the county poor-house, or place provided for the support of the poor, or in any town while supported at the expense of another town or county, shall operate to give such pauper a settlement in the town where such actual residence may be had. Id., §80. § 733. One Temporarily Unable to Support Himself by Reason of Accident, Not a Pauper. — Rev. St. N. Y. part 1, chap. 20, tit. 1, § 31, provides that no per- son shall be removed as a pauper from any city or town to any other city or town of the same or any other county, or from any county to any other county, but every poor person shall be supported in the county where he may be ; that if he has gained a settlement in any town in such county he shall be maintained by such town ; and that if he has not gained a settlement in the county in which he shall become poor, sick, or infirm, he shall be supported and relieved by the superin- tendent of the poor at the expense of the county. Such statutes, as amended by Laws of New York, 1885, chap. 546, provide that any pauper who shall, of his own accord, come or stray from one city, Board of Supekvisoes — Miscellaneous Duties. 60$ town, or county into any other city, town, or county not legally chargeable with his support, shall be maintained by the superintend- ent of the county where he may be, and that by taking certain proceedings the liability of the county or town from whence he came for his support may be fixed, if such county is so liable. Held,tha,t one who had always been able to support himself and family by manual labor, though the wages earned by him were not more than sufficient for that purpose, was not a pauper, within the meaning of the statute ; and where, having been a resident of the city and county of New York, he went to another county, and there met with an ac- cident, which rendered him unable to support himself, the county from whence he came is not liable for his support. Wood V. Simmons, i N. Y. Sup. 368 j S. C, 51 Hun, 326. " Tramps " a State Charge.— Eyery tramp, upon con- viction as such, shall be punished by imprisonment at hard labor in the nearest penitentiary, for not more than six months, the expense during such imprisonment not to exceed $1 a week per capita, to be paid by the State. Chap. 490, Laws of 1885, § 1. In an action brought by the supervisors of Ontario county against supervisors of Monroe county, the plaintiffs were allowed to recover for moneys paid to the defendants for board of " tramps " at the penitentiary, which had been improperly included in the account presented to and paid by the plaintiffs within six years. Case not reported. Of the Suppoet of Insane Peksons. § 734. 2. On the 12th of May, 1874, the legislature passed an " Act to consolidate the statutes of the State relating to the care and custody of the insane; the management of the asylums for their treat- ment and safe-keeping, and the duties of the State commissioner in lunacy." Laws of 1874, chap. 446; 8 R. S. 1901. By section 2 of title 11 of that act, id. p. 590, all laws or parts of laws inconsistent with or repugnant to the provisions of that act are repealed. The provisions of the act of 1874, so far as they relate to the powers and duties of boards of supervisors, .ov of supervisors indi- vidually, are as follows : By section 5, title 1, the county superintendent of the poor of ^604 Sppervisobs' Makual. any county or town in which any person shall be chargeable, who shall be, or shall become, a lunatic, may send any such person to any State lunatic asylum, by an order under their hands, and in compli- ance with the provisions of said act. § 735. Supervisors to Designate Asylum.— In case of the refusal or neglect of any committee or guardian of any lunatic, or his relatives, to confine and maintain him, or where there. is no such committee, guardian or relatives of sufficient ability to do so, it shall be the duty of the overseers of the poor, or con- stables of the city or town where any lunatic shall be found, to report the same forthwith to the superintendent of the poor, who shall apply to the county judge, special county judge or surrogate, or any other judge or justice of a coUrt of record of the city or county in which the lunatic may reside or be found, who, upon being satisfied upon examination that it would be dangerous to permit such lunatic to go at large, shall issue his warrant, directed to the constables and ovei-seers of the poor of such city or town, command- ing them to cause such lunatic to be apprehended and to be sent within the next ten days to some State lunatic asylum, or to such public or private asylum, as may be approved by any standing order or resolution of the supervisors of the county, to be there kept and maintained until discharged by law. Id., § 6, as amended by Laws of 188S, chap. 193. When Relatives Unable to Support, etc.— If such lunatic is not possessed of sufficient property to maintain himself, it shall be the duty of the father, mother or children of such lunatic, if of sufficient ability, to provide a suitable place for his confinement, and to confine and maintain him in such manner 3.S shall be agreeable to the provisions of this act. But in case his relatives are not of sufficient ability to maintain him, then the super- intendent of the poor of the county shall, upon his order, send such pauper-lunatic to any State asylum, or to such public or private asylum as may be approved by a standing order or resolution of the supervisors, within ten days. Id., 1 12. Remedies to Compel Support by Relatives.- The overseers and superintendents of the poor shall have the same remedies to compel such relatives to confine and maintain such lunatic, and to collect the costs and charges of his confinement, as BOAKD OF SUPEKVISORS — MISCELLANEOUS DUTIES. 605^ are given by law in the case of poor and impotent persons becoming chargeable to any town. Id., § IS. § 736. To Raise Money for Support of Indi- gent Lunatics at Asylums. — When a person in indigent circumstances, not a pauper, becomes insane, application may be made in his behalf to any connty judge, special county judge, judge of a superior court or common pleas of the county where he resides, and said judge shall fully investigate the facts^ of the case, both as to the question of his indigence as well as to that of his insanity. And if the judge certifies that satisfactory proof of his insanity has been adduced, and that his estate is insuffi- cient to support liim and his family (or, if he has ho family, him- self) while under the visitation of insanity, then it shall be the duty of any judge, before whom apphcation for that purpose is made, to cause reasonable notice thereof, and of the time and place of hear- ing the same, to be given to one of the superintendentg of the poor of the county chargeable with the expense of supporting such per- son in a State asylum, if admitted, and he shall theri proceed to ascertain when such person became insane. On granting such cer- tificate the judge may, in his discretion, require the friends of the pa- tient to give security to the superintendent of the poor of the county to remove the patient from the asylum as soon as he shall recover. But in every case where a patient, admitted into an asylum, as herein- before provided, shall have remained there two years and has not re- covered, the managers of the asylum may, in their discretion, cause such person to be returned to the county whence he came, and charge the expense of such removal to the county. The judge , granting said order of indigence shall file all papers belonging to such proceedings, together with his decision, with the clerk of the county, and report the facts to the supervisors, whose duty it shall be, at their next annual meeting, to raise the money necessary to meet the expenses of support of such indigent lunatic. Id., § 14, as amended by chap. 164, Laws of 1880. When for an Additional Time, etc.— When an insane person in indigent circumstances, not a pauper, shall have been sent to any State asylum by his friends, who have paid bis bills therein for six months, if the superintendent shall certify that he is a fit patient and likely to be benefited by remaining in the institution, the supervisors of the connty of his residence are author- «06 Supervisors' Manual. ized and required, upon an application imder oath in his behalf, to raise a sum of money sufficient to defray the expenses of his remain- ing there another year, and to pay the same to the treasurer of the asyhim. And they shall repeat the same for two years more upoQ like application and the production of a new certificate, of like im- port, from the siiperintendent of such asylum. Id., § 15, as amended by Laws of 1880, chap. 164. § 737. Expenses of Sending^ Lunatic to Asy- lum and of Ms Support There.— The expense of send- ing any lunatic to a State asylum, and of supporting him there, shall be defrayed by the county or town to which he may be chargeable. If chargeable to a county, or to any town whose poor moneys are required to be paid into the county treasury, such expense shall be paid by the county treasurer out of the funds appropriated to the support of the poor belonging to such county or town, after being allowed and certified by the county superintendents. If such luna- tic be chargeable to a town whose poor moneys are not required to be paid into the county treasury, such expense shall be paid by the overseers of the poor thereof. Id.,S 16. See Decisions, § 740, post. § 738. Remedies to Compel Committee or Guardian to Maintain, etc.; Court of Sessions to make Orders. — The overseers of the poor of any city or town shall have the same remedies to compel the committee or guardian of the estate of any lunatic to confine and maintain such lunatic, and to collect of such committee the cost and charges of his confinement and support, as are given in the preceding sections, against the relatives of such lunatic. And the court of general sessions of the peace of the city or county shall make orders against such committee personally, and enforce them in the same manner as against the relatives of any poor person, so long as such committee has any property in his hands, for the support of such lunatic. Id., §17. § 739. Po-wers of County Superintendents.- The county superintendents of the poor shall have all the powers and authority herein given to overseers of the poor of any town. Id., S 19. Board of Supebtisobs — Miscellaxeous Duties. 60? Some counties send to one asylum and others to another, but the same rules apply in the various cases, and are substantially as follows : § 740. First. To be Properly Clothed.— All town and county officers sending a patient to the asylum shall, before sending him, see that he is in a state of perfect bodily cleanliness and is comfortably clothed and provided with suitable changes of raiment, as prescribed by the by-laws of the asylum. Chap. 446, Laws of 1874, tit. 3, § 23 (which relates to the Utica asylum ; the same provision applies to the other asylums) . No patient shall be discharged without suitable clothing ; and if it cannot be otherwise obtained the steward shall, upon the order of two managers, furnish it, also money not exceeding $20, to defray his necessary expenses until he reaches his friends or can find a chance to earn his subsistence. Id., § 26. § 741. Second. Price, Iiott Fixed.— The price to be paid for keeping the poor or any person in indigent circumstances in the asylum shall be annually fixed by the managers, and shall not ex- ceed the actual cost of support and attendance, exclusive of officers' salaries. The managers may, at their discretion, require payments made quarterly or semi-annually in advance. Id., §29. § 742. Third. Support of. — Every insane person sup- ported in the asylum shall be personally liable for his maintenance therein, and for all necessary expenses incurred by the institution in his behalf. And the committee, relative, town, city or county, tliat would have been bound by law to provide for and support him if he had not been sent to the asylum, shall be liable to pay the ex- penses of his clothing and maintenance in the asylum, and actual and necessary expenses to and from the same. Id., §80. § 743. County to Pay Expenses, Supervisors to Levy Tax Therefor.— The expenses of clothing and maintaining in the asylum, a patient who has been received upon the order of any court or officer, shall be paid by the county from which he was sent to the asylum. The treasurer of said county is author- ized and directed to pay to the treasurer of the asylum the bills for such clothing and maintenance as they shall become due and payable according to the by-laws of the asylum, upon the order of the steward ; 608 Supervisors' Mastual. and the supervisors of said county shall annually levy and raise the amount of such bills and such further sum as will probably cover all similar bills for one year, in advance. Said county, however shall have the right to require any individual, town, city or county, that is legally liable for the support of such patient, to reimbui-se the amount of said bills with interest from the day of paymg the same. Id., § 81. § 744. Expenses of Removal of Lunatics From Asylum. — Whenever the manager shall order a patient removed from the asylum to the poor-house of the county whence he came, the superintendents of the poor of said county shall audit and pay the actual and reasonable expenses of such removal as part of the contingent expenses of said poor-house. But, if any town or person be legally liable for the support of such patient, the amount of such expenses may be recovered for the use of the county by such superintendents. If such superintendents of the poor neg- lect or refuse to pay such expenses on demand, the treasurer of the asylum may pay the same and charge the amount to the said county ; and the treasurer of the said county is authorized to pay the same, with interest, after thirty days; and the supervisors of the said county shall levy and raise the amount as other county charges. Id., § 32. § 745. Riglit of County to be Reimbursed.- Every town or county paying for the support of a lunatic in the asylum, or for his expenses in going to and from the same, shall have the like rights and remedies to recover the amount of such pay- ments, with interest from the time of paying each bill, as if such expenses had been incurred for the support of the same at other places, under existing laws. Id., S 88. § 746. Support of Indig-ent Insane, Not Pau- pers. Under the old law an indigent Insane person " not a pauper," was to be sup- ported at the asylum by the county, not by the several towns. People, exrel. Supervisors of the Town of Alexander, v. Board of Buperrisors, ' HUl, in. But in a case in Herkimer county, decided November, 1886, Judge Vann de- cided, that under the present law, each town was liable for the support of resi- dent " indigent insane, not a pauper," when sent to an asylum. People, exrd. Russell, v. Board of Supervisors of Herkimer Co.; affirmed, 46 Hod, S54, BOAfeD OF SUPEKVISORS — MISCELLANEOUS DUTIES. 609 In Herkimer county the towns support their own poor, the Buperintendent of the poor keeping an account with each town therefor, and the distinction between town and county poor is maintained. It was also held that a claim made by the town that it could not be charged with the cost of supporting those persons upon the ground that although they had a legal settlement in the town, they had not previously become chargeable to it, could not be sustained, as under the Laws of 1874, no distinction was presumed between poverty caused by insanity and that caused by other disease or mis- fortune. Id. In the year 1875, John Gill, a resident of the city of Kingston, after having been indicted in the county of Suffolk, for an assault with intent to kill, was com- mitted to the Hudson Hiver State Asylum for the Insane, by the county judge of Suffolk county, and was afterward transferred to the Asylum for Insane Criminals at Auburn, where he has since remained. The county of Suffolk, having paid $1,760.71 for his support and maintenance in the asylum, brought this action to recover the amount so paid for the city of Kingston. Upon the hearing of the appeal from a judgment overruling a demurrer inter- posed to the complaint, upon the ground that it did not state facts su£Scient to constitute a cause of action, the defendant claimed that the liability for the main- tenance of the insane criminal rested upon the county of Ulster, in the first in- stance, or on the commissioners of the alms-house of the city of Kingston, and that no liability was imposed by the statute upon the city itself. Eleld, that the judgment should be affirmed. That by sections 33, 63 and 69 of chapter 446 of the Laws of 1874, as amended by chapter 520 of 1879, the duty to raise money for the support of the poor of the city rested upon the city of Kingston. Supervisors v . City of Kingston, 50 Hun, 435. The expense of supporting Indigent insane is to be paid by the town in which such persons have legal settlements and not by the county, and such expense is properly added by the board of supervisors to the other amounts which are to be levied on such town. In an action brought to restrain the board of supervisors of Schoharie county from imposing on the relator, a town in said county, a charge for expenses paid for the several years since January 1, 1882, for such of the indigent insane as had settlements in the relator's town, it was claimed by the relator that the action or non-action in this respect of former boards of supervisors was conclusive; that any action now, by the present board of supervisors, would be a review of what had been decided by former boards, and that this could not be allowed. Held, that the expenses of indigent patients in the asylum are to be paid, in the first instance, by the county, and the supervisors are then annually to raise the amount of such bills paid by the county treasurer, and such further sum as will probably cover all similar bills for one year in advance. That the fact that the board of supervisors had not availed itself of the right at the end of each year, since January 1, 1883, to charge to the several towns the amounts which were properly chargeable to them for the support of the indigent insane, did not bar future proceedings for such reimbursements. That it could not be claimed that the provisions of the statute, directing the raising of the money at the beginning of the year, contemplated that an appor- tionment should then be made of such expenses pro rata, according to the valua- 77 610 SuPERviBOEs' Manual. Hon of the towns, as by law the Baperviaors must raise this money at the be. ginning of the year, although they have at that time no power to apportion, and no knowledge of the facts on which the apportionment is to be made, which caa only be known at the end of the year, when it is known for what patients the money has been paid and how much has been paid for each. People, ex rel. Blenheim, v. Supervisors, 49 Hun, 308, 309. CHRONIC PAUPER INSANE. § 747. — The pauper insane are confined in the asylum desig- nated, the Willard or Binghamton. Counties may be exempted from sending their pauper insane to the Willard Asylum by the State commission in lunacy. See§ 25, chap, 283, Laws of 1889. Where the counties are not thus exempted, the provisions men- tioned above as to the supply of clothing, maintenance, etc., §§ 740, 741, 742, 743, 744, apply in such cases. RELATIVE TO INSANE CRIMINALS. § 748. When Commission may issue.— If any person in confinement under indictment for the crime of arson, murder or attempt at murder, or highway robbery, shall appear to be insane, the court of oyer and terminer in which such indictment is pending shall have power, with the concurrence of the presiding judge of such court, summarily to inquire into the sanity of such person, and the degree of mental capacity possessed by him, and for that purpose may appoint a commission to examine such person and inquire into the facts of his case and report thereon to the court, and if said court shall find such person insane or not of sufficient mental capacity to undertake his defense, they may, by order, remand such person to such State lunatic asylum as in their judgment shall be meet, there to remain until restored to his right mind, when he shall be remanded to prison and criminal proceedings be resumed, or otherwise discharged, according to law. Chap. 446, Laws of 1874, tit. 1, § 20. The governor has Kke power. Id., § 21. §749. Costs of Commission a County Charge. — The costs of any commission of lunacy appointed pursuant to the provisions of this article, shall be a charge upon the county in BoAKD OF Supervisors — Miscellaneous Duties. 611 ■whicli the same shall have been executed ; and the certificate of the «ourt by which such commission shall have been appointed shall constitute a legal voucher thereof in the hands of the county treas- urer, provided, nevertheless, that the costs of all commissions ap- pointed by the governor shall be defrayed from the fund appropri- ated for the contingent expense of the executive department. Id., §22, a3 amended by Laws of 1875, chap. 574, § 2. § 750. Convicts may be Transferred, etc By section 23, any person confined in either of the State lunatic asylums upon a criminal charge, and any person so confined, A^ho is under conviction for a crime or who has been tried and acquitted thereof on the ground of insanity, may, upon the application of any superintendent of any asylum, be brought before a justice of the supreme court, who may order his removal to the State Lunatic Asylum for Insane Criminals at Auburn. Id., as amended hj Laws of 1884, chap. 515. And one confined in a penitentiary who shall appear to be insane may be transferred to the State lunatic asylum at Auburn. Id.,§ 24. § 751. HOTT Supported, etc.— The penitentiary from which convict (if under sentence for a misdemeanor) shall have been transferred, shall be liable for the expenses of his care and mainte- nance during the time he shall remain in said asylum, provided that he is removed therefrom before the expiration of his sentence. If he shall continue insane after the expiration of the time for which he was sentenced, then the county from which he was sent to said penitentiary shall pay his expenses as hereinbefore provided in sec- tion 22 of this act. Id., § 25, as amended by Laws of 1875, chap. 574, § 3. § 752. Support of Insane Held Under Crimi- nal Process. — If any person in confinement under indictment or under sentence of imprisonment, or under a criminal charge, or for want of bail for good behavior, or for keeping the peace, or for appearing as a witness, or in consequence of any summary convic- tion, or by order of any justice, or under any other than civil pro- cess, shall appear to be insane, the county judge of the. conn tywliere he is confined shall institute a careful investigation, call two respect- able physicians and other credible witnesses, invite the district at- torney to aid in the examination (and if he deem it necessary, call a 612 SuPERvisofis' Manital. jury, and for that purpose is fully empowered to compel the attend- ance of witnesses and jurors), and if it be satisfactorily proved that he is insane, said judge may discharge him from imprisonment and order his safe custody and removal to a State asylum, where he shall remain until restored to his right mind ; and then the superintend- ent shall inform the said judge and district attorney, so that the per- son so confined may, within sixty days thereafter, be remanded to prison and criminal proceedings be resumed or otherwise discharged, or if the period of his imprisonment shall have expired he shall be discharged. When such person is sent to an asylum, the county from which he is sent shall defray all his expenses while there and of sending him back, if returned ; but the county may recover the amount so paid, from his own estate, if he have any, or from any rela- tive, town, city or county that would have been bound to provide for and maintain him elsewhere. U.,i 26. § 753. Support of Insane Under Civil Pro- cess. — If any person imprisoned on attachment, or any civil pro- cess, or for the non-payment of a militia fine, becomes insane, one of the judges mentioned in the last preceding section of this act shall institute like proceedings in his case as are required in the case pro- vided for in said section ; but notice shall be given by mail or other- wise, to the plaintiff or his attorney, if in the State ; and if it shall be proved to the satisfaction of said judge that the prisoner is insane, he may discharge him from imprisonment and order him into safe cus- tody and to be sent to a State asylum. The provisions of the last pre- ceding section, requiring the county to defray the expenses of a patient sent to a State asylum, shall be equally applicable to similar expenses arising under this section. Id., §27. § 754. Persons Acquitted of Misdemeanors on Ground of Insanity, — Persons charged with misde- meanor and acquitted on the ground of insanity may be kept in custody and sent to a State asylum, in the same way as persons charged with crime, and their expenses shall be paid in the like manner. Id., §28. § 755, Fixing" Compensation for Conveying Lunatics to Asylum. — The boards of supervisors in the respective counties of this State are hereby empowered, and it BoAKD OF Supervisors — Miscellaneous Duties. 613 shall be their duty, annually to fix and determine the compensation to be allowed and paid to officers for the conveyance of juvenile delinquents to the houses of refuge, and of lunatics to the insane asylums, and no other, or greater, amount than so fixed and deter- mined shall be allowed and paid for such service. Id., § 29. § 756. Expenses of Insane Criminals at Asylums, Etc. — By section 32, whenever any insane person in confinement tmder a criminal charge, or under a conviction for a crime, or who has been acquitted of crime on the ground of insanity, shall be committed, as prescribed in the act, to any State lunatic asy- lum, or to the State Asylum for Insane Criminals at Auburn, the county in which such criminal charge arose, or such conviction or acquittal was had, shall defray all the expenses of such person while at such asylum, and the expense of returning him to such county ; but the county may recover the amount so paid, from his own estate, or from any relative, town, city or county that would have been bound by existing laws to provide for and maintain him else- where. The Code of Criminal Procedure, section 662, makes a similar provision as to the expenses of sending a lunatic criminal under indictment to the asylum, keeping him there and bringing him back. Local laws for the support of the insane exist formany counties. Of the Support of Idiots. § 757. By the act of May 12, 1862, to reorganize the State Asylum for Idiots, and to provide for the government and manage- ment thereof, the State Asylum for Idiots is to receive and educate, gratuitously, one hundred and twenty pupils, to be selected in equal numbers, as near as may be, from each judicial district, from those whose parents or guardians are unable to provide for their support therein, to be designated as State pupils. • No idiot shall be received into said asylum, unless the county judge of the county liable for his support shall certify that such idiot is an eligible and proper candidate for admission to said asylum as aforesaid ; provided, however, that idiots may be received into said asylum upon the application therefor, signed officially by any county superintendent of the poor, or by commissioners of charity of any of the cities of this State, where such commissioners exist. Laws of 1862, chap. 220, § 18, as amended by chap. 72, Laws of 187B; 3 R. S. 1937. 614 Supervisors' Manual. Discharg-e of Pupil and Payment of Expen- ses. — Whenever the trustees shall direct a State pupil to be dis- charged from the asylum, the superintendent thereof is authorized to return such pupil to the county from which he was sent to the asy- lum, and deliver hira to the keeper of the poor-house of such county ; and the superintendents of the poor of said county shall audit and pay the actual and reasonable expenses of such removal, as part of the contingent expenses of said poor-house. But if any town, county or person be legally liable for the support of such pupil, the amount of such expenses may be recovered for the use of the county by snch superintendents of the poor. If such superintendents of the poor neglect or refuse to pay such expenses, on demand, the treasurer of the asylum may pay the same and charge the amount to said county ; and the treasurer of said county shall pay the same, with interest after thii-ty days, out of any funds in his hands not otherwise appro- priated, and the supervisors of the said county shall levy and raise the amount as other county charges. Id., 9 19. § 758. Duty of Supervisor S.— The supervisors of any county in the State from which State pupils may be selected and received into the asylum, are hereby authorized and required, while such pupils ]-emain at the asylum, to raise the sum of $30 annually for the purpose of furnishing suitable clothing for each pupil from said county ; and on or before the first day of April in each year, to pay over the same to the treasurer of the asylum. The superintend- ent shall, on the reception of any pupil, give notice thereof to tlie clerk of the board of supervisors of the county from which such pupil shall have been sent. Id., 1 17, as amended by chap. 739, Laws of 1867. § 759. Of tlie Support of the Blind— Admis- sion of Blind to the State Institution. See ante, § 107. Expenses County Charg'e, etc. See ante, § 107. § 760. Of the Support of Deaf-Mutes- See ante, § 105. Board of Supeevisoes — Miscellaneous Duties. 615 Of Benevolent Institutions. § 761. Chapter 347 of the Laws of 1880 makes provision for the reporting of appointments or commitments to the benevolent institutions of the State. The statute reads as follows : Each of the asylums, reformatories, homes, retreats, penitentiaries, jails, or other institution of this State in which the board, instruc- tion, care or clothing of persons committed thereto is, or shall be, a charge against any county of this State or town therein, shall be known for the purposes of this act as one of the State benevolent Institutions of the State. Chap. 847, Laws o£ ^880, § 1 ; 8 E. S. 1894. Reports by Supervisor and Other Office]i?>9 to Board of Supervisors.— It shall be the duty of every judge, justice, superintendent of the poor, overseer of the poor, supervisor or other person who by law is authorized to make com- mitments or appointments to any of the State benevolent institutions of the State, to make a report in writing to the clerk of the board of supervisors of the county so liable, or of the county in which any town is so liable, for the board, instruction, care or clothing men- tioned in section 1 of this act ; said report shall be made within ten days after making such commitment or appointment, and shall show, when known, the nationality, age, sex and residence of each person so appointed or committed, and the length of time of such appoint- ment or commitment. 5 2. Reports hy Keeper, Etc.— It shall be the duty of the keeper, superintendent, warden, secretary, director, or other proper officer, of each of the State benevolent institutions of the State, within ten days after receiving any person into any of the institu- tions mentioned in section 1 of this act, whose board, care, instruc- tion, tuition or clothing shall be chargeable to any town or county, to make a report, in writing, to the clerk of the board of supervisors of the county so liable, or of which any town is so liable. Such report shall show when such persons were received into said institu- tion, and, when known, the name, age, sex, nationality, residence, length of time of commitment or appointment, the name of the oflBcer making such commitment or appointment, and the sum chargeable per week, month or year for such person. S8. 616 SuPEBvisoEs' Manual. § 762. Deatb, Removal or Discharge to be Reported. — In case of the death, removal or discharge of any person committed or appointed to any of the institutions mentioned in this act, it shall be the duty of the officers mentioned in section 3 of this act to immediately report to the clerk of the board of supervisors of the respective county the date of such death, removal or discharge § 763. OfiEicers to Render S-vrorn Statements of Accounts. — It shall be the duty of the officers mentioned in section 3 of this act, annually, on or before the fifth day of October, to present to the clerk of the board of supervisors of the county liable for the board, instruction, care, or clothing mentioned in this act, or of the county in which aDy town is so liable, a sworn statement of the account of such institution with such county or town, up to the first day of said October, and in case of a claim for clothing, an itemized statement of the same, and in case any part of the board, care, tuition, or clothing has been paid by any person or persons, the account shall show what sum has been so paid ; and accompanying such account shall be a report showing the name, age, sex, nationality and residence of each person mentioned in the account, the name of the officer who made the commitment or appointment, the date and length of commitment or appointment, the time to which the account has been paid, and the amount claimed to the first day of said October, the sum per week or per annum charged, and if no part of such account has been paid by any per- son or persons, the report shall show such fact duly verified. 8 5, a3 amended by Laws of 1881, chap. 278. § 764. Penalty for Neglect.— Any officer mentioned in this act who shall refuse or neglect to make the reports required by this act shall not be entitled to receive any compensation or pay for any services, salary or otherwise, from any town or county to which he is required to make such report. §6. § 765. Filing of Report.— The clerk of the board of supervisors who shall receive any report or account in pursuance of the provisions of this act shall carefully file the same and present the same to the respective boards of supervisors on the second day of the annual meeting of the board next succeeding the receipt of the same. §7. BOAED OF StTPBfiVlSORS — MiSCELLAUEOUS DUTIES. 617 § 766. Poor-Houses Exempt.— The poor-houses iu the several counties of this State are hereby exempted from the provis- ions of this act. S8. Nothing in this act contained shall be held to apply to the coimty of Kings. S9. §767. Boards of Supervisors may Estend Boundaries OfVilla^es, etc.— The boards of supervis- ors of the several counties are hereby authorized and empowered to extend the boundaries of any incorporated village within their re- spective counties, upon the petition of the president and board of trustees of such village, by a vote of a majority of all the supervis- ors elected, to be taken by yeas and nays, provided that no act, ordinance or resolution for such purpose shall be valid and operative, unless it shall receive the affirmative vote of the supervisors of the town or towns from which the additional territory is to be taken, in which such village is situated, and of the supervisor or supervisors, if any, of such village. And the said boards of supervisors are also authorized and empowered to diminish the boundaries of any incor- porated village within their respective counties, so as to exclude from such incorporation any portion of the territory embraced therein, upon the petition of two-thirds of the electors resident within the portion of territory sought to be so excluded, who shall be liable to be assessed for the ordinary and extraordinary expenditures of such village, by a vote of a majority of all the supervisors elected, to be taken by yeas and nays, provided that no act, ordinance or resolu- tion for such purpose shall be valid and operative, unless it shall receive the affirmative vote of the supervisor or supervisors, if any, of such village. Chap. 291, Latra of 1870, § 83, as emended by Lairs of 1871, chap. 870. APPOINTMENTS TO OFFICE. § 768. Qualifications.— No person shall be capable of holding a civil office who, at the timeof his election or appointment, shall not have attained the age of twenty-one years, and who sliall not then be a citizen of this State. ' § 1, art. 1, tit. 6, chap. 5, part 1, R. S. 865. § 769. Duration of.— Every office of which tlie duration 78 618 SuPEKVisoRs' Manual. is not prescribed by the Constitution, or is not or shall not be de- claimed by law, shall be held during the pleasure of the authority making the appointment. Id., §8. § 770. Commissions. — The commissions of all other officers, where no special provision is made by law, shall be signed by the presiding officers of the board, or body, or by the person making the appointment. Id.,§19, p. 367. Upon the trial of this action, in the nature of a quo warranto, to oast the de- fendant from the ofiBce of trustee of the village of N., it appeared that the relator claimed to be entitled to the office by virtue of a resolution adopted by the board of trustees of the village, appointing him to fill a vacancy in that office, created by the resignation of a former trustee; 7ield, that as it did not appear that any commission, signed by the presiding officers of the board, had been issued to the relator, as was required by section 19 (above), the complaint should be dismissed. People, exrel. Wright, v. WiUard, 44 Huo, 680. Under the provisions of the excise law of 1870 (§ 2, chap. 175, Laws of 1870), providing for the appointment of commissioners of excise in cities, such an appointment cannot be made verbally. It seems that no appointment to any civil office can be made verbally, save where permitted by the terms of the statute conferring the appointing power; in the absence of such permission, there must be a commis- sion, *. e., a formal writing signed by the official with whom the power of appointment rests, showing clearly his intention to appoint the person named, his belief that such writing is that required by the statute, and his intention to make it the final act on his part to perfect the appointment. People, ex rel. Babcocic, v. Murray, 70 N. T . 521 , POTTCrs. — Where a power of appointment to a public trust or office is conferred upon one or more persons, they cannot appoint one of their own number. Such an appointment, if made, is void. People, ex rel. Davis, v. Thomas, 83 Barb 287. The official acts of one exercising an office, under the appoint- ment of one who has no power to appoint, are void. People, ex rel. Kearney, v. Carter, 29 Barb. 208. Public offices in this State are not incorporeal hereditaments, nor have they the character or qualities of grants. They are agencies. BoABD OF Supervisors — MiscBLLANEons Duties. 619^ Except in the special cases where the Constitution prohibits it, the legislature may control the unearned emoluments of office. Ct. App., 1851, Conner V. Mayor, etc., 5N. Y. 285. A board of officers having the power of appointment to an office cannot reduce the amount fixed by law as the salary of said office^ or make a binding contract with their appointee to perform the du- ties of the office at a less sum. People, exrel. Satterlee, v. Board of Police, 75 N. Y. 38. § 771. Po-wers not to be Deleg-ated.— Publia trusts for the appointment of officers at pleasure, can never be di- vested nor delegated. Auburn Academy v. Strong, Hopk. 278, 202 (m. p.). § 773. Resignations sliall be Made 'as fol- lovrs: 1. By the governor, lieutenant-governor, secretary of State, comp- troller, treasurer, attorney-general, surve^j^or-general and State printer, to the legislature. 2. By all officers appointed by the governor alone, or by him with the consent of the senate, to the governor. 3. By senators and members of assembly, to the presiding officer* of their respective houses, who shall immediately transmit the same to the secretary of State. 4. By sheriffs, coroners, county clerks and register of New York, to the governor. • 5. By district attorneys, to the court which appointed them. 6. By justices of the peace, to the supervisor of the town. 7. By commiseionere of deeds for towns, to the first judge of the county. 8. By all other officers, to the body, board or officer that ap- pointed them. IR. S.370, §33(m.p. 122). In all cases not otherwise provided for by law, resignation of an office may be made by filing, in the office of the secretary of State, a written resignation thereof, signed by the incumbent ; and there- upon the office so relinquished shall be deemed to be vacant. Chap. 126, Laws of 1850. A resignation in writing, without seal, is effectual, though the statute requires the appointment to the office in question to be under €20 SuPBRTisoEs' Manual. seal, for the provisions of the statute relating to resignations are si- lent as to a seal, and it seems that acceptance of the resignation is unnecessary. Sup. Ct., 1851, Gilbert V. Luce, 11 Barb. 91, 204. Independent of any statute, the right of accepting the resignation of an officer passes as incidental to the power of appointing him. VanOrsdallv. Hazard, 8 Hill, 243. Where no particular mode of resigning an office is specially pro- vided, and the appointment is not by deed, neither the resignation nor its acceptance need be in writing, but may be by parol. Nor is any form of words requisite to constitute a resignation or accept- ance, in such case. Id. The acceptance of a resignation may he manifested by the acts of those authorized to receive it : e. g., appointing a successor. Id. That a power of appointment given by law in general terms and without restriction, for the purpose of carrying out some project, of which it forms only a part, implies the power of removal. So hdd, of municipal corporation having power to appoint commissioners of estimate and assessments in cases of local improvements. Sup. ct., 1849, People V. Mayor, etc., of N. T. 5 Barb. 48; Laimbeer v. Mayor, etc., of N. Y. 4 Sandf. 109. § 773- Veterans to be Preferred.— In every pub- lic depai'tment and upon all public works of the State of New York, and of the cities and towns and villages thereof, and also in non- competitive examinations under the civil service laws, rules or regu- lations of the same wherever they apply, honorably discharged Uuion, soldiers and sailors shall be preferred for appointment and employ- ment ; age, loss of limb, or physical impairment which does not in fact, incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position involved. § 1, obap. 812, Laws of 1884, as amended by chap. 464, Laws of 1887. Penalty. — All officials or other persons having power of ap- pointment to or employment in the public service as set forth iu the first section of this act, are charged with a faithful compliance with its terms, both in the letter and spirit, and a failure therein shall be a misdemeanor. Id., s 2. Board of Supebvisoes — Miscellaneous Duties. 631 Soldiers and Sailors not to be Removed, Except, etc. — No person holding a position by appointment in any city or county of this State receiving a salary from such city or county, (unless he has been appointed for a definite term) who is an honorably discharged soldier, sailor or marine, having served as such in the Union army or navy during the vs^ar of the rebellion, shall be removed from such position except for cause shown after a hearing had ; but this provision shall not be construed to apply to the position of private secretary, or chief clerk or deputy of any official or department, or to any other person holding a confidential relation to the appointing officer. Chap. 119, Laws of 1888, § 1. Repeal. — All laws or part of laws inconsistent with the pro- visions of this law are hereby repealed. Id., §2. Under this act, discharged soldiers and sailors have not, because found qualified, an absolute right of preference over all others, but only a preference to others having an equal or lower standing. People, ea rel. CMd, t. Poillon, 16 Abb. N. C. 119. Held, constitutional. In re Wortman, 22 id. 137. No officer or appointing power has authority to deny the statutory preference in appointment to public office given to honorably dis- charged soldiers and sailors * * * and a mandamus lies to en- force the observance of this preference. Id. The failure of the applicant to bring to the notice of the appoint- ing power, the fact that he was such soldier, will preclude his right to a mandamus to compel consent to his appointment. Id. A tax payer may maintain an action to enjoin a municipal corpo- ration from paying for services of an officer appointed in violation of this law. Id., p. 144. Where an application by such veteran for appointment to a public office, stating that he is qualified to perform all the duties of the position and the appointing officers inform him that they consider him incompetent, he is required under chapter 464, Laws of 1887, to establish the fact of his qualification by affidavits of others and ^23 Supervisors' Makual. not by their mere written recommendations, before he is entitled to relief by mandamus. People, «c r«2. Waterman, v. Enapp, 4N. T. Supp. 825. Laws E". Y., 1887, chap. 464:, provides that honorably discharged Union soldiers shall be preferred "for appointment and employ- ment." Fonr temporary clerks were appointed, and only one was a soldier, and the business falling off, the soldier was discharged and the others were retained. Held, that under the act the soldier should have been discharged last of the four temporary clerks. People, ex rel. 0' Conner, t. Adams, 6 N. Y. Supp. 128. Held, that, under the provision of chapter 29 of 1886, providing that a veteran of the war shall not be disqualified for holding any position on account of his age, or by reason of any physical disa- bility, provided that such age or disability does not render him in- competent to perform the duties of the position, a dismissal of the relator from the police force simply upon the ground of his age was improper. The provisions of the act (Chap. 29 of the Laws of 1886) relate to the qualifications of veterans of the war actually in office as well as to those of such veterans who are applicants for office. People, ex rel. Washburn, v. French, 62 Hun, 464. The "civU service" law applies to State and city officers, and most of the cases yet decided apply to such officers. The above fihow the decisions applicable to towns and counties. CHAPTER XI. ORGANIZATION OF THE BOARD OF SUPERVISORS. Sbo. 774. Of whom composed . Sbc. 785. Rules of order. 775. Annual and special meetings. 786. To determine cases of contested 776. Annual meetings. How time there- membership. forflzed,etc. 787. Cannot appoint supervisor to office. 777. Special meeting. 788. Code of rules — First. 778. Quorum. 789. —Second. 779. Chairman. 790. Committees. 780. Organization. 791. — Who is chairman of . 781-4. Clerk and officers. 792. —Standing. § 7T4. Of Whom Composed.— The board of supervis- ors are composed of the supervisors of all towns and wards in the connty, except in New York ; Kings county has one supervisor at large. Local laws have been paaaed making the term of office two years, but such laws have been adjudged by the courts to be unconstitutional and void. People V. UoSman, 60 How. 324; affirmed, 24 Hun, 142. § 775. Annual and Special Meeting^s.— It is the duty of the supervisor of each town to attend the annual and every adjourned and special meeting of the board. § 776. Annual Meeting — Hott time Tbere- for Fixed— Vote Required. — The board have power to fix the time and place of holding their annual meeting, by a vote of a majority of all the members elected in the county, and have gen- erally availed themselves of this right. Laws of 1849, chap. 194 (§ 553, ante); 2 R. S. 981. The annual meeting is generally on the Wednesday following the meeting of the board of county canvassers. In OSTTegO County. — The annual sessions of the board of supervisors of Oswego county, after organizing at the county clerk's office, at the meeting of the board of county canvassers, shall be held in the court-house in the city of Oswego, or in the court- house in the village of Pulaski, and all special sessions shall be held in one of said court-houses, and no session shall be held elsewhere. Laws of 1869, chap. 110, § 1, as amended by Laws of 1871, chap. 216, % 1. 624 ScPEEviaoBs' Manual. AdjoUPned Sessions. — It shall be lawful for the said board of supervisors, after organizing in the county clerk's office as above specified, to adjourn to meet in either of the above-named court-houses as a majority shall decide ; but mileage shall be allowed but once each way from the residence of each supervisor to the place of meeting over the usually traveled route, during one annual session, the meeting as a board of canvassers and the meeting as a board of supervisors, being taken as one session. Id., § 3, 39 amended by Laws of 1871, chap. 216, § 2. §777. Special Meetings.— Special meetings may be called by the clerk of the board, at any time, on the written request of a majority of the board. Laws of 1838, chap. 314, § 5; 2 R. S. 928. Meetings Must be Public— The boards of supervis- ors shall sit with open doors, and all persons may attend their meet- ings. 2R. S. 926. §778. QuOPum. — A majority of the supervisors of the county shall constitute a quorum for the transaction of business ; and all questions which shall arise at their meetings shall be deter- mined by the votes of the supervisors present. There are certain questions which require a majority of the members of the board elected, others two-thirds of those elected. The law is in full, chap. IX, ante. These provisions cannot be altered by a rule of the board. People, exrd. Burroughs, v. Briukerhoff, 68 N. Y. 259. § 7 79. Cliaiii:*nia>n. — The board of supervisors shall, at each annual meeting, choose one of their number as chairman, who shall preside at such meeting, and at all other meetings held during the year. In case of his absence at any meeting, the members present shall choose one of their number as a temporary chairman. 2R. S. 926, §7. § 780. Organization.— Prior to the annual meeting, the clerk of the preceding board generally prepares a roll of the mem- bers elected. The som-ces of his information are the certificates of election from the proper town officer. See " Credentials," § 35, ante. At the time and place appointed for holding the annual meeting, Oegakizatioit of the Board of Supeevisoks. 625 tlie supervisors are called to order by the clerk of the preceding board, who calls the roll of the names of the supervisors elected. If any seat is contested, the one having the proper credentials from the town clerk or other proper town officers is entitled to his seat until the question is referred to a committee for investigation. The board can adopt or reject the report of such committee, and de- termine who is entitled to a seat. See note below. If the question has been tested by a court, such adjudication de- termines the matter. If a quorum is not present, an adjournment should be taken to such time as will enable the absent members to attend. Either a temporary or permanent organization can be made. A caucus generally decides who the officers shall be, and also who shall make the proper motions therefor at the meeting of the board. This saves time and trouble. It is the custom, for the clerk of the preceding board to caU the board to order as before stated, and to preside until a chairman is chosen, but this right is based on no statute and is only a matter of courtesy. The statute says that the supervisors shalj choose a chairman, but does not say how it shall be done, or who must pre- side thereat, leaving it to their discretion how to proceed. Instances have been known where the clerk has forgotten that he is presiding, hy courtesy only, and not by legal right, and the attempted organiza- tion of the board has been attended by the methods more common at "snap caucuses" than are consistent with legislative bodies. In such cases the board can protect itself by standing on its own dignity and the rights given it by law, and the method by which " they shall choose a chairman,^'' is in their discretion, to be exercised in any proper, decent manner they see fit to adopt. If, how- ever, the clerk does his duty without feSr or favor, there is no objection to his presiding until a chairman is chosen, and he then puts the motion pertaining to the chairman, which may be viva voce or by ballot, or on a call of the roll, each supervisor rising and nam- ing his choice for chairman. After a chairman is elected he puts the other motions as they are made, and the former clerk's duties as presiding officer are ended. The officers chosen in the permanent organization are : 1. A chairman, who shall preside at such meeting and in all other meetings held during the year. 2B. S. 926. 79 626 Supervisors' Maxual. In Kings caunty a supervisor at large is elected who is ex officio chairman of the board, possessing merely a casting vote in case of a tie. Laws of 1871, chap. 115. In Erie county. The chairman of the board of supervisors of Erie county, chosen at the annual meeting thereof, in the year 1885, and at each annual session thereafter, shall hold his office as such chairman until the day preceding the first Tuesday in October in each and every year, for the purpose of filling any vacancies in office which he is now or may hereafter be authorized to fill; and upon him as such chairman all legal notices, and processes in any action or proceeding against said county, or in which said county is inter- ested, shall be served ; and as such chairman he is hereby authorized to execute in the name of said board all conveyances of real estate belonging to said county, in pursuance of any resolution of said board directing the same ; and as such to accept in behalf of said board all conveyances of real estate to said county of Erie, when authorized by said board so to do ; and as such chairman he shall preside at all special meetings of said board in case he shall be at that time a member of said board of supervisors of said county, and act- ing as such. Laws of 1886, chap. S62, $1. Albany county, Bee § 536, ante, § 781. 2. A Cleric. — The board, as often as may be neces- sary, shall appoint some proper person to be their clerk, who shall hold his office during their pleasure. 2R. S. 92r, §9. The duties of the clerk are prescribed by law, and are given in full hereafter. Chap. Xni. § 782. His Term of Office.— Every officer duly ap- pointed, except the chancellor, justices of the supreme court and cir- cuit judges, who shall have duly entered on the duties of his office,8hall continue to discharge the duties thereof, although his term of office shall have expired, until a successor in such office shall be duly qualified. IR. S. 865, §9(m. p. 117). In Erie county he is required to give a bond before entering on the duties of his office, in the penalty of $10,000, to be approved by the chairman of the board. Chap. 231, Laws of 1876, as amended by chap. 195, Laws of 1879. Oegan-ization of the Board op Supervisoks. 637 Xings county has a special law on this subject. Chap. 353, Lawaof 18T8. §783. 3. A Reading Clerk. — Some member is gen- erally chosen, for convenience, as reading clerk, whose duty it is to read before the board all resolutions oflEered, reports of committees, and other communications presented. § 784. 4. A JaiUitOZ* is also generally chosen, some person outside of the board, whose duty it is to attend to and keep the rooms in order, act as messenger or page at the meetings of the board, etc. Other officers, at the pleasure of the board, may be appointed, except where a special statute otherwise prescribes. There are various local statutes on this subject. § 785. Rules of Order.— A code of rules or regulations is generally adopted before proceeding further. If the former board had one that is satisfactory, it may be adopted, on motion, or a new set prepared by a committee. The board determine this question at their own pleasure. The board have power, by resolution, to be duly entered on their minutes of proceedings, and to be published therewith : " To make rules for the conduct of their proceedings, to compel the attendance of absent members at meetings of their respective boards, and for the maintenance of order and decorum at such meet- ings, and to enforce pecuniary penalties, not exceeding $50 for each ■offense, for the violation of such rules." See " Codes," nest section but one. Laws of 1875, chap. 482, § 7, subd. 1. A rule of the board which is opposed to an express statute is void. People, CT r«Z. Burroughs, t. Brinkerhoff, 68 N. Y. 259, Among the rules adopted by the board of supervisors of Westchester county was one providing that a motion for reconsideration might be made by any mem- ber, but that no such motion should be in order unless made on the same day or on the next day following the decision proposed to be reconsidered, unless by unanimous consent. On January 2, 1874, a, resolution was offered in the board; appointing one Kinch its librarian. The resolution was amended by inserting the name of the relator for that of Kinch, and, as so amended, it was adopted. On January 3, a motion to reconsider this resolution was carried; on January 4, the resolution was reconsidered and lost; on January 7, » resolution appointing Kinch librarian was adopted. Seld, that the board had power to reconsider and rescind the resolution by which the relator was appointed its librarian, and to thereafter appoint Kinch to that office. People, exrel. Birch, r. Mills, 82 Hun, 459. 628 SuPEEVisoKs' Manual. § 786. To Determine Cases of Contested Membersllip.-^ They have authority, by resolution, to be duly entered on their minutes of proceedings and to be published therewith : " To determine, unless the same shall have been determined by a court having jurisdiction thereof, upon the returns of the proper certifying oflBcers, and upon such other testimony furnished to them as would be competent in a court of law, all cases of contested membership in their respective boards, and, when so determined in any case, the decision shall be conclusive as to the right of the par- ties to the contest." Chap. 482, Laws of 1875, §7, subd. 2. § 787. Cannoit Appoint Supervisor to OflBce. — Where a power of appointment to a public trust or office is con- ferred upon one or more persons, they cannot appoint one of their own number. Such an appointment, if made, is void. People, enrel. Davis, v. Thomas, 33 Barb. 287. § 788. Code of Rules. — The following codes of rnles are in use in different counties : First Code. 1. Tlie board shall assemble at suc^ times as they may determine at a previous session, or upon call of tbe chairman; and when so called, shall be at the hours of ten o'clock, A. M. , and two o'clock and seven o'clock, P. M. 2. The chairman shall preserve order at the sessions and have power to call any member of the board temporarily to the chair, and shall appoint all committees of the board, unless otherwise specially ordered. 3. A member desiring to speak or present any subject-matter to the board shall rise and address the chair, and shall not further proceed until recognized by the chair, and awarded the floor for such purpose. 4. No debate shall be in order until the pending question shall be stated by the chair. 5. When two or more members arise to speak at the same time, the chair shall determine which is entitled to the floor. 6. Any member upon being called to order shall take his seat, and shall remain therein until the board determine the point raised, and if the call shall be sus- tained, he shall not further proceed except in order, and by permission of the board. 7. Any resolution which by its terms calls for the appropriation of money for any specific object or purpose shall be read, for the information of the board, at least one session prior to its being put upon its passage, upon the request or motion of any member thereof. 8. Every member who shall be present when any vote upon a question is taken shall vote upon the same unless excused by the board, or unless he haa a direct interest in the result thereof. 9. No motion for the reconsideration of the vote upon any question shall be entertained unless moved by one who voted in the majority upon such question, nor unless such motion be made within three days (upon which sessions of the board shall be held) subsequent to such vote having been taken. 10. A motion for the reconsideration of any question having been made and decided in the negative, no proposition for further reconsideration shall be entertained. Organization of the Boaud of Stjpeevisoes. 629 11 The " previous question " shall be as follows; " Shall the main question be now put ? " and until it is decided shall preclude all amendments' or debate. When, on taking the previous question, the board shall decide that the main question shall not now be put, the main question shall be considered as still remaining under debate. The ' ' main question " shall be on the passage of the matter under consideration, but when amendments are pending, the question shall first be taken upon such amendments in their order. 13. The ayes and nays shall be taken upon any question on the demand of two Tuembers, and every member within the railing shall vote when his name is called, unless excused by the board therefrom. 13. At each session, the business shall be: 1st. Reading the minutes of the last preceding session. 2d. The presentation of petitions and communications. 3d. Reports of committees. 4th. Motions and resolutions. When a question shall be under consideration, no motion shall be received «xcept as herein specified, which motions shall have precedence in the following order: 1. An adjournment, or recess of such session. 3. For the previous question. 3. To lay on the table. 4. To refer to standing committee. 5. To refer to select committee. 6. To amend. (The first three motions are neither amendaiU nor debatable.} 14. All resolutions offered shall be in writing, and shall be entered at length upon the journal. 15. The question of concurrence with the report of any auditing committee shall be laid upon the table until the next succeeding meeting of the board, upon the request or upon motion of any member of such board. 16. These rules shall not be amended except upon notice of at least one session of the board previous thereto, and upon a day succeeding such notice; nor shall they be suspended except in special cases, and then only upon receiving the afBrm- ative vote of two-thirds of all the members of the board. § 789. 1. Second Code. Upon the appearance of a quorum, the chairman having taken the chair, and the members being called to order, the minutes of the preceding day must be read, to the end that any mistake therein may be corrected by the board. 2. Order of Business. After the minutes are read and approved, the order of business shall be as fol- lows: ' 1. The presentation of petitions. 3. Reports of standing committees. 3. Reports of select committees. 4. Introduction of resolutions, notices and motions. 5. Unfinished business. • 6. Special orders of the day. 3. Standing Committees. Standing committees shall consist of three; except the equalization committee, ■which shall consist of nine members, and shall be appointed on the following subjects, to-wit : 1. Sheriff and jailer. 3. County judge and surrogate. 3. County justices. 630 SuPERvisoEs' Manual. 4. County clerk, 5. Lunatic and other asylums. 6. Loan oflScers and coroners. 7. Capital police. 8. City constables — First assessor district. 9. City constables — Second assessor district. 10. City constables — Third assessor district. 11. Constables of north assembly district. 13. Constables of south assembly district. 13. Miscellaneous accounts. 14. District attorney. 15. House of industry. 16. County treasurer. 17. Finance. 18. Equalization. > 19. Unfinished business. 20. Law committee. 21. County buildings; other than those embraced in the fifth and fifteenth subdivisions of this rule. 22. Printing. 23. Refundang committee. 24. Military. And it shall be the duty of each of the several committees to inquire into the matter indicated by its name, and report thereon to this board as soon as may be, and at least two days before the last day of the annual meeting, and also any in- formation and any resolution which it may deem conducive to the public good, 4. Priority of Business. All q uestions relating to the priority of business, that is, the priority of one question or subject-matter over another, under the same order of buainesB, shall be decided without debate. 5. Chairman to Preserve Order. The chairman to preserve order and decorum, and decide all questions of order, which decision shall be final, unless an appeal is taken to the board. On an ap- peal from the decision of the chairman, he shall have the right in his place to as- sign his reason for his decision. He shall also have the right to substitute any member to perform the duties of the chairman, but such |,substitution shall not extend beyond two days, unless by leave of the board. 6. Vote of Cliairman. When the board is equally divided, including the chairman's vote the question shall be deemed to be lost. 7. Order. When the chairman is putting a question, no member shall walk across or Out of the room. 8. Order of Speaking. A member rising to debate, to give a notice, to make a motion or report, or to present a petition or other paper, shall address the chairman, and shall not pro- ceed further until recognized by Mm. Orgahization of the Board of Supervisors. 631 9. Members Entitled to Speak. No member shall speak more than twice, nor more than five minutes to the same general question, without leave of the board. 10. Order and Silence. While a member is speaking, no member shall entertain any private discourse, or pass between him and the chair. 11. Calls to Order. If any member, in speaking or otherwise, transgresses the rules of the board, the chairman or aiiy member may call to order, in which case the member so called to order shall inmiediately sit down, unless permitted to explain. 12. Members Entitled to Vote. Every member who shall be present when any question is stated from the chair, shall vote thereon, unless excused by the board, or unless he be directly interested in the question, in which case he shall not be allowed to vote . 13. Manner of Presenting^ Petitions. Every member, previous to presenting a petition or memorial, shall indorse on the same the subject to which it relates, and add his name; the clerk hands his name to the chairman, who shall state the substance thereof , after which he shall put the question on the disposition of said petition or memorial. 14. Motions and Resolutions. Every motion or resolution shall be first stated by the chairman, or read by the clerk before debate, and immediately before the question is put; and every such motion, except of the class of motions embraced in rule 18, shall be reduced to writing, if the chairman or any member desire it. 15. Witbdra-wal of Motion. After a motion is stated by the chairman, it shall be deemed to be in the pos- session of the house, but may be withdrawn at any time before a decision is made or an amendment adopted. 16. Divisions of Questions. If the question in debate contains several distinct propositions, the same shall be divided by the chair at the request of any member, to the end that a vote may be taken on each proposition; but a motion to strike out and insert shall be deemed indivisible. 17. Filling Blanks. When a blank is to be filled, and different sums or times are proposed, the question shall first be put on the largest sum and longest time. 633 SuPBKTisoKs' Manual. 18. Motions, TVlien Receivable. When a question is under debate, no motion shall be entertained, unless for an adjournment of the board, for the previous question, to postpone indefinitely, to postpone to a certain day, to lay it on the table, to commit it, to amend it; these several motions shall have precedence in the order in which they are here stated. 19. A motion to lay a question on the table shall be decided without amendment or debate, and a motion to postpone a question indefinitely, or to adjourn to a day certain, until it is decided, shall preclude all amendment of the main question. 20. Previous Question. The "previous question" shall be as follows: "Shall the main question now be put?" and, until it is decided, shall preclude all amendment and debate. When, on taking the previous question, the board shall decide that the question shall not now be put, the main question shall be considered as still remaining un- der debate. The main question .shall be on the passage of the resolution or other matter under consideration. 21. Adjournment. A motion to adjourn the board shall always be in order, and decided without debate. 22. Entries on Minutes. In all cases where a resolution or motion shall be entered on the minutes, the clerk shall also enter the name of the moving member. 23. Committee of tlie Tliriiole. In forming a committee of the whole board, the chairman shall leave the chair, and appoint a chairman to preside. 24. Rules for tliat Committee. ' The rules of the board shall be observed in the committee of the whole, so far as they may be applicable, except limiting the number of times of speaking, and except that the ayes and noes shall not be taken, and except, also, that a motion to rise and report progress shall always be in order, and shall be decided without debate. 25. Motions to Reconsider. No motion for reconsideration, except by unanimous consent, shall be in order, unless on the same day, or on one of the three days of session following that on which the decision proposed to be reconsidered took place, nor unless one of the majority shall move such reconsideration; and a motion for reconsideration, being put and lost, shall not be renewed; nor shall any vote be a second time reconsid- ered without unanimous consent. 26. Altering" Rules. No standing rule or order of this board shall be rescinded, suspended or changed, nor any rule or order added thereto, unless it be by unanimous consent, or with- out one day's notice being given of the motion therefor; and such notice shall in all cases state specifically we object of the suspension. Okganization of the Boaed of Supbevisoes. 633 2t. Excuse from Voting. Every member requesting to be excused from voting may make a brief and ver- bal statement of the reason for making such request, and the question shall be taken without further debate. 28. The chairman shall, with the concurrence of the board, appoint all commit- tees except where the board shall otherwise order. 29. Committees, on making reports, shall return to the clerk all the papers re- lating thereto. 30. All reports of committees may be read by the members making them, when called in their order, and then be presented to the board; but the board may dis- pense with the reading thereof. 31. All reports of standing committees on the auditing of accounts and the report of the equalizing committee shall lie over one day at least before being acted upon. 33. All reports, resolutions and other matters laid on the table may be called therefrom under subdivision four of rule second, in the order of business. The " first '' set of rules have been found suflBcient for all practical purposes § 790. Conmiittees. — The standing committees are ap- pointed as the rules prescribe by the chairman or the board. § 791. Who is Chairiuan of Committee — Riglit of Members of Committee to Elect Tlieir Clia>irmaill. — The first member named on a committee is their chairman (in his absence the next named member becomes chairman, and so on), and should act as such unless the committee, hy a majority of their number, elect another chairman, which they are competent to do. Roberta' Bales of Order, § 28; Cushing's MaiAial, § 273. His right to act as chairman is a matter of covHesy merely. Id. The chairman of the committee is to call the committee together, Ibut it is the duty of a committee to meet on the call of any two of its members, if the chairman be absent or decline to appoint such meeting. A quorum consists of a majority of the members of the committee. The rules of the board, as far as possible, apply to a com- mittee ; but a reconsideration of a vote is allowed, regardless of the time elapsed, only when every member who voted with the majority is present when the reconsideration is moved. It may appoint a sub-committee. ISo allusion should be made in the board to what has occurred in committee, except it be by a report of a committee, or by general consent. It is a miniature board, that must meet together in order to transact business, and usually one of its mem- bers should be appointed clerk. Roberts' Bales of Order, § 28. 80 634 SuPEfiTisoRs' Makual. The board has a right to name the time and place for a committee to meet, and it cannot regularly sit at any other time or place, and it may be ordered to sit immediately whilst the board is sitting and make its report forthwith. Cushiug's Manual, 8 274. When no directions are given by the board, it may select its own time and place to meet, and adjourn when it pleases. Id., 215-1. The final decision or suggestions of a committee should be em- bodied in a resolution, and is usually placed at the conclusion of its report. The reasons for this are stated at section 648, ante. § 792. Standings Committees.— The practice varies in different counties. Some use the following : STANDING COMMITTEEa 1. On form of assessmeut-rolls. 3. On footing of assessment-rolls. 3. On accounts in the department of the sheriff. 4. On accounts of justices and constables. 5. On miscellaneous accounts. 6. On accounts connected with coroners' inquest, etc. 7. On printing and stationery. 8. On accounts connected with the county buildings. 9. On accounts connected with the support of the poor. 10. On accounts of supervisors as such. 11. On erroneous assessments. 12. On erroneous taxes. 13. On military affairs. 14. On uncollected resident, school and highway taxes. 15. On roads and bridges. 16. On judiciary. 17. On legislation. 18. On State loans. 19. On settlement with county treasurer. 30. On interment of deceased soldiers and sailors. 31. On incorporated companies. 38. On State lunatic asylum. 33. On grand jury lists. 24. On orphan asylums. 25. On ratio and apportionment of taxes. 26. On rejected taxes. 27. On equalization. 'When Not to Act on Committees.— Ko supervisor should act as a member of any standing committee of the board of supervisors having at the time under consideration any bill in which such supervisor shall be pecuniarily interested. CHAPTER XII. COMMITTEE ON LEGISLATION. Sbc. Y93. Forms. Sbo. 796. Resolution to divide town and erect 794. Authorizing survey of highway a new town. and tnaking records thereof. 797 . To authorize town meetings to be 795. Authorizing town to borrow held by election districts . money . 798 . Declaration of vote by chairman . COMMITTEE ON RATIO AND APPORTIONMENT OP TAXES. Sbo.799. Apportioning the taxes. Sec. 801. Ratio and apportionment table, 800. Summary. 802. Directions for preparing the sched- ule. COMMITTEE ON LEGISLATION. § T93. Forms. — The following forms are believed to fully comply with the requirements of Laws of 1875, chap, 482. 1. For Bonding'. RESOLUTION No Number. A RESOLUTION to Borrow $14,000 on the credit of the county, by the Title and issue of County Bonds therefor, and to Authorize the County Treasurer statement, to issue and negotiate said bonds for the purpose of Altering and Improv- ing the County House at Rome, N. Y., passed in pursuance of the pro- visions of chapter 482, of the Laws of 1875, and its amendments, a Major- ity of all the Supervisors Elected to the Board voting in favor thereof. Resolved, That the funds wherewith to alter and improve the county EesoIu» house at Rome, be realized from bonds issued by said county, and bearing ''°°s- interest at 4 per cent per annum, in manner following: Series No. 1. "For the altering and improving the county house," four thousand dollars, to mature March 1, 1887, payable at the office of the county treasurer. Series No. 3. "For the altering and improving the county house,' five thousand dollars, to mature March 1, 1888, payable at the office of the county treasurer. Series No. 3. "For the altering and improving the county house," five thousand dollars, to mature March 1, 1889, payable at the office of the county treasurer. Resolved, That the county treasurer be and he is hereby authorized and directed to issue and negotiate said bonds, according to law and not less than the par value thereof, and to the best advantage, and apply the proceeds thereof in payment of the expenses of said alteration and im- provement, and that prior to the issuing and negotiation of said bonds, said county treasurer execute, acknowledge and deliver to this board, a bond in pursuance of section 3, chapter 483, Laws of 1875, in the penal Bum of $30,000 with two sureties to be approved by the county judge, for the faithful performance of his duty in the issue of such bonds and the lawful application of the funds arising therefrom, and the full accounting therefor, and of the funds which may be raised by tax for the payment thereof which may come into his hands annually, to the board of supervisors of said county. <636 SuPEKvisoEs' Manual. Mesohed, That any and all expenses incurred, or services rendered by the county treasurer, in the carrying out of the duties herewith im- posed, be presented to the board of supervisors for their audit and allowance. Resolved, That the form of the bond so to be issued shall be as fol- lows. form of "No Series No.... iga ion. ^ Bond. . County of Oneida. . . . For the Altering and Improving the County House. Know All Men by These Presents, that the county of Oneida is held and firmly bound unto in the sum of dollars, to be paid to the said his or their certain representatives, successors or assigns on the 1st day of March, 188. . ., for which payment well and truly to be made, the said county of Oneida binds itself firmly by these presents. Dated the day of 18 . The Condition of this Obligation is such that if the ubove-bounden County of Oneida shall well and truly pay or cause to be paid to the above-named his or their certain representatives, suc- cessors or assigns, the sum of dollars, and annual interest upon all sums unpaid thereon, to be paid on the first day of March, 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 principal and interest to be made at the office of the county treasurer. This bond is issued in pursuance of chapter 483, Laws of 1875, and of a resolution of the board of sapervisors of said county, passed Decem- ber...., 18 . In witness whereof, the said county has caused these pres- r n ents to be attested by the official seal of said board of super- >■ ' -I visors, and signed by the treasurer of said county the day and year above written. County Trbasdbeb. Certlfl STATE OF NEW YORK, ' cate. Oneida County, ;OAKD OP SUPBKVIf Dated , 18 In Boakd op Supervisors, f "' •' The foregoing resolution was duly passed by a majority of all the members elected to the said board, voting in favor thereof. r, o 1 By Order of the Board. '■ ■■ LESTER G. WATTFUL. H. B. Mazfield, Chairman." CliBRK. § 794. 2. Authorizing- Survey of Higliway and Making* Records Thereof. RESOLUTION No.. A resolution authorizing and directing the highway commissioner of the town of Lee, at the expense of said town, to cause surveys of any and all highways in said town, and to make a complete systematic record thereof, and establish the location of said highways by suitable monuments. Passed in pursuance of subdivision 11 of section 1 of chapter 482 of the Laws of 1875, and the amendments thereof, by a vote of a majority of all the super- yisors elected to the board, including the supervisor from the town of Lee, voting in favor thereof. Committee on Lbgislatiok. 637 BesoUed, That the highway commissioner of the town of Lee be, and he is hereby anthorized and directed, at the expense of said town, to cause survey to be- made of any and all highways in said town, and to make a complete and system- atic record thereof, and to revise, collate and rearrange existing records of high- ways, and to correct and verify the same by new surveys, and to establish the location of highways by suitable monuments whenever such commissioner may deem it expedient. Such records so made or revised, corrected and verified, shall be deposited witli the town clerk of said town, and shall thereafter be the lawful records of the highways which they describe, but shall not affect rights pending in any judicial proceedings commenced prior to the deposit with the. town clerk of such new or revised records STATE OF NEW YORK, ] CoxiNTT OF Oneida, I . In Boabd of Stjpervisoks, f " Nov. th, 18 . J The foregoing resolution was duly passed by a majority of all the fL. B.J members elected to said board, including the supervisor of the town of Lee, voting in favor thereof by yeas and nayS: , Clerk. , Chairmak. 3. Autbopizing I^evy for Road-Scraper. (Number, title and statement as before.) Sesohed, That pursuant' to the certificate and request of the board of auditors of the town of Deerfield, made to the board in accordance with the provisions of chapter 398, Laws of 1883, and duly placed upon the files of this body, the fol- lowing sums, as apportioned by said auditors to the several highway districts in said town, viz.: District No. 2, $58.86; District No. 5, $58:40; District No. 16, $24.36; District No. 41, $58.40; District No. 43, $16.86; District No 47, $19.50; aggregating the sum of $236.38, and the amount of said tax, as extended against the owners of the taxable property in said districts, for the purpose of procuring and defraying the cost of two Waldo road-scrapers for the joint use of said high- way districts, be, and the same is hereby confirmed in each and every respect, and that the collector of taxes in and for said town be directed to pay the moneys resulting from the said taxes to thei commissioner of highways thereof. {Add certificate.) This resolution should be passed after the tax against the proper tax payers has been extended and entered in the assessment-roll. § 795. 4. Authorizing Town to BorroTT Money. (Number, title and statement as before.) RESOLUTION No.... Number. A RESOLUTION authorizing the town of Forestport to borrow Title and $2,000 on the credit of said town, by the issue of town bonds therefor, state- and to authorize the supervisor of said town to issue and negotiate said ™6nt. bonds for the purpose of liquidating the expenses of erecting and main- taining bridges therein, and to provide means for payment thereof, passed in pursuance of the provisions of chapter 482, Laws of 1875, and its amendments, a majority of all the supervisors elected to the board voting in favor thereof. Whereas, The supervisor of the town of Forestport has applied, by and with the consent of the commissioners of highways, the justices 638 SupEKVisoEs' Mahttal. of the peace and town clerk of said town (which application and consent are duly filed), to borrow the sum of $3,000, for and on credit of said town for the purpose above mentioned ; therefore Resolved, That the town of Forestport, in said county, be, and the same is hereby authorized to borrow the sum of $3,000, to pay said ex- penses of erecting and maintaining bridges in said town, and to issue bonds for said sum, bearing interest at four per cent per annum, in manner following : Series No. 1. " For erecting and maintaining bridges in the town of Forestport, county of Oneida, State of New York," one thousand dol- lars, to mature April 1, 1891, payable at the First National Bank of Utica, N. T. Series No. 3. "For erecting and maintaining bridges in the town of Forestport, county of Oneida, State of New York," one thousand dollars, to mature April 1, 1893, payable at the First National Bank of Utica, N. Y. Resolmd, That the supervisor of said town be and he is hereby author- ized and directed to issue and negotiate said bonds, according to law, at not less than the par value thereof, and to the best advantage, and apply the proceeds thereof in payment of the expenses aforesaid, and that prior to the issuine^ and negotiation of said bonds, said super- visor execute, acknowledge and deliver to this board a bond (in addition to the security now required by law to be given by said supervisor), in the penal sum of $4,000, with two sureties to be approved by the jus- tices of the peace, town clerk and highway commissioners of said town, for the faithful performance of his duty, in the issue of such bonds and the lawful application of the funds arising therefrom, and the full ac- counting therefor, and of the funds which may be raised by tax for the payment thereof, which may come into his hands annually, to the said board of supervisors. Resolved, That the form of the bonds so to be issued shall be as follows: "No Series No Bond.... Town of Forestport, County of Oneida, State of New York For Erecting and Maintaining Bridges in said Town. Know All Men by these Presents, that the town of Forestport, county and State aforesaid, is held and bound unto in the sum of dollars, to be paid to the said his or their certain representa- tives, successors or assigns, on the 1st day of April, 18 .... for which payment well and truly to he made the said town of Forestport binds itself firmly by these presents. Dated the day of 189. . . . The Condition of this Obligation is such that if the above-bounden town of For- estport shall well and truly pay or cause to be paid to the above-named his or their certain representatives, successors or assigns, the sum of dollars, and annual interest upon all sums unpaid thereon, to be paid on the 1st day of April, as the same shall occur, at the rate of four per cent from the date of last payment thereof, then this obligation shall be void ; otherwise to remain in full force and virtue. All payments of principal and interest to be made at the First National Bank of Utica, New York. This bond is issued in pursuance of chapter 483, Laws of 1875, and its amend- ments, and of a resolution of the board of supervisors of Oneida county, passed December . . , 18. .. In witness whereof, the said town has caused these presents to be sealed and signed by the supervisor of said town and indorsed by the certificate of the town clerk thereof, to the effect that such bonds are issued with the cx)nsent of the highway commissioners, justices of the peace and town clerk of said town, at a meeting thereof duly held on the . .th day of March, 18... Committee ou LsGisLATioiir. 639 Besolved, That there shall be assessed and levied upon the taxable property of said town of Forestport in the year 18. ., the sum of $1,080, to pay the interest and bond falling due on April 1, 18; ., and that there shall be assessed and levied upon' the taxable property of said town in the year 18.., the further sum of $1,040 to pay the interest and bond falling due on April 1, 18. ., and the amounts BO assessed and levied shall be paid to the supervisor of said town and shall be applied by him to the payment of said obligations as they respectively mature. Mesohed, That any and all claims for expenses incurred or services rendered by said supervisor in carrying out the duties hereby imposed upon him, be presented to the board of auditors of said town for their audit. {Add Certificate.) It would be safer to have them indorsed by the town clerk with the certificate, substantially in the following form : ^1 STATE OF NEW YORK County op Oneida, Town of Fokbstpokt, I, Henry Smith, Town Clerk of said town of Forestport, do hereby certify, that the within bond is issued with the consent of the commissioners of high- ways, town clerk and the justices of the peace of said town duly given, at a meet ing thereof duly held on March . . , 18. .. HENRY SMITH, Town Clerk. Totth Bonds (Oonimiced). Where the statute does not pre- scribe a form of iond, the following has been held good, although not sealed : STATE OF NEW YORK : No. 8. County of Cayuga. $1,000. Seven per cent Loan, not Bxceeding $35,000. Be it known, that the town of Venice, in the county of Cayuga and State of New York, in pursuance of an act of the legislature of the said State, entitled ' ' An act to authorize any town in the county of Cayuga to borrow money for aid - ing in the construction of a railroad, or railroads, from Lake Ontario to the New York and Erie, or Cayuga and Susquehanna railroad," passed April 16, 1852, and for the purpose of aiding the construction of the Lake Ontario, Auburn and New York railroad, owes and promises to pay to , or bearer, $1,000, with inter- est at the rate of seven per cent, payable semi-annually, on the first days of Jan- uary and July in each year, on surrender of the coupons attached, at the Bank of the State of New York, in the city of New York, the principal to be reimbursable at the same place, at the expiration of twenty years from the 1st day of Janu- ary, 1853. In testimony whereof, the supervisor and commissioners of the town of Venice have, pursuant to the provisions of the act aforesaid, and the written assent of two-thirds of the resident tax payers of said town, obtained and filed in the office of the clerk of the county of Cayuga, hereunto sub- scribed their names, this . .th day of February, A. D. 18. .. (Signed.) A. B.. SUPEBYISOR. J. W. J. s., COMMISBIONERS. 640 SuPEKvisoRs' Manual. Cayuga County Clbbk's Office, as.: I, E. B., clerk of the county of Cayuga, hereby certify that a paper pur- porting to be the written assent of two-thirda of the resident tax payers of the town of Venice, with the affidavit required by section 1 of the act referred to by its title in the foregoing bond, has been filed in this office. Dated Auburn, , 18. . . E, B., Clerk of Cayuga County. Gould T. Town of Venice, 29 Barb. 442. § 796- 5. Resolution to Divide ToTrn and Erect a Ne-w ToTrn. (Number, title and statement as before.) Whereas, Application has been duly made to the board of supervisors of county to erect a new town in said county by more than twelve freeholders of each of the towns to be affected by the division, alteration and erection, and a map and survey of the towns to be affected thereby, showing the proposed altera- tions, has been duly furnished, therefore Resolved, That all that part of the town of described and bounded as follows, viz. : (insert boundaries idth the same accuracy as in deeds) is hereby erected into a separate town, to be hereafter known and distinguished by the name of The first annual town meeting in the town hereby erected shall be held at the house now occupied by , in said town, on the day of March, 18 ; and thereafter the same shall be held on the same day that other towns hold their annual town meetings in said county of A. B., C. D. and E. F., electors of said town, are hereby appointed to preside at the first town meeting to be held in said town of , to appoint a clerk, open and keep the polls, and shall have and exercise the same powers as justices of the peace when presiding at town meetings, and in case any of said three electors above named shall refuse or neglect to serve, the electors of said town present at such meeting shall have power and they are hereby authorized to sub- stitute some elector of said town for each one so refusing or neglecting to serve. All the rest and remainder of the town of is hereby erected into a separate town, to be hereafter known and distinguished as the town of The first annual meeting in the town hereby erected shall be held at the house now occupied by , in said town, on the day of March, 18 ; and thereafter the same shall be held on the same day that other towns hold their an- nual town meetings in said county of M. S., A. B. and S. W., electors of said town, are hereby appointed to preside at the first town meeting to be held in the said town of , to appoint a clerk, to open and keep the polls, and have and exercise the same powers as justices of the peace when presiding at town meetings, and in case any of said electors last above named shall refuse or neglect to serve, the electors of said town present at such meeting shall have power, and they are hereby authorized, to substitute some elector of said town for each one so refusing or neglecting to serve. This act shall take effect on {Add certificate). A certified copy of this resolution and of the maps should be filed in the office of the secretary of State. Committee ok Legislation. 641 § 797. To Authorize ToTrn Meeting-s to be Held by Election Districts. (Number, title and statement as before.) The board of supervisors of the county of ( ) in pursuance of subdi- vision 26 of section 1, chapter 482, Laws of 1875, do hereby resolve and enact, 1. The town of shall be divided, as the same is now divided, into town election districts, for the election of all town officers, required by law, to be elected by ballot. 2. District Number One shall comprise the present Election District Number One, in said town, and shall hold its elections therein at the village of 3. District Number Two shall comprise the present Election District Number Two in said town, and shall hold its elections at the village of 4. District Number Three shall comprise the present Election District Number Three in said town, and shall hold the elections therein at the village of 5. The supervisor, assessors and town clerk of said town shall meet at the town clerk's oflSce, in said town, on the first Monday of February, as the same shall hereafter occur, at ten o'clock in the forenoon, and form themselves into a board; and in case a majority of said officers for any cause do not attend on that day, it shall be the duty of those who do attend, to adjourn to some future day, not exceeding five days, and shall immediately give notice in writing to those officers who do not attend of the time of such adjournment; and it shall be the duty of such officers to attend on said adjourned day, and proceed in the same manner as though a majority had attended on the day appointed herein. They shall designate the house in each of the places herein named at which town elec- tions shall be held during the year, and they shall thereupon give notice, written or printed, or partly written and partly printed, of the annual town elections in said districts, together with a list of all such town officers as are to be elected at such election, and post the same in at least ten public places in each district, at least six days previous to the holding of such annual town elections, which elections shall be the same day oH which the annual town meeting now is, or shall here- after be designated, shall be held. 6. The said town officers shall also at the meetings herein required to be held by them on the said first Monday of February, as the same shall hereafter occur, designate and assign one justice of the peace of said town, together with the inspectors of election now provided by law in each election district, to hold the said election in each of said districts, who shall act as the board of inspectors thereof for such districts, and the said inspectors shall be allowed to vote in the districts where they shall be respectively designated and assigned, which designa- tion and assignment shall at the time of making the same, be signed by the board and filed in the office of the town clerk, who shall immediately cause written or printed notice thereof to be given to the officers designated as inspectors of elec- tions in each of said districts. 7. The officers thus assigned and designated shall be the inspectors of the an- nual and special town elections held in the several districts in said town for which they have been appointed, for the election of all town officers required by law to be elected by ballot. 8. In case of a vacancy in the board of inspectors in any election district in said town, or of the absence or inability of any town officer appointed as aforesaid to act as'inspectors at any election, the inspectors who are present are hereby author- ized and empowered to fill all vacancies by appointment from among the electors of such district for the time being, who shall take the oath of office as hereinafter provided. 9. The inspectors of the said elections shall receive the same comnensation pro- vided by law for such services at the general elections. 10. If a special election shall be called to fill a vacancy in any town office, tne town clerk shall give the like notice, provided in section 5, together with a list of such town officers as are to be chosen at such election; and the justices of the peace in said town shall meet at the office of the town clerk on the succeeding day, and proceed to complete the canvass and declare the result as hereinaftei provided for the annual town elections. 11. The inspectors of each election district shall meet at the time and place 81 643 Supervisors' Manual. where an election shall have been appointed to be held therein, and shall proceed to organize themselves as a board, for the purpose of presiding at, and conducting said election. 12. The inspectors shall appoint one of their number chairman of the board who shall administer the constitutional oath of office to the other inspectors, and the same oath shall then be administered to the chairman by one of the other in- spectors. 13. The inspectors, or amajority of them, shall then appoint a clerk from their number, who shall take the constitutional oath of office, which shall be adminis- tered to him by the chairman, and such clerk shall keep a poll-list, and make such other minutes as may be required. 14. Before the electors shall proceed to vote for any town officer, they shall de- termine the hour for closing the poll of such election, and proclamation shall thereupon be made of such hour. 15. The inspectors shall possess the same authority to preserve order as is vested in the board of inspectors at a general election, and shall proceed in the same manner, and be governed by the same rules provided for the election of town officers in title 3, article 1, of the Eevised Statutes. 16. As soon as the poll of an election district shall have been finally closed, the inspectors in their respective districts shall proceed to canvass the votes. Such canvass shall be public, and shall not be adjourned or postponed until it shall have been finally completed. 17. When the canvass shall have been completed, and the result ascertained, a statement of all the votes for each candidate shall be made in said meeting, signed and certified by the presiding officer and clerk of such district, with one ballot of each kind or party found to have been given for the officers chosen at such elec- tion, to be securely attached to such statement. 18. The inspectors in each district shall designate one of their number who shall deliver such statement so made and certified to the board of the annual town meet- ing, which shall be held at the office of the town clerk, on the succeeding day, ou or before ten o'clock in the forenoon thereof. 19. The board of such annual town meeting shall then proceed to complete the canvass by adding all the statements from the several districts together, and de- clare the result, as though such voles had been polled at such annual town meet- ing, and the persons having the greatest number of votes shall be declared elected to the office for which they have been respectively designated. 20. All resolutions for raising money in said town for roads or bridges, or for any other purpose, which are usually, or are required to be, submitted to a vote of the electors at the annual town meeting, shall be submitted to the electors of each election district in said town, and the electors thereof shall vote thereon by ballot. It shall be the duty of the inspectors of election of each district to return to the board of annual town meeting, at the time of making return of votes for town of- ficers as hereinbefore provided by this act, the whole number of votes for and against each resolution so voted upon in their respective districts; and it shall be the duty of such board of annual town meeting to canvass and declare the result of such votes. 21. If the election districts, as now constituted in said town, shall hereafter be altered or changed in any respect, the provisions contained in the first, sec- ond, third and fourth subdivisions hereof shall conform to such alteration or change. 23. This act shall take effect immediately. (Add certificate.) § 798. Declaration ofVote by Cliairinaxi. The proper form for declaring the result of the vote on these questions is, "the resolution having received the affirmative vote of a majority (or two-thirds a> tne ease may be) of all the members elected to the board* is duly passed." If the resolution enacts a special ordinance for one town, insert after the aster- lak (*) " including the supervisor of the town of voting in favor thereof. Committee oit Ratio and Appobtionment of Taxes. 643 COMMITTEE ON" EATIO AN"D APPORTIONMENT OF TAXES. 1. TAX TO BE LEVIED. A statement of the amount of assessment for each county, as fixed by the board of equalization (the State board), shall be certified by said board and depos- ited in the ofSce of the comptroller as soon as completed, and before the tenth day of October in each year. The comptroller shall immediately ascertain from this assessment the proportion of State tax each county shall pay, and send a statement of the amount by mail to the county clerk and the chairman and clerk of the board of supervisors of each county. If the name or residence of the chairman or clerk of the board of supervisors shall be unknown to the comptroller, he may inclose such statement in an envel- ope addressed to him by his name of office, and directed to the county town of the county. The county clerk shall file the statement received by him in his office, and immediately send a copy thereof to the chairman of the board of supervis- ors of the county. Laws of 1859, chap. 312, § 8; 2 E. S. 1000. The amount of State tax which each county is to pay, so fixed and certified by the comptroller as aforesaid, shall be raised and collected by the annual collec- tion of taxes, in the several counties in the manner now prescribed by law. Id., §9. The moneys necessary to defray the county charges of such county shall be levied on the taxable property in the several towns in such county, in the manner prescribed in the thirteenth chapter of this act. And in order to enable their re- spective county treasurers to pay such contingent expenses as may become pay- able from time to time, the boards of supervisors of the several counties shall annually cause such sum to be raised in advance, in their respective counties, as they shall deem necessary for that purpose. 2R. S. 979, § 5. If the board neglect or refuse to include and assess such taxes, mandamus lies to compel them to do so. § 799. Apportioning- tbe Taxes. This is one of the most important duties of the session, sofar as accuracy is concerned; for errors by this committee will, innocently and unintentionally, in- flict gross injustice upon some of the towns, and unduly favor others. Too much care and attention cannot, therefore, be observed by those to whom this duty is assigned, in thoroughly testing the accuracy of the tables made by them for this purpose. The system by which this is reached in the several boards of supervisors is doubtless as varied as the number of such boards. In the county of Oneida, the blanks used for this purpose were prepared by J. B. Cushman during his service as clerk of the board (1850 to 1857), and now re- main in use in this county. Experience has demonstrated that all the moneys levied by the board, when correctly entered in the tables and so consolidated by columns, will be properly accounted for. The accuracy of this result is entirely dependent upon the com- mittee having this branch of duty in charge. The TieaMngs of this sheet are given herewith, and with it a copy of the direc- tions for preparing it. The " summary" of both town and county charges is prepared by the clerk, who enters them in the order, and at the time the same are levied, a duty requir- ing great care and close attention on his part to include all the amounts which have been levied, and which are to be raised by the apportionment of the same, ^his sheet is furnished to the committee, from which the amounts are entered in 644 SuPBEVisoEs' Manual. the proper columns of the tabulated statement, and when completed the total amount (column 17) is apportioned to the several towns upon the basis of the equalized valuation, and the ratio per dollar computed upon that of the amount as assessed. The result is given to each member of the board upon a prepared sheet for a table of taxes to be made by such member upon amounts to and including $100. A copy of this blank is inserted at section 850, and its use in the manner di- rected will be found of great convenience and will equally facilitate the extension of the individual taxes. § 800. Summary. COUNTY CHARGES, 1885. State tax $154,889 53 ALLOWED ON CLAIMS. Audited by committee on miscellaneous accounts $17,473 13 " " justices'and constables' accounts 8,483 89 " " accounts in dep't of sherifE ... . 13,86194 " " erroneous taxes 178 90 " " military affairs 1,790 39 " " printing and stationery 6,694 74 " " supervisors' accounts 7,066 47 " " orphan asylum 18,964 58 " " uncollected taxes 379 81 " county buildings 15,996 79 " " interment of deceased soldiers. 416 00 " '• coroners and physicians 4,653 15 " " " " supple- mentary 16 00 " " contingent 106 49 " " roads and bridges 361 02 APPROPRIATIONS. John R. Edwards, to pay for seal $15 00 E. M. Hyland, jail physician, Utica 75 00 John R. Edwards, county treasurer, salary 1 ,500 00 John Hagerty, salary as supervisor 75 00 To refund town of Vienna county's share of tax on rail- road 340 00 Thomas Q. Nock, jail physician, Rome 50 00 R. B. Maxfield, clerk'ssalary 500 00 W. H. Roberts, messenger's salary 100 00 P. E. Kelly, printing journal 550 00 H. P. Willard, printing audit 50 00 W'm. Lyman, sup., to refund erroneous audit, 1884. ... 16 00 T. S. Comstock, superintendent of poor, salary 1 ,300 00 T. J. Lewis, sup., to refund town of Trenton, county share bridges on county line 130 51 S. R. Williams, sup'tof Brunswick Home at Amity ville. 500 70 J. R. Edwards, county treasurer, to pay Benham tax. ... 88 00 Charles Bolles, to pay for records 35 00 Banks & Brothers 31 50 J. R. Edwards, county treasurer, to pay P. Connor tax. . 9 33 S. Y. Lane, salary 50 00 Wm. C. Armstrong, expenses, tax sale 35 35 Poor fund deficiency 33,431 31 To pay claims of J. G. French, T. Keiley and Hammann Bros 10 40 $85,287 18 37.603 00 Committee on Ratio and Appoktiostment of Taxes. 645 future liabilities. Appropriation — Judiciaiy fund $18,000 00 Salaryfund 11,700 00 Asylum fund 11,000 00 Poorfund 1.5,000 00 To pay jail bond, series 4 11.000 00 To pay interest on jail bond 1 , 900 00 $68,600 00 Total State and county charges $346 , 329 76 SUMMARY OF TOWN CHAKGES. AsNBVlIiLK To^raaudits r $1,311 44 Erroneous taxes 169 25 Miscellaneous 30 96 Justices and constables 18 80 $1,520 43 (And to on viUh each, town.) 646 SuPEEvisoKs' Manual. Annsvillo. Augusta. Ava. Boonville. Bridgewater. Camden. Deerfleld. Florence. Floyd. KirSIand. Lee. Mars&U. New Hartfbrd. Paris. Remsen. Rome. Sangerfleld. Bteubed. Trenton. Utlca, 1st ward TO ., IZthwanl Verona. Vienna. Western. Westmoreland Whltestown. • gijojo^wa s Aq, poioaiiOD 9q o% XB| 3oa s • 81 io XB^ JO snidjng s * 81 JO xvjjo ^au3!og9(i s 01 piBl aq o-j ?unorav • s ■DMO) qoea uo paiA9[ aq o) saSaeqo iC^anoo puB DMOj puo XBi ajBig JO lunoaiB a[oqA\ s -QMO'} qOBd ao patAsi aq ©■) saSjuqD ^^unoD puw XBi a^F^S JO lunouiB aioq^v s •uoiiBtUBA pa-joa-i -aoo no \\\m ' jo xb-» a^Bis s ■UAiOJ q3B9 nodn paiAai aq O) eodiBqo jliunoo JO 'janoiuB aioqAV s '90uvivq uodn spom otpjj. 911) puv '(ii umnioo aag) UAO) aq) ui pasiBi aq o) ^unoiuB eqV mosj paionp -ap aq o^ 'JBa^C inaunD aq} paiAai* giJOsaxBipaniiuo cj •saSjBqD ^lunoo JO ejBqs .sojuoj a q ) mojj pa'^onpap aq oj ' 81 JO saxB) JO -jnidJos - •BaSiBqo XjunoD jo ajBqa (SOMOii aqi. 0% pappB aq oj ' 91 JO XB) JO Xoaapgaa o 'puB[ suiBS aqi uo paiAai -91 saxBi luapisai piBdun Ol ■spuBi luapisaa-uou uo saxBi looqos papanooun -a ■« OWE g.S5 51 S S as o v Ut 1 sag . III Ii r T I £ u CO aia >S.B.i" fa^ ^S 9 in A SbSSSSb Sill- 8^ rmitt liilisi gSsSggS ■ "HISS'S a E4.d-gE3CiSS II t& II 11 P Ii as 1^ e3 ^1 Committee on Ratio and Apportionment of Rates. 647 § 802. Directions for Preparing tlie Sched- ule. Enter tlie amount reported to the supervisor of the town by the over- seers of highways, and levied by the board, in column No. 1 Enter the amount required by the commissioners of highways, and the amount voted by the town to be raised for the support of roads and bridges, in column 3 Enter the amount of columns 1 and 3 as standing opposite each town, in column 3 Enter the amount of town expenses as audited by the town audit- ors, including the amount levied upon the town for other purposes by the board (see Clerk's Summary), in column 4 Enter the amount o^" rejected taxes," as returned by the comptroller to the county treasurer, and by resolution of the board levied upon the town, in column 5 Enter the amount of unpaid resident taxes, as reported by the county treasurer and levied upon the town by resolution of the board (see Report of Committee ), in column 6 Enter the amount of columns 3, 4, 5 and 6, in column 7 Enter the amount of "rejected taxes," as returned by the comp- troller to the county treasurer, and by resolution of the board re- assessed upon the same lands, in column 8 Enter the amount of uncollected school taxes as reported to the super- visor of the town, by the trustees of the school districts, and levied upon the lands by resolution of the board, in column 9 Enter the amount of unpaid resident taxes, as reported by the county treasurer, and by resolution of the board re-levied on the same lands, in column 10 Enter the amount charged in the treasurer's account for the current year as deficient therein the past year in the several towns, in column 11 Enter the amount of column 20 of the preceding year, in column. ... 13 Enter the omitted taxes of the preceding year, and levied the current year upon petition of the assessors of the respective towns and wards, pursuant to chapter 453, Laws of 1865, and chapter 575 Laws of 1868 (see §§ 335, 343, ante), in column 13 Enter the pro rata portion of the aggregate of county charges, with the amount of column 11 added, or column 13 deducted (as the case may be), in column 14 Enter the State tax upon the corrected valuation of the town as re- quired by communication from the comptroller, in column 15 Enter the amount of columns 14 and 15, in column 16 Enter the amount of columns 7 and 16, in column 17 Enter the amount of columns 5, 6, 8, 9, 10, 16 and 30, in column 18 Enter the excess or deficit of the extensions and footings of the super- visors' tax book, for current year, in columns 19, 30 Enter the amount of the assessors' taxes upon dogs as returned to the supervisor, and reported to the board by the committee upon foot- ing assessment-rolls, in column 21 Note. — The amounts in column 13 should be deducted respectively from the town's share to be raised (see column 17), and the ratio made upon the balance. The amount of tax produced by the ratio, added to the sum thus deducted, should equal the aggregate required to be rai-sed in such town. No other action by the committee is required, in- regard to the amounts contained in column 13. To insure accuracy. — Each pageot the assessment-roll should be proved at the completion of such page by a comparison of the taxes as extended, with the amount of such taxes upon the gross sum of the page. CHAPTER XIII. OP THE DUTIES OP THE CLERK. Sec. 803. Appointment of a clerk. Sec. 819. Incorporateid companies. 804. His compensation. 820. When collector of taxes refuses to 805. Accounts to be filed. serve. 806. Accounts to be numbered. 821. Grand jury list. 807. Porm of register of accounts. 822. Grand jury drawn by superviBcrs. 808. May administer oaths. 828. New towns, erection of. 809. To make statement. 824. Special meetings, clerk may call. 810. To publish abstracts of town 825. School tax. audits. 826. In relation to a seal. 811 . To publish county audits. 827 . Summary . 812. Form of statement. 828. County orders. 813. To publish reports as to town debts. 829. To transmit proceedings to State 814. To deliver abstract of poor. library. 815. To serve notice relative to the poor. 830. Duty of board of supervisors. 816. To report indebtedness of counties. 881. Clerk cannot be appointed county 817. To deliver statement of railroad treasurer. taxes. 832. Duties when union school district 818. To return value of estate. dissolved. § 803. Appointment of a Clerk. — Each board of su- pervisors shall, as often as may be necessary, appoint some proper person to be their clerk, who shall hold his office during their pleas- ure, and whose general duty it shall be, 1. To record, in a book to be provided for the purpose, all the proceedings of the board. 2. To make regular entries of all their resolutions or decisions on all questions concerning the raising or payment of moneys. 3. To record the vote of each supervisor on any question sub- mitted to the board, if required by any member present. 4. And to preserve and file all accounts acted upon by the board. 2 R. S. 927, % 9. There are local laws on this subject. AU resolutiona offered in the Board, which are reeeimed by the chairman for conBideration, should at the time of aueh presentation, he entered at length wptm the journal, and in no instance, should the records contain the mibaiance only of such resolutions. In some counties boards of supervisors have directed their past proceedings to be expunged from their records and certain proceedings to be entirely omitted from such records, leaving the resolution directing such expunging to remain, as the authority for such omission. Such proceedings are not only very improper, but of doubtful validity, for the emasculated journal would not thus contain " a record of aiU " its action upon the questions before them. A majority could in this manner make the records ex- hibit unanimous votes upon every proposition considered by them. Of the Duties of the Olerk. 649 If votes for expunging certain matters from their records are taken, such votes should only be recorded as making such expunging pro forma and not by mutila- tion of the records. § 804. His Compensaition. — The clerk shall receive a reasonable compensation for his services, to be fixed by the board of supervisors, and to be paid by the county. Id., §10. There are local laws on this subject. Books, Etc., to be Deposited 'With Clerk.— The books, records and accounts of the boards of supervisors shall be de- posited with their clerk, and shall be open, without reward, to the examination of all persons. Id., §11. § 805. Accounts to be Filed.— It shall be the duty of the clerk to designate upon every account upon which any sum shall be audited and allowed by the board, the amount so audited and al- lowed and the charges for which the same was allowed ; and he shall also deliverto any person who may demand it, a certified copy of any account on file in his office, on receiving from such person six cents for every folio of one hundred and twenty-eight words contained in such copy. Id., §12. § 806. Accounts to be Numbered.— All accounts presented in any year to the board of supervisors of any county shall be numbered, from number one upward, in the order in which they are presented, and a memorandum of the time of presenting the same, of the names of the persons in whose favor they shall be made out and by whom they shall be presented, shall be entered in the minutes of the board to which they shall be presented ; and no such account after being so presented shall be withdrawn from the custody of the board or its clerk for any purpose whatever, except to be used as evidence upon a judicial trial or proceeding; and in such case it shall, after being so Tised,be forthwith returned to such custody. Laws of 1845, chap. 180, 8 28 ; 1 B. S. 816. 82 650 Supervisors' Makual. § 807. Form of Register of Accounts. REGISTER of Accounts presented to the Board of Supervisors of County, for audit at their Annual Session, 18 . Date. 18 Nov. No. 1 2 3 4 5 6 7 8 9 10 and so NAMES OF CLAIM- ANTS. By whom presented To which committed referred. § 808. May Administer Oaths.— The clerks of boards of supervisors of the several counties in this State have the same power as the chairman thereof, to administer oaths to any person concerning any matter submitted to the board, or connected with their powers or duties. Lawa of 1856, chap. 108. § 809. To Make Statement.— It shall be the duty of clerks of boards of supervisors on the 31st day of December, or within ten days previous thereto, in each year, to make out a state- ment showing, 1. The amount of compensation audited by the board of super- visors, to the members thereof, severally, within the year, and the items and nature of such compensation as audited. 2. The number of days the board shall have been in session within such year, and the distance traveled by the members respect- ively, in attending the meeting of the board. 3. Whether any accounts were audited or allowed without being verified according to law, for any member of the board of super- visors, or any other person, and if any, how much, and for what. And such statement shall be certified by such clerk, and be printed in a newspaper printed in the county, in the manner that the ac- counts audited by boards of supervisors are now required by law to be printed, within two weeks after said statement shall be £0 made out, and it shall be the special duty of such clerk to see that Of the Duties of the Clerk. 651 tlie same is so published, and for every intentional neglect so to do,, such clerk shall be deemed guilty of a misdemeanor. Laws of 1847, chap. 455, §14; 1 B. S. 849. § 810. To Publish Abstracts of Town Audits. — The town auditors are required to make, annually, brief abstracts of the names of all persons who have presented to said board ac- counts to be audited, the amounts claimed by each of said persons, and the amounts finally audited by them respectively, and to dehver said abstracts to the clerk of the board of supervisors, and the said clerk is to cause the same to be printed with the statements required to be printed by the section last above. Id., 5 24. See " Form," § 476B. § 811. To Publish County Audits, Claimants^ and Equalization Proceedings.— It shall be the duty of the board of supervisors in each county in this State, annually^ to publish in one or more public newspapers in such county, the name of every individual who shall have had any account audited and allowed by said board, and the amount of said claim as allowed, together with the amount claimed, and also their proceedings upon the equalization of the assessment-roll. Laws of 1839, chap. 869. It is tlie duty of the clerk to attend to this. § 812. Forni of Statement, Audits, etc., to be Published. COUNTY AND TOWN ACCOUNTS. Statement of accounts audited by the boards of town auditors and the board of supervisors of Oneida county, the proceedings upon the equalization of the assessment-roll of said county for the year 18 : 1. Abstract of the names of all persons who have presented ac- counts to the boards of town auditors and the board of supervisors in and for said county, for the year 18 , and the amount allowed by paid boards to each of said persons respectively (as shown by their several abstracts), and charged and levied by the board of supervis- ors upon said county and towns, published in pursuance of Laws of 1839, chap. 369, Laws of 1847, chap. 455. ■652 SuFEBVisoEs' Manual. TOWN OF County cliarges as audited by the board of sapervisors and levied upon the «ounty: NAME OF CLAIMANT. Allowed. A. B. C. D. Town cliarges as audited by the board of supervisors and levied upon said town: E. F.. <3. H. Town audits as audited by tbe board of town auditors of said town: J. K.. M. N. -O. P.. And so on wltii each town. 2. SUPEBVISOES' ACOOTOJTS. Oneida County to J. 1). Cobcoban. Db, Claimed. Allowed. December 30, 188 . 1150 00 15 93 2 56 flSO 00 To making one copy assessment-roll, 1,292 written lines To mileage to and from session once, 82 miles at 8 cts. 15 93 2 56 Total $168 48 $168 48 * If the compensation la not a fixed salary the ttemg of the per diem charge ehould b« ioaerted. Of the Duties of the Clekk. 65? 3. Proceedings upoit Equauzation op Assessment-eoll as thk Same was Confikmed bt the Board. Refort of the Committee on Equalization. TOWNS. No. of acres. Keal estate by assessors. Keal estate as equalized. Personal. Total. Annsville And so on with each town. 36,382 $580,010 $580,010 $17,400 4(597, 4ia 733,602 $43,596,594 $43,596,594 $f 418,408 $48,015,003 BOARD OP SUPERVISORS, Clerk's Office, County of Oneida, I hereby certify that the foregoing list embraces the names of all persons who- had any account or claim audited by the board of supervisors of said county or the town auditors of the respective towns above named, at the last annual session thereof, together with the amount claimed and allowed thereon (so far as returned to me); that no account was audited at such session unless the same was duly verified, as required by law; that the items of the accounts of the members of said board are those contained in their several bills herewith published; that the annexed table of the equalized valuation of said county is the same adopted by said board; that the whole number of days that the said board were in session (including holidays and Sundays) was thirty-nine, and that the statement of mile- age charged therein is correct to the best of my knowledge. Dated , 188 . Clerk. The above combines the various accounts and abstracts required to be published by the clerk, in the form in which they generally appear for publication, one certificate being used for the whole subject. § 813. To Publish Reports as to To-wn Debts. See § 630, ante. As to County Debts, see below, § 816. To Publish Resolutions Adopted under Laws of 1875, Chapter 482, Etc. See § 631, ante. ^54 SuPEBVisoEs' Manual. To Publish Election Notices and Official Canvass. See § 635, ante. Session La-ws. See § 622, ante. FORM OP CERTIFICATE FOR COPT OF ANT PAPER ON PILE IN HIS OFFICE. STATE OF NEW TORK, County of Oneida, Office Clbkk Boabd of Supbrtisoks, I have compared the preceding with the original thereof on file in this [li. S.] office, and hereby certify that the same is a correct transcript therefrom, and of the whole of said original. Glebe. § 814. To Deliver Abstract of Poor.— The super- visor of each town is required each year to report an abstract of the expenses relating to the poor in those counties where all of the poor are not a county charge. When the clerk receives such abstracts it is his duty to deliver the same to the county superintendent of the poor of his county, and if he neglects or refuses to deliver them, or certified copies thereof, or if he shall willfully make and deliver any false copy, he forfeits the sum of $100, to be recovered by the dis- trict attorney in the name of the people of the State, for the benefit of the poor of the county. 8 B. S. 1868, SS 76, 11, 78, § 815. To Serve Notice Relative to Abolish- ing Distinction as to tbe Poor.— When the supervis- ors make an order abolishing the distinction between town poor and county poor, and decide to have all the poor a county charge, the clerk of the board must serve notice of such order immediately on the overseers of the poor of every town in the county, and also upon the clerk of each town, village or city within such county. Id., 1857, §S 21, 25. See ante, " Support of the Poor," §§ 732, 814 and 61. Bond of Superintendent of tbe Poor,— Clerk's duties relative to. See § 713, ante. Of the Duties of the Clekk. 655 § 816. To Report Indebtedness of Counties, TO'^W^ns and Villaiges. — By the act to increase the duties of clerks of boards of supervisors, passed February 6, 1872, it is en- acted that clerks of boards of supervisors of the several countips in this State shall, on or before the second Monday in December in each year, transmit to the comptroller by mail, in the form which shall bo prescribed by the comptroller, a certificate or return of all the indebtedness of their respective counties, and of each town, vil- lage and ward therein. Laws of 1872, chap. 17. The clerk who shall refuse or neglect to make such return shall forfeit to the people of this State the sum of $50. Id.. § 2. § 817. To Deliver Statement of Railroad Taxes. — The clerk of the board of supervisors (except in New York and Kings counties), within five days of the making out or issuing of the annual tax warrant by the board of supervisors, shall prepare and deliver to the county treasurer a statement showing the title of all railroad corporations in the county, as appears on the last assessment-roll of the towns or cities in such county, the valuation of the property, real and personal, of such corporations in each town or city, and the amount of tax assessed or levied on such valuation in each town or city in their county. ^ Laws of 1870, chap. 606; 2R. S. 1039. Telegraph, Telepbone, Electric Li^ht Lines. — It shall be the duty of the clerk of the board of supervisors of the several counties of this State, within five days after making out or issuing of the annual tax warrants by the board of supervisors of their respective counties, to prepare and deliver to the county treas- urer, and in the city and county of New York, the receiver of taxes, a statement showing the title of all telegraph, telephone and electric light lines in such county as appear in the last assessment- roll of the town or ward in such county, the valuation of the prop- erty, real and personal, of such line in each town or ward, and the amount of tax assessed or levied on such valuation in each town or ward in the county. Laws of 1886, chap. 659, g 4. § 818. To Return Value of Estate.— The clerk of the board of supervisors of the several counties in this State shall, on or before the second Monday in December in each year, transmit 656 SuPBRVisoKs' Manual. to the comptroller by mail, in the form which shall be prescribed by the comptroller, a certificate or return of the aggregate valued amount of real and personal estate in each town or ward, as cor- rected by the board of supervisors. The clerk who shall neglect or refuse to make such return shall forfeit to the people of this State the sum of $50, Laws of 1838, chap. 117. The data for tliis report will be found in the report of the committee on equali- zation as finally adopted by the board of supervisors, except in counties having a board of equalization, in vrhich case the report of the latter board will give flie facts required. § 819. Incorporated Companies— List, State- ment and Taxes Tbereof. — As has been mentioned ia the chapter on corporations (§ 413), the board of supervisors are required to transmit to the comptroller, with the aggregate valua- tions of real and personal estate in liieir county, mentioned in the preceding section, a statement showing the names of the several in- corporated companies liable to taxation in such county ; the amount of the capital stock paid in and secured to be paid in, by each; the amount of real and personal property of each as put down by the as- sessors or by them ; and the amount of taxes assessed on each. In those counties in which there is no such company, the boards of su- pervisors shall certify such fact to the comptroller with their returns of the aggregate valuations of real and personal estate. Ante, % 413. This statement is generally made by the clerk from the report of the committee on incorporated companies when fully completed, and is transmited to the comp. troller upon blanks prepared and issued by that officer. § 820. "Where Collector of Taxes Refuses to Serve, Etc. — If a collector refuse to serve, die, resign, or move out of the town or ward before entering upon or completing his duties, or shall be disabled from completing the same, a new collector may be appointed by the supervisor and any two justices of the peace. If a warrant to collect the taxes had been issued by the board of supervisors prior to the said appointment of the collector, and said warrant cannot be obtained by the new collector, a new one shall be made out by the clerk of the board of supervisors directed to the collector so appointed. The law is set out in full at section 359. Duty Where Collector Neglects to Qualify. See § 858. Of the Duties of the Olbek. 657 § 821. Grand Jury List— The list of grand jurors is generally presented to the board by the proper committee, but the selection of the persons must be the act of the hoard, not of the committee or the clerk. The proper procedure has been given, ante, §§ 573-7. A list of the persons so chosen, duly certified by the clerk, must be filed by him in the county clerk's office, within ten days after the first day of the meeting of the board of supervisors. § 822. Grand Jury Dra'wn by Supervisors.— Where a grand jury is ordered drawn for a court of sessions by the board of supervisors, a copy of the order, certified by the clerk of the board, must be filed with the county clerk at least twenty days before the term of the court ; and when so filed, is conclusive evi- dence of the authority for drawing the jury. Code of Criminal ■Procedure, § 227. § 823. Ne-w To-wns, Erection of.— By chap. 194, Laws of 1849, section 3, the board may " erect " a new town in the county. See " General Statutes," ante. The notices signed by the chairman or the clerk are to be transmitted by the latter to the persons designated. The law is given in full, ante, and explains itself. § 824. Special Meeting, Clerk May Call.— The clerk may call a special meeting of the board, at any time, on the written request of a majority of the supervisors. Ante, Laws of 1838, chap. 314, § 5. He should give due notice thereof to the members. § 825. Scbool Tax. — ^"0 clerk of the board of supervisors or other person who shall make out the tax list or assessment-roll of any town shall omit to include and apportion among the moneys to be raised thereby the amount required to be raised for the sup- port of the common schools, by reason of the omission of the board of supervisors to pass a resolution for that purpose. Laws o£ ]864, chap. 555, tit. 3 ; 2 K. S. 1147, § 2. § 826. In Relation to a Seal.— The board of super- visors of any county in this State may adopt a seal, and, when so adopted, the clerk of such board shall cause a description thereof, together with an impression therefrom, to be filed in the office of 83 658 SxjPERvisoBs' Mah-ual. the county clerk and in the ofiBce of the secretary of State^ and the same shall thereupon be the seal of the board of supervisors of such county. Copies of all papers duly filed in the office of the clerk of the board of supervisors of any county, and transcripts from the books of records kept therein, certified by such clerk, with the seal of office affixed, shall be evidence in all courts and places, in like man- ner as if originals were produced. Laws of 1855, chap. 249 ; 2 R. S. 934. A duly certified copy of a resolution appointing an officer or com. mittee would be the proper credentials of their right to act. § 827. Summary to be Furnished County Treasurer. — A copy of the " Summary " given the committee on ratio and apportionment should also be sent to the county treas- urer for his use and for precaution. This will enable him to know what moneys have been appropriated, and to whom they belong. The published journals of the proceedings of the board are gen- erally issued in time for such use. §828. County and To-wn Orders.— The pay- ments of county and town charges are made by " orders ; " the former drawn upon the county treasurer, the latter upon the supervisor of the town. They are made out by the clerk in an order-book as eacji committee's report auditing and allowing claims is adopted, or as each separate resolution making an appropriation is adopted. The book is like any ordinary check-book used in keeping an account with a bank, with " stubs " to correspond with the order issued. These orders are generally signed by the clerk, and coim- tersigned by the chairman, who should examine each "order," amount, name, etc., and compare it with the proper appropriation before countersigning. ITo " order " should be issued in which any erasures, alterations o£ figures, names or otherwise, have been made, and each order should be " to the order of " the claimant or his duly authorized assignee, and no such order should be issued until subsequent to the final adjournment of the board, for the reason that at any time during the continuance of such session, their action authorizing the issue of such order may be reconsidered, rescinded, or revoked. § 829. To Transmit Proceeding's to State Library. — The clerk shall transmit to the State librarian a copy Of the Duties oe the Clerk. 659 of the proceedings of the board, within twenty days after publica- tion thereof. Laws of 1877, chap. 102. § 830, Assessors and To-wn Clerks Neglect- ing' their Duties to be Reported to tlie Conip- troller— Duty of Board of Supervisors.— The boards of supervisors of the several counties, at every annual meet- ing, shall transmit to the comptroller the names and places of abode of the town clerks and assessors in their respective counties, who «hall have willfully refused or neglected to perform the duties required of them in this chapter ; and the comptroller shall there- upon give notice to the district attorneys of the proper counties, to the end that they may prosecute such delinquent town clerks and assessors for the penalties incurred by them. 2 R. S. 1049, § 2. " This chapter," referred to above, is tlie one relating to assessment and taxation, ante, chap. 5. §831. Clerk Cannot be Appointed County Treasurer.— No supervisor or clerk of the board of supervis- ors shall be appointed to or hold the office of county treasurer. IRS. 363, §13. § 832. When Union School District Dis- solved. — See § 582, ante. Certificate as to Proceedings of Board. FORM OP Chambers of the Bd. of Sup. op the Co. of ) ...., JT. T., Dec. 2Sth, 16S8. f Pursuant to the authority of an act entitled " An act to amend chapter 219 ol the Laws of 1878, entitled 'An act in relation to evidence in civil and criminal cases,' passed May 21, 1884, we do hereby certify that the foregoing proceedings of the board of supervisors of county, printed by the authority of said board, contain a true record of the proceedings of said board for the year one thousand ^ight hundred and eighty-eight. ^ ^ SALZMAN, Chaibman of said Board of Sup. F. W. LOBDELL, CLEasuK op said Bd. of Sup, CHAPTER XIV. EOADS AND BRIDGES. Sec. 833. Highway commissioners' ment($2S0). 834. Town meeting, on commissioners' application . 835. Under chap. 615, Laws of 1857. 836. 314, Laws of 1838. 837. 194, Laws of 1849. 838. Bridges imposed by legislature on towns. 839. Bridges at town or county lines. Bridges, borrowing money for. Plankroads, turnpikes, purchase of. Locating, etc., of bridges 840. 841. 842. ON APPLICATIOK OP TOWN OrPICERS. 843. Officers to meet. 844. Officers to borrow money, when. 845-6. Trustee of village to consent, when. 847-53. Counties liable for one-sixth ; counties may aid towns. 854. Grade of streets, etc. 855. Roads, etc., destroyed, etc., after town meeting. Under chap. 103, Laws of 1858. 856. 225, Laws of 1841. state- Sbc. 857. Under chap. 639, Laws of 1857. DEFECTIVE HISHWATS AND BRIDGES. 858. Under chap. 700, Laws of 1881. Exemption, chap. 526, Laws of 1887. 863-5. Bridges over canals. 866. Counties, powers of board. 867. Under chap. 314, Laws of 1S38. 868. 855, Laws of 1869. 869. 482, Lawsof ISTS. 870. 175, Laws of 1880. BRIDGE COUPANIES. 871. Application for leave to erect oridges PLANKROADS AND TURNPIKES. 872. Application, etc. COUNTY RAILROADS. 873. Appointment of commissioners; damages, expenses, etc., on lay- ing out, etc., highways. 874. Damages by agreement; when no agreement; expenses on laying out, etc., on appeals from com- missioners. 875. Board of supervisors to award, etc. EOADS AND BRIDGES — EST TOWNS. § 833. 1. Statement Furnislied by tlie Com- missioners of Hig'h'Way S. — The statement furnished by the highway commissioner to the supervisor of the town fixes the amount to be raised by tax on the town. Whatever amount the com- missioners determine to be necessary, not exceeding $250, must be so raised. The law is as follows : The commissioners of highways of each town shall deliver to the supervisor of such town a statement of the improvements necessary to be made on the roads and bridges, together with the probable ex- pense thereof ; which supervisor shall lay the same before the board of supervisors at their next meeting. The board of supervisors shall cause the amount so estimated to be assessed, levied and col- lected in such town in the same manner as other town charges, but the money to be raised in any such town shall not exceed in any one year the sum of $250. 2R. B. 1214, S4. EoADs AND Bridges. 661 Neither the town, the town board, nor the county board, has any right to interfere with the commissioner's right to have the amount (not exceeding $250) he estimates, as necessary. Hill V. Supervisors, 12 N. T. 68 ; Lament t. Haight, H How. 8. 2. Sums Voted at Tottu Meeting^. — In addition to this $250 the commissioner may ask for additional amounts as follows : § 834. On Commissioners' Application.— When- ever the commissioners of highways of any town in this State shall be of the opinion that the sum of $250, as now allowed by law, will be insufficient to pay the expenses actually necessary for the improve- ments of roads and bridges, it shall be lawful for such commissioners to apply in open town meeting for a vote authorizing such additional sum to be raised as they may deem necessary for the purpose afore- said, not exceeding $250, in addition to the sum now allowed by law. Chap. 274, Laws of 1832, §1. Notice Tliereof. — Before making such application, it shall be the duty of the commissioners to give notice of their intended application by posting the same in a conspicuous manner in at least five of the most public places in such town, at least four weeks next preceding the annual town meeting ; such notice shall specify the amount to be applied for and the purposes for which the same is in- tended to be appropriated, with the probable amount necessary to be expended at each place if there shall be more than one. Id., § 2. Accounts to be £xllibited. — Whenever any applica- tion for a grant of money for the purposes mentioned in the first section of this act shall be made to any town meeting, it shall be the duty of the commissioners making the same, to exhibit a statement of their accounts and an estimate of the expenses necessary for the im- provement of roads and bridges in such town the ensuing year. Id., §8. Order to Levy Tax. — If the town meeting shall, by their votes, determine that a sum over and above the amount now allowed by law will be necessary for the improvement of roads and bridges or to pay any balance that may be due, the clerk shall enter such resolution as shall be agreed to, in the minutes of the meeting, and deliver a copy thereof to the supervisor of the town, who shall 662 Supervisors' Manual. lay the same before the board of supervisors at their next annual meeting ; and it shall be their duty to cause the amount specified in such resolution, to be levied and collected in the same manner as other town charges of such town. Id., § 4. Tax Already Ordered. — If any town shall, at an an- nual meeting, have already voted to raise a sum exceeding $250, for the purposes aforesaid, it shall be the duty of the board of super- visors of the county in which such town is situated, to assess, levy and collect the sum so voted to be raised upon said town. Id., §5. § 835. Under tlie Act of 1857, Chapter 615.- Whenever the commissioners of highways of any town in this State shall be of the opinion that the sum now provided by law will be insufficient to pay the expenses actually necessary for the improve- ment of roads and bridges, and to pay any balance that may be due for such improvement, it shall be lawful for such commissioners to apply in open town meeting for a vote authorizing such additional sum, to be raised as they may deem necessary for the purposes afore- said, not exceeding $750, in addition to the sum now allowed by law. The same notice shall be given by the commissioners of their intention to apply for the raising of such additional sum as is now required by law for the raising of money for roads and bridges above the amount of $250. Chap. 615, Laws of 1857, § 1. § 836. Under the Act of 1838, Chapter 314.— The board of supervisors are authorized to cause to be levied, col-' lected and paid, in the manner now provided by law, such sum of money, in addition to the sum now allowed by law, not exceeding $500 in any one year, as a majority of the qualified voters of any town may, at any legal town meeting, have voted to be raised upon their town, for constructing or repairing roads and bridges in such town. Laws of 1888, chap. 314, § 1, subd. 5. Notice to be Put Up.— No moneys shall be raised under the authority conferred by the fifth subdivision of the preceding section, unless a written notice of the application to such town meet- ing to raise such amount shall be posted on the door of the house where the town meeting is to be held, and also at three public places EoADS AKD Bridges. 663 in such town, for two weeks before the town meeting, and be also openly read to the electors present, immediately after the opening of the m-eeting. Id., § 2. § 837. Under the Act of 1849, Chapter 194 — The board of supervisors are empowered to authorize any town in such county, by a vote of such town, to borrow any sum of money not exceeding $4,000 in one year ; to build or repair any roads or bridges in such town, and prescribe the time for the payment of the same, which time shall be within ten years, and for assessing the principal and interest thereof upon such town. Laws 1849, chap. 194, § i, subd. 9. § 838. Sums to be Raised, Where, by Act of the Iiog^islature, Certain Bridg-es, £tc.. Must be Cared for by Tcwns. — In some cases, the duty of build- ing and maintaining certain roads and bridges has beeu imposed by the legislature upon certain towns, and they must attend to such roads and bridges. The law generally prescribes how the money therefor shall be raised. There is a provision allowing special town meetings to vote on the question of raising and appropriating moneys for the construction and maintenance of any bridge or bridges which the town may be authorized by law to erect and maintain. § 7, art. 1, tit. 2, chap. 11, part 1, 2 R. S.; see People, exrel. Commissioners, v. Su- pervisors, 1 Hill, 60. § 839. Bridges at To-wn or County Lines.— The board of supervisors is empowered to authorize any town, on the vote of a majority of the electors voting at any annual town meeting, or any regular called special town meeting, to appropriate such sum (to be raised as other bridge -moneys are raised), or to pledge the credit of such town in the manner prescribed by law, to wholly construct and maintain or aid in the construction and main- tenance of any 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 conven- ience. Laws of 1875, chap. 482, § 1, subd. 4, as amended by Laws of 1886, chap. 126. § 840. Borrowing- Money for Bridges.— The board of supervisors is empowered to authorize any town or towns 664 SuPEBVisoRs' Manual. liable or to be made liable to taxation for the erection, care, repair and maintenance, in whole or in part, of any bridge (except on the Hudson river below Waterford, and on the East river, or over the waters forming the boundaries of the State), to erect, repair and maintain the same, and to borrow such sums of money, in the man- ner provided in subdivision 29 of this section, as may be neces- sary for the purposes of such erection, repair and maintenance, and to pay any debt incurred in good faith by or in behalf of such town or towns for such purpose, before or after the passage of this act. But no authority shall be exercised under this subdivision, ex- cept upon the application of a town liable to be taxed for such purpose, to be made by vote of a majority of the electors thereof voting at a regular town meeting, or at a special town meeting called for the purpose, or upon the application of the supervisor, by and with the consent of the commissioner of highways, town clerk and justices of the peace of such town. If any town, at a regular town meeting held between the 1st day of February, 1875, and the pas- sage of this act, shall have elected commissioners for the purpose of building a bridge and providing money to pay for the same by the issuing of bonds or otherwise, such bonds, not exceeding the amount authorized at such town meeting, are hereby authorized and declared valid ; bat said bonds shall not be sold or otherwise disposed of for less than par. And the board of supervisors shall levy a tax on such town for the payment of such indebtedness at such times and in such amounts as may be necessary to meet the obligations incurred by said commissioners in pursuance of instructions given by such town at the time of electing said commissioners. Chap. 432, Laws of 1875, subd. 6, aa amended by chap. 451, Laws of 1885. §841. May Authorize ToTrns to Purchase Plankroads, Turnpikes, Etc.— The board of supei^ visors is empowered to authorize any town or towns, when applica- tion shall be made therefor by a vote of the majority of the electors voting on the question at any annual or duly called special town meeting, to purchase, and any company owning the same, to sell the whole or any part of any plank, macadamized or turnpike road, or any toll-bridge. in such town or towns, or the franchises thereof, for free public use, and to determine the proportion of expense proper to be borne by each town, where there shall be more than one town applying for this purpose. Laws of 1875, chap. 482, § 1, subd. 7. Roads and Bridges. 665 § 842. Locating', Constructing and Control of Bridges. — The board of supervisors is empowered (except in New York county) to authorize the location, change of location and construction of any bridge (except on the Hudson river below Water- ford, and on the East river, or over the waters forming the boundaries of the State) which shall be applied for by any town or towns, jointly, or by any corporation formed pursuant to the general laws of this State, or by any corporation or individual for private purposes ; and in case of a public bridge erected by a corporation, to establish the rates of toll to be collected for crossing such bridge. But in every case where any such bridge is to cross a navigable stream of water, full provision shall be made in the resolution or permission authoriz- ing the same, for the erection and maintenance of a suitable draw to prevent any impeding of the navigation of such stream of water ; and in the case of a private bridge, provision shall be made that the draw shall be kept open as may be required, to permit all vessels to pass without loss of headway. "Where any bridge shall be on a stream or water, forming at the point of crossing the dividing line of counties, the action of the board of supervisors of each county shall be necessary to give the jurisdic- tion permitted by this subdivision. In case any bridge (except on the Hudson river, below Waterford, and on the East river, or over the waters forming the boundaries of the State) shall have been within one year previous to the passage of this act, or shall hereafter be, destroyed by the elements or otherwise, and the expense of con- structing a bridge on or so near the site of the bridge so destroyed as to supply the public necessities occasioned by the loss of the bridge so destroyed, with the necessary approaches thereto, cannot be con- structed at an expense which will not exceed double the sum now authorized by law to be raised upon the taxable property of the town or towns within which the bridge thus destroyed was situate, then and in that case the board of supervisors of any county in this State (except the cbunties of New York, Westchester and Kings)- within which such bridge was situate, may, at their discretion, with- out delay, provide for constructing and completing a bridge instead of the one destroyed, and all necessary approaches thereto, of durable material, at the earliest practicable time, on the site of the bridge so destroyed ; and in case the bridge so destroyed shall have been constructed by a corporation organized pursuant to the general laws of this State, and the site upon which the same was constructed, together with the approaches thereto, shall be the property of such 84 • 666 SupEKvisoKs' Manual. corporation, it shall be lawful for the board of supervisors of the county in which such bridge was situate to purchase the right of such corporation, or the right of whomsoever the site of said bridge and the approaches thereto may belong, provided such purchase can be accomplished upon such terms as, in the judgment of the board of supervisors, shall be just to the public and to its best interests. But if, in the judgment of the board of supervisors, such purchase cannot be accomplished upon reasonable terms, then and in that ease the said board of supervisors are authorized, and it may acquire a valid title to premises on either side of the site upon which said bridge stood when so destroyed, provided the title to the same can be acquired upon reasonable terms as to price, and provide for the construction and maintenance of a bridge and the approaches thereto, upon premises other than the site upon which the bridge so destroyed was located, provided the bridge to be constructed can be so located outside of the old site as not to increase the distance to be traveled to reach either end of such bridge more than five rods. The con- struction and maintenance of such bridge and the approaches thereto shall be at the public expense, and, when completed, shall be free for the use of the whole public, and all persons may use the same as a public or common highway, and the same shall be what is ordi- narily understood to be a free bridge, subject to the rights of the board of supervisors of the county in which said bridge is situated ; and such board is hereby authorized to prescribe the weight that may, or may not, be carried over the same, and the rate of speed beyond which any animal shall not be rode or driven, under such penalties for disobedience of the rules or regulations prescribed by the board, as said board may deem proper. Laws of 1SV5, chap. 482, § 1, subd. 8, as amended by Laws of 1881, chap. 439. 3. SUMS AUTHORIZED TO BE RAISED BY TOWN OFFI- CERS—APPLICATION OF. § 843. The supervisors, commissioners, town clerk and justices are required' to meet on the first Monday of March in each year, to determine what amount, if any, shall be borrowed on the credit of the town, for building or repairing any roads or bridges, etc. The board of supervisors have to sanction such borrowing. The law and proceedings thereunder are set out in full at section 167, and the law in full, next section. EoADs AND Bridges. 667 § 844. Authoriziiig> Town Officers to Borrow Money, Etc. — The boards of supervisors of each county in this State, except New York and Kings, shall have power at their annual meeting, or at any other regular meeting, to authorize the supervisor of any town in said county, by and with the consent of the commis- sioner or commissioners of highways, town clerk and justices of the peace of such town, to borrow such sum of money, for and on the credit of each town, not exceeding, however, in any year, the amount of one-half of one per centum on the assessed valuation of the tax- able property of the town for such year, as the said town officers may deem necessary to build or repair any road or roads, or bridge or bridges in such town, or which shall be partly in such town and. partly in an adjoining town ; or to pay any existing debt incurred in good faith by or on behalf of such town, for such purpose, before the passage of this act ; and the said board of supervisors shall have power to prescribe the form of obligation to be issued on any such loan, and the time and place of payment — the time not to exceed ten years from the date of such obligation — and the rate of interest thereon not exceeding six per centum per annum. And the said board of supervisors shall have power, and it shall be their duty, from time to time, as the said obligations shall become due and payable, to impose upon the taxable property of such town sufficient tax to pay the said principal and interest of such obligations according to the terms and conditions thereof. The town officers hereinbefore mentioned shall meet at the town clerk's office in the town for which they are elected or appointed, on the first Monday of March in each year, at ten o'clock in the morning, to determine what amount, if any, shall be borrowed on the credit of such town, for the purposes con- tained in the first section of the act hereby amended, and for what roads or bridges such amount shall be borrowed or appropriated, and for the same purposes a meeting or meetings of the said officers may and shall also be held upon the call of the town clerk, whose duty it shall be to call the same within one week after the receipt of a written request of twelve tax payers of the town therefor ; and any such meeting may be adjourned from time to time, either for want of a quorum or in default of any final determination of any ques- tion arising concerning such appropriation ; but no such meeting shall be held subsequent to the first Monday of October in each year. The bonds authorized by this act shall have indorsed thereon a cer- tificate signed by the town clerk of the town for which they are issued, to the effect that such bonds are issued with the consent of '668 SuPEKVisoEs' Manual. the town officers herein mentioned, at a meeting, the date of which shall be mentioned in such certificate. The town olerk of any town, ■on account of which such bonds are issued, shall keep a record show- ing the date and amount of such bonds, the time and place when the same are made payable, and the rate of interest thereon. Such bonds shall be delivered to the supervisor of the town, who shall dispose of the same for not less than the par value thereof, and pay the proceeds thereof to the commissioner or commissioners of high- ways of such town, to be used by him or them for the purposes for which the same were appropriated ; but not more than $500 of such proceeds shall be expended upon any one road or bridge, except un- der and in pursuance of a contract to be made by the contractor with the commissioner or a majority of the commissioners of high- ways of such town, for the construction or repair of such road or bridge, which contract shall be approved by a majority of the town auditors of such town, neither of whom shall be interested in such contract. Any amount borrowed and appropriated pursuant to the provisions of this act, for the repair or construction of any road or bridge in any town, and which it shall not be necessary to use for such purpose shall be applied by the commissioner or commissioners of highways to the repair of any other road or bridge in such town Chap. 855, Laws of 1869, § 1, as amended by chap. 250, Laws of 1882. § 845. Trustees of Villages must Consent, "when. — In case the road or roads, or bridge or bridges, referred to in the first section of this act, shall be wholly or partly within the limits of any incorporated village, the consent of a majority of the trustees of such village shall be necessary for the action of supervisors of towns under said section, in addition to the consent of the commissioner or commissioners of highways, town clerk and justices of the peace of such town. Id., § 10, added hy chap. 823, Laws of 1873. § 846. TO"Wn Officers {Continued). — On the apphcation of the supervisors, by and with the consent of the commissioners, town clerk and justices of the peace, the board of supervisors is empowered to authorize towns to borrow moneys. See law in full, § 840, ante. COUNTIES LIABLE FOE ONE-SIXTH EXPENSE OP BEIDGES OYER BOUNDARY STREAMS. § 847. Liability of Counties.— Each of the counties of this State shall be liable to pay for the construction, care, mainte- KoADS AND Bridges. 669' nance, preservation and repair of public bridges lawfully con- structed over streams or other waters forming its boundary line, not less than one-sixth part of the expense of such construction, care, maintenance, preservation and repair. Laws of 1883, chap. 346, § 1. ** § 848. Commissioners of Hig-h-ways to De- liver to Supervisor Statem.eiit of Expenses.— It shall be the duty of the commissioners of highways of every town in which a part of any such public bridge may be, to make and de- liver to the supervisor of said town, on or before the 1st day of Ifo- vember in each year, a statement in writing containing a description of said bridge, the whole expense in items incurred by said town during the year preceding, for such construction, care, maintenance, preservation and repair, the truth of which statement shall be veri- fied by the oath of one of said commissioners. Id., § 2. § 849. Supervisors to Levy Tax.— It shall be the duty of the supervisor to whom such statement is delivered to pre- sent the same to the board of supervisors of the county in which such town is located, at its next annual session thereafter ; and it shall be the duty of the said board of supervisors to levy upon the tax- able property of said county a sum sufficient to pay such county's proportion of such expense, and the same when collected shall be paid to the commissioners of highways of said town, to be applied by them toward the payment of such expense. Id, §3. § 850. Supervisors may Pay more tlian One- Sixtll. — Should the board of supervisors of any county to which such statement is presented, consider it equitable and just that such county should bear a larger proportion than ohe-sixth part of such expense, it may, ia its discretion, levy a larger amount on such county for such purpose, to be applied in the manner aforesaid, not to exceed, however, one-fourth part of such expense ; but the whole amount so levied for such purpose, in any county, in any year, shall not be to exceed the sum of $5, 000, nor shall the provisions of this act apply to any such expense heretofore contracted. Id., §4. § 851. Counties to Pay at Least One-Sixth» Etc. — The intent and purpose of this act is to provide that ^70 SUPEBVISORS' MA2JUAL. the towns in wliicli any free public bridge over streams or other waters forming tbe boundary line of counties may be located, shall each pay not more than one-third part of such expense, and that the counties in which such bridge may be located shall each pay not less than one*sixth part thereof. Id.,§ 5. § 853. Not to Apply to Westcliester and New Yorlc. — The provisions of this act shall not apply to bridges be- tween the county of Westchester and the county of New York. Id., § 6. § 853. Repeail. — All acts and parts of acts, so far as the same may be inconsistent with the provisions of this act, are hereby repealed, but nothing herein contained shall preclude any town from obtaining relief from counties for any such expense already incurred under the provisions of law heretofore existing. Id., §?. Counties may also Aid To-wns, Etc. — Dis- cretionary PoTrers.— Of the Erection and Repair of Bridges. — Whenever it shall appear to the board of supervisors of any county that any one of the towns in such county would be unreasonably burdened by erecting or repairing any necessary bridge or bridges in such town, such board of supervisors shall cause such sum of money to be raised and levied upon the county, as will be sufficient to defray the expenses of erecting or repairing such bridge or bridges, or such part of such expenses as they may deem proper ; and such moneys, when collected, shall be paid to the commissioners of highways of the town in which the same are to be expended. 2 E. S. 1268, § 119. In case the commissioners of highways of any town shall be dis- satisfied with the determination of the board of supervisors of their county, touching an allowance for any such bridges, such determina- tion shall, on the application of the cominissioners, be reviewed by the court of sessions of the same county, whose order in the premises shall be observed by every such board of supervisors. Id., §121. Notice of the application should be served upon the chairman of the board of supervisors, or in case there is none, or he is absent, on the clerk of the board. Although no time is prescribed, it is proper that the notice should be served at least ten days before the applicar tion. EOADS AND BbIDQBS. 671 This act by section. 130 thereof limited the amount to be raised by tlie county in any one year at not exceeding $1,000. In Hill V. Supervisors, the court of appeals says: The act of 1838(ohapi 314, ante), gave to the board of sapervisors, in addition to the powers which they then possessed, authority (1) " To cause to be levied, collected and paid to the treasurer of the county such sum of money as might be necessary to construct and repair bridges therein, and to prescribe upon what plan and in what manner the moneys so to be raised should be expended; and (3) To apportion the tax so to be raised among the several towns and wards of their county as shall seem to them to be equitable and just." The first question to be considered, ia respect to this act, is whether the two first subdivisions relate exclusively to bridges which are a charge upon the whole county. Nothing in the language of the act favors such a construction. By its terms, the only limitation of the subject, in respect to which the power is to be exercised, is that the bridges are to be in the county. 12 N. y. 58. ' The general purpose of the provisions on this subject, of the act of 1838, was to obviate the evil which had rendered necessary so frequent applications to the legislature, by conferring upon boards of supervisors a further and new discretion* ary power, from time to time, to aid in the construction and reparation of bridges within their respective counties. This general purpose has been effected by re- moving the limit of expenditure in any one year, and by enabling the board to apportion the tax among the several towns and wards as to them shall seem equi- table, as well as by intrusting the board with the power of determining what bridges they will construct or repair. Id. 60. See Laws of 1869, chap. 855, § 2; People, ex rel. Atkinson, v. Tompkins, 64 N. Y. 63 ; People v. Meaoh, 14 Abb. (N. S.) 429; See Dictum, Contra, 1 Hill, 50'. § 854. To Authorize Grade of Streets, Etc.— The board of supervisors is empowered to authorize in, any county containing an incorporated city of 100,000 inhabitants or upward, when any territory within such county and beyond the limits of such city has been mapped out into streets and avenues in pursuance of law, the establishment of a plan for the grades of such streets and avenues, the laying out, opening, grading, construction, closing and change of line of any one or more of them, to provide for the esti- mation and award of the damages to be sustained, and for the as- sessment on property intended to be benefited thereby, and fixing assessment districts therefor, the levying,^ collection and payment of the amount of such damages, and of all other charges and expenses to be incurred, or which may be necessary in carrying out . the pro- visions of this subdivision ; but such last-named powers in regard to laying out, opening, grading, construction and change of line of such streets or avenues, or such provisions for defraying the expense thereof shall only be exercised on the petition of the property -own ers who own more than one-half of the frontage on any such street or avenue, or on the certificate of the supervisor, justices of the peace and commissioners of highways of the town, or two-thirds of such offices, that the same is, in their judgment, proper and neces- 672 SuPERvisoKs' Manual. sary for the public interest, or iu case the said streets or avenues, in respect to which such action is proposed to be taken, shall lie in two or more towns, on a like certificate of such town ofl5cers of each of said towns, or of two-thirds of all of them ; provided, however, that before proceeding to make any such certificate, the said oflicers, or such number of them as aforesaid, shall give ten days' notice by pub- lication in one of the daily papers of said county and by posting in six public places in such town, or in each of such towns, of the time and place at which they will meet for the purpose of considering the same, at which meeting the public and all persons interested may appear and be heard in relation thereto ; and provided that no such street or avenue shall be laid out, opened or constructed upon or across any lands heretofore acquired by the right of eminent domain, and held in fee for depot purposes by any railroad corporation, or upon or across any lands now held by any existing corporation formed for the purpose of improving the breed of horses, without the con- sent of such corporation ; and provided, further, that none of said town officers shall be entitled to charge any compensation for their services under this act, and no charge shall be made against the town or any of the property therein for the expense of the publication of the notice herein required. The provisions of this section shall not apply to the towns of Flatbush and New Lots, in the county of Kings. Laws of 1875, chap. 482, § 1, subd. 9, aa amended by Laws of 1881, chap. 554, The decisions under the above laws (§§ 838-854) may be found in chapter IX, under the various laws, of which the above are extracts. EOADS OE BRIDGES INJURED OE DESTROYED AFTEK TOWN MEETING. § 855.— Tinder Chapter 103, Laws of 1858. By the act of 1858 (chap. 103, as amended in 1866, chap. 442), entitled "An act to provide for the speedy construction and repair of roads and bridges, where the same shall have been damaged or destroyed," it is provided, that In case any road or roads, bridge or bridges shall be damaged or destroyed by the elements or otherwise, after any town meeting shall have been held, and since the 15th day of February, A. D. 1865, then and in that case it shall be lawful for the commissioner or commissioners of highways, by and with the consent of the board of town auditors, or a majority thei'eof, of the town or towns in which such road or roads, bridge or bridges shall be situated, to EoADS AND Bridges. 673 cause tlie same to be immediately repaired or rebuilt, although the expenditure of money required may exceed the sum now authorized to be raised by law upon the taxable property of the town or towns for such purposes ; and the commissioners of highways shall present the proper vouchers for the expense thereof to the town auditors, at their next annual meeting, and the said bill shall be audited by them, and the amount audited thereon shall be collected in the same manner as amounts voted at town meetings as now required. The commissioners acting under this act shall be entitled to receive, for each day's service actually rendered, $2. Chap. 103, Laws of 1858, § 1, as amended by chap. 442, Laws of 1865. The board of town auditors may be convened in special session by the supervisor, or, in his absence, the town clerk, upon the written request of any commissioner of highways, and the bills and expenses incurred in the erection or repairs of any such roads or bridges may then be presented to and audited by such board of town auditors ; and the supervisor and town clerk shall issue a certificate to be sub- scribed by them, setting forth the amount so audited and allowed, and in whose favor, and the nature of the work done and material furnished ; and such certificate shall bear interest from its date, and the amount thereof, with interest, shall be levied and collected in the same manner as other town expenses. Id., § 2. No account for services rendered or material furnished according to the provisions of this act shall be allowed by such board, unless the same shall be accompanied by the affidavit of the party or parties performing such labor or furnishing such material, nor unless the commissioner or commissioners shall certify that such service has been actually performed, and such material was actually furnished, and that the same was so performed or furnished by the request of said com- missioner or commissioners, and such board of auditors may require and take such other proof as they may deem proper to establish any claim for such labor and material and the value therefor. Id., §3; 2E. S. 1218. Where a highway bridge in the town of 6. was carried away by a flood shortly prior to the town meeting of 1873, held, that the commissioners of highways of the town, with the consent of the board of town auditors, were authorized to enter into a contract for the rebuilding of the bridge, under the provisions of the act providing for "the speedy construction and repair of roads and bridges," etc. (§ 1, chap. 103, Laws of 1858, as amended by chap. 442, Laws of 1865), which au- thorizes the commissioners of highways of a town, with such consent, where a bridge has been damaged or destroyed after a town meeting, to cause the same to be immediately repaired or rebuilt. 85 674 Supervisors' Manual. Also JiM,, tliat the commissioners were authorized to contract to pay for the bridge upon the completion thereof, although they had no money in their hands for that purpose. It seems, that in such case the commissioners have power, under said statute, to borrow money upon the credit of the town to pay for the bridge. In an action upon such a contract, it appeared that the consent of the board of town auditors to the rebuilding of the bridge was given at its regular annual meeting, when all the members of the board were present ; it did not appear whether the consent was in writing or not. Held, that, if requisite, it would be assumed that a record of the consent was properly made. There were three commissioners of highways of the town, all of whom united in the determination to rebuild the bridge, and in the application to the board of auditors ; also in the agreement upon the plan, and that the work should be by contract, the letting to be advertised. At the time the contract was let and entered into, one of the commissioners was absent, he not having received actual notice in time to attend; his name was signed to the contract by one of the other commis- sioners, who previously, by his consent, had signed his name to the advertise- ment; he afterward, with knowledge of the facts, acted with the other commis- eioners in reference to the bridge without any objection, and never questioned the validity of the contract. Hdd, that the contract was to be treated as the valid contract of the three commissioners. Boots V. Washburn et al., 79 N. Y. 207. Laws of New York, 1865, chapter 442, provides that in case roads shall be de- stroyed after the regular town meeting, the commissioner of highways may, with the consent of the town auditors, cause the roads to be immediately repaired, and that the expenses, with the proper vouchers, shall be presented at the next an- nual meeting, for audit, etc. HM, that the action of the town auditors in giving leave to the highway commissioners in advance of the making of repairs, to ex- pend a named sum on the roads of the town, specifying the roads and the amount to be expended on each, was proper. lu such case, a finding in favor of the commissioners for moneys expended in repairing washouts, etc., happening after the annual meeting, will be sustained, although it appears that before such meeting the roads were in bad condition, where the evidence goes to show that the roads were greatly injured by a rain- storm which occurred after the annual meeting. Bruner etal. v. Lewis etal.,i N. Y. Sup. 403. In this action, commenced in a justice's court to recover upon a contract for the repair of a bridge in the town of Wells, the defendant was described in the title of the summons and complaint " as commissioner of highways in the town of Wells." The plaintiff alleged in the complaint that he performed a contract for repair- ing a bridge across the river, on the road leading from Wells to Lake Pleasant, " by direction of defendant, at the price of $340, and said job was accepted by defendant, and the board (of town auditors) directed the money should be raised to pay said plaintiff, and that the same was paid to defendant to pay plaintiff." Held, that it was plainly shown by the summons and complaint that the action was against the defendant in his official capacity. By chapter 103 of the Laws of 1858, as amended by chapter 443 of the Laws of 1865, where a bridge is damaged by the elements or otherwise, after any town meeting, the commissioner, with the consent of the board of town auditors, may immediately cause it to be repaired, though the expenditure exceed $350. Held, that the question as to whether or not the bridge became damaged after the town meeting was to be determined by the commissioner and the board of town auditors, and that the person contracting with the commissioner for the per- formance of the work was not required to investigate as to the time at which the bridge became damaged, but only to see that the consent of the board of town auditors had been given. Buyce v. Buyoe, 48 Hun, 433. A commissioner of highways of a town has no authority, under chapter 103 of Laws of 1858, as amended by chapter 443 of the Laws of 1865,to make a contract to build a bridge in place of an old one, even with the consent of the town board, except in case of damage or destruction after the annual town meeting. EoADS AND Bridges. 675 Such power and authority Is not conferred upon commissioners of highways by any other statute. Nor has the town board or the town any authority to make such contract. Wrought Iron Bridge Co. v. Barnett, 1 N.Y. State Rep. 600. § 856. Under Chapter 225, Laws of 1841.— Bridges Bet'ween Tottus. — 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 said towns, without reference to town lines. § 1, chap. 225, Laws 1841, as amended by chap. 383, Laws 1857. See Decisions, just below. Commissioners to Make Contracts.— For the purpose of building and maintaining such bridges, it shall be lawful for the commissioners of said towns, or of commissioners of either one or more towns respectively, the other or others refusing to act, to enter into joint contracts, and such contracts may be enforced in law or ■equity, against such commissioners or their representative successors, jointly or severally, respectively; and the commissioners of said towns so liable may be proceeded against jointly for any neglect of duty in reference to such bridges. Id., § 2, as amended by Laws of 1857, chap. 383. Refusal to Repair Bridges. — If the commissioners of highways of either of such towns, after notice in writing from the commissioners of highways of any other of such towns, shall not within twenty days give their consent in writing to build or re- pair any such bridge, and shall not within a reasonable time there- after do the same, it shall be lawful for the commissioners so giving such notice to make or repair such bridge, and then to maintain a suit at law in their official capacity, against said commissioners so neglecting or refusing to join in such making or repairing, and in such suit the plaintifE or plaintiffs shall be entitled to recover so much from the defendant or defendants, respectively, representing said other towns as the town or towns would be' liable to contribute to the same, together with costs of suit and interest, without prov- ing any contract ; and in an action in pursuance of the act hereby amended, to recover the expense of building or repairs, it shall not be necessary, to entitle such commissioner or commissioners to recover on the trial of the above action, to prove that the defendants, or their predecessors in office, were at the time of the service of the notice above mentioned, in the possession of funds belonging to the town which be or they represent, sufficient to make such repairs, nor shall the want of funds be any defense to the said action ; and it shall be the duty qf the board of supervisors of the county in which such towns are located, to levy the amount of any judgment so obtained, with costs and interest on the taxable property of any town against the commissioner or commissioners oi which such judgment has been 676 StrPEEVisoKs' Manual. so obtained, but the commissioner or commissioners of such town shall not be personally liable for such judgment. Id., § 3, as amended by Laws of 1857, chap. 883. Judgment Recovered to be ToTrn Charg^e.— Any judgment recovered against the commissioners of highways in their official capacity, under the provisions of this act, shall be a charge on said town, and collected in the same manner as other town charges, except in cases where the court before which the judgment shall be recovered shall certify that the neglect or refusal of said commissioners was willful and malicious, in which case said commis- sioners shall be personally liable for such judgment, and the same may be enforced against them in the same manner as against indi- viduals. Id., § 4. The provisions of the Revised Statutes relating to town-line roads (R. S. 516, §§ 73, 74, 75) do not provide for the maintenance of bridges, and the road dis- tricts therein mentioned do not include bridges; they simply refer to ordinary road districts, and were intended to provide only for ordinary highway labor. A bridge, therefore, upon a town-line road which is located partly in each of the towns, is not to be considered as wholly within the town to which the road districts including it has been allotted under said provisions; but the towns are jointly liable for the expense of maintaining it. The commissioner of highways of one of the towns so liable may waive the twenty days' written notice required to be given by the act providing for the maintenance of such bridges (§ 1, chap. 225, Laws of 1841, as amended by chap. 383, Laws of 1857); and where, upon application of the commissioner of the other town, he absolutely refuses to help rebuild the bridge, when it becomes neces- sary, he thereby waives notice, and the latter may rebuild and then maintain an action against the former to recover half the expense. Day V. Day, 94 N. Y. 153. The same liability which commissioners of highways are under to repair roads and bridges in their respective towns, is imposed jointly upon the commissioners of adjoining towns by chapter 235 of the Laws of 1841, as amended by chapter 383 of the Laws of 1857, as to bridges crossing a stream dividing such towns. The law is well settled that commissioners of highways are liable to respond in damages to any person suffering special injury in consequence of their neglect of duty. Bryan v. Landon, 3 Hun, 500. For a failure to keep in repair a bridge over a stream dividing adjoining towns, as required by chapter 225, Laws of 1841, as amended by chapter 388, Laws of 1857, the commissioners of highways of the said towns are jointly and not sever- ally liable. Theallv. Tonkers, 21 Hun, 265; but see 43 id. 588. In an action against a town to recover damages for its neglect to keep a bridge in proper repair, it is not necessary to allege in the complaint that the defendant had money with which to make the necessary repairs. Where an act of the legislature Imposes upon two towns the duty of keeping a bridge in repair, an action for their neglect so to do will lie against the two towns jointly. Oaltley v. Town of Mamaroneck, 89 Hun, 448 ; but see 84 id. 140. EoADS AND Bridges. 677 The provisions of the act " relating to the joint liability of commissionerg of lighways " (§ 1, chap. 225, Laws of 1841), as amended in 1857 (§ 1, chap. 383, Laws of 1857), which provides that where any two or more towns shall be liable to build or maintain a bridge, the same shall he done at joint expense, without reference to town lines, imposes the expense equally upon the towns, without re- gard to the portion of the bridge located in either. The change of the words "at the equal expense," in the original act, to "at the* joint expense," in the amended act, was not intended to affect the proportion chargeable to each town. Lapham v. Rice, 55 N. Y. 4:12. The proceedings authorized by the act of 1857 (chap. 639, Laws of 1857) to compel the repair of bridges, can only be instituted in the cases specifically pro- vided for by the terms of the act, i. e., of bridges " over streams dividing towns." Accordingly, Iield, where proceedings were instituted under said act to compel the repair of a bridge over the A. river, constructed pursuant to chapter 299 of the Laws of 1863, as a joint bridge by the towns of A. and C, hut which bridge was wholly within the town of C, the river not dividing the towns, that the court had no j urisdiction. It seems, that the act under which the bridge was built, by necessary implica- tion, charges its support and maintenance upon the two towns; and their liability to keep it in repair, at joint expense, may he enforced under the general acts pro- viding for the maintenance of bridges, for the repair of which two or more towns are jointly liable (chap. 325, Laws of 1841, as amended by chap. 383, Laws of 1857). Matter of Pet. of Freeholders of Catt. Co., 59 N. Y. 316. Under the act incorporating ' ' The Leicester Bridge Company " (Laws of 1837, chap. 388), a bridge was built by such company over the Genesee river, in the county of Livingston. By the act (§ 9) it was provided that in case the bridge should be destroyed and not rebuilt as therein specified " the bridge shall there- upon become a public bridge, and may be maintained at the expense of the county of Livingston." The bridge was substantially swept away, and was abandoned by the company. It was rebuilt by the county, and thereafter kept in repair by the adjoining towns of Qeneseo and Leicester. Plaintiff', under a contract with the commissioners of highways of said towns, repaired said bridge. In an ac- tion against the successors in office of the commissioners who entered into the contract to recover the contract price, held, that the word " may," in the statute, was mandatory, and imposed the obligation to repair upon the county; that said commissioners had no authority over the bridge, and could not bind their towns for its repairs, and that therefore plaintiff could not maintain his action, Phelps T. Hawley ef al., 5^ N. T. 23. As to whether, where two towns are divided by a stream, a bridge over which would connect a highway existing in each of the towns, an implied liability upon the towns to erect the bridge at joint expense is created, qumre. 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. The mere fact that a highway has been laid out is not sufficient; there must be an existing thoroughfare suitable for travel. In 1858 a highway was laid out in the town of P., to the center of I. creek, which divided that town from the town of B. Between the creek and the high- land was a marsh 300 feet wide, which was, a portion of the year, covered with water, and was impassable for teams. No work was ever done on the portion of the highway passing through the marsh, nor was it ever used as a highway. Some work was done on the residue of the highway, as laid out. In an action by the authorities of the town of B., to compel the town of P. to pay half the expense of a bridge, constructed over the creek in 1869, held, that the highway in the town of P. was not ' ' opened and worked " within six years after 1858, within the meaning of the statute (1 R. S. 520, § 99, as amended by chap. 311, Laws of 1861), and therefore it had ceased to be a highway, for any purpose, at the time the bridge was built; and that there being no lawful highway in the town of P., with which the bridge connected, that town was not liable. Beckwith et al. v. Whalen, 70 N. T. 430. 678 Supervisors' Makual. § 857. Bridges over Streams Dividing TO'WIIS or Counties. — Whenever any adjoining towns shall be liable to make or maintain any bridge over any streams di- viding snch towns, whether in the same or different counties, it shall be lawful for three freeholders in either of such towns, by a petition in writing signed by them, to apply to the commissioners of high- ways in each of such towns, to build, rebuild or repair such bridge, and if such commissioners refuse to rebuild or repair such bridge within a reasonable time, either for the want of funds or any other cause, the said freeholders, upon aflBdavit and notice of motion, a copy of which shall be served on each of said commissioners at least eight days before the hearing thereof, may apply to the supreme court at a special term thereof, to be held in a judicial district, in which such bridge or any part thereof shall be located, or to a judge of said court at chambers, for a rule or order requiring such com- missioners to build, rebuild or repair snch bridge, and such court or judge, upon such motion, may, in doubtful cases, refer the matter to some disinterested person to ascertain the requisite facts in relation thereto, and to report the evidence thereof to said court or to snch judge. Upon the coming in of such report, in case of such refer- ence, or upon or after the hearing of the motion, in case no such reference shall be ordered, the court or judge shall make such order thereon as the justice of the case shall require. If such motion bo granted in whole or in part, whereby funds shall be needed by the said commissioners to carry said order into effect, such court or judge shall specify the amount of money required for that purpose, and how much thereof shall be raised in each town. Chap. 639, Laws of 1857, § 1. Reference. — In case a reference shall be ordered, as specified in the first section of this act, the referee shall appoint a suitable time and place for taking the evidence and shall notify one of said freeholders, and the said commissioners thereof, or cause them so to be notified ; he shall have power to issue subpoenas for witnesses at the instance of either party, and may compel the attendance of such witnesses, or failing to appear in obedience to such subpoena, by at- tachment, and may punish defaulting witnesses for contempt by fine or imprisonment ; he shall have power to adjourn such proceedings from time to time, and to administer the requisite oath to witnesses before him. The referee shall report the evidence taken before him to the court or justice who made the order of reference without Roads and Bkidges. 679 unnecessary delay, and shall be entitled to $3 a day for Ms services, to be paid in the first instance by the said freeholders. Id., § 2. Conuuissioners may Prosecute.— The commis- sioners of highways of any such town are hereby authorized to in- stitute and prosecute proceedings under this act, to compel the com- missioners of such adjoining towns to join in the building, rebuilding or repair of any such bridge, in like manner as the said freeholders are hereby authorized so to do. Id., §3. Duty of Comxaissioners. — Upon the said order for building, rebuilding or repairing such bridge being made, and a copy thereof being served on the commissioners of highways of such ad- joining towns respectively, the commissioners of highways of said two towns shall forthwith meet and fix on the plan of such bridge, or the manner of repairing such bridge, and shall cause such bridge to be built, rebuilt or repaired, out of any funds in their or either of their hands apphcable thereto ; and in case no funds or an inadequate amount thereof are on hand, then they shall cause the same to be built, rebuilt or repaired upon credit, or in part for cash and in part upon credit according to the exigencies of the case ; and the com- missioners are authorized to enter into a contract with any contractor 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 done upon credit. Id., § i. To Repox*t. — The commissioners of highways in each town shall make a full report of their proceedings in the premises, to the auditors of town accounts at the time of making their annual report. The said commissioners for each town shall attach to the copy of the said order granted by the supreme court, or a judge thereof, an accu- rate account under oath of what has been done in the premises and deliver the same to the supervisors of each town. The board of supervisors, at their annual meeting, shall levy a tax upon each of such towns, when in the same county, and upon the appropriate town when in different counties, its share of the costs of building, re- building or repairing such bridge, after deducting all payments actually made by said commissioners thereon ; which tax, including 680 SuPEEVisoBs' Makual. prior payments, shall in no case exceed the amount specified in said order. Id., §5. Appeals. — Either party considering himself aggrieved by the granting or refusal to grant such order, by the court at special term, or by a judge of such court, may appeal from such decision to the supreme court, at general term for the review of such decision. The supreme court, at the general term, shall have power to alter, modify or reverse such order, with or without costs. Id., §6. The supreme court at special term, or a judge at chambers, shall have power to grant or refuse costs as upon a motion, including also witnesses' fees, referee's fees and disbursements. The appeal pro- vided for in the last section shall conform to the practice of the su- preme court in case of appeals from the decision of a motion at special term to the general term of the supreme court. Id., §7. Proceeding Trhen Bridge lias been Re- paired by Individuals.— 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 such bridge shall have fallen down, or been swept away by a freshet or otherwise, if the commissioners of highways of such adjoining towns, after reasonable notice of such condition of such bridge, have neglected or refused, or shall neglect or refuse, to repair or rebuild such bridge, then and in such case, 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 persons or by any corporation, shall be a charge upon such adjoining towns, each being liable for its just proportion ; and the person or persons, or corporation, who has made such expenditure, or shall make the same, may apply to the supreme court at a special term, or to a judge at chambers, for an order requiring such towns severally to re-imburse such expendi- tures, which application shall be made upon serving papers for such application upon the commissioners of highways in each of such towns, at least eight days before such application shall be made, and such court or judge is authorized to grant an order requiring each of such adjoining towns to pay its just proportion of such expendi- ture, specifying the same ; and in case such order shall be granted, it shall be the duty of the commissioners of highways in each of Roads akd Bbidges. 681 such towns forthwith to serve a copy of such order upon the super- visors of each of such towns, who shall present the same to the board of supervisors at their next annual meeting. The board of supervisors shall raise the amount justly chargeable upon each town, and cause the same to be collected and paid to such person or per- sons, or corporation, as incurred such expenditure. The right of appeal is given to such party under this section, provided for under the sixth section of this act. Id., §8. On or about the Slat day of January, 1887, certain freeholders of the town of Owasoo and the city of Auburn, acting under the provigionsof section 1 of chap- ter 639 of 1857, united in a petition for the building, rebuilding, or repairing of a bridge, between the said city and town, over the Owasco outlet, at a street known as Swift street. No action having been taken either by the city or the town, a motion was made at a special term for an order requiring the commissioner of highways of Owasco and the common council of Auburn to build or repair the said bridge, which was denied. Held, that, as it appeared that the approach to the bridge was destroyed more than twenty-four years ago, it might be fairly presumed that the public had abandoned the purpose of rebuilding the bridge at that place, and that the court should not, after this long and unexplained delay, attempt to put the oflGlcers of the law in motion to require them to rebuild the bridge. It seems, that the provisions of the said act are not applicable to the city of Auburn, and that it was the intention of the legislature to exempt that munici- pality from all the general laws of the State relative to the laying out, construct- ing and keeping in repair the highways and bridges within its territorial limits. {Per Parker, J.) Matter of Certain Freeholders, 46 Hun, 620. It appearing that the bridge would cost $20,000, and would always be liable to destruction by the floods to which the creek is subject, that there is but little satisfaction with the present mode of crossing, and that the State makes no ob- jection thereto, the order of special term refusing the application does not seem to be abuse of its discretion under said statute, and will be afHrmed without pre- judice to a similar application, if a change in the circumstances should render the rebuilding of the bridge expedient. In re Commissioners of Highways, 3 N. Y. Supp. 461. Under Laws N. Y. 1857, chap. 639, providing that when adjoining towns refuse to rebuild a bridge over a stream dividing the towns after its destruction, upon application to compel them to do so the court may make such order as to it may seem j ust, two such towns may, in proper case, be required to rebuild such a bridge on a highway though it has been destroyed for eighty years, and the stream has been crossed at points a few hundred feet distant, by means, first, of a toll-bridge, next of a ferry, and for forty years solely by the aqueduct of the Erie canal, which, though illegal, has been permitted by the State for that length of time, as no discontinuance of the highway has been thus effected. Id. This proceeding was instituted, under chapter 639 of 1857, by freeholders of two adjoining towns to procure an order compelling the commissioners of high- ways of the said towns to rebuild a bridge over a stream dividing the two towns, which bridge they were bound to make and maintain. The referee reported that the bridge should be built; that the highway commissioners and proper officers of each town were willing to build and maintain the bridge, but could not agree as to whether it should be built of wood or wrought-iron, one town favoring the former and the other the latter material; that a wrought-iron bridge with stone piers should be used, instead of a wooden structure, at a cost not exceeding the sum of $9,000, one-half to be paid by each town. 86 682 Supervisors' Manual. Upon an appeal from an order of the Special Term, confirming the report of ths referee, it was contended that under the act the court had no power to compel the expenditure of a larger sum of money than the towns had power to provide or contract for without the order of the court. Meld, that this contention did not accord with the intention of the act as shown in the fourth and fifth sections thereof. That the inability of the commissioners of towns to agree as to the kind of bridge, resulting in a neglect to build any bridge, justified an application to the court. That an objection that the order was too indefinite and uncertain was not main- tainable as the order defined the location of the bridge, the material of which it was to be constructed, and limited its cost. That the act was not unconstitutional, and did not confer upon the court a power not judicial in its nature. Matter of Mt. Morris and Castile, 41 Hun, 29. Laws N. T. 1841, chaps. 35, 50, authorizing the counties of Warren arid Sara- toga, through certain named commissioners, to build a bridge over the Hudson river, and loaning the money for that purpose, do not empower the highway commissioners of said counties to agree that each shall build a bridge to an island in the river so as to bind each county, or the respective towns of each county, to repair or. replace the bridge on that side of the island next to its boundary. In re Spier et al., 3 N. Y. Supp. 438. Under Laws N. Y. 1857, chap. 639, providing that the expenses of a bridge over a stream between two towns shall be justly proportioned between them, and chapter 888, providing that a bridge for the maintenance of which two towns are liable shall be built and maintained at their joint expense, the cost should be divided between them, regardless of their relative wealth and population. Id. Nor do the statutes mentioned, making a loan to the counties, and authorizing them to levy a tax on such of their towns as they deem fit to repay the loan, im- pose any liability on the counties to repair the bridges, as such burden rests pri- marily on towns each side of a stream, by virtue of Laws of New York, 1857, chapter 639, and the river at that point not being navigable tide-water. Laws of 1880, chapter 830, making a bridge across such navigal}le waters a charge on the county, instead of the towns, is not applicable. Id. See Decisions under next section. Under chapter 700, Laws of 1881, DEFECTIVE EOADS AND BEIDGES. See Decisions under § 863. § 858. Liability of Town for Defective High- ■way. — The several towns in this State shall be liable to any per- son suffering the same, for all damages to person or property by reason of defective highways or bridges in such town, in cases in which the commissioner or commissioners of highways of said town are now by law liable therefor, instead of such commissioner or com- missioners of highways. Laws of 1881, chap. 700, § 1. EoADS AND Bridges. 683 § 859. Judgment a Charge upon Town.— Upon the recovery of any judgment, for any damage aforesaid, such judg- ment, together with the costs inchided therein, shall be and become a charge upon the town against which it is rendered, and shall be audited and paid in the same manner as other town charges. Id., §2. § 860. When Town May Bring- Action Against Commissioners.— If the defect in such high- way or bridge shall have been caused by the misconduct or neglect of the commissioner or commissioners of highways of the town in which the same may be situated, then and in such case the town against which any judgment shall have been recovered by reason of such defective highway or bridge may bring an action against such delinquent commissioner or commissioners of highways and recover the amount of such judgment. Id., §3. §861. Power of Town Auditors, Etc.— The board of town auditors of any town in this State shall have the power to audit and pay, if they shall deem it just so to do, as a town charge in the same manner as other town charges are audited and paid, any claim for damages to person or property already sustained, and any claim for damages which may be hereafter sustained by any person or corporation by reason of defective highways or bridges in such town, if in their judgment it be for the interest of the town so to do ; the amount so audited in settlement of any one claim not to exceed the sum of $500, and any judgment already recovered and not paid, and any judgment which may be hereafter recovered against any commissioner or commissioners of highways of-'such town for such damages to persons or property arising from defective roads or bridges in such town whenever such board of town audit- ors shall be satisfied that the commissioner or commissioners against whom the same was rendered have acted in good faith, and the defect causing such damage shall not have been caused by the willful misconduct or neglect of the commissioner or commissioners against whom such judgment shall have been recovered ; and the board of town auditors may be convened in special session for such purpose by the supervisor, or in his absence by the town clerk, upon the written request of the claimant or a commissioner of highways. Id., §4, as amended by chap. 146, Laws of 1889. § 862. Saving Clause.— Nothing in this act shall be con- 684 SuPEEvisoEs' Manual. strued to relieve any commissioner of highways in this State from liability to indictment or criminal prosecution in cases where by law they are now liable thereto. Id., §5. In an action brought against a town, under chapter 700, Laws of 1881 to re- cover damages for injuries sustained by the plaintiff while crossing a bridge which was alleged to have been allowed to remain in an unsafe condition by reason of the negligence of the commissioners of highways, the defendant claimed that the act was unconstitutional upon the ground that the highways were for the public and not for local use, and that the highway commissioners were not the repre- sentatives or agents of the town in any sense, and that the legistature had no power to charge the property of its citizens with the consequences of the miscon- duct and negligence of the commissioners. Hdd, that the act was constitutional and valid. A person approaching a highway bridge presenting no apparent defect or con- dition which would render it, unsafe to cross over it, has the right ordinarily to assume that those charged with the duty of keeping it in repair have performed that duty, and that he may safely proceed upon and over it. The character and weight of the vehicle and load, and the manner in which it is moved and the effects of the movement are all to be taken into consideration in crossing a bridge, and may require greater or less care. Evidence of the declarations of one of the commissioners of highways, made the summer before the accident, to the effect, that he had got to go and repair this bridge was received. Seld, that the evidence was admissible as bearing upon the question of his knowledge of the condition of the bridge. Bidwell V. Town of Murray, 40 Hun, 190. Commissioners of highways, in grading the highways, are not bound to provide a channel for the drainage of surface water, and are not liable for inj uries resulting from their omitting so to do. (Gould v. Booth, 66 N. Y. 62, followed.) The in conveniences resulting to abutting owners from the grading of highways are to be regarded as the natural consequences of maintaining highways, and are pre- sumed to have been contemplated and paid for when the land was taken for the purpose of a highway. In order to sustain an action against a town under chapter 700 of the Laws of 1881, facts must be alleged eufScient to have constituted a cause of action against the commissioners of highways prior to the enactment of the act. Acker v. Town of New Castle, 48 Hun, 812. A highway bridge over the outlet of Canandaigua lake having been taken away by a freshet, the commissioners of highways proceeded to erect a new one in its place, and for that purpose put in a new stone abutment on the north side of the stream. In doing this they caused to be made an excavation of the earth, which left, when the abutment was constructed, a space of from four to five feet wide at the top and about six feet in depth north of and between it and the road- way, the abutment itself extending three feet above the surface of the highway. During the progress of the work upon the bridge there was a place a short dis- tance north of it, where teams left the highway and forded the stream at another point, which gave reasonable accommodations to the public travel; there was, however, at the time of the accident, no obstruction placed upon the highway to prevent a team from proceeding to the abutment, nor any thing to guide a team into the passage-way departing from the highway, other than the track there made by its use for travel. A team of horses, hitched to a wagon, having escaped from the driver on the night of August 5, 1886, ran away and fell into this trench, whereby one of the horaes was killed. In this action, brought by the plaintiff to recover the value of the horse, the death of which was alleged to have been caused by the negligence of the high- way commissioners, a judgment was recovered by the plaintiff upon the ground that the commissioners omitted to place any guard for protection against the ap- proach upon the highway, to this place of danger. EoADS AND Bkidges. 685 Held, that the burden of proof was with the plaintiff to establish not only that the commissioners were chargeable with negligence, but that if they had not failed to perform their duty the injury would not have been sustained. That the commissioners were only required to use reasonable care for the safety of the traveling public, and that while the situation caused by the removal of the earth and the process of constructing the bridge imposed upon them the duty to guard, in a suitable manner, persons traveling upon the highway, it did not im- pose upon them the duty to erect a barrier against the fury of a team of horses running away without restraint. That the judgment should be reversed. Stacy T. Town of Phelps, 47 Hun, 54. Notice of defects in a highway to one commissioner ia suiEcient to charge the- board with notice. Proof that the commissioners had in their hands a certain amount expended at the end of the year, and that the repairs in question would amount to much less, is sufficient to show them in possession of funds. Malloy T. Town of Pelham, 25 N. Y. W. Dig. 277. It is within the discretion of the commissioners of highways of a town, where they have not sufficient funds in their hands to make all needed repairs, to apply the funds in mailing such repairs as in their j udgment are most urgently needed, and they are not responsible for an error in judgment in doing so. Under the provisions of the statute prescribing the method of laying out high- ways in the towns of the county of K. (chap. 670, Laws of 1869), and in compli- ance with the provisions of the act of 1873 (chap. 364, Laws of 1873), directing ,the commissioners appointed by the former act to lay out " Eighty -sixth street," said street was laid out and constructed in accordance with the plan laid down by the commissioners. The street was graded up in one place about thirty feet above the adjoining land. No provision was made in the plan for a railing or fence on the outer lines of the road at the top of the banli. The commissioners of highways of the town of N. U. (defendant), upon whom is Imposed the duty of keeping that portion of the street in their town, when completed, in repair, kept the roadway in repair, and in so doing expended all the moneys in their hands. In an action under the act of 1881 (chap. 700, Laws of 1881), making towns liable in certain cases for in- juries caused by a defective highway, to recover damages for injuries alleged to have been sustained by reason of negligence on the part of the commissioners in not erecting some barrier at the top of the bank, held (1), the omission was not a defect in the highway; (3) conceding it to have been such, as the commissioners of highways had expended the moneys in making other repairs they deemed more urgent, the town was not liable; (3) the defect, if any, was in the plan and was not chargeable to the officers of the town. The street was laid out with a road- bed sixty feet wide, in ^the center of which was a street-car track; on each side was a sidewalk, eleven feet wide, raised about a foot above the level of the road, bordered near the gutter with a row of trees. Plaintifi, who had been di'inking heavily, was placed in the center of the road, on a clear, starlight night, with directions to follow the car track to his place of destination. He wandered ofi the road and fell down the bank. Held, that he was chargeable with contributory negligence. Monk v. Town of New Utrecht, 104 N. T. 552. When a highway is lawfully laid out it becomes the duty of the commissioner of highways to open and work it; in doing which, where it is necessary, he is au- thorized to construct bridges over any streams which are crossed by such high- way. (Mather v. Crawford, 36 Barb. 564, followed.) Although the contract for the construction of a bridge is made by a highway commissioner before the high- way upon which the bridge is to be used has been laid out, yet after such high- way has been laid out the commissioner may cause the bridge to be constructed in accordance with such contract, notwithstanding the fact that his action in entering into such contract was, at the time it was made, illegal. The power conferred upon the boards of supervisors by chapte? 855, Laws of 1869, and chapter 483, Laws of 1875, to provide for the location, erection, repair and purchase of bridges, does not deprive a commissioner of highways of the 686 SupEEvisoES' Manual. right to repair a bridge (given him by 1 Revised Statutes, 502, § 1, subd. 4), over a stream which intersects a highway; nor does it take away his power to con- struct a bridge over such a stream, provided the commissioner has the necessary funds to pay therefor. Huggins V. Eiley, 51 Hun, 501. Upon the trial of an action brought against the town of Champion to recover damages for bodily injuries sustained by the plaintiff by falling over an embank- ment to a bridge on a highway in the said town, evidence was given showing that the accident occurred about one-third of a mile from Champion village where the highway passed through a deep ravine, about three rods across, and over Deer Lick creek, over which the bridge was built upon an embankment, on each side of which was a retaining wall of dry stone; the retaining walls, wlaere the creek passed through the bridge, being about eleven feet high and running to nothing at either end; from retaining wall to retaining wall the road measured about twenty-four feet, the road-bed itself being ten feet wide with a slope, something like the gable of a house, of seven feet from the outer edge on each side of the road- bed to the retaining wall, the top of which was two and a half feet lower than the level of the road-bed. No guard or barriers were erected along this high- way on either side, and there was nothing to prevent persons from going oif. Evidence was given by the defendant to show that the highway had been sub- Btautially in the same condition for a period of sixty-eight years, and that no rail- ing had during that time been erected along the embankment. The plaintiff, who was unfamiliar with the roadway in question, had been in a store in Champion, and started to return to Carter's, where he was employed in threshing, at about nine o'clock on a very dark and rainy night; he had never been on the road, at the place where the accident occurred, before, and in hunting for a turn, which led to the place where he was going, stepped down this em- bankment, got started under headway, and went off the bridge or culvert and struck the rocks below. Upon the trial the defendant's counsel requested the court to charge " that the fact that no accident had occurred at the place before, is cogent proof of the ab- sence of negligence on the part of the defendant," to whicli the court responded: "1 say that is evidence which the jury may consider, but I refuse to charge that it is cogent evidence in this case. * * * l leave it for the jury to say how valuable the evidence is in this case, and to give it such weight as they deem proper." Held, that such charge was proper. The counsel further requested the court to charge the jury "that failing to erect guards or barriers does not constitute negligence on the part of the de- fendant." The court responded: " I refuse to charge that; I refuse to charge that it does; I leave it for the jury to say whether it does or not." Held, that this charge was correct. That a claim made by the counsel for the appellant tljat if the commissioners of highways omitted to erect a barrier or guard along the wall where the plain- tiff received the injury, that such omission was of a judicial character and could not be redressed in an action for damages, could not be sustained. It was insisted by the defendant that because no injury had resulted from the road having been substantially in the same condition for sixty-eight years, that the commissioners and the defendant were exonerated from any negligence in continuing the highway in its then condition. Held, tliat the trial judge properly passed upon that question when he sub- mitted it to the jury with the instructions that that circumstance should be con- sidered by them, and that he would leave it to the jury to say how valuable the evidence was in this case, and to give it such weight as they deemed proper. Maxim v. Town of Champion, 50 Hun, 88. While the plaintiff, on September 1, 1885, was passing over a highway bridge in the town of Ellington, riding upon a traction engine, propelled by steam power, with a tank attached, weighing together 8,500 pounds, the bridge broke down and the plaintiff was injured. Upon the trial of an action, brought by the plaintiff, to recover damages because of such inj ury , evidence was gi veil tending to show that one of the beams of the bridge had become rotten; that it had not been repaired, and that it was in consequence of the defective condition of the bridge that the injury occarred. EoADa AND Bridges. 687 The defendant's counsel asked the court to charge the jury that " it was not the oflBcial duty of the highway commissioner to so construct and maintain the hridge in question, as to insure the safety of persons passing over it in a manner involv-' ing peculiar and special danger arising from the unusual way and method of construction and manner of locomotion of the vehicle used in passing over it; " also, to charge that " if the jury are satisfied, from the evidence, that the vehicle upon which the plaintiff was riding, and with which he was connected in passing over the hridge at the time of the accident in question, was unusual and extraor- dinary in weight, in method of construction or manner of propelling the same along the highway, and such unusual weight, method of construction and loco- motion was such as to cause unusual and extraordinary strain upon the bridge in passing over it, then the plaintiff took every possible risk of injury upon himself in trying to pass over the bridge, and the plaintiff cannot recover for the injuries sustained by the breaking down of the bridge, under such circumstances, al- though his injuries were the direct results of such imperfections and defects in the bridge." Held, that exceptions taken by the defendant's counsel to the re- fusal of the court to charge either of these propositions were well taken; that, assuming that the proposition embraced in the first request was intended to state a general proposition, and that it was not intended to be limited to the engine that broke through the bridge, both the propositions were correct and should have been charged. (Gregory v. The Inhabitants of Adams, 14 Gray, 243-48; McCormick y. Township of Washington, 113 Penn. St. 185, followed.) While the commissioner of highways is required to construct and maintain bridges of suflScient strength and material to insure the safety of persons passing over them with such vehicles as are commonly and ordinarily used in that country, he cannot be required or expected to construct and maintain bridges which will insure the safety of persons passing over them in a manner involving peculiar and special danger arising from any unusual weight. Clapp V. Town of Ellington, 51 Hun, 58. In an action against a town for injuries alleged to have been caused by defects in a highway, the court charged the jury that it was the duty of the town, in its corporate capacity, to keep and maintain the highways within the town in a rea- sonably safe and secure condition, and to provide the funds necessary for that purpose, not exceeding in amount the sum authorized by law to be raised for that purpose. Held, error. Rhines v. The Town of Royalton, 27 N. T. W. Dig. 412. This action was brought against the towns of Hamlin and Kendall to recover for injuries sustained by the plaintiff by reason of his being thrown from his wagon while driving upon a defective approach to a bridge, on a highway run- ning north and south between the two towns, which was crossed by a stream over which the bridge was erected. It was averred in the complaint, and admitted in the answers, that the highway, including the bridge, was, at all points upon the line between the towns, and that the bridge had heen constructed by the two towns, and maintained by them for a number of years next preceding the com- mencement of the action, at least up to the time of the inj ury. Upon the trial, when the plaintiff rested, a nonsuit was granted as to the town of Kendall upon two grounds, one of which was that evidence, admitted against the objection of the plaintiff, showed that owing to a deflection in the line of the highway, at or near the point where the bridge was built, the bridge was wholly in the town of Hamlin. Held, that the court erred in admitting the evidence, as it contradicted the admissions made in the pleadings. The other ground was that there was no proof that the commissioner of that town had funds with which to repair. Upon the trial evidence was given tending to prove that one of the commissioners had procured some materials to make the repairs shortly before the accident, and that on the morning after it occurred the commissioners of both towns made the needed repairs. Held, that the court erred in taking the case from the jury, as the jury might, from this evidence, have in- ferred that the commissioners had the requisite funds or means to repair before the accident happened, and for the further reason that the burden of showing a lack of funds rested upon the defendants and not upon the plaintiff. (Bidwell v. Town of Murray, 40 Hun, 190, followed.) After the nonsuit was granted to the town of Kendall, the town of Hamlin was permitted, against the objection of 688 SuPEEVisoRs' Manual. the plaintiff, to introduce evidence tending to sliow that, although the bridge ■waa solely in Hamlin, that part of the road in which it was situated had been allotted to the town of Kendall, under the provisions of 1 R. S. 517, § 75, to keep in repair. Held, that as the evidence contradicted the admissions of the answer, the court erred in admitting it. The question as to whether it was competent for the two towns to allot to one of them the care of the bridge, so as to relieve the other from responsibility to the public in respect to its condition, was not decided. Getty V. Town of Hamhn, 46 Hun, 1. A town is not liable to one who is injured by an obstruction in the highway consisting of a culvert over an artifical passage for water overflowing from the New York city aqueduct, built by that city under authority of the legislature. Riley v. The Towu of Greenburgh, 3 N. T. Supp. 322. Upon the trial of this action, brought against the defendant, the town of El- lington, to recover damages for personal injuries to the plaintiff, and to his horse and carriage, occasioned by the defective condition of a highway on which he was driving, it appeared that a, portion of the supporting bank of the road, which was what is commonly known as a dug-way, had been washed out by the ac- tion of the water of a creek, causing a defect in the road at a place where the wheel of the plaintiff's carriage went off, resulting in his horse and carriage and himself being thrown into the creek. Hdd, that 1 R. S. 501-503, §§ 1-6, as amended by § 7, chap. 503, of the Laws of 1880, imposing upon the overseer of highways the duty to keep in order the highways in his district, do not relieve the commissioner of highways from the duty imposed upon him by the same sec- tions of seeing that the roads are kept in suitable repair, and for that purpose of giving the requisite directions to the overseer to use the means provided by the statute to supply the work necessary to do it, and also to use reasonable diligence to see that his directions are executed; and that his neglect to discharge this duty gives a person injured by it a right of action against the town under the provis- ions of chapter 700 of the Laws of 1881. The washout which produced the defect in question occurred on August 23, and the accident occurred on the evening of September 5. The commissioner was advised of the washout shortly after it had happened, and requested a per- son to see the overseer and have him fix the road, and evidence was given tend- ing to prove that such person saw the overseer on the same day and told him what the commissioner had said, although this was denied by the overseer, who testi- fied that he first learned of the defective condition of the road on September 8, and that he repaired it on September 7. Held, that, as the repair did not require a great amount of work, a verdict of the jury finding that the commissioner had been guilty of negligence, should be affirmed; that a request to charge that if the jury found that the commissioner sent directions by the person named to the overseer to repair the road, and that such directions were communicated to him, the commissioner's duty was discharged, was properly refused, as the care of the highway imposed upon him by the statute required him to ascertain within a reasonable time whether the directions given by him had been properly executed. Qucere, as to whether, if the commissioner was merely an officer de facto, his mere failure or omission to act could be charged to him as negligence. Parman v . Town of Ellington, 46 Hun, 41 . Plaintiff was injured by falling into a hole adjoining the sidewalk which formed part of a drain and had remained unguarded for more than a year. Held, that whether the hole was a dangerous one was a question of fact for the jury. Although plaintiff was acquainted with the defect which caused the injury, the question of contributory negligence is one of fact for the jury to determine under all the circumstances. Phillips V. The Towu of Fishkill, 26 N. Y. W. Dig. 103. A highway commissioner negligently left a highway bridge he had constructed in a dangerous condition. Held, that the commissioner having undertaken to build the bridge was liable for negligence in its construction to those injured without fault, although sufficient funds had not been put in his hands for the purpose of building. Defendant's intestate was killed by an accident caused by Roads and Bbidqbs. 689 a carriage in which she was riding being driven off a bridge. The accident took place upon a dark night, and it was shown that the driver, previous to reaching the bridge not being able to see had allowed the horses to take their own path. Held, that it was not negligence per se in the driver to undertake the journey in the night, although very dark, nor was it so allowing the horses to choose their way. Rector, adm'r, etc., v. Pierce, com'r, etc., 3 T. & C. 416. The statute (1 E. S. 501, sec. 1) requiring commissioners of highways to keep the bridges and highways in repair, imposes upon them the duty of active over- sight and constant vigilance, and requires them to exercise a reasonable degree of watchfulness in ascertaining from time to time, the condition of the highways and bridges, and in preventing them from becoming dilapidated or dangerous. The mere fact that they have not been notified of the existence of a defect does not necessarily relieve them from liability to one who has been injured by reason of their failure to discover and repair the same. Bostwlok T. Barlow et al., 14 Hun, 177. No duty attaches to commissioners of highways to repair roads and bridges until funds are provided for that purpose by the public. If commissioners are not furnished with sufficient funds, they are not bound to repair all the bridges in the town. They owe no duty to any one to undertake more than the funds in their hands will complete and pay for; and they may exercise a discretion as to which of the bridges in the town they will undertake to repair. They will be presumed to have exercised that discretion in good faith, and cannot be made responsible, in a civil action, for its exercise. Town commissioners of highways are in no event liable to a private action for a mere neglect or omission to keep the highways of their towns in repair. Garlinghouse v. Jacobs et al., 29 N. Y. 297. In an action against a town to recover for injuries sustained by the fall of a wooden bridge, caused by the breaking of a, decayed or rotten chord or stringer, it was shown that the bridge was in an unsafe and dangerous condition and had been so for some period of time ; but it appeared that the highway commissioners employed an expert to examine, inspect and test the bridge, its chords, stringers and beams, and that he made such examination a few days before the accident, iu their presence, and pronounced the bridge safe and sound. Held, that as it was apparent from the evidence that if a proper examination had been made and the proper tests applied the defect would have been discovered, the jury were warranted in coming to the conclusion that the expert and commissioners failed in this particular, and that the town was liable. PhiUps v. The Town of Macedon, 27 N. Y. W. Dig. 331. As, by statute, the primary responsibility for the maintenance and repair of highway bridges in a town is cast upon the town (1 R. S. 503, sections 2, 3, 4, chap. 374, Laws of 1833; chap. 65, Laws of 1857; chap. 103, Laws of 1858; chap. 700, Laws of 1881), it has such an interest in the preservation of such a bridge as gives it a right of action against any person who, intentionally or by negligence, injures it, making repair or rebuilding necessary to recover the expense incurred. Where, therefore, through the negligence of the agents of the State, certain highway bridges of a town were inj ured, held, that the State was liable for the expenses incurred in making the necessary repairs (chap. 331, Laws of 1870); also, that the claim therefor, on behalf of the town, was properly presented in the name of its supervisor. Bldelman v. State of New York, 110 N. Y. 232. In an action against a town for death caused by an accident arising from a dan- gerous highway, where the evidence shows that the accident occurred while the deceased was driving with a heavy load down a steep descent, and the testimony is conflicting as to whether his wagon had a brake and whether he was in a posi- tion to use it, the question of contributory negligence should be left to the jury. Bryant v. Town of Randolph, 6 N. Y. Supp. 438. 87 690 Supervisors' Manual. Where the danger arose from the general construction of the highway, which had remained in the same condition for twenty-seven years, the jury should be allowed to take that fact into consideration in deciding the question of negligence. Id. The fact that the defective highway was on land belonging to a railroad com- pany should also be considered by the jury in determining the question of negli- gence. Id. In such an action, evidence that eighteen months before the accident the high, way commissioner did not have sufficient funds with which to repair the highway is not admissible in defense. Id. Commissioners of highways have no power to contract a debt against the town 'by borrowing money for the repairs of roads and bridges. Accordingly, where commissioners of highways borrowed $1,000, for this pur- pose, on a note purporting to bind them in their official capacity, held, that an action could not be maintained against their successors to recover the amount. The commissioners are not bound to repair either roads or bridges until the necessary funds are provided. Barker v. Loomis, 6 Hill, 463. It is the duty of commissioners of highways to repair defective highways or bridges, after notice of their condition, with reasonable and ordinary care and dili- gence, if they have sufficient funds in their hands or authority to procure such funds; and neglect of this duty renders them liable in a civil action to any person specially injured thereby. Actual notice of the defective condition of a highway is not necessary, where the circumstances are such that ignorance on the part of the commissioners is, in itself, negligence. The issue being the fact of negligence, the motives, or good faith, of the com- missioners are entirely immaterial. The principle should be regarded as settled in this State, that public officers, whose duties are not judicial, are answerable in damages to any one specially injured by their careless and negligent performance, or omission to perform, the duties of their office. Hover v. Barkhool, 44 N. Y. 113. In an action against commissioners of highways for an accident caused by a hole in a bridge, the referee found that none of the defendants had any knowledge prior to the accident that the bridge was out of repair, and that no willful omis- sion of duty had been established upon the part of any of them. Held, that the report in favor of defendants must be set aside. Such commissioners owe to the public an active duty, the duty of inspection of highways within reasonable periods, and one question always is whether, under the circumstances, they were bound to know of the defect; and this, apart from any question of actual knowledge or willful neglect. Cousins v. Carncross, 21 Dig. 435-6. Chapter 700 of 1881 , providingthat the several towns in this State shall be liable to any person suffering damages by reason of defective highways or bridges, in cases in which the commissioners of highways were then liable therefor, instead of such commissioners, did not render the towns liable for damages theretofore occasioned by such defects in the highways or bridges, but only created and imposed such obligation upon them for damages to be sustained after its passage. Frasier v. Town of Tompkins, 30 Hun, 168. The statute requiring commissioners of highways to keep the bridges and high- ways in repair imposes upon them the duty of active oversight and constant vigi- lance, and requires them to exercise a reasonable degree of watchfulness in ascer- KoADS AND Bridges. 691 taining from time to time the condition of thfl highways and bridges, and in pre- venting them from becoming dilapidated or dangerous. The mere fact that they have not been notified of the existence of the defect does not necessarily relieve them from liability, to one who has been injured by reason of their failure to discover and repair the same. Bostwick v. Barlow, 21 Hun, 177. The liability of towns is not extended by the Laws of 1881, chapter 700, to cases in which the commissioners of highways were not liable prior to the passage of that act. In an action against a town to recover damages for injuries alleged to have been caused by the negligence of its agents and servants in failing to repair a highway or bridge the complaint must allege that defendant had funds, or the means of acquiring the same, or that its highway commissioners had funds or means of acquiring them. Eveleigh v. The Town of Hounsfield, 20 Dig. 210; S. C, 34 Hun, 140; Acker v. Town of Newcastle, iB id. 312, supra; Garlinghousev. Jacobs, 29 N. Y. 297, siipro. In an action against a town to recover damages for its neglect to keep a bridge in repair, it is not necessary to allege in the complaint that the defendant had money with which to make the necessary repairs. Where an act of the legislature imposes upon two towns the duty of keeping a bridge in repair, an action for their neglect so to do will lie against the two towns jointly. Oakley v. Town of Mamaroneck, 39 Hun, 448. To relieve the commissioners of highways of a town from personal liability to one who has been injured by their neglect to repair a defect known by them to exist in the highway, it is not sufficient to show that they had no funds on hand wherewith to cause the necessary repairs to be made, but it must also be shown that they had sought, through the proper channels, to procure the said funds; and their failure so to apply therefor will render them liable for the damages sua- ■tained by reason of such defect. Warren v. Clement, 24 Hun, 472. A village incorporated under chapter 291, Laws of 1870, is not bound to repair bridges situated within its corporate limits unless it elects to do so. In the ab- sence of such election the town continues to be bound to repair such bridges, and is liable to any person injured by its neglect to keep them in safe condition. Washburn v. Village of Mt. Kisoo, 35 Hun, 329. Towns not Liable, for Transporting Engines — When. — No town shall be liable for any damage resulting to a person or property by reason of the breaking of any bridge by a traction engine in crossing the same of the weight of four tons or over, while such person is engaged in transporting or driving such engine along or upon any of the highways of this State. Chap. 626, Laws of 1887. BRIDGES OYER CANALS. § 863. Town, Village, Etc., May Build Bridge. Any town, village or city on the line of any navigable canals of the State may, with the approval, consent and under the direction of -the superintendent of public works, erect, build and maintain within 693 Supervisors' Manual. its limits a bridge or bridges across said canal, of such kind, dimen- sions and materia], and with such approaches, as may be deemed best, at the proper cost and expense of such town, village or citv, at any point where there is not now a bridge built and maintained by the State. Chap. 488, Laws of 1881, § 1. § 864. Appointinent of Tenders, Etc.— Incase any such bridge, by reason of being a hoist, lift or swing bridge, shall re- quire the constant attendance of bridge tenders to manage and work such bridge, the superintendent of public works shall alone have the power of the appointment and removal of such and so many of such bridge tenders as he may think proper, but the expenses or wages of such bridge tenders shall be paid to such superintendent of public works by any such town, village or city, when and as often as he may require, to be by him paid to such bridge tenders, and all the cost of material, power or tools necessary for the tending of such bridge shall be paid for by such town, village or city, on the demand therefor of such superintendent of public works. Id., § 2. § 865. Adoption of Ordinance.— The common coun- cil of any city may, and is hereby authorized and empowered to en- act and adopt an ordinance for the erection and construction of a lift, hoist or swing bridge over any canal at any street in any such city where, in the opinion of such common council, such bridge may be deemed necessary, and such common council is hereby empowered to le^y and assess upon the property benefited the cost of constructing any such bridge, provided, however, that in any such case such city or common council shall first obtain the consent and approval of the superintendent of public works to such proposed bridge, and such bridge shall be built, maintained and operated at the expense of any such city, or of the property adjudged by the common council bene- fited thereby. Id., §3. COUNTIES. § 866. The powers of the board of supervisors in relation to highways and bridges, in cases where towns or town officers have some part in the proceedings, are detailed in the first part of this chapter. Other powers in the matter are as follows : The board of supervisors are empowered. EoADS AND Bbidges. 693 § 867. Under Cbapter 314, Laws of 1838, For Sridges. — To cause to be levied, collected and paid to the treas- urer of the county, such sum of money as may be necessary to con- struct and repair bridges therein ; and to prescribe upon what plan and in what manner the moneys so to be raised shall be expended. Chap. 312, Laws of 1838, § 1, subd. 1. To Apportion the Tax so to be raised among the several towns and wards of their county, as shall seem to them to be equit- able and just. Id., subd. 2. To Appoint Special Commissioners to lay out public highways in those cases where they shall be satisfied that the road applied for is important, and that the authority now conferred upon commissioners of highways cannot or will not be exercised to accomplish the laying out of such road. Id., subd. 4. Provision as to Opening* Public Highways. — The power given to boards of supervisors by subdivision 4 of sec- tion 1 of the act entitled " An act to enlarge the powers of boards of supervisors," passed April 18, 1838, to appoint special commis- sioners to lay out public highways, shall -not be exercised by any board of supervisors, unless the applicant therefor shall prove to such board of supervisors the service of a notice in writing, on a •commissioner of highways of each town through and into which any such highway is intended to be laid, at least six days previous to presenting such application, specifying therein the object thereof, and names of persons proposed to be appointed such commissioners. Laws of 1848, chap. 164. Notice to be Published. — All persons intending to apply to any board of supervisors for the imposing of any tax pur- suant to the first section of this act, except in cases under the fifth subdivision of that section, shall cause a notice of such application to be published once in each week for four successive weeks imme- diately preceding the meeting of the board of supervisors, at which such application shall be made, in a newspaper printed in such county ; but if no newspaper be printed in the county, then such notice shall be published in like manner, in some public newspaper printed nearest thereto. Chap. 3U, Laws of 1838, § 3. 694 SuPEKVisoBs' Manual. Special Commissioners to be Paid. — The super- visors shall have power to provide for the payment to the special commissioners to be appointed under the fourth subdivision of the first section of this act, for their time and expenses. The decisions made by said commissioners may be appealed from, and reviewed in the same manner and with the like authority as is allowed by law in the cases of roads laid out by the commissioners of highways of any town. The roads so to be laid out by such special commissioners, or the same as settled on appeal, shall be recorded, opened and worked as public highways of the towns in which they are respectively sit- uated, in the same manner as other highways of the town are now required by law to be recorded, opened and worked. Id., § 4. The decisions under this act are set forth at g 550, ante. § 868. Under Chapter 855, La-ws of 1869— Use of Abandoned Plank and Turnpike Roads.— Such boards of supervisors shall have power to provide for the use of abandoned turnpike, plank or macadamized roads within any town, as public highways ; and for the improvement of any public highway laid out in pursuance of law ; and for the location, erection^ repair or purchase of any bridge, except over navigable streams ; and for the apportioning the expense of any public road or bridge upon such towns as may be just ; and for the borrowing of money by any town or towns or by the county, for the purpose aforesaid ; or for general purposes in anticipation of taxation for such purpose au- thorized by law ; but jurisdiction in the cases aforesaid 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 journal ; and no special ordinance, relating to any one town or ward only, shall become operative unless it shall receive the affirmative vote of the supervisor representing such town or ward. Laws of 1869, chap. 855, § 2. Rates of Toll, £tC. — The boards of supervisors shall have power, by a like vote of two-thirds, to authorize an alteration, reduc- tion or change of the rates of toll charged or received by any turn- pike, 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 3uch counties, provided such alteration shall be asked for by the di- rectors, trustees or owners of such road, bridge or ferry ; and pro- vided further, that no increase of toll shall be so authorized unless EoADS AND Beidgbs. 695 notice of intention to apply for such increase shall have been pub- lished in each of the newspapers pubHshed 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 be changed or modified by any subsequent board, on their own motion, by a like vote of two-thirds of all the members elected to such board. Id., § 3. The decisions under this act may be found at § 557, ante. §869. Under Chapter 482, Laws of 1875 — Expense of Bridg-es at Couflty Lines, Etc.— To apportion, as such board may deem equitable, the expense of the construction of any public bridge (except in the cases specified in the last preceding subdivision) over a stream or other water forming the boundary line of counties between the towns at such point, and in all cases, except as herein provided, such counties shall each pay not less than one-sixth of the expense of such bridge, and to authorize any town, on the vote of a majority of electors voting at any annual town meeting or any regular called special town meeting, to appro- priate such a sum (to be raised as other bridge moneys are raised), or to pledge the credit of such town in the manner prescribed by law, to wholly construct and maintain or aid in the construction and maintenance of any 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. Chap. 482, Laws of 18T5, § l.subd. i. Expense may be Apportioned.— To provide for the care, maintenance, preservation and reparation of any draw or other bridge (except on the Hudson river below Waterford and on the East river, or over the waters forming the boundaries of this State), crossing a stream which forms at the point of crossing the dividing line of counties or of towns, and the maintenance, care and preser- vation of which bridge is by law a joint charge on such counties, or on such towns, or on the towns in which such bridge may be situated ; and to severally apportion, as such board may deem equitable, the charge and expense for such maintenance, care, preservation and reparation, on the towns respectively liable therefor, or on the re- spective counties when liable ; but when such bridge shall span any 696 Supervisors' Manual. portion of the navigable tide-waters of this State forming at the point of crossing the boundary line between two counties, such ex- pense shall be a joint and equal charge on the two counties in which the same is situated, and the board of supervisors in each of such counties is hereby authorized and directed to apportion such expense among the several towns and cities in their respective counties, or upon any or either of such towns and counties as in their judgment may seem proper, provided, however, that no town or city not im- mediately adjacent to such waters at the point spanned by such bridge, shall be liable for any larger proportion of such expense than the taxable property of such town or city bears to the total amount of taxable property of such county. But no such bridge shall be constructed imlessthe same is authorized by a resolution adopted by a majority of the board of supervisors in each of such counties. Id., subd. 5, as amended by Laws of 1880, chap. 320. Roaid Distx*icts. — To authorize the consolidation in any town of two or more of the established road districts therein, and the division of any established road district into two or more ; and to constitute the territory of any incorporated village into a separate road district ; and to provide for the election or appointment of over- seers of highways in such districts ; and prescribe the manner in which the highway labor assessed and highway taxes collected in such consolidated or separate districts, shall be expended and ac- counted for, except that whenever an incorporated village shall con- stitute a separate and independent road district, the commissioners or superintendents of streets, or ofiBcers of said village, by whatso- ever title or name called, whose duty it shall be to control, superin- tend and repair the streets therein, shall be the overseers of high- ways in said district. Id., subd. 8, as amended by Laws of 18T6, chap. 268. Grade of Streets, £tc. — To authorize in any county containing an incorporated city of 100,000 inhabitants or upward, when any territory within such county and beyond the limits of such city has been mapped out into streets and avenues in pursu- ance of law, the establishment of a plan for the grades of such streets and avenues, the laying out, opening, grading, construction, closing and change of line of any one or more of them, to provide for the estimation and award of the damages to be sustained, and for the assessment on property intended to be benefited thereby, EoADS AND Bkidges. 697 and fixing assessment district therefor, the levying, collection and payment of the amount of such damages, and of all other charges and expenses to be incurred, or which may be necessary in carrying out the provisions of this subdivision ; but such last-named powers in regard to laying out, opening, grading, construction and change of line of such streets or avenues, or such provisions for defrayitig the expense thereof shall only be exercised on the petition of the property-owners who own more than one-haK of the frontage on any such street or avenue, or on the certiticate of the supervisor, justices of the peace and commissioners of highways of the town, or two-thirds of such officers, that the same is, in their judgment, proper and necessary for the public interest, or in case the said streets or avenues, in respect to which such action is proposed to be taken, shall lie in two or more towns, on a like certificate of such town officers of each of said towns, or of 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 publication in one of the daily papers of said county and by posting in six public places in such town, or in each of such towns, of the time and place at which they will meet for the pur- pose of considering the same, at which meeting the public and all persons interested may appear and be heard in relation thereto ; and provided that no such street or avenue shall be laid out, opened or constructed upon or across any lands heretofore acquired by the right of eminent domain, and held in fee for depot purposes by any railroad corporation, or upon or across any lands now held by any existing corporation formed for the purpose of improving the breed of horses, without the consent of such corporation ; and provided further that none of said town officers shall be entitled to charge any compensation for their services under this act, and no charge shall be made against the town or any of the property therein for the expense of the publication of the notice herein required. The pro- visions of this section shall not apply to the towns of Flatbush and New Lots, in the county of Kings. Id., subd. 9, as amended by cbap. 554, Laws of 1881. Widtb, of Higll'Way S. — To authorize the laying of high- ways of a greater or less width than is now required by law, and to alter by increasing or diminishing the width of highways now in ex- istence. Id., subd. 10, as amended by Laws of 1876, chap. 257. 88 698 SuPBKVisoss' Manual. Surveys and Records of Highways.— To au- thorize and direct the highway commissioner or commissioners of any town to cause survey to be made at the cost of the town of any or all highways in such town, and to make a complete and systematic record thereof, or to revise, collate and re-arrange existing records of highways and to correct and verify the same by new surveys, and to establish the location of highways by suitable monuments whenever such commissioner or commissioners may deem expedient. Such records so made or revised, corrected and verified, shall be deposited with the town clerk of such town and shall thereafter be the lawful records of the highways which they describe, but shall not affect rights pending in any judicial proceedings commenced prior to the deposit with the town clerk of such new or revised records. Id., subd. 11. Non-resident Higbfway Tax. — Upon the applica- tion of the owners representing a majority in value (as shall be ascer- tained from the last annual town assessment-rolls) of the real estate lying along the line of any highway laid out through unimproved lands, to appropriate the non-resident highway tax on the lands ly- ing along said line, for the improvement of such highway under the direction of a commissioner or commissioners to be appointed by the board of supervisors. But this provision shall not apply nor in- terfere in any case where the same object is provided for by any special law passed prior to the first day of January, 1875. Id., subd. 12. In Queens county a special subdivision exists. See cbap. 855, Laws of 1869, § 9. § 870. Under Chapter 175, Laws of 1880.— Highways Through Unimproved Lands.— The board of supervisors of any county in this State containing more than 300,000 acres of unoccupied and unimproved forest lands, in addition to the powers now possessed by said board, is hereby au- thorized to establish separate highway districts in such county, for the purpose of laying out and constructing highways through such unimproved and unoccupied tracts of land in such county; such highway district to be established only upon the application of the owners of more than one-haK of the non-resident lands to be in- cluded therein. Any highway district established under the provisions of this act Roads and Bridges. 699- shall consist of contiguous tracts or parcels of land, and may include within its limits parts of one or more towns, and the same may be changed, altered or abolished at any time by said board of supervis- ors. The said board of supervisors, shall have power to appoint a commissioner or commissioners to lay out and construct highways in any such district, and to prescribe their powers and duties, and may also direct the manner in which highway taxes shall be assessed, levied and collected upon the lands embraced in any such district, and likewise the manner of expenditure thereof. The said board of supervisors may also authorize commissioners appointed tinder this act to borrow money on such terms as said board shall direct, but not exceeding the estimated amount of ten years' highway taxes upon the lands embraced within the district in which such loan is authorized, and may, for the purpose of repaying any such loan set apart and appropriate the highway taxes upon lands in any such dis- trict for a period not exceeding ten years from the time of making such loan. Laws of 1880, chap. 175. BKIDGE COMPANIES. § 871. Application to Supervisors for Leave to Erect Bridg^e. — By section 6 of chapter 259 of the act of 184:8, providing for the incorporation of bridge companies, it is provided that when any bridge corporation shall be desirous of con- structing a bridge or any part thereof, in any county, it shall apply to the board of supervisors of such county at the annual or any special meeting thereof, for authority to construct such bridge ; of which application, such corporation shall give notice, by publishing; the same in at least one public newspaper in such county, or if no newspaper is published therein, then in an adjoining county, once in each week for six weeks successively, previous to the time of pre- senting such application to such board, specifying such time and the location of such proposed bridge. If the place of the location of such bridge shall be situated in more than one county, such appli- cation shall be made to the board of supervisors of every such county. Such application shall also specify the length and breadth of such bridge ; and the notice of such application shall set forth all the particulars required to be specified in such application. Upon the hearing of the said application, all persons residing in such county or interested in such application may appear and be heard in 700 SuPBEVisoKS* Makual. respect thereto. Such board may take testimony in respect to such application, or may authorize it to be taken by a county judge or justice of the peace of such county ; and it may adjourn the hear- ing from time to time. A copy of the articles of association of such corporation, certified by the State engineer and surveyor, or by the clerk where such articles are filed, shall be attached to and filed with such application. No such corporation shall be authorized to bridge any stream, in anj"^ manner that will prevent or endanger the passage of any raft of forty-five feet in width, or any ark where the same is navigated by rafts or arks. Chap. 259, Laws of 1859, § 6. If after hearing such application siich board shall be of opinion that the public interests will be promoted by the construction of such bridge on' the proposed site, it may, if a majority of all the members elected to such board shall assent thereto, by an order to be entered in its minutes, authorize such company to construct such bridge as shall have been specified in the application, which shall be particularly described in such order. Such corporation shall cause a copy of such order certified by the clerk of such board, with a copy of such application, to be recorded in the clerk's office of such county, before it shall proceed to do any act by virtue thereof ; and such board shall cause such application when it shall have finally acted on the same, to be filed at the expense of the corporation, with all the other papers relating thereto, or to the proceedings of said board thereon, in the office of the clerk of the county in which it shall have been made. Any corporation formed under this act may use, in such manner as such board shall prescribe, so much of any public highway, on either side of any stream, as may be necessary for the construction and maintenance of such bridge and toll-houses. Id., § 7. PLANK-ROADS AND TUENPIKES. § 872. Company to Make Application to Supervisors.— Planli: Roads and Turnpikes.— Whenever any plank road or turnpike company shall be desirous to construct a plank road or turnpike road through any part of any county, it shall make application to the board of supervisors of such county, at any meeting thereof legally held, for authority to lay out and construct such road, and to take the real estate necessary for such purpose ; and the application shall set forth the route and character of the proposed road as the same shall have been described KoADS AND Bridges. 701 in the articles of association filed as aforesaid. Public notice of the application shall be given by the company previous to presenting the same to such board by publishing such notice once in each week for six successive weeks in all the public newspapers printed in such county, or in three of such newspapers, if more than three are pub- lished in such county, which notice shall specify the time when such, application will be presented to such board, the character of the pro- posed road, and each town, city and village in or through which it is proposed to construct the same. Laws of 1847, chap. 210, § 4; 2 R. S. 132T. Special Meeting* of Supervisors.— If such company shall desire a special meeting of the board of supervisors for hearing the same, any three members of such board may fix the time of such meeting, and a notice thereof shall be served on each of the other supervisors of the county, by delivering the same to him personally or by leaving it at his place of residence at least twenty days before the day appointed for such meeting. The expenses of such special meeting, and of notifying the members of such board thereof, shall, be paid by such company. Id., § 5. O-wner of Land may be Heard.— Upon the hearing of the said application, all persons residing in such county, or own- ing real estate in any of the towns through which it is proposed to construct such road, may appear and be heard in respect thereto. Such board may take testimony in respect to such application, or may authorize it to be taken by any judicial officer of such county,. and it may adjourn the hearing from time to time. Id., § 6. , Application. When to be Assented to.— If,^ after hearing such application, such board shall be of the opinion that the public interests will be promoted by the construction of such road on the proposed route as shall be described in the application, it may if a majority of all the members elected to such board shall assent thereto, by an order to be entered in its minutes, authorize such company to construct such a road upon the route specified in the application, and to take the real estate necessary to be used for that purpose, a copy of which order, certified by the clerk of such board, the said company shall cause to be recorded in the clerk's office of such county before it shall proceed to do any act by virtue thereof. Id., § 1. 703 SupBRVisoEs' Manual. Gommissioners to be Appointed.— Whenever any such board shall grant snch an application, it shall appoint three disinterested persons who are not the owners of real estate in any town through which such road shall be proposed to be constructed, or in any town adjoining such town, commissioners to lay out such road ; the said commissioners, after taking the oath pre- scribed by the Constitution shall proceed without unnecessary delay to lay out the route of such road in such manner as in their opinion will best promote the public interest ; they shall hear all persons interested who shall apply to them to be heard, they may take testi- mony in relation thereto, they shall cause an accurate survey and description to be made of such route and of the land necessary to he taken by such company for the construction of such road, and the necessary buildings and gates ; they shall subscribe such survey and acknowledge its execution, as the execution of deeds is required to be acknowledged in order that tliey may be recorded, and they shall cause such survey to be recorded in the clerk's office of such county. If such company shall intend to construct its road continuously in or through more than one county, such application shall specify the number of commissioners which the company desire to have appointed to lay out such road, wliich shall not exceed three for each county, and an equal number of such commissioners shall be appointed by the board of supervisors of each county in or through which it shall be proposed to construct such road ; but the whole number of such commissioners shall not be less than three, nor with- out the consent of such company, shall it exceed six, unless the num- ber of counties in or through which it is proposed to construct such road shall exceed that number. And the commissioners so appointed shall lay out the whole of such road, and shall make out a separate survey of so much thereof as hes in each county, which shall be sub- scribed and acknowledged as aforesaid, and recorded in the county clerk's office of such county. Such company shall pay each of the said commissioners $2 for every day spent by him in the perform- ance of his duties as such commissioner, and his necessary expenses. Id., § 8. Any company formed under the provisions of chapter 210 of the Laws of 184:7, entitled "An act to provide for the incorporation of companies to construct plank roads, and of companies to construct turnpike roads," may procure, by purchase or gift from the owners thereof, any lands necessary for the construction of so much of its contemplated road as shall be intended to be constructed in any EoADs AND Bridges. 703 county, and may also procure, by agreement from the officers named in the twenty-sixth section of the said chapter, the right to take and use any part of any public highway necessary for the construction of so much of such road as shall be intended to be constructed in such county, and when any such company shall have so procured all the lands necessary to be used for the construction of its road in such county, and the right to take and use such parts of the public high- ways in such county as shall be necessary for that purpose, such com- pany may construct so much of its road as shall be intended to be constructed in such county, without making the application men- tioned in the fourth section of the said chapter. Laws of 1847, chap. 398, § 1 ; 2 R. S. 1338. But if any portion thereof is located in another county the consent of the boaid of supervisors of that county is necessary. Inspectors to be Appointed.— In each county of this State, in which there shall be any plank road, or turnpike road, constructed by virtue of this act, there shall be three inspectors of such roads who shall not be interested in any plank or turnpike road in such county. They shall be appointed by the board of su- pervisors of the county, and shall hold their offices during the pleas- ure of such board. Before entering on their duties such inspectors shall take and subscribe the constitutional oath of office, and file the same in the office of the clerk of the county. Laws of 1847, chap. 210, 8 33; 2 R. S. 1333. These inspectors are confined to a preliminary inspection of toll roads before the companies are allowed to exact toll thereon. They have no power to act upon complaints for want of repair. Suydamv. Smith, 52 N. T. 383 Commissioners of Higll"WayS.— Commissioners of highways seem to be the inspectors of plankroads and turnpikes in their respective towns. Laws of 1873, chap. 440. But see Laws of 1848, chap. 45. There are many local acts on this subject. Charter, how Extended.— By Laws of 1876, chap- ter 135, it is provided that any plankroad company or 'turnpike company, formed under the act of 1847, and which shall have man- aged and carried on any plankroad or turnpike road for twenty years last past, upon three miles in length thereof, or not less than one- third of the route named in their original articles of association, may, at any time within five years before the termination of its corporate 704 StTPEEVISOES' MaKUAL. existence, or of the time specified for its duration in its articles of association, continue its corporate existence for a period not exceed- ing thirty years, by first obtaining the consent, by resolution, of a majority of all the members of the board of supervisors of the county or counties in which such road is located, adopted at any regular or special meeting, etc. The provisions of this act do not apply to the counties of Kings, Yates, Queens, Seneca or St. Lawrence. A3 amended by Laws of 1879, chap. 253; 2 R. S. 1353. Laws of 1879, chapter 441, provide that in any proceedings heretofore taken under the existing provisions of law, or which shall be hereafter so talcen, to ex- tend the charter or corporate existence of any plankroad or turnpike company, the filing and recording of a copy of the resolution by which the required consent of a majority of the supervisors of any county shall be given, verified either by the certificate of the clerk of the board of supervisors or an affidavit of some members of the board of supervisors, shall be and be deemed a full compliance with the requisitions of law as to filing and recording such consent. 2 R. S. 1357. By Laws of 1880, chapter 484, it is provided that whenever, by oversight or mistake, the officers of any planlcroad company or turnpike company have neg- lected to make, file and record in the office of the clerk of the county or counties in which such plankroad or turnpike road is located, within one year before the expiration of the term of the corporate existence of such company, and in the office of the secretary of State, the consent provided for in section 1 of chapter 135 of the Laws of 1876, and a statement showing the actual capital expended in the construction of any such plankroad or turnpike road exclusive of repairs, to- gether with the consent in writing from the persons owning two-thirds of the capital stock of such company, and a statement of the number of years which they shall desire such corporate existence extended, and the name of each town or ward through or into which such road passes, it shall be lawful for such com- panies to make and file in the oflice of the secretary of State and in the office of the clerk of the county in which such companies may be situate, a statement showing the actual capital expended in the construction of any such plankroad or turnpike road, exclusive of repairs, together with the written consent of a ma- jority of the supervisors of the county or counties in which said companies are located, and the consent, in writing, of the persons owning two-thirds of the capital stock of such companies, respectively, consenting to their or its corporate existence; then, in such case, the corporate existence of such company or compa- nies is hereby renewed, revived and extended for not more than thirty years, or for less time, as may be specified and stated in such statements and consents, etc. Public notice must be first given by the president or secretary of such company for four weeks by advertisement in the State paper, and in not less than two news- papers published in the county in which such roads are located, of the intention to extend the corporate existence of said plankroad or ' turnpike company. The provisions of this act do not apply to the counties of Ulster, Herkimer or Otsego. As amended by Laws of 1881, chap. 117. Abandonment of Road.— In case any part of any plankroad, or turnpike road has been abandoned according to law, any further abandonment of any part of such road shall only be made by and with the consent of a majority of all the members of the board of supervisors of the county in which any such road or any part thereof is located, which consent shall be filed with the clerk of said county or counties. Laws of 1876, chap. 185, § 2. EoADS AKD Bridges. 705 The board have power to provide for the use of abandoned turn- pike, plank or macadamized roads within any town as public high- ways. Laws of 1869, chap. 869, S 2. For Powers of Supervisors as to Toll.— See chap. 855, Laws of 1869, § 3, ante, § 868. No more toll shall be taken under the act of 1847, chapter 210, than for the number of miles which shall be traveled by the person or persons using such roads, to the end that where diverging roads Strike any plankroad or turnpike road, at or near any toll-gate, the toll charged for using said plank or turnpike road shall commence from the point of such divergence, and the toll charged shall be only for the distance traveled on such road; provided, however, that fractions of cents may be made units of cents in favor of said road ; provided that the board of supervisors of any county, in which such plankroad or turnpike may be situate, and for so much thereof as shall lie within said county, shall, by a majority vote, pass a resolu- tion declarmg it to be proper that such discrimination shall be made. Laws of 1876, chap. 435; 2 E. S. 1356. COUNTY EAILEOADS. § 873. County Railroads, Etc.— Appointment of Railroad Commissioners.— Laws of 1875, chapter 606, section 1, provides as follows: " Whenever it shall appear, by the application of fifty reputable householders and tax payers of any county in this State, verified upon oath before a justice of the supreme court, that there is need in such county of a steam railway or railways for the transportation of passengers, mails or freight, the board of supervisors of said county may, within thirty days after presentation to them of such applica- tion, duly verified as aforesaid, appoint five commissioners who shall be residents of the said county, and who sliall have full power and authority to do and provide all that they are hereafter directed to do and provide, and a certificate of whose appointment, signed by the chairman and clerk of such board, shall be filed in the ofiice of the secretary of State, and a duplicate thereof in the office of the clerk of such county." But these provisions are not applicable to proposed railways wholly iu cities, nor to New York, Kings and "Westchester counties. Laws of 1875, chap. 606, as amended by Laws of 1886, ohap. 651 ; 2 B. S. 1614. 89 706 SuPEEvisoEs' Manual. Abandonment of such Railroad.— By section 39 of said act, as amended by chapter 514:, Laws of 1888, any corpora- tion heretofore organized or hereafter to be organized, which shall not have constructed and put into operation a railway upon a part and not upon the whole of the route or routes fixed, determined and located, may apply, by petition, to the board of supervisors of the county in which such portion of said route or routes so desired tc be changed or abandoned shall be situated, or if such route or routes or any part thereof, shall be within the limits of a city, to the mayor, and such board of supervisors or mayor, as the case may be, within thirty days after presentation of such application * * * ap. point five commissioners, who shall be residents of the county. DAMAGES AND EXPENSES ON LAYING OUT, ALTER- ING OR DISCONTINUING HIGHWAYS, ETC. § 874. Damages Ascertained by Ag^reement. — The damages sustained by reason of laying out and opening a highway may be ascertained by the agreement of the owner and commissioner of highways, provided such damages do not exceed $100. § 64, art. i, tit. 1, chap. 16, part 1, R. S. (2 R. S. 1242). This does not apply to towns whose real estate is assessed at an av- erage of less than $5 per acre. Cbap. 114, Laws of 1880. Wben not Ascertained by Agreement.— Damages for laying out, altering or discontinuing a highway are assessed by three commissioners appointed by the county court. Their fees are $5 per day. An appeal may be taken from their de- cision and the damages reassessed, which decision is final. Chap. 180, Laws of 1845, § 5, as amended by chap, 428, Laws of 1888, and cbap. 455, Laws of 1847, §§3 and 6, Costs, by Wbom Paid. — In all cases of assessments of damages * * * by commissioners appointed by the county court, the costs shall be paid by the town in which the damages shall be assessed, and in cases of reassessinents of damages by a jury on the application of the commissioners of highways of any town, and the first assessment shall be reduced thereby, the costs of such assessment shall be paid by the party claiming the damages, other- wise by the town ; and in case a reassessment shall be had on appli- Roads asd Bridges. 707 cation of the party for whom the damages were assessed, and such party shall fail to increase such damages, he shall pay the costs thereof, but when the damages shall be increased by the Jury the costs shall be paid by the town. Chap. 455, Laws of 1847, § 1. The town clerk is allowed for drawing and certifying the jury, 50 cents. The constable for summoning the jury, $3. Except when taken from the same town wherein the road is located. In which case he should be allowed $1. Jurors from an adjoining town, summoned, who shall attend, but not serve, 50 cents. If they serve, f 1. If from same town, attend and not serve, 35 cents. If they serve, 50 cents. Id., §19. Expenses on laying out, altering or discontinuance. To the justice of the peace, or notary public for summoning jury, $3. To each juror, $1.50. To the constable for summoning each juror, 10 cents, and travel fees per mile actually and necessarily traveled, going from and returning to his residence, 10 cents. If nine or more jurors shall certify that such highway or alteration is necessary and proper, then the cost of such proceedings is a town charge, otherwise it is paid by the applicant. 2 E. S., § 60. On Appeal £r*oin Commissioners' Decision.— An appeal is provided for any person conceiving himself aggrieved by any determination of the highway commissioners, either in lay- ing out, altering or discontinuing any road, or in refusing to lay out, alter or discontinue any road, which appeal is heard before referees appointed by the county judge, etc. The fees of the referees are $2, for every day employed in the hearing and decision of such appeal, to be paid by the party appealing, where the commissioners' deter- mination is confirmed, but where it is reversed, hy the county. Chap. 455, Laws of 1847, § 9. The word " reversed " was intended to embrace a reversal in part as well as an entire one. People v. Supervisors, 20 Hun, 196. § 875. Board to Audit Damag-es on I^aying Out Road. — All damages which may be finally assessed or agreed upon by commissioners of highways for the laying out of any road except private roads, shall be laid before the board of su- pervisors by the supervisor of the town, to be audited with the charges of the commissioners, justices, surveyors or other persons or oflScers employed in making the assessment, and for whose services the town shall be liable, and the amount shall be levied and collected in the town in which the road is located, and the money so collected shall be paid to the commissioners of such town, who shall pay to the 708 SuPBRvisoEs' ^Manual. owner the sum assessed to him, and appropriate the residue to satisfy the charges aforesaid. Laws of 184r, chap. 455, § 23; 1 R. S. 851. The award of damages by the commissioners or jury is conclusive on the board of supervisors, and cannot be revised by them ; but they must cause it to be raised by tax. People V. Supervisors of St. Lawrence, 5 Cow, 292. Should the board of supervisors refuse or neglect to audit the damages so as- sessed, they may be compelled to do so by immdamus. People V. Supervisors of Ulster, 8 Barb. 836, and cases cited ; People, «x rel, Aspin- wall, V. Supervisors, 20 S, V. 252. If the supervisor make a false return to a maniomms, sued out by an individual, whose land is taken for a highway, and the relator has been kept out of the damages to which he was entitled from the town, the supervisors may properly be made liable in damages, to the extent of the interest upon the damages as. sessed. People, es rel. Aspinwall, v. Supervisors of Bichmond, 28 N. Y. 112. Where, upon application for a peremptory maTidamus, in such a case, the ma- terial issues are found in favor of the plaintifE, the judgment should be that a per- emptory mandamus issue to the board of supervisors, commanding them to audit the claim, as commanded in the alternative writ. A direction to the jury to render a verdict for the relator for the amount of the damages assessed, and the interest thereon as damages, is erroneous. Id. But on appeal to the court of appeals, from such a judgment, the facts being before the court, it may modify the judgment, by reversing it as to the sum as- sessed as damages, and affirming it as to the interest allowed as damages, and di- recting that the judgment be so amended as to grant to the relator the writ of mandamus, without delay. Id. A board of supervisors can only audit the damages assessed for the land of an individual, taken for a highway, with the charges, etc., as provided in the high- way act (Laws of 1847, chap. 455, § 23), and no more can be levied and collecied of the town. Id. Where damages occasioned by the laying out of a highway, had been re-as- sessed by a jury under chap. 455, Laws of 1847, at a larger sum than the original assessment, and the supervisor of the town refused to present the same to the board of supervisors as required by section 23 of that act, but instead thereof presented the original assessment, he, deeming the clause as to re-assessment unconstitutional, it was held that he was liable to an action at the suit of the party entitled to the damages as re-assessed. Held, also, that the remedy by mandamus was not proper in such a case. Clarke V. MiUer, 64 N. Y. 528. The provisions of the act of 1847, chapter 455, relative to the assessment of damages occasioned by the laying out of a highway by commissioners and for a Te-assessment,by a jury in case a party aggrieved shall apply for the same, are not in conflict with article 1, section 7, of the Constitution, and are valid. Id. None of the provisions of the act of 1847, chapter 455, apply to Kings, Queens, , Suffolk or New York counties. CHAPTER XV. MUNICIPAL INDEBTEDNESS AND RAILROAD AID BONDS. Sec. 876. Municipal indebtedness. Sec. 879. Under chapter 75, Laws of 1878. 877. Under chapter 300, Laws of 1870. 320, Laws of 1877. 878. 410, Laws of 1874. 880. 316, Laws of 1886. RAILROAD AID BONDS. Sec. 881. Under chapter 907, Laws of 1869. Payment of railroad aid bonds by 882. 849, Laws of 1877. exchange, etc. 883. Decisions. Sec. 885. Under chapter 421, Laws of 1875. 884. Taxation of New fork and Oswego 886. 522, Laws of 1881. Midland railroad, chapter 296, 887. 278, Laws of 1886. Laws of 1874. § 876. Municipal Indebtedness. — There are a num- ber of statutes relative to providing for the payment of bonds, debts, €tc,, of towns, counties, some of which seem to cover the same sub- jects, but as the prior statutes are not repealed by the subsequent ones, and some counties and towns are using one and others another, it is deemed best to insert them in full. The following are the statutes : §877. Under Chapter 300, Laws of 18 70.— Payment of Bonds of To-wn, Village, Etc.— Tax Therefor. — In all cases where bonds of any town, vil- lage or other municipal corporation may have been or shall hereafter be issued according to law, and in all cases where the payment of the principal or interest of such bonds shall not have been otherwise paid or provided for, the same shall be a charge upon the real and personal property of such town, village or municipal corporation, and shall be assessed, levied, collected and paid in like manner as other debts, obligations and charges against such town, village or municipal corporation, except that in villages the same shall be as- sessed, levied and collected by the trustees thereof in the following manner : The commissioners of said village, if any there be, who are or have been duly authorized by law to issue said bonds, or if there shall be no commissioners, then the said trustees, or a majority of them, shall, on or before the first day of January of each year, prepare and file with the clerk of the said village corporation a de- tailed statement of the amount of bonds which may have been issued 710 SoPERVisoES' Majtual. by said village, or which may be a charge upon the same, with the amount of principal and interest which may have become due, or which shall become due during the succeeding year, and such amount of principal and interest which shall be already due, or which shall become due during such succeeding year, shall be by the trustees of said village assessed and levied upon the taxable property of said village, and collected with the other taxes which shall be collected from time to time for village purposes ; and whenever, through in- advertence, neglect or other cause, any portion of the principal or interest due as aforesaid upon such bonds by such municipal corpo- ration shall not have been paid, the same shall be assessed and col- lected at the first assessment and collection of taxes by such munici- pal corporation after such failure or omission to pay the same. Chap. 300, Laws of 1870, § 1. Section 2 was repealed by chap. 593, Laws of 1886. § 878. Under Cliapter 410, Laws of 1874. See this law in full at g 469, ante. Under Cliapter 75, Laws of 1878 See Decisions at § 883. § 879. Bonded Indebtedness may be Paid up by Issue of New Bonds — Bonds Taken up to be Canceled — Act, how Construed. Sec. 1. The present bonded indebtedness of any village, city, town, district of a town, or county, may be paid up or retired by the issuance of bonds of the same amount by the respective ofiBcers or boards who were authorized to issue such outstanding bonds ; provided, however, that such new bonds shall only be issued when the existing bonds can be retired or paid by the substitution of new bonds, or by money realized thereon, in the place and stead of ex- isting bonds, bearing a lower rate of interest than the bonds so au- thorized to be retired or paid. All bonds taken up by new bonds, or paid under the provisions of this act, shall be immediately can- celed and destroyed ; and a certificate shall be made and filed in the county clerk's office of the bonds destroyed, and also of the new bonds issued. This act shall Uot be so construed as to authorize the issue of new bonds to supersede or paying existing bonds which have been adjudged invalid by the final judgment of a competent Municipal Iitdebtedness and Railroad Aid Bonds. 711 court; and the officers and boards referred to in this act shall include the successors in office of those who originally issued the outstanding bonds. Chap. 75, Laws of 1878, § 1, as amended by Laws of 1880, chap. 12. Novaition of Bonds. — In case any holder of any such ex- isting bonds shall be willing to surrender bonds of any village, city, town or county, and accept in their place and stead new bonds at a lower rate of interest, exchanging said existing bonds for such new bonds at the par value of each, then the said officers or boards of any such village, city, town or county, prescribed in the first section of this acf, may, in their discretion, make such exchange by the retiring of such existing bonds and the substitution therefor of such new bonds, and may extend the date of the payment of such substituted bonds for a period not exceeding thirty years beyond the time when the principal of such existing bonds so surrendered would become payable. Id., § 2, as amended by Laws of 1878, chap. 317. New Bonds, Sa>le of. — Whenever any bonds of any vil- lage, city, town or county shall become due and payable, or in anticipation thereof, the said officers or boards may, in their dis- cretion, cause to be issued, in proper form, new bonds having not more than thirty years to run ; provided, however, such new bonds shall be sold at public auction, or to the highest bidder whose bid shall be by sealed proposals, after notice of said public auction or inviting such sealed proposals ; such notice to be published in two newspapers, to be designated by such boards or officers, for three successive weeks immediately preceding the day of such sale. Such bonds shall be issued at a rate of interest not exceeding six per centum per annum, and shall be sold for not less than par ; and further provided, that in no case shall new bonds be sold except at a lower rate of interest than that borne by the bonds then due and payable ; such new bonds shall bear date and draw interest from the date of the payment of the bonds then due. But nothing in this section contained shall be deemed or construed to affect or interfere with the provisions of chapter 316 of the Laws of 1886, entitled "An act in relation to the bonded indebtedness of villages, cities, towns and counties in this State, and to provide means for the pay- ment and refunding thereof." Id., § 3, as amended by chap. 628, Laws of 1889. 712 SuPEKVisoKs' Manual. Application of Money. — The monejs arising from the sale of new bonds, as provided in the foregoing section, shall be applied to the payment and satisfaction of the bonds then becoming due and payable ; and any surplus arising from such sale shall be paid to the treasurer or other chief fiscal officer of such village, city, town or county issuing such bonds, and shall be placed by him to the credit of such village, city, town or county. Id ., § 4, as amended by Laws of 1884, chap . 244, § 2. Section 3, chapter 344, Laws of 1884, provides that nothing herein contained shall apply to or affect any bonds heretofore issued under the acts hereby amended, or any proceedings taken or pending thereunder. Payments — Increase of Indebtedness not AutIlOI*ized. — The principal of all bonds authorized to be issued pursuant to the provisions of this act may be made payable in installments yearly, or in periods of years not extending beyond the limit herein made, as shall be determined by the authorities hereby empowered to issue them, but nothing in this act contained shall be go construed as to permit any village, city, town or county in this State to increase its present bonded indebtedness. Id., §5. N&w York, Brooklyn and Niag-ara Exempt. — The city and county of New York, the city of Brooklyn and the county of Niagara, except the town of Niagara, shall be exempt from the provisions of this act. Id., S 6, as amended by Laws of 1880, chap. 204. See chap. 316, Laws of 1886, ante, § 59, and chap. 522, Laws of 1881, § , post. Certain Defects in Bonds Cured.— Whenever the bonds of any city, village, town or county shall have been issued and sold by the proper authorities, and the time fixed for the ma- turity of such bonds, or any of them, shall be for a longer period than that provided by the law under which they were issued, a variance not exceeding sixty days shall not be regarded or held as affecting the validity of such bonds. Chap. 320, Laws of 1877, § 1. Nothing in this act contained shall affect any litigation now pending. Id., § 2. None of the provisions of this act shall apply to the counties of Orleans or Niagara. Id., § 3. MuKiciPAL Indebtedn-ess and Railroad Aid Bonds. 713 § 880. Under Chapter 316, Laws of 1886. See law in full, § 59, ante. EAILROAD AID BONDS. The duties of town and county officers in relation to the payment of such bonds are the questions they now are called upon to meet, rather than those pertaining to the issuing of the bonds, and the laws relating to that subject are as follows : Under chapter 907, Laws of 1869. § 881. Tlie General Act of 1869.— The first three sections of the act relate to the issuing of such bonds. As towns and counties are now prohibited from issuing such bonds (art. 8, § 11, Const.), these sections are omitted. Bonds and tlieir Terms — Saving's Banks — Taxes — Duty of County- Treasurer.— It shall be the duty of such commissioners with all reasonable dispatch, to cause to be made and executed, the bonds of such municipal corporation, at- tested by the seal of such corporation affixed thereto, if such corpora- tion has a common seal, and if not, then by their individual seals, and signed and certified by said commissioners, who are hereby au- thorized and empowered to fix such common seal thereto, and to sign and certify such bonds. Such bonds shall become due and payable at the expiration of thirty years from their date, and shall bear inter- est at the rate of seven per cent per annum, payable semi-annually, and shaU not exceed in amount twenty per cent of the entire taxable property within the bounds of said municipal corporation, as shown by said tax list, nor shall they exceed in amount the amount set forth in such petition. The said bonds shall also bear interest war- rants, corresponding in number and amounts with the several pay- ments of interest to become due thereon, but the commissioners may agree with any holders to register any such bonds, in which case the interest warrants on the registered bonds shall be surrendered, and the interest shall be payable only on the production of the registered bonds, which shall then be transferable only on the commissioners' records. The savings banks of this State are authorized to invest in said bonds, not to exceed ten per cent of their deposits. All taxes, except school and road t&xw. collected for the next thirty years, or so much thereof as may be necessary in any town, village or city, on the 90 714 SupEBvisoEs' Manual. assessed valiiation of any railroad in said town, village or city, for which said town, village or city has issued or shall issue bonds to aid in the construction of said railroad shall he paid over to the treasurei' of the county in which said town, city or village lies. It shall be the duty of said treasurer, with the money arising from taxes levied and collected as aforesaid, which has heretofore been, or shall here- after be paid to him (including the interest thereon) to purchase the bonds of said town, issued by said town, to aid in the construction of auy railroad or railroads, when the same can be purchased at or below par ; the bonds so purchased, to be immediately canceled by said treasurer and the county judge, and deposited with the board of supervisors. In case said bonds so issued cannot be purchased at or below the par value thereof, then it shall be the duty of said treasurer, and he is hereby directed to invest said money so paid to him as above mentioned, with the accumulated interest thereon, in the bonds of this State, or of any city, county, town or village thereof, issxied pursuant to the laws of this State, or in bonds of the United States. The bonds so purchased, with the accumulated in- terest thereon, shall be held by said county treasurer as a sinking f imd * for the redemption and payment of the bonds issued or to be issued by said town, village or city in aid of the construction of said railroad or railroads. In case any county treasurer shall unreason- ably refuse or neglect to comply with the provisions of this act, any tax payer in any town, village, or city, theretofore having issued bonds in aid of the construction of any railroad or railroads, is hereby authorized to apply to the county judge on petition, for an order compelling said treasurer to execute the provisions of this act. And it shall be the duty of said county judge upon a proper case being made, to issue an order directing said county treasurer to execute the provisions of this act. All provisions of law now in force relat- ing to the enforcement of the decrees or orders of the supreme court are hereby declared to apply to and devolve upon said county judge in the enforcement of said order. The county treasurers of the several counties of this State in which one or more towns are situated, which have issued bonds for railroad purposes, shall exe- cute a bond with two sufficient sureties to be approved by the county judge of the counties respectively, to the people of, the State of New York, in such penal sum as may be prescribed by the board of su- pervisors of the respective counties, conditioned for the faithful * See § 7 of this title. Municipal Indebtedness and Eailboad Aid Bonds. 715 performance of the duties devolving upon him, in pursuance of the provisions of this act. In case of a vancancy in the office of com- missioners or in case all commissioners are notified of any meetings a majority of the commissioners shall have and exercise all the powers and duties of the three commissioners. The said commis- sioners may issue the said bonds payable at any time they may elect, less than thirty years, any law heretofore passed to the contrary, but they shall not so issue said bonds that more than ten per cent of the principal of the whole amount of bonds issued shall become due or payable in any one year. Chap. 907, Laws of 1869, § i, as amended by chap. 283 and chap. 925, Laws of 1871. Railroad Stock— Sale Thereof— Such commis- sioners are further empowered and directed to subscribe in the name of the municipal corporation which they represent to the stock or bonds of the railroad company named in such petition (as the petition may direct), to an amount equal to the amount of bonds so created by them, and to pay for the same by exchanging the said bonds therefor at par ; or they may, at their discretion, sell and dispose of the said municipal corporation bonds so created by them at rates not less than par, and invest the proceeds thereof in such stock or bonds of such railroad company as may be directed in said petition. They shall represent, either in person or by proxy, such municipal corpora- tion at all meetings of such railroad bondholders or stockholders. Such stock or bonds so purchased by said commissioners may be sold by them before the maturing of the bonds of such municipal corporation only upon the order of the county judge of the county, made upon the petition of a majority of the tax payers of said municipal corporation representing a majority of the taxable property thereof, as shown by the last preceding tax list or assessment-roll ; and the proceeds from such sale shall be forthwith paid by them to the treasurer (or other proper officer) of such municipal corporation, to be by him invested in a sinking fund, as hereinafter provided.. Such commissioners may vote for directors on the stock of such town, village or city. Id., §5. Lien of Bonds — Payment — Dividends — De- ficiency — Railroad Stock. — The bonds of any munici- pal corporation, issued pursuant to the provisions of this act, shall be a charge upon the real and personal estate within the limits thereof, and the principal and interest thereof when due (or so much thereof yie Supervisors' Manual. as shall fail to be met by the interest o*n such railroad bonds or the dividends on such railroad stock, or the sinking fund herein provided for) shall be collected and paid in like manner as other debts, obhga- tions and charges against the said municipal corporation. The said commissioners shall also provide within three years from the time of issuing said bonds, for the annual payment of at least one per cent of the same, to constitute a sinking fund, so as to secure the final liquidation of said bonds within twenty-five years after their date, and for that purpose tHey shall receive and apply annually the sur- plus dividends on the stock held by said towns over the amount nec- essary to pay the annual interest on said bonds; and if the amount of such surplus dividends is not sufiicient for the annual payment of said one per cent and the said commissioners shall not have received sufficient from the sale of the stock belonging to the town to pay the same, and from other sources as herein provided, then the deficiency shall be reported by said commissioners to the board of supervisors, to be levied and raised annually in the manner herein provided for pay- ing the interest on said bonds. The treasurer (or other proper officer of such municipal corporation) shall have the custody of any railroad bonds or certificates of stock that may be subscribed for as aforesaid, and shall collect the interest upon any such bonds or the dividends upon such stock as it becomes due or is made payable, and shall apply the same toward the payment of the interest from time to time becoming due upon the said bonds of said municipal corporation ; any surplus of interest or dividends, after providing for the interest upon the bonds of said municipal corporation, shall go to make up a sinking fund for the redemption of the principal of said corporation bonds. In case the stock or bonds purchased as aforesaid are sold by said commissioners, such treasurer or other officer shall also invest the proceeds thereof in a like sinking fund ; and in case the same are not sold when the said bonds hereby authorized to be created and issued by said commissioners shall mature and the principal thereof become payable, the commissioners shall sell the same, or so much thereof as shall be necessary to pay the outstanding principal sum due on such bonds in full, and shall pay the proceeds thereof to such treasurer or other proper officer, to be by him applied to the redemp- tion and payment of such bonds. Id., s 6. Misapplying- Moneys by Railroad Officers.— The moneys received by any railroad company from any such com- Municipal Indebtedness and Railroad Aid Bonds. 71'? missioners, or from the sale of any bonds of any municipal corpora- tion whicli they may receive under the provisions of this act, shall be by the said company faithfully applied to the construction and equipment of such railroad and to no other purpose. Id., § 7. The remainder of section repealed by chap. 593, Laws of 1886. Registering Bonds. — The bonds of any municipal cor- poration which may be issued under the provisions of this act shall be registered in the office of the county clerk of the county in which such corporation is situated, and shall have the words " registered in the county clerk's office " written or printed upon them, attested by the official seal of said clerk ; and said clerk shall receive for each such attestation the sum of twenty cents. Id., i 8. Perpetuating Former Consents of Tax Pay- ers. — Whenever any municipal corporation in this State that has heretofore issued its bonds in aid of any railroad, upon the written consent of tax payers, or whenever any holder of such bonds so heretofore issued shall desire to perpetuate the proof of such con- sent in the manner hereinbefore provided for the perpetuation of the proof of such consent, as to bonds which may be issued un- der the provisions of this act, application for that purpose may be made to the county jiidge of the county in which such municipal corporation is situated ; and it shall be lawful for such judge, after notice to whom it may concern in manner as hereinbefore provided, to proceed to take proof concerning the allegations in such petition ; and if it shall be proved to his satisfaction that all the consents necessary to be obtained before such bonds could be lawfully issued were so obtained, he shall find the facts and so adjudge and deter- mine ; and such judgment, and the record thereof, shall have the same force and effect as other judgments and records in other courts of record in this State. Id., §9. Section 10 repealed by chapter 883, Laws of 1872. Wben to Take Effect. — This act shall take effect im- mediately. Id., §11. Duty of tlie Treasurer.— It shall be the duty of the treasurer (or other proper officer of every municipal corporation) 718 StJPEBvisoKs' Manual. named in section 6 of the act hereby amended, to invest all moneys, interests, dividends and percentages by him received and therein declared to be a sinking fund, in the manner directed by section 4 of said act as amended by chapter 789 of the Laws of 1870 ; and in every annual report to be made by him, to fully set forth under the head of " railroad sinking fund," the manner and character of said investment and the condition of said funds. Id., § 12. Added by Laws of 1879, chap, 62. See Decisions, § 883, post. Provision is made for the presentation by the railroad commis« fiioners of bonds paid, etc., to the town auditors, and cancellation thereof. See law in full, §§ 465-6. Also for submission of the question as to paying such bonds, etc., to the town meeting. See law in full, § 115, ante. Undee Chapter 349, Laws of 1877, Amending the Act of 1869, Chaptee 907. § 882. Tlie Act of 1877, Chapter 349.— Rail- road Commissioiiers to Report Annually Amount of Bonds, Date and Time, Etc.— It shall be the duty of the commission ei-s appointed under the provisions of chapter 907, Laws of 1869, entitled " An act to amend an act enti- tled ' An act to authorize the formation of railroad companies, and to regulate the same,' passed April 2, 1850, so as to permit munici- pal corporations to aid in the construction of railroads," and the acts amendatory thereof, to report annually the total amount of bonds issued under said chapter 907, Laws of 1869, and the acts amenda- tory thereof, by the town, city or village represented by such commis- sioners ; the date and time when the principal of said bonds will be- come due, the rate and« times of payment of interest thereon, the amount of such principal or interest paid, the amount of said princi- pal or interest due and unpaid and to become due before the annual tax levy and collection of tax for the year next succeeding, and the amount in their hands applicable to the payment of the principal of said bonds or the interest thereon. Chap. 349, Laws of 1877, § 1. The Report. — Such report shall be in writing, signed by the said commissioners or a majority of them, and there shall be af- Municipal Ikdebtedness and Railroad Aid Bonds. 719 fixed to said report an affidavit of at least one of the commissioners that such report is in all respects true and correct. The commis- sioners shall deliver said report to the board of supervisors of the county within three days after the commencement of the annual meeting of said board of supervisors. Id., § 2. The form of report at section 59, ante, can be adapted to these cases, adding the affidavit required that " such report is in all respects true and correct." Boards of Supervisors to Cause Amount Due to be Raised— Amount to be Paid Over to Commissioners— Moneys to be Paid Commis- sioners—Commissioners to Execute Bond.— It shall be the duty of the board of supervisors at the annual meet- ing, when such report is received, to cause to be levied and raised by tax on taxable property of said town, city or village, the amount necessary to pay the principal and interest due and to become due at any time prior to the annual tax levy and collection of tax for the year then next succeeding, as shown by said report, after deducting moneys on hand for the purpose. The amount so levied and raised by tax, when so collected, shall be paid over to said commissioners, to be by them applied to the purpose for which it was so collected. And all money now in the hands of the supervisors of any town, or officer of any city or village, applicable to the payment of the prin- cipal of ^aid bonds, or interest thereon, shall be, on demand, paid to such commissioners, and any money hereafter raised under the provis- ions of the act hereby amended, which by law is to be applied to the payment of said bonds, or interest thereon, shall in like manner be paid to said commissioners ; but before any money shall be so paid to such commissioners, they shall severally execute to the town, city or village, and deliver to the town clerks of towns, or the clerks of cities or villages, a bond with two or more sureties in double the amount of the money to be so received by them, as near as can be ascertained, conditioned for the proper and due disbursement of such money, and the proper accounting therefor, which bond shall be first ap- proved by the supervisor, or the county judge, and by the mayor or president of cities or villages, and said bond shall be renewed annually. Id., §3. Commissioners to Pay Bonds— To Keep Rec- ord—To Report — Duplicate — Report to be Indorsed — Limitation in Application.— It shall be the duty of said commissioners to pay the principal and interest of 720 SUPBEVISOBS' MaKUAL. said bonds at the maturity thereof, and on making such payments the bond or interest coupons paid shall be canceled by said commis- sioners by cutting out a portion of said bonds or coupons ; and a full record of all bonds and interest coupons paid and canceled shall be kept by said commissioners, which records shall be at all times open to the inspection of the supervisor, members of the board of town auditors and justice of the peace of towns, or the members of common councils or trustees of cities or villages ; and said commis- sioners shall report in writing to the board of town auditors of towns, at their annual meeting, and to the common council or trustees of cities or villages, on the first day of April of each year, the date, number and amount of all bonds and interest coupons paid by them and canceled during the past year, and since their last report, and shall, at the same time, produce and deliver to the said town audi- tors, common council or trustees, the bonds and interest coupons canceled by them, taking a receipt therefor, which shall set forth the date, number and amount of each bond or coupon. Said commis- sioners, at the time of making such report, shall also file with the town clerk of towns and clerk of cities and villages, a duplicate thereof. The said town auditors and the common council or trus- tee, as the case may be, shall indorse upon the report so received from the commissioners, that the bonds and interest coupons men- tioned therein, duly canceled, were received by them from the com- missioners, if such is the case, and if all or any of them are not so received, so state in the indorsement. They shall then de- posit said canceled bonds and coupons with said report, in the office of the clerk of the county for safe-keeping. Nothing in this act contained shall in any manner apply to or afEect the town of Orleans, in the county of JefEerson, or any officer thereof, or any money raised by tax on the property therein, or to any bonds except such as were given under the act mentioned in the foregoing title; Id., § 4. Counties ^Excepted. — The provisions of this act shall not apply to the counties of Oswego, Madison, Erie, Orleans, Niag- ara and Genesee. Id., §5. Decisions. § 883. Railroad Aid Bonds.— In an action by a tax payer of the town of A., to have certain bonds issued by said town adjudged illegal and void, it appeared that the town, acting in supposed Municipal Indebtedness and Railroad Aid Bonds. 721 accordance with statutory provisions (chap. 907, Laws of 1869), issued its bonds to pay for stock of a railroad corporation, which passed into the hands of innocent holders. The bonds were claimed by the town to have been illegally issued, and so invalid. "While suits were pending to enforce them, said town, under chapter 146, Laws of 1880, " authorizing it to issue new bonds, pursuant to chap- ter 75, Laws of 1878," and its amendments, to the amount and ex- tent of its bonded indebtedness, issued the bonds in question in exchange for and to retire the outstanding bonds, the new bonds drawing a lower rate of interest than the old ones. Said town at the time had no other " bonded indebtedness " than the original bonds issued as above stated. Held, that the action was not main- tainable ; that the town having elected to compromise, rather than to contest the vahdity of the old bonds, was estopped from there- after questioning it. Hill T. Peekskill Savings Bank, 101 N. Y. 490. The words "bonded indebtedness," as used in said acts of 1878 and 1880, are not limited to bonds in all respects legal and valid, but the acts authorize the refunding of " all municipal bonds save such as have been adjudged invalid by the final determination of a com- petent court, which are excluded from their operation by chapter 317, Laws of 1878. The act of 1878, first mentioned, as thus con- strued, is not violative of the constitutional provision (State Const., art. 8, § 11) prohibiting municipal corporations from ineurring in- debtedness, but the payment of an acknowledged debt, and the con- stitutional provision does not deprive corporations of the right to compromise claims which they dispute. The defect alleged in the proceedings under which the original bonds were issued, was that to the averment in the tax payers of the town, was not added the words ' not including those taxed for dogs or highway tax only.' " Held, that the defect did not render the bonds so absolutely void, as matter of law, but that there might be reasonable question pend- ing an adjudication ; enough of doubt to justify the legislature in authorizing, and the town in efEecting, an amicable settlement. Id. The commissioners have authority to issue bonds, all jjayable at the expiration of thirty years from date ; that the provisions of the act of 1871, amending section 4 of the original act by adding thereto a clause authorizing the commissioners to issue bonds payable in less than thirty years, but requiring that they shall not so issue them 91 725J Supervisors' Manual. that more than ten per cent shall be payable in any one year, simply gave to the commissioners an option either to make them all pay- able at the expiration of thirty years or to make them payable in a shorter time ; if they chose the latter, they were to be made pay- able in installments. Syracuse Savings Bk. f. Town of Seneca Falls, 86 N. Y. 317 ; see, also, Potter v. Town of Greenwich, 92 id, 662 ; BrowneU v. Same, 44 Hun, 611 ; afBrmed, 22 N. E. Rep. 24. As to when the acts of a town and its officers in accepting and re- taining the bonds of a railroad company, and in voluntarily paying several installments of interest, are to be taken as an admission of the validity of the bonds. See Brownell v. Town of Greenwich, 44 Hun, 611. Where, however, the said property was assessed by the town as- sessors, and the city paid the tax to the town collector, who paid it over to the connty treasurer, by whom it was applied " in the same manner as other taxes assessed and collected in said town;" i. e., a portion paid to the authorities of the town, a portion to the proper State officers, and the residue retained for connty purposes. Held, that an action could not be maintained against the town to recover back the tax, or that portion thereof paid over to the town officers, as the town has no treasurer, and its officers, to whom the money was paid, do not represent it, their functions being prescribed by statute, and the money they received being expended in the per formance of official duty. {Chapman v. City of B., 40 N. Y. 372; National Bank of C. v. City of E., 53 id. 49; Newman v. Super- visors of L., 45 id. 676, distinguished.) It seems, however, that the city has a remedy in such case under the provision of the statute extending the powers of boards of supervisors (chap. 855, Laws of 1869, as amended by § 5, chap. 695, Laws of 1871), which requires the board of supervisors of a county to refund the amount of any tax illegally or improperly assessed. City of Rochester v. Town of Rush, 80 N. T. 802, Under the provision of the act (Laws of 1874, chap. 296), subjecting the prop- erty of the N. T. & O. M. R. B. Co. to taxation, and appropriating the amount of the county taxes thereon, in any town which has issued bonds in aid of the construction of the road of said company, to such town, to be devoted to the pay- ment of its bonds, after any such tax haa been collected the moneys belong to the town, and any diversion thereof from their lawful object is an injury to the rights of the town, which may be protected by an appropriate action in its behalf. The town is not confined to the remedy given by the act (§ 4), i. e., an action against the collector and the sureties upon nis bond. _ The action on behalf of the town might, under the Revised Statutes (SB. S. 473, § 92), have been properly brought by the supervisor of the town, and may be so brought under the Code of Civil Procedure (§ 1936). Where, therefore, the warrant issued to the collector of such a town required Municipal Indebtedness and Railroad Aid Bonds. ?23 him to pay over the moneys so collected to the county treasurer, which command the collector obeyed, instead of paying the amount collected to the railroad com- missioners of the town, as prescribed by the act (§3), held, that an action, as for moneys luM and recei/oed, was properly brought by the supervisor of the town against the board of supervisors of the county to recover the amount so paid. Bridges V. Board of Supervisors of Sullivan Co., 92 N. Y. 570-571. See Town of Lewis V. Marshall, 9 Abb. N. C. 104, note; affirmed, 56 N. T. 663; Hand v. Suner- visors, 31 Hun, 631. '^ 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 oflScers having charge of highways and bridges schools and the support of the poor. ' nN.Y. 510, supra. He is also directed to pay all judgments recovered against the town from any moneys in his hands which are not otherwise specially appropriated. The statute thus assumes that he is the legal custodian of the moneysof 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 cor- porate existence of towns and their capacity to hold property, to protect its pos- session, and to enforce their quasi corporate rights by appropriate action. Bridges v. Board of Supervisors of Sullivan Co., 92 N. Y. 575. An action for moneys had and received is maintainable against a town to recover moneys of another, wrongfully taken by it and applied to its own use, in payment of its bonds. Horn V. Town of New Lots, 83 N. Y. 100-6, and oases cited. " It is not to be denied that the legislation of the last two decades has afTected, I may say, has changed the character and capacity of the simple township of former days. The legislature has imposed liabilities and obligations and corre- sponding duties upon it, that have made it something different from a mere politi- cal division of the State, and brought it in character and capacity nearer to a mu- nicipal corporation." Id. 106. " The legislature has commanded a town in the State to issue bonds. They are to be the bonds of the town; when issued they are the bonds of the town; not of any officer of the town, not of the persons dwelling at the time in the town, not of the property situated there. So far, then, the township has been, by legisla- tive power, made an entity, with capacity as a town to incur a debt and make an obligation and become liable to pay. With this capacity must, of need, go the power to pay, the power to get money to pay, the power and capacity to receive money for its use in making payment. And therewith must go all incidents that follow that power and capacity. If by chance, it gets the money of any one without the right to it, for the purpose of meeting its obligations, and applied that money to its own use in meeting them, it follows that it incurs a liability to that person therefor, as well as would a natural person, or any municipal corporation doing the same thing." Id. 107. As Judge Vann clearly and tersely states the matter: "By the bonding act of 1869, the defendant was transformed from a mere political division of the State, with limited corporate powers, into a municipal corporation, with power to bor- row money on an extensive scale, and to invest it in the stock or bonds of such railroad company as a majority of its tax payers representing a majority of its taxable property should designate. Those powers, however, remained dormant and wholly ineffectual for any purpose, unless they were called into action by the determination of the county judge, based upon such proceedings as the stat- ute required." Brownell V. Town of Greenwich, 22 N. E. Rep. 24. It is not necessary that the commissioners should act personally in selling the 724 SuPEKVisoBs' Manual. bonds and investing the proceeds, but they may do so through the medium of a broker. W. Held, also, that the bonds were isaiied when sold. Id. Though all the bonds were dated on the same day and payable twenty years from date, while the amendatory act (of 1871) provided that but ten per cent of them should mature during any one year, they would not be invalid as to plaintiff, who was not shown to have knowledge of the irregularity, or that any other bonds were issued besides those he purchased. Id. The amendment is not unconstitutional in limiting the time within which tbe bonds shall be made payable, when applied to bonds issued under a petition filed and proceedings had before its passage, as the legislature might have left that question to the discretion of the commissioners. Id. The complaint in this action alleged the bonding of a town in aid of a railroad, the construction of the road through the town, the assessment and collection of taxes on the property of the road, the misapplication of such taxes in the years 1874 to 1884, inclusive, and asked judgment that the defendant be required to re- fund the aggregate of such taxes and apply the same to the cancellation of the bonds issued by the town, as provided by chapter 283, Laws of 1871, amending chapter 907, Laws of 1869. Seld, that the rights which the plaintiff sought were given by the act of 1869, and that no mode being specified by that act for their enforcement, they were enforceable by any remedy then known to the law. Vinton, Supervisor, v. Board of Supervisors of Cattaraugus, 18 State Rep. 435. Seld, that the proceeding by petition, for the enforcement of such rights, which was first provided by chapter 789, Laws of 1870, not being made exclusive of other remedies by that act, or by chapter 283, Laws of 1871, was cumulative, and that a party aggrieved had his election to proceed by action or petition. Id. Seld, that by Code of Civil Procedure, § 8389, all difference in form between fictions at law and in equity were done away with. Id. In an action commenced on September 9, 1886, by plaintiff, as supervisor of the town of Hamlin, against the board of supervisors of Monroe county and the de- fendant McVean, who was then, and had been continuously since February 18, 1879, the county treasurer of that county, to recover the amount of the taxes levied and collected from the Lake Ontario Shore railroad, upon the assessed value of so much of the said railroad as is located in the town of Hamlin, from and including the year 1873 down to and including the year 1885, the trial court found as a fact that the money raised in each of the said years in the town of Hamlin, to pay the county and State taxes, was paid to the county treasurer of the county of Monroe, who deposited the same in the treasury of said county, and that here- after, and on or before the 15th day of February in each year, the said moneys were wrongfully taken out and appropriated by the county of Monroe to its own use and benefit in paying its county and State obligations, without the consent of the said town of Hamlin or any of its officers; and that the county treasurer never purchased any of the town bonds issued to aid the said railroad, or invested any portion of the said moneys so received by him as a sinking fund, as required by chapter 907 of 1869, as amended by chapter 288 of 1871. Upon an appeal from a judgment recovered against the board of supervisors for the amount of the State and county taxes paid to the county treasurer from the 9th day of September, 1880, to and including the year 1885. Seld, that the constitutionality of all the provisions contained in the acts of Municipal Indebtedness and Eailroad Aid Bonds. 725 1869 and 1871, and the interpretation which was to be given the same had been determined by the court of appeals. {In re Clark v. Shddon, 106 N. Y. 104.) The defendants contended that if plaintiff was entitled to the relief awarded by the judgment appealed from, it could only be granted by the county judge of Monroe county on a petition of the tax payers of the town of Hamlin, in the man- ner prescribed by section 1, chapter 283, Laws of 1871. jETeM, that this contention could not be sustained, as the right of plaintiff to compel the county to account for moneys which it had wrongfully applied to its own use, in which the town of Hamlin was interested, was not created by this statute, but had its foundation in prior statutes of long standing as well as in the precepts of the common law. That the principle contended for would apply only in favor of the party against whom the new right was created, and certainly could not be invoked by a wrong- doer as against a party whose right under the statute had ripened into a vested interest. Wood T . Supervisors of Monroe County, 50 Hun, 1 . That it was well settled that the supervisor of a town may maintain an action of this character in his name as supervisor. Id. The recovery embraced that portion of the tax levied on the railroad property which is commonly known as the State tax, the trial judge holding that the amount of State tax which is levied upon the taxable property of the county is, by statute, made a charge against and a debt due from the county, and that when the county treasurer made a remittance to the State treasurer of the amount of the State tax it was, in fact, in payment of a debt due from the county, made at the request of the defendant, by its authorized agents, and it was, therefore, liable to the plaintiff on the same principle that it was liable for the county tax misappro- priated to its use. ffdd, that it was error to so hold, as the law makes it the duty of the county treasurer to pay such taxes directly to the State treasurer, and, in 50 doing, he does not act as agent of the county, but performs that duty as a public officer as directed by certain general statutes. Id. That the county was not responsible for the omission or defects of the county treasurer in respect to the moneys that were due to the State, nor at all concerned with them any further, nor in any other manner than is declared in section 25, chapter 427, Laws of 1855, and that, under the provisions of that section, the county was not called upon to act until a loss had occurred, nor until the State had exhausted its remedy against the treasurer and his sureties. Id. That such portion of the tax as was levied on the railroad property during the several years in question, as its portion of the town tax raised for the purpose of paying the annual interest on the bonds, and to redeem such of them as matured, was properly deducted and not included in the recovery. Id. A defense set up in the joint answer of the defendants, that the statute of limitations was a bar to the recovery for all taxes paid over to the county treas- urer more than six years previous to the commencement of this action, was sus- tained as to both defendants. Seld, that it was error to do so as to the county treasurer, as he received the tax as a trustee, within the legal sense of that term, and was precluded from setting up the statute and thus defeating the relief to which the plaintiff was otherwise entitled as against him. Id. That as the moneys were unlawfully and wrongfully paid to the county with the full knowledge of its lawful agent that the trustee had no title thereto which he could transfer to the county, and as the county had no. rightful claim to the same, it should also be held liable as trustee to the plaintiff and be required to 736 Supervisors' Manual. account for the funds which had been applied to its use and that it was properly made a party defendant to this suit. Id. That as the county had made no investment of the trust funds which were re- ceived from the trustee but paid them out on its own indebtedness, and the only re- lief which the plaintiff could have by way of indemnity was a money judgment, the county could plead the statute of limitations as a bar. Id. That this action is of the class and character mentioned in subdvision 3 of sec- tion 383 of the Code of Civil Procedure, which provides that an action to recover damages for an injury to property or a personal injury, except in a case where a different period is expressly prescribed, must be brought within six years from the time when the act was done which creates the liability. Id. The question whether the plaintiff, to bring the case within subdivision 5 of section 382 of the Code of Civil Procedure, must make out a case of actual and intentional fraud on the part of defendant, the board of supervisors, or whether a case of legal or constructive fraud, not involving any moral delinquency on its part, was suificient to prevent the running of the statute until the injured party had notice of the act which constituted the fraud, not considered. Id. The city of Lockport, in pursuance of chapter 907, Laws of 1869, issued its bonds for $100,000 to aid in constructing a railroad. Taxes were levied and collected and paid over to the predecessors of defendant (the county treasurer) between and in- cluding the years 1878 and 1886, to the amount of $1,351.87, as taxes levied upon the property of the said railroad, located in the city of Lockport, none of which were for school or road taxes. From the time of the first payment of such taxes to the county treasurer, 1878, up to the time of hearing of this matter before the county judge, there has been constantly in the hands of the county treasurer moneys in amount in excess of the amount of the taxes collected from said rail- road company, and when defendant was inducted into office, there was paid over to him, by his predecessor, the sum of $10,180.97, and when these proceedings were instituted, there remained unexpended of said sum over $9,000, and as the referee reports, the same " is held for, and subject to, the payment of miscella- neous demands and expenditures of said county, not specifically provided for by the board of supervisors." The referee also found and reported " that said county treasurers, respectively, in each of said years, with the knowledge and approval of the board of supervisors of Niagara county, mingled the moneys so received for taxes from said county with other moneys of said county, and treated the same as ordinary county moneys." Held, that the moneys thus levied and col- lected and paid over to the county treasurer, never came into his hands for any other purpose than that mentioned in the statute, and they are devoted by law to the benefit of the municipality, and must be held and invested in the mode and manner directed. The statute appropriates the taxes, and makes it the duty of the county treasurer to separate and set them apart as a sinking fund. Spaulding v. Arnold, 6 N. Y. Supp. 836. When the money was paid into the hands of the respective county treasurers during the period of years mentioned, it was their duty to separate the taxes paid by the railroad assessed in the city of Lockport, from the other moneys which came into his hands, which he could have readily done, and invested the same as required by said statute. Id. These moneys have never been paid out and are now in the hands of the present incumbent, mingled with other moneys. The fact that the former treasurer mingled the money with that of the county. Municipal Indebtedness and Kailkoad Aid Bonds. 737 did not constitute a misappropriation by him, so that there is no fund from which the present treasurer can draw the money to make such investment. Id. The county treasurer acts as trustee for the town, and there having been no repudiation of the trust by any of the present treasurer's predecessors, the statute of limitations does not apply, though more than six years have elapsed since some of the taxes collected were paid to the treasurer. Id. Upon the hearing of a controversy submitted upon an agreed statement of facts, it appeared that an adjudication had been made, by the county judge of Jefiferson county, that a majority of the taxable property owners of the town of Orleans had duly consented that the bonds of that town be issued to the amount of $80,000, and invested in the stock of a railroad company, and such adjudication had been reviewed upon certiorari, and affirmed by the general term. While the matter was pending in the general term, the commissioners issued bonds to the amount of $80,000, and exchanged them for the stock of the railroad company, which sold $10,000, and hypothecated $70,000 of the bonds before Feb- ruary 25, 1873, when the court of appeals reversed the judgment of the general term and the county judge; thereafter it was decided by the supreme court of the United States, in an action originally brought in the United States circuit court, that the hypothecated bonds (which were sold after the decision of the court of appeals), were valid in the hands of the purchasers thereof. After this decision money sufficient to pay the interest and a part of the principal of the said bonds was raised by taxation, the portion thereof paid by the railroad company being paid by the town collector into the treasury of the county and expended under the direction of the defendant, the board of supervisors of that county, for county purposes. Strough T. Supervisors of Jefferson County, 50 Hun, Si. Meld, that as the court of last resort had held that the town was liable to pay Its bonds, the fact that the court of appeals held that the proceedings taken were insufficient to authorize the commissioners to issue the bonds was no justification for the refusal of the defendant to set apart these taxes for the purpose of creat- ing a sinking fund, as required by section 4, chapter 907, Laws of 1869, as amended by chapter 383, Laws of 1871. That the town was as clearly entitled to the benefits of the act, as though its proceedings to acquire authority to issue bonds had never been questioned. That the defendant was liable, in its corporate capacity, for the moneys so re- ceived by the county treasurer, and paid out by him, pursuant to its directions, as for money had and received for the town's benefit, and that the action fell within section 383 of the Code of Civil Procedure, which limited the plaintifi's recovery to the sums misappropriated within six years prior to August 6, 1888, the date of the submission. That the relation of the trustee and cestui que trust of an express trust by the Voluntary act of the parties did not exist in this case. Id. In December, 1887, the ten supervisors elected from the city of Auburn drew upon the city treasurer an order, of which the following is a copy: " $31,550. AuBXiKN, N. y., Decerriber 37, 1887. "City treasurer of the city of Auburn, on or before February 8, 1888, pay to railroad commissioners of city of Auburn, or order, twenty-one thousand five hun- dred and fifty dollars." The order was delivered to the commissioners, two of whom, as such, sub- scribed their names to an indorsement, making it payable to the First National Bank of Auburn for deposit, and delivered it so indorsed to the cashier of that bank, who afterward, on January 13, 1888, indorsed and transferred the order to the National Exchange Bank of Auburn. The First National Bank suspended payment January 38, 1888. The city treasurer having refused, after its maturity. 728 SuPEEVisoEs' Mast UAL. to pay the amount of the order to the National Exchange Bank, a motion was made by it for a writ of mandamus requiring such payment to be made. The sum of money mentioned in the order was levied by the board of supervi- sors of Cayuga county in December, 1887, to pay the interest, which became due in 1888, upon certain bonds of the city which had been issued in aid of the con- struction of a railroad, and was embraced in the moneys which, by the warrants then issued by the board to the city treasurer, he was authorized and directed to collect . The statute, pursuant to which the amount of money in question was issued, directed that when collected it was to b" paid to the railroad commissioners, while the warrants issued to the city treasurer directed payment to the supervisors of the city of Auburn, of the sums mentioned in them. Held, that the commissioners were the proper depositary of the money, and that the direction contained in the warrant did not have the legal effect of diverting the fund from its legitimate destination. That, as the drawers of the order were not entitled to the money, and as their order to any person other than the commissioners would not entitle the payee to it, the order did not create an indebtedness on the part of the city to the commis- sioners. That the city members of the board of supervisors had no authority to make, nor had the commissioners authority to transfer, by indorsement, a negotiable bill of exchange, nor was their power to make and transfer it supported by pre- sumption, as all their powers were given by statute. That the order, as indorsed and delivered to the First National Bank, gave to the bank no title to the draft, or to the fund to be covered by it, but, at most, was a mere authority to receive the money from the treasurer, when it should be re- ceived or collected by him, for deposit in behalf of the commissioners and for their use. That an order denying the motion for a writ of mandamus should be affirmed. People, exrel. Nat. Exch. Bk., t. Stupp, 49 Hun, 554. Proceedings taken to bond the plaintiff in aid of a railroad resulted in a decision that bonds of the town should be issued to an amount specified, and commission- ers on behalf of the town were appointed to subscribe for the stock and to issue the bonds. Said commissioners, the railroad corporation, and one P., entered into an agreement, by the terms of which the former were to issue the bonds and place them in the hands of P., as trustee, to be exchanged for an equal amount of stock as the work of construction progressed. This action was brought against the parties to that agreement, to have said proceedings declared null and void, to enjoin the negotiation or disposition of the bonds and to require their cancella- tion. The referee found the bonded proceedings to be void for want of jurisdic- tion, but that P. had sold a portion of the bonds. Defendants were required to account for the proceeds; they are to be allowed for all sums paid out of the same in good faith in constructing the road, or for any legal purpose mentioned in the agreement. An accounting was had under these findings, and a judgment was ren- dered against P. foiCthe balance of the proceeds in his hands. Plaintiff objected to the allowance for moneys expended. Held, untenable; that to entitle it to recover any of the proceeds of the bonds, plaintiff must recognize the validity of the bonds, as, if it claimed them invalid, none of the proceeds thereof belonged to it, and it could only recover upon the theory that the bonds had been made and negotiated wrongfully and without authority, and had gone into the hands of a bona fide holder, who could enforce the same; that, therefore, as plaintifE was in court claiming the proceeds of the bonds, it could take no benefit from the finding as to their invalidity, and P., as trustee, was entitled to credit for all Bums paid out by him within the scope of his duty and authority. Also held, that P. was properly allowed his commissions. The agreement, as made, limited the application of the bonds or their proceeds to the construction of the road in the county of W. ; subsequently the commissioners gave to P. a written authority to pay out the bonds for the construction of the road in an ad- joining county. Held, that P. was entitled to be allowed for payments so made. It seems, that had the action been maintained upon the finding as to the inva- lidity of the bonds, no injury was sustained, and no recovery could have been had beyond the costs and expenses incurred by the town ia defending itself against an attempted enforcement of the bonds, as, if the proceedings were with- Municipal Indebtedness and Railkoad Aid Bonds. 729 out jurisdiction and the bonds issued absolutely without authority, not by the town but by strangers falsely simulating authority, plaintiff was not estopped by the recitals in the bonds, and they could not be enforced against it even under the decision of the United States courts by a "bona fide " holder. Town of Lyons v. Chamberlain, 89 N. T. 578. The provisions of the railroad act of 1869 (sec. 4, chap. 907, Laws of 1869), di- recting and providing for the application of taxes assessed upon any railroad in a town, city or village, toward the redemption of bonds issued by the municipality to aid in the construction of such railroad, are not in conflict with any constitu- tional provision. They do not impose a tax upon property in other portions of the county for the benefit of the town, city or village; they simply deprive such other portions of the benefit derived from taxation of railroad property in the municipality. They are not violative of the provision of the cJtate Constitution (sec. 8, art. 7) prohibiting the paymeTit out of the treasury of the State of any moneys, except in pursuance of an appropriation, etc. ; as the fund realized from such taxation does not belong to the State or go into its treasury. They are not repugnant to the constitutional provision (sec. 20, art. 3) declaring that every law which imposes a tax shall distinctly state the tax and the object to which it is to be applied; the said provision simply specifies what may be done with a tax which has been legally imposed. Said statutory provisions include all taxes of every description save those ex- cepted therein; i. e., school and road taxes, and so include town, village, city, county and State taxes. The scheme of the act is practicable and not difficult of execution. It seems, the officers imposing the taxes may ascertain the amount required to be paid under said provisions to the county treasurer, and held by him as a sink- ing fund, and specify the same in the warrant issued to the collector. If not so specified, the collector may make the proper deduction of school and road taxes and pay the balance to the county treasurer. If the duty of making the separa- tion has not been discharged before the payment of the county treasurer, it de- volves upon him to make the separation and invest the proper amount, as directed by the statute. It is not requisite that the taxes so to be appropriated should be specially levied; they are to be levied the same way as other taxes. The said provisions are applicable to any municipality having bonds outstand- ing, issued in aid of ths construction of any railroad, and they are not limited to railroads constructed under said act of 1869. Matter of Clark v. Sheldon, 106 N. T. 104. Where, upon application under said act of a tax payer of a town, to compel the county treasurer to execute the provisions of the act, it appeared that the taxes imposed upon railroads in the town for the year specified, after deducting school and road taxes, were much more than the sum specified in the petition as the amount of such taxes paid to the county treasurer. Held, that it was no defense that the petitioner had not prayed for a sufficient amount; that the county treas- urer could not complain of this, or of an order requiring him to set aside a less sum than the act required. It seems, that in such a case, notwithstanding the prayer of the petition, the county judge has power to ascertain the amount and compel the county treasurer to set aside for a sinking fund all the taxes which may appear to have been paid to him, and which, by the act, are devoted to that purpose. It is no answer on the part of the county treasurer in such proceedings, that if he sets aside the taxes as required by the act, there will be a deficiency in other funds; the law having appropriated them for a specific purpose, it is his duty to so apply them, and he may not use them for other purposes. All prior laws in conflict with said provisions or requiring different disposition of taxes so collected, were thereby so far modified or repealed. Id. The court says- " We do not perceive that these provisions of section 4 are in conflict with any constitutional provisions. They do not impose a tax on property in other towns of the county * * * for the benefit of the town of S. They fl2 730 SUPEBVISOES' Mabtttal. simply deprive other portions of the county of the benefit to be derived from the taxation of the railroad property within the town of S. As to other portions of the county, it is practically the same as if the railroad property was exempt from ta/xation." Id. The words last quoted seem to solve the questions which boards of supervisors are likely to meet in these cases, to-wit : to treat such property as if it were exempt from taxation and in raising the sums to be levied and collected in the county, not to consider it as one of the tax payers liable to contribute a share thereof. In Oneida county, the practice is to extend the tax against the railroad on the roll, in the same manner that any other tax is ex- tended, and then to levy a tax on the county for the estimated amount to become due from the railroad, and when the ratio is de- termined, to issue a draft for the amount of the tax on the railroad payable to the railroad commissioners of the town in which such railroad is situated. The railroad in Oneida county is the New York and Oswego Midland railroad, which has a special law on the subject requiring the sinking fund moneys, which consist of the county taxes, to go to the railroad commissioners of the town, and not, as in the act of 1869, to the county treasurer. This is not an exact compliance with the statute, but the variance is so small (comparing the valuation of the railroad with that of the whole county) that it would be hard to compute in figures the amount of the variance. The law relating to this railroad is as follows : Taxation of the New Toek and Oswego Midland Raileoad. § 884. Taxation. — All laws and parts of laws in so far as they exempt the property, real or personal, of the New York and Oswego Midland railroad corporation from taxation are hereby re- pealed, and the real and personal property of the said corporation is hereby made subject to State, county, town and municipal taxation. Chap. 296, Laws of 18V4, % 1 . Proceeds of Tax to be Paid to Commission- evs of TO'Wns. — All moneys to be collected upon the real and personal property of the said corporation and xipon said real prop- erty now or hereafter used or held, or which may hereafter be used or held by any receiver or successor of said corporation for county taxes in any of the towns or municipalities by which bonds have been issued in aid of the construction of the New York and Oswego Municipal iNDEBTEDsrESS and Eailroad Aid Bonds. 731 Midland railroad, are hereby appropriated to said towns or munici- palities respectively, and shall be paid over to the commissioners of such towns or municipalities appointed pursuant to an act entitled " An act to facilitate the construction of the New York and Oswego Midland railroad, and to authorize towns to subscribe to the capital stock thereof, passed April 5, 1866," or any act supplemental thereto or amendatory thereof, and the said moneys shall be by said com- missioners, expended for and applied to the payment of the interest on said bonds, or to the principal thereof. Id.,§ 2. Duty of Tax Collector.— It shall be the duty of the collector of taxes of each such town or municipality to pay over to- the said commissioners of his town or municipality, the amounts of the county tax collected by liim from the said corporation or the real and personal property thereof, within five days from the time the same is collected ; and the said commissioners shall give to the said collectors a receipt for the amount of county taxes so received, which said receipt shall be returned to the treasurer of the county in which the said collector shall reside. Id., § 3. Liability of Collector and Sureties.— Collectors of taxes and the sureties on their oflSeial bonds shall be liable for any neglect or failure to pay over to the said commissioners the amounts or any part thereof, by the provisions of this act directed to be paid by such collectors of taxes to the said commissioners Id., §4. See Decisions under § 883, ante. Payment of Eaileoad Aid Bonds by Exchanging Thekefoe,. Theie Eaileoad Stock, Etc. §885. ITnder Chapter 421, Laws of 1875 — Town^ Etc., May Exchange its Bonds for Rail- road Bonds, Etc.— Cancellation of Bonds.— It shall be lawful for any town, city or village, to exchange the bonds and stock of any railroad corporation for and in payment of the bonds of any such town, city or village heretofore issued in aid of any such railroad corporation ; and it shall be lawful for any town, city or village to exchange the stock of any railroad corporation for the bonds of such corporation ; and such exchange may be made by the oflacers of such town, city or village having the lawful charge 732 St7Pebvi80bs' Manual. and cnstody of such railroad stock and bonds, but the same shall not be thus exchanged for less than par value thereof ; and when any such exchange shall be made, report thereof shall be made by the offi- cers making the same, to the then next meeting of the board of auditors of their town, the common council of their city, or the board of trustees of their village; and the town, city or village bonds obtained by such exchange, shall thereupon be canceled. Laws of 1S75, chap. 421, SI; 2 N. Y. 955. § 886. Under Cbap. 522, Lawsof 1881— Present Bond Debt May be Paid by Issuing New Bonds— Bonds Taken up to be Canceled.— The present bonded indebtedness of any village, city, town or county in this State, inclnding interest past due and unpaid, may be paid up or retired by the issue of new bonds for like amount by the board of trustees, mayor and common council, town board, board of super- visors or supervisor, or railroad commissioners, or officer or officers, now having in charge, according to law, the payment of interest and principal on bonds herein proposed to be paid and retired, respect- ively of such village, city, town or county ; provided, however, that such new bonds shall be issued only when existing bonds can be re- tired by the substitution therefor of such new bonds, or can be paid up by money realized on the sale of such new bonds ; and provided further, that such new bonds shall bear interest at a rate not exceed- ing five per cent per annum, payable semi-annually. All existing bonds taken up by the substitution of such new bonds, or paid under the provisions of this act, shall be immediately canceled, and a cer- tificate executed by the officers issuing such new bonds shall be forthwith made and filed by them in the county clerk's office of the proper county, which shall state the amount of existing bonds so. canceled, and of new bonds so issued. This act shall not be so con- strued as to authorize the issue of new bonds to supersede or pay existing bonds which have been adjudged invalid by the final judg- ment of a competent court. The bonds so to be issued shall be made payable at any period or periods deemed advisable by the officers issuing the same, not less than two years nor more than thirty years from their date ; and shall bear date and draw interest from the date of payment of existing bonds, or the receipt of money to pay existing bonds; and shall be issued in no case at less than for their par value. Chap. 522, Laws of 1881, § 1, as amended by chap. 153, Laws of 1883. Municipal Indebtedness and Railroad Aid Bonds. 733 New Bonds to be Valid.— The bonds issued under the provisions of this act, when substituted or sold to retire exist- ing bonds, by any authorized officers of any town, village, city or county, or their successors in office, shall be valid and binding on the town, village, city or county wherein they are issued, and such bonds shall contain a recital that they are issued under the provisions of this act, and such recital shall be conclusive evidence in any court of the validity of said bonds and the regularity of their issue. Id., §2. Exempt from Taxation. — All new bonds issued by any village, city, town or county in this State, under the provis- ions of this act, shall be exempt from taxation for town, county, mu- nicipal or State purposes, until the period when they are made payable. Id., § 3. Annual Reports. — It shall be the duty of the railroad commissioners, supervisors and financial officers of towns, villages^ cities and counties, having in charge the moneys received and col- lected, and responsible for the payment of the interest and principal duo on bonds issued under this act, and they are hereby required to report annually to the board of supervisors of counties, the trustees of villages and the mayor and board of aldermen or common coun- cil of cities, as the case may be, as now required by law, the sum due and payable the succeeding year, both principal and interest on said bonds. Id., § 4. Tax to Pay Bonds. — It shall be the duty of the boards of supervisors of counties, the trustees of villages, and the boards of aldermen and the common councils of cities, and they are hereby required to levy and collect in each year upon the towns, villages^ cities or counties severally obligated, moneys sufficient to pay such interest when and as it shall fall due and the principal of such bonds when and as the same shall become due and payable. Id., §5. § 887. Under Chapter 278, Laws of 1886.— Railroad Commissioners may Issue Xew Town Bonds, on Proof of Loss, Etc.,— Indem- nity. — The railroad commissioners of any of the towns in this State, which have heretofore issued its bonds in aid of the construc- tion of any railroad, which bonds or any of which shall have been 734 SuPBRvisoBS' Manual. lost or destroyed before the same shall have become due, are hereby authorized to issue new bonds of such town in the place and stead thereof, under their hand and seal, for the amount at the same rate of interest, and to become due at the same time as such lost or de- stroyed bond or bonds, and deliver the same to the owner of such lost or destroyed bond, or bonds, upon such owner furnishing to such commissioners satisfactory proof, by affidavit, of such owner- ship, and of the loss or destruction of such bond or bonds, and filing with said commissioners a sufiicient bond of indemnity, with at least two sureties, to be approved by said commissioners, and by the supervisor of the town, and by the county judge of the county, in double the amount of such bonds so to be issued. Laws of 1886, chap. 278, S 1. NeTT Bonds, lio\r Executed and Reg^istered. — The new bond or bonds so issued shall state upon the face thereof the denomination and number of the bonds in the place and stead of which they are issued, which said bonds shall be signed by the said railroad commissioners, and the coupons attached thereto, for interest, shall be signed by one of said commissioners, and said bonds countersigned by the town clerk of the town, and registered in the town clerk's office of such town in the record thereof. Id., §2. Indemnity Bonds and Proofs, liow Filed.— It shall be the duty of the railroad commissioners to cause any such bond of indemnity, taken by them as provided in section 1 of this act, with their approval indorsed thereon, to be filed with the clerk of the county in which such town is situated, and the proofs of ownership, loss or destruction to be filed in the office of the clerk of such town. Id., S8. CHAPTER XVI. ACTIONS AND PROCEEDINGS BY AND AGAINST TOWNS. Sbo. 888. Town may sue or be sued. Sbo. 892. Actions in fayor of a town may be 889. How action, etc., to be brought. brought before a Justice. 890. Process to be served on super- 893. Actions for penalties for trespass visor. on town lands. 891. Inhabitants, when competent wit- 894. When court may order partition. nesses and jurors. 895. Decisions. BY OR AGAINST A SUPERVISOR. Sso. 896. What actions may be brought by suits by tax payee to prevent waste, etc. supervisor. Sec. 903. Under the Code. 897. For penalties. chap. 631, Laws of 1881. 898. Against supervisor. Decisions. 899. Decisions. 900. How brought by or against super- suumaby investigation of unlawpol ex- visor. PENDITURBS. 901. Substitution of successor in ofSce 904. Application for. in suit. Decisions. 902. Counsel may be employed. 905. Action for despoiling trees, etc . BY AND AGAINST COUNTIES. Sec. 906. Actions by counties, when and Sec. 911. When county may sue before jus- how brought. tice. 907. Controversies between counties. 912. Process, how served. 908. Relief from erroneous or illegal assessment and taxation on actions fodnded upon spoliation, etc. lands divided by county lines. 913. For funds, etc., illegally appro- priated. HOBS OR RIOTS. JUaTidomus. 909 . Action for damages from riots, etc. 910. How actions brought against coun- ties. BY AND AGAINST TOWNS. § 888. ToTrn may Sue or be Sued. —Each town, as a body corporate, has capacity to sue or be sued in tbe manner pre- scribed in the laws of this State. 1 R. S. 805, § 1, subd. 1. See Decisions, § 895. "Whenever any controversy or cause of action shall exist between any towns of this State, or between any town and an individual or corporation, such proceedings shall be had either at law or in equity for the purpose of trying and finally settling such controversy, and the same shall be conducted in like manner, and the judgment or decree therein shall have the Kke eflEect as in other suits or proceed- ings of a similar kind between individuals and corporations. Id. 840, § 1. See Decisions, § 895. § 889. How Action, Etc., to be Broug-ht. 736 SuPEKVisoEs' Manual. 1. By or Against To-vrns, in tlie Name of the TO'Wn. — Ii all such suits and proceedings the town shall sue or be sued by its name, except where town officers shall be authorized by law to sue in their name of office for the benefit of the town. Id., § 2. See Decisions, § 895, § 890. Process to be Served on Supervisor. — In all legal proceedings against towns by name, the first process, and all other proceedings required to be served shall be served on the super- visor of the town ; and whenever any such suit or proceeding shall be commenced, it shall be the duty of the supervisor to attend to the defense thereof, and to lay before the electors of the town, at the first town meeting, a full statement of such suit or proceeding, for their direction in regard to the defense thereof. Id., §3. See DeciBions, § 895. The electors, at town meeting, have power " to direct the institu- tion or defense of suits at law or in equity, in all controversies be- tween such town and corporations, individual or other towns, IR. S. 808, §5, subd. 4. and to direct such sum to be raised in such town for prosecuting or defending such suits as they may deem necessary." Id., subd. 5. § 891. Inhabitants —When Competent Wit- nesses and Jurors. — On the trial of every action in which a town shall be a party or be interested, the electors and inhabitants of such town shall be competent witnesses and jurors, except that in suits and proceedings by and against towns, no inhabitant of either town shall be a juror. 1 R. S. 840, § 4. See Decisions, § 895. § 892. Actions in Favor of a ToTtrn may be Brought Before a Justice. — Any action in favor of a town, which, if brought by an individual, could be prosecuted be- fore a justice of the peace, may be prosecuted by such town, in like manner, before any such justice ; but no action to recover a penalty given to a town shall be brought before any of the justices of the peace residing in the town, for the benefit of which the same is prosecuted ; but all such actions may be brought before any one of the justices of the peace residing in any other town in the same county. Id., § 5. See Decisions, § 895. W^' AcTioiirs AND Peoceedings by akd Against Towns. 737 § 893. Actions for Penalties for Trespass on TO'wn Lands. — Whenever an action shall be brought to re- cover a penalty imposed for any trespass committed on the lands of a town, if it shall appear, on the trial thereof, that the actual amount of injury to such town lands, in consequence of such trespass, ex- ceeded the sum of $12.50, then the amount of the actual damages, with costs of suit, shall be recovered in such action, instead of any penalty for the same trespass, imposed by the town meeting ; and such recovery shall be a bar to every other suit for the same trespass. Id., § 6. See Decisions, § 895. § 894. Wben Court May Order Partition. - Whenever, by any decree or decision in any suit or proceeding brought to settle any controversy in relation to town commons or other lands, the common property of a town, or for the partition thereof, the rights of any town shall be settled and confirmed, the court in which such proceeding shall be had may partition such lands according to the right, as decided and settled. Id., § r. As to judgments, costs, etc., see § 458, ante. As to defective roads and bridges, see cliap. XIV. If any supervisor shall neglect to account, or shall render a false account, or shall convert to his own use any moneys or securities which may come to his hands by virtue of his office, proceedings may be commenced against him in the name of the town of which he is supervisor, in the supreme court, by action or otherwise, by the justices of the peace and town clerk of said town, to compel him to render such account, or to recover any money or property of the town which he has not duly accounted for. Id. 827, § 5, as amended by Laws of 1866, chap. 534. § 895. Decisions. A supervisor who has failed to account, or rendered a false account, or converted moneys coming to his hands by virtue of his oflSce, is liable to an action therefor in the name of the town. (Laws of 1866, chap. 534, § 1.) An action will not lie against him in the name of his successor in office. ^ Hagadorn v. Raux, 72 N. T. 583. Where an assessment is not only unconstitutional and void, but has been so judicially declared, and the invalidity is such that it must appear upon the proof necessary to be made to sustain proceedings under it, it is not essential to the maintenance of an action to recover back moneys collected under the assessment, that it should first be judii^ially vacated. An action for moneys had and received is maintainable against a town to recover moneys of another wrongfully taken by it and applied to its own use. Horn V. Town of New Lots, 83 N. Y. 100, 101. 93 738 Supervisors' Manual. It is the duty of the town to provide means for the payment of its bonds law- fully issued. In case of failure to perform this 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. Marsh y. Town of Little Valley, 64 N. T. 112. The provision of the act of 1866 (Laws of 1866, chap. 534, § 1), amending the Revised Statutes iu reference to the accounting of supervisors, by authorizing an action to be brought in the name of the town against a supervisor who has neg- lected to account, has rendered a false account, or has converted money coming to his hands, by virtue of his oflBce, extends to cases which arose before, as well as to those occurring subsequent, to the passage of the act. The remedy thus given is not restricted to cases where the delinquent is an incumbent of the ofiSce at the time of the commencement of the action, but author- izes proceedings against the present or any former supervisor of the town, either by mandamus, to compel him to account, or by action to recover any money in his hands unaccounted for. In an action against a supervisor under said provision, a claim for services which he has presented to the board of audit, provided by the Uevised Statutes but which has not been passed upon by it, is not a proper counter-claim. It is made the duty of the board to consider and determine such claims, and the only remedy of the supervisor is to enforce the performance of this duty. By resolution passed by the town of G., a war committee was appointed for the purpose of procuring men to fill its quota under a call of the United States govern- ment for soldiers, of which committee the supervisor of the town was, by virtue of his office, made a, member. In the performance of this duty the supervisor received and disbursed large amounts of money raised upon the bonds of the town. Held, that in so doing he acted as supervisor, not merely as a member of the committee, and was accountable to the town in the former capacity, and that an action was properly brought against him in the name of the town to recover a balance alleged to be in his hands not duly accounted for. Town of Guilford v. Cooley, 68 N. T. 116, 117. The assessors and collector are not in any legal sense the agents ol the town, in its corporate capacity, in the assessment and collection of taxes, and the town is not responsible for any mistake, or misfeasance, by them iu the performance of their duties. Accordingly, where land not situate within the town but in an adjoining county was erroneously assessed by the assessors, and payment of the tax by the owner enforced by the collector of the town, held, that the town was not liable in an ac- tion by the owner to recover the amount of the tax. Lorillard v. The Town of Monroe, 11 N. T. 892. The electors of town in town meeting have no power, by resolution or other- wise, to authorize commissioners of highways to bring an action in their own names, or in their name of oiBce, for such injuries. Such a resolution, if passed at town meeting, would not bind the town. Where a cause of action exists in behalf of a town, and no officer is by statute authorized to prosecute for such cause of action, the town meeting may direct such action to be brought, and may appoint an agent to prosecute it; but such suit must be brought in the name of the town. Where the electors of a town, in their town meeting, directed the commissioner of highways to prosecute a turnpike company for entering upon and taking pos- session of a public highway and bridge in that town, and the commissioners ac- cordingly brought a suit for that cause of action, and had judgment against them; held, that they could not sustain an action against the town to be reimbursed their costs and expenses or the costs recovered against them in that suit, Cornell v. The Town of Guilford, 1 Denio, 510-511. A town, by a resolution of town meeting, directed the supervisor " as supervi- sor " to bring an action. He brought the action in the name of the town. Held, that, as it was such an action as could not be brought iu the name of the town ACTIOKS AND PROCBEDIlirGS BY AND AGAINST ToWNS. 739 ■witliout authority, the action was not well brought, the direction of the town not authorizing a suit in the name of the town. Town of Lyons v. Cole, 3 T. & C. 431. Where, in pursuance of statutes (Laws of 1873, chap. 387; Laws of 1875, chap. 563) imposing upon the city of Rochester a system of water- works, " for the use of its inhabitants and the extinguishment of fires," lauds were purchased and a reservoir constructed in the town of Rush, ?ield, that the work was to be regarded as executed for the public benefit, and the property, therefore, as held for public purposes; so that, in the absence of an express legislative declaration authorizing it, it was not subject to taxation, and that a tax imposed thereon in said town was illegal and void. Where, however, the said property was assessed by the town assessors, and the city paid the tax to the town collector, who paid it over to the county treasurer, by whom it was applied "in the same manner as other taxes assessed and col- lected in said town," i. e., a portion paid to the authorities of the town, a portion to the proper State ofScers and the residue retained for county purposes, held, that an action could not be maintained against the town to recover back the tax, or that portion paid over to the town oflBcers, as the town has no treasurer, and its oflicers to whom the money was paid do not represent it, their functions being prescribed by statute, and the money they received being expended in the per- formance of official duty. City of Rochester v. Town of Rush, 80 N. Y. 302. It does not necessarily follow from the fact that railroad commissioners, appointed under the act authorizing certain towns to issue bonds and take stoclc in aid of the L. 0. S. R. R. Co. (Laws of 1868, chap. 811, as amended by the Laws of 1869, chap. 341), issued bonds without the requisite consent of tax payers hav- ing in fact been obtained as prescribed by the act, so as to make them valid obli- gations of the town, that they were guilty of official misconduct; the act (§ 2) makes the verified certificate of the assessors of the fact that the requisite con- sents have been obtained, the evidence upon which the commissioners are to act, and where it appears that they acted in good faith, in reliance upon the certifi- cate, it is a complete justification. Town of Ontario v. Hill et al., 99 N. Y. 324. Plaintifi issued its bonds, negotiable in form, to a large amount and in great numbers, under the act authorizing it to subscribe to the capital stock of the C. L. railroad (Laws of 1869, chap. 314), which provides (§ 3) that a certified copy of affidavits of the assessors of the town that the required consents of a majority of the tax payers of the town have been given, and the consents shall be presump- tive evidence of the facts therein contained. In actions brought to restrain the holders of said bonds from transferring them and to have them delivered up and canceled, it appeared that while the affidavits and consents were in form suffi- cient, the consents of a majority of the tax payers were not in fact obtained, and that the proceedings for bonding the town had been reversed and annulled by judgment of this court (People, ex rel. v. Allen, 53 N. Y. 548), rendered after de- fendants became holders of the bonds. Held, that plaintifE having established the necessary preliminary point that the bond and the record of proceedings for their issue created a prima facie liability, and having established the other requisite facts was entitled to the relief sought; that the parties here, not having been parties to the proceeding in which said judgment was rendered, it was not binding ■upon and did not estop defendants from setting up the affidavits of the assessors as proof of the requisite consents, and so the record of reversal would not be a de- fense to any action on the bonds, and would not avoid the necessity on the part of the town of being at all times prepared with evidence to rebut the presumption fforded by the affidavit; and that plaintifE was entitled to relief from this burden and from vexatious litigation. Town of Springportv. Teutonia Savings Bank, 75 N. Y. 397. An action will lie by a town to restrain the holders of its bonds from trans- ferring them and to compel their cancellation where, after the requisite assent of tax payers had been obtained for the issue of such bonds under the act of 1869 (chap. 314), but before the commissioners had acted, a BuflScient number of the 740 SuPEEvisoKs' Manual. consenting tax payers withdrew their consent in a formal manner, so that those whose consent was not withdrawn did not constitute the requisite number; it was held that bonds thereafter issued were without authority in law; that thede- livery of such withdrawals were effective without being filed by the commission- ers, and whether the action of the tax payers in giving their consent estopped them so that as to them they could not withdraw their consent, it did not estoi> the body of tax payers represented by the town, and that the action could be maintained, and that a tender of the stock received for the bonds before com- mencement of the action was not necessary. Town of Springportv. Teutonia Savings Banlf, 84 N. T. 403; People v. Sawyer, 62 Whether the action is brought for a cancellation of such bonds or is against the town upon such bonds, the affidavit of the assessor, that the requisite consent of tax payers for the issue of such bonds was procured, is only prima fade evidence of the fact and does not estop the town from showing the fact to be otherwise and that the bonds are invalid even in the hands of third persons. Id.; Cagwin v. Town of Hanooclt, 84 N. Y. 632. A town in its corporate capacity cannot maintain an action to set aside a con- tract made between the supervisor and commissioners of highways of the one part, and a plankroad company of the other part, under which the plankroad company claims possession of a public highway in the town, as the town does not own the highways in it. Town of Galen v. Clyde &, Rose Plankroad Co., 27 Barb. 543. An action vAll not lie against a town for, nor will a writ of mandamus issue against the board of town auditors to compel them to audit a claim for expenses and disbursements expended by an overseer of highways in a suit brought against him for removing obstructions in the street, especially where he conducted the suit without notice to or direction from the town authorities. The overseer of highways is not an agent of the town, and the town is not liable for his act. People V. Town Auditors of Ksopus, 74 N. Y. 310. A town has no right to money improperly collected by tax from its tax payers and cannot maintain an action in the name of its supervisor to recover it back. Gailor v. Herrick, 42 Barb .79. Where a town collector deposited with bankers, moneys collected by him for taxes, and thereafter the supervisor of the town agreed with the bankers that they might retain the moneys until wanted, and on demand being made therefor payment was refused, it was held that an action by the town would not lie against the bankers to recover the money; that the action should be brought by the su- pervisor. Town of Chautauqua v. GifEord, 8 Hun, 162. WHEN BY OE AGAINST A SUPERYISOE. § 896. By a Supervisor.— An action or special proceed- ing may be maintained, by the supervisor of a town, or the supervi- sors of a county, upon a contract lawfully made with those officers or their predecessors, in their official capacity ; to enforce a liability created or a duty enjoined, by law, upon those officers, or the body represented by them ; to recover a penalty or a forfeiture, given to those officers, or the body represented by them ; or to recover dam- ages for an injury to the property or rights of those officers, or the Actios- by ok Against a Supervisok. 741 body represented by them ; although the cause of action accrued be- fore the commencement of their term of office. Code Civ. Proc, §1926. See Decisions, § 899, post. This section does not apply to a case where it is specially prescribed by law that an action may be maintained by or against the body represented by an oflScer designated in the section; but in such a case the prosecution or defense of the action, as the case may be, must be conducted by the persons then in office who represent that body. Id., § 1928. ' § 897. For Penalties, Etc.— He shall prosecute in the name of his town or otherwise as may be necessary, for all penalties of $50 or under, given by law to such town or for its use, and for which no other oflScer is specially directed to prosecute. 1 R. S. 826, § 2. The electors at their annual town meeting have power " to impose such penalties on persons offending against any rule or regulation established by such town excepting such as relate to the keeping and maintaining of fences, as they may think proper ; not exceeding 112.50 for each offense." 1 R. S. 809, §5, subd. 12. To apply such penalties, when recovered, in such manner as they may think most conducive to the interests of such town. Id., subd. 13. See Decisions, § 899, post. § 898. What Actions may be Broug^lit Against Supex*viS0Z*. — An action or special proceeding may be maintained against a supervisor or board of supervisors upon any cause of action which accrues against them, or has accrued against their predecessors, or upon a contract made by their prede- cessors in their official capacity and within the scope of their authority. Code Civ. Proc, § 1927. See Decisions, § 899. Sections 1926 and 1927 of the Code of Civil Procedure, above given, do not apply to a case where it is specially prescribed by law that an action may be maintained by or against the body represented by an officer designated in those sections ; but, in such a case, thq prosecution or defense of the action, as the case may be, must be conducted by the persons then in office, who represent that body. Id., §1928. ''43 SuPEEVisoRs' Manual. An action to obtain a judgment preventing waste of or injury to the estate, funds or other property of a county, town, etc., may be maintained against any officer thereof, or any agent, commissioner, or other person acting in its behalf, by a citizen, resident therein, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid a tax therein. This sec- tion does not affect any right of action in favor of a county or town, or any public officer. Id., § 1925. § 899, Decisions. When the supervisor of a town acting, under section 37 of chapter 179 of 1856, as "trustee of the gospel and school lot" improperly invests and thereby loses moneys belonging to such fund, an action to compel him to account and make good the loss thereby occasioned should be brought by his successor, who should describe himself in the title of the action as the trustee of the gospel and school lots. Taylor v. Gurnee, 26 Hun, 624. In a bond given by the supervisor of a town of Westchester county, under the provision of the statute requiring every supervisor to execute and deliver to the town clerk of his town, a bond conditioned for the faithful discharge of his duties, etc. (Laws of 1866, chap. 534, 55 2, as amended by Laws of 1868, cnap. 731, § 1), the person holding the ofiSce of town clerk at the time was named as obligee, he being described as " town clerk." and the penal sum being made payable " to the said town clerk, or his successor in office." In an action upon the bond held, that the bond was not to the individual, but to the officer; and so was in compliance with the requirements of the statute and was valid. Also held, that the action was properly brought in the name of the supervisor of the town. Sutherland v. Carr et al., 85 N. Y. 105. An action may be brought by a supervisor, as such, to recover a balance remain- ing in the hands of a predecessor, as ascertained and certified by the auditors of town accounts, but not paid to his successor on demand. This right of action in the name of the supervisor is conferred by 2 Revised Statutes, page 473, section 92 and is not taken away nor conferred upon the town by the Laws of 1866, chapter 534. Gleason v. Youmans, 9 Abb. N. C. 107 ; affirmed, 18 Dig. 25. A supervisor who, by the wrongful act of his associates, is excluded from being present at a meeting of the board, cannot, on that ground, maintain an action to enjoin other officers from proceeding to fulfill authority conferred upon them by the proceedings of the board at such meeting. His remedy should be directly against the offending supervisors. Ely V. Connally, 7 Abb. (N. S.) 9. Actions for fines and penalties under the " Compulsory Education Act " are to be brought in the name of the supervisor. Laws of 1874, chap. 421, § 9. ■ Under the provision of the act (Laws of 1865, chap, 29, § 2) providing for a re. fund of bounties, the State, through its paymaster-general, settled with, and paid to, a committee, appointed by the board of supervisors of Cortland county, the amount claimed for excess of years furnished by the several towns thereof, in- cluding the thirty-one years so credited. In the schedules presented by the com- mittee the thirty-one years were not credited to the town of S., but to other Action- by oe Against a Supeevisoe. 743 towns, defendant being credited with three yeara. The paymaster-general did not recognize the towns in making the payment, bat kept his account with the county, using the schedule simply to ascertain the aggregate number of excess furnished from enlistments in the county. The committee, knowing of the claim of the town of S., by direction of the board of supervisors paid to defendant the sum received from the State for the three years so credited to it. In an action to recover the money so paid, held, that the committee received the refund as agents for the different towns; that the right to demand and receive it existed in the towns, not in the county, and the sum paid for the thirty-one years rightfully be- longed to, and its payment discharged the claim of, the town of S. ; that, in the absence of explicit evidence to the contrary, it could not be presumed that the State undertook to determine how the money paid to the committee should be dis- tributed as between the towns, and that the action could be maintained. Also held, that the action was properly brought in the name of the supervisor of the town of S. Hathaway v. Town of Cincinnatus, 62 N. Y. 435. A highway once established does not cease to be such until it has been discon- tinued by the proper authorities.. The occupation of a portion of a highway by an individual is obstruction and nuisance, for which no lapse of time will enable him to prescribe, and no acquiescence on the part of the highway oflBcials of the town will deprive the public of the right to use the whole highway, or in any de- gree lessen the duty of such officials to remove the obstruction, when that removal is necessary Accordingly held, that continuous occupation for a period of twenty years of a por- tion of a highway did not give the occupant title, and would not sustain an action of trespass against the supervisor and highway commissioners of the town for entering upon and removing a building from the portion of the highway so occupied. A dedication by the owner of a land as a highway, and acceptance by the public through user, constitutes it a highway, although no record be made of it as such. Driggs T. Phillips et al., 103 N. Y. 11. Under the town bonding act of 1869 (chap. 907, Laws of 1869), the existence of a railroad corporation having the power to issue stock or bonds, and to construct the road to be aided, lies at the foundation of the power to issue the municipal bonds. Accordingly held, that the bonds of a town issued for the stock of a pretended corporation fraudulently organized as above stated, were invalid save in the hands of "bona fide" holders. The articles of association were filed in 1870; no move- ment was made to begin the construction of the road within five years thereafter, as required by the act of 1867 (chap. 775, Laws of 1867). Reld, that, assuming the organization had a legal existence as a corporation, and that the bonds were lawfully issued and delivered to it, the default in beginning the construction caused its corporate powers to cease and terminate, and deprive the stock issued to the town of any value, and, therefore, that as the consideration for the bonds had failed, they were void except in the hands of " bona fide " holders. Also hM, that an action was maintainable on behalf of the town, by its super- visor, to recover damages against one of the persons who made the false aflSdavit, and who, with full knowledge of the fraud, had investigated, and as attorney conducted, the proceedings for bonding the town, and having, in the character of an officer of the pretended corporation, obtained possession of the town bonds, after the five years had expired for beginning the construction of the road, had sold the bonds to "iona fide" holders, who purchased in reliance upon the rep- resentations of defendant, that bonds were good and valid securities, and thus had rendered the town liable thereon. It seems, the fact that the persons signing the petition for bonding the town were well acquainted with the facts relating to the organization of the pretended corporation, would not affect defendant's liability in such an action; as, by procuring the town to be bonded, the petitioners not only imposed a burden on their own property, but on that of other tax payers who did not sign or approve of the scheme, and who were at liberty to contest the validity of the bonds, until by the defendant's action the town lost the right to avail itself of this defense. Also Md, that the act of 1875 (chap. 598, Laws of 1875), passed after the for- feiture and before the negotiation of the bonds by defendant, did not cure the 744 SuPBEVisoEs' Makdal. forfeiture; that the act only applies to a default in failing to complete the road within two years. FarDham t. Benedict, 107 N. T. 159. See, also. Bridges v. Supervisors, 92 id. 5V0; Town of Lewis v. Marshall, 9 Abb. N. C. 104, note; affirmed, 66 N. T. 663; Hand v. Supervisors, 31 Hun, 531. Where a collector of a town deposited with bankers moneys collected by him for taxes, and the supervisor agreed with the bankers that they might retain the money until wanted, and on demand of payment being subsequently made it was refused, Tidd, that an action to recover the same must be brought by the super- visor and not in the name of the town. Town of Chautauqua v. GifEord, 8 Hun, 152. § 900. Ho'w Broug'Iit by or Ag^ainst Super- visor. — In an action or special proceeding broiiglit pursuant to section 1926 or section 1927 of Code of Civil Procedure, heretofore referred to, the officer by or against whom it is brought must be described in tlie summons, or other process by which it is commenced, and in the subsequent proceedings therein, by his individual name, with the addition of his official title. An objection, growing out of an omission to join any officer who ought to be joined with the others, must be taken by the answer, or, in a special proceeding, before the close of the case, on the part of the defendant ; other- wise it is waived. Code of Civ. Pro., § 1929. Where the averments in, and the frame of a complaint are such as to affix to the plaintifE a representative character and standing in the litigation, and to show that the cause of action, if any, devolved upon him solely in that character, the omission in the title to the action of the word " as " between the name of the plaintifE and words descriptive of his representative capacity, does not prevent him from claiming in that capacity. Beers v. Shannon, 73 N. Y. 292 ; Stillwell v. Carpenter, 62 id. 689. If the word "as" be not used, or its equivalent, such designation is merely a description of the person. Id. It is safer to entitle the action " k. B. as supervisor of the town of C." Bennett V. Whitney, 8 Dig. 398; S. C, 94 N. Y. 802. In actions by or against any of the officers named in S R. S. 473, § 92, the indi- vidual name of the incumbent must be used with the addition of his name of office. Supervisor of Town of (ialway v. Stimson, 4 Hill, 136. Accordingly, where the action was in the name of " The Supervisor of the Town of Gal way," without mentioning the name of the incumbent, it was held that the action could not be maintained. Id. § 901, Substitution of Successor in Office in Suit. — In such an action or special proceeding, the court must, in a proper case, substitute a successor in office, in place of a person Action- by or Against a Supeevisor. 745 made a party in his official capacity, who has died or ceased to hold office; but such a successor shall not be substituted as a defendant, without his consent, unless at least fourteen days' notice of the appli- cation for the substitution has been personally served upon him. Code of CiT. Pro., 8 1930. See Supervisor of Galway v. Stimson, 4 Hill, 186. It is only "in a proper case" that the court will substitute a successor. Where it appears from the relation between the defendant and the new supervisor, and the attitude of the latter to the subject-matter of the litigation, that the applica- tion is made in the Interest of the defendant, rather than of the town, it should be denied. Farnham v. Benedict, 29 Hun, 44. SeeStandart v. Burtis, 46 id. 82. In an action brought by or against a commissioner of highways as such, his opponent, if successful, is entitled to a personal judgment against him and, there- fore, his successor in ofiBce cannot be substituted in his place as a party, although his successor consents to be substituted. Hitchman v. Baxter, 6 Browne's C. P. Bep. 226. § 902, Counsel may be Employed.— The super- visor may employ counsel to prosecute or defend. His expeuses and services are a town charge. For judgments, costs, etc., see § 458, ante. Suits by Tax Payees to Peevent "Waste, UifLAWFUL Official Acts, etc. § 903. Under tlie Code of Civil Procedure.— An action to obtain a judgment, preventing waste of or injury to the estate, funds or other property of a county, town, city or incor- porated village of the State, may be maintained against any officer thereof, or any agent, commissioner or other person acting in its behaK, by a citizen resident therein, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein. This section does not ailect any right of action in favor of a county, city, town or incorporated village, or any public officer. Codeof Cir. Pro., § 1925. Under Chapter 531, La-ws of 1881. Tax Payers may Maintain Actions.— All offi- cers, agents, commissioners and other persons acting, or who have acted, for and on behalf of any county, town, village or municipal corporation in this State, and each and every one of them, may be prosecuted, and an action or actions may be maintained against them 94 746 SuPBBVisoBs' Manual. to prevent any illegal official act on the part of any such officers, agents, commiBsioners or other persons, or to prevent waste or injury to, or to restore and make good any property, funds or estate of such county, town, village or municipal corporation, by any person whose assessment, or by any number of persons jointly, the sum of whose assessments shall amount to $1,000, and who shall be liable to pay taxes upon such assessment or assessments in the county, town, vil- lage or municipal corporation, to prevent the waste or injury of whose property the action is brought, or who have been assessed or paid taxes therein upon any assessment or assessments of the above- named amount, within one year previous to the commencement of any such action or actions. Bond to be Given. — Such person or persons, upon the commencement of such action, shall furnish a bond to the defendant therein, to be approved by a justice of the supreme court or the county judge of the county in which the action is brought, in such penalty as the justice or judge approving the same shall direct, but not less than $250, and to be executed by any two of the plaintiffs, if there be more than one party plaintiff, provided said two parties plaintiff shall severally justify in the sum of $5,000. Said bond shall be approved by said justice or judge and be condi- tioned to pay all costs that may be awarded the defendant in such action, if the court shall finally determine the same in favor of the defendant. The court shall require, when the plaintiffs shall not justify as above mentioned, and in any case may require two more sufficient sureties to execute the bond above provided for. Such bond shall be filed in the office of the county clerk of the county in which the action is brought, and a copy shall be served with the summons in such action. Provision in Case of Injunction. — If an injunc- tion is obtained as herein provided for, the same bond may also pro- vide for the payment of the damages arising therefrom to the party entitled to the money, the auditing, allowing or paying of which was enjoined, if the court shall finally determine that the plaintiff is not entitled to such injunction. Court may Prohibit Payment, Etc. — In case the waste or injury complained of consists in any board, officer or agent of any county, town, village or municipal corporation, by collusion or otherwise, contracting, auditing, allowing or paying, or conniving Action by or Agaikst a Supervisoe. 74? at the contracting, audit, allowance or payment of any fraudulent, illegal, unjust or inequitable claims, demands or expenses, or any item or part thereof, against or by such county, town, village or mu- nicipal corporation, or by permitting a judgment or judgments to be recovered against such county, town, village or municipal corpora- tion, or against himself in his official capacity, either by default or without the interposition and proper presentation of any existing legal or equitable defenses, or by any such officer or agent retaining or failing to pay over to the proper authorities any funds or prop- erty of any county, town, village or municipal corporation, after he shall have ceased to be such officer or agent, the court may, in its discretion, prohibit the payment or collection of any such claims, demands, expenses or judgments, in whole or in part, and shall en- force the restitution and recovery thereof, if heretofore or hereafter paid, collected or retained by the person or party heretofore or here- after receiving or retaining the same, and also may, in its discretion, adjudge and declare the colluding or defaulting official, personally responsible therefor, and out of his property and that of his bonds- men, if any, provide for the collection or repayment thereof, so as to indemnity and save harmless the said county, town, village or municipal corporation from a part or the whole thereof ; and incase of a judgment, the court may, in its discretion, vacate, set aside and open said judgment, with leave and direction for the defendant therein to interpose and enforce any existing legal or equitable de- fense therein, under the direction of such person as the court may, in its judgment or order, designate and appoint. Certain Books Public Records. — All books of minutes, entry or account, and the books, bills, vouchers, checks,, contracts or other papers connected with or used or filed in the office of, or with any officer, board or commission acting for or on behalf of any county, town, village or municipal corporation in this State,, are hereby declared to be public records, and shall be open, subject to reasonable regulations to be prescribed by the officer having the custody thereof, to the inspection of any tax payer. TMs Act not to Interfere Witlx Otiier Rem- edies.— This section shall not be so construed as to take away any right of action from any county, town, village or municipal corporation, or from any public officer, but any right of action now existing, or which may hereafter exist in favor of any county, town, village or municipal corporation, or in favor of any officer thereof,, 748 Supervisors' Manual. may be enforced, by action or otherwise, by the persons hereinbefore authorized to prosecute and maintain actions ; and whenever by the provisions of this section an action may be prosecuted or maintained against any officer or other person, his bondsmen, if any, may be joined in such action or proceeding, and their liabilities as such en- forced by the proper judgment or direction of the court; but any recovery under the provisions of this act shall be for the benefit of and shall be paid to the officer entitled by law to hold and disburse the public moneys of such county, town, village or municipal cor- poration and shall, to the amount thereof, be credited the defend- ant in determining his liability in the action by the county, town, village, municipal corporation or public officer. The provisions of this act shall apply as well to those cases in vrhich 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. Laws of 1881, chap. 531, as amended by Laws of 1887, chap. 678. Decisions. Under the provision of the act of 1877 (chap. 268, Laws of 1877) in reference to the sale of lands for unpaid taxes in the county of Queens, as amended in 1878 (chap. 226, Laws of 1878), where the county treasurer strikes off lands to a town as directed by said act, in case there are no bids for the pame, his fees be- come simply matter of account, " a charge against said town," to be audited by the town board the same as other claims against the town (chap. 305, Laws of 1840; chap. 490, Laws of 1874). Said ofiBcer has no right, without audit or di- rection, to deduct his fees from funds in his hands belonging to the town. Where it appeared that said county treasurer had been in the habit of paying liimself the fees allowed by law upon such sale out of the trust funds of the town in his possession, without previous audit ; that upon a sale he had struck off a large number of lots to a town and that said officer claimed the right thus to satisfy his claim. Held, that an action was maintainable under the act of 1881 (chap. 531, Laws of 1881), by a tax payer of the town to restrain such illegal ac- tion. Warrin v. Baldwin, 105 N. Y. 534. In this action, brought by the plaintifE as a tax payer, under chapter 531 of the Laws of 1881, to prevent the payment of $3,000 of the bonds of the town of Mentz, issued pursuant to an adjudication of the county judge of Cayuga county, in proceedings taken before him, and held by the defendant Cook, and to require Cook to deliver them up to be canceled, it was charged and proved that the bonds were illegally issued for the reason that the petition failed to state that the peti- tioners were a majority of the tax payers who were taxed or assessed for prop- erty, " not including those taxed for dogs or highway tax only," upon the last preceding assessment-roll. Held, that this omission In the petition was jurisdic- tional, and had the effect to render the proceedings and the bonds issued pursuant to it, invalid. Strang v. Cook, 47 Hun, 46. That the right to bring an action for the relief sought in this action was given to tax payers by the statute, and the rules prescribing the circumstances under which an action, dependent only upon the general equity power of the court to grant the relief, could be brought, and the reasons which ordinarily require the Action by ok Against a Supeevisok. 749- court to deny the plaintiffs right to bring such an action, were not applicable to this action. That the action was not barred by the statute of limitations, although it was commenced more than ten years after bonds were issued and transferred by the commissioners of the town. That the action was analogous in principle to one instituted for the removal of a cloud upon the title to land, which is a con- tinuing cause of action that may be asserted at any time during the existence of the cloud, and is never barred by the statute of limitations while the cloud con- tinues to exist. Id. Plaintiff, an incorporated seminary of learning, leased its school building and premises, at Saratoga Springs, to D. for a boarding-house during a summer vacation. The assessors of the town assessed the property to D., and after the expiration of the lease, a tax was levied thereon. The receiver of taxes for the town was pro- ceeding to sell under the act of 1880 (Laws of 1880, chap. 68), which authorized him to sell any real estate upon which taxes are unpaid. Whereupon plaintiff brought this action to restrain the sale, and to vacate and set aside the tax as un- authorized by said act. On the trial it was claimed by the defendant that the assess- ment was void by reason of the indefiniteness of the description. The property was definitely described in the notice of sale. Meld, that as, by the act, the re- ceiver is directed to execute a conveyance to the purchaser, which is made (§ 8) presumptive evidence of regularity of all the proceedings including the assess- ment, a grantee under a sale would not be required to show a regular assess- ment in order to recover the premises, and his deed would be a cloud on the title;. and that the action was maintainable. Temple Grove Seminary v. Cramer, 98 N. T. 121-2. An action to vacate an audit, by a town board of audit, of a claim which the board had no authority to allow, or where the audit was fraudulent and collusive, and to restrain the collection of tax therefor, may properly be brought by a tax payer under the act of 1873 (Laws of 1873, chap. 161), '• forthe protection of tax payers." The right to maintain an action under said act is not confined to cases where, before its passage, an equitable action could have been brought by the town for the same relief. Osterhoudt v. Rigney et al., 98 N. Y. 222. In an action brought under the act " for the protection of tax payers" (Laws of 1873, chap. 161, amended by Laws of 1879, chap. 536), by tax payers of a town to vacate, on the ground of illegality or fraud, audits of town accounts made by the board of audit, and to restrain the levying of a tax for their payments, th& persons in whose favor the audits were made are proper and necessary parties. The enumeration in said act of the persons against whom actions under it may be brought does not dispense with the necessity of joining all other persons who will be directly affected by the judgment, and are necessary parties to a complete de- termination of the controversy. Osterhoudt «i a^. v. Board of Supervisors, etc., et al., 98 N. Y. 239. In an action by a tax payer of the town of A. to have certain bonds issued by said town adjudged illegal and void, it appeared that the town, acting in supposed accordance with statutory provisions (Laws of 1869, chap. 907, as amended by Laws of 1871, chap. 935), issued its bonds to pay for stock of a railroad corporation, which passed into the hands of innocent holders. The bonds were claimed by the town to have been illegally issued, and so invalid. While suits were pending to enforce them, said town, under the act of 1880 (Laws of 1880, chap. 146), author- izing it " to issue new bonds pursuant to the provisions of Laws of 1878, chap. 75, and its amendments, to the amount and extent of its bonded indebtedness, issued the bonds in question in exchange for, and to retire the outstanding bonds, the new bonds drawing a lower rate of interest than the old ones. Said town at the time had no other "bonded indebtedness" than the original bonds issued as above stated Held, that the action was not maintainable; that the town, having elected to compromise rather than to contest the validity of the old bonds, was estopped. from thereafter questioning it. Hills V. Peekskill Savings Bank etal., 101 N. T. 490. 750 SuPEKVisoEs' Manual. Where the bonds of a town have been issued to «, railroad corporation in pay- ment for stock, by commissioners appointed under and by a judgment void for -want of jurisdiction rendered in proceedings under the act authorizing " munici- pal corporations to aid in the construction of railroads," an equitable action is maintainable for the protection of tax payers, at the suit of a tax payer of the town, to restrain the negotiation, or payment, of the bonds and to compel their cancellation. Metzger v. Attica & A. R. R., 79 N. Y. 171. See Ayers v. Lawrence, 59 id. 192. An action will lie to restrain the contemplated and threatened issue of bonds by railroad commissioners not authorized by law, Ayers v. Lawrence, 59 N. T. 192. The legislative intent in the passage of this act was to provide ample remedy and protection to the tax payers against all wrongful acts, to their prejudice, of the officers and agents of a municipal corporation, aflFecting not only its property Tights but its credits, and embraces within its purview every process or means by which the corporation can be charged pecuniarily, or the taxable property within its limits burdened. Id. An action was sustained by a tax payer to vacate a lease of a wharf, which had been illegally made. Btarin t. Mayor, etc., of New York, 42 Hun, 549. And the fact that the plaintifif was a bidder at the sale and was interested in -the use of the wharf and ferry franchise previous to the time at which the sale was had, did not disqualify him from so doing. Id. The Revised Statutes declare in terms "judgments recovered against a town fihall be a town charge." The judgments recovered by Piatt, by virtue of that provision of the statute, are declared to be a town charge, and being a town charge, they fall within the provisions constituting the machinery for the collec- tion of town charges, to- wit: Assessment and levy upon the taxable property within the territory of the township. Seld, that the statute of 1881, known as an act for the protection of tax payers (Laws of 1881, chap. 531), does not apply to the case in hand. It was passed to prevent fraudulent recoveries of judgments by default or by collusion, not for the purpose of giving every tax payer within the limits of the town the right to litigate afresh questions fairly, fully and hon- ■estly presented by way of defense and solemnly adjudicated adversely to the town; that notwithstanding the act of 1881, the judgments recovered by Piatt, the creditor, against the town of Orleans, are conclusive upon the town of Or- leans, and It is the duty of the board of supervisors of Jefferson county to apply the provisions of the law relating to the collection of judgments, and to place upon the schedule of the town a sum sufficient to pay and liquidate the judg- ments so recovered by Piatt, the creditor. Lee V. Board of Supervisors of Jefferson Co., 62 How. 202. A tax payer, wishing to shield himself from an illegal assessment, has two remedies: 1st. If he moves seasonably, he has the right to review the action of the asses- sors by certiorari. 2d. To bring an action in equity to have the roll adjudged illegal and void. In such an action the court has full power to inquire, dehors the record, as to the validity of the claim or claims for which the tax is assessed, Sherman v. Trustees, 27 Hun, 890-2. If the action is brought for the benefit of an individual, it will not be sustained. Hull V. Ely, 2 Abb N. C. 440. One showing no other right than as a tax payer cannot maintain an action in Action by ok Against a Stjpeevisoe. 751 equity against the official custodian of the proceeds of a tax to restrain their ap- plication to the purposes for which the tax was raised. Kilburn v. St. John, 59 N. Y. 21. Held, that a tax payer of a town could not maintain an action against the rail- road commissioners of the town to restrain them from paying out moneys In their hands, paid to them by the collector, by direction of his warrant, to pay interest on bonds claimed to have been issued on behalf of the town, to aid in construct- ing a railroad, but which were alleged to have been illegally issued and void. Id. In an action under chapter 181, Laws of 1872, against the board of supervisors and the town auditors to set aside certain audits, the persons in whose favor the audits were made are necessary parties. Osterhoudt etal. v. Board of Supervisors of Ulster Co., 98 N. Y. 239. In an action brought by a resident. and tax payer of a municipal corporation against the comptroller of such corporation, under the act for the protection of tax payers (Laws of 1881, chap. 537), the. plaintiff must, upon the commence- ment of such action, give a bond as in such act specified. Tappen v. Crissey, 64 How. 496. Such bond must be in the form prescribed by the act, and must be under seal. Id. A compliance with sections 620, 621, of the Code of Civil Procedure, as to se- curity, does not obviate the necessity of complying with the provisions of this statute. Id. If the court intervene to enj oiu an officer in what he claims to be his official duty, a plain case should be established by the party asking such interference. It is not sufficient for the plaintiflf in such an action to show that the act he seeks to enjoin is one of doubtful propriety. Id. Where, on a motion to dissolve an injunction, which had been granted restrain- ing the defendant, who is the comptroller of the city of Troy, from countersign- ing any draft or drafts which might be drawn for the purpose of paying the police force of the city of Troy, of which John McKenna was the superintend- ent, and from countersigning any draft or drafts which might be drawn for the purpose of paying the police force of said city, or any part thereof, signed by Police Commissioner Cavanaugh and Police Commissioner Hannan, until the further order of the court, the plaintiff, in support of the injunction, presented a case showing a doubtful question as to which of the two bodies of men claim- ing to be the police force of the city of Troy is the legal one. neld, that such doubt is not sufficient to justify the court in declaring, by its order maintaining the injunction, that the defendant was about to do an illegal official act, and waste or injure the property, funds or estate of the municipal corporation of which he is an officer. Id. The mere fact that persons filling, for the time being, the office of village trus- tees are about to act, in levying an assessment, without having first taken the oath of office, will not, in the absence of proof that funds or property will be in- jured thereby, entitle tax payers to an injunction restraining such persons from levying the assessment. Such persons, being officers de fctcto, are capable of levying an assessment. Dowa V. Village of Irvington, 13 Abb. N. 0. 162. Irregularities in a municipal election, which will not change the result, will not be rectified by the courts of judicature. When an election is irregular, certiorari 752 SuPEKvisoRs' Manual. is the proper remedy. Omissions and defects in assessment-rolls cannot be in< quired into collaterally. Id. Property which a municipality has acquired for one purpose — in this case the construction of a sewer beneath it — may be used by it also for an additional pur- pose not impairing the other, such as allowing the surface to be used as a public school playground ; and a tax payer's action does not lie to enjoin such additional use. Winkler v. Summers, 22 Abb. N. C. 80. Although a mere error in judgment as to price on a proposed purchase by a municipality may not suffice to sustain a tax payer's action, yet an excessive val- uation 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 tor himself with his own money, will sustain an action to enjoin the purchaser. Id. Under the present statute the amount wrongfully expended in such a purchase may be recovered back in a tax payer's action. Id. Where the comptroller, on being authorized to purchase land at an expense not exceeding a specified limit, merely asked the owner what he would take, and the owner demanding the sum so fixed as a maximum limit, held, that accepting the offer without effort to bring down the price to a more reasonable figure, was conduct against which relief should be given by injunction at suit of a tax payer. Id. Neither oral acceptance of an ofier under such a resolution, nor the delivery to the law officer of the corporation of a deed for examination, amount to an execu- tion of the contract such as to preclude an injunction. Id. The language of the act in specifying the causes for which an action is given is broad and comprehensive and is not used in a technical or restrictive sense. An action is authorized against any person acting for or in behalf of a municipality by whose acts the corporation or its tax payers may be injured in its property rights or pecuniary interests " to prevent waste or injury to any property, funds, or estate, of such county, town or municipal corporation." Waste has a technical meaning when it is used to denote spoliation or destruction to lands or other cor- poreal hereditaments by a tenant to the prejudice of the reversioner or remainder- man ; but it is not unfrequently used in a different and more comprehensive sense and may be applied to any squandering or misapplicatioQ of property or fund by trustees or others charged with a duty, or any abuse of trust or duty by v^hich property is lost, or an estate or trust fund diminished in value. A deoaka/iM by an executor or administrator is defined to be wasting of the assets, and may con- sist of any act or omission, every mismanagement by which the estate suffers loss (3 Wms. on Exrs. 1629). The term " waste " as used in the act, includes every wrongful act of mismanagement of the property rights or interests of the municipality causing the loss or damage. The word "injury" includes every wrong, every thing that is not done rightfully. Under this term every act in violation of right is included. (3 Bl. Com. 3.) And within the terms of the act every pecuniary interest and right which could be wasted, that is, destroyed, mismanaged, misappropriated or misapplied, or that could be in- jured by the unauthorized or wrongful act of public servants or agents to the dam age or loss of the corporation or the tax payers, is included. The prevention of waste or injury " to any property, funds or estate" of such county, etc., is the declared purpose of the act. Those words, upon a fair and reasonable interpre- tation, embrace not only property and funds in possession but the credit and the power of taxation and of borrowing money in anticipation of taxation and every process and means by which the municipal corporation can be charged pecuni- arily or the taxable property within its limits burdened. Municipal corporations ACTIOlf BY OB AgAIUST A SUPBEVISOE. 753 seldom have property, funds or estates in possession to be wasted or injured save the taxes collected or in process of collection for the purposes to which they are appropriated. Ayers et al. v. Lawrence etal., 59 N. Y. 198. The terms are inapplicable in their most usual and ordinary sense to the prop- erty rights and pecuniary interests of a municipal corporation. The legislature have used several words for the sole purposr of embracing every right and inter- est which might need protection; and in the protection and right use and applica- tion of which the tax payers would have an interest. The word " property " de- notes the interest one may have in lands and chattels to the exclusion'of others. "Funds" may mean cash on hand, stock, etc., and when "public funds" are referred to, taxes, customs, etc., appropriated by the government to the discharge of its obligations, are understood. It is a name also given to the public funded debt of the government, and in the latter sense a municipal obligation and public debt, created by or in the name of the local or municipal government, may be regarded as technically within the term "funds" of the corporate body. The word "estate" has several meanings, and in its most extreme sense signifies every thing of which riches or fortune may consist. (Whart. Law Diet.; Bouv. Law Diet.; Ketchum v. (My of Buffalo, A Kein. 356.) The terms used, in the connection in which they stand, cannot, without an utter disregard of the rights that were intended to be preserved and protected, be held to mean any thing less than every interest and right affecting the burdens, the pecuniary interests, the credit, or the obligations of the municipality, and it would be a perversion of the act to give the language a restricted interpretation, which would place beyond its protection the power of creating a public debt. The taxing power may be so exercised as to result in a waste or injury of the "property, funds and estate" of a municipal corporation, and the issuing of bonds of the municipality is but an exercise of the taxing power. The power of taxation and the pledge of the public credit as one form of the exercise of that power, is the use and application of the property, funds and estate of the municipality ; and when the power to do either is exercised in violation of right, it is a waste and injury of the public property, funds and estate within the terms of the act. Id. The complaint in this action, brought by the plaintiffs, as tax payers, under chapter 531 of 1881, stated that a former board of excise of the city of Auburn recovered a judgment of about $2,000 against the defendants Burtis for selling liquors without a license ; that the said defendants were pecuniarily responsible and the judgment collectible, and that amount thereof, when collected, was to be paid to the treasurer of the city of Auburn for the support of the poor of that city, thereby lessening the amount of taxes to be paid for the support of the poor ; that the judgment was aflirmed by the general term and was then before the court of appeals on an appeal thereto taken by the defendants Burtis ; that the defendants, excise commissioners, were taking steps, without notice to the plain- tiffs attorney, to substitute another attorney, not on account of any want of skill, or of his conduct of the suit, but to enable them to cancel and discharge the said judgment upon the payment by the judgment debtor of a sum much less than its value for the purpose of favoring such debtors at the expense of the tax payers of the city whom they oflScially represented, and because they were opposed to the enforcement of the excise law ; that the said defendants, the said Burtis, were engaged with the other defendants in such plans and attempts to compro- mise the judgment, for nominal sum, to benefit and favor themselves. Standart v. Burtis, 46 Hun, 82. Sdd, that a judgment overruling a demurrer interposed to the complaint, upon the ground that it failed to state a cause of action, should be affirmed. That although the courts will not restrain officials from exercising discretionary powers in good faith, yet when they threaten an abuse of that discretion, they may be enjoined. That as the complaint alleged that the defendants, Burtis, were acting with the commissioners in these illegal and unlawful proceedings, and were planning and attempting to settle and discharge the judgment without its payment, they were properly made parties defendant. That they were also properly made parties defendant for the reason that they 95 754 Supervisors' Manual. ■were directly interested in the proposed action of their co-defendants and were entitled to be heard on the trial before a decree was made. Upon the facts alleged in the complaint the relief sought was a perpetual in- junction restraining the defendant from settling, satisfying or discharging the judgment before it was paid in full, and from substituting any attorney in place of the plaintiff's attorney in that action. Held, that the complaint stated but one cause of action. Id. SUMMARY INVESTIGATIOIT OF UNLAWFUL OE COR. EUPT EXPENDITURES, ETC. § 904. Application for Investigation, Etc.— If twenty-five freeholders in any town or incorporated village in this State shall present to any justice of the supreme court having jurisdiction therein, an aflBdavit subscribed and sworn to by them- selves, setting forth that they are' freeholders and have paid taxes on real estate within one year and that they have cause to believe that the moneys of such town or incorporated village are being un- lawfully or corruptly expended, it shall be the duty of such justice, upon ten days' notice to the supervisor or supervisors, where there are more than one, and the particular disbursing officer, if any, of such town, making the expenditure, or the trustees and treasurer of such incorporated village, to make summary investigation into the financial affairs of such town or incorporated village, as the case may be, and the accounts of such disbursing officers or treasurer, as the case may be, and at his discretion he may appoint an expert or experts to make such investigation, and may cause the results thereof to be published in such manner as he may deem proper. It shall be the duty of the supervisor or supervisors and disbursing officer of such town, or the trustees and treasurer of such incorpo- rated village, as the case may be, to obey all orders of such justice, directed to them, for facilitating such investigation, and any refusal or failure by said supervisor or supervisors or trustees to obey such orders may be punished as for contempt ; the cost incurred in such investigation shall be taxed by said justice, and paid upon his order by such supervisor or supervisors, or trustees, as the case may be, whose expenditures shall be thus investigated, when the facts charged in such affidavit shall be substantially proved in such investigation and by the freeholders making such affidavit, when the facts charged therein shall not be proved by such investigation. Laws of 1879, chap. SOT, § 1. Restraining^ Unla-wful Expenditures.— Upon the said justice becoming satisfied that any of the moneys of such Action by or Against a Supervisor, 755 town or incorporated village are being unlawfully or corruptly ex- pended, and being appropriated to purposes to which they are not properly applicable, or are improvidently squancJered or wasted, he shall forthwith grant an order restraining and prohibiting such un- lawful or corrupt expenditure, appropriation, squandering or waste of such moneys, under penalty for disobedience of fine or imprison- ment, or both, in the discretion of the court. Id., § 2. DECISlOlfS. Laws of N. T., 1879, chap. 307, providing "for the summary investigation of unlawful or corrupt expenditures by oflBcers of towns or incorporated villages, and for restraining the same," is remedial and must be liberally construed. In re Town of East Chester, 6 N. T. Sup. 120. The fact that the petitioners have other remedies does not affect their right to a summary investigation, as the statute specificaUy gives them this remedy. Nor is it material that bills, payment of which is sought to be restrained, have been audited by the town board. Id. A writ of certiorari should not be allowed before a final order is made. The defendants are railroad commissioners of the town of Cobleskill, in the county of Schoharie, and proceedings were taken against them under chap. 307 of the Laws of 1879, entitled " An act to provide for the summary investigation of unlawful or corrupt expenditures by officers of towns or incorporated villages, and for restraining the same." Objection was made to such proceeding on the ground that they were not town officers, and, therefore, not amenable to the provisions of said act. This objection was overruled and they were directed to account. Held, that the order directing the investigation to proceed was not a final order. The final order to be made is one " restraining and prohibiting such unlawful or corrupt expenditure, appropriation, squandering or waste of such moneys " (those which came into their hands as officers of the town) " under penalty for disobedience, of fine or imprisonment, or both, in the discretion of the court." The final order must be that which ends the proceedings, and cannot be any of these, which must be made during progress. Matter of Hamilton and Deane, 58 How. 290. Under Laws of 1879, chap. 307, providing for the summary investigation of unlawful and corrupt expenditures by village officers, a justice has no power to investigate or to correct evils resulting from mere error in judgment and foolish expenditures of public moneys by such officers, but only where there has been either an unlawful or corrupt expenditure thereof. The expenditure of public moneys of a village is not to be deemed unlawful, •within the statute, because of a want of skill and judgment which results in a waste of moneys in the prosecution of a public work, as in the construction of a gutter, and an alteration of the original plan, so that it results in but little bene- fit to the village, and costs more than it was worth in the way which it was finally completed. Nor is the act of the village trustees in placing gravel upon the puolic high- way outside of the corporate limits of the village, so as to render it more pas- sable and enable the teams employed by the authorities to draw larger loads of gravel from a pit belonging to the village, to which the highway extended, to be deemed an unlawful expenditure. Nor is the act of the trustees in causing the hay and weeds growing upon the Bides of the streets in the village to be cut and drawn away at the public expense twice during the summer, to be deemed an unlawful expenditure, as the Laws of 1878, chap. 49, expressly requires weeds, etc., to be cut, in case the abutting owner fails to do so after written notice. 756 SuPEEVisoKs' Manual. Nor is the charge of unlawful expenditure sustained by proof of the employ- ment by the officers in work upon the streets of men, who either from advanced age could not, or from lack of inclination would not, do a full day's work for a full day's pay, where this is not done intentionally and as a matter of favoritism, but where such men have imposed upon the authorities and taken advantage of their temporary absence, while the work was being done, to idle away their time_ Matter of Bast Syracuse, 20 Abb. N. C. 131. Provision is also made for actions by the people, for receiving, converting, etc., money, funds, credits or other property of the city, town, county, etc., and for the ultimate disposition of any funds, etc., recovered. See the law, post, § 913. § 905. Action for Despoiling^ Trees, Etc.— Wlieu Town May Sue. — If any person cuts down or car- ries off any wood, underwood, tree or timber, or girdles or other- wise despoils a tree on the land of another, without the owner's leave; or on the common, or other land of a city, village or town, without having right or privilege in those lands, or license from the proper officer, an action may be maintained against him by the owner, or the city, village or town, as the case may be. Code of Civ. Pro., § 166T. ACTIONS BY AND AGAINST COUNTIES. The powers of a county as a body corporate are set forth in chap- ter IX. § 906. Actions by Counties, When and How Broug^llt. — Each county as a body corporate may sue and be sued. 2 R. S. 924, § 1, subd. 1. By section 1926 of the Code of Civil Procedure, it is provided that an action or special proceeding may be maintained by the super- visors of a county upon a contract lawfully made with those ofBcers or their predecessors, in their official capacity, to enforce a liability created, or a duty enjoined by law, upon those officers or the body represented by them, to recover a penalty or forfeiture given to those officers or the body represented by them ; or to recover dam- ages for an injury to the property or rights of those officers or the body represented by them ; although the cause of action accrued before the commencement of their term of office. Code of Civ. Pro., g 1926. Actions by akd Against Counties. 757 § 90T. Controversies Bet-ween Counties.— "Whenever any controversy or cause of action shall exist between any of the counties of this State, or between any such county and an individual or individuals, such proceedings shall be had, either at law or in equity, for the purpose of trying and finally settling such controversy, and the same shall be conducted in like manner, and the judgment or decree therein shall have the like effect as in other suits or proceedings of a similar kind between individuals and cor- porations. 2 R. S. 977, 8 1 A cause of action against the county, or against the board of supervisors, is not affected by the fact that' different individuals compose the board at any time since the cause of action accrued, or since the action or proceedings were begun. § 908. Relief from Erroneous or lUeg-al As- sessments and Taxation on Lands Divided by County IiineS' Actions to Determine inWliat Counties Lands are Taxable. — Any person who shall have heretofore owned, or shall hereafter own, a farm or lot of land which has been, or shall be, divided by the county line between two or more counties, Avhich farm or lot shall have been, or shall be assessed, in whole or in part, in or for the same year or years in towns in said counties, and who shall have paid the taxes so imposed thereon in said coun- ties, may commence an equitable action in the supreme court against said counties to determine in which of said counties said land was properly taxable for siiid year or years, to recover of the county or counties wherein said taxes have been or may be wrongfully col- lected, the amount thereof, with interest thereon from the time of the payment thereof, and for such other relief in the premises as to the court shall seem equitable and just. Laws of 1870, chap. 325, § 1 ; 2 R. S. 1002. Actions, bOTT Commenced, Etc.— Said actions may be commenced by the service of a summons, or summons and com- plaint, upon the chairman of the boards of supervisors of the coun- ties made defendant, each of whom shall have authority to employ counsel to appear for, and represent his county in said action. The court shall take cognizance of such actions, in the same manner as other civil actions, and shall render the proper judgment therein ; 758 Sdpervisoes' Manual. and the chairman of such boards is authorized to verify pleadings or affidavits iu such actions. Id., 8 2. Provisions of Code Applicable.— All the provis- ions of the Code of Procedure, not inconsistent with this act, are made applicable to said actions, and to the judgment and subsequent proceedings therein, except that costs in such action shall not be recovered against any county, unless the plaintiff shall, before the commencement of said action, have applied to the board of super- visors thereof to refund such taxes. Id., § 8 ; 2 R. S. 1002-3. The provisions relating to the refunding of the taxes determined in favor of plaintiff have been given, ante, § 347. The remedies given by this act shall not extend to assessments made more than three years next prior to the passage thereof. Suits against a county can be Tarought only lor such causes of action, or con- troversies (such as torts and the like) as cannot be settled and adjusted by the board of supervisors, in the exercise of their ordinary powers. Brady v. Supervisors, 2 Sandf. 460; affirmed, 10 N. Y. 260. The supervisors of a county, as such, are not a body corporate, and possess no powers as a corporation. Id., 10 N. Y. 260. " Such controversy " means such a claim or cause of action as cannot be sett.ed and adjusted on the application of the party, in the exercise of the ordinary powers of the board, and which is not a county charge, until it passes into judg- ment. Id., 2 Sandf. 471. As to what actions or proceeJings may be brought against the county. See Auditing of Accounts, chap. VIII, also chap. IX. There are some special statutes giving the nght to sue in the fol- lo'^^ing cases MOBS OK ElOTS. § 909. Actions for Damages from Riots.— Whenever any building or other real or personal property shall be destroyed or injured in consequence of any mob or riot, the city or county in which such property was situated shall be liable to an action by or in behalf of the party whose property was thus destroyed or injured, for the damages sustained by reason thereof. Laws of 1855, chap. 428, § 1. Actions by aitd Against Counties. 759 Such action or actions may be brought and conducted in the same manner that other actions may be prosecuted by law, and the judg- ment may be appealed from in the manner now provided for appeals in civil actions ; and whenever any final judgment shall be recovered against any such city or county in any such action the treasurer of said city or county shall, upon the production and filing in his office a certified copy of the judgment-roll, pay the amount of such judg- ment to the party or parties entitled thereto, and charge the amount thus paid to said city or county. Id., §2; IK. S. 860. No person or corporation shall be entitled to recover in any such action, if it shall appear upon the trial thereof that such destruction or injury of property was occasioned, or in any manner aided, sanctioned or permitted by the carelessness or negligence of such person or corporation ; nor shall any person or corporation be entitled to recover any damages for any destruction or injury of property ae aforesaid, unless such party shall have used all reasonable diligence to prevent such damage, and shall have notified the mayor of such city, or the sheriff of such county, immediately after being apprised of any threat or attempt to destroy or injure his or their property, by any mob or riot, of the facts brought to his knowledge ; and upon the receipt of such notice it shall be the duty of such officer to take all legal means to protect the property attacked or threatened ; and any such officer or officers who shall refuse or neglect to perform such duty shall be liable to the party aggrieved for such damages as said party may have sustained by reason thereof, provided said party shall elect to bring his action against such officer instead of such city or county. Id., % s. Nothing in this act shall be construed to prevent any person or corporation whose property has been injured or destroyed by any mob or riot, from having or maintaining an action against each and every person engaged or in any manner participating in such riot or mob. Id., § 4. No action shall be maintained under the provisions of this act unless the same shall be brought within three months after the loss or injury. Id., % 5. 760 SupEEVisoBs' Makual. la an action under this statute, if the plaintiff was notified before- hand of threats to destroy the property in question by a mob, and neglected to notify the sheriff, he cannot recover. Loomis T. Supervisors, 6 LaDS. 269. Tliis act is constitutional. Darlington T. Mayor, 31 N. T. 164. Notice to the public officers will not be required, when the party injured had no information in respect to which to give the proper notice. Ely V. Supervisors, S6 N. Y. 297. It is no defense to such action that the houses destroyed were kept by the plaintiff as bawdy-houses and as a rendezvous of thieves, robbers and murderers, etc. Id. A claim for such damages need not be presented to the board before bringing suit McClure v. Supervisors, 4 Abb. (N. S.) 203; S. C, 83 How. 202. See ante, "Torts," § 435. The keeping of a house of ill-fame ia not an act of carelessneBS or negligence, within the above section, which exempts cities and counties from liability for in- jury to or destruction of private property by mobs or riotous assemblies. Blodgett v. City of Syracuse, 36 Barb. 526. Section 3 of this act necessarily contemplates that a sufficient period of time shall intervene between the threat or attempt, and the execution of it, to admit of the notice required to be given. Moody V. Supervisors of Niagara County, 46 Barb. 659. Where the party whose property was destroyed by a mob, had no notice or knowledge of any threat or attempt to injure the property, before the attack was made upon it, and at the commencement of such attack she was forcibly taken by members of the village police and others acting in concert with the riot or riotous assembly, and detained in custody until the destruction of her property was com- pleted, it was held that such taking and detention put it out of the plaintiff's power to give the notice mentioned in the statute and sufficiently excused the omission. Id." Ely V. Supervisors of Niagara County, 36 N. Y. 297; Schiellein v. Supervisors ot Richmond County, 43 Barb. 490. A house kept as a bawdy-house or house of ill-fame is a public and common nuisance ; but the destruction of the building and its furniture is not necessary to its abatement. Id.; Moody v. The Same, 46 Barb. 659. An action lies under this act to recover the value of property appropriated and carried away by the persons composing the mob, as well as of that which was destroyed. Sarles v. Mayor, etc., of New York, 47 Barb. 447. The liability of the city or county is general, applying to all cases whatsoever where property may be destroyed by riots or mobs, and the comprehensiveness of section 3 is only so far restricted by that which follows it, as to deny the remedy provided for, where the party has been previously apprised of the threat or attack, and after being so apprised has failed to give the required notice. Moody v. Supervisors of Niagara County, 46 Barb. 659. To keep a bawdy-house and a rendezvous for thieves, robbers and murderers. Actions by atsb Against Counties. 761 does not constitute such an act of carelessness or negligence as will prevent the guilty party from recovering under this act. Id. Upon the trial of this action, brought against the supervisors of Westf-hester county, under chapter 430 of the Laws of 1855, to recover damages for the alleged destruction by a mob of a shanty and its contents owned by the plaintiff, evidence was given tending to show that the mob or body of men engaged in the destruc- tion of the plaintiflfs shanty and its contents were frenzied by strong drink sold to them by the plaintiff, who had no license; that the anger of the men was ex- cited by a refusal to continue the sale longer, either because they had no more money or because they were getting too turbulent, and that something like an hour afterward, these drunken and furious men returned to the shanty and burned it down. Edd, that the action could not be maintained. Paladlno v. Supervisors of Westchester, 47 Hun, 337. That the true meaning of the statute was that if a mob be maddened by the voluntary and unlawful act of the claimant, and the destruction of his property is the result, a good defense exists in the favor of the city or county when sued for the injury occasioned by the mob. Id. That no action can be maintained if such destruction or injury of property was occasioned, or in any manner aided, sanctioned or permitted, by the carelessness or negligence of such person. Id.. Plaintiff sued the supervisors of a county under Laws of N. T. 1855, chap. 428, which provides for a recovery when property shall be destroyed or injured in con- sequence of any mob or riot, when the destruction or injury is not occasioned or in any way aided, etc., by the negligence of the owner. The evidence showed that three men, armed with clubs, went to plaintiff's hotel, and asked for plain- tiff, saying that they were going to kill her. Two female servants, who were in charge of the hotel at the time, told the men that plaintiff was absent. The men then called for beer, which was given them. They then asked the women to ' drink with them, which they did. After drinking six or seven times, the women drinking with them three or four times, they became boisterous, and began to break the furniture, etc. Heild, that the injury to the property was aided by the negligence of plaintiffs servants, and that plaintiflF could not recover. Section 5 of said act, providing that no action shall be maintained under it unless brought within three months after the injury, is not affected by Code Civil Proc. N. T., § 405, allowing one year after the involuntary dismissal of an action commenced in time within which to bring another action, as section 414 excepts from the provisions of the chapter "a case where a different limitation is pre- scribed by law." Hill V. Supervisors, 6 N. T. Supp. 716. § 910. Actions, llOTV Brought. — In all such suits and proceedings the county shall sue, or be sued, in the name of the board of supervisors, except where county officers shall be author- ized by law to sue in their name of office for the benefit of the county. 2 K. s. 977, § 2. The individual supervisors should not be named. HUl v. Supervisors, 12 N. Y. 52. § 911. 'When County may Sue Before Justice. — Any action in favor of a county, wliich, if brought by an indi- 96 t62 SUPERYISOKS' MaKUAL. vidual, could be prosecuted before a justice of the peace, may be prosecuted by such county in like manner before any such justice. Id., § 5. "Witnesses and Jurors.— On the trial of every action in which a county shall be interested, the electors and inhabitants of such county shall be competent witnesses and jurors. 2R. S.977, J 4. § 912. Process, ho^r Served; Duty of Chair- man or Clerk Thereon.— In all legal proceedings against the board of supervisors, the first process and all other proceedings requiring to be served shall be served on the chairman or clerk of the board of supervisors ; and whenever any such suit or proceeding shall be commenced, it shall be the duty of such chairman or clerk to lay before the board of supervisors, at their next meeting, a full statement of such suit or proceeding, for their direction in regard to the defense thereof. Id., §8. Ab to Judgments, Costs, etc., see § 458. ACTIONS FOUIfDED UPON THE SPOLIATION" OK OTHEE MISAPPEOPRIATION OF PUBLIC PROPERTY. §913. For Funds, Etc., Illegally ' Appropri- ated. — -Where any money, funds, credits or other property held or owned * * * officially or otherwise, for or in behalf of a governmental or other public interest, by a domestic, municipal or other public corporation, or by a board, officer, custodian, agency or agent of the State, or of a city, county or town * * * has been or is hereafter, without right, obtained, received, converted or disposed of, an action to recover the same, or to recover damages or other compensation for so obtaining, receiving, paying, converting or disposing of the same or both, may be maintained by the people of the State in any court of the State, having jurisdiction thereof. * * * Code of Civ. Pro., §1969. Title to. Vests in the People,— Upon the commence- ment by the people of the State of any action, suit or other judicial proceeding, as prescribed in this article, the entire cause of action, including the title to the money, funds, credits or other property, Actions by and Against Counties. 763 witli respect to which the suit or action is brought, and to the damages or other compensation recoverable for the obtaining, receipt, payment, conversion or disposition thereof, if not previously so vested, is transferred to and becomes absolutely vested in the people of the State. Id., S 1972. Ultimate Disposition of Proceeds of Ac- tion in Court of the State.— Any court of the State, in which an action is brought by the people, as prescribed in this article, may by the final judgment therein, or by a subsequent or- der, direct that any money, funds, damages, credits or other prop- erty, recovered by, or awarded to, the plaintiff therein, which, if that action had not been brought, would not have vested in the peo- ple, be disposed of, as justice requires, in such a manner as to re-in- state the lawful custody thereof, or to apply the same, or the pro- ceeds thereof, to the objects and purposes for which they were au- thorized to be raised or procured; after paying into the State treas- ury, out of the proceeds of the recovery, all expenses incurred by the people in the action. Id., § 1974. Id.; Upon Petition of Corporation, Etc., Ag- grieved. — Any corporation, board, oflBlcer, custodian, agency or agent, may, in behalf of any city, county, town, village, or other division, subdivision, department or portion of the State, which was not a party to an action, brought as prescribed in this article, and which claims to be entitled to the custody or disposition of any of the money, funds, damages, credits, or other property, recovered by or awarded to the plaintiff, by the final judgment in the action, or any of the proceeds thereof, and not disposed of as prescribed in the last section, present, at any time after the actual collection of the money, and its payment into the State treasury, or the actual re- ceipt of the property by the people, to the supreme court, at a special term thereof held in the county of Albany, a verified petition, setting forth the facts, and praying for the relief to which he or it is entitled. Notice of the application and a copy of the petition must be served upon the attorney-general. Upon the hearing the court may make such a final order, as justice requires, for the disposition of the money or other property, as prescribed in the last section. Id., § 1975. 764 SUPERVISOES' MAlTtrAL. MANDAMUS. The practice and proceedings in cases of lifica/tions« — After receiving the answers of the per- son so challenged, the board of inspectors shall point out to him the qualification, if any, in respect to which he shall appear to them de- ficient. Id., § 16. Oath to be Taken if Challenge is not With- dl'a'wn. — If the person so offering shall persist iti his claim to vote, and the challenge shall not be withdrawn, one of the inspect- ors shall then administer to him the following oath : " You do swear (or affirm, as the case may be) that you have been a citizen of the United States for ten days, and are now of the age of twenty-one years ; that yon have been an inhabitant of this State for one year next preceding this election, and for the last four months a resident of this county, and for the last thirty days a resident of this election district ; and that you have not voted at this election." If the per- son so offering shall be challenged for causes stated in section 2 of Town Meetikgs. 775 article 2 of the Constitution of this State, the following addi- tional oath shall be administered by one of the inspectors: "Tou do swear (or aflarm, as the case may be) that you have not received or offered, do not expect to receive, have not paid, offered or prom- ised to pay, contributed, offered or promised to contribute to another, to be paid or used, any money or other valuable thing as a compen- sation or reward for the giving or withholding a vote at this election, and have not made any promise to influence the giving or with- holding of any such vote; and that you have not made any bet or wager, and are not directly or indirectly interested in any bet or wager depending upon the result of this election." If the person' so offering shall be challenged on the ground of having been con- victed of bribery or any infamous crime, the following additional oath shall be administered to him by one of the inspectors : " Yovl do swear (or aflirm) that you have not been convicted of bribery or any infamous crime, or if so convicted, that you have been pardoned and restored to all the rights of a' citizen." Id., § 17, as amended by § 11, chap. 240, Laws of 1847, and chap. 138, Laws of 1875; § 2, art. 2, Const.; § 6, tit. 1, chap. 130, Laws of 1842, as added by chap. 354, Laws of 1878. Vote, Wben to be Rejected.— If any person shall re- fuse to take the oath so tendered, his vote shall be rejected. S 19, same title. The Election of Town Officees. § 926. Proclaimation. — Before the electors shall proceed to elect any town officer, proclamation shall be made of the opening of the poll, and proclamation shall in like manner be made of each adjournment and of the opening and closing of the poll, until the election be ended. Part 1, chap. 11, tit. 3, art. 1, § 1, R. S. (1 R. S. 816). § 927. Mode of Clioice.— The supervisor, town clerk, assessors,- collector, overseers of the poor, commissioners of high- ways,* and constables, shall be chosen by ballot. So are the justices of the peace. Chap. 356, Laws of 1829; chap. 270, Laws of 1833, and §§ 940-5, post . Also two inspectors of election, § 175, cmie. One inspector is * Commissioners and inspectors of common schools omitted ; those offices having been abolished. The present school commissioners are elected at the general elections. 776 Supervisors' Manual. appointed by the presiding officers, § 175, amte. A commissioner of excise, chap. 444, Laws of 1874. Id., § 2. § 928. All other town officers shall be chosen either 1. By ballot, 2. By ayes and noes, or, 3. By the rising or the dividing of the electors, As the meeting may determine. Id., § a. § 929. Contents of Ballot.— When the electors vote by ballot, all the officers voted for shall be named in one ballot, which shall contain written or printed, or partly written and partly printed, the names of the persons voted for, and the offices to which such persons are intended to be chosen, and shall be dehvered to the pre- siding officers so folded as to conceal the contents. Id., §4. § 930. Poll Iiist.— When the election is by ballot, a poll list shall be kept by the clerk of the meeting, on which shall be entered the name of each person whose vote shall be received. Id., § 5. §931. Box. — When the election is by ballot, the presiding officers shall deposit the ballots in a box to be constructed, kept and disposed of, as near as may be, in the manner prescribed in the fourth title of chapter 6 of this act. Id., §6. § 932. Canvass. — At the close of the polls at any town meeting, the canvassers may determine whether the canvass of the votes shall then be had, or postponed until the next day ; if they determine that the canvass shall then be commenced upon, the same may be continued after sundown ; but it shall be had publicly at the place where the meeting was held, and the result shall be read by the clerk to the persons there assembled ; and such reading shall be held notice of the election to all persons whose names are on the poll lifit as voters. And no canvass heretofore had shall be deemed illegal in consequence of its having been had after sundown. Chap. 289, Laws of 1830, § 2. § 933. Canvass. — At the close of every election by ballot, Town Meetings. 777 the presiding officers shall proceed publicly to canvass the votes ; which canvass, when commenced, shall be continued without ad- journment or interruption until the same be completed. Part 1, chap. 11, tit. 3, art. 1, § T, B. S, (1 R. S. 816), § 934. CanvaiSS. — Before the ballots are opened they shall be counted and compared with the poll list, and the like proceed- ings shall be had as to ballots folded together, and as to difEerences in number, as are prescribed in the fourth title of the sixth chapter of this act. Id., 8 8. § 935. Canvass — Statement of Result.— The canvass being completed, a statement of the result shall be entered at length by the clerk of the meeting, in the minutes of its proceed- ings to be kept by him, as before required, which shall be publicly read by him to the meeting ; and such reading shall be deemed notice of the result of such election to every person whose name shall have been entered on the poll list as a voter. Id., § 9. § 936. Notice to Persons Elected.— The clerk of every town meeting, within ten days thereafter, shall transmit to each person elected to any town office, whose name shall not have been entered on the poll list as a voter, a notice of his election. Id., §10. Electors, Wlio are.— See § 6, ante. §937. Election of Justices of the Peace.— There shall be four justices of the peace in each town, divided into four classes, one of whom shall be annually elected in the manner prescribed in chapter 6 of this act. Each justice hereafter chosen shall hold his office for four years, except when elected to fill a va- cancy, or on the erection of a new town as hereinafter prescribed ; and may be removed by the judges of the county courts. 1 E. S. 358, § 85. Some towns are allowed a different number of justices by special laws. § 938. Where More than One is Elected.— In case more than one justice of the peace shall be elected in any town at the same election, their terms of office shall be determined 98 778 SupEKVisoKS' Mam-ual. by lot, within twelve days after their election, in the manner now provided by law. Chap. 290, Laws of 1830, § 2; 1 R. S. 811. See next six sections. § 939. ClaiSSificaition. — When two or more persons shall be elected to the office of justice of the peace at any annual town meeting, the_one of whom shall be an incumbent of the office for a term not then expired, such incumbent shall be deemed elected for the regular term of four years, which wiU commence on the first day of January next following such election. Chap. 270, Laws of 1883, § 1 ; 1 R. S. 811. § 940. Ballots, tio-w to be Written — When at any such town meeting, except the first election in a new town, two or more persons are to be elected to the office of justice of the peace, it shall be lawful for each of the electors not voting for a person who may then be an incumbent of the office, to designate on his bal- lot the person intended for the regular term of four years, which will commence on the first day of January then next following, by the words, or words and figures, " longest term," " four years," or " 4 years ; " and the persons having the greatest number of votes, without any reference to such designation, shall be deemed duly elected. Id., s 2. § 941. Who Deemed Elected for Four Years. — The person elected and having the greatest number of such desig- nations, shall be deemed elected for the regular term of four years. Id., § 8. § 942. Duty of Presiding Officers.— The presiding officer or officers at any annual town meeting at which justices of the peace shall be elected, shall determine whether any, and what person in pursuance of the foregoing sections, lias been elected for the regular term of four years ; which determination shall be made at the same time, and with the like force and effect, as he or they may determine what persons are elected to the office of justice of the peace ; and such determination shall be entered in the minutes of the proceedings of the meeting, and shall be publicly read, and shall be deemed notice of the result, in the same manner as is now provided by law in relation to the canvass. Id., §4. Town Meetin-gs. 779 §943> Determination by Lot. — Where no person shall be elected for the regular terra of four years in pursuance of either of the preceding sections, the classes of all the persons elected to the office of justice of the peace, at any such annual town meet- ing, shall be determined by lot within the time and in the manner now prescribed by law. Id., §5; see §945. §944. VaiCaincies. — Where one person shall have been elected for the regular term in pursuance of the foregoing provisions, the other person or persons elected justices of the peace shall be deemed elected to fill the existing vacancies or vacancy ; and in case of more than one existing vacancy, the classes of the persons elected to fill the same shall be determined by lot, within the time and in the manner now prescribed by law. Id., §6. §945. Ho-w Determined by Lot.— After the elec- tion of justices, the supervisor thereof shall, within six days after the completion of the canvass by the canvassers, give notice, in writing, to the justices elected and to the town clerk, of the time and place where he will meet them, to determine by lot the classes of such justices; which notices shall be served at least six days, and not more than twelve, previous to the time appointed therein for such meeting. 1 K. S. 359, §39. At the time and place so appointed, the supervisor and town clerk shall cause to be written on separate pieces of paper, as near alike- as may be, the numbers, one, two, three, four, if there shall have- been four justices elected, and shall cause them to be rolled up as nearly alike as may be, and deposited in a box. The persons elected justices shall severally draw one of the said pieces of paper, and shall be classed according to the number written on the paper so drawn by him, and shall hold his office for such number of years, either one, two, three or four as shall correspond with such number so drawn. Id., § 40. If less than four justices shall have been chosen, then ballots shall be prepared as above directed, with numbers written thereon, to cor- respond with the numbers of the classes which shall be vacant, and each person elected shall in like manner proceed to draw one of the •^80 Supervisors' Manual. ^aid ballots, and shall be classed according to the number so written on the ballot drawn by him, and shall hold his office according to such number. Id., § 41. If any person elected a justice shall neglect to attend to such drawing, the supervisor shall draw for him. If the supervisor be absent from his town, or unable to serve, or his oiEce be vacant, the town clerk shall give the notice herein required, and perform the duties enjoined on such supervisor. Id., §42. Duplicate certificates of such drawing, and of the result thereof, shall be made and certified by the supervisor and town clerk, or such one of them as shall attend the same, one of which shall be filed with the town clerk, and the other with the county clerk, and shall be re- corded by the said clerks in the books in which the canvasses of votes shall have been recorded ; and shall be conclusive evidence of the respective classes to which the persons so elected justices belong. Id., $48; see Id., §46. § 946. Officers to be Chosen. — There shall be chosen at the annual town meeting in each town one super- visor, one town clerk, one assessor, one collector, one or two overseers of the poor, one, two, or three commissioners of high- ways, and not more than five constables ; but nothing herein con- tained shall prevent the election, at such town meeting, of any greater number of the officers respectively herein specified, or of any officer not herein specified, where the power to elect such greater number, or such other officer or officers, has hitherto been conferred by any statute other than the section hereby amended, nor shall any thing herein contained authorize the election of overseers of the poor in any towns in the counties of Kichmond or Kings. 1 B. S., S S, as amended by chap. 30, Laws of 1866. As to justices of the peace, see § 937; also two inspectors ot election, see § 175, ^nte ; one commissioner of excise, (Chap. 4.4A, Laws 1874.) Town Meeting — Poweeb of. § 947. PoTrers of Annual To-wn IHeetinga Under tlie Revised Statutes.— The electors of each town shall have power at their annual town meeting : 1. To determine what number of assessors, constables and pound- masters shall be chosen in such town for the then ensuing year. Town Meetings. 781 2. To elect such town officers as may be required to be chosen.* 4. To direct the institution or defense of suits at law or in equity in all controversies between such town and corporations, individuals or other towns. 5. To direct such sum to be raised, in snch town for prosecuting or defending such suits as they may deem necessary. 6. To take measures and give directions for the exercise of their corporate powers. 7. To make snch provisions and allow such rewards for the de- struction of noxious weeds as they may deem necessary, and to raise money therefor. 8. To establish and maintain pounds at such places within such town as may be convenient. . 9. To establish the compensation of the fence-viewers.f 10. To make, from time to time, such prudential rules and regu- lations as they may think proper, for the better improving of all lands owned by such town in its corporate capacity, whether coni- mons or otherwise; for maintaining and amending partition or other fences around the same, or any part thereof, and circular fences for their lands, gardens, orchards and meadows ; for protecting such, lands from any trespass, and for directing the time and manner of using the same. 11. To make the hke rules and regulations for ascertaining the sufficiency of all fences in such town ; for determining the times and manner in which cattle, horses or sheep shall be permitted to go at large on highways, and for impounding animals. 12. To impose such penalties on persons offending against any rule or regulation established by such town, excepting snch as relate to the keeping and maintaining of fences, as they may think proper ; not exceeding $12.50 for each offense ; and, 13. To apply such penalties, when recovered, in such manner as they may think most conducive to the interests of such town. IB. S. 808-9, §5. § 948. Additional Pcwers.— In addition to the powers above specified, the electors of each town, bound to support its own poor, shall have power, at their annual town meeting, to direct such sum to be raised in such town for the support of the poor for the ♦ Subd 8 as to moneys for schools, was repealed by Laws of 1851, chap. 151. t Part of subd 9 is omitted ; it provides for the compensation of certain school officers, which offices have been abolished long since; and the pay of collector, which is in conflict with Laws of 1845, chap. 180. "^sa SupEEvisoEs' Manual, ensuing year as they may deem necessary. And every town may raise any money that may be necessary to defray any charges that may exist against the overseers of the poor of such town. Id., § 6. Orders, Etc., to Stand, Etc., till Duly CilXBiHge€i, — Every order or direction and all rules and regulations, made by any town meeting, shall remain in force until the same shall be altered or repealed at some subsequent town meeting. Id., §9. Money not to be Voted After 2 P. M.— See law in full, § 916, ante. § 949. Votes to Expend Over $500 to be by Sallot. — All votes in town meetings authorizing the raising of money or incurring any town liability exceeding $50p, shall be by ballot. Chap, 122, Laws of 1883, § 1. Town Clerk to Give Five Days' Notice of Proposed Appropriation.— The town clerk, at the ex- pense of the town, shall give five days' notice, posted in five con- spicuous places in town, of any proposed appropriation or tax for the raising or borrowing of money, and shall provide a ballot-box or boxes labeled " appropriation," and furnish for the use of the electors ballots on which shall be written or printed " for appropri- ation," or "against appropriation." Id., § 2, as amended bj Laws of 1885, chap. 82. May Determine Number of: § 950. Overseers of tbe Poor.— The electors of each town shall have the power, at their annual town meeting, to deter- mine whether they will choose one or two overseers of the poor, and the number determined upon shall be the number to be elected. But nothing in this section shall apply to the counties of Mont- gomery or Kings. Part of § 1, chap. 180, Laws of 1845. Not applicable to MoDtgomery or Kings coanties. §951. Commissioners of Hi^hTrays.— The elec- tors of each town shall have power, at their annual town meeting, to determine by resolution whether there shall be chosen one or TowH- Mebtistgs. 783 three highway commissioners, and the number so determined upon shall be balloted for and chosen ; and, if only one shall be deter- mined upon and chosen, he shall possess all the powers and discharge all the duties of commissioners of highways as prescribed by law, and shall hold his office for one year. And whenever three commis- sioners shall be chosen in any town, they shall be divided by lot by the canvassers, upon the result of the canvass, into three classes, to be numbered one, two and three ; the term of office for the first class shall be one year, of the second, two, and of the third, three ; and one commissioner only shall thereafter annually be elected in such town, who shall hold his office for three years, and until a successor shall be duly elected or appointed ; but in case any commissioner shall be elected to fill a vacancy, he shall hold the office only for the unex- pired term which shall have become vacant ; and if two vacancies shall be required to be filled, the canvassers shall, after the canvass, determine by lot, as aforesaid, the terms they shall respectively hold, and when any vacancy shall happen by death, removal, resignation, neglect to qualify or refusal to serve, it shall be supplied until the next succeeding annual town meeting by an appointment in writing, under the hands of any three justices of the peace, or two justices and the supervisor of the town ; and every commissioner of highways shall be authorized to administer oaths to any witnesses or juries, in proceedings which may be had by or before them ; and whenever any town shall have determined upon having three commissioners, and shall desire to return two or have but one, such town shall have the power so to do by a resolution taken at an annual town meeting, and when such resolution shall have been adopted, no other commis- sioner shall be elected or appointed, until the term or terms of those in office at the time of adopting such resolution shall expire or be- come vacant ; and they shall have power to act until their terms shall severally become vacant or expire, as fuUy as if the three continued in office. Id., I 2, as amended by chap. 455, Laws of 1847. §952. Boards of To-wn Auditors.— Such boards may be elected, if the electors so determine. See law in full, § 447. §953. Pounds. — Whenever the inhabitants of any town shall determine, at an annual town meeting, to erect one or more pounds therein, and whenever a pound shall now be erected in any town, the same shall be kept under the care and direction of such 784 St7PEBvisoBs' Manual. pound-master as shall be chosen or appointed for that purpose. The inhabitants of any town may, at any annual town meeting, discon- tinue any pounds therein. IR. S. 841, §1. § 954. Assessors— Classification of Asses- sors—Term, Etc.— There shall be elected at the next annual town meeting, three assessors in each town, who shall be classified as commissioners of highways are by the second section of this act required to be ; and one assessor shall annually thereafter be elected for the terra of three years ; and all of the provisions of said second section, relative to the classification, term of office and filling vacan- cies of three highway commissioners shall apply to such assessors. Chap. 180, Laws of 1845, § i. § 955. Lock-TTps — Electors May Direct Erec- tion of Lock-Ups. — The electors of each town in this State shall have power, at their annual town meeting, to direct the erec- tion of one or more houses of detention or lock-ups for the deten- tion of persons committed by the magistrates thereof, and to direct such sums to be raised in such town by tax for the expense of build- ing or maintaining the same, as they may deem necessary. Chap. 518, Laws of 1872, § 1. Lock-Ups, for -what Purpose to be Used.— Said houses of detention or lock-ups may be used for the purpose of keeping and confining all persons temporarily arrested by any con- stable or officer in said towns or committed by any magistrate of said towns, and may be used for keeping and confining any and all per- sons arrested or committed for any crime in said towns the same as in any county jail, except that no person shall be confined therein after the final commitment, to serve out any sentence of the court, after he shall be found guilty of any offense. Id., § 2. § 956. As to To-wn-Houses.— See law in full, § 149, anie. § 957. Burial Grounds. — 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 burying ground, for the space of four- teen years next and immediately before this title shall take effect, shall be deemed to be vested in such town, and shall be subject in Town Meetings. 785 the same manner as otlier corporate property of towns, to the gov- ernment and direction of the electors in town meeting. IR. S. 854, §1. Electors May Choose Trustees.— The electors of each town in the State of New York shall have power, at any annual town meeting, to choose three or five persons to act as a board of trustees of any burying ground or btirying grounds, within the lim- its of and belonging to the town, as said electors may designate ; and to authorize and direct the supervisor of the town to convey by deed to the said board of trustees and their successors in ofiBce, for the pur- poses hereinafter mentioned, the lands already composing such ground or grounds, and also any other lands that may be hereafter acquired for the purpose of enlarging such ground or grounds. The said electors shall also have the power, as aforesaid, to fill any vacancies that may occur in the said board of trustees. Chap. 46, Laws of 1873, § 1 ; 1 R. S. Not to Affect Certain Burial Grounds.— Noth- ing contained in this act shall affect any rural cemetery association nor any burying ground for which a special act of the legislature has made provisions inconsistent with the provisions of this act. Id., §8. § 958. As to Powers for Borrowing Money, Issuing Bonds, Etc. See chap. XV, §§ 876-880. § 959. As to Powers, Etc., Relating to Bonds Issued in Aid of Railroads. See id., §§ 881-7. § 960. As to Powers, Etc., Relative to Moneys for Roads and Bridges. See cliap. XIV. Ab to purchasing stone crusher and stone, see pp. 141-2, ante. Altering System op Repairing Highways. The following act on the subject of working roads, etc., is inserted in hopes that more towns will avail themselves of the right to pos- sess better roads, under more scientific and sensible management, 786 SupEBVisoEs' Manual. even though the annual " picnic," called " working on the road," is given up. § 961. Conditional Repeal.— For snch towns in this State as may wish to change the present system of working and re- pairing the highways, and adopt the privileges of this act in the manner herein provided for, article 2 and article 3 of chapter 16, title 1, part 1, of the Eevised Statutes, and all laws amending the same, are hereby repealed. Chap. 395, Laws of 1873, § 1. Votes as to Repairing Hig'li'ways.— Upon the written request of twenty-tive tax payers of any town, it shall be the duty of any justices of the peace, or other officers who preside at the town election of any snch town, to submit to the electors at each annual town meeting, and the electors of any town may vote at the next regu- lar town meeting upon the question of changing the manner of working the highways. Such votes shall be by ballots, upon which shall be written or printed, respectively, " for changing the mode of working the highways," and " against changing the mode of working the highways." The ballots shall be deposited in a separate box by themselves, be counted by the inspectors of election or other officer presiding at such town election, and if a majority of the electors shall vote in favor of the proposed change, the town voting therefor may avail itself of the privileges of this act, upon causing a minute of its action to be entered by the town clerk in the town records. Id., § 2, as amended by Laws of 1875, chap. 841. Annual Tax for Highifvays.— It shall be lawful for any town voting in favor of such change to raise by tax, to be levied and collected the same as any other tax, for the repair of its h)gh-_ ways, an annual sum of money which shall be at least equivalent to one-half the value of the days' works theretofore assessed at the commutation prices ; but in any town in which there may be an in- corporated village, which forms a separate road district, and wherein the roads and streets are maintained at the expense of such village, all property within such village shall be exempt from the levy and collection of such tax for repair of the highways of such town ; and the assessors of such town are hereby required to indicate on the assessment-roll the property included in such incorporated village, in a column separate from that containing a list of the property in the town not included in such village, and shall also place on the assessment-roll the names of all persons liable to poll-tax who are not Town Mebtikgs. 787 residents of such village, and the board of supervisors are directed to levy a tax of $1 on each person liable to poll-tax as thus indicated, but this act shall not apply to assessments made for damages and charges for laying out or altering any road, or for erecting or repair- ing any bridge in such town ; nor to assessments made under the provisions of section 1 of chapter 103 of the Laws of 1858, or the acts amendatory thereof. Id., § 3, as amended by chap. 259, Laws of 1889. Amount of Tax. — The amount of such tax shall be deter- mined by the commissioner or commissioners of highways and the board of town auditors, or a majority of them, who shall certify the same to the board of supervisors the same as any other town charges. Id., § i, as amended by chao. 259, Laws of 1889. , Board of High-way Commissioiiers — Presi- dent to Receive Money — To Give Bond.— The commissioners of highways shall constitute a board to be known as " the board of highway commissioners for the town of ." *rhey shall elect one of their number president, and in the event of their failing so to do, the commissioner longest in oflBee shall be entitled to that position. The president of said board is hereby authorized to receive, and the collector of taxes is directed to pay, the moneys collected for highway purposes. Before receiving such moneys, the said president shall execute to the supervisor of the town a bond with sureties in penalty of double the sum which may come into his hands, conditioned for the faithful accounting of such moneys ; the said bonds to be approved, both as to its form and sufficiency, by the supervisor of the town. Id., §5. Section 6 is repealed. Board to Render Accounts.— At the annual meeting of the board of town audit, the said commissioners of highways shall render a detailed account of the moneys received and the manner in which they have been expended, which account must be verified by oath. Id., % 7. Commissioners to Lay Out Roads.— It shall con. tinue, as heretofore, the duty of said commissioners of highways to lay out the several roads in their town in districts, and in the appli- 788 SuFEBVisoBS' Manual. cation of the road money they shall have due regard to the interests of all sections. Id., §8. Repea tendent of the poor, the superintendents appoint the physician to the poor-hoase and audit and settle the accounts therefor. 3 E. S. 1870-1875. For services in examining and eertifyirig in reference to the insanity of any per son such sum as may be allowed by the board of supervisors. 3 R. S. 1904. For attending as a witness before the county judge, each day $ 50 For each mile traveled to place of attendance 08 Code of Civil Procedure, § 3318. The compensation of jail physician is fixed by the board of supervisors. Id., §126. PRINTER'S FEES. COUNTY CHARGE. For publishing any advertisement required by law to be published (except ses- sion laws aud except as otherwise prescribed by law) for each folio, First insertion $ 75 Each subsequent insertion 60 The compensation for printing the session laws is to be fixed by the board See § 62'!, ante. The expense of printing court calendar (Code Civil Pro., § 20), publishing res- olutions of board (Laws of 1875, chap. 482, § 6), publishing claims audited and proceedings upon equalization of assessment-roll (Laws of 1839, chap. 369) are a county charge. The compensation for printing election notices and ofiScial canvass is to be fixed by the board (Laws of 1875, chap. 482, § 7). But in the absence of any contract the printer is entitled to the compensation prescribed by law. People V. Supervisors of Cortland Co., 58 Barb. 139. RAILROAD COMMISSIONERS. For each day actually engaged in the discharge of their duties and their necessary disbursements $3 00 Laws of 1869, chap. 907 ; 1 R. S. 873. A town charge. SCHOOL COMMISSIONERS. Annual salary f 1 , 000 00 The board of supervisors may increase this. Laws of 1885, chap. 840, § 5 ; amending Laws of 1864, chap. 555. The sum of $200 00 per year to each commissioner to be assessed upon'the towns comprising his district. Laws of 1864, chap. 555, § 9 ; 2 B. S. 1145. 37i 10 00 50 3 00 3 00 Digest of Fees. 805 SEALER OP WEIGHTS AND MEASURES. For sealing and marking every beam. $ 10 For sealing and marking measures of extension at the rate, per yard, of 10 Not to exceed for any one measure 50 For sealing and marking every weight 05 For sealing and marking liquid and dry measures for each measure . . 10 For making weight and measures conform to the standards in his possession, a reasonable compensation. 2 R. S. 1848-9, § 27. SHERIFF'S FEES. For every person eoTnmittedio jail For every person discha/rged from Jail ¥oT sumnuming grand jury For notifying constables to attend a court, each. ... For attending term of court, which he is required by law to attend, each day To a deputy sheriff for attending court of record, pursuant to notice from the sheriff, per day (except Erie county which is $3) and mileage same as jurors. For giving notice of any general or special election to all officers to whom he is required by law to notify, for each town or ward 1 00 For attending before an officer to surrender a prisoner or receive pris- oners surrendered, in exoneration of his bail, including all services upon such surrender For attending a view each day For traveling, going and returning, each mile For bringing up a prisoner upon wHt of habeas corpus For traveling to and from jail, each mile For bringing up prisoners upon any other than writ of habeas corpus For attending the court or judge thereon, each day For taking defendant into custody on a mittimus For every mile traveled in taking prisoner to JaU, going and returning. Serving a stibpcena for each witness Mileage thereon going and returning For serving warrant in criminal case (if an arrest is made) Mileage thereon (if an arrest is made), going and returning (Actual and necessary expenses in addition to the last four items.) For any services which may be rendered by a constable, other than those above, same fees as constables are allowed. See "Fees of Constables." ' 8 R. S. 2579, § 11 ; Code Civ. Pro. 3807. No charge for issuing or serving any subpoena in a criminal case or proceeding on behalf of a defendant shall be allowed. Laws of 1845, chap. 180, § 18; 8 R. S. 2548. The fees paid by him to the county clerk for drawing grand juries, and his owq fees for attending such drawing of grand juries are a county charge. Lawa of IS.Sl, chap. 820. In all cases in which a specific compensation for any services is not provided by law, the officer or person presenting an account therefor shall also exhibit in writing a just and true statement of the time actually and necessarily devoted to the per- formance of such services. 2R. S. 978, § 2. 1 00 3 00 08 1 50 13 I 1 50 1 00 25 10 25 05 75 10 806 Supervisors' Makual. For the following services required by various statutes, the compensation is in the discretion of the board of supervisors. For attending upon the drawing of a grand and petit jury. 3 R. S. 2559, § 16. For board and care of prisoners in jail. 2R. S. 978, §3. *For execution of the death penalty. For summoning county officers, physicians and jury to witness execution of death penalty. For necessary expenses of execution. For conveying prisoners, etc. See ante, p. 360; 3 R. S. 2633. All convicts sentenced to the same State prison or house of refuge, at one ses- sion of the court, are to be transported at the same time, unless the court shall expressly direct otherwise . Laws of I84r, chap. 497, § 5; 3 R. S. 2583. Whenever a sheriff shall be required by any statutory provision to perform any service in behalf of the people of this State, and for their benefit, which shall not be made chargeable by law to his county, or to some officer or other person, his account {or such services shall be audited by the comptroller and be paid out of the treasury. 2 R. S. 967, § 76. Statb Chabges. For conveying one convict to a State prison or penitentiary, from county jail, for each mile actually traveled $ 20 For conveying two convicts, for each mile traveled 35 For three convicts, for each mile 40 For four or more convicts, for each mile for each convict 13 For maintenance of each convict on the way thereto, per day ........ 1 00 But not exceeding for every thirty miles travel, in full of all charges and expenses in the premises 1 00 a R. S. 2587. ■ ~ STENOGRAPHER. See ante, "County Charges." SUPEBVISORS. TOWN CHARGES. For each day's service performed except when attending the board of supervisors $2 00 1 R. S. 839. For services in alteration of school district, per day (a town charge). 1 50 2 R. S. 1157, § 5. Mileage for all necessary travel in the discharge of his official duties, per mile 08 2R. S. 983, 810. * For execution of the death penalty of a convict in the State prison or State reformatory for a crime committed during his imprisonment the expenses are a State charge. Laws of 1883, chap. 389. Digest of Pees. 807 There is no fixed compensation for approving and filing collector's bond, and there has been none sinCe the act of 1876, chapter 257, was amended by the Laws of 1881, chapter 97. The allowance to be given is governed by the law given above (1 E. S. 839) at a reasonable compensation per day and mileage. COUMTT CHARGES. For servie&i, except in New York, Albany, Rensselaer, Kings, Oneida, Erie, Columbia, Onondaga, Richmond, Schenectady, Oswego and Allegany counties, attending the sessions of the board of supervisors each day, including the whole twenty-four hours $3 00 Copying the assessment-roll, including the extension of the tax to be delivered to the collector, each written line: For first one hundred lines 03 For second two hundred lines. 03 For each line in excess of three hundred 01 Mileage, per mile, for once going and returning from his residence, to the place where sessions of the board shall be held 08 Actual expenses incurred in any investigation or other duty lawfully committed "to him by the board and which shall require his attendance at any place away from where he shall reside, and five miles or more distant from the place where Ihe board shall hold its sessions . Laws of 1875, chap. 482, § 8, as amended by Laws of 1886, chap, 63. See " Digest Decisions." a,s to Laws of 1875, chap. 483, § 8. In the counties named above there are local acts on the subject. COUNTY CANVASSERS. It is the practice to pay each supervisor for Each day's attendance $3 00 Mileage, once going and returning, per mile 08 £ach assessor per day , 3 00 1 E. S. 889. In HoMhins v. Mayor, 64 N. T. 18, it was held that the board of canvassers, although composed of town ofiBcers, do not meet as such or to perform duties ex- -clusively relating to town or county matters, but meet as a distinct board for a special service. Whenever services have been rendered which are beneficial to a county, and no specific compensation is provided by law, they may be deemed contingent charges, of the allowance of which the supervisors are the sole judge. People, ffiB rel. MoSpedon, v. Haws, 12 Abb. 204 ; Brady v. Supervisora, 2 Sandf. 472; affirmed, 10 N. Y. 260. There seems to be no specific amount fixed for such services. The services are not "for the town," nor "at the anmuU session" of the board ■of supervisors. The duty is required by statute, therefore it should be paid for; it is for the benefit of the county, therefore a proper " contingent " charge, to be audited at ■a "reasonable" sum. MEETING 01" THE STATE ASSESSORS WITH THE SUPERVISORS AND ASSESSORS. The State assessors are required to visit every county, at least once in two years, and empowered to swear witnesses and examine all persons deemed necessary in ■the discharge of duties. The town officers are required to furnish them all in- 808 Supervisors' Manual. fonnation belonging to or connected with their respective offices. The meeting is called, not to determine the valuation of the tovms, but of the county, as a whole, compared with other counties. The expense would seem, therefore, to be a county charge, not a town charge. If the assessors receive an annual salary " in lieu of all other compensation," they would not be entitled to extra pay/ron» the town, at any rate. The supervisor of the town is generally invited to attend this meeting. For what reason he is so invited, it is difficult to see. He does not assess the property; has nothing to do with the assessment, and has no more knowledge or information of the subject than any other citizen, and ought not to be required to attend. The assessors have the information, assess the property and are the ones best qualified to enlighten the State officers on this subject, and they can then receive from such officers such suggestions and instructions as are necessary for them to act upon. TOWN CLERK'S FEES. TOWN CHAKGE. For each day's actual and necessary service $2 00 Laws of 1870, chap. 242; IE. S. 839. For services in alteration of school districts, per day 1 5{^ 2R. S. 1157, §5. For each certified copy of jury list for justices of the peace 1 00 Code Civ. Pro., § 2990, as amended by chap. 505, Laws of 1889. For fees, services of county officers, see ante, under each title; also "County Charges," " Town Charges," ante. NOTE A." It is stated in the text that the board of supervisors should not audit, against any town, the fees for justices of the peace and con- stables for services in criminal cases, which are by law chargeable to any town. The reasons for this statement are contained in the fol- lowing history of the law relating to the subject. By the Bevised Statutes (1 R. S. 926, § 4, subd. 3) " the boards of supervisors had power to audit the accounts of town officers and other persons against their respective towns, and to direct the raising of such sums as may be necessary to defray the same." Under this statute, the board undoubtedly had power to audit the accounts of justices of the peace and constables ; but in 1840, by chapter 305, a board of town auditors was provided for the purpose of auditing and allowing the accounts of all charges and claims pay- able by their respective towns. This act did not take from the board of supervisors the power to audit, which they formerly possessed, but created another board having concurrent jurisdiction upon that subject. In accordance therewith, the courts have decided that where the town board have acted upon claims pi'esented to them in the first instance, the board of supervisors have no power to review or reverse their decision, but were to levy upon the town, under the general taxing power, and raise the amounts specified in the certifi- cate of the town board. IHill, 199; 98 N. Y. 222. By the Laws of 1846, chapter 180, the fees for officers for crim- inal proceedings were to be paid by the several towns or cities wherein the offense shall have been committed, and the board of su- pervisors " shall assess such fees and accounts upon the several towns designated by such accounts." In 1860, chapter 58, exclusive power was given to the board of town auditors to audit the accounts of jus- tices of the peace and constables for fees in these cases, and the amount therefor was to be included in their certificate and " assessed by the board of supervisors upon such town in the same manner as 102 810 Supervisors' Manual. other town charges are now assessed and collected," and all acts and parts of acts inconsistent with this act were thereby repealed. This deprived the board of supervisors of their power to audit these classes of accounts. In 1866, by chapter 832, the act of 1860 was amended so that the power of the town board to audit these accounts was retained, but the right was given to appeal from such audit and allowance to the board of supervisors, who there'wpon had power to audit and allow such bills. This did not restore the power to the board of supervisors to audit these accounts, except on appeal as prescribed. As to constables, the law has not been changed from that day to this ; therefore, as to constables, the board of supervisors have no power to audit their claims except on appeal duly brought. As to justices of the peace, the Laws of 1869, chapter 855, pre- scribed that " no board of town auditors shall audit a service bill for any member of such town board ; " and the accounts of members of the board of town auditors for services " shall be audited by the boai'd of supervisors." As the justices of the peace were members of the town board, while this law was in existence the town board could not audit the accounts of justices, but the same were to be audited by the board of supervisors; this act, however, did not repeal any prior laws relating to the subject, and in 1871, chapter 274, the act of 1869 was amended and reads as it is now printed in full in the statutes, a/nte. See Laws of 1869, chap. 8S5, 9 6. By these acts the town board act upon the accounts of justices of the peace according to the provisions of the law of 1860, as amended m 1866 ; an appeal was given, to the board of supervisors, and the said supervisors shall thereupon audit the accounts of such justice of the peace, and their decision in the auditing and allowing of said accounts shall be final. It will be seen from the above that the town board have the right to audit the accounts of justices of the peace, and that the only right that boards of supervisors have to audit these accounts is when they are properly brought to them upon appeal. INDEX. [The references are to the pages. See the headings to each chapter.] ABSTRACTS: pace. of account for support of the poor to be given clerk of board of super- visors 48,365 by whom made 48 , 365 and when 48,365 of report of agent of non-resident creditor to be sent to assessors, 330 by whom made 330 of town audits to be delivered to clerk of board 396 form of 396 to be published 396, 545 ACCOUNTS: altering, falsifying, concealing or destroying of, penalty for 1 how supervisor to keep 38-38 form for keeping 30-33 town auditors to certify. 38 when supervisor to account 33 , 363 by supervisor to be verified 38 abstract of poor, to be deli vered clerk of board 48 , 365 of school moneys to be made and delivered to town clerk. ..28-30, 50, 55 of gospel and school lots funds 53 to be delivered to successor in office 53 as to dog fund 69-77 of sheep injured by dogs 1 46, 59-77 of county treasurer with comptroller, when to be stated 394 to be presented for audit by prescribed day 348 must be itemized and verified 344 if not properly verified, to be returned for correction 345 gross amount of, cannot be arbitrarily reduced, each item must be acted on : : 345 form of (general) 354 form of (Livingston county poor law) 365, 368-9 highTvay commissioners 370 presented to board of supervisors to be numbered 398 superintendent of the poor 418-30, 590, 594 for collection, when exempt from taxation 213 (See Auditing of Accounts.) ACKNOWLEDGMENT : form of 1° (See FOKMS.) ACTIONS AND SUITS (see Mandamus) : none against county, for county charge 349, 449-54 against town to be reported to town meeting by the supervisor 51,736 process in, how served ^rci''^w under the law relating to dogs I for penalties, by supervisor °9 (See Penalties.) 813 IXDEX. ACTIONS AND SUITS — Continued. . page. on contract not made by town officers as sach 97 , by board of health 121 by comptroller against county treasurer for neglect 281, 294 to recover amount audited and paid illegally 449-53, 465 by and against county, how brought 448, 756, 761-2 controversies betvf een counties 757 defined 75& relief from erroneous or illegal assessments on lands divided by county lines 757 to determine in what counties lands are taxable , 757 how commenced ■ 757 decisions as to actions by and against county 338-54, 449-63 for damages by mobs ■ 758-61 resolution authorizing 332-43 for summary investigation of corrupt expenditures 88, 754 decisions thereon 754 for despoiling trees ■ 756 for spoliation or misappropriation of public property 762-3 ultimate disposition of proceeds 763 when may be brought before justice of the peace 761 inhabitants may be witnesses and j urors in 762 process in, how served 762 against or by towns 785-!) town may be sued or sue 735 in the name of town 736 exception thereto 736 process to be served on supervisor 736 report thereof to town meeting 736 power of town meeting thereupon 736 how action brought 735-6 and conducted 735-6 for defective highways 682-91 judgment in, a town charge 683 town may sue highway commissioners thereon 683 decisions thereon 684-91 inhabitants competent witnesses, and jurors when 736 when may be brought before justice of the peace. 736 for penalties for trespass on town lands 736 for partition of town lands 737 decisions 737-9 by and against supervisor 740-6 when may be brought 740-2 hovr brought 744 when successor may be substituted 744 may employ counsel 745 decisions thereunder 742-5 for the protection of tax payers 745-8 decisions thereunder 748-54 ADMINISTRATOR: assessment of 218, 224 ADULTERATION: of wines, penalty for 127 what is 127 AFFIDAVIT: of delivery of books, moneys, etc 26 to assessment-roll 241 when vaUd 241-2 to account , 344, 854 in supplementary proceedings for taxes 90 Index. 813 how assessed , 193-4, ige, 197, gig, 324, 3a5 contract with agents of municipal corporations hound by limitations of their authority 343, 377-80, 390,457, 465 when cannot legalize claim by acknowledgment, ratification or other- wise 343 of non-resident creditor when to report to county treasurer 328 233 penalty for not reporting .~. ! 230 committee of lunatic not taxable as !.".'!!!!.'!!.'!! 218 AGBEEMENT. (See Contkact.) AGEICULTURAL.SOCIBTY: when exempt from taxation 211 ALBANY COUNTY: auditing accounts in 438-40 chairman and clerk in 43I ALMS-HOUSE: exempt from taxation 305 ALTERATION: in accounts, books, records, penalty for 1, 3 of school districts , 54-8 of town 93-4, 468, 473 of election districts 146 of decision as to elections cannot be made 174 in assessment-rolls, confirmation of 357 ANIMALS : afflicted with glanders ISO APPEAL: from equalization 338-84 notice therefor 838, 883 proofs thereon 339 subpoena of vritnesses on 339, 838 nature of evidence on 839-30 determination of 339-30 how State assessors are to proceed on 339-31 where heard 831 dismissed when appellant fails to appear 881 effect thereof 331 costs on 331-8 rules and regulations on 333-4 by tax payer from audit of town charges 357-8, 488 when to be taken 357-8,483 notice thereof 338, 483 APPOINTMENT: corrupt bargain for 3 of forest guards 95 fire wardens 95 to office by supervisors 617-23, 638 duration of 617 commissions, how signed 618 not to be made by parol 618 power of, cannot be delegated 619 veterans to be preferred for 630 decisions thereunder 631-3 not to be removed, when 631 decisions thereunder ^^ioi of member of appointing board improper ■ . 638 &s supervisor, who are eligible 4, 5 who are ineligible ^ 5 814 IXDEX. APPOINTMENT — Continued. paob. as supervisor, when appointed 8, 9 by whom 8, 9, 10 order appointing supervisor 13 cannot be questioned collaterally 13 of town auditor 87, 359, 361 of town sealer of weights and measures 100, 581 of firemen in towns 100 of coUector 101, 103, 274-5 of inspector of election 148, 149, 150 of special highway commissioners 406-7 when and how appointed .' 466-7 district attorney 551 of assistant district attorney 553 who appoints 553 who authorizes 553 APPORTIONMENT: power of legislature over, for taxation 186-7 by school commissioner ; 64 of valuation of railroad, telegraph, telephone and pipe-line companies among school districts 66 of town property on division or alteration of town 93, 766-7 of debts between towns 93, 766-7 of State taxes 203 of county tax 466 of railroad debt on dividing town and erecting new town 474 of expense of public highway or bridge 481, 490, 507 over boundary streams 490-1, 508 of assembly districts 531 of expense of bridges between adjoining towns. (See Koads and Bridges.) committee on ratio and 643 duties of 643-7 APPROVAL: of supervisor's bond by town auditors 15, 19 by county treasurer 19 of highvray commissioner's bond 34, 37 of collector's bond 35, 87 of constable's bond 85, 37-8 of bond of justices of the peace 35, 88 of excise commissioner's bond 36, 39 of bond of overseers of poor 36, 39 of railroad commissioner's bond 15, 46 of extension of time to collector 280 by county judge, court or justice of supreme court before copying records 483 of county clerk's bond 555 of bond of superintendent of poor 588 of bond of county treasurer 558-9 of bond of district attorney 548, 549 ARBITRATION: board of supervisors may submit to 453, 536 ARMORIES: for militia to be provided by supervisors 526-9 who select 526-8 expense a county charge 538 ARMORER: how appointed 529 pay of 529 a county charge 529 must be paid as certified 539 In-dex. 815 AERBAES OF TAXES : p^ oj,. report of 283 how paid 393 ARREST: 'Warrant of, for non-delivery of books, money, etc 37 ASSAULT AND BATTERY: fees of justice in : 803 ASSESSMENT-ROLL : rejected taxes to be added to. 41, 383-3 preparation of 331-338 (See Assessment and Collection of Taxes.) deposit of, for inspection 336 notice tkereof 336-7 review and correction of, by tbe assessors 338 by the board of supervisors 348-57 when to be delivered to supervisor 340-3 his duties thereupon 344-6 to town clerk 843 notice thereof 343 oath to, by assessors. 841 when valid 341-3 when not , 241-3 duties of board of supervisors as to 348-57 of supervisor 344 committee on form of 350 report by 350 committee on footing of 250 report by 251 committee on " Erroneous Assessments " 251 powers and duties 351-7 report by 256 correcting errors in 253-7 confirming alterations in 257 extension of taxes on 261 table for extending taxes 363 collector's fees not to be added thereon 363 form of 364^9 examples of those held insufficient 366-7 as to residents 323-46 guardian, executor, trustee, etc .' 318, 234 non-residents 335-8, 253 rents and debts owing to non-residents 193, 388-9 description of railroad in 346-7, 307 for State lands in Forest preserve 191 how made when same person owrns more than one lot or farm 270 separate, disconnected pieces of land, how inserted in 370 confirming tax on, as extended on 263 delivery of, to collector 271 warrant to be annexed to 271 its contents - 272-4 cannot be amended or altered after final action thereon and warrant issued 361-3 must be complete before delivery 243, 361-3, 373 equalization 833-36 corrected roll to be delivered 323 for railroad debt when town divided 474 signing of warrant is compliance with law requiring tax-rolls to be signed by supervisors 243 original should be delivered to collector 245 defects in copy filed, not evidence of defects in original 371 $ mark not essential in 274 816 Index. ASSESSMENT AND COLLECTION OF TAXES: page. of r^ected taxes 41, 282-3 for cutting noxious weeds, brush 42, 279 of dogs 69-77 property liable to taxation 188-97 town, county, city and village bonds exempt from taxation 45 of railroad, telegraph, telephone and pipe-line companies in school districts C6 general taxation of. (See Corporations.) 85, 86 to pay town debt for railroads 85-6, 713, 719, 731-4 notice to be given collector of amount of taxes 35 levy of taxes, to pay town and county debts 46, 474, 713 warrant for collection of school taxes, how rene'wed 62-3 warrant, its contents 271-2, 275-7 for taxes, for purchase-price of land 231 form of warrant 275-7 when renewed 62-3, 101-2, 279-80, 470, 493 supplementary proceedings for 89-92 extension of time for collection on appointment of collector 101-2 power of legislature to impose taxes 186 to determine taxable persons and property 186 decisions thereunder 186-7 for local improvement 186 to apportion tax 186-7 purpose of tax, not without limit 187 cannot authorize for private purpose 187 must be for public purpose 187 land, real estate, what is 188 of plankroads and turnpikes 188, 304 lands in Forest Preserve, how taxed 191 State lands, taxation of, for local improvements 192 of corporations. (See Corporations.) on lands sold by the State 193 on personal property 193-7 on debts owing non-residents 193, 194, 225-29 residents 193 "business capital of non-residents, how assessed 194, 196 property exempt from taxation 45, 198-214 where property to be assessed 214-38 duties of assessors 221-38 assessment districts 221 inquiry to be made -. 222 time when assessment made 222 of residents 193, 195, 214-17, 218-21, 223-5 (See Assessment-Roll.) as to rents and debts owing to non-residents 228-9 agent thereof to report 230-2 debts owing for purchase of real estate taxable 239 how taxed 230-2 how collected 230-2 Tvarrant therefor 231 lien thereof 231 if sheriff neglects to return warrant, how proceed 231 proceedings, if such warrant returned unsatisfied 232 assessors not bound by statement furnished by agents of such creditor 232-3 valuation of real and personal property by assessors 232 omitted property, how valued and assessed 234-6 deposit of assessment-roll for inspection 236 notice thereof 236 " review day " 238 notice thereof 237 is essential 237, 239^0 powers of assessors on 238-40 Ikdex, 817 ASSESSMENT AND COLLECTION OF TAXES — Continued. paqe. " review day," reduction of valuation on 239-40 proceedings for , 239-40 if assessors neglect to meet on, how assessment reviewed and corrected 340 neglect of assessors, as to 244 penalty for making false statements as to tax or assessments 222 tax on land vacant by removal of occupant 246-7 duties of bozurd of supervisors as to assessment-rolls 248-77 committee on " forms of assessment-rolls " 250 report by 350 committee ou " footing of assessment-rolls " 251 report by 251 committee on " erroneous assessments " 251 duties of 251-7 report by 256 reserved rents in leases in fee 252 omitted lands in preceding year 334 to be deducted, how 334 in current year 235 correcting errors in assessment-rolls 258-7 State tax must be levied 357 refunding taxes 258-61 overcharges in non-resident taxes, how deducted by comptroller 260 may pay tax in any one year without paying that of any other year. 260 within what time 360 town liable for such overcharges 261 extension of tax on assessment-rolls 261 table for 263 collector's fees not to be added therein 263 of State lands in Forest Preserve 191, 267-9 confirming tax as extended 262 delivery of rolls to collector 271 account thereof to be transmitted to county treasurer 274 for road scraper, road machine 277 stone crusher, tax for 278 for cutting noxious weeds 279 extension of time to collect ; . . 279, 280, 470, 493 losses by certain officers, on what to be charged 280 arrears of taxes, statement of 282 how paid 282 canceling tax by comptroller for errors 284 repayment thereof 384 reassessment of tax on invalid sale for taxes 285 unpaid school tax«8, how collected 294^6 when highway tax not inrorked 396 banks and their stockholders, how taxed 310-14 notice to be given to 311 individual banker, how assessed 313 who is 314 savings banks 314 life insurance companies 315-8 fire and marine insurance companies 316 tax on premiums of fire insurance companies 317 co-operative insurance or casualty companies 315 on franchise of corporations 318 relief from erroneous or illegal assessment of lands divided by county lines ^57 $ mark, not essential in * '■* ASSESSORS: to qualify ■ 19' 331 list of, to be delivered to board of supervisors . . . • 4b to apportion valuation of railroads among school districts 6b 103 818 Index. ASSESSORS — Continued. pagj,. to list and assess dogs 69-77, 221 ■when to have survey of non-resident lands 83, 227 who to cause the same to be done 83, 227 duties as to elections 145-81 (See Elections; Board of Countt Canvassers.) duties of, as to assessment 221 (See Assessment and Collection of Taxes.) to use forms and obey instructions of comptroller as to assessments 243 instructions of comptroller 248-50, 267-9 neglect of duty by 244 pay of 794 a town charge 378, 794 duties of, when to^n divided owing railroad debt 474 number of, may be fixed by town meeting and board of supervisors, 496, 784 duties of, as water commissioners 98 ASSISTANT DISTRICT ATTORNEY: how appointed 553 who authorizes 553 payof 554 ASSOCIATIONS: list of incorporated, for comptroller 50-1, 656 ATTACHMENT: against witnesses 476, 477-80 ATTORNEY: employment of, by excise board proper 41 3 how audit account therefor v 412-4 for board of supervisors 412 pay of, a county charge 413 to assist district attorney when county charge 413 assigned by court to defend prisoner, not a county charge 413 for superintendent of poor, when county charge 413 DISTRICT. (See District Attorney.) assistant district attorney. (See Assistant District Attorney.) when supervisors may substitute 536 for supervisor in suit 745 a town charge 745 AUDITING : definition of 338 board of supervisors cannot delegate 351 no law, no fee 351 officer to keep account of fees , 351 penalty for filse audit 352 for auditing fraudulent claim 352 for extortion 352 for presenting fraudulent claim 353 neglect to audit is rejection of claim 353 may be compelled to audit by mandamus 353 ■where one board neglects to audit, subsequent one compelled so to do, 853 of accounts 337-446 practice and principles governing 388-54 powers as to, statutory and limited 838 wlien fixed by statute, as salaries, etc 388-9 when not so fixed 339-43 powers of officers in, are quasi judicial 889-43 claim not legally chargeable is void 339-43 when an improper item in, does not vitiate tax levy 340 when it does 340 how illegal item annulled 340, 465 court cannot audit 340 Ikdex. 819 AUDITING — Continued. ^^^^ how proceed, if auditors not satisfied with charges 340 can hear evidence and proof on ' [ 340 how reviewed 34J court can compel board of audit to act, but not what amount shall be audited 339-43 exception thereto , 389-43 claim for services rendered by order of county officers 341 acceptance of amount audited precludes further claim thereon 343 but not where claim presented without claimant's knowledge 344 report by officer is not presentation of claim 344 fees of county treasurer on tax sales must be audited 344 cannot audit gratuity 354 nor to get rid of claim. , 354 judgments 374-80 costs 374-80 the auditing of a claim does not make it a legal charge 343 the law fixes legal charges 342 accounts to be presented by some certain day 343 certain counties not to audit accounts not presented in time 343 exceptions thereto 343 notice to be given by clerk of board, in certain counties as to presenting county claims 343 accounts must be itemized and verified 344 unless account verified, the auditors no jurisdiction to audit 344r-5 if not properly verified, to be retiurned for correction 345 if account informal, may be amended 345 board to act on each item specifically 345 an arbitrary reduction from gross amount of account is improper 345 claim for services, statement of 845 for torts, improper 346-9 exception thereto 346 torts defined 346 rcgected, on the merits, not to be audited by other boards 349 not on the merits may be audited 350 same board can reconsider audit 850 no action lies for town or county charge 349-50 vouchers should accompany 351 board cannot delegate power to committee 351 majority of board can audit 93, 351 form of 354 how audited 355 by town board 355-97 by county board 397-428 who are to audit 355 in towns . 355-68 in counties 397-428 laws pertaining to auditing by town board 355-363 whentomeet ...856-8,362-73 auditors to make certificate 33, 356, 395, 396 duty of board of supervisors as to town audits 356, 483 account of justices of the peace in criminal cases. 356, 381, 387, 423, 434-5, 483 form of account ■ -384, 434-6 of report by • • • • 434 of overseers of the poor 3o6, o63 under Livingston county law 364 form of account • ■ • ■ 368 of highway commissioners °°°t ?'" form of account q7n 1 of colSS^:!^;;:;\\::.v;:;::v::;.v:;;;::.-;;:35d:7,-38i, m 436 of town officers who disburse and receive moneys 356-7, 362-4 statement as to such accounts 357 to be read at town meeting "O' 820 Index. AUDITING — Continued. p^gi^ appeal by tax payer from 357-8 by to\irns and counties acting under Iiaws 1875, chapter 180 358 acting under Laws 1886, cliapter 585 359-63 of supervisor 33, 363, 431 who are to audit it 363, 431 certificate as to supervisor's account 363, 431 of town charges 372-97 vaccination 374 books for chattel mortgages 374 jury Usts for justices of peace , 374 judgment and costs against town officers 374-80 under the Ontario county dog law 380 railroad aid bonds 887-9 to be canceled 387-9 town notes, so called 390 relief of indigent soldiers and sailors 893-3 lands for monument purposes 394 abstract of tow^n accounts 396 officers receiving fines or penalties to report before their accounts are audited 546-7 form of report ... 424 tow^n bonds not to be audited 389 by board of supervisors 897-438 concurrent jurisdiction to audit town charges except justices' and constables' claims 398 county charges to be presented to 397 contingent expenses may be raised in advance 397 accounts fur services 398 account to be numbered 398 of superintendent of the poor 417-20, 483, 594 of supervisor 30-8, 363, 421 form of account 431 judgment for damages by defective roads and bridges 374, 377-9, 683 or to claims therefor 346 in Albany county 438-40 Montgomery county 440-3 Bensselaer county 443-5 Saratoga county 445 county chsirges. (See Cohhtt Chabges.) AUDITOKS, BOARD OF TOWN: to prescribe bond or security of supervisor 15 and approve the same 15 certificate by, as to supervisor's account 33 accounting for gospel and school lots fund 51-3 duties on buying and canceling town bonds 45, 84, 387-9, 710 vacancy in, when supervisor to supply 87, 359, 361 duties as to roads and bridges damaged or destroyed after town meet- ing 136, 673-3 when to audit accounts thereof 137, 673-3 and issue certificate therefor 137, 673-8 form of consent to repair thereof 137, 673-3 to audit judgment for defective roads and bridges 683-91 claims therefor 346 estimate by, of expenses of town poor for coming year 865 certificate as to poor under Livingston county law 365 to audit town charges 356, 358, 360, 363-96 duties as to railroad commissioners 15-6, 387-9 town bonds 15-6, 387-9 to prescribe and approve bond of railroad commissioners 15-6, 388-9 as to levying tax to buy and cancel town bonds 45, 387-9, 710 need not audit town bonds 389 to report as to gospel and school lot funds 890 Index. 821 F^QE. AUDITORS, BOARD OF TOWN — Continued. may dispose of excess of eKcise moneys 391 certificate as to town audits 395 form of I 395 pay of 794 atowncharge 373, 794 laws relating to town auditors 355-90 (See Auditing of Accounts.) audits of, to be published 396, 545 relief of indigent soldiers, sailors, etc 392-4 acquiring lands for monument purposes 394 BALLOTS: law as to uniform , 150-1 must be on plain white paper and uniform 150 caption to , 150 unlawful to distribute other 151 defective 173 loss of 176 BANKS: taxation of ' 810-5 (See COBPOKATIONS.) stockholders of, to be taxed 313-4 duty pf , as to unpaid school taxes against stockholder ,294-5 Kst 01 stockholders to be kept by 312 non-resident stockholders of 313 to retain dividends when , 312 individual banker, how assessed 195-6, 313 who is.. 314 oath of 313 foreign banking corporation 314 savings banks, where and when assessed 814 deposits in, when assessed 314 designated as depositary for county funds to give bond to board of supervisors 560 BENEVOLENT INSTITUTIONS: what are ; 615 report of commitments to 615 what to contain 615 with whom filed 615-6 death, removal or discharge from, to be reported 616 accounts of, to be verified and delivered clerk of board 616 BIRTHS: registration of 119 BLIND: the, duties in respect to , 77-82 BOARD OF COUNTY CANVASSERS: who compose the •_ 159 are not town or county officers, but distinct and for special service 159 when and where to meet 159 duty of, in Hamilton county 159 in Fulton county 159 county clerk to be secretary ■ • • • 160 oath to be taken by 1°0, 166 quorum of 1™ if no quorum, how proceed 162 to estimate and state votes • • „ V "lan S? how stated and certified 160-,i, low-^l to determine who are elected 160 to publish the same 1°1 822 liiDEX. BOARD OF COUNTY CANVASSERS — Continued. pace. to return statements of votes to inspectors of election, if any omissions, mistakes 16^ county clerk to deliver statements to 16S and to procure returns when 16S and to record the same 16S statements to be transmitted 163, 169-70 and delivered county ofiScer elected 163, 171 list of members of assembly 164, 171 electors of president and vice-president, duties of 164 records of meeting of 165 how kept 165-7 committee on " forms of election returns " 167 committee on "footing election returns " 167 resolutions, as to canvass 170 as to officers elected 170 when to order special election 171 notice for special election 172 powers of 172-7 may be compelled by court to correct errors in determination 177 practice therefor 181' decisions as to 172-7 BOARD OF HEALTH. (See Health, Board of.) BOARD OF TOWN AUDITORS. (See Auditors, Board of.) BOARD OF SUPERVISORS (see County): may lease county building to G. A. R 100 duties of, as to assessment-rolls 248-821 powers of a county as a body corporate 447-0 to be exercised by the board of supervisors 448 limitation of its corporate powers 448 proceedings by or against county, in the name of 448 effect of division on county lands . . .• 448 on personal property 448 on county debts 449 no action for a county charge 449, 451 power to audit county charges exclusive of all other authority 449 cannot audit claims for torts .346-9, 449 acting without jurisdiction, void vii, viii, 888-53, 449, 450 can be sued for illegal tax collected and paid into county treasury 450 can sue to recover moneys fraudulently drawn from county treasury.. . 450 when county treasurer not agent of county 450 may compromise suits 453 arbitrate claim 452 no power to borrow money unless given by statute 452 may acquire property 453. by bequest 453 by voluntary grant, gift or devise 453 on tax sale 453. by statute 453 lease real estate 454 cannot make bills of exchange 338 nor ratify illegal act 343 nor furnish dinner at public expense 393 resolution of, authorizing suit 332, 343 what is not ratification by, of void contract 457 to warrant suit against, there must be some duty of the county 449 not liable for defscalt or neglect of county officers 451 who compose the board 463, 633 annual meeting of 463, 623 how fixed 463, 467 vote required 623 Index. 833 BOARD OF SUPERVISORS — Continued. p^o^, special meeting of 4g3 ^Qrj how called ; ".'.'.'.'.'.. . '. 467 meetings to be public " " 4g3 quorum ...."!.'.'.".'.'.'.".'.'.'.'.".".'.' 463 organization of 623-34 clerk prepares roll ... 624 former clerk calls to order 624 in case of contested seat, how act 625 officers chosen at 624r-7 chairman ..463, 624 in Kings county 626 in Erie county 626 in Albany county 431 in Rensselaer county , 443 clerk 4641626 term of office of 626 Erie county 626 Albany county 43I Rensselaer county 443 Kings county 626 reading clerk 627 janitor 637 to prescribe rules of order 627 first code of 628 second code '. 629 must be in accordance with law 627 power to determine who are members of 628 may reconsider questions 627 standing committees 684 how to exercise powers 460, 461-8 by resolution 460, 461-3 powers of vii, ix, 454 cannot be delegated 454^60 when may , . . .454-60 act only by resolution 460 illegal condition in, void '. 458, 460 to be entered on records 460 limited by statute vii, viii, 454, 460 jurisdiction defined vii, viii, 454 (See JUEIBDICTION.) neglect by, penalty for 454, 465 cannot bind county by act not delegated by law • 449-61 nor act upon their notions of what the law ought to be 45, 454 nor allow claim on their notions as to its equity 454 cannot delegate their powers to a committee or other persons 257, 261-2, 334, 842, 351, 402-8, 455-60 quorum of 463 annual and special meeting 465, 467 powers of, under Revised Statutes 463-5 chairman of 463 clerk of 464 his pay 404 books and records of 464 general statutes pertaining to 463-512 statement of county assessment to be sent by comptroller to 257, 518 also amount of State tax 257, 513 such amount must be levied and collected 238, 513 if not, mandamus lies 258, 513 to repair and erect court-house and jails 464, 466, 469, 489 to prepare solitary cells in jail 464 to repair bridges. (See Roads and Bkidobs.) to apportion county tax 466 when to appoint special commissioners of highways 466-7 pay therefor 467 824 Index. BOARD OP SUPEBVISOES — Continued. page. to levy taxes for roads and bridges voted by town meeting 466, 469 notice therefor 466 to be published 467 to publish list of claimants and accounts audited 467 when may divide and alter and erect new towns , 468, 474 vote required 468 limitation on 468 how application made 468 map and survey on 468 to be filed 468 apportion debts on 474 to name new town 468 to appoint officers to preside at town meeting in new town 468 to buy lands for poor-house 469 to sell and lease county lands 469 to levy tax for county buildings 469 or borrow money therefor 469 may extend time for collection of taxes 470-93 may enact laws for destruction of wild beasts, thistles and noxious weeds 470 to prevent injury to sheep, game and fish 470, 494 may require county officer to report 470 may fix, locate and define disputed town boundaries 470 notice therefor 470 how so fixed 470 and refund taxes paid while line in dispute 471 every resolution to be signed and recorded, when 471 may adopt seal 475 records of, when evidence 475 may summon witnesses, books and papers 475, 477-80 how proceed 475 duty of sherifi" 476 power of committee 476, 477-80 when adjourn during examination 476 bond of witness 476 can contract only through authorized agents 843 cannot legalize illegal claim by acknowledgment, ratification or other- wise 342 may employ counsel 343 mayauthorize towns to borrow money for roads and bridges. .480-1, 491, 497 (See Roads and Bridgbs.) partly in,viUages 484 application of town officers therefor 480-1, 491 to prescribe form of obligation therefor 480, 499 certificate to be indorsed thereon 481, 498 to ]evy tax therefor 481, 491 borrowing money by 481, 489 vote req aired 498 resolution therefor 498 (See Committee on Legislation.) security required 498 to prescribe form of obligation 480-1, 499 powers of, as to soldiers' monuments, voted by towns 483, 509 or county 483, 509 vote required 483 moneys, how expended 483 may stay further expenditure 483 informal action of town meeting, how legalized and corrected . . . 482, 587 also manifest errors 353-7, 483, 537 to have charge of books and records 483, 556 to authorize copies thereof 488 expense thereof, how certified 483 by whom to be approved 483 Index. 835 BOARD OF SUPERVISORS — Continued. p..^ PAGE. to audit accounts of superintendent of poor and subordinate county officers. 483, 510 594 prescribe form for 510 powers of, Queens county !...'.'!.' 484 may contract with sheriff for support of prisoners on civil process. 488] 573 not in Kings or Monroe counties 488 may purchase real estate for court-houses, clerk's office and oilier b'uildl ings 447,453^, 489 and issue bonds therefor 489 limit thereto 4y9 may change location of such buildings 489 how changed 509 may fix salaries of certain county officers, and number of clerhs and employees , 500-2 may change location of bridges, when 490, 665 (See Roads and Bridges.) fix tolls 490, 665 joint action of boards thereon 490, 665 in case of destruction of bridges, may repair 490, 665 purchase rights of corporation in 490, 665 prescribe weight to be carried ou , 490, 666 apportion expense of 490-9, 665, 695 county's share of bridge over boundary stream. . . 491, 503, 665, 668 town's share to be apportioned 491 may authorize towns to purchas eplank roads, turnpikes, bridges, etc. 493, 664 may consolidate road districts 493, 696 and manner of collecting taxes thereon 493, 696 ■when may authorize grade of streets 493, 503, 671 petition therefor 493, 671 notice to be published 493, 671 town officers not to receive pay therein 492-8, 673 to prescribe width of highways 493, 503, 697 may authorize survey and record of highways in towns 493, 503, 698 and monuments thereof 493, 698 effect thereof 498, 698 non-resident tax ou highways may be appropriated for improving such roads 493, 698 commissioners to be appointed, . , 493, 699 may ez:tend time for collection of taxes 493 application of penalties in towns 494 as to game and fish 470, 494, 506, 531-5 jail limits, may establish 494-5, 504 may provide for employment of prisoners 494 may authorize special town meetings 495 purchase of town and village halls 103-4, 495, 497 purchase of village fire apparatus 495, 497 and issue of bonds therefor 495 cemetery association to acquire lands 495 town to enlarge or sell cemetery 496 proceedings therein 496 election of tax receiver 496 town meeting to be held by election districts 496 may prescribe number of assessors, highway commissioners and over- seers of poor 496 may authorize towns to borrow money for certain purposes 497, 503 to levy taxes therefor 497 may authorize sale or exchange of school-house sites 497 or increase or diminish boards of trustees or education 497 or divide school conunissioners' districts 498 may establish fire districts in villages 497, 505 procure water supply therefor and fire apparatus 497 may fix time for opening and closing county offices 497 powers of, under act of 1875, how exercised 498 104 826 Index. BOARD OF SUPERVISORS — Continued. page. powers of, etc. , vote required 498 resolutions thereunder 493 form of 498 to be published 498, 645 fees therefor 498 copies to be filed 498 what to contain 498 to require security when bonds are issued 498 form of obligation to be prescribed 499 when statute law conflicts with supervisors' enactments, eflfeot of . ... 499 to determine contested membership .499, 506 to make rules •. 499 and prescribe penalties for violation thereof 499 to select paper to publish election notices and ofScial canvass 499, 543 session laws 499, 541 how selected 541-3 pay of members of 499, 506, 806 may appoint commissioners to receive and expend moneys appropriated by State for highways and bridges 507 laying out highways through unoccupied and unimproved land .... 507, 698 when exercised 507 may appoint commissioners therefor 507 with power to borrow therefor 507 may authorize highway commissioner to alter, discontinue, widen or narrow highways laid out by the State 503 duties of, in relation to paying and refunding debts by issuing new bonds 45-6 (See Chapter XV.) levying taxes therefor 45-8 may authorize towns to lease its buildings to Grand Army Posts 510 no power to ascertain, by committee, who are railroad commissioners of town 477 no power to alter salary of surrogate 50O to prescribe regulations concerning poor accounts 510 disbursement of 510 duties of, as to grand jury 47, 514-6 list of, to be made 47, 514^6 contents of 47, 514-6 increased number of 47, 514-6 by board 47, 514-6 by judges 47, 514-6 order to be filed 47, 514r-6 who to be placed on 47, 514-8 who are exempt 47, 514-6 report of committee on 515 duties as to common schools 497-8, 516-20 may authorize sale or exchange of school-house site 497 may divide school commissioner's district .•. . . .498, 51& bat not in cities 519 may increase his salary 518 how levy tax therefor 516 to levy tax for support of schools 518 amount thereof 518 must not be omitted 516 how act if omitted 516 dissolution of union free school district 517 dissolution of consolidated districts 518 may approve the same conditionally 518 common school fund 519- as to United States deposit funds 530-6 duties as to the militia 526-30 to provide armories 526-9 who select 627 Index, 837" BOARD OP SUPERVISORS — Continued. p^o^ duties, etc. , expense of armory a county charge 526-9 armorer, janitor and engineer for armory 529 expense a county charge 539-30 enrolled militia !,".".. 530 national guard 526-30 duties of, as to assembly districts , 531 may accept donations 535 may not discriminate against inhabitants of other localities 536 may authorize appointment of assistant district attorney 553 and fix his pay 554 may employ attorneys 536 pay a county charge 536 substitute attorneys 586 may arbitrate claims 536 compromise judgment 537 to fix compensation for conveyance of juvenile delinquents and lunatics and prisoners 538 (See Fees.) soldiers, burial of deceased 538-41 headstones for 538-41 ■when county charge 538-41 no power to provide for official printing of other county officers 543 each officer receiving moneys for fines and penalties to report to . . . 424, 546 and pay to county treasurer 547 if not reported, no salary or fees of offices to be pEtid 546 suit for neglect to pay over 547 moneys may be distributed to tovrns 547 excise commissioners to report to 548 loan commissioners to report to 524 duties thereon 520-6 to fix salary of district attorney 549 to fix and approve bond of district attorney 549 district attorney to report to 552 compensation a county charge 549 may authorize appointment of assistant district attorney 553 and fix pay . . . „ 554 village water.works commissioners to report to 554 what to contain 554 county clerk to give bond 555 approval of, by • 555 to provide duplicate county seal in counties having two shire towns. . . . 556 reports of county judge to • • 554 as to county treasurer : bonds of, to 658 amount of, how fixed 558 how approved 558 new bond to be given if required by 558-9, 568 to sue bond, if required by comptroller 560 to dispose of funds received therefrom 560 as to banks receiving funds or deposits from county treasurers to give bonds to board of supervisors 560 how approved 561 does not apply to certain counties 561 to fix pay of county treasurer 561 fees of, go to the county 562-3 clerks for county treasurer • • -489, 563 must determine amount of sinking fund 565 cannot direct county treasurer not to pay drafts of superintendent of poor 563 vacancy in office of, may be filled by supervisors ^ 566 seal of county treasurer, may be provided by 566 as to surrogate : board may authorize clerk for ' 569 828 Index. BOARD OF SUPERVISORS — Continued. as to siirrogate : page. board may authorize clerk for, and fix pay. ... 569 or examiner of guardians' accounts 569 board of supervisors may apply for election of officers to discharge duties of county judge and surrogate 569 county judge to be surrogate 569 cannot fix pay of surrogate 570 or county judge : 570 to provide court-rooms, furniture, fuel, attendants and stationery., 573 not obliged to provide more than one, for any one officer 572 appointment of, by 571 compensation 571 report by 571 as to sheriffs 573-8 as to jails : to fix jail limits 494-6, 504 building and repair of 400, 413, 464, 466, 469, 489, 574 to provide solitary cells in 464, 574 disinfectants for 574 sufficient rooms for separate confinement of prisoners 675 prisoners to be kept at hard labor , 575 houses of detention ... 576 expenses of, are county charge 576 as to penitentiaries : may contract for expenses of prisoners in 576-8 notice to be given thereof 576 such contracts are valid 577-8 to prescribe fees of officers conveying prisoners to 577 to appoint jail physician and fix his pay 578 to appoint county sealer of weights and measures 581 as to roads and bridges. (See Roads and Bkidges.) as to plankroads and turnpikes. (See Roads and Bridges.) as to county railroads. (See Roads and Bridges.) as to the poor 585-603 may erect poor-house 469, 489, 585 determine number of superintendents 585 may fill vacancy in office of superintendent of poor 587 -who not eligible to be superintendent 586 term of office of 587 pay of 667 bond of superintendent of poor 568 how fixed 688 who approve 588-9 the powers of superintendents of the poor 587-94 meeting of superintendents, may be prescribed by supervisors 569 supervisors to provide funds for support of poor 593 principles governing the relations between the superintendent and the county 591-4 auditing accounts of superintendent 589-90 regulations as to accounts of superintendent 594 may regulate temporary relief 594 Warren county act 595 how supported in other counties 596-8 may abolish distinction between town and county poor 470, 695-6 notice to be given thereof 596 estimate of expense for ensuing year for 597 may direct fines and penalties to be paid over 494, 598 to whom paid 494, 598 ftiay revive distinction between town and county poor 593-6, 698 notice to be given thereof 595 children not to be kept at poor-house 599 liow disposed of 600 as to the inssuie and lunatics 603-10 Index. 829 BOARD OP SUPERVISORS — Continued. p^^j, as to the insane, to designate asjrlvun for g04 support of indigent insane 603-10 ia^iios ;..!." .'.".'!.'!.".';!."603-10 criminal insane 610-13 chronic insane paupers .'.'.'..'."."..".'.. 610 their estate liable for support !"!!'.!!!!!.'.' 608 to raise money for support of incUgent insane 605-7 compensation for conveying lunatics to be fixed by 613 when chronic insane paupers may be kept at poor-house .' 610 when not qiq idiots : support of 61g_4 when to be sent to asylum 613 expenses county charge 613 amount of g]^4 deaf-mutes, support of !!!!!77-80 blind, support of 80-3 benevolent institutions ' . '. .615-7 what are 615 reports of, to board of supervisors .' 615 as to judgments : against town or town officers 373-5 against county or cotmty officers 375-7 decisions thereunder 377-9 limitation not to apply to judgments 376 to adjust compensation of person disbursing school moneys, when 14 report of regected taxes to 41, 383 duties thereon 383-3 highway commissioner's statement as to roads and bridges to be deliv- ered to 41, 870 duty of board thereunder 41 ■ noxious weeds, duty as to 43 roads and bridges over boundary streams. (See Roads and Bridges.) to levy tax to pay interest and principal of town or county debts 46 (See Chapter XV.) duty as to sheep injured by dogs 46, 69, 77, 493 as to taxation of dogs 46, 69, 77, 493 to apportion expense of survey of town boundaries 83, 381, 383 to levy taxes for payiog town indebtedness for railroads 85-6 duty as to taxation of rents and debts owing to non-residents 338 to levy expense of survey and maps of non-resident lands in the same.336-7 powers of, as to review and correction of assessments and the assessment- roll 340,351-7 duties of, as to assessment-roll 348-57 (See Assessment-Roll.) committee on forms of assessment-rolls 350 report by, to 350 committee on footing of assessment-rolls 350 report by, to , 351 committee on erroneous assessments 351-7 report by 256 powers and duties of 351-7 powers of, as to reserved rents in leases in fee 353 as to non-resident lands 253, 493 as to omitted lands of preceding year ^ 334 of current year 235 correcting errors in assessment-rolls 251-7, 483, 486-7 to levy State tax 258 refunding taxes by 258-61 warrant for collection of taxes by 371-3, 875-7 account thereof to be transmitted to county treasurer 274 duties of, when collector neglects to quality 374 where collector refuses to serve 275 830 Index. BOARD OF SUPERVISORS — Continued. page. must complete assessment-rolls before delivery to collectoT 261-3, 271 mast sign and seal warrant 273 to levy taxes for default of collector and county treasurer, vrhen 280 to furnisli maps for comptroller. (See Maps.) when to sue county treasurer for neglect 281 to collect of collector and county treasurer taxes twice paid 284, 285-8 duties of, when comptroller gives notice of irregular or imperfect description of lands ... 285 or of his apprehension thereof 285 duties of, as to unpaid school taxes 294-6 highway tax not worked 296 duty of, as to assessment-roll on taxation of corporations 299-831 to send statement of corporations to comptroller 321 equalization by. (See Eqdalization.) auditing of accounts by 337-446 (See Additing op Accounts.) to provide box for accounts 343 duty of, as to town audits 395-6 appeal to, from audit of town charges 357-8 duties thereon 357-8 to levy taxes for town audits on certificate of town board 395-6 as to drafted men 511-12 may extend or diminish boundaries of villages 617 appointments to ofiSce by 617-23 duration of 617 commissions, how signed 618 cannot be by parol 618 cannot appoint one of their own number 618 is not an incorporeal hereditament nor a grant, but an agency 618 legislature may control unearned emoluments of office 619 entitled to salary fixed by law 338-9, 619 cannot delegate appointments to office 619 resignation of office, how made 619-30 veterans to be preferred for 630 decisions thereunder 631-2 not to be removed, when 621 decisions thereunder ,.621-2 to report trusts for benefit of common schools '. 525 BONDS: supervisor to give 13, 46 as railroad commissioner 15 penalty of, how fixed 16 what bonds are required of supervisor 13, 14, 15, 46 if condition of bond for school money be broken, county treasurer to sue. 14 for buying and canceling town debts by issuing new obligations. (See Mdnicipal Indebtedness.) time within which supervisors must give security 13-5 sureties on, required 13-5 for local school fund not required 17 form of supervisor's 18, 19 filing of bonds 13-9, 40 of highway commissioners 34, 37 of collector 35, 37 of constable 85, 37 of justices of the peace 35, 88 of excise commissioners 35, 39 of overseers of the poor 36, 39 forms of. (See Forms.) and other town debts to be reported 43, 51, 387 to be given on paying or retiring debts of town, city, village or county. (See Municipal Indebtedness.) of town, county, city or village exempt from taxation 45, 213-4 Index. 831 BONDS — Continued. buying and canceling town. (See Municipal Indbbtedness.) page. of county clerk ggg of county treasurer ..'.'.'...'.'.".".".' 558 ■when to be sued !!!!!!!!!" 560 neglect to give, forfeits ofiSce '.".!!!!!!!!!'. 558 of bank, designated as depository of county funds !!.!!!!! 560 of superintendent of poor !!!!.!!' 588 of district attorney !.!!!!.!!! 548 for collection, when exempt from taxation '.'.'.'. 813 town or county, need not be audited '344 389 if lost may be paid on giving bond of indemnity ,' 344 BOOKS, PAPERS, ETC. (see Evidence): falsifying, altering of, penalty for 1 concealing and mutilating of 1 to demand and receive .... S3 refusal to surrender to succesisor, misdemeanor 3 if refused, how proceed 23-8 keeping accounts in 28-33 filing of 40 relating to gospel and school lots fund to be delivered to successor 53 and take receipt therefor 53 school books, etc. , lost or inj ured to be reported to supervisors 63-4 of board of supervisors 464 kept by clerk 464 to be open to the public 464 of county 464, 483, 487-8 who have charge of 464, 483, 487-8 copies thereof, how made and expense thereof 464, 483 approval required 483 to be kept by surrogate 573 expense a county charge 573 of any officer, board or commission acting for any county, town, city or village are public records 747 and open to any tax payer 747 of county treasurer to be delivered to his successor 567 for entering chattel mortgages a town charge 374 BOUNDARY: streams or waters 43 bridges over, expense of 43, 480-1, 508 (See Roads and Bhidges.) monuments, State 50, 98 town boundaries to be surveyed 83, 470 how fixed 83, 470 of villages, how extended or diminished 617 BOUNTIES: for destroying tvolves and noxious animals, county charge 400, 470 BRIDGES AND ROADS. (See Roads and Bridges.) BROOME COUNTY: Instructions for elections in 181 BRIERS: destruction of noxious S79 BRIBERY: of inspectors of election 165 expenses in trial for, a State charge 403 BUILDINGS: control of town 100, 103, 504, 510 lease of town 100, 103, 510 833 Index. BUILDINGS — Continued. public, exempt from taxation. (See Exemption.) page. of county, expense of repairs county charge 400, 464, 466, 469, 489 insurzmce of 4U6 repair of court-house and jails 400, 464, 466, 469, 489 county buildings 400, 464, 466, 469, 489 for poor-house 400, 464, 466, 469, 489 buy sites for county 400, 464, 466, 469, 489, 500 how fixed 400, 464, 466, 469, 489, 509 how changed 509 to lease and sell county 469 jail, may be in another county building 500 BURDEN OF PROOF: when to impeach legislative powers of supervisors, is on plaintifif 473-3 CALENDAR : printing of, a county charge 401 CANVASS OF VOTES : by inspectors 151-9 by county canvassers 159-72 to be published 499,543 at town meeting 776 (See BOAUD OP County Canvassbhs.) CEMETERIES : how treated on division or alteration of town 93 exempt from taxation 312 how enlsirged 495-6 power of town meeting as to 784 CENSUS ENUMERATORS : pay of 794 CERTIFICATE (see Municipal Indebtedness): as to oath of office 6, 7 no fee therefor 7 by county treasurer as to bond for school moneys 14, 19, 64 by town auditors to supervisor's account 33 by fence viewers as to sheep injured by dogs 46, 69-77 of apportionment by school commissioner 64 of appointment of deaf-mute and blind as county charge 80 by town auditors as to repairing and rebuilding roads and bridges. . . .187-41 by town clerk thereof 140 as to canvass of votes 161, 169-71 is evidence of officer's election 19, 171 of lands bid in for county 386 as to unpaid tax of non-residents 292 of accounts audited 356, 865, 395 form of such certificate 395 to resolutions 471, 475, 498 to copy of paper in office of clerk of board of supervisors 475, 498 of clerk of board as to town and county audits, supervisors' pay and equalization proceedings 658 as to proceedings of the board of supervisors 659 CHAIRMAN : of board of county canvassers 159 oath of 160, 166 to sign certificates as to election 161, 169-71 to sign notice for special election 171, 172 Index. 833 CHAIRMAN — Continued. PAOE. 01 board of supervisors, how chosen 634-5 in Albany county !.!.'!!'.'!' 431 Rensselaer county !!!".' 443 Erie county , '[ g2g Kings county 626 duties of 024 if absent, temporary chairman chosen gg^ if he declares resol utiou lost or carried, illegally, mandamus lies to correct. 486 J . . , 634 may administer oaths 434 477 to witnesses .'...,....' 477 to sign resolutions and certify records 471 475 493 to approve bond given by bank for county fiinds '....! 561 to sign commissions of appointed officers 618 when to approve bond of county clerk !.....! 555 duties of, as to mUltia and armories. (See Hilitia.) proper form for declaring the vote on certain resolutions 643 process in suit may he served on 763 his duties thereon 7g2 of committee .!!.'!.*.".".'.'."!.".'!.'!!.' 633 new chairman may he elected by committee 633 CHANGING SITE : of school-house 497 of county buildings ,,', " '. 509 CHILDREN : not to be kept at poor-house 599 may be bound out .' . . ' 600 CHURCHES : property of, when exempt from taxation 304 not an " incorporated company," under tax laws 309-10 CLAIMS. (See Town Charges; County Chakgbs.) CLERGYMAN : when property of, exempt from taxation 307 CLERK OP BOARD OP SUPERVISORS: duties of 48, 101, 634-5, 464, 648-59 appointment of 464, 636, 648 term of ofi&ce of 626 in Erie county to give bond 636 compensation, how fixed 464, 649 to deliver abstract of poor accounts to superintendent of the poor 654 how proceed when coUector does not proceed with collection of taxes. . 101 375 to send corrected (equalized) valuation to comptroller 333, 655 to take accounts from box in county clerk's office . . 343 and file and number them 343, 398 to publish notice to present accounts in certain counties 343 to publish town audits 396, 545, 651 form of 651-3 to publish county audits 544, 651 form of , 651-3 to publish reports as to town debts 545 county debts 655 resolutions 498, 545 election notices 498, 543 official canvass • 498, 543 session laws 541 equalization 544 105 834 IKDEX. CLERK OF BOARD OF SUPERVISORS — Continued. page. to publish statement as to supervisor's compensation 544 and other accounts 544, 650 to publish town debts 545 to call meetings to order 633 to make up roll of members 624 in case of contested seat 625 tenure of office of , . . . 636 to record all proceedings of board 464, 648 to enter all resolutions and decisions 464, 648 ■when to record vote 464, 648 to preserve and file all accounts 464, 648 books, records and accounts to be deposited with 464, 649 and kept open to public inspection 464, 649 to file accounts 343, 464, 649 duty as to accounts. . 343, 464, 649 to sign and record resolutions 471, 475, 498 duties of, as to grand jury list 514, 657 must see that tax for schools is levied 516 duties of, when distinction between town and -county poor abolished. . 596 654 all commitments to benevolent institutions to be reported to 615-7 what to contain 615 deaths at or discharge from, to be reported to 616 verified accounts of such institutions to be given to 616 to be filed and presented to board by 616 "summary" of, for committee uu ratio and apportionment 274, 648-5 and for county treasurer 274, 648-5, 658 form of register of accounts kept by 650 to ntunber all accounts 640 may administer oaths 650 to publish names of all claimants and equalization proceedings . . . .544, 651 form of 651-3 duty of, as to bond of superintendent of poor 588 to report town, county and village debts to comptroller 655 to deliver statement of railroads, tbeir taxes and valuations to county treasurer 655 to deliver statement of telephone, telegraph companies, valuation and taxes to county treasurer 655 to make list of corporate companies, valuation and taxes to comptroller. 656 duty of, when collector refuses to serve or is disabled 101, 275, 656 when town divided and new one erected 468, 473-3, 657 when union school district dissolved 518 to file bond of bank given for county moneys 561 to report to comptroller corrected valuations of real and personal estate. 653 when to call special meetings of the board 467, 657 school tax must be levied. 516, 657 clerk's duty to attend to it 516, 657 duty of, as to seal of the board 475, 657 certificate to papers by 471, 475, 498, 658, 659 so certified are evidence 471, 475, 498, 658 duty of, as to county and town " orders " 658 how made out 658 to be free from erasures, alterations 658 to transmit copy of proceedings of board to State library 658 to report assessors, tovrn clerks who neglect their duties 659 cannot be county treasurer 659 process in suits may be served on 762 liis duties thereon 763 certificate by, as to proceedings of board 659 CLERKS : in county oflSces 489, 500-2, 563, 569 who prescribe mode of appointment of 489 and fix number 489 IifDEX. 835 CLERKS — Continued. PAGE. for surrogate g/jg for county treasurer '.!'.!'.!!!'. 563 of the polls, pay of !!!!!!!!" 794 of committees !!.'!!!"' 633 COLLECTOR : to give bond pg to have actual notice of taxes !...'.".'.! 35 form of bond ...!!!!!!!/!' 37 list of, by town clerk > .'!!!!!!!! 46 duties in respect to dogs ''..'.'!".","!! 69-77 appointment of .'.'.'..'.'.'.. 101 extension of time for collection on appointment of '.'.'.'.'.'.'. 101 order appointing !!!.'!.!! 103 fees of, not to be inserted in assessment- roll !.!!!!.! 262 amount of . 795 delivery of roll to 271 ■when he neglects to qualify .274' 656 original assessment-roll should be delivered to .' . . . ' 245 where he refuses to serve 275* 056 vrarrcmt for taxes 275-7* 656 losses by default of, chargeable to town .' ggo who acts as, where collector dies, resigns, removes, disabled or inca- pacitated 275, 656 to repay taxes twice collected gfj5 duties of supervisor when collector neglects to pay over moneys 291 powers of, as to taxes against non-resident stockholders in bank 813 default of, town charge 280 404 •COLLECTION. (See Assessment and CoIllbotion of Taxes.) COLLEGE : when property of, exempt from taxation 304 not an "incorporated company" under tax laws 309-10 COMMISSIONERS : of schools. (See Schools.) of common schools in towns, abolished 53 of deeds, -abolished, in towns 7 of excise. (See Excise.) of highways. (See Highway Commissionkks.) for improving highways by non-resident tax 493 loan, supervisor cannot be 5 accounts of, to be examined 530-6 railroad. (See Railboad Commissioners.) COMMISSIONS : of officers, to be signed 618 by vrhom 618 COMMITTEE : of lunatic not taxable as "agent" or "trustee" 218 on " Forms of Election Returns ". .' 167 on " Footing Election Returns " 167 on " Forms of Assessment-rolls " 250 report by 250 on "Footing of Assessment-rolls" 250 report by 251 on " Erroneous Assessments '" 251-7 duties of '. 251-7 report by 256 standing committees of board of supervisors 633 <:annot be delegated with po'wers of board of supervisors 455, 460 when may 45'T~60 836 Ikdex. COMMITTEE — Continued. faob. when may summon witnesses, books and papers, etc 47ft powers thereon 476, 477-8(> pay of, when not county charge 499, SOft on grand jury, report of SIS on "Legislation " 63S-4S form, for bonding 635, 637-9 authorizing survey and making record of highways in towns.. 636 authorizing levy for road scraper 637 authorizing town to borrow 637-9 resolution dividing town and erecting new town 640 authorizing town meeting to be held by election districts 641 on " Ratio and Apportionment of Taxes " 643-7 tax to be levied 643 apportioning the taxes 643. « Clerk's Summary " 643-S schedule prepared by 644-6 report of committee on 646 directions for preparing schedule 647 reports of, how should be made 461-3, 634 how confirmed or adopted 843, 461, 634, 461-3 illegal condition in report of, void 460 resolutions of, how reported 461-3 authorization of, to begin suit 333 making unauthorized contract, void 4S7-60 may be composed of persons not members of board appointing 459 informal acts of, when binding 459-60 may be authorized to do ministerial or administrative acts 456-60 who appoints 683 who is chairman of 633- duties of 633 members of, may select another chairman 633 when supervisors not to act on 634 power of board over 634 clerk of 63a COMPENSATION (see Fees): for use of highway for plankroad or turnpike 96-7 COMPTROLLER: regected taxes by 41, 282^ maps and surveys for 41, 281 to furnish blanks for list of corporations. SO to furnish forms and instructions for assessors 243 to send statement of State taz and county assessment 257-8, 513- when may deduct overcharges in non-resident tax 260-1 instructions of, for assessing State lands in Forest Preserve 267-9 instructions of, as to assessment-rolls 248-50 may withhold school moneys, when 517 debts of county, town and village to be reported to 655 suits by, against county treasurer, for neglect 281 to report arrears of taxes 282 when to cancel tax 284 to transmit account thereof 284 re-levy of taxes by 284 apprehending imperfect descriptions of land, how proceed 285 how proceed on invalid sales for taxes 285 to bid in lands for benefit of county 286 and give certificates therefor 286 when to issue deed therefor 287 duties of, as to unpaid tax against non-resident 293 apportionment of State tax 293 to state county treasurer's account 294 Index. 837 COMPTROLLER — Continued. p^qj,_ statement of valuation, taxes, etc., of corporations for 331, 656 of equalized valuation for 322-3' 655 may loan moneys to county treasurer .' 471 security therefor '/' 47]^ OONCEALING ACCOUNT BOOKS AND RECORDS: penalty for , 1_3 CONFIRMATION: of alterations in assessment-rolls 357 of tax as extended thereon 262 CONSTABLE : to give bond 35 form of bond . .' 37 auditing accounts of 356-7, 381-8, 422-8 appeal from 356-7 form of account of 385-8 when pay of, a county charge 356-7, 381-3, 422-8 to report to superintendent of poor when lunatic not properly cared for. 604 fees of 795 duties of, under game law 534 CONTAGIOUS DISEASES: prevention of 117-31 -CONTINGENT EXPENSES: of town, a town charge 372 of county, county charge 397, 400, 411, 416-7 what are 397, 400, 411,416-7 CONTRACTS : supervisor not to be interested in -. 1, 2, 3 nor public oflScers 1,2, 3 nor school officer 1 with municipal corporations only through authorized agents 342-457 what is not ratification of 457 certain, void 2 , 3 for use of highway 96-7 when not made with town officers, as such 96-7 with penitentiaries for support of prisoners 576-8 notice thereof to be published 576 for collection, when exempt from taxation 213 CONTROVERSIES: between counties 757 CORONERS: pay of 797 a county charge 400, 414r-15, 797 report of, before audit 414 as to j urors 414, 797 may employ physicians for dissection, etc 414-15 to render account 414 jury, pay of, county charge 415 report as to, by coroner 415 CORPORATIONS: list of, bv supervisor for comptroller 50 taxation'of real estate of 193, 214, 299-303 of personal estate of 193, 306-31 how assessed 307, 302, 306, 310-31 railroad where taxed 193, 299-304 838 IXDEX. COPORATIONS — Continued. page. valuation of real estate of railroad 299-304 of personal property 303-4 foreign railroad, when assessed and taxed 801-2 officers of railroad to deliver statements to assessors 80& what to contain 807 telegraph, telephone and electric light companies, where assessed. . .66, 308 plankroads and turnpike companies, where assessed 804 pipe-line companies, where assessed 304 commutation of 804 toll-bridges, where assessed 803 consolidated railroad company 301-3 natural gas companies 806 officers of corporations to deliver statement of personal property 3C6 what to contain 807 banks, taxation of 810-4 shareholders in 310-4 valuation of 810-3 notice to be given ofiBcers of, by assessors 311 to retain dividends, when 313 bankers, individual, how assessed 813 savings banks, how taxed 814 deposits in 314 life insurance companies, real estate of, where assessed 313-8 State tax on 819 co-operative insurance or casualty companies, exemptions of 815-8 fire and marine insurance 316-8 assessment of 816-S State tax on franchise of 318 racing associations 330 reduction of valuation on, by assessors 330 exemption of 307, 321 foreign fire insurance companies, when and where assessed 817 duty of board of supervisors as to assessment-roll of 831 to send statement of, to comptroller 331 CORRUPT EXPENDITURES: summary investigation of 88, 754 decisions 753 COSTS: on appeal from equalization 331-3 amount of 831-3 when town charge 874-80 against county 375-7 how paid 375-80 against town officer, when town charge 874-80' when not alloTved against supervisors 375-80 COUNSEL. (See Attorney.) COUNTY (see Actions): no action against, for a county charge 449, 454 embezzlement of funds of 1,3, 3, 754 certain contracts void as to 1,3, 3 to bear part of expense of roads and bridges over boundary streams. 43, 508 chargeable for default of county treasurer, when 380 lands to be bid in for benefit of 286 certificates therefor 386 to be charged therewith 387 deed to, therefor 387 officer, expenses necessarily incurred by, when a county charge 400 powers of, as body politic, how exercised 448, 460 officers to account with board of supervisors 483 to report 47ft Ikdex. 839 COUNTY — Continued. p^^j, offices, time for opening and closing, how fixed 498 funds to be deposited , '..'.'.'. 561 interest ou, go to county \\[ 5g3 railroads, power of supervisors as to ![!!'.!!'!!.'! 705 powers and rights of, as a body corporate 447-54 may sue and be sued '447 449-54 75$ purchase and hold lands ' , . . . 447-53 make contracts and buy and hold personal property 447, 453 make orders as to its corporate property 447-53 limited to powers conferred 448, 453 proceedings by or against 447-49 450 acts in the name of the board of supervisors 448,' 453 effect of division of 448, 453 how apportion property on division of 448, 453 controversies between counties 757 sealer of weights and measures 581-3 his duties 581 his fees 583 in case of vacancy 583 death 583 penalty for refusal to deliver 583 relief from erroneous or illegal assessment on lands divided by county lines 757 when liable for moneys wrongfully collected 347-9 cannot be sued for county charge 349 can be sued for acts of board beyond their jurisdiction 449-50 or if illegal tax collected and paid into county treasury 450 can sue for moneys fraudulently drawn by county officer 450, 762-3 not liable for moneys not received into county treasury 451 not liable for default or neglect of county officers 451 can sue supervisor for illegal audit paid him 451 bonds are the debt of the county 451 moneys realized therefrom are county property 451 not liable for bills of exchange illegally issued by a county officer with- out authority 451 cannot enforce county taxes by a bill in chancery 453 no power to issue bonds without statutory permission 453 indigent insane to he supported by town wherein they reside 453 may acquire real and personal property 453 may lease real estate 454 1 from mobs 758-61 COUNTY CHARGES: what are 397-428 no action lies for 349, 449-54 adulterated wines 127-37 armories 628 assistant district attorney 554 attendants for court-rooms, etc 411-3 attorneys. (See Counsel.) audits, printing of 401, 428, 544, 545 blind.. : 80-3 bounties for wolves, etc 400 bribery 403 burial of deceased soldiers, etc 538-41 calendars for courts 401 census 403 clerk of board 648-59 of superior court, Erie county 413 committee, when not 499-506 constables 39^ constables in criminal cases 381-3, 423 contingent expenses 397, 400, 411, 416-7 840 ISTDEX. COUNTY CHARGES — Continued. page. convicts, removal of 406, 577-8 trial of, a State charge 411 Cornell University, notices for 401 coroners ... 400, 414-5 coroners' jurors 415 costs 377-9, 410-11 counsel : for 6oard of supervisorB 413 to assist district attorney 418 to defend prisoner, not 413 for superintendent of poor 413 for excise commissioners 413 county clerk 555-8 county oiEcers, salaries 403 removal of . 403 county treasurer 561 expenses of, against non-resident corporation for unpaid taxes 233 expenses of, on invested tax sales 386-7 court-houses 400, 464, 466, 469, 489 court-rooms 411-3 court criers 399, 406 criminals, support of 399, 574 removal of 406, 577-8 damages from riots, mobs 406 deaf-mutes 77-80 default of county treasurer 404 discount on county order, not 404 distributing tax laws 428 district attorney 399, 413, 416, 417 assistant district attorney 554 elections, expenses 400, 401, 406, 543 equalization 401, 544 excise commissioners 413 expenses of county officers 399, 400, 406, 411, 413, 414, 416 fish protectors 405, 530-5 fuel for court-rooms, county buildings, etc 411-3, 556 but not for county clerk 556 furniture for court-rooms and county buildings 411-3 game constables 405 game protectors 405, 530-5 headstones for deceased soldiers, etc 588-41 houses of detention 576 and keep of prisoners in 576 idiots 613-4 indigent insane, town charge 608 insane 604^10 insane criminals 613 removal of 406, 611 commission for 610 insuring buildings 406 jaUs 400 furniture for 413 physicians for 415 judgments 375-9 roll in, in criminal cases 403 jurors, coroners' 415-6 grand 415 petit 415 food for 416 justices of the peace 381-3, 400, 433 of sessions 803 juvenile delinquents 406, 538 lunatics 604-10 Index. 841 COUNTY CHARGES— Continued. p^qj,_ maps, for comptroller 43;i "Ji^itia ".'.!! '.'.526-30 armory.... 536_8 armorer ana janitor 529 enrolled i53Q National Guard 53O moneys necessarily expended 416 what are 416-7 raised for county purposes 400 National Guard 530 notices of Cornell University examination 401 by comptroller of taxes 421 orphans 599-601 penitentiaries, removal of prisoners to 406, 577-8 keep of prisoners in 576 physicians 414-5, 578 poor,, support of 400, 404-5 prisoners, transporting 406, 577-8 support of 399, 574 printing, court calendar 401 audits 401, 428, 467, 544-5 Cornell University 401 election notices , 401, 543 equalization .401, 544 judgment roll in criminal cases 402 notices for comptroller , 421 ofGcial canvass 401, 543 resolutions 401, 545 proceedings of board 545-6 terms of court, not 401 session laws , 401, 541-2 statement compensation of supervisors , 544 public buildings 400, 464, 466, 469, 489 insuring 406 referee's fees 4] 7 removal of county oiScers 403 resolutions 401, 545 sailors, burial of 538-41 salEuries of county of&cials 403 services 398 services in criminal cases 381-3, 411, 423 session lairs, printing of 401, 541 sheriffs : . . . 399, 400, 406, 411-2, 573-4, 576-7 soldiers, burial of 538-41 headstones for 538-41 stenographer's fees 406-10 salary of 406-10 for surrogate 408 for grand jury. 409 for county court and sessions 409 for court minutes for Elmira Reformatory 410 superintendent of poor 417 supervisor's pay |9^ siuTOgate, books for 573 trial in another county 411 of convict, a State charge ;,.; i torts ' -3^6-9 weights and measures onn ISq witnesses ^99, 5(6 COUNTY CLERK: is secretary of county canvassers ico^TO duties as to canvass of election lb^-7,i (See Board of County Canvassbbs.) 106 812 Index. COUNTr CLERK — Continued. paok, to deliver statementa of election returns to board of county canvMsers. . 163 when to procure the game 163 to record statementa 163 to prepare three copies thereof 163 and transmit 163 to deliver copy to county officer elected .- 163 to send secretary of State list of members of assembly 164: and certified copy of official canvass 164 duties of, in presidential election 164 pay of 165, 798 (See Fees County Clerk.) to keep records of daily meetings of county canvassers 165 how kept I(j5 to sign certificates to election statements 170 to record such certificates, etc 171 to sign notice for special election 171-3 boxes to be provided for reception of accounts in office of 843 pay of, for services as to elections a county charge 400 to hare custody of county records and duties thereunder 483, 556 to provide books for recording deeds, mortgages, etc 556 when to make copies 483 to give bond to supervisors 555 when to be given 555 condition of 655 to keep book showing all fees charged and received by him 536 to open to public inspection 556 and send sworn statement thereof to secretary of State 556 no pay for fuel, lights, stationery, etc 556 except record books, etc 556 to have custody uf duplicate county seal 556 to make general indices 557 pay therefor ... 557 COUNTY JUDGE : local officers may be elected to discharge duties of 569 to be surrogate, when 569 when supervisors may resolve to abolish office of surrogate 570 pay of, to be fixed by legislature 570 vacancy in office of , 570 duties of, as to insane and lunatics 554, 604, 605, 611 as to idiots 618 to report commitments 615 may increase number of grand jurors 514 duty of supervisors thereon 514 to approve bond of district attorney 548 to approve employment of counsel for district attorney 550-3 when to approve bond of county clerk 555 cancel town bonds purchased 560 approve bond of bajik for county moneys 561 COUNTY TREASURER : supervisor cannot be 5 to require security for school moneys 14 to approve the same 14 form of approval 19 when to sue bond therefor 14 to give supervisor certificate as to his filing bond 15 gilding fund for paying town debt 85-6 (See Chaptbs XV.) report to, by agent of non-resident creditor 230 to send abstract thereof to the assessors 230 to issue warrant for unpaid taxes thereon 231 how proceed if warrant against non-resident creditor returned unsatisfied. 231 Index. 843- COUNTY TREASURER — Continued. , . , PAOK. espenses therefor a caunty charge 032 statement as to assessment-roll to be delivered to. !!!!.!!!!!.'.! 274 when to extend time for collection of taxes \',\ qqa •when default of, chargeable to county '.!".'.'.!.'.'.'.. 280 404 duties of, on cancellation of taxes .'.'.'.'.'.'! ' 284 to repay taxes twice collected ......".', 284 duties of, as to lands bid in by comptroller, for the county '. ' 286-8 duties of, when collector neglects to pay over moneys 291 duties of, when tax on non-resident land unpaid 293 account with comptroller, when to be stated 894 suits against, for neglect to pay the same 294 duties of, as to unpaid school taxes 394 as to collecting taxes from non-resident stockholders in banks 313- default of, when county charge 380, 404 when may borrow from comptroller ' 471 moneys from fines and penalties to be paid to 538, 547 bonds to be given by 558', 560 amount, how fixed and approved 558 new bond to be given if required 558-9, 568 and filed with county clerk 558-9 for town sinking fond 347-9, 559 (See Chapter XV.) duties as to such fund , 559 when such bond to be sued 560- moneys to be deposited 560 to receive bond trom his bank for deposits of county fonds 560 how bond approved 561 does not apply to certain counties 561 clerks in office may be authorized by supervisors 489, 563 pay of county treasurer, how fixed 561 fees of, in certain counties, go to the county 563, 563 must determine amount of investment as sinking fund 565 interest on county funds go to the county 561, 563 fees for sales for taxes to be audited 563 procuring extension of bonds, powers on 563, 565 sureties of, not discharged by supervisors' neglect, omission, unfaithful- ness or malfeasance 564-5 county not liable for misappropriation of 565 may be sued by supervisors for benefit of infant 565 fees of, under " collateral inheritance " tax law 563 account of, with supervisors 566-8 books of, to be delivered to successor. 56T supervisors have no poiver to direct county treasurer not to pay draft of superintendent of poor 563 seal of 566 report of 566-8 not eligible to be superintendent of the poor 568 summary of taxes to be furnished to 658 vacancy in ofiSce of, how filled 566 removal of, by governor , 566 duties of, when distinction between town and county poor abolished .... 596 when to keep account with towns as to support of poor 596-7 statement of, to be laid before supervisors 597 when excise moneys go to 601 when to pay for support of insane and lunatics 606, 608, 610 of idiots 6ia railroad taxes, valuations to be reported to 655 also telegraph, telephone and electric light companies 655 clerk of board cannot be 659 COURT-HOUSE : exempt from taxation 204 repairs of 400,464,466,469, 48» 844 Index. COURT -ROOMS : page. supervisors to provide 411, 413 also furniture, fuel, lights, attendants and stationery 411, 41!2, 572 CREDENTIALS : what are 19 CKIERS OF COURTS : pay of 406, 798 a county charge 399, 406 CRIMINALS : when support of, a county charge , 399 removal of, a county charge 406 may be employed on highways 575 (See Pbibonbks.) at hard labor 575 on criminal process where detained 574 solitary cells for 574 to be kept separate, when 575 confinement of, in penitentiaries 576-8 fees before commitment of, in cases not felony, town charge 883, 577-8 after commitment, county charge 388, 428, 577-8 female, not to be kept in same room with male 575 exception thereto 575 DAMAGES: on laying out roads, to be given board 43, 706-7 DEAF-MUTES AND BLIND 77-83 DEBTS (see Municipai, Indbbtbdness): for railroads, bond by officers administering funds for railroad 15 of town to be reported by supervisor 43-6 and published 43 apportionment of town, on division or alteration of town 94, 474 due non-residents, how taxed 193-7, 238 due residents, how taxed 198-7, 239 due for purchase of real estate taxable 239 how taxed 229, 232 for roads and bridges. (See Roads and Bridges.) of towns, counties, etc., how refunded by issue of new bonds. (See Municipal Indebtedness.) to be reported to comptroller 655 DECISIONS: as to election cannot be changed 174 DEEDS: commissioners of, abolished 7 DEFECTIVE ROADS AND BRIDGES 683-91 DEMAND: for books and papers 23 town and school moneys 38 for collection, when exempt 313 DEPOSITS: in savings banks, when exempt from taxation 213 of assessment-roll for inspection 236 DESCRIPTIONS OF LANDS: when imperfect 353-6, 366-70, 283, 385-93 when to be made correct 337-43, 348-57, 282-3 of railroad in assessment 246-8 Index. 845 DESCRIPTIONS OF LANDS — Continued. when comptroller may reject taxes for imperfect. . . 2S2^^9<« when comptroller gives notice of his apprehension of imperfect deVorlD' tions, how proceed '^ osj; cannot change names where description is imperfect. !!'.!!'.!! " ' 283 taxes on land imperfectly described ."![,'.*!.*!..!!'!' 28a DETENTION: houses of gi^g DIRECTIONS: for preparing schedule g^^ DISCOUNT: on county order not a county charge 404 DISEASES: contagious 117-31 DISINFECTANTS: for jails " 574 DISSOLUTION: of school district S^- DISTRICT ATTORNEY: pay of, how fixed 549, 550 a county charge 899, 549 if he refuses salary, as fixed 549 in counties where he is a salaried oflBcer 550 all necessary expenses of, are county charge 399, 413, 416, 419 not to act as justice of the peace 550 fees of, to he paid county treasurer 550 may employ counsel 550-1 in case of vacancy, court may appoint 551 annual account of, to be verified and filed 553 in Oneida county 553 when may appoint stenographer for grand jury 409 may employ physician for criminal trial to make chemical examination. 414 assistant, how appointed 553 who authorizes 553 to sue for fines and penalties not paid over by officers 547 to report fines and penalties for benefit of common schools 553 to report money received for fines and penalties 553 to give bond 548 approval of 548 paying expenses of predecessor, entitled to be reimbursed by county. . 417 DISTRICTS: division of town into election 145 DISTRICT SCHOOLS. (See Schools.) DISTRICT SCHOOL MEETINO (see Schools): when supervisor to call 65 when annual, held 59 DIVISION: of town 92-4, 468, 472-3 into election districts 145 how appUed for 468, 472-3 how levy for rejected taxes on 284 of county 448-53 DOGS: injuring sheep ™ *^6 Index. DOGS — Continued. pj^oe. laws relating to 69-77, 380-1 taxation of 69-77, 221 warrant for dog tax , 277 power of board of supervisors as to 470, 493 Ontario county law 75, 380 must be entered on assessment-roll 321 DOLLAR MARK: not necessary on warrant 274 not e.«sential in assessment-roll 274 DONATIONS: supervisors may accept 458, 535 DRAFTED MEN: reimbursement of 511-2 DRAINAGE. (See Water Commissioners.) EDUCATION: • board of, supervisor cannot be member of 5 compulsory education act, duties of supervisor under 63 ELECTIONS: of supervisor 4, 775, 779 notice to be given supervisor elected 7, 777 women eligible to vote at school meeting 67 village, wben supervisor to act as inspector at 107-9 to determine as to incorporation of village 107-9 duties under election laws 145-84 division of town into election districts 145 alteration tbereof 146 notice of 147 two inspectors of, to be elected annually 148 and one appointed 148 when inspectors of, to be appointed 149-50 registry of voters 149 canvass of votes at general election 151-59 (See Board of County Canvassers, and Town Meeting.) order of canvassing at 151 original statements of canvass to be delivered to supervisor 155 votes at, to be estimated and stated 156-9 special, when ordered 171 notice for special 172 digest of decisions as to . .172-81 writing on printed ballot at 173 rejection of vote at, for crime committed by voter 172 jurisdiction of inspectors of 173 defective ballots at, what are 173-4 true statement must be made of 174 returning statements for correction 174 decision as to, cannot be changed by inspectors or county canvassers 174 can be, by court 177-81 practice in 181 returns in, how far valid 175 power of canvassers at 175-81 wben exhausted 176 pay of town officers at, a town charge 873, 794 printing and posting notice of, a town charge 878 publishing election notices and official canvass 401, 543 certificate of, are credentials 19 instructions as to, for inspectors 158 for supervisor 158 in Broome county 181 In towns. (See Town Meeting.) Index. 847 ELECTORS: whoare *"'^°=- at school meeting '.'."/. .'..*.'..."..... . .'. an Jy omitting to elect supervisor, how proceed '.'.'.'.'.'.'.*.".'.'.'. .'.'.'.' '. " " ' a to direct as to legal proceedings *.*.'.*.'.'.'..'.'!. 51 ELECTRIC LIGHT COMPANIES: where assessed ona ELIGIBLE: who are, for supervisors g_g who are not ^ ^ _ _ *_ P women are, to vote at school meeting '.'...'......'..'.'. 67 EMBEZZLEMENT: by supervisor j 3 g by public ofllcers ......'..'. 1-3 EQUALIZATION: of taxes in school districts gg by board of supervisors \ /_ 332-36 to examine assessment-rolls 322 correct valuations \ 322 to send statement of aggregate valuation to comptroller 323 655 corrected assessment-roll to be delivered 323 proceedings on, to be published 323 proceedings on, to be transmitted to comptroller 323, 655 decisions as to 324, 330-3, 334^6 how proceed on 322-36 only real estate to be equalized, and not personal property 324, 336 price paid private sale for real estate not evidenceof value . . . .300, 307, 324 335 board of, in Oneida county , 325 form of report on ; 326-8 appeal from 328-36 notice thereof 328, 333 proofs thereon 329, 336 subpoena of witnesses in 839, 333 nature of evidence on 339, 334-6 determination of , 329 how State assessors proceed on 331, 334-6 where heard 331 if appellant fails to appear, appeal dismissed 331 effect of . ; 331 costs on appeal 881, 334-6 procedure on appeal 832-6 rules and I'egulations of State assessors on appeal 382-6 decision of State board reviewable on certiorari 834-6 ERIE COUNTY: organization of board in 636 clerh of board in, to give bond 636 stenographers in. (See COUNTY Charges; Stbnogbaphbrs. ) ERRONEOUS ASSESSMENTS (see Committee on Erroneous Assess- ments): how money refunded for 258-61, 384, 757 relief from, on lands divided by county lines 358, 757 ERRORS: in election returns, how corrected , 163, 173-81 in assessments * 337-43,351-7, ^87 in assessmentroUs 337-43, 351-7, 393, 587 what are manifest 254-7 in double assessment repayment of money paid 353-61 , 384 848 Index. ERRORS — Continued. page. in verification of account to be returned for correction 345 in decision of chairman, can be corrected by mandamus 468, 634 how and when legalized 353-7, 337-43, 351-7, 483, 537 EVIDENCE: to impeach powers and proceedings of boards of supervisors 473-S books, records, etc. , of board of supervisors are 475 of judgment V8. town or county 375 assessors are not required to apply rigid rules of, in investigations be- fore them 301 ■where to^vns divided or altered 472-3 when acts of supervisors presumed to be regular 473 official report of county treasurer admissible against his sureties 565 price paid on private sale, no evidence of value of property . .300, 334, 835 but see 300, 307 records of legislative body cannot be changed by extrinsic 61{^ EXAMINER: of guardian's accoimt 56^ EXCISE: commissioners of, to give bonds 36 form of bond 39 election of, in towns 789 vacancies in office of commissioners of, how filled 108, 790 moneys, excess of, how disposed of 391 pay of commissioners of, town charge, when 373, 413 when county charge . 413 commissioners to report, when 648 pay of 794 EXECUTION: against public officer, when may not issue 377 EXECUTOR : assessment of 318, 334 EXEMPTION: from jury service 111-5 from taxation 198-314 rules governing exemptions 198-203 not to be presimied 198 must be described in unambiguous language 198 to be strictly construed 198 not favored by the courts 198 size of lot exempted 198 time nrhen exemption begins 199 does not include local improvements or assessments 303 right to, may be rescinded 203 of town, county, city and village bonds 45 of State and United States lands 303 of colleges, academy, seminary, church, school-house, court-house, jails, etc 304^5 of poor-house, alms-house, house of industry,, houses for reformation of offenders, improving condition of seamen 305-7 of public liiarary, certain stocks 207 personal estate of incorporated company 207 ministers' property, when and how exempt 207-9 of property exempt from execution 309-10 of Nevr York hospital 311 of agricultural society lands 311 of plzmkroads and turnpikes, when 211 of soldiers' monument associations 311 of firemen in villages - .... 211 Index. 849 EXEMPTION — Continued. . ^ . PAGE. 01 cemeteries oil f Warner's observatory .".'."!.'!.*.'.'.'.'!!.'!!!!!!.*!"! 311 of Indian reservations !...."!.'.".'.'.'.'.'."!!!!!!." 211 of light-houses, certain stock, bonds and mortgages, etc., for coUeotion.313-3 deposits in savings banks 213 of life insurance companies 213 315-7 of fire and marine insurance companies 316-7 of corporations 321 of moneys In co-operative life and casualty insurance companies 313 of registered vessels 313 of gas-light companies, when . , 213 of United States securities 213 of toTum, city, village and covmty bonds 313 where assessors decide property exempt board cannot insert same in roU 334, 351 EXPRESS COMPANIES: when corporations 310 when not 810 EXTENSION: of taxes on assessment-roll 361 confirmation thereof 363 of time to collect taxes 379-80, 470, 493 FALSIFYING: accounts, books, records 1,3, 3 as to assessments 333, 389 FENCE VIEWERS: certificate by, as to sheep injured by dogs 46, 73, 75, 76 pay of 799 FEES: taking fees not authorized by law 3 and for services not rendered, a misdemeanor 3 no fee for taking oath of office 7 or for certificate thereof 7 compensation of person disbursing school moneys, when fixed by board of supervisors •_ ■ 14 of county clerk for delivering election returns to secretary of State, in presidential election 165 pay of town officers a town charge 873-3 of county officers a county charge 899-400 of member of board of supervisors for travel , 471, 499 of committee of board of supervisors when not a county charge . . . 506 for conveying juvenile delinquents and lunatics, how fixed. ...406, 538 pay of county treasurer ' coo I fees of county treasurer go to county, in certain counties ~ennn pay of surrogate and county judge to be fixed by legislature L^a Zll digest of 794-808 of assessors irnR_7 altering, laying out or discontinuing highways mi of census enumerators Ip^ town auditors i^t clerk of the polls _ Lf^ commissioners of excise _._ highway commissioners ^gg collectors moK constables ~niT coroners am county canvassers „„„ county clerk 107 850 Index. FEES — Continued. page. court crier 798 fence viewers 799 game constable 405, 799 guards for jails 799 inspectors of election 800 jurors 800 jastices of the peace 800 justices of sessions 801 loan commissioners , 796 miUtia 803 overseer of highways 803 of the poor 803 physicians 808 printers 804 railroad commissioners 804 school commissioner 804 sealer of weights and measures 805 sheriff 383,423,577-8, 805 stenographer 406-10 supervisors 806 town clerk 808 FILING: oath of office 7 bond or security as supervisor 13, 14, 15 bonds of town officers. (See titles of such officers.) of books, papers, etc 40 report of supervisor as to town debt. . , 43, 44 FINES: disposition of 424, 546, 598 to be reported 546 and paid over 547 if not, no salary or pay to be paid 546 FIRE AND MARINE INSURANCE COMPANIES: taxation and assessment of 816-7 FIRE IN WOODS 94-6 duty of supervisor 94-6 (See FOKEST Prbsbkve.) FIREMEN IN TOWNS: appointment of 101 property of exempt 213 FOREST PRESERVE: how taxed 191, 267-8 supervisor to be town protector of 95 spoliation or inj ury of , to be reported to district attorney 95 appointment of forest guards 95 powers of forest guards 95 what constitutes Forest Preserve 95 supervisor fire warden 95 supervisor may divide into two or more fire districts 95 description to be recorded 95 map of fire district in town 95 duties in case of forest fire in 96 when fences may be destroyed, etc 96 when fires in, to be reported 98 what report to contain 96 forest commission rules to be posted in 96 Index. 851 of oath of office as supervisor g of certificate therefor "_ g of order appointing supervisor 13 of security required of supervisor jg of acknoTvledgment of bonds 18 of justification of sureties 18 of approval thereof by town auditors 19 I by county treasurer 19 receipt for books, papers, money, etc 24 for application to compel delivery thereof 25 order to show cause thereon 23 a£Sdavit of delivery thereof , 26 order, when such affidavit not made 26 warrant of arrest thereunder 27 search ivarrant thereunder 27 of keeping accounts 30-3 of highway commissioners' bonds 37 of collector's bond 37 of constable's bond 37 of approval of constable's bond 38 of bond of justices of the peace 38 excise commissioners 39 of bond of overseers of the poor 39 of filing books, papers, etc 40 of report as to town debt 44 of grand jury list 47, 515 of trial jury list 116 of report as to paupers, expense, etc 49 of report of school moneys on hand 50 of order altering or forming school district 55 of- consent of school trustees therefor 56 of notice by school commissioner, altering or forming school district. 56 of decision thereon , 57 renewal of warrant for school tax 63 notice calling district school meeting 66 application for admission of deaf-mute to public institution 80 certificate thereon by supervisor 80 of affidavit in supplementary proceedings for taxes 90 of order for examination therein 91 of agreement for use of highway by plankroad or turnpike company. . . 97 appointment of town sealer of weights and measures 100 order appointing collector 103 justice of the peace 106 of list of trial jurors 116 of consent by town auditors for rebuilding or repairing roads and bridges. 137 of report by supervisor thereof 138 of application to borrow money for repairs, building of roads and bridges. 138-9 order dividing town into election districts 146 order altering the same 147 notice of elections 147 appointment of inspector of election 149 to fill vacancy 150 statements of canvass ■ 156-7 instructions as to statements of canvass 158 of oath of county canvassers 160, 166 for keeping records of meetings of county canvassers 165-6 of official canvass 168 statements of votes for State officers 169 cotmty officers 169 members of assembly 1™ of resolutions as to canvass of election i^n i elected officers i to of notice for special election 17* 852 Index. FORM — Continued. PiOE. of assessment-roll 364-6 of report of committee on " forms of aasessment-roUs " 250 of committee on " footing of assessment-rolls " 251 of committee on " erroneous assessments " 256 of table for extending taxes 263 of resolution confirming tax as extended 257 of -warrant annexed to assessment-roU 271-7 of return of highway tax un worked 297 of report on equalization 826-8 of table on equalization 827 of notice of appeal from equalization 832 of accounts or claims against town or county 854 of accounts under Livingston county poor law 368-9 by highway commissioners 870 of accounts, etc., statement thereof 872 of justices of the peace 384, 424 of constable 885-6, 426-7 certificate as to town audits 895-6 report of superintendent of poor 418 of supervisors' account against county 421 of general account against county 422 of motion to adopt report of a, committee, containing resolutions 461 of application for burial of deceased soldier 539 for headstone 540 of selecting newspapers to publish session laws 542 of resolution selecting newspapers to publish election notices and of- ficial canvass 543 for bonding county 635 town 637-9 of resolution authorizing town highways to be surveyed and records thereof made 636 of resolution authorizing levy for road scraper 637 to divide town and erect new town 640 town meetings to be held by election districts 641 for declaration of vote by chairman 643 of " clerk's summary " 644 of ratio and apportionment schedule 646 of certificate to resol utions 686-7 of register of accounts kept by clerk 650 of statements to be published by clerk of board, as to town and county audits, supervisor's pay and equalization proceedings 651-3 certificate of proceedings of the board 659 FRANCHISE: State tax on 318-20 of corporation not taxable as real property 308, 805, 189, 194 FUNDS: misappropriating of 1,2, 3 lost or wasted must be replaced 838 want of, no excuse for refusal to audit legal claim 416 corrupt expenditures of 88, 754 summary investigation of 88, 754 GAME AND FISH: law constitutional 531 "protectors" of 405 constables 405, 530-5 pay of 405, 533, 799 duty of 584 when county charge 405 powers of board of supervisors as to 470, 494, 506, 531-5 such powers constitutional 531 Index. 853 GAME AND FISH — Continued. fines and penalties under, to whom paid 534 nets, devices, etc., when to be destroyed ...!.....'......!. i 534 GAS-LIGHT COMPANIES: when exempt from taxation ^ii GLANDERS: animals afflicted with, to be destroyed I30 GOSPEL AND SCHOOL LOTS: report aa to, by superintendent 47 supervisor to take and hold possession thereof ' ' " ' 5x trustee therefor .'.*.'..'.'. 51 to lease the same ',.'.'.'. 53 when to sell the " ' " ' gg to invest proceeds thereof '.'..'.'. 53 supervisor reloaning moneys for , ,' _ ,' 53 rents and profits of, how applied 53 account of moneys thereof 52 delivery of books and papers relating to 53 when town divided 53^ 92^4, 767 or altered 93-4| 767 report by town auditors as to 39O GRAND ARMY OF THE REPUBLIC: lease of town or county buildings to 100 relief to indigent soldiers and sailors 393-3 GRAND JURY: list of 47,514-6 form of 47,514-6 how number increased 47, 514-6 who are qualified for 47, 515 who are exempt 111-5, 515 report of committee on 515 duties of board supervisors as to 47, 514-6 GRIEVANCE DAY. (See Review Day.) GUARDIAN: assessment of 218, 334 accounts of, to be examined by surrogate 569 examiner of such accounts may be appointed by supervisor 569 GUARDS FOE JAIL: pay of 799 HEALTH: board of 117-23 who compose in cities 117 in towns. ,.,..., 117 in villages 117 to appoint physician 117 to till vacancies in , 117 powers of • 118-31 meetings of 118 to prescribe duties of health ofiicer 118 ' and fix his compensation 118 to guard against contagious diseases 118 as to nuisances 119, 131 registering births, marriages and deaths 119 to prescribe rules and regulations 120 warrants of arrest by 130 854 Index. HEALTH — Continued. page. board of, to employ subordinates 121 penalties and actions by 131 refusal to obey orders of 121 expenses of 123 atown charge 122, 378 audit of 122, ^73 (See Auditing of Accounts.) health of persons in poor-houses 123 mandamus against 123 decisions 123-7! milk, seizure or destruction of 130 glanders, animals afflicted with 130 obstructing health officer, misdemeanor 131 willful violation of health laws, penalty for 131 adulterated wines, to be destroyed 131 transportation of dead bodies, permit for 127 HIGHWAY COMMISSIONERS (see Roads and Bridges) : to give bond 34 form of 37 statement by, as to roads and bridges 41, 508 as to noxious vreeds 42 as to roads and bridges over boundary streams ... 42, 666, 668, 678, 695 care over State boundary monuments 50, 98 duties as to fire in woods 84 use of highway for turnpike or plankroad 96 as water commissioners , 98 as to water- works companies 131 as to roads and bridges' damaged or destroyed after town meeting, 136-9, 672i to receive moneys for highway purposes 274 road machine, road scraper 277 noxious weeds 27t> to account 356, 370 accounting by 370 form of 370-2 account to be stated by auditors 871-3 filed and read to town meeting 871 pay of 795 a town charge 873, 795 appointment by board of supervisors of special 466-7' pay and expenses thereof 467 number of, may be fixed by town meeting and board of supervisors, 496, 782 when may alter, discontinue, widen or narrow State highway 508 liable for defective roads and bridges 682-4 decisions as to 684-91 damages and expenses on laying out, altering or discontinuing high- ways 706-7 HOUSES OP DETENTION: to be provided 576 agreement for keeping prisoners in 576-8 HOUSES OF INDUSTRY: exempt from taxation 205 IDIOTS : support of 613-4 INCORPORATED COMPANIES. (See Corporations. ■> INDEBTEDNESS. (See Debts.) INDIAN RESERVATIONS; exempt from taxation 213 IKDEX. 855 INDIVIDUAL BANKER : how assessed .,^' ^»>°is "•::;::""::::■:::.:::::::■■•■ su INSANE : support of 60a-13 may be sent to State asylum by superintendent of poor . . .' 603 indigent, when to be sent to asyluin .'.!'.." 604-6 proceedings thereon '.'.'.'. 604 how long to be kept in asylum ' 60'i-6 criminal insane, support of !!'.'.!!!!"!!! 610-3 support of indigent .'.'.".'."..'.'.". 608 INSPECTORS : at village election, who are J07 of elections. (See Elections.) canvass of election by 151-6 pay of, town charge ".'.'.'.'.."..." 373 800 must read and write the English language .'.'.'..'.' ".'...'.'. ! 150 INSURANCE COMPANIES: upon co-operative or assessment plan, when exempt from taxation 213 INSTRUCTIONS : for inspectors of election 158 for supervisors [[[[ 158 in Broome county Igl of comptroller as to assessments, etc 248-50, 267-9 for ratio and apportionment .' . . 647 for extending tax 263 INSURING : town buildings 373, 406 atown charge 373, 406 county buildings 406 n county charge 406 INVESTIGATION : of corrupt or tmlawfol expenditures 88 JAIL: exempt from taxation 204 repairs of 400,412,464,466,469,489, 574 solitary cells in 464, 574 limits, how fixed 494-5, 504 how established as such 494 in custody of sherifif 573-6 disinfectants for 574 to contain sufficient rooms for separate confinement 575 prisoners to be kept at hard labor 575 guards, pay of 799 physician for, how appointed 578 JOINT-STOCK COMPANIES : list of, to be made by supervisor 50-1 JUDGMENT : against town, when supervisor to pay 88, 374-9 auditing of 374-80 when must be audited • 344 when town charge ; ■■ 88, 373-9 against county or county officers, a county charge 375-fl may be compromised 537 how paid . . '. _• 373-9 for damages from defective highways and bridges 683 856 iKDEX. J UDQMENT — Continued. paob. against town or town officer, when a town charge 374-5 (See Decisions, 377-9.) to be laid before board of supervisors 375 JURISDICTION : definition of vii-ix, 251 acting witljout, void. .384, 251, 259, 839-48, 847, 404, 411, 449-61, 465, 479, 487 of the supervisor vii, 21-144 of inspectors of election 172-5 (See Elections.) of assessors. (See Assessment and Collection of Taxes.) of town and county authorities viii of town meeting 768-9, 779-93 of board of supervisors vii, viii, 450 of " local legislatures" vii JUEORS : list of grand 47, 514-6 pay of 415-6, 800 a county charge 415-6 qualification of grand j urors 47, 515 number of grand 47, 514 trial jurors 109-16, 800 pay of 415, 416 a county charge 415, 416 list of trial juries, in towns 109 in cities 110 how made 110 who are disqualified 110 exempt 111-5 qualified 115 filing lists of 115 form of list of , 116 term of service of 116 coroner's report as to 415 pay of 415, 800 in actions by and against counties 761 towns 786 JUBY: list of grand jury 47 form of 47 grand, number of 47 pay of 415-6, 800 list of trial 109-16 pay of 415-6, 800 (See JuEORS.) coroner's 415 pay of 415, 800 a county charge 415 list for justice of the peace 116, 874 JUSTICE OF THE PEACE: can take oath of oflSce of supervisor 7 when to appoint supervisor 8, 9 cannot appoint one of their number 8, 9 can accept resignation of supervisor 13 to give bond 35 form of bond 38 duties of, as to fire in woods 94 control of town house 100, 103 Index. 857 JUSTICE OF THE PEACE — Continued. p^eB. appointment of firemen 101 collector 101 excise commissioners 102 vacancy in office of, how filled 105 auditing accounts of 381-5, 422-6 form of account of 384 report by 434 to report fines and penalties to town auditors 424, 546-7, 598 to preside at town meeting 770 powers of 770 election of 777 to report commitments 615 action by or against county before 761 or tovms 736 fees of , 800 is a town officer 487 is a county officer 487 JUSTICES OF SESSIONS: pay of , 808 JUSTIFICATION: of sureties 18 JUVENILE DELINQUENTS: conveyance of 406, 538 fees for, how fixed 406, 538 KINGS COUNTY: correcting errors, informal proceedings, etc. , in 538 chairman of board in 626 stenographers in 406-10 (See Stenographers.) LAND: what is, for purposes of taxation ^^^o?i occupied, how assessed *J^ unoccupied • aiRri when town or county line divides, how assessed .416-7 of Forest Preserve, where taxed 0^1^^ vacant by removal of occupant • • ■ • • J™"^ of non-residents •*''*-°' *^d leased in fee, reserved rents ooIl-k omitted in assessment of preceding year ^o4-o in current year *°^-» :. bid in for benefit of county ^°°-0 certificates thereof ■ '*°° ° imperfectly described, taxes on, may be rqeoted ^wa of individuals, where assessed • LAWS: designating persons before whom oath of office to be taken, are directory ■ Livingston county poor law ^ _„ willful disobedience of, a crime ^_| penalty for 6ss_qi of Oneida county, enforcing oolleotion of taxes 325 board of equalization in '.V ggn Ontario county dog law ' • 2^ Richmond county dog law 858 Index. List op Laws Citbd and Quoted, other than the Revised Statutes ani> Laws as to Fees. 1815, chap .202 114 1860, chap . 71. 97 1829 " 287 352 356 290 53 5, 568, 586 775 777 1851, 126. 346. 134 176. 61» 559 100, 579-8a 1830, ..286-7, 240, 252 1831, <( 880 400 tt 371. 229-82 1832, " 222 101 tt 532. 691 " 246 ..387, 410 1852, tt 304. 408, 649-50- it 273 274 270 115 76 661-2 778 76 1853, 1854, 1855, tt tt tt tt tt tt 195. 471. 96. 188. 326. 37. 190. 411 803 1833, 412 1835, 587" 1836, 117 506... 150 323 427 ...520-2, 523-5 579-80, 682 194 1837, 445-6 1838, " 117 654 tt 249. 474-5, 657 It 172 244 7 79 tt tt 269. 427. 36 ..246,260, 280-1, 285, 286-7 (( 314 . . .466-7, 624 657 662, 693-4 292, 450, 453^ decisions . 467 It 428 . 406, 758-60 1839, 369 323, 401, 428, 544, 651 389 V68 305 355, 395 225 42, 675-6 1856, tt tt tt tt -513. 546. 79. 108. 179. 183. 152 211 151 1841, 650 1849 130.. 145-9, 150, 1.53-5, 155-6, 159 519 211 " 135 57 114 2 1857, tt 46. 456. 212 1843, . . . 218, 306, 314 tt 199. iw 557 tt 536. ..236-7,238, 821 1844, It 125 556 " 585. 274 It 326 522-3 *' 615. 662; It 331 180,§1 §2 §4 ....159-64 782 782 784 1858, K 639. 103. 190. 678-81 1845 136, 672-S 475 7 decisions 477-80 §5 I 22 706 421 ,, 327. 357. 228 252-3 §24 .33-4, 344 1859, " 169. 55S §26 §28 .381- -2, 383, 423 .-.398, 649 tt tt 254. 289. 406 576-7 It 1 31 262 tt tt 312. 846. 360. 518, 643, 2£ 7 8 328, 329, 831 280 541-3 115 1846, 189 562 7 '* 327 .228, 252 tt 386. 567-8 1847, tt 197 210, §§4-8 .100, 103-4 700-2 tt tt 390. 476. 440-3 10& 8 26 96 1860, tt 12. 58. 274. 588 §83 703 356 §4S ..188, 304 548 '* 294 > . • . ..378, 406 tt 438. 374 (( 455,§7 . . . 707 1861, tt 83. 848 §9 . . . . 707 tt 215. 115 § 14 ....544-5, 650-1 1862, tt 220. 618-4 §23 707-8 " 245. 344 I 24 ...396, 545 1863, tt 172. 356, 371 '* 476 525 tt 325. : 77 It 480 > • • • 295-6 tt 404 424, 546-7 tt 498 .585 -6, 587, 703 1864, tt 197. 75-6, 380-1 1848, " 37 • • ■ . 214 tt 555, title 2... 551-2, 152. 552. 516 « 136 566 3.... 517 164 ...468, 693 516, 453, 525, 657 u 176 598-9 14 4..15, 47 8 64 65, 69 259 ...305, 699 19, 28, 29, 49, 50 '* 327 588 ' ' ' ' 64 1S49, !! 69 374 5.... 6.... 63 194.. 468-72, 631 547 -8, 596, 657 ...54,55,66,57-8 663 7.58, 59, 60, 61, 62, 65 decisions 472-3 294, 295 Index. 859 List of Laws Cited aot) Quoted, etc. — Continued. PAGE. 1865, chap. 34 403 " 110 409 " 453 234^6, 253 " 585 401-2 1866, " Y8 17 " 273 211, 394-0 1867, 1868, 1869, 1870, 1871, " 1872, 1873, 1874, 534. 761 832 361 697 744 774 575 599 110 855, §1... 66, §4.. §5.. 14 814 857 89 67 80 450 253 574 625 . .139, 480, 485, 667-8 481, 486, 694 ............482, 694 .254-9, 482, 486, 537 SB 357,422,488, 487 §7 483, 487 §8 417,483, 488, 594 §9 484, 488 §10 484 decisions 485-8 907, §3 373 §4 559-60, §5. §r. §9. Sll. 1 291 713 715 715 715 716 716 716 §12 43,44, 716 917 301-2 go 107,' 617 300 709 325.-. 258, 757 506 655 552 43, 388, S45 115 626 537 387-8 712 151-2 859 569-70 888 317 17 655 143 891-2 458 791 518.. 784 587 403, 553-4 767 403 48 785 395 785-8 440 703 474 164 661 602 720 6,40, 388 722. 737. 833. 49. 173. 232. 253. 296. 769 181 ,..414, 415 212 768 412 19 780 .403, 550-1 1874, chap. 410. " 416. " 421. 1875, 444.. 446.. 180 . 181., 251., 328.. 421.. 464 . 465.. 482,- i PAGE. 84, 389' 588 68, 373 6,' 102, 373," 392| 413, 601 789-91 ......601-2, 603-8, 610-3 87, 358-9 554 488, 678 85 1876, 1877, chap. 571 . " 585. " 606. 49. 135. 231. 485. 102. 172. 731 576 317 il, sub, 1 489, 500 2.... 489, 500, 550 688 3 490, 665 4.... 490, 502, 668 69& 5.... 491, 502, 695 6....491, 502, 668 7.... ....492, 664 8 492, 69& 9.... 492, 502, 671 696 10.... 493, 503, 697 11.... 493, 503, 698 12 493, 698- 13 279, 493 14 498 15 494, 598 16 494 17 494 18.... 494, 504, 581 19 495 20.... 104, 495, 504 21 495 22 495 23 496 24 496 25 496 26 496 27 496 28 497, 517 29 497, 504 30 497 34 497, 505 36 497, 519 37 497 2 401, 497, 505, 545-6 3 497, 505 4 498, 505 5 498 6 498 7, sub. 1....498, 506, 627 2 498, 506, 628 3.... 401, 498, 506 548 8 498, 506 678 86 J 706-6 329,330,831, 332 703-4 626 705 658 578 860 INDEX. List of Laws Citkd and Quoted, etc. — Continued. 1877, 1878, 1379, 1830, PAOB. chap. 191 409 " 320 712 " 349 388,718-20 " 436 560-2,566-7 " 49 42, 279 75 710-2 " 107 35 " 122 " 203 212 219 377 31 250 275 307 1881 1882, 1883, LEASE: 506 304 536 , 659 272 788 212 507 , 88, 754 355 400, 588 441 704 534 102, 405, 532-3, 534 9 67 21 102 56 150, 155, 156 91 288 142 149 175 507, 698 210 517,242, 260 336 474 347 615-7 366 150 460 177-8, 131 482 408 484 704 534 315 542 318-20 552. 554. 591. 166. 203. 226. 283. 433. 468.. 469.. 488.. 522.. 581.. 659.. 673. 213 876 ... 584 ... 50 ... 538 ... 394 .428-31 ... 556 ... 213 ... 301 ... 802 ..691-2 ... 732 . .745-8 ...408 325 700 346, 682-91 €8 15 196 418, 551 317 508 389 411 409 207,811-4 79 431-4 122 782 130 87 215 408 299 114, 526-7, 528-30 317 405 342 216 346 42,608, 669-70 PAOE. 1883, chap, 392 198 ' 483 135 1884, •' 21 576 " 163 443-5 " 210 141, 278 " 312 620 " 337 548-9 " 353 815 " 368 434-40 " 386 185 " 396 370 " 438 599-601 " 456 104 1885, " 32 280 " 140 566 " 160 509 " 201 232, 240-1 " 270 117-23, 373, 405 " 283 95, 96 " 34S 40',) " 490 603 1886, " 173 509 " 278 733 " 280 191-2 " 306 638 " 315 216 " 316 34,45-6 " 326 127 " 344 277 " 355 417, 510, 594 362. 391. 401. 419. 429. 435. 449. 626 212 408 98 534 192 60 " 585 359, 862 " 644 100, 510 " 659 803, 655 " 679 315, 816 1887, " 403 142 " 479 820 " 525 511-2 " 526 691 " 592 63 " 603 127-30 " 655 366, 510, 594 " 699 315 " 706 392-4 " 711 410 " 713 562-3 1888, " 53 130 " 119 621 " 232 408 " 242 412 " 292 527-8 " 577 405,533, 534 1889, " 283 610 " 331 555 " 397 130 " 402 15, 40 " 466 69 of town or county buildings to Q. A. E. , how taxed. (See Ebnts.) 100 Index. 861 LEGISLATION: p^^^ by supervisors to be by resolution 448 460-3 committee on. (See Committee on Legislation.) LEGISLATURE: power of, to impose taxes i Igg to determine taxable persons and property 186 decisions thereunder 186-7 to determine amount of tax for local improvements 186 to apportion tax , 186-7 not without limit 187 cannot authorize tax for private purpose 187 must be for public purpose 187 LEVY OF TAXES. (See Assessment and Collection of Taxes.) LIBRARIES: when exempt from taxation 307 free public, how established 791 LIBRARY MONEYS: disbursing of 29 LIGHT-HOUSES: exempt from taxation 213 LIST: of assessors and collectors by town clerk 46 to be delivered to board of supervisors 46 of grand jurors 47, 514-6 form of list 47, 515 of corporations, etc., to be made 50 of trial jurors 109-16 of stockholders in banks 813 of railroad taxes and valuations 331, 655 of telegraph, telephone and electric light companies 655 Livingston county: poor law 864-6 decisions relative to .■ 366-8 (See Poor.) LOAN COMMISSIONER: feesof 796 supervisor cannot be 5 accounts of, to be examined 534 report by supervisors as to 534 duties of supervisors as to 530-6 LOCAL SCHOOL FUND. (See School Fund.) LUNATICS: conveyance of 406, 588 to be cared for, by committee or friends 604 if not, to be reported to the superintendent of poor 604 and sent to asylum 604 at -whose expense 604^10 their estate liable for their support 607 MANDAMUS: duty of board in '84 where no discretion vested in supervisors.. 388-9, 841, 345, 396, 449, 465 to correct equalization 330 to levy tax for salary 838-9, 455 contract 340,341-3,457,460, 505 to annul illegal item in claim 340 8U2 Index. jy[ AND AMtrS — Continued. page. where it lies, to vacate whole audit where illegal item in, cannot be ascertained 340 to compel board to act on claim 340, 341, 342, 391, 465 to compel levy for bonds issued 844 amendment of informal claim 345, 350 board to act specifically on each item 345 setting aside fund for railroad sinking fund 347-9, 565 levy of claim rejected for informality 350 levy by subsequent board where prior board has neglected its duty 353 meeting of board where it had adjourned without doing its duty. 353 successors of board to be convened therefor 353 levy for support of poor under Livingston county act 367 when not allowed •. . . 367 audit where no funds to pay 416 audit of expenses of district attorney 416-7 audit to refund taxes where town line in dispute and taxes twice paid 473 levy and collection of State tax 257-8, 513 chairman to correct his decision 353, 486 auditors to audit and allow just and legal claim 338-43, 449 board to audit account of armorer as certified 539 even for Sunday work 529 audit of sheriffs account as jailer 578 to provide funds for orders superintendent poor 592 for services j urors 592 to compel city authorities to levy and collect the sum audited as costs in equalization 332 to compel board to levy for damages appraised in laying out, etc., highways 708 for neglect of duty by supervisors 343, 455 by or against the board of health, when 123-81 against county canvassers and in election cases, when . .172-81 by judgment creditor when town divided 377, 472-3 to audit judgment, when 877-9, 472-3 to enforce act giving preference to veterans 621 ■(See Elections; AtJDiTma op Accounts; Assessment and Collection of Taxes; Eailhoad Aid Bonds; Poor.) when it does not lie : to enforce delivery of books and papers to successor of officer by . . . . 24 to compel officer to meet and account after his term of office has ex- pired 363 but see 738 to direct how auditing board shall audit 340-1, 413 where claimant has accepted the amount audited 342 to compel board to re-examine a claim 343, 349, 350 to make judgment against highway commissioners a town charge unless it was recovered upon a liability incurred within the scope of their authority 377-9 nor for neglect of officer 377-9 to require board to levy and assess judgment upon a town where town's territory has been divided 377, 472-3 to compel county treasurer to pay illegal claim 339, 340, 404, 465 to compel board to furnish another o£Sce, court-room, etc., where they have already furnished one 412, 572 to compel audit of district attorney for expenses of extraditing criminal 417 to levy fees of officer where one town merged into another by the legislature 487 to deprive the county clerk of the custody of records 488 to restrain officer from exercising his office 506 or to enjoin one claiming an election or appointment from qualify- ing 506 IKDEX. 863 MANDAMUS — Continued, when it does not lie : to pay discount on county order kqq to compel town treasurer to pay over taxes 'coVlected "from railroad to any one but railroad commissioners 727-8 to compel town auditors to audit expenses of overseer of high ways in carrying on an unauthorized action 74O MAJORITY : of three or more persons, when may act 93 MANIFEST ERRORS : what are, and how legalized 254-7, 482 486-7 537 MAPS AND SURVEYS : for comptroller 41,281, 283 when a county charge 281 288 of non-resident lands for assessors 227 on division and alteration of towns 468 of highways and towns •. 93 of fire district 95 in county clerk's office, custody of 556 MEETING : town. (See TOWN Meeting.) schools. (See Schools.) of board of supervisors 463, 623-4 (See Board of Supervisoks.) of county canvassers. (See Elections.) MILITARY : armory for 526-9 enrolled 530 duty of supervisor as to 526^30 pay of 530, 803 duty of board of supervisors as to 526-30 MILK : seizure or destruction of 180 MINISTERS : when property exempt from taxation 207-9 MISTAKES : in election returns, how corrected 163, 172-81 in assessments 227-43, 251-7, 482 in assessment-rolls 337-43, 351-7, 483 in verification of accounts, account to be returned for correction 345 howlegaUzed 253-7, 482, 486-7, 537 MISAPPROPRIATION : by public officer 1 MOBS: damages by, county charge 406, 758-60 actions thereon 758-60 decisions thereunder ' 760 MONEyS, ETC.: embezzlement and misappropriating of 1,3, 3 supervisor to demand and receive from predecessor 28, 28 if refused, how proceed 23, 38 accounts of, how kept 28, 33 of school. (See School Moneys.) for poor must go to the overseers of the poor, not to the supervisor 374 lor highway purposes, to highway commissioners 274 864 Index. MONEYS, ETC. — Continued. page. when " moneys are necessarily expended " 416-7 from fines and penalties to be reported 434, 546-8, 598 and paid over 434, 546-8, 598 MONTGOMERY COUNTY : auditing accounts in 440-3 MONUMENTS : State boundary 50, 98 for Boldiurs 311, 483, 509 or other persons 488 for highways 493 aoquiiing lands for 394 for boundary lines 470 MORTGAGES : for collection, when exempt from taxation 318 books for chattel mortgages a town chEurge 874 MUNICIPAL INDEBTEDNESS: for raUroad aid bonds. (See Railkoad Aid Bonds.) under Laws of 1870, chap. 300: bonds, lien upon real and personal property 709 tax therefor to be levied and collected 709 bow in villages 709 under Laws 1874, chap. 410 : town meeting may vote tax to pay 889 or provide sinking fund 389 town board to meet, when 889 determine the amount to be raised 889 form of ballot 389 manner of voting ' 389 notice thereof to be given 889 contents thereof ... 389 result of such, vote 889 money raised, for what to be used 389 duty of supervisor thereon 889 under Laws 1878, chap. 75 ; indebtedness may be paid up or retired by issuing new bonds 710 by whom to be issued. 710 when to be issued 710 old bonds to be canceled and destroyed 710 certificate thereof to be filed 710 old bonds, when can be exchanged 711 when time may be extended 711 application of moneys from new bonds 713 old indebtedness not to be increased 713 new bonds may be payable in installments 713 certain defects in bonds cured 713 under Laws 1886, chap. 316 : present indebtedness may be paid or retired by issuing new bonds. 45 by whom issued 45 when issued 45 rate of interest thereon 45 old bonds to be canceled 45 certificate thereof made and filed 45 w^hat to contain 45 not to include bonds adjudged invalid 45 when payable 45 amount payable each year 45 new bonds, what to contain 45 effect of recital in 45 exempt from taxation 45 Index. 865 MUNICIPAL INDEBTEDNESS. — Continued. p^^g under Laws 1886, chap. 316 : new bonds, report of money received and collected thereunder. . . .45-6 what to contain _ _ aq tax to pay interest and principal !!..!'.,!!!.'!". 46 officers acting under this law to give bond. ...'....'.'.'.'.'!!!,".! i i ^ i . .' 46 to whom and amount thereof !!!!!!'!!!!"!'.' 46 condition of .'!!!!!!!!'!!..'."!!"" 46 sufficiency of. how determined '.'.'.'. 46 where deposited '.'.'.'".'.."."]' 46 penalty for breach of duty !...'!!,'.'!!.".!!.'.'.!!! 46 for embezzlement of funds, etc '..'.'.'.'..'.'.'.'...'.. 46 :national guard. sae-so (See MiLiTAKT.) IfEQLECT: of assessors to meet on " review day," how act 340 town or county not liable for officers' 346-50 to audit is r^ection of claim , Sr)3 by one board to audit, subsequent board may be compelled to audit 353 NEGLIGENCE: claims for, of town or county officers, not to be audited 346 exception thereto 846 N. T. &0. M. R. R.: taxation of 730 county taxes on, to go to towns 730 NON-RESIDENT: lands of, to be surveyed, when 83 rents and debts due, how taxed 193, 238-9 assessment-roll as to 335-8, 353 creditor, how taxed 193, 194, 196-7, 317, 220, 238-32 agent of such creditor to report to county treasurer 330 bow taxed therefor 330-3 how collection made thereof 230-3 land vacant by removal of occupant 346 lands of, powers of board of supervisors as to assessment of 353 unpaid taxes of 293 proceedings thereon 292-7 tax on highways may be appropriated to Improve the highways 493 NOTARY PUBLIC: can take oath of office of supervisor 7 NOTE "A." 809 JSIOTES: " town notes " so called 390 invalid, when 890-1 for collection, when exempt from taxation 313 j;rOTlCE: to be given supervisor elected 7, 777 to be given collector of amount of taxes ii5 to be given by supervisor to his successor of account of school moneys. 50 by school commissioner altering or forming school district 56 calling district school meeting 66 of elections 147 of special election _■ 173 of deposit of assessment-roll for public inspection 336 with town clerk 243 109 866 Ikdex. NOTICE — Continued. pAoa. to be given by assessors to banks 311 one dealing with agents of municipal corporation chargeable with notice of their power 343, 457 of annual and special town meetings 793 of appeal from equalization 333 of appeal from auditing of town charges 357 of contract with penitentiary to be published 576 of application to review determination of supervisors as to amount levied to assist towns in building bridges 670 of application by bridge companies for leave to build bridge 699 to be given when distinction between town and county poor abolished. 596 of Cornell University examination , 40L NOXIOUS WEEDS: duty of highway commissioners as to 43, 379 taxes for cutting 379 board of supervisors may enact laws to destroy 470 OATH: I supervisor to take and subscribe 6 when to be taken 6 to be filed 7 form of 6 before whom taken 7 certificate thereof 7 penalty for acting without taking 7 as to books, records and moneys if required by successor 33 of office of justice of the peace 38-9 to be filed 38-9 supervisor may administer 83 of county canvasser 160, 166 of individual banker as to capital 313 OCCUPIED LANDS: how assessed 315-7, 319-30- tax on, by removal of occupant 246 OFFICE: exercising functions of, after right so to do has ceased 3 what offices supervisor may not hold 5 qualifying for, what is 19- supervisor to take and subscribe oath of 6 time therefor 6 form of oath of (supervisors) 6 oath of, before whom taken 7 to be filed 7 tenure of, supervisors 8 vacancy in. (See Vacancies.) time for opening and closing county offices, how fixed 498 of school trustee, term of 59 appointments to 617, 633 duration of 617 commission, how signed 618 cannot be by parol 618 appointing board cannot appoint one of their number 618 not an incorporeal hereditament nor a grant but an agency 618 legislature may control unearned emoluments of 619- appointments to, cannot be delegated 619 resignations of, how made 9, 619-20 veterans to be preferred for 620 decisions thereunder 621-2 not to be removed, when 621 decisions thereunder 631-2 Index. 867 OFFICER: qualification of, what is 19 acting as, without qualifying 3 de facto 3 refusing to surrender office to successor 3 before what, oath of office to be taken 7 embezzlement by 1 3 g falsifying, altering, concealing books, accounts and records by 1,3, 3 salary of, fixed by law, must be audited 338 salaried, not entitled to additional pay, for new duty imposed on him. . 339 terms of school ofScers, when expire 59 trustees of school districts, how determined 59 salaried, entitled to pay when physically disabled until legally removed, 889 account for services of, what to contain 345 losses by certain officers, on what to be charged 280 unless fee prescribed by law, no fee allowed 351 to keep account of fees 351 for false auditing 353 for paying false claim 353 extortion by 353 presenting fraudiUent claim 353 right to fees, salary, etc., legislative power over 338-9, 487 entitled to salary fixed by law 619, 338-9 commissions, how signed 618 town officers receiving or disbursing moneys to account 356-7 receiving moneys for fines or penalties to report and pay over 546-7 form of report 424 if not paid over no salary or fees to be paid 546 necessarily expending moneys for county, county charge 416-7 for town, a town charge 373 proceeding to remove county officer, county charge .403-4 except in bribery cases 404 of county, to report on order of board of supervisors 470 legalizing informal acts of 482, 486-7, 53'j salaries of certain county officers , how fixed 489, 500-2 successor of, may be substituted for, in suits 744 execution against, when may not be issued 377 not to be interested in any sale, contract, etc 1 willful neglect of duty by 3 refusal of, to execute bond or take oath of office 9 when msgority may act 92 OMISSIONS : in election returns, how corrected 163, 173-81 of property on assessment-roll, how valued and assessed 234-6 how legalized 353-7, 483, 486-7, 537 where assessors decide property exempt board cannot insert in roll 251 valuation fixed by assessors conclusive on supervisors 354^5 of assessors to deduct value of real estate from value of stock not a manifest or clerical error 255 ONEIDA COUNTT: enforcement of collection of taxes in 288-91 board of equalization in. 335-6 ONTARIO COUNTY : law as to dogs and dog tax 75, 380 ORDER: appointing supervisor 10 form of 13 to show cause on application for books, moneys, etc 25 where affidavit of delivery of books, etc., is not made 26 for school moneys, how paid 39, 30 altering or forming school district 55 868 Ikdex. ORDER— Continued. page. callinpf district school meeting 65, 66 appointing town sealer of weights and measures 100 collector 102 justice of the peace 106 dividing town into election districts 146 altering election districts 147 in supplementary proceedings 91 ORGANIZATION: of board of supervisors 623-34 who compose board 468, 623 annual meeting of 463, 623 how fixed 463-7 vote required 023 special meeting of ' 463, 467 how called 467 meetings to be public 463 quorum 463 clerk prepares roll 624 former clerk calls to order 634 in case of contested seat, how act 625 officers chosen 624 chairman 463, 624 in Albany county , 431 Erie county 626 Kings county 626 Rensselaer county 443 clerk 464, 620 term of office of 626 of Albany county 481 Erie county 626 Kings county 628 Rensselaer county 443 reading clerk 627 janitor 637 rules to be adopted 627 must not conflict with statute 627 codes of 628, 638 contested membership 628 committees 633 standing, list of , 634 who is chairman of 633 members of, may select new chairman 633 when supervisor not to act on 634 of county canvassers 159-62, 165-B ORPHAN CHILDREN: when not to be kept at poor-house 599-601 OSWEGO COUNTY: annual and special meetings of board of supervisors in . 623 OVERCHARGES : in non-resident taxes, how deducted 260-1 OVERSEERS: of the poor to give bonds 36 form of bond 39 moneys in hands of, when appropriated for other purposes 53 on division of town 92-4 on alteration of town 92-4 to account 363-6 form of account 368 to keep books 363-6 Index. 869 OVERSEERS— C!ontinued. p^q^, of highways to return highway tax not worked , 29 0-8 form of return , 297 pay of ;".. \[] 803 a town charge S73, 803 numher of, may be fixed by town meeting and board of supervisors, 496, 783 to report to superintendent of poor when lunatic not cared for 604 to report commitments to benevolent institutions 615 PAPERS, BOOKS AND RECORDS (see Books and Papers): supervisor to demand and receive 28 if refused, how proceed 33-8 papers to publish session laws and official notices 499, 541 to publish election notices and oiScial canvass 499, 545 how designate 541-3 PAUPERS. (See POOB.) PAY OF OFFICERS AND OTHERS. (See those titles ; Fees.) PENALTY: for refusing to serve as supervisor 6 for acting as supervisor w^ithout taking oath of office 3, 7 for neglecting or refusing to report town debt 43 paupers and support of poor 48 school moneys ou hand 49 for refusing to assist in extinguishing fire in woods 94 for violating regulations of board of health 121 as to violating uniform ballot law 151 election law 165 for refusal to deliver weights and measures 583 for using or keeping false weights and measures 583-4 for not reporting amount due to non-resident creditors 230 for not accounting by supervisor 1,3, 862 by overseer of poor 363 for obstructing health ofEcer , 131 for willful violation health laws 181 for neglect by supervisor 454, 465 for making false statement as to tax or assessment 222 for false auditing 353 for paying false claim 353 for presenting fraudulent claim 353 for neglect or refusal of county officer to report 470, 546-7 application of, in toifrns 494 moneys from, to be reported to supervisors 546-8 and paid to county treasurer 547, 598 if not paid, suit to be brought therefor and no salary or fees paid . 546-7 for neglect to so pay 547 for neglect of county treasurer to deliver books to his successor 567 to report 568 for neglect of superintendent of poor 598 for neglect to report commitments to, or discharge from, benevolent institutions 616 for violation of game law 530-5 to whom paid 533 for neglecting to report county, town or village debt 655 for other violations of law 8 PENITENTIARIES: agreement for keeping prisoners in ^'^tna notice thereof to be published • o^" such contracts valid wa what prisoners to be confined in , K77_fi expenses of IT? when liable for support of criminal insane oil 870 Index. PHYSICIANS: paoe. pay of 414-5, 678, 803 for jail 578 PIPE-LINE COMPANIES: where assessed 804 commutation of 304 State tax on 818-20 PLANKROAD: use of highvray for 96-7 company, agreement of, to keep highway in repair 97 lands of plankroad company, where taxed 188, 304 exemption of 211 use of, abandoned 481 tolls on, bow altered 481, 490 purchase of, by towns 493 application to supervisors to construct 700-5 power of supervisors as to 700-5 (See BoABD of Supervisors.) POOR: overseers of. (See Overseers of Poor.) supervisor to report paupers, expenses of^ support, etc., to clerk of supervisors 48 moneys, how appropriated for other purposes 53 if distinction between town and county poor abolished, power of tovm meeting over poor moneys 791 who is State pauper 603 county pauper 602 tramps a State charge 603 one temporarily disabled, when not a pauper 866, 367 form of account may be prescribed by the board of supervisors 510 and of auditing thereof 510 disbursements for temporary relief 510, 591 who may abolish : 470 moneys for, must go to overseers of the poor, not to the supervisor 374 Livingston county poor law 864-8 accounting under 864 form of 365, 368 wheu towns to support poor under 364 certificate required by 365 town board to estimate expenses of town poor /or ensuing year 365 superintendent of, to account 365, 417, 483, 594 report of superintendent 418-20 support of, when county or town charge 404, 595 lands and buildings for poor-houses 409, 489, 585 drafts for support of, not under control of supervisors 593 (See Board of Supekvisobs.) superintendents of, number of, how determined 585 term of office of 587, 588 vacancies in, how filled 587 -nrho not eligible to be superintendent , 586 pay of 587 to give bond 588 powers of , 587-94 decisions as to 594 when may appoint keeper and physician 591 meeting of, may be directed by supervisors 589 what accounts he may audit 589-90, 591, 593, 594 powers of supervisors as to such accounts 591 majority of, to act 594 is agent of the county 592 may be sued for supplies fomislied 593 Index. 871 POOR — Continued. page. superintendents of, how suit brought 593 must not discriminate between tovrn and county poor at poor-house, 592 not to receive poor therein without an order 593 auditing accounts of 365, 417, 483, 594 Warren county, act as to 595 how supported in other counties 596-8 distinction between town and county poor, may be abolished . . . 470, 595-6 or revived 470, 595-6, 598 notice thereof, how given 596 care and maintenance of, cannot be sold at auction, etc 598 jchildren not to be kept at poor-house 599 Temoval of child from one institution to another 599 children may be bound out 600 surrender of children to corporation 600 children supported on authority of overseer, when town charge 601 may be sued for 601 «xcise moneys, when applicable to support of 601 support of prisoner confined on civil process, county charge 601 benevolent institutions 615, 617 indigent insane, support of 603-10 supervisors to designate asylum for .% . . 604 when relatives unable to support, county liable therefor 604, 607 remedy of county against relatives therefor 604-8 supervisors to raise money for support of 605-6 patient to be properly clothed 607 ■county liable for expenses of removal of 607-8 indigent insane not paupers, town charge 608-10 criminal insane 610-13 when commission issues to inquire as to sanity of 610 1 costs of commission, coimty charge 610 transfer of insane convict 611 how supported ol 1 support of insane under civil process 612 expense of insane criminals at asylum, county charge 613 idiots, support of ;"A." j^*^~^ supervisors no power to direct county treasurer not to pay drafts of superintendent of poor 593 are bound to provide funds therefor 592 POOR-HOUSE: exempt from taxation 305 PEINTINGt: court calendar is county charge • • • • 401 also session laws Jni ' kJI also resolutions \'^, -;,no' VaW'^AA 'fil' ati also audits 401, 428, 467, 544, 545, 651 election notices' by town officers is a town charge. . : 401, 543 equalization 401, 544 notices for comptroller /m -ii official canvass '400 judgment-roll in criminal cases *"-' Cornell University notices • -. • • • • f^j- statements as to supervisors' salaries and compensation 04S, bou for county officers, not under control of supervisors 54d fees for • ^*"" ''"* (See Publishing.) PRISONERS: confined on civil process, support of 573 on criminal process ; •.••.■ "2,„ employment of, may be authorized by supervisors 494, 5/5 separate confinement of ■ °''' 872 Index. PRISONERS — Continued. pagb. to be kept at hard labor 575- in penitentiaries 576-8 who are to be confined in penitentiaries 576-8 removal of 538, 577-8 PROCEEDINGS: to compel delivery of books, moneys, etc 23-8 of boards of supervisors to be pubUshed 498 legal, against towns, how process served 51 legal, against town, to be reported to town meeting 51, 736 supplementary, for collection of taxes 89-91 when vrarrant against non-resident creditor unsatisfied 233 on equalization to be published 333 for removal of county oflBcers a county charge 403 except in bribery cases 403 PROPERTY: of town, how apportioned on division or alteration Ihereof 93-4 liable to taxation 188-97 exempt from taxation 198-314 where to be assessed 314-88 personal, taxation of 193-7, 318 valuation of, by assessors 333 review day 233 omitted, how valued and assessed 234-6 spoliation or misappropriation of public 763 summary investigation of corrupt expenditure of 754 (See Assessment and Collection of Taxes; Buildings; Boakd of SuPERvisoKS; Corporations.) PUBLISHING: amount of town debt 43, 545 canvass of elections 161, 543 equalization proceedings 401, 544 notice to present accounts in certain counties 343 town audits 401, 428, 545, 651 county audits .401, 467, 544, 651 and claimants 467, 544, 650 official canvass 401, 499, 543 and election notices 401, 499, 543 session laws 401, 499, 541 how papers selected 541-3 supervisors no power to provide for printing by other county officers. . 543 statement as to supervisors and others' accounts 544-5, 650 town debts 545 resolutions under the act of 1875 545 notice of contract with penitentiaries 576 fees for 543 QUALIFICATION AND ELECTION: of supervisor 4, 19 of electors 4 of grand jurors 47 of trial jurors 109, 116 QUALIFYING FOR OFFICE: what is 19 QUEENS COUNTY: board of supervisors, powers of 484, 486 Index. 875 QUORUM: 624 .92, 351 of board of county canvassers supervisors .■.■.■.■.■.■.■.■;.■ ■.■.■.■.■.■.■.■.■.';;.■.■.■;. 463, 624 town auditors oo otT RAILROAD AID BONDS: under Laws of 1869, chap. 907 : all taxes, except school and road, on towns issuing, shall be paid county treasurer ™jo county treasurer to purchase therewith the bonds issued if can be purchased at or below par irj^. bonds so purchased, by whom canceled .'..'.'..'.'.'.'." 714 and deposited with board of supervisors !!.'.!!.' 714 if cannot be so purchased, county treasurer to invest said moneys as sinking fund 714 7i7_g in what invested '.'.'.'.".. ...'.. 714 county treasurer, may be compelled so to invest by order. !'!!!!!! 714 or by action 781-30 coupty treasiurer to give bond therefor *.*.'.'.'.!!'.'.!!'..... 714 duties of railroad commissioners thereupon .".'.'..'.'.." 715 bonds Hen upon real and personal estate ." !..!!! !J! !! ! 715 railroad commissioners to provide for sinking fund. .' .' .' .' .' .' .' .' .' ! . . . . 716 how provided .".'.'.'.'.".'.."''.' 716 board of supervisors to levy for deficiency in 716 custody of railroad bonds or stock subscribed for '.'.'.'.'.!!!".'.! 716 and collect interest thereon _ 7I6 penalty for misapplying moneys !..!.'.'.' 716 bonds to be registered ". !!!'.'.'. 717 perpetuating consents of tax payers [[[ 7I7 railroad commissioners to report annually 71 g what to contain 71g to be signed and verified 71g to be delivered to the board of supervisors 718 within first three days of session 719 supervisors to levy tax to pay bonds 719 tax to ■whom paid 719 commissioners to give bonds • .... 719 amount and condition thereof 719 to pay bonds at maturity and cancel said bonds 719 how cemceled 72ft and keep record thereof 720 records to be public 720 to report to town auditors, when 720 contents of. 720 and produce canceled bonds 720 duplicate report to be filed 720 report to be indorsed by town auditors, etc 720 how indorsed 720 report and canceled bonds to be filed in county clerk's ofiBce. . . 720 counties and towns excepted from provisions of this act 720 decisions 720-30 for New York & OsTirego Midland Railroad : county taxes thereon appropriated to towns issuing bonds therefor. 780 and payable to railroad commissioners 731 duty of collector 731 liability of collector and sureties 731 payment of, by exchange 731 payment therefor, by issuing new bonds 783 old bonds to be canceled 783 and filed 733 new bonds, when payable 733 exempt from taxation 783 annual reports thereunder. ..........,.,,., 733 tax to pay 733 110 814 Index. RAILROAD AID BONDS — Continued. page. when old bonds lost or destroyed, how act 738-4 application of tax payers to pay 85 RAILROADS: ofScers administering funds for railroad indebtedness to give bonds. 15, 43, 45 and report annually. . . . ; 48, 45 valuation of, apportioned among school districts 66 application of tax payers to pay indebtedness for 85 sale of stock of ban^nipt 86 sale of stock in N. T. & O. M. 102 U.C.&S.V 102 description of land of, in the assessment-roll 240-7, 307, 264 are residents of each town 'nrhere situated 299 where assessed and taxed 188, 299-803 real estate, valuation of 299-303 personal estate, valuation of 302, 306-10 foreign, how taxed 801, 303 officers of, to deliver statements to assessors 802, 306-10 what to contain 802, 806-10 State tax on franchise of 318-20 debts, how apportioned on erection of new town 474 tax for railroad debts to be paid railroad commissioners (or county treas- urer) 347-9, 474, 913, 731 list of, taxes and valuations of, to be reported to county treasurer by clerk of board 655 county 705-6 BAILROAD COMMISSIONERS (see Railroad Aid Bonds) : to give bond 46, 388 not eligible for supervisor 6 when eligible 6 transfer of powers to supervisors, when 15 papers to be served on 16 to report annually 45, 387-8 to sell stock of bankrupt railroad 86 in U. C. & S. V. K. R 103 inN. Y. &0. M. R. R 102 duties as to town bonds 387-8, 716-20, 780-4 to keep records, etc 387-8, 720 pay of 804 town charge 873 duties on division of town 474 on erection of new town 474 to receive moneys from taxes for railroad debt when town divided 474 EATIO AND APPORTIONMENT: committee on 643 duties of 648-7 BEADING CLERK: duties and election of 637 REAL ESTATE: what is, for purposes of taxation 188-94 exempt therefrom. (See Exemption prom Taxation.) valuation of, for taxation 233-3 (See Assessment and Collection of Taxes.) of corporations. (See CORPORATIONS.) RECEIPT: for books and papers 34, 53 EECEIVER: property in hands of, taxable 319 Index. 875 EECOEDS: of a legislative body are the best evidence and must control 519 cannot be changed by extrinsic evidence ' 519 of board of supervisors. (See Books and Papbbs.) not to be mutilated 048 EEFUNDINQ: after judgment of the court 258 taxes 358-61, 284, 487 on invalid sale 385 in cases of disputed town boundaries 471-3 debts, by issue of new bonds 45 (See Chapter XV.) REFUSING TO SERVE: what deemed 10 as supervisor, penalty for 7^ 9 to give bond, misdemeanor 9 as collector loi, 275 EEGISTEEED VESSELS: •when exempt from taxation 213 EEGISTEATION: of births, marriages and deaths 119 EEJECTED ACCOUNTS: accounts, if, on the merits, not to be audited by other boards 349 if for informalities, may be audited 850 EEJECTED CLAIM: by refusal to act thereon , 353 EEJECTED TAXES: report of , 41, 283 by comptroller 282, 293 for erroneous descriptions 283, 293 to be added by supervisor to roll 283-3 Oneida county law for collection of 288-91 EENSSELAER COUNTY: auditing accounts in 443-5 organization of board in 636 EENTS AND DEBTS: owing non-residents, assessment of 193-7, 228-9 due residents, how taxed 193-7, 229 due for purchase of real estate taxable 239 howtaxed 229-33 reserved in fee, powers of board of supervisors as to 353 BEPOETS: by supervisor 41-51 by supervisor as to forest fires 95-6 of injury or spoliation of Forest Preserve 95 of fires in Forest Preserve to forest commissioners 96 by surrogate 571 as to rejected taxes _• 41 as to highway commissioners' statement of roads and bridges 41 as to noxious weeds 43 AS to town debts 43-6, 51, 718 (See Railroad Aid Bonds and Municipal Indebtedness.) formof 44 to superintendent of public instruction 47 AS to paupers 48-9 876 IxDEX. REPORTS — Continued. paqs. of school moneys on hand 49 form of '. 50 of account of school moneys to town clerk SO of list of corporations for comptroller 50 of actions, suits against town, to town meeting 51 of committee on forms of assessment-rolls 250 of committee on footing the same 251 of committee on erroneous assessments 356 by railroad officers to assessors 303 by telegraph companies B03 on equalization 326-8 by justice of the peace 424, 54&-7, 598, 615 by any officer receiving moneys for fines or penalties 424, 546 by town auditors as to gospel and school lot funds 390 of superintendent of the poor 418 of coroner 414 by county officers, when required by supervisors 470 of committee on grand jury 515 of committee should contain resolutions desired to be adopted 461-3 the adoption of such report.adopts and passes the resolutions therein.461-3 effect of omission of such resolutions in report 461-3- by excise commissioners 548 by loan commissioners 524 by district attorney 424, 546, 552 by county judge 554 by county treasurer 566-8 penalty for neglect 568 by village water- works commissioners 554 of commitments to benevolent institutions 615 or discharges from 616 of clerk to comptroller as to town, county and village debts 655 (See Committee.) of school trustees 60, 525 new school districts 59 term of office of 59 of committee, should contain appropriate resolutions 461-3 examples of 461-3 by benevolent institutions 615 of trusts to superintendent of public instruction 525 by surrogate 571 RESERVATIONS OF INDIANS: exempt from taxation 212 RESIDENTS: taxation of debts due 193, 195 real estate 214 occupied by 215 divided by town or county line or town or city line 216 personal property of 218 RESIDENCE: what is, for taxation purposes 219 presumed to continue, for taxation purposes 222 RESIGNATION: of office, by supervisor 9, 13 by collector 101 of office by any officer 619-20 RESOLUTIONS: form of, as to canvass of election 170 elected officers 170 confirming alterations in assessment-rolls 257 Index. 877 BESOLUTIONS — Continued. j.^^^_ confirming tax as extended on assessment-roll 263 powers of county, only exercised by .460, 498 board of supervisors must act by resolution 460, 498 illegal condition in, void 4(iQ contained in report of committee 461-3 how confirmed .461-3 to be entered on their records 460, 464, 483, 487-8 of board of supervisors authorizing suit 332, 343 to be signed and recorded , 460, 464, 483, 487-8 under act of 1875 498 form prescribed 498, 635-41 to be published 498, 545 to be filed , 498 authorizing bonds to be issued, what to contain 498, 685-40 legislation of board of supervisors to be by 460. 498 contained in report of a committee, how adopted and passed 461-3 form of motion therefor 461-3 selecting nevrspapers to publish election notices and official canvass 543 bonding county 498-9, 635-6 town. 637-40 authorizing survey of highway and roads 636 levy for road scraper 637 division of town and erection of new town 640 town meetings to be held by election districts 641 by committee on ratio and apportionment of taxes, as to their report and levy of taxes 646 *' REVIEW DAT " 338 notice thereof 337-40 powers of assessors on 200-1, 338-40, 350-1 penalty for making false statement as to tax or assessments 223 reduction of valuation on 300-1, 239^0 if assessors neglect to meet 340 neglect of assessors as to 344 BICHMOND COUNTY ACT: in respect to dogs 76 EIOTS: damages for, not to be audited 346 nor presented for audit 846-9 EOADS AND BRIDGES: statement of highway commissioner as to 41, 660 increased sums for, may be voted by town meeting 661-3 how proceed • 661-3 by board of supervisors 603 over boundary streams or waters 43, 490-1, 663, 665, 667, 669 damages on laying out, altering or discontinuing of .43, 706-8 damages to, after town meeting Ttn' cI? meeting to determine amount to be borrowed for 139, 673 proceedings thereunder 139. 673 road scraper, road machine for 377 stone crusher for 1^| stone may be purchased for 141 custody of 1^1 tax to pay for I'o ' ' repair of, damaged or destroyed after town meeting 136, 672-3 decisions as to V«r roS to be repaired by board of supervisors ■ 4t)b, bad moneys for, voted by town meeting, to be levied by board of super- visors 466, 491, 493, 661—3, 664 notice therefor 466, 661-3 to be published ■*b7 878 Index. ROADS AND BRIDGES — Continued. paqbt. borrowing money by town for 139, 480, 491, 664, 666 when officers to determine amount therefor 139, 480-1, 666-7 amount limited 139, 480, 667 to be authorized by board of supervisors 480, 491, 666-8 ■who prescribe obligation therefor 481, 667 bonds therefor to be indorsed .... 481, 067 record thereof to be kept 481, 668 bonds to be delivered to supervisor 481, 668 bis duties thereon 481, 668 proceeds, how applied 481, 668 may provide for use of abandoned turnpike, plankroad or macadam- ized roads 481, 664, 694 apportion expense therefor 481, 664 change of location of bridges 490, 664 proceedings thereon 490 bridges over county boundary streams 490-1, 508, 068, 678-83, 699 town and county boundary streams 491, 663, 665, 668, 678-83, 695 grading streets 493, 671, 696 width of highways by board of supervisors 493, 697 survey of 493, 693 State road, alteration of, etc 508 when counties to pay at least one-sixth of expense of 668-70 may pay more 669 construction of plsmkroad or turnpike 700 proceedings thereon 700-3 charter of, how extended 70S abandonment of 704 tolls on 705 county railroads 705-6 abandonment of 706 altering system of repairing, in towns 783-8 may return to old system 788 bridge, erection and repair by board of supervisors 481, 490 weight to be carried on 490 tolls oD, how altered 483 notice therefor required 4S3 liow fixed 483 purchase of, by towns 481, 493, 6C4 consolidation of road districts 493, 606 appointment of commissioners to expend State appropriation for 507 laying out highways through unoccupied and unimproved land. .493, 507, 698 levying tax for, by board of supervisors. (See Board of Stipkrvisohs.) bridges between adjoining towns 490-1, 674-6, 678-83 expense, how apportioned 490-1, 674-6, 678-83 decision as to 676-7 repair of bridges by individuals 680-3 how expense thereof paid 680-3 when town unduly burdened for bridges, county may assess 670 application by bridge companies to construct bridge 699 duties thereon 699 defective, in towns 683-91 decisions as to 684-91 when damages by reason of, may be audited 346, 683 speciztl commissioners for 466, 698 their pay 467, 694 in Queens county , 484 bridges over canals .691-3 where engine weighs four tons or more 691 RULES OF ORDER: of board 637 first code .638-9 second code 639-33 cannot abrogate statute 506, 637 Index. 87» SARATOGA. COUNTY: page. auditing accoants in 445 SAVINGS BANK: how taxed 314 deposits in, when taxed 814 when exempt 313 SCHEDULE: by committee on ratio and apportionment 646 directions for preparing 647 SCHOOLS: duties of supervisor as to. 51-69 supervisor's bond for school moneys 19' alteration of school district 54, 55 refusal or consent of trustees therefor 5^ dissolution of school district 57, 517-8 equalizing valuation in school district 5& duties of trustees thereafter 58 employment of school teachers 61 common school fund 619 electors to determine number of trustees 59 trustees to make annual report 60 what report to contain 60 annuad meeting in district or neighborhood 59 terms of officers when expire 59 United States deposit fund 520-6 warrant for school tax, how renewed 62 form of renewal 63 duties of town clerk aa to ._ 54rS, 63 when supervisor to call district school meeting 65 -who may vote at school meeting 65 consolidation of school district 518 division of school commissioner's district 519 board of supervisors may authorize sale or change of school property. . 496 or increase or diminish school board 496 apportionment of valuation of railroads among school districts 66 ■women eligible to vote at school meetings 67 and to serve as school trustees _. 67 duties of supervisor under compulsory education act 68 text-books to be furnished pupils, when 68 cost of, a town charge 68, 373 personal and real estate may be received in trust for 68- unpaid school taxes, how collected Ao^'^S school commissioner's district, when may be divided by supervisors . 498-519 duties of board of supervisors as to 516-20 516 SCHOOL COMMISSIONER. (See Schools.) to apportion school moneys may be increased by supervisors 516, 804 expenses of 516, 804 cannot be supervisor • • • • ^ election of '■^''- I'l division of district of '^'■'' SCHOOL FOND: bond for, when not required |^ act relating to _ j' common ; • iqj, » United States deposit, duties of supervisors as to o-su-b S80 Index. SCHOOL-HOUSE: page. site of, how changed 497, 517 when exempt from taxation '