New York Central Railroad v. County of Westchester

Headnote

N. Y. Central B. R. Co. v. County of Westchester, 173 App. Div. 263 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 20, 1916, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was one at law brought to recover damages against the county of Westchester upon contracts made with the plaintiff, or its assignors, by the Bronx valley sewer commissioners, a board authorized by the provisions of chapter 646 of the Laws of 1905, and various acts amendatory thereof and supplemental thereto. The original board, of Bronx valley sewer commissioners were succeeded by the board named in the title of the action, but before issue was joined the term of office of the defendants named as commissioners had expired. The purpose of the act was to provide for the construction of a sewer to drain the various villages within the Bronx valley, and in order to accomplish this purpose the Bronx sewer was constructed. The sewer passed through the defendant’s lands and underneath the right-of-way of the plaintiff railroad company at various points. The sewer commissioners contracted with the plaintiff company for the easements, and agreed that that portion of the construction occupying the easements might be performed by the railroad company and that the amount of the expenditures incurred should be paid by the commissioners. That the easements were granted, that the work was done and that the amount charged was the actual cost of the work was not disputed. The plaintiff made claim only to the exact cost of doing the work and received no compensation for the easements

granted. Payments not having been made this action was brought. There were but two questions of law raised in appellant’s brief: First, the claim was made that this action being one at law will not he against the county of Westchester upon contracts made by the Bronx valley sewer commissioners, the statute expressly providing in effect for the enforcement of such contracts either through mandamus or certiorari, or in the alternative through actions or proceedings in equity; second, that as there was no formal advertising of these contracts such of them as were in excess of one thousand dollars were void.