People ex rel. Saratoga Lake Bridge Co. v. Walbridge

toe a committee to carry into effect the terms of this resolution, provided >the said committee and bridge company are able to agree upon a sum for the .purchase of said bridge not exceeding $2,000, as herein provided.”

At a session held in December following, the committee appointed by the above resolution reported that they had examined into the ■matter and were of the opinion that the bridge should be a free bridge, and recommended its purchase for the sum of $4,000. The adoption of the report was moved, and it was carried by a two-thirds vote of the board.

At a session in January, 1909, the following resolution was passed by an affirmative vote of all the members:

“Whereas, the Saratoga Lake Bridge Company has accepted the offer of this board for the purchase of all its rights, title and franchises in said bridge for the sum of $4,000, and whereas, a proper deed of conveyance has been received by the chairman of this board: Therefore be it resolved, that this board accept said deed, and that the clerk of the board have the same duly recorded in the office of the clerk of the county of Saratoga.”

Following this resolution the bridge company directed its toll taker' to cease taking toll and formally surrendered control over the bridge. In the following December, at a regular session of the board, the bridge company presented a duly verified claim for the $4,000, with interest from the time of the surrender of possession of the bridge, as had been agreed, in all amounting to $4,241.58, which claim was referred to the committee on roads and bridges accounts, reported as due in full, with a recommendation that, instead of its being paid as a county debt, it be paid by assessing to each town its proportionate share thereof on the basis of the equalized value of said towns for the year 1909, and that the law and finance committee of the board be instructed to make such division in the county budget to be presented by them. This report was duly adopted, and the law • and finance committee reported that it had apportioned the purchase price of the bridge upon all the towns of the county in the proportion directed, specifying the amount with which each town was chargeable. This report was adopted by the whole board, in accordance with its rules, as were the other reports enumerated, and the tax was levied on that basis, and the warrants placed in the hands of the various town collectors, and county script was issued directing the defendant as county treasurer, on and after February 1, 1910, to pay to .the bridge company the amount so audited in its favor.

In January, 1910, after all or a large part of the money had been paid by the various collectors to the defendant as county treasurer, he sent a communication to a new board of supervisors, who had taken office the 1st of January previous, to the effect that he would be unable to pay the audit to the bridge company if presented, because he had decided the audit had not been legally made and the bridge not legally acquired for the reason that a proper resolution to acquire the bridge had not been adopted, and that, if he was mistaken in that' conclusion, the audit was improper in that the claim had been levied upon the county at large; whereas, the cost of the bridge should have been imposed upon the two towns which it connected. Thereupon this new board passed another resolution to the

We are of opinion the mandamus should have been granted. The action of the board of supervisors was in effect the passing of a resolution determining to acquire the real property, rights, and franchises •of the Saratoga Lake Bridge Company. The first resolution restricted the price to $2,000; but a committee was appointed to confer with the company, and it reported that the property could not be purchased for that price, but that it could be purchased for the sum of $4,000. The board by a two-thirds vote adopted such report and resolved to •accept a deed and pay that amount. The deed was delivered and •accepted and a claim for the purchase price audited.

The board of supervisors acted under the authority conferred upon them by the act of 1907 and made a bargain with the owners to pur•chase the bridge at a certain, price as that act permitted them to do. The resolution determining to acquire the bridge was not required by the act to be in any particular form. If it be assumed, however, that it was such an act or resolution as is contemplated by section 17 ■of the county law (Laws 1892, c. 686), requiring a title and an •enacting clause and publication within six weeks after the close of the session, still, the board of supervisors in behalf of the county having made a bargain to purchase the bridge, and the deed thereof having been delivered and accepted, it was incumbent upon the county to pay the agreed price. After the county had become seised of the property, the board could not refuse to pay the purchase price, and .audit of the claim therefor was not only proper but a necessity.

Nor was it improper for the board to levy the cost of the bridge ■upon all the towns of the county according to their equalized assessment. The board bought the bridge for the county at large, and the county, at least in the first instance, was obligated to pay the purchase price. Provision for payment was not governed by chapter 594 of the laws of 1899 as amended by chapter 104 of the Laws of 1907. That act relates to bridges over unnavigable streams, and the bridge in question was over navigable waters, which was the reason for the enactment of the law of 1907. But even if the board was governed, in paying for the bridge, by the general law, still it had the right to •apportion the cost of the bridge on all the towns of the county if it saw fit. That act provides that the amount of bonds, in whole or in part, issued for the acquiring of any toll bridge or toll road, may be apportioned by the board upon the towns, cities, and villages constituting separate highway districts in which such road or bridge is located, in such proportions as the board may deem just. No bonds

The objections raised by the defendant, therefore, to paying over to the relator the moneys which the board of supervisors had raiséd by taxation and placed in his hands for that purpose, were not well founded. The new board of supervisors did not have authority to qualify the audit which the preceding board had legally made. Osterhoudt v. Rigney, 98 N. Y. 222 ; People ex rel. Smith v. Clarke, 174 N. Y. 259 , 263, 66 N. E. 819 . It is true, as was held in People ex rel. Hotchkiss v. Supervisors, 65 N. Y. 222 , a board of supervisors may rescind its action in auditing an account because it has made a mistake in so doing. In such case the action on the rescission becomes the final action. One board of supervisors, however, having finally acted upon a claim, the succeeding board cannot rescind such action to the detriment of the claimant.

Nor is it any objection to the granting of a mandamus that the defendant has credited back to the various towns the money which each contributed to the payment of relator’s claim. Such crediting is a mere matter of bookkeeping, and the money is still in the custody of the defendant.

The order should be reversed, with costs and disbursements, and the peremptory mandamus granted, with $25 costs. All concur.