Buyce v. Buyce — 16 N.Y. St. Rep. 301

Majority

p. 301

Nelson Buyce, Resp’t, v. George Buyce, as Commissioner of the Town of Wells, Hamilton County, N. Y., App’lt.

(Supreme Court, General Term, Third Department,

Filed May, 1888.)

Headnote

1. Parties—Action against an official—Commissioners of Highways —Description of—What sufficient.

In the summons issued from the justices’ court the defendant is described as commissioner, etc. In the title of the complaint he is also described in this way, but in the body of the complaint he is referred to simply as defendant. Held, that it was plainly shown by the summons and complaint that the action was against the defendant in his official capacity.

2. Towns—Repairing bridges —Chap. 103, Laws 1858—Liability of TOWN FOR WORK PERFORMED — DUTY OF CONTRACTOR.

The plaintiff performed work, labor and servicés for the defendant in repairing a bridge. The consent of the board of town officers was given. The defendant urges that the bridge had not been damaged after the town meeting, and that, therefore, the town was bound to pay for the work. Held, that by chap. 103, Laws 1858, amended by chap 442, Laws 1862, when a bridge is damaged by the elements or otherwise after a town meeting, the commissioners, with the consent of the board of town auditors, may immediately cause it to be repaired, though the expenditure exceed $250. But that the person who does the work need only see to it that the board of town auditors-consent. He is not to investigate the question at what time the bridge was damaged, whether before or after the town meeting.

Appeal from a judgment of the Hamilton county court entered upon a verdict in favor of the plaintiff upon an order denying a motion for a new trial upon the minutes. Lee S. Aníbal, for app’lt; McKnight & Boyce, for resp’t.

The plaintiff commenced his action in justice’s court by summons against “ George Buyce, as commissioner of highway of the town of Wells.” He filed a written complaint, in which the defendant was described in the same manner in the title. In the body of the complaint he speaks of the defendant, not mentioning either name or title. But just as the word plaintiff in the complaint refers to the name in the title, so does the word defendant. It is as if the complaint read: “Nelson Buyce, in complaint, alleges that by direction of George Buyce, as commissioner of highway of the town of Wells,” etc. We think that the complaint distinctly shows that the action is against the defendant, in his official capacity. There is a special allegation, viz., that “ the board directed the money should be raised to pay plaintiff, and that the same was paid to defendant to pay plaintiff.” This indicates that the action was against him in his official capacity. We have exemined the cases which defendant cites (Gould v. Glass, 19 Barb., 179 ), and similar cases. And they go far in support of his position. But in Boots v. Washburn ( 79 N. Y., 214 ), the court say that defendants were not named in the summons or complaint, as commissioners of highways. Here defendant is so named in the summons and in the title. In Smith v. Levinus ( 8 N. Y., 472 ), the title of the complaint described plaintiff as supervisor, and then the complaint said: “ The complaint of the plaintiff above named as supervisor, etc.” And upon the whole we think that it is plainly shown by the summons and complaint in this case that the action was against the defendant in his official character. Another point is that the commissioner had no authority to repair the bridge. By chapter 103, Laws 1858, amended chapter 442, Laws 1862, 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 $250. In the present case the work done was in repairing a pier of a bridge. The consent of the board was given. But defendant urgés that the bridge had not been damaged after the town meeting. It is not in evidence that it did not become damaged after the town meeting. But who is to determine when a bridge becomes damaged. Is it not plainly the commissioner and the board of auditors. They are the persons to whom the statute intrusts the duty of deciding. To say that the board and the commissioner may determine that a bridge has become damaged after the town meeting, and may cause repairs to be made; and then that when the commissioner is called upon to pay for these repairs, he may ask a jury to decide that the bridge was not so damaged; to say this would be unreasonable and unfair. Boots v.Washburn 79 N. Y., 213 ; Clute v. Robison, 38 Hun, 283 . The commissioner must have the right to cause work to be done in such case. The person who does it need only

p. 303

see to it that the board of town auditors consent. He is not to investigate the question at what time the bridge was damaged, whether before or after the town meeting. If his right to be paid were to depend on the decision of a jury upon that question, he could not safely do the work. We think the judgment should be affirmed with costs.

Ingalls and Landon, J. J., concur.