Berlin Iron Bridge Co. v. Wagner — 32 N.Y. St. Rep. 119

Majority

p. 119

The Berlin Iron Bridge Co., Pl’ff, v. Joseph B. Wagner, Highway Commissioner, Def’t.

(Supreme Court, General Term, Third Department

Filed May 26, 1890.)

Headnote

Submission of controversy.

Defendant entered into contract with plaintiff for the building of a bridge in pursuance of a resolution of town meeting to raise money for that purpose. The board of supervisors had passed a law authorizing the bonding of the town and appointed commissioners to construct the bridge. This submission was made to determine the liability of defendant under his contract. Held, that the attorney-general not being a party to the submission had no standing in court in the matter and that the court would not on his motion dismiss the submission.

Motion to dismiss submission of controversy.

The electors of the town of Oswegatchie at a special town neeting held November 2, 1889, pursuant to notice voted to raise 510,000 for the purpose of building a bridge in said town. November 21, 1889, the board of supervisors passed a law to authorze said town to borrow said amount for the purpose of building aid bridge and issue bonds therefor and appointing commis'sionrs to construct the same. November 29, 1889, defendant as sole lighway commissioner of said town entered into a contract with ilaintiff to construct the bridge for $9,200, to be payable oneialf when the material was delivered and the balance on compleion and acceptance of the bridge. The material has been deliv

p. 120

ered. The commissioners are acting and claim the' right to contract for and superintend the building of the bridge.

Isaac H. Maynard, for motion; A. D. Wales and George B. Malby, opposed.

This is a submission without action.

The attorney-general, who is not a party to the submission, moves the court to dismiss the case on the ground that it is a collusive submission and that it is intended to establish the right oi defendant to make a contract for the building of the bridge. The attorney-general alleges that certain commissioners appointed by the supervisors claim the right to make the contract and clain that the defendant above-named is not authorized to contract The attorney-general urges that these commissioners are not par ties to this submission; that there is really no controversy be tween those who are parties thereto and that a decision betweei them may be a precedent which will control the question of righ whenever it may be raised by the commissioners aforesaid. Itha¡ also appeared in the course of the argument that those commission ers have made a contract with another company for the building of the bridge.

The parties to this submission on the contrary assert that it wa¡ made in good faith and with a desire to- ascertain their owl rights; and. that they have offered in several ways to permit tb said commissioners to take part herein.

We do not think that we can, on the motion of the attorney general, refuse to hear this case. He has no standing in court and, far as we see, would have none even if the said commission ers had a right to interfere. They have taken no steps to brinf themselves into this controversy, directly or indirectly.

The plaintiff above-named could have sued the defendant 01 the contract, and to such an action those commissioners need no have been parties. This submission is but a substitute for ai action, in order that the decision be more expeditious.

As to the effect of a decision on the alleged rights of the sai< commissioners, we have nothing to say. They are not parties o privies, and generally none but parties and privies are bound by: decision.

We decline to dismiss the submission, or to refuse to hear tb argument.

Landon and Mayham, JJ., concur.