Majority
p. 922William V. Molloy et al., App’lts, v. The Board of Health of the Town of Mamaroneck, Resp’t. (Supreme Court, General Term, Second Department, Filed July 2, 1891.)
Headnote
Parties—Town board of health.An action cannot be maintained against a town board of health for work done in constructing sewers under a contract with it. But the expense of the work is a town charge, to be audited by the town board and collected in the same manner as other town charges.
Appeal from judgment entered on dismissal of the complaint. In February, 1888, defendant accepted plaintiffs’ bid to build a sewer on an avenue in the town of Mamaroneck for $445, which sewer was to drain certain cellars declared to be a nuisance by the defendant. This action was brought to recover the amount of the bid less payments made.
C. H. & J. A. Young, for app’lts; Arthur T. Hoffman, for resp’t.
—The plaintiff performed work under a contract with the defendant. The expense was a town charge. Chap. 27, Laws of 1885. The board of health has no place as a defendant It is a town agency only. The claim must be presented to the town auditors for audit. Myers v. Barnes, 114 N. Y., 324 ; 22 N. Y. State Rep., 164; 22 id., 795; People ex rel. Board of Health v. Board of Supervisors of Monroe County, 18 Barb., 567 ; Bell v. Town of Esopus,49 id., 506.
The judgment should therefore be affirmed, with costs.
Pratt, J., concurs; Dykman, J., not sitting.