Furman v. Taylor — 41 N.Y. St. Rep. 791

Majority

p. 791

Elmer E. Furman, Resp’t, v. J. Myers Taylor et al., Com'rs. App’lts.

(Supreme, Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

Highways—Employment by commissioners.

In an action for work on a highway under an employment by one of several commissioners, the court charged that in order to find a verdict for plaintiff it must be found that the commissioners, or a majority of them, authorized such employment, and in answer to an exception added that it was not necessary that all should meet at a regular or special meeting; that it was sufficient if all of them examined together on the subject of employment, and if in the course of conversation two concurred, that was sufficient. Held, no error.

Appeal from judgment in favor of plaintiff, entered upon a werdict, and from order denying motion for new trial.

Greene & Bedell, for app’lts; Arthur S. Tompkins, for resp’t.

The defendants in this action are the commissioners of highways of the town of Ramapo, in Rockland county, and this action is brought against them for work done on the roads in their town.

The claim of the plaintiff was sufficiently established upon the trial, and there seemed to be but little dispute in respect to it

The chief defense rested upon the denial of the employment of the persons who performed the services upon which this action is based.

There was some evidence to show an employment to. perform the work on the roads by the commissioners when they were together, and as we understand the charge of the county judge that question was submitted to the jury for determination.

The charge is not given in full, but it appears that" the counsel for the defendant requested the judge to charge that before the jury can find a verdict for the plaintiff they must find from the evidence that the defendant Earl employed these men by the authority of the other two commissioners of highways, or by a majority of them, and the judge so charged.

Again, the counsel for the defendant said: “ I except to that part of your honor’s charge that says that ‘it is not essential for all three of the commissioners to meet together to make a contract.’ ”

The Court: “I don’t know as I charged that it would not be necessary for all three of them to meet to make a contract I said that it was not necessary that they should meet at a regular or special meeting; it would be sufficient to have all three men to examine together on the subject of the employment, and if in the course of conversation on the subject two concurred, that would be sufficient to employ or to make a good contract, and I now state that to the jury.”

That charge furnished the jury with the rule of law applicable to the case, and under it the jury found for the plaintiff, and thus found an employment within the law.

The other exceptions to the charge and refusals to charge present no error, and the judgment and order denying the motion for a new trial on the minutes should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.