Barker v. Town of Oswegatchie — 41 N.Y. St. Rep. 831

Majority

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Matthew Barker, App’lt, v. The Town of Oswegatchie and Joseph McConville et al., Resp’ts.

(Supreme Court, General Term, Third Department,

Filed November 30, 1891.)

Headnote

Costs—Extra allowance.

By a resolution of the board of supervisors a town was authorized to issue $10,000 in bonds to build a bridge, but the supervisor and commissioners entered into a contract for building the bridge for $5,670. In this ■action brought to restrain the carrying out of such contract on the ground that such resolution was invalid," the plaintiff recovered. Held, that the sum named in the contract constituted the subject matter of the action, and that plaintiff was entitled to an extra allowance thereon.

This Is an appeal from an order of this court made at special term refusing the application of the appellant for an additional allowance.

A. D. Wales, for app’lt; Daniel Magone, for resp’ts.

The plaintiff and appellant prosecuted this action as a taxpayer of the town of Oswegatchie, to restrain the defendants and each of them from taking any further action under or in pursuance of an act, bill, or resolution, of the board of supervisors of St. Lawrence county; passed February 18,1890. The wrongful act alleged in the complaint and which the plaintiff in this action sought to restrain was the carrying out or performance of an alleged contract, made by the town of Oswegatchie, through the -agency of its supervisor and a committee (who are named as defendants) appointed by the board of supervisors of St. Lawrence county, with the defendant, The King Iron Bridge Company, for the construction of a bridge in that town which the town was liable to build and by which contract the town was to pay the bridge company the sum of $5,670. The plaintiff succeeded in the action and by the judgment perpetually enjoined the performance of the contract or the payment of the contract price.

The court at special term held that the action was difficult and extraordinary, but that there was no definite sum in controversy upon which an additional allowance can be computed.

We think that was error. The subject matter directly involved in this action was the right of the defendants to perform a contract by which a direct pecuniary liability would be or was created against the town, to protect whose interests this plaintiff as a taxpayer was authorized to maintain an action. It is quite true that in determining the question whether or not this town should or could be liable for the contract price agreed to be paid for the construction of this bridge, the court had to inquire whether the board of supervisors had power to appoint the commissioners and put in motion the train of events which led up to the creation of the liability. But the same would be true if a party sued or defended an 'action upon a contract made with an agent.

If A. sued B. on a contract made with B.’s agent for $1,000 and

p. 832

B. defends on the ground that the alleged agent has no power to contract, and succeeds in his defence, I think it would not be doubted that if the action were in other respects one in which an additional allowance would be proper, an extra allowance would be granted, estimated upon the $1,000 which was the real subject-matter of the suit, although all the litigated controversy was upon the authority of the agent, and if the thousand dollars in the case supposed would be the subject in controversy, then it is difficult-to see why the $5,670 in the contract under consideration may not equally be taken as a basis for an additional allowance.

The appellant insists that this additional allowance should be computed upon the $10,000 which it is alleged the town voted. But the commissioners and the supervisor only sought to use the $5,670. It is true that $10,000 according to resolution and the contention of the defendants was the maximum sum which they were authorized by the resolution to use, but they could also by the resolution use a less amount and that they undertook to do,, and were prevented by the judgment in this action.

We are of the opinion that the $5,670 embraced in the contract constituted the subject matter of this suit, and as the plaintiff has succeeded in the action he is entitled to an additional allowance of five per cent on that amount

Order must be reversed, with ten dollars costs and printing disbursements.

Learned, P. J., and Landon, J., concur.