Hyperlawhypertext legal database Donnelly v. Town of Ossining 25 N.Y. Sup. Ct. 352

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Donnelly v. Town of Ossining

25 N.Y. Sup. Ct. 352 Court N.Y. Sup. Ct. English

Judges Present — BarNard, P. J., and Gilbert, J.; Dykmast, J., not sitting.

Delivered by Barnard, P. J.:

Contents

Majority

p. 352
RICHARD DONNELLY, Appellant, v. THE TOWN OF OSSINING, Respondent.

Headnote

Town, — cannot contract for the building of a bridge t7iei-ein.
In the absence of express legislative enactment a town has no power to enter into a contract for the building of a bridge therein.
Appeal from an order sustaining a demurrer, interposed to the complaint on tbo ground that it did not state facts sufficient to constitute a cause of action.
The complaint alleged the making of a contract between the plaintiff and the town of Ossining for the building of a bridge in the village of Sing Sing, situated in the said town, that the plaintiff had performed on his part, until prevented by the defendant, and sought to recover the amount due to him thereunder.
Marshall P. Stafford, for the appellant.
Francis Larkin, for the respondent.

The town of Ossining was under no obligation to build the bridge in question in the absence of legislative enactment. Neither the common law of the highway acts impose this duty upon a town. (Barker v. Loomis, 6 Hill, 463 ; Morey v. The Town of Newfane, 8 Barb., 645 .) A contract to build abridge was not, therefore, a contract “ necessary to the exercise of its corporate or administrative powers.” (1 R. S., 337, § 1, sub. 3.) A town has no power beyond those given by the Revised Statutes, or by law, or necessary to the exercise of the power given by law. (1 R. S., 337, § 2.)

While, therefore, the complaint is faultless in form and avers a, contract made between the plaintiff and the town “ by their undersigned committee duly authorized,” the averment must be construed with reference to the laws governing the contracts of towns. No suggestion is made in the complaint that the contract was exe-

p. 353
cutecl under power given by an act of the Legislature. Without such an act, the contract mentioned in the complaint could not bind the town.

Judgment affirmed, with costs.

Present — BarNard, P. J., and Gilbert, J.; Dykmast, J., not sitting.

Order sustaining demurrer affirmed, with costs.