People ex rel. Everett v. Board of Supervisors — 36 N.Y. Sup. Ct. 185

Majority

p. 185

THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES H. EVERETT and JOSEPH C. TREADWELL, Respondents, v. THE BOARD OF SUPERVISORS OF ULSTER COUNTY, Appellant.

Headnote

Commissioners of highways are not agents of the town — a judgment against the commissioners is not a judgment against the town.

A judgment recovered against the commissioners of highways of a town is not a judgment against the town, and the hoard of supervisors of the county cannot he compelled hy mandamus to levy the amount thereof, upon the property of the town.

Appeal from an order awarding a peremptory writ of mandamus commanding the defendant to apportion the amount of a certain judgment recovered by the relator, upon certain towns in Ulster county, which formerly constituted the town of Kingston, and to levy the amount so apportioned upon them. The relators recovered the judgment on January 2, 1882, against the then commissioners of highways of the town of Kingston. The judgment was recovered for services rendered in grading and repairing a highway in the ‘town, in pursuance of a contract entered into with the commissioners of highways.

John J. Lmson and Howard Chirp]), Jr., for the appellant.

J. Newton Fiero, for the respondents.

A question is presented in this case which does not arise in the cases of similar character argued at this term.

The relators have only a judgment against the commissioners of highways. This is not a judgment against the town. (People ex rel. Van Keuren v. Auditors, 74 N. Y., 311 ; Laws 1880, chap. 554; 2 R. S., m. p. 474, § 102, etc.)

The judgment is to be collected from the commissioners (2 R. S., m. p. 476, § 108, as modified by section 1931, Code of Civil Procedure). When they shall have paid it, it may be allowed in their accounts. We cannbt determine whether or not these commissioners will have any claim against the town upon their accounting.

p. 186

There is nothing in the remark to which we are referred, made in Van Alstyne v. Freday ( 41 N. Y., 177 ), which should change the principle above stated. At present there is no judgment against the town and no allowance of the claim by the town auditors.

For these reasons, without passing on the other questions, the order should be reversed, with costs of appeal, and motion for mandamus denied, with fifty dollars costs, under section 2086 of the Code.

Present — Learned, P. J., Boardman and Bocees, «TJ.

Order reversed, with costs of appeal, and motion for mandamus denied, with fifty dollars costs, under section 2086 of the Code of Civil Procedure.