Malloy v. Board of Health — 67 N.Y. Sup. Ct. 422

Majority

p. 422

FRANK W. MALLOY and Another, Appellants, v. THE BOARD OF HEALTH OF THE TOWN OF MAMARONECK, Respondent.

Headnote

Public health, — work directed by a town boa/rd of health is a town change — Lanes of 1885, clwp. 270, sec. 5.

Under the general act for the preservation of the public health (Laws of 1885, chap. 270, § 5), a drain, built under a contract with a town board of health, and designed to abate a nuisance, is a town charge, and a claim therefor must be presented to the town auditors for audit. There exists no liability to pay the cost of its construction on the part of the members of a town board of health as such.

Appeal by tbe plaintiffs, Frank W. Malloy and William Y. Malloy, from a judgment entered in the office of the clerk of Westchester county on the 4th day of April, 1891, in favor of the defendant, for costs, after a trial at the Westchester Circuit before the court and a jury.

The defendant accepted the plaintiffs’ bid to build a sewer in the town of Mamaroneck for $445, which sewer was to drain certain cellars which had been declared by defendant to be a nuisance. This action was brought to recover the amount of said bid, less certain payments which had been made thereon.

G. II. c& J. A. Young, for the appellants.

Arthur T. Hoffman, for the respondent.

The plaintiffs performed work under a contract with the defendant. The expense was a town charge. (Laws of 1885, chap. 270.) 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 ; People ex rel. Board of Health, etc., 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., concurred; Dticman, J., not sitting.

Judgment affirmed, with costs.