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BENDER’S MANUAL

SUPERVISORS, COUNTY AND
TOWN OFFICERS MANUAL

CONTAINING

THE COUNTY, TOWN, HIGHWAY, GENERAL MUNICIPAL,TAX AND POOR
LAWS IN FULL AND ALL OTHER STATUTES OF THE STATE OF NEW
YORK, RELATING TO BOARDS OF SUPERVISORS, TOWN BOARDS,
COUNTY AND TOWN OFFICERS, AND THE AFFAIRS AND

BUSINESS OF COUNTIES AND TOWNS, AS AMENDED TO
THE CLOSE OF THE LEGISLATURE OF 1922

WITH

DECISIONS, ANNOTATIONS, EXPLANATORY NOTES, CROSS REFER-
ENCES, FORMS, A DIGEST OF FEES OF COUNTY AND TOWN
OFFICERS, AND A TIME TABLE SHOWING TIMES
WHEN THE DUTIES OF SUCH OFFICERS
ARE TO BE PERFORMED

BY

tN
FRANK BY GILBERT

CO-EDITOR OF THE CONSOLIDATED LAWS OF NEW YORK, ANNOTATED.

ELEVENTH EDITION
BY
FLETCHER A. BLANCHARD, LL.B.

OF THE COOPERSTOWN BAR

(@

ALBANY, N. Y.
MATTHEW BENDER & COMPANY,
INCORPORATED.

1922.
Copyright, 1899, 1903,
By MATTHEW BENDER

Copyright, 1906, 1908, 1910, 1912, 1914,
By MATTHEW BENDER & COMPANY.

Copyright, 1916, 1918, 1920, 1922,
By MATTHEW BENDER & COMPANY,
INCORPORATED.
NOTE TO ELEVENTH EDITION.

é

Numerous and important changes in the statutes regulating
the powers, duties, obligations, and liabilities of the various
town and counties officers of this State, and the statutes relating
generally to towns and counties, have been made by the Legis-
latures of 1921 and 1922. The Code of Civil Procedure is no
longer in existence but many of its former sections have been
transferred to and now appear in other Acts, unfamiliar to the
officers for whose use this volume is intended, necessitating, to
a large extent, this new edition which gives the present location
of all these laws. Many new sections and articles have been
added to existing general laws, and many transfers of old mat-
ter have been made to new Acts.

The tables of statutes cited, which appear in the early part
of this volume, have been carefully rechecked and made to con-
form to any change of paging and include all new sections in-
serted. They include all references to the Civil Practice Act,
Justices Court Act, and the new Election Law and Farms and
Markets Law.

In short, the many changes in the statutes covered by this
volume made by the Legislatures above mentioned are too nu-
merous and extensive to mention in detail in this note. How-
ever, such amendments and additions are of such vital import-
ance and of such a broad scope as to require the publication
of this new edition at this time.

FLETCHER A. BLANCHARD.
Coorerstown, N. Y., September 14th, 1922.
a

PREFACE.

The purpose of this manual is to present in a logical manner all the laws
of the state pertaining to the transactions of county and town business,
and the rights, powers, duties and liabilities of boards of supervisors and
county and town officers. As is indicated by the table of contents, the
manual is divided into parts, and each part again subdivided into chapters.
This arrangement permits of a careful and scientific classification of the
laws relating to the topics under consideration.

In the chapters devoted to the exclusive powers and duties of the several
county and town officers, cross references are made in their proper con-
nection to other parts of the manual, where other duties are prescribed in
connection with those of other officers. These references join together the
several laws, and parts of laws, so that all the powers and duties of the
several officers may be readily ascertained.

The editorial notes and citations of authorities, containing frequent
extracts from judicial opinions, are included in foot notes, so that the law
as enacted by the state legislature may be clearly distinguished. The
manual is based upon statute law, for the reason that county and town
rights and obligations, and the powers and duties of county and town
officers, are of statutory origin. The notes are to aid in the interpretation
and application of these statutes and are, therefore, properly subordinated
to them.

A large number of appropriate forms are appended, with references to
them by number in connection with the statutes under which they are to
be used.

A schedule of the general laws and other statutes contained in the manual
is inserted immediately after the table of contents, for the purpose of
showing readily the pages where the several sections of such laws and
statutes can be found.

This manual contains all the general laws and statutes pertaining to
counties and towns, the administration of their affairs and the powers and
duties of their officers. Statutes relating to any one county or town officer
cannot be considered withont reference to other officers, because their
powers and duties are interlaced and dependent, the one upon the other.
For instance. a county board of supervisors cannot act intelligently upon a
PREFACE.

matter pertaining to the highway system without a knowledge of the
duties of highway commissioners. It may safely be said that a county or
town officer who is familiar with the requirements of his office, must also
know, to a certain extent, the rights and duties of other officers. It fol-
lows that a complete guide for the use of any one or more county or town
officers must contain all the statute law of the state generally applicable to
all of such officers.

The chief aim has been to make this manual easy for use by county
and town officers, who may be business men but not lawyers, and, there-
fore, not learned in the law. In accomplishing this purpose it would be
strange if its value to lawyers has been lessened. ‘The statute law is
included as it is; the explanatory notes and comments may be taken at
their actual worth; they are the result of the careful and conscientious
labor of the editor, who has had a somewhat extended experience in the
consideration of the state statutes.

ALBANY, N. Y., September 1, 1903.
FRANK B. GILBERT.
NOTE TO THIRD EDITION.

The second edition of this manual was published in the summer of
1903. Since that time many important amendments to the laws relating
to the rights, powers, duties and liabilities of town and county officers
have been enacted, and a number of controlling judicial decisions have
been rendered bearing upon those laws. A glance at the table of the
laws of 1904, 1905 and 1906 which have been included in this edition will
indicate the constant changes affecting the administrative laws of towns
and counties. This new edition is published in pursuance of the purpose
to prepare and publish a revised edition of this manual at least once in
three years.

It is believed that town and county officers will find this revised edition
of the manual useful if not absolutely essential.

F. B. G.

ALBANY, September 1, 1906.
NOTE TO FIFTH EDITION.

Since the last edition of this manual the legislature has enacted a com-
plete consolidation of the general laws of the state, knuwn as the Consoli-
dated Laws of New York. The effect of this consolidation was to change
the numerical order of all sections of the chapters of the General Laws,
and to add thereto all general statutes pertaining to the same subject
matter. The result is that the Town Law, County Law, Highway Law,
Tax Law, Poor Law, and other laws relating to town and county business
and affairs are entirely different in form from those laws as they existed
when the former edition of this manual was published. This is in itself
sufficient to justify the publication of a new edition. But since the last
revised edition was published in 1908 many important changes in these
laws have been made. New methods of county and town administration
have been adopted. Many duties and powers have been added to those
already possessed by county and town officers. On this account the publi-
cation of a new edition has become an absolute necessity.

We have inserted in this edition a great many laws which were not in-
cluded in the former editions. We have referred to all the recent decisions
of the court in their proper places. Many new forms have been adopted.
We have endeavored by many cross references to aid the officer in his search
for all the law on the subject which interests him.

The explanatory notes at the beginning of all the important chapters
will indicate concisely the important duties of county and town officers.
They are for the purpose of explaining in simple language the scope and
extent of the powers and duties of town and county officers. This is a
new feature, which it is hoped will prove valuable.

F. B. G.

Apany, N. Y., November 1, 1910.
NOTE TO EIGHTH EDITION.

Since the last edition of this manual was published in 1914 many
important changes in the laws relating to the powers and duties of county
and town officers and boards of supervisors have been made by amend-
ment of existing laws and the enactment of new laws. The Tax Law and
the Ilighway Law have been materially amended; modifying the pro-
ecdure and changing or increasing the duties of county and town officers
in respect to tax assessments and highway construction and maintenance.
There has been a substaritial modification of the laws relating to public
health, conduct of elections and town meetings, support of the poor and
relief of dependent children and widowed mothers, and many other
subjects.

These changes are of sufficient importance and extent to render it
unsafe for public officers and others interested in county and town affairs
to depend upon the former edition of this manual as a guide. It has
been the policy of the publishers, justified by an experience extending
over a period of nearly twenty years, to revise the manual as often as
once in two years, so that there may be available for the practical use of
those engaged actively in municipal transactions a complete, and reason-
ably up-to-date collection of statutes, with references, decisions and
explanatory notes, pertaining to the administration of county and town
governments.

This edition is published in accordance with this establshed policy. It
is entirely new in some respects, retaining the arrangement and method
of treatment of former editions. It is anticipated with confidence that
it will be received with favor by those entrusted with official duties in
our towns and counties and- others interested in municipal matters.

F. B. G.

Axsany, N. Y., October 10, 1916.
NOTE TO NINTH EDITION.

Constant and numerous changes in statutes relative to the powers, du-
ties and liabilities of boards of supervisors, county and town officers, and
concerning the affairs of counties and towns and the districts therein,
make it absolutely essential that this manual should be revised at least once:
in each period of two years. The modification of existing laws and the
enactment of new provisions are so numerous, extensive and important.
that county and town officers and others interested in county and town
matters may not safely rely for guidance on the former edition of this
manual,

The legislatures of 1917 and 1918 were confronted with many new
problems, arising from existing abnormal political and economic condi-
tions due to the war, and have enacted laws materially affecting the transac-
tion of county and town business. These laws have to do with the legis-
lative and administrative powers of boards of supervisors, the construction
of public improvements, the financing of all public enterprises, the grant-
ing of public aid to the poor and defectives and the raising of money for
state, county and town purposes. These laws have naturally been made
as amendments of the county, town and general municipal laws, the poor,
insanity and state charities laws, the tax law, the highway law, and all
other general laws relating to counties and towns. The subjects, scopes
and purposes of these laws are so numerous and varied that it would be
impracticable to enumerate them. It is enough to assert that they are of
such vital importance and of such wide effect as to make a new edition

of this manual indispensable at this time.
FRANK B. GILBERT.

Arpany, N, Y., September 2, 1918.
NOTE TO TENTH EDITION.

The Legi-latures of 1919 and 1920, and particularly the Legislature
of 1920, have made numerous and important changes in the statutes
relating to the powers, duties, obligations, and liabilitics of the various
town and county officers, and in the statutes relating to towns and coun-
ties generally. The passage of the Civil Practice Act (L. 1920, ch.
925, in effect April 15, 1921), and the passage of various other acts
by the same Legislature which transferred many provisions of the Code
of Civil Procedure to the new Practice Act and other of the general
statutes, have made the preparation of a new edition of this work
vitally necessary.

Practically all of the acts of the 1920 session which transfer sec-
tions of the Code of Civil Procedure to other general statutes, and the
Civil Practice Act, do not take effect until April 15th, 1921. Under
* these circumstances it has been deemed better to leave all the references
to the Code of Civil Procedure as in the last edition, with the addition,
however, to each section thereof, of the reference to the section and
act to which it has becn transferred. This method allows one to cite
all references to the former Code of Civil Procedure, or all references
to such sections as transferred, according to the date of citation.

Sections 1925 to 1931 of the Code of Civil Procedure, which appear
herein at pages 1048 to 1056b, inclusive, have apparently been re-
pealed by L. 1920, ch. 925 (Civil Practice Act), in effect April 15,
1921, without being transferred to any other general act. A careful
search and examination of all the 1920 acts affecting the Code of Civil
Procedure shows no other: disposition of these sections. A table show-
ing the disposition of the sections of the Code of Civil Procedure,
which has been prepared under the direction of John T. Fitzpatrick,
Esq., State Law Librarian, also fails to show any disposition of the
said sections other than their absolute repeal by the act above given.
However, inasmuch as the act repealing them does not take effect until
April 15, 1921, it, has been deemed advisable to print these sections
in full in the present edition of this manual. —
Nore to Tentu Eprrion

The tables of statutes cited, which appear in the first part of this
volume have been carefully rechecked and where acts transferring sec-
tions of statutes appearing therein do not take effect until some future
date, the present reference and also the reference to the proper section
as transferred are given. For instance the Civil Practice Act (L.
1920, ch. 925) does not take effect until April 15, 1921. Certain sec-
tions of the Code of Civil Procedure after April 15, 1921, will be
cited as in the Civil Practice Act. However, until that date they will
be cited as in the Code of Civil Procedure. Such references will there-
fore be found in the tables of statutes cited both under the Code of
Civil Procedure and under the Civil Practice Act.

The index to the present edition has been thoroughly checked and
an attempt made to have it conform to the text as it now exists with
all the new amendments inserted therein since the original editions.
The Time Table and Schedule of Fees have also been carefully ex-
amined and made to conform with the latest statutory amendments.

Many other changes in the statutes covered by this volume have been
made by the legislatures above mentioned which are too numerous and
extensive to mention in detail in this note. Sufficient to state, how-
ever, that they are of such vital importance and of such a broad scope
as to make this new edition indispensable to those officers who are gov-
erned by, and whose duties are regulated by, the statutes and decisions
contained herein.

The editor wishes to thank the following persons for the valuable
assistance which they have rendered him in the preparation of this edi-
tion: John T. Fitzpatrick, Esq., State Law Librarian, and the mem-
bers of his staff, and George S. Clay, Esq., of New York City.

FLETCHER A. BLANCHARD.

Cooperstown, N. Y., September 14th, 1920.
CONTENTS.

PART I.

COUNTIES; BOARDS OF SUPERVTSORS.

CHAPTER. PAGE,
I, Counties as corporations.........ccccccecccnceeccece Safe teae sate 1
II. Organization, meetings and proceedings of board of super-
visOrS .......00 “Dest BeaeSSStib ks Gp igh 4 WSsGbeze Asha elas ockeneiierelaizieels Shets 8
III. Audit by board of supervisors; county charges............... 24
IV. General powers of boards of supervisors; publication of session
laws; removal of county buildings; other powers........... 51
VY. fSoards of supervisors as boards of county canvassers.......... 83
VI. Clerks of boards of SuperviSOrs........-.e see c eee an cece evens 94
PART II.
COUNTY OFFICERS; JAILS AND PRISONERS; LOAN COMMISSIONERS;
COUNTY HOSPITALS.

CHAPTER. ‘ PAGE,
VII. County treasurer ......ccccccscceeeeees SVaewavewisecweedieaces 99
VIII. County comptroller; county auditors............ Sieh caews oe 118

TX, (County Clerk 6c deecs cneass ssid se hGe ss eaters Qenviasaweds 125

X. District attorneys, county attorneys, county judges and surro-

Bates) coi skeis eo Seas ecw ies serdar aie d wi Siac, Oe ewink ow BESS See He eS 136

XI. Sheriff and coroners; powers and duties............ccceceeeee 152
XII. (‘County Jails: ccs cacree vas teas vara beet aw 4 SRG Tee eos Saw ees 174
XIII. Civil prisoners; jail liberties............cceeceeeeee SaWanesleteve 189
XIV. Coroner’s inquest 2.0... 0. cece ee erence teen e ete eeeenee 199
XV. United States deposit fund; loan commissioners............+..- 205
XVI. County hospital for tuberculosis.............eesecee eee eeneeeees 216
XVI-A. Local boards of child welfare......... cee cee cece reece eaes 223a
XVI-B. Boards of child welfare in certain counties.............e.+6. 223f-1
XVI-G. ‘Loeal Wistoriaws seg cc cvsgrs ea siete s ecsiece ee ode Gee sige oe welts oe eae es « 223b
XVII. Provisions generally applicable to county officers........ rere eee’ 224
vi CONTENTS,
PART III.
TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

CHAPTER ' PAGE.
XVIII. Towns; erection and alteration .................-000005 Heigl 2 eases 232
XIX. Town) meetings: sac cannces de dae ec wie taeda a hea s Heelned tidte 242
XX. Town officers; election and termS .........-. 00 eee eee eee eens 280

XXI. Town officers; eligibility, oaths of office, undertakings, vacancies,
TesignatiOns, <sacvorshawe vsei se sia pewe be ge ievew ea ed a be een ae 297
XXII. Supervisor as town officer; general duties .........--.-2.2-0005- 320
XXIII. Duties of town clerk generally 1.1... 0... cess eee eee eee eee 335

XXIV. Justices of the peace; general duties as town officers; police jus-
tices In certain tOWNS a4 oi sega sce coe wat eee dee gee Vadose Hak ees 346

XXV. Compensation of town officers; miscellaneous provisions as to town
OMCORS: ec nets ae tars oe nee ae aanet a eee Bae Waareawas dad Paes 352

XXV-A. Transactions of town business in certain towns adopting pro-
visions of Article VI-A of Town Law ........... cece eee eee 358b
XXVI. Town houses; lock-ups; town cemeteries; pounds, etc........... 359
XXVII. Local improvements ......... BOE MIE eee eases aston Raaccieeunconne areata & 369

PART TY.
TOWN BOARD.

CHAPTER. PAGE.

XXVIII. Auditing of town accounts; town charges; town finances........ 371

NMIX., Licensés by town Boards 4:06.60: cece cieiestia sine cwadarsed eae eis ee echo 400
XXX. Fire protection; water, light and sewer systems; sidewalks...... 410
XXXII. Other powers and duties of town boards; garbage.............. 436
XXXII. Town board as local board of health....... 0... cece e ee eee eee 439
XNNII-A. Dutics of town officers in respect to vital statisties............ 462a
XNNII-B. Parks and playgrounds in certain towns........... 0c. eee ee ee 462q
DON NEG. \POUCE gic themed sand ener sie dune outed es coiaw wae OANA ERE * we 462u
-=1I-D, Drainage of apricultaral IntdS. 2.2. som evs caw teow oes eee eae 462w

PART VY.

TAXATION.

CHAPTER. PAG"
AXXAIILT. Taxable property and place of taxation...........0.0... eae 463
AXNXIV. Mode of assessment ...........cccccaeeencecees Fee teeter ster 508

XAXV. Assessment of special franchiscs...........cceceececcucecceeee 547
XXXVI. Duties of boards of supery’sors as to assessments and taxation;
equalization iOf “assessMents osc cilg deta avn ceee Dua Gave oes 556
XAXVIT. State tax department; equalization by state board; appeals from
SUPCHMASONS: ac-dinsaisciehAgaihiown cuistaualy dae 8 ed Mee cue ie we 572

ARAVIE. Collection: Gf taxes i ox sisioy Sxayeie tintaitls snalstcda a Aaa 8d Mesa ne sion 579

XXXIX. Sales by county treasurer for unpaid taxes and redemption of
Jands:BOl de. aisesiisbss Guaidiotiaeolte oa paiva Aauad a aie va Big sinlae ca, 613
XL. Mortgages of real property within this state.............e.e002. 621
CONTENTS. ii

PART VL

DIVISION FENCES; STRAYED ANIMALS; DOGS.

CHAPTER. PAGE.
XL1. Division fences; duties of fence viewers...........0006 eoseess 685
XLII. Strayed animals doing damage; duties of fence viewers..... ». 644
XLIII. Dogs, duties of town and county officers relative to........... 65]
PART VIL
RELIEF OF POOR.

CHAPTER. PAGE
XLIV. Superintendent of the poor; alms-houses............ceceeeeeees 666
XLV. Alms-houses; powers of state board of charities................ 684
XLVI. Support of the insane, idiots and epileptics.................08. 689

XLVII. Education, support and relief of the needy blind and the deaf
and dumb...sceesecscereseccecveces tote a sale a Gus Rane see wanes sis 705

XLVIII. General powers and duties of overseer of the poor in respect
to ‘rehel OL:DO0F sa:casi-s tan vewiek Casa ees MARRS Geet a 712
XLIX. Settlement and place of relief of poor persons.............65 12%
* L, Support. of bastards .....0cececeecnnteecsenbeve cs seeenseneeee 743

LI. Support of poor persons by relatives; absconding parents or
HUSDANG) 2 sae cinvence eeene ea dae weawldes caaen see Saeeu es aw 754
LIl. Reliet of veteran soldiers, sailors and marines................ 767
LIT, "The ‘state poor’: saree vs asian 004 Hoses cainwes «wed Vole sass Sarees oe 17

LIV. Distinciion between town and county poor and other miscel-
laneous provisions relating to the poor.......... teecececees TTD

PART VII.
HIGHWAYS AND BRIDGES.

CHAPTER. PAGE
LV. Definitions and classification .............c cece cece eee eee eens 786
LVI. Department of highways ..........-- eee eee ee eee eee eee eee 791
LVII. District or county superintendents.............0 cece cece cena 801
LVIII. Town superintendent; general powers and duties................. 808
LIX. Highway moneys; state aid ........ eee eee cece cnet eee eee ee 850
LX. State and county highways ......... csc eee eee eee eee eee eee 875
LX-A. Improvement of highways with federal aid ................... sae
LXI. Maintenance of state and county highways ...................-. 900
LXII. Laying out, altering and discontinuing highways; private roads.. 906
EXIT. Bridges) cays. sts scuae's age oe bet es Haws hada ees Pees oe Ges <> 943
EMIV.. Merries gc: n.nagsad sedate vine es ees dase nis wane de eow ee rake ais 958
LXV. Miscellaneous provisiond ....... 0c. cece cece eect eee een eens 961
LXVI. Saving clauses; laws repealed; when to take effect .............. 974
LXVII. Duties of boards of supervisors as to highways and bridges ...... 979
LXVIII. Railroads crossing highways ......... ajaiealalnaetdais ara’ polaron e's aye 991
Vill CONTENTS.

PART IX.
SCHOOLS; DUTIES OF TOWN AND COUNTY OFFIOERS.
CHAPTER. PAGE.
LXIX. Schools and school moneys, duties of town and county officers in
TESPOCE GHETELO® s cov sees neous VRE PSE E RwE PHS Rae SEE RE EER EHS 1001
LXIX-A. Farm schools in countieS........... 60. c ee eect teres 1025a
LXX. Gospel and school lots........... cece eee eee ee terete entrees 1026
PART X.
JURORS.
CHAPTER. PAGE.
LAXI. Grand and trial jurors; commissioners of jurors................. 1029
PART NI.
PROVISIONS RELATING TO COUNTIES AND TOWNS.
CHAPTER. PAGE.
LXXII. Actions by and against town and county officers................ 1043
LXNIIT. Town and county finances and property............ 0.0002. 000005 1057
LXXIV. Penal provisions applicable to towns and county officers.......... 1082
LXXV. Miscellaneous provisions; weights and measures.................. 1087
LXXV.-A. Forests; prevention of fire ......... 0. cece ce eee ees 1090e
LXXVI. Fees of county and town officers............ 0. cece cee eee eee 1091
PART XII.

TIME TABLE FOR TOWN AND COUNTY OFFICERS.
TABLE OF LAWS

SHOWING PAGES OF THIS, MANUAL WHERE SECTIONS OF LAWS MAY

BE FOUND.
Law. Pack. Law. ; PAGE.
L. 1876, ch. 331, § 2............ 711 Code Criminal Procedure,
L. 1884, ch. 275, §§ 1, 2........ 711 SG ery ssgrnecsere 760
Li. 1894, chy 93, § Vaceaisea-s. cages Tila Daca dea Ornate Sy 761
L. 1897, ch. 269, §§ 1-3.......... 953 0802 Don acaerad 762
4, Dx we 8's aye 5 954 Y2Gics aa wee vee 763
L. 1899, ch. 441, § 1............ 1036
Di gy i aislinea auovaioue's 1037 = Agricultural Law,
IT i secesa Metals 1038 TST Psst eas eveveve sn 173
BLO issih creates 1039
AES et vs 5 sates 1040 Civil Rights Law,
VAT wis venew es 1041 8 De es aed e ee 192
L. 1899, ch. 443..........00006- 193 Tdimiace 4 eed oc 189
L. 1911, ch. 634, §§ 2, 3........ 211
L. 1922, ch. 185, §§ 1-15........ 7lla Conservation Law,
2 aieioseta oid 1090e-f-g
Civil Practice Act, DO seine ois alias 10901
§ 102 ssc caeeet 164 D4, BOs aasnires 10901
103, 104.......... 169 Denies caine e 1090m
165, 166.......... 186 GO ihe e8. sna 1090e-f-g
BOS sciennlareusaved 345b Goi iecdstauearee's 1090h
. 169 sog-aie gespasieecs 192 G22ais cave cers 1090f
B82 ce dvareines 193 LOS aise ese sige 665-b
1548 oes ic acames 1042 BOO ies slapund weds 1087
BOS rice oa citer 85 1087b
Code Criminal Procedure,
Desig asonie ous 182 Constitution,
WB Bata osaartcents 8 347 Art. 3, §§ 26, 27.......... 10
Q22Ed ise core ees 182 ATH. Of 1G A  evisetuineee 346
2298 wse-aco wits a os 1029 Atte Be S10 aneecscidntstess 1066
229-b-229-d.......04. 1030
B29 Fics saree oy 1031 County Law,
229 Facets aed 1031 SB a eases 1
229-1... .. eee 1031 Bh a saicaueseineal’s 2
QOTeBceea ces 1042 Diard sorehelanaiers 4
S12 cio eaa 198 Gis neneewanty, oe 6
TU iis wigan ee 199 MO. ice sietara sass 11
Tihs ss useuee 203 1O-dis ss couse 15
CLOT Bo fe caderd 335 200 LOD e204 sedive eae 16
778-781... 2. ce eee 201 Wis. ceapaete.ae 17
782-7387... cee 202 12...26, 53, 349
(OB Biri saictins oes 203 Dwele digicotaraig 1065
TE9-Bewcceceees 203 ee 1069
TOO aise «teas es 203 TDs es sie os 66b
838, 839.......... 745 DG. ctice asks 563
BOG ities Sand ase 759 DT inte hionda a 0a 21
900, 901.......... 760 WS) DO iss cocevaitase in 8 21b
O14 ois essere sc 755 20 stelewtaatauer's 66¢
915, 916.08 cciedss 756 D1 sews se as 68
QUT icnads tre cacat os 757 Desk caw Paso 69
918, 919. cesses 758 DB sarateiasaseexeise 18
O20 weirs. sere 759 DBO sistas a siese 20f
xiv TABLE OF LAWS.

Law. Pace. Law. PaGE.
County Law, County Law,
DA occa eases 27 16l-a, 162.......... 129
Das oire ial arena 35 IGS vas «aves es 130
OB seca eiaiisie aie 21d 168-5, b6c03088 3:6 130
DH Sas hemes eg 22 TBA ssc 3h 25 euciete 132
28-30 5s scisie ease 23 LO Oia iviesd sax aeasncs 132
Slecisede sax 69 166, 167.......... 133
BLA ba paws ea S 70 TOS ais oats 134
Dog BAS ere pudcene aed 71 NGOs see eecsrei 131
DOR acleaaitinans 235 Wwe eecews 156
OO sBaree wnletee< 236a ATs fee oscsnaas 135
BO2D wise cate sdcawerees 236b TBO! 5 sntteacerana.s 154
36; Ole sei ga eee 237 GD cx: sctttessvacainse 156b
O53 bea eeaa4s T4 WOO i sate aw apes 157
39: 40 sais eave ne 80b ISS .s ste yess li4
41 ADs sehen ds 81 PBA kg secu wodeh ane 158
AB ad ase ce 82 TBD crrcasese oes 162
AS se a loniivete oes 216 DSO AB sada nace 160
ANG 3s Ciaseeodiavectes 219 185-b.......... 161
AT 35 Drcroa terete 219a V86y GE 52 sige’ ict 162
AS ico siauaecnean 219¢ 188, 1892.56 see as 162d
49, 49-a.......00. 220 190, 191.......... 163
49-b, 49-c.......... 221 TQ e524 seeas doe 163, 203
AEM cs crésies ove 222 193, 194.......... 164
AQ Ge. cahcss ations ace 222 N95 2s wiaisicea sae 169
DO bere eieboaneveea 94
O Lisa's oe is detots 96
OSian anaes 97 County Law,
be eee 98 $$ 196), TO%s 2 6 seas ne 162a
Clervvedewas a 979 198-199-b.......... 162b
62 sceniceGuaee Si 981 199-c-199-f...a....4. 162¢
GB sis xc spain 983 DOO oa aresa ens cau 137
G4 tececiensrearses 982 QOL ia aie ae oie 18
65-67 ie one aes see 984 202, 203.......... 140
GB ais «anes s 985 204, 205.......... 143
Wess sa sneelve 986 DLO i csite ae ts 82, 144
88 Ty Toisas aes 988 215, 2165 002 caweve 124
MBA acssaseacevexs ove 989 P20 sic se eaudees 668
TE-=B0 swrea a seen on 990 Doig teecsidae2 os 671
D0 iia wisi tances 175 80s at Conte scee 145
OD OD ate a iseaai es 178 DB Vises wis ees 146
OG ga He 180 B82 .cecancess 147
94, 94-8, 95 vices swcwes 181 O33 sii see 151b
SOT wean sdbaias 182 DBA rec nine ih 118
98, 99.......... 183 OS Dieta: dunes 6-3, 119
100, 101.......... 184 235-a, 235-b.......... 121
132-a, 183.......... 663 Giese aheties a 121
DBS sac ie side es 664 237, 238.......60. 122
185; VSG oscis os sare oe 665 239, 239-a.......... 123
AO av ei aoe eee 100 240. isis ss 37, 191
WMV sive saw ss 103 Oa eG 5 csiecareeves 21
VAD oe isavevduae se 104 DAD ie: jhvibus a av ete 50
148, 144.......... 108 DAB acs scarcies oda 224
145, 146.......... 109 4G ee neice 143, 225
DAT, FAG oie ain ecsiaracsss 110 246 assis eis sits 295
149, 151.......... 111 246 cae vaaes 226
182 6 6c coegics 112 DAT os sess co avec 227
153, 1543.0 sas iee 113 248... .. cee 144
154....... 117, 156a
AGO? on. tyshaie ton 125
T6125 isan. 127 Decedent Estate Law,

§ 48) ec cima 135
TABLE OF LAWS. XV

Law. ; PAGE.
Domestic Relations Law,
S818) V4 sues diese 342
TD eset Batic 345
VG) 19s aieerd cece 345a
aerece a aati 134
Education Law,
§§ 123, 124. cesce seas 1015
138, 189.......005 1016
TAO .sscia 5-4 eters 1015
BAO sisew ox sees 1021
BA. sched arieepes 1022
360.....4. 1013, 1026
861, 362......006- 1027
BOS asic sine 1008
364 c60 es caw’ 1009
365..... 1010, 1013
BEG oases es sreiere. 1010
380, 381.......... 1017
382, 383......000- 1019
BSS aiak's ngage 1020
389; B90 ex se wees 1021
ANE ee ako = 1016
427-429..,.....6. 591
430, 481.......... 592
B38 aici! os et viesels 1022
434, 435.......... 1023
436-438.......64. 1024
490, 491.......... 1002
491-a.....206.- 1003
AOD soit ad oatisin 1005a
AB a taterasie eaeds 1005b
494, 495........4. 1006
496-498........-. 1007
499-501... . eee ee 1008
B20 sisccawewes 1010
B21-528 acca cic ectuad s 1011
524, 525....0..006 1027
526-528........5. 1028
G10, G11. esaeess 1025a
G12; G18. sess cacws 1025b
G14, 615.......... 1025¢
616-618.......... 10254
619, 619-a.......... 1025e
619-b.......-4- 1025f
S50 sia s sieges 1011
851-853....-...-- 1012
855-857........5- 1025
O71, O72......000- 705
OTD can erseatait- 706
OTT; DES isae sw ssese 709
979, 980........4- 710
991-993.......... 707
1004-1006.......... 708
WOOT areserecntaues 709
1198, 1199.......... 2232
Election Law
§ AO wesesiicnes 293
BS ia ase tare 295
AD icine warciniies 272
G4 oi sice wiavigie ie 279
Sb cawe aside 271
0x eased es 276

Law. PAGE.
Election Law,
OB eta weke one 271
O4 es cam cee 272
WO saa. dopo. 276
VOG se vaca e ea 274
MOD a. oa vise 9% 277
140, 14 os eee eee 273
159; 16060523 sex ss 296a
A Baie e Gs Sidaai eva ts 277
244-245 .......04. 278
DAT a io davantian ices 278
272-278. cece scene 8+
BA ews ag acess 243a,
Farms and Markets Law,
§ .
LOG avsauesare 652
LOG: srased cx uns 6 652
LOS sii ois 653
LOO 5 ss cstans ds see 653
TAQ eared saiae ee -654
DA Visiegna deat os 655
DP rissa erevardc ets 654
WS se seced e esieiae 655
TAA te echei ss 656
115; 116 sce g cases 657
PLAS cas heck: 659
VO wiecieces myiene's- 661
TO sraisaneausiectre 662
121, A22 eis cnteies 663
123, 124........0. 665
125, 126.......... 665a
ADT 3 seacy asta 665b
180-182.......... 1088
184-186.......... 1090a
192, VOB ies cesecsiers 1090a
194-196....... 1090b-c-d
2966: i wieesies 651
General Business Law,
cae ORE ES 402
60;. Glivic-s «aceasce’ 407
62-64......000. 408
General Municipal Law,
S ccicg Se tanices wg 1065
Bie suxaie es 1043
Dida waiat ees 1058
Gicvakaawes 1059
Cina Saison beg 10¢
Bias Shute 1061
Dei eareneee see 1062
WO stiraghiee 83 1063
Wisess saa tus 1064
DO se oe ceirn tes vete 1065
TB ya einen oe 592
Te Sccetoetoaea 1072
WD 6.a/s sewn ee 1073
IG sesacesass 1071
VIR ce rece 1074
19520 secre eaten 1075
Desig e Siiers 1081¢
ys a 1081
Dec etrsin wie 1045
O28 's s.dciawai arene 1069
xvi

Law.
General Municipal Law,
§§ 53-55.

77,

Highway Law,

TABLE OF LAWS.

Pack Law. PAGE.
Highway Law,
Ree a eee 1070 Ddscebnia sa (BSS
Sse 1076 56, Si..ss.seeee 829
Bre hates eas 436 BS, 59.......... 830
esses 438j 59-a, G0........4. 832
Sa Ase iaty 436 Clescuvexew 833:
misaicionig Ne 1078 62, 63.......... 835
has epoca 37 64, G5.......... 836
Hitee aennen 4374 66, 67........+. 837
eae 437 O8iccavonecwan 88
ech eabaraes 1079 69-71.......... 839
ramets. 408 To, Toecaneersne 840
Bie etesae 403 fl ors een ae OAS
a ddaneeee 405 TOs oksues maa) 43
Seeamainnees ee 76, I sania
SHedesitet sce tee e@ VSixie ieee wa SH 45
sobeck ens 10814 79, 80........6. 846
sntseneniet 782 Bi, S22, e sneer ngs OLE
dite Naess 1081d 0023 sadens se. 28D8
Bee eee 1081d Q1e..eeeeees 855
Seo 1088 2S aeeaaeass « SBOG
Neh pare once oe Bc cadge eS SOU
dasa ara euee OL: cgiaeacctigs 12801
Dieeeee 2234 95, 96.......... 862
Lea teaiieens 223b Ui ea casts os tess ASOD
pineal’, ae 97-85
aiglenns vas @ US icceeensaa BOE
Gh ease So 223f 99, 100.......... 866
seat ce 223f-4 WON cian cause S08
TOS ADS x torso stars 858
T0415 viacaget ened 869
Segal ates 788 106, 107.......... 871
ate enka 789 108-110.......... 873
Sed pia tanets 792 VID Sacto + SUE
Re es ee 120) 12a weve ace SET
i Gopoetens WOO nace ab
Nereneaicten’s 795 122-a, ee
ee 797 122-c, 1238, 124.......... 878
aeneees 798 TOS sccacsace, 879)
catbiatdeetne 793 125-a.......... 880
ate amy, 9 126-128.......... 881
Gece 129, 130.......... 882
‘aeienek 800a TAP ageudumiy: BOL
nates 800b 132i pccrrsues 889
FAW Deaton a 133.......... 892
Caviar cats 134.......... 893
veeees 290, 810 135, 136, 137..... 0.02, 894
wena 290a, 811 187-a........4. 897
Pads 290a, 812 TW 8ieacx zxigaie se, 898
sees 290a, 812 138-a.......... 898b
wees 290a, 813 188-b.......... 898e
eledee 290b, 813 139, 140 898d
eriaerees MAO vecincg ones
nies , 141.......... 898¢
seen ees 814 141-a.......... 898f
ween e ees on 142.......... 898¢
thee eeee 142-a.......... 898k
sence ees eee 143, 144, 145.......... 898i
sete eees aa 145-a, 146.......... 898}
sete es one 147, 148............ 8981
Ptah 827
TABLE OF LAWS.

Law. PAGE.
Highway Law,

149, 149-a, 150.......... 898m
151, 152........6% 898n
L581 4a iaanenes 898p

155, 155-a.......00. 898q
156-158.......... 898r
ALD Die sik apices Ree 898s

TGO cece t ares 898t
161-166.......... 899a
16T-Oi0s< tse ies 899e
167-b, 168.......... 899f
DO sista eieseensce 900
170-a, 170-b.......... 901
LGU, Li Lisieiss saree 902
LTD tee isocnieer ie 903
TV78-L eee vasa ec 904
176s: ATT secede meted 905
VIO eiesecs Sete a 905a
180-182.......... 905b
DOO aecraerus< he 907

LOT a caian a achanis gins 908

WO Bee cia ess 911

VO Biss cave oie ee eoe 912

WO 4 a: aoa steaueciv's 915

195, 196.......... 917
LOTHL99 aig ow eisin v5 919
BOQ esc nee 921

201, 202s serine os 924
203, 204.5. nex ves 925
QOD cate cauceidvoe 927

DOG ererassayauaevens 928

2075. 208 esi eeaigas 929
209, 210.......... 930
DY Ves wae a0 931
DID Bb a.5 ecsiace eas 932
216-218.......... 933
219-224.......06- 934
Q25, 226 caecateaiss 935
227-229... .cceaee 936
230, 23h vas csee es 937
232-284 6.05 cde ees 938
235, 286......064. 940
2372289 cee ee ane s 941
240, BE ewe deere ee 942
200 esses wees 945
251-258... . ccc 947
DBA wie c3suaaeve 948

DD wii vie imen ea 949

DOO sicaig adedvncsis 950

257, Q58..... 0. eee 951
259-262........-. 952
ODP Gi aigiald asec cincdo 953a
DGB cca: Sd.tecue as 954

264, 265.......... 956
DGG wieicetiesvers 956

267, 269 sie caacees 957
269-a-269-j.......-4. 957e
DAO wah. secs Sees 958
271-274.......... 959
B20 wow a saree es 961
820 ais cee earnaee 963b
B20 Wisiece sauersiaie 963e

Xvi

Law. Pace.
Highway Law,

DAD Ciera asieserciaere 963f

320-d, 320-€.......655 968g
S21-B24.. ccs eee 9633
BOD Bee e sees 4 es 964
BGs Bases 6 & Sore es 9605

829-a, 330... 2. eee 966

331, 332.....2.0006 967b

B88 ese ow oeeaesies 969

334-336. 6c exiwens os 970

837-840 o6 save ees 971

841-843... . 0.000 972

844, 3845......000. 973

390, 351.......06. 974

852-354....... 006 975

S006 isi Hewes 3% 976

856, 857..6.-.2 02s 977
Insanity Law,

8 8 2hiis is Geis dew 689

Shy ee vag ces 690

Ue-as Hx ose 691

86 coecigseee-s 692

Bie Sa rtuesavacecs 693

BS iss sinned oss 697

B8-a... cee eee 698

94 came ee 698
Judiciary Law,

§§ ‘400, 401.......... 166
402-405.......00. 167
406-409.......... 168
500-502.......... 1032

DOS ccd Mteara 1033
DOB iss iene sca a ane 1035
506s. ctcve ews 1036
509-512........0- 1035
DA Gioievaveuasircaave 1033
749-h, 749-1.......06- 1042a
Justice Court Act,
ADs ease cose 347
ATB-475.. cee cee 348
Legislative Law,
8 AS ie sei Sasee geet 68
Lien Law,
§§ 232, 233........6. 339
23 4s aim va i 341
DB Bins gceh tne: evonsy 340
Membership Corporations Law,
(ee einegiescals 1087b
Ws caieg ea ss 487
WOT ese/niniesteeaveus 409
Military Law,
§ TD stance vidas 167
Penal Law,
GUO seactes scxcriess 185
1820-a......0008 1082
xviii TABLE OF LAWS.
Law. Pace Law. Pace.
Penal Law, Poor Law,
1820-1822......000. 1us2 68....000. L748
1823-1820...... 000. 1083 60s cve canes 749
1829... cece eee 1083 BDSG ilenaidsce gars 750
Te 1084 De teen Kaa 751
1832-1834. ....0005 1084 Ph ncn haat 752
1835-1836........ .. 1085 80....... 767
TRIS ccesswss ve 172 Salone wie: 768
1839..... v.12, 198 eee ccoen 771
1840 ches van 173 Sb cciiacteias 771b
ASS ceceeces i, 1085 BG: BFnwn'sv was es 771e
1848.00.00. 167 ae 772
1650. 1898s xe nese on 348 W108. ame save . 773
1854-1850. 0.000000. 349 O8-95 5c news extn 774
1B5 0s Sass eae 1088 96-98. ..ccceces 775
1860-1862........05 135 99, 100, 101s ocess ine 776
1863, IStAs ce ceavnes 36 Oe MOG. 2 aang anne 77
TS6Ss baigivwa’s 1085 WO4evcawecucs . 778
1866........0. 1036 Ass Wo eaccaevenn 685
1867....00000. 114 AT Liss iaeeess 1. 686
1868.......... 1086 JI9-W21. eee eee ee 687
1869.......... 135 TSO eo airs caine 763
1870.0... cee. 612 SUIS) athe caer 764
UST 2 cca soya 37 12318 5ice veasecimee 765
Q321......000. 546 180. 137s cerca sive s 766
Tse cease 779
Poor Law, TBO}. ceconacni wi otarieis 780
§ OG kes sale 671 TO esate s hea 781
aren 675 Vs ce 724 - 726
Be Osh wacea 676 190 ec vadinas 680
TB ccoreie.ciersigt 677 Alcan eas 716
De 10s foots tara 678 1G eatsamen . 782
Me oe pares 679
VILL egy Prison Law,
B0 encase vues 714 §§ 22, 23...... tee a
oer ee SA0S44. oe acess 191
naires 2405 347.......... 178
eer bene ae 348, 349... ...0... 185
este ee B51 nciarcaaes 186
poe ee Se 352, 353.......... 187
eps 354.......... 186
Ser Oban es eee B50 Aisa taco: 192
SO ccucnas 724-726 ee a
re eas oe 357, 358.......... 193
peels eS isis 359.......... 194
Ao eee 732
5 A an oa nuns 734 ce ctrinee A
45.....00.6. 735 ——«iD ee ee
ME BF secs seca 736 ae tetteeeees ae
BB AD weiner See 737 Bred a
BO) Bivins rice ow 738 |. 2 B64........4, 195
52 i caaes ar re 740 365, 366 ee rer ecees 193
BO ae ce eyes 741 367-369-a.... 0.50 a 187
369-b......0005 196
BE Baretta ac 742
56 he na Se 682 369-c¢ eats Sea eee ° 197
BT taiies 781
1) ee 781 Public Officers Law,
60 sieges cise bre 744 § 20........ 1. 442
6 liseroeneaies 745 20-a, 20-b......000. 4434
62, 63.......... 746 lise ass 44°¢
TABLE OF LAWS.

Law. Pack Law.
Tax Law,
21 Died sie 33 Gps 448 BED cats y oye de®
D102 pc waxes we 450 AD ioc cin te sae #
DD eiehcewin cea 450 OD, Geom esac
Die aisdveng aoe 453 WU civeioiss Seuaniecs
DT, 28 sieterincre ew 457 Siavaisi each aiarecs
29, 30 saceweiz coos 458 D side voce hansen
81s care x ease 454 DOS Sark slave shoe's
BBis s Acewea st He 456 TD vvicd ss wine
BAe Ania dcareysie 459 2 ys citesreevaceans
Dts ialedt ote 459 DBs idvearentigns
BG ois sG snes 461 TA sana wiece's
368s aces ci oies 452 ID ssisig ee Sige
Ol s sews sa ine 461 NG sate oe aes
340, 341, 342.......... 725 ATs ieene« vole
370-394......0.0. 462a DO sccseis-a eatin
Pal ena deotiecatnagd
Public Officers Law, DA Diiii nves settee
§ Bia ssigtnes 301 DO acs Sartaes «
Deine o aaied 284 BB cious a saad
V1 eta heeds 312 DA ws seen ne
ADs ai seascapes 313 DACs eet ese
VD nau. cswate 314 24-b-24-d..........
BO rwisieve scien 316 24-O. ccs
83 Sk er sie's Kaas 229 24-f, 24-2......066.
jer eal aueuin ss 230 255; 26. es heaee
Bb Ben vis wane 3 231 QT beens ewes
86 sistas saa os 315 28 i665 Kawa
SOc rancess 357b oD oress sitesic toe
j 30-33..........
Railroad Law, < BA cos scaciere
8 89 sso sigeaes 991 SEBinien owen es
D0 ispew ner sine 992 35, 36........--
OV ois v.5 ee ¢ es 995 B6-Bie as eviee ces
Qa g éca ieee 3% 999 Bleed cannes
OD ssenacdnenond ats 1000 DO Oiis rata: Bouse
D4 vc sca gain 1000a BO ie cashier
DD ie 85 swig sete seers 1000f AO ee scvicnte vial
95 Beans eaiciete s 1000g AN ois see vas
96, OT cass snes 1000h 4 came. c3
Wie iasrna eis
State Charities Law, 45-45-c.. 2.00000.
BE oeiye sie 703, 785 ABA. vasa ss
DO sara asst aa38 700 45-e, 45-f..........
OQ ass ceiisnses 701 AGG shoe viek
TIO; Deco sarees os 703 AT, AB wea cine ss
450, 451 eee awwves 783 4G oe eeedeus
ADD evs sites 784 DO seas car weaares
50-a, 51..........
State Finance Law, HB), DSi were ais
‘ § Bliss vse eases 208 64, 556. es nee eee
B82 one eae is 206 DDB et ese ees
B8ccac somes 207 DG ans bse sata se
84, 85.......06. 207 BOB veces ces
BG ntvrereteaa 208 Dinas eronh aha
87, 88, 89........6. 209 OB bss awe eg
iy Dlian ee eames 210 BO as esta ea
Oise es ageies 211 60, 6liscssuzcas
GOs. is jeyens eee
Tac Law,: C9 ies cciasta avec
BD isieece'escaeeee 465 69-a, 70..........
Dine isieawee 472 10 -Ois. sx wire bao
xx TABLE OF LAWS.
Law. Pace. Law.
Tax Law, Tax Law,
HAL saveveisere teveye 585
Bobs fonbe aie tise 589
Cine ides gc seis 590
Oks a shan: sina 594
Toe tee x ae 595
TDs. heless edie 8:8 SES 596 Town Law,
BB gp TQ ace ssaice a ee 8 600
SOB 2 neice oes 601
SBicswaa sce 602
Shes wrachacsis te 603
SOisweeer ewe 605
86) 88 occu cosas 606
Biers tevencvas Geers 607
88-a, SY.......06. 608
GO2QT os sicte gees 609
Qo sa patisite a. O78 ats 610
93, 9456 «sie b:0 ws 611
LOO 's.gcsieets-es. re 613
BDO csreanaescars 614
WED oe tates 28 ee 615
Eble csea sas we 616
SOo bw pee ea oes 616
152-a, 152-b, 153.......... 617
T6454 wie < 4 ats 618
156, 151 sa ca pasa 619
58, W596 isco eas ds 620
ATO eens Be 572
170-a-170-c, 171.......... 573
17l-a, 171-b.......... 575
171-0; 172; 1786 vs eeeese 576
173-208 s esiexcee s 577
VAS a Sle ents 578
VT Dia esvesnan tener 578a
DT Gass dsScaeane cs 578b
WT GPa ssiidisdasreler sists 578¢
TTT sis, chisset ae 578d
177-a, 178........,. 578¢
179, 179-b.......... 578f
DIO ial ea geese eae 502a
DD id aan maha 114
DOM esd o aieusefendi 116
240 cass ohare 115-117
200 esa seae ees 621
2O1 sss waaw ba 622
252, 253........5. 623
OO Bice aeychias oro 624
DOB ia ts cseihien oars 625
DDG ioe. o ce sasieleons 626
OTe iva em eae 627a
DOB a tak wie ts 627b
DOB Bisiss se isoesseve . 627a
2596 65 eaarereis - 628
260s sos stoeserlecs 629
2 Gis snausialeaes 633
268% 3 winawes 634
268 50 S8 soe 634a,
QG4s scised-a rons 634¢
DO sas Srecateneaers 541
29 8 oss cucra soca 597
299 wiaavne os 598

301, 302
303-305
306

32, 33

42, 43

eee reese oe

eee enone oe

233

Bot

£60
TABLE OF LAWS. xxi

Law. PacE. Law. PAGE.
‘town Law, Town Law,

100.66. aisigee BOS ; LP Ljeves sates assy 384b

AO desate tats spas: doy 305 Dok pea sn eee. 386

MOQ 5% 6 xawe < 284 TAGs sa: girsten ayers ane 591

DOD siwid S-Sepece oo8 286 LTT 8 eae es ae 382

104, 105.......... 288 Lean ers 385

MOD SE sis Ses cies, a, 289 190-195.......... 1080

WO Gini eeceies 305 ZVG6 ciueee doe 401

LO Ven aascne ss x 384 DAT pug wane. tra a as 402

WOT eas eee tes 384 OL ARAV As. es tans a ws 404

WOT Disses ware ede 384a DAD oe cecepaties 308 ot 405

LOGEC akc anes 384b 216-218.......... 406

DOB ois as ciate fee 357 249, 220 oes ee bs ars . 407

T1Qesees-aima as 6 368 280i. wcine bal ies 425f

ADM eszoeteninars 3 807 250-iwes x was a ate 426a

DIED cones gob Tietseal 6 290b OB sw attiesee ae 426b

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xxii

Law.
Town Law,

TABLE OF LAWS.

PacE. Law. PAGE.
Town Law,
341, 350...... esos 861 394, 396........06 650
342-348........0. 462q 410...... 296a, 367
351, 352.......... 362 ANT ieicicieven 296a, 367
SO s'es:aten x te 637 BND icc wstone ven 367
SOlie ss aaa a 638 420-422 ......0085 369
362, 363.........6. 639 423, 424, 430........4. 370
364, 365......... - 640
366, 367......... . 641 Transportation Corporations Law,
BOS ascacweseue « 642 BBA ace eoa-d eeeue 414d
B69 eis sa vata « 643 WAT ecestcite: eavsifare 487
S80 waves a cieers.e 644
SO Like oo aciy Suess w 645 Village Law,
382-384........05 646 S852. (Bins Miaw's. «See 331
385-388........06 647 4-Gocc cc cceee 332
389, 390.......... 648 CED cares ccnettee 333
91898 wid ea sree’ 649 Do isieevcare duper 334
PART LI.

COUNTIES; BOARDS OF SUPERVISORS.

CHAPTER IL.
COUNTIES AS CORPORATIONS.

EXPLANATORY NOTE.

Powers of Counties as Corporations.

A county is a corporation. It is described as a municipal corpora.
tion (Gen. Munic. L. § 2), but its liabilities for the negligent acts of its
officers are not thereby extended. The main object of declaring «
county to be a municipal corporation was to permit it to sue and be
sued as a county, rather than as formerly in the name of the board of
supervisors. Section 4 of the county law expressly requires actions and
special proceedings by and against. a county to be in the name of the
county, and further provides that all contracts by or in behalf of the
county, shall be deemed to be in the name of the county. This section
does not do away with the necessity of presenting claims against the
county, to the board of supervisors for audit, although this question may
not be considered as settled, in view of some of the authorities to the
contrary. Prior to the enactment of the section referred to it was
settled law that there must be a presentation of the claim to the board
of supervisors for audit before an action would lie against the county.
This section was evidently not intended to change the rule.

Section 1. County a municipal corporation.
2. Actions and contracts in corporate name.
3. Disposition of property, apportionment of debts and collection of judg-
ments on alteration of boundary.
4. County liable for injuries caused by defective highways and bridges.

§ 1. COUNTY A MUNICIPAL CORPORATION. :
A county is a municipal corporation,’ comprising the inhabitants within
its boundaries, and formed for the purpose of exercising the powers and
discharging the duties of local government, and the administration of
public affairs conferred upon it by law. [County Law, § 3; B. C. & G.
Cons. L. p. 696. ]
1. A municipal corporation is defined in the General Municipal Law, sec. 2,

as including a county, town, city and village, and in sec. 3 of the Generai
Corporation Law it is provided that “a municipal corporation includes a county,
2 COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 4.

§ 2. ACTIONS AND CONTRACTS IN CORPORATE NAME. *

An action or special proceeding for or against a county, or for its
benefit, and upon a contract lawfully made with it, or with any of its
officers or agents authorized to contract in its behalf, or to enforce any
Viability created, or duty enjoined upon it, or upon any of its officers or

 

town, school district, village, city and any other territorial division of the state
established by law with powers of local government.”

Effect of declaring county a municipal corporation. The above section
of the County Law, making a county a municipal corporation, has not changed
the rule as to the liability of counties for the neglect of county officers to per-
form their official duties. Albrecht v. County of Queens, 84 Hun, 399; 32 N. Y.
Supp. 473. In this case it was held that the county was not liable for the negli-
gent construction of a bridge, because of which an injury was occasioned to the
plaintiff. The court said: ‘ The theory on which cities and villages are held to
a liability different from that of a town or county is not merely that they are
corporations, but that they obtain upon the request of their citizens valuable
franchises, and that in consideration therefor they undertake to perform with fi-
delity their charter obligations. This may be a fiction, as the legislature can in-
corporate a city without the consent of the inhabitants, but nevertheless, the
principle is too well settled in the law to be ignored. This principle is not ap-
plicable to counties, which, while the statute may make them municipal corpora-
tions, are something more than such. They are political divisions of the state so
recognized in the constitution, and beyond the power of tre legislature to abro-
gate. The state doubtless can impose upon counties liability for the neglect of
county officers to perform local duties. But we think no such intent should be in-
ferred from the mere fact that in the general revision of the law relating to
counties they are declared to be municipal corporations.” Cvs, i lso, Godfrey v.
County of Queens, 89 Hun, 18; 34 N. Y. Supp. 1052; Ahern v. County of Kinge,
89 Hun, 148; 34 N. Y. Supp. 1023; New York Catholic Protectory v. Rockland
County, 159 App. Div. 455, 144 N. Y. Supp. 552, aff’d 212 N. Y. 311.

The Court of Appeals, in the case of Markey v. County of Queens, 154 N. f£.
675, 686; 49 N. FE. 71, holds a similar view as to the effect of the above section.
Judge Gray, in writing the opinion of the court, says: ‘I think that the
principle of our decision must necessarily be this; that as the counties 9st this
state were bodies corporate for certain specific purposes, before the enactment
of the County Law of 1892, now that they are declared thereby to be municipal
corporations, their liability for corporate acts is no further enlarged than what
may be clearly read in or implied from the statute. Their becoming municipal
corporations in name imports no greater liability, because, by the third section
of the law, their liability for injuries is confined by the language to that which
was existing. The liability remains as it was, neither greater nor less. No
new duty or burden has been imposed upon counties, in respect to the main-
tenance of bridges over navigable boundary streams; the duty, which always
existed for public purposes and for the public benefit, is continued. The work
of maintaining the bridge in question was properly charged upon the county:
because it could be more advantageously performed by them than by the towns.
Towns themselves were not liable for damages arising from defective highways
and bridges until by an act of the legislature in 1881, the liability which formerly
rested upon the commissioners of highways was transferred to them. If it
wos necessary, in order that towns might be made liable in private actions,
that there should be such legislation, it is necessary, I think, that there
COUNTIES AS CORPORATIONS. 3

County Law, § 4,

agents for which it is liable, or to recover damages for any injury to
any property or rights for which it is liable, shall be in the name of the
county.? All contracts or conveyances, by or in behalf of, or to a county,
shall be deemed to be in the name of the county, whether so stated or not
in the contract or conveyance. [County Law, § 4; B. C. & G. Cons. L.,
p- 697.]

 

should be some express legislation, in order to impose the liability upon a
county which did not previously exist. The object of the County Law of
1892, in my judgment, in declaring the county a municipal corporation, was
in order that it might be sued as a legal entity in such cases where, previously,
actions were maintainable only in the name of the board of supervisors.”

In the case of Hughes v. County of Monroe, 147 N. Y. 49; 41 N. E. 407, it was
held that the doctrine that where power is granted to a municipal corporation
as one of the political divisions of the state, not for the immediate benefit of
the municipality, but as a means to the exercise of the sovereign power for
the benefit of all citizens, the corporation is not liable for non-user, nor for
mis-user, by the public agents, is applicable to counties, which prior to the
County Law were not municipal corporations, but were political divisions of
the state, and at most only quasi corporations. It will be seen by an examina-
tion of the case of Markey v. County of Queens above cited, that this doctrine
has not been changed by the enactment of the above section declaring a county
to be a municipal corporation.

Municipal corporations engaged in a public duty as instrumentalities of the
state are not liable for neglect or misfeasance; the one exception is where it
is doing the act for its own benefit; hence county is not liable for acts of officers
of penitentiary. Alamango v. Supervisors of Albany Co., 25 Hun, 551. For
same rule applied to cities, see Smith v. City of Brooklyn, 76 N. Y. 506, city
not liable for acts of firemen; Ham v. Mayor, 70 N. Y. 459, city not liable
for acts of officers of department of public instruction.

Liability for defects in bridges.—A county is not liable for damages sus-
tained by reason of defects in a bridge required to be maintained by the county;
distinction between liability of municipal corporation vested with power for
own benefit and that of counties and towns as political divisions organized for
exercise of power of state considered. Ensign v. Supervisors of Livingston Co.,
25 Hun, 20.

Damages caused by mob.—An action does not lie at common law against a
municipal corporation for damages caused by a mob; but the legislature may
impose such liability. Davidson v. Mayor, 27 How. Pr. 342, 25 Super Ct. 230.

County held not liable for wrongful and illegal acts of sewer commis-
.sioners. See O’Brien v. Westchester County (1919), 189 App. Div. 138, 177
N. Y. Supp. 507.

2. Action by and against a county. The object of the above section is
to permit actions to be brought by or against a county as a legal entity in such
cases where, previously, actions were maintainable only in the name of the
board of supervisors. Markey v. County of Queens, 154 N.Y. 675; 49 N.E. 71;
New York Catholic Protectory v. Rockland County, 159 App. Div. 455, 144
N. Y. Supp. 552, aff’d 212 N. Y. 311.

Corporate capacity is conferred upon each county in the state to
sue and be sued, to purchase and hold lands within its limits for
the use of its inhabitants; to make contracts and possess personal
property, and to dispose of and regulate the use of its corporate prceperty;
and all suits and proceedings by and against a county in its corporate capa-
city are directed by the above section to be in the name of the county.
In the case of People v. Ingersoll, 58 N. Y. 1, the right of counties to
protect their property and to enforce their rights has been exhaustively
discussed. In view of the importance of the case it may be well to
4 COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 5.

§ 3. DISPOSITION OF PROPERTY, APPOINTMENT OF DEBTS AND
COLLECTION OF JUDGMENTS ON ALTERATION OF BOUND-
ARY.

When a county is divided or its boundary changed, its real prop-
erty shall become the property of the county, within whose limits it lies
after the change. The personal property and debts of such county, shall

 

quote the following language from the opinion of Judge Allen (p. 28): “ Coun-
ties are public, as distinguished from private corporations, and they are political
as auxiliaries to the government of the state, and they are trustees of the
people, the inhabitants within their boundaries. . . ', They are trustees
-nly of the property held for public use. They are not the guardians and pro-
tectors of private and individual interests or property of the citizen. They
may not intervene by action to protect or redress the individual citizen in
‘espect to wrongs or injury to his person or property. Their power as well
as duty is restricted to the protection and preservation of property possessed
my them in their corporate capacity. This trusteeship and corporate power has
4 pecuniary and fiduciary relation, extends to and embraces not only the
+angible property of the corporation, but the franchises and powers conferred
for raising moneys and other means for the support of the local government
and the use of the inhabitants of the county, and the means realized from the
franchises and powers conferred. . . . In political and governmental mut-
ters the municipalities are the representatives of the sovereignty of the state
and auxiliary to it; in other matters relating to property rights and pecuniary
obligations, they have the attributes and the distinctive legal rights of private
corporations and may acquire property, create debts, and sue and be sued,
as other corporations; and in borrowing money and incurring pecuniary obli-
gations in any form, as well as in the buying and selling of property within
the limits of the corporate powers conferred, they neither represent nor bind
the state.” In this case it was attempted to maintain an action brought by
the people of the state for the recovery of money realized from the sale of
county bonds in excess of the amount authorized by statute, and fraudulently
diverted from the county treasury. It was held that the legislature has the
power to direct by what agency claims against a county shall be ascertained
and adjusted, and by what officials the bonds of a county authorized to be
issued to provide means of payment therefor, shall be attested and issued; but
the bonds, when issued, are the bonds of the county for which its credit and
revenue are pledged. The debt is a debt of the county and not of the state, and the
moneys realized upon the bonds are the moneys of the county and not of the
state; and when stolen or procured by fraud from the county treasury the
county alone can maintain an action to recover the same, subject, however, like
other municipal rights, to the control of the legislature.

Where no discretion is vested in the supervisors, but they refuse to perform
a clear duty, mandamus not an action will lie; the latter may be maintained
only where the duty is that of the county, not of the board. Boyce v. Super-
visors, 20 Barb. 294. See also People v. Supervisors, 3 How. Pr. (N. S.) 241.
When the county treasurer misapplies taxes collected from a town for a special
purpose, an action for money had and received is maintainable by the town
against the county. Pierson v. Supervisors, 155 N. Y. 105. See also Hill v.
Supervisors, 12 N. Y. 52; Strough v. Supervisors 119 N. Y. 212; Crowninshield v.
COUNTIES AS CORPORATIONS, 5

County Law, § 5.

be apportioned between the counties interested, by the supervisors thereof,
or by the committees of their respective boards appointed for that purpose,
subject to the approval of such boards; and the debts shall be charged
on each county, according to such apportionment.

Any judgment recovered previous to such division, or after such division
in proceedings instituted previous thereto, in the County Court or before

 

Supervisors, 124 N. Y. 583; People v. Supervisors, 136 N. Y. 281; Woods v.
Supervisors, 136 N. Y. 403; Kilbourne v. Supervisors, 137 N. Y. 170.

Maintenance of a farm in connection with an almshouse held to be for, the
use and benefit of county; and an action will lie against the county for pollution
of a stream caused by fertilization of lands of such farm. Lefrois v. County of
Monroe, 24 App. Div. 421, 48 N. Y. Supp. 519.

Where an illegal tax is collected an action for money had and received will
lie against the county; no demand is necessary when it is done with knowledge
of its officers; nor need the claim be submitted for audit. Newman v. Super-
visors, 45 N. Y. 676.

Where a claim against a county is based upon a wrong committed by or
attributable to it, the claimant is not bound to submit it to the board of super-
visors for audit, but he may bring an action thereon direct against the county.
Kilbourne v. Supervisors, 137 N. Y. 170.

It is intended to provide a remedy against the county for such cause of action,
and no other, as could not be presented to and allowed by board of supervisors
as a county charge. Brady v. Supervisors, 10 N. Y. 260.

Supervisors may maintain action for moneys fraudulently drawn from county
treasury by a public officer. Supervisors of New York v. Tweed, 13 Abb. (N.
§S.) 152. But they cannot audit accounts not legally chargeable to their county;
the payment of an account so audited is not a voluntary paymert and county
may maintain an action for the recovery of the moneys paid. Supervisors v.
Ellis, 59 N. Y. 620.

Where money was deposited by the decedent with a county treasurer in lieu
of bail unlawfully required by a justice of the peace, an action will lie in behalf
‘of the decedent’s administrator against the county to recover such amount.
This is so although the justice of the peace who fixed the bail was without
authority to bind the county, upon the theory that the money can be traced
to the county and the county has appropriated and received it for its benefit,
thereby creating a liability to respond to the true owner. Sutherland v. St.
Lawrence County, 42 Misc. 38, 85 N. Y. Supp. 696, revd. on other grounds, 101
App. Div. 299, 91 N. Y. Supp. 962.

Property of county.—The board of supervisors possess no corporate powers
and therefore the property of the county is vested in the county and not in
the board. People v. Bennett, 37 N. Y. 117. See also Newman v. Supervisors, 45
N. Y. 676.

Effect of section upon audit.—It has been held that this section is not
intended to do away with the necessity of submitting claims for audit to the
board of supervisors, and is only intended to change the law in respect to ac-
tions for or against the county which were formerly commenced in the name
of the board of supervisors. Erhard v. Kings County, 36 N. Y. Supp. 656. But
this case seems to have been overruled by the case of Kennedy v. County of
Queens, 47 App. Div. 250; 62 N. Y. Supp. 276, in which the court holds in effect,
6 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 5.

any justice of the peace may be collected by execution to be issued to

the sheriff of the county where such judgment shall have been render-
ed, or to a constable thereof, as the case may require, who shall execute
the same as if such division had not been made; and such judgments

may be revived and the like proceedings had thereon, as if such county
had not been divided. [County Law, § 5; B. C. & G. Cons. L., p. 699.]

§ 4. COUNTY LIABLE FOR INJURIES CAUSED BY DEFECTIVE
HIGHWAYS AND BRIDGES.

When, by law, a county has charge of the repair or maintenance of a
road, highway, bridge or culvert, the county shall be liable for injuries
to person or property sustained in consequence of such road, highway,
bridge or culvert being defective, out of repair, unsafe, dangerous or

obstructed existing because of the negligence of the county, its officers,

 

that the failure of the legislature to re-enact in the County Law, sec. 4 of tit.

4, ch. 12, pt. 1 of the Revised Statutes, which provided that ‘‘accounts for
county charges of every description shall be presented to the board of super-
visors of the county to be audited by them,’’ and declaring counties to be
municipal corporations, and authorizing action to be breught by and against
them in the names of such counties, was for the express purpose of permit-
ting the maintenance of an action against a county without first presenting
the claim upon which the action is based to the board of supervisors for
audit. The court said: ‘“‘While it is true that sections 12 and 24 of the
County Law, together with the other provisions thereof relating to the audit
of accounts by the board of supervisors are not free from confusion, and a
consistent system has not clearly been worked out, nevertheless it is reason-
ably clear that the revisers and the legislature intended to abolish the abso-
lute requirement that accounts for county charges of every description must
be presented to the board of supervisors to be audited by it, and to leave it
optional with claimants on such accounts either to present them for audit
to the board of supervisors and obtain voluntary payment by the county of
the amounts allowed on such audit, or, without such preliminary presenta-
tion for audit to bring an action against the county in the name of the
county ‘in like cases as natural persons.’ By this construction of all the
provisions of the County Law relating to the subject before us, an orderly
system for the judicial determination and enforcement of claims by and
against counties is established. The claimant may present his account for
audit and voluntary payment, and may still compel audit by mandamus or
have the proceedings reviewed by certiorari, or, at his option, he may at once
bring action and have the amount of his claim originally determined by the
COUNTIES AS CORPORATIONS. 7

County Law, § 6.

agents or servants. A civil action may be maintained against the
county to recover damages for any such injury; but the county shall
not be liable in such action unless a written claim for such damages,
verified by the oath of the claimant, containing a statement of the place

of residence with reasonable certainty, and describing the time when,

 

courts, and, if successful, have payment thereof enforced by judgment and
the remedies thereon.”’ The court in this case deemed the case of Freel v.
County of Queens, 9 App. Div. 186; 41 N. Y. Supp. 68, modified and affirmed

in 154 N. Y. 661, as a conclusive authority on the question. In this case a
judgment was rendered in favor of the plaintiff upon a contract made by him

with the supervisors for the improvement of highways. The Appellate Divi-
sion on appeal reversed the judgment. The Court of Appeals modified the
judgment of the trial term as to the amount and affirmed the judgment as
modified. The question as to the right to maintain the action against the
county was not raised by the defendant, but it is difficult to believe that the
ease is not impliedly, at least, an authority in favor of the right of the
claimant to sue the county as a corporation.

The question whether a claim must be presented to the board of super-
visors for audit before an action will lie thereon against the county, seems
to have been settled by the Court of Appeals in the case of New York Catho-
lic Protectory v. Rockland County, 212 N. Y. 311, affg. 159 App. Div. 455.
In this case the Court of Appeals held that a person having a claim against
a county may either sue directly upon it or present it to the board of super-
visors for audit. If the latter course is pursued and the board of supervisors
refuse to audit it, two courses are still open, one to compel an audit by
mandamus, the other to bring an action directly against the county. But if
the board of supervisors pass upon a claim and disallow it, either in whole or
in part, the sole remedy is to review the determination, if erroneous, by
certiorari.

In the case of Albrecht v. County of Queens, 84 Hun 399; 32 N. Y. Supp.
473, which arose subsequent to the enactment of the County Law, the court
said: “From the earliest period in the history of the state to the present it
has been necessary to present claims against the county to the board of
supervisors for audit. With some unimportant exceptions dependent on
special statutes, or where the claim was liquidated by the existence of a
county obligation for a specific sum, suits could not be maintained against
the county for claim or county charges. The remedy was by mandamus to
the board of supervisors. If the claim was fixed by law so as to involve no
discretion, a mandamus would lie to audit it at a specific amount. If the
claim required the exercise of discreticn or judgment, the audit was coaclu-
sive unless reversed on review, and could not be attacked collaterally. By
sec. 12, subd. 2, of the County Law, the same power is vested in the board of
7a COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 6.

the particular place where and the circumstances under which the in-
juries were sustained, the cause thereof and, so far as then practicable,
the nature and extent thereof, shall within three months after the hap-
pening of the accident or injury or the occurrence of the act, omission,

fault or neglect out of which or on account of which the claim arose,
be served upon the county clerk or chairman of the board of supervi-

 

tff has a claim against the county it must be submitted to the board of
supervisors to annually audit all accounts against the county. If the plain-
supervisors.’’ But in the case of New York Catholic Protectory v. Rockland
County, 159 App. Div. 455, affd. 212 N. Y. 311, it was held that there is no
peremptory statute requiring a contract obligation of a county to be submit-
ted to the board of supervisors for audit. A claimant has an option either
to submit his claim to the board, or to sue directly. If he once exercises his
option and presents his claim for audit, he may not thereafter sue direct, but
his remedy is by mandamus or certiorari.

Right to sue county in its name; option to present claims for audit or sue;
special auditor’s act for Suffolk county construed.—Under sections 3 and 4
of the County Law, an action may be brought against a county in its name,
and a person having a claim against a county may present it for audit or
may sue the county directly, and this rule is not changed by the special
auditor’s act for Suffolk county (L. 1916, ch. 107, as amd. by L. 1917, ch.
58), and an action may be brought against that county in its name. Delano
v. Suffolk County (1920), 192 App. Div. 459, 182 N. Y. Supp. 693, affd. 229
N. Y. 610, 129 N. E. 928.

In Taylor v. Mayor, etc., 82 N. Y. 10, it seems to be held that a presenta-
tion of the claim to the board of supervisors is a condition precedent to any
proceedings against the county.

Former cases were unanimously to the effect that where the claim is one
that should be presented to the board of supervisors for audit, no action will
lie against the county thereon. Taylor v. Mayor, etc., of New York, 82
N.Y. 10; Huff v. Knapp, 5 N.Y. 65; People ex. rel. Sutliff v. Supervisors, 74
Hun 251, 26 N.Y. Supp. 610; People ex. rel. Bevins v. Supervisors, 82 Hun
298, 31 N. Y. Supp. 248; Adams v. Supervisors of Oswego Co., 66 Barb. 368;
McClure v. Supervisors of Niagara Co., 50 Barb. 594; People v. Barnes, 114
N.Y. 317; People v. Supervisors, 2 Abb. (N.S.) 78; People v. Supervisors of
Delaware, 45 N.Y. 196.

A complaint, in an action against a county, which alleges that the plaintiff
presented its claim to the board of supervisors of the defendant, and that the
latter ‘‘did as plaintiff is informed and believes ... wholly disallow said
alaim,” states no cause of action, for the reason that the determination of the
board of supervisors is conclusive in the action. New York Catholic Protec-
tory v. Rockland County (1914), 212 N.Y. 311, distinguishing Kennedy v.
County of Queens, 47 App. Div. 250.
COUNTIES AS CORPORATIONS. 7b
County Law, § 6.
sors, No action shall be commenced upon such claim until the expira-

tion of three months after the service of such notice. [County Law,
§ 6, as added by L. 1917, ch. 578.]

 

Compromise and settlement of claims, People ex. rel. Benedict v. Super-
visors, 24 Hun 413. The board of supervisors having power to settle and
allow a claim, can, incidentally to such powers, waive the statute of limita-
tions. Woods v. Supervisors, 136 N.Y. 403. Board of supervisors may com-
promise and settle a judgment recovered by them as incidental to their power
to sue. Supervisors v. Bowen, 4 Lans. 24.

Borrow money, the power to is not inherent in a board of supervisors. Par-
ker v. Supervisors, 106 N.Y. 392.

\
8 COUNTIES; BOARDS OF SUPERVISORS.

Explanatory note.

CHAPTER II.

CRGANIZATION, MEETINGS AND PROCEEDINGS OF BOARDS OF
SUPERVISORS.

Board a Constitutional Body.

The county board of supervisors is created by the constitution. It
cannot therefore be abolished by act of the legislature. The legislature
may determine by law as to the election and terms of members of the
board and may confer powers upon it.

Board, how Constituted.

The board of supervisors is composed of the supervisors of the
several towns and wards of cities in the county. Each supervisor must
be elected, except where in the case of a vacancy the office may be filled
by appointment ; in towns by the town board and in cities as provided by
charter. Although elected by towns and cities, supervisors are for
some purposes deemed county officers.

Meetings of Board.

Each board is required to hold at least one meeting each year. It
may hold special meetings from time to time, on the call of the clerk,
when requested by a majority of its members. All meetings are to be
public. Meetings may be adjourned to specified times in the same
manner as meetings of other parliamentary bodies. A majority of all
the members of the board constitutes a quorum. This is a statutory
requirement and cannot be changed by a rule of the board. The
number required to constitute a quorum is not changed because of
vacancies in the board.

Organization of Board.

The board should organize at its annual meeting, althougk there is
nothing in the law which prevents the organization holding over for
the terms of the members of the board. The law requires the election
of a clerk, but says nothing about a chairman. The organization of the
board consists of the election of a chairman, a clerk, and the adoption
ORGANIZATION, MEETINGS AND PROCEEDINGS. 9

Explanatory note.

of necessary rules regulating the conduct of the business of the board.
The duties of the chairman should be prescribed by the rules. The
board may provide for the appointment and fix the compensation of
such officers and employes as may be necessary.

The rules usually determine the number and membership of stand-
ing committees. Special committees may be created as necessity re-
quires. It is usual to provide that committees shall be appointed by the
chairman.

Compensation and Mileage.

Supervisors are entitled to compensation at the rate of four dollars
for each calendar day’s attendance at the sessions of the board, except
in those counties where special acts have been passed fixing a different
rate. They may receive the same compensation for services on com-
mittees cr other business, performed at a time when the board is not
in session. Such services must be performed under some lawful
direction of the board. Voluntary services or unauthorized services
should not be paid for. Mileage at the rate of eight cents per mile for
once going and coming from each session will be paid. If the services
are special and performed while the board is not in session, at a distance
of five miles or more from his residence, the supervisor must be paid
his actual expenses,

Acts and Resolutions.

The law is specific as to the form of acts and resolutions of the
board. Each act or resolution should have a title expressing briefly
the contents thereof, followed by a reference to the statute giving au-
thority to pass such act or resolution. A failure to correctly specify the
statute will not nullify the act or resolution, but care should be taken
to conform with the requiremenets of the law. Each act or resolution,
vhich is legislative in its nature, should be published ‘“‘ within six weeks
after the close of the session.” See County Law, § 17, post. This does
not mean that every resolution must be certified and published; it does
not apply to ordinary proceedings of the board.

 

Section 1. Constitutional provisions respecting supervisors.
2. Boards of supervisors; meetings and organization.
8. Penalty for failure of supervisor to perform official duties.
10 COUNTIES; BOARDS OF SUPERVISORS.
Constitution, Art. 3, §§ 26, 27.

Section 4. Compensation of supervisors as members of the board of supervisors;
copying assessment-roll.
4a. Compensation of supervisors in certain counties.
4b. Compensation of supervisors and assessors in attending tax meetings.
5. Acts and resolutions of boards of supervisors; form and contents;
adoption; publication.
6. Publication of acts of board.
7. Proceedings of board of supervisors to be printed and distributed;
contents.
8. County records, boards of supervisors to have general charge of; copies
may be made for public use; cost of copies.
9. Witnesses and county and town officers may be examined by board;
books and papers may be inspected.
10. Powers of committee of board of supervisors as to hearings and
examinations.
11, Adjournment of hearing or examination by board or committee; dis-
charge of persons arrested for failure to appear.
12. Filing and enforcement of undertaking given under preceding section.
§ 1. CONSTITUTIONAL PROVISIONS RESPECTING SUPERVISORS.
Section 26 of article 3 of the Constitution provides that: “There shall
be in each county, except in a county wholly included in a city, a board
of supervisors, to be composed of such members and elected in such
manner and for such period as is or may be provided by law. In a city
-which includes an entire county, or two or more entire counties, the
powers and duties of a board of supervisors may be devolved upon the
municipal assembly, common council, board of aldermen or other legis-
lative body of the city.” 1
Section 27 of article 3 of the Constitution provides that: “The legis-
lature shall, by general laws, confer upon the boards of supervisors of the
several counties of the state such further powers of local legislation and
administration as the legislature may, from time to time, deem expedient.” 2

 

1. Special act relating to Nassau county. The provisions of sec. 5 of
L. 1898, ch. 588, that “the supervisors of the said towns of Oyster Bay, North
Hempstead and Hempstead, elected at the annual town meetings held in 1898,
shail constitute and are hereby declared to constitute the board of supervisors
of the said county of Nassau,” is not in contravention of the above section of the
constitution, in that it undertakes to appoint a board which the constitution
says must be elected. It merely prescribes what town supervisors shall con-
stitute the county board of supervisors, all of them being officers elected in their
respective towns to act, not only in town affairs, but as members of the board
of supervisors of the county to which the town belongs. Matter of Noble, 34 App.
Div. 55; 54 N. Y. Supp. 42.

See People ex rel. Cotte v. Gilbert (1919), 226 N. Y. 103, revg. 187 App. Div.
23, — N. Y. Supp. —, which holds that the construction of § 18 of this article
(26) must be made in connection with this section.

2. Powers conferred upon supervisors by legislature. The legislature may in its
discretion interpose any check or limitation upon the powers of supervisors which
it may deem reasonable, and where under their delegated powers a board of super-
visors adopts a resolution removing a county seat from one town to another a tax
payer’s action will not lie to restrain such removal. Stanton v. Board of Super-
visors, 48 Mise. 415, 96 N. Y. Supp. 840.

The board of supervisors of a county is vested with such powers of local legisla-
tion and administration as are conferred upon it by the legislature. Its power is
ro-extensive with the power expressly granted to it or which is necessarily or rea-
sonably implied from the powers so expressly conferred. Wadsworth v. Board of
Supervisors (1916), 217 N. Y. 484.
ORGANIZATION, MEETINGS AND PROCEEDINGS. 11
County Law, § 10.

§ 2. BOARDS OF SUPERVISORS; MEETINGS AND ORGANIZATION.
The supervisors of the cities and towns in each county, when lawfully
convened, shall be the board of supervisors of the county. They shall

 

An act authorizing boards of supervisors to make local laws for the protection
of shell fish is constitutional, Smith v. Levinus, 8 N. Y. 472; Hallock v. Dominy,
7 Hun, 52; as is an act authorizing a board of supervisors to fix the salary of
a county treasurer. Board of Supervisors of Seneca County v. Allen, 99 N. Y.
532; 2 N. BH. 459.

Limitation of powers. Supervisors derive their powers from the State
legislature, and the exercise of such powers must in all things be confined to
those which are conferred by law and enumerated in the statute conferring
them. Thus, a board of supervisors, cannot create the office of county attorney
for a prescribed term. Vincent v. County of Nassau, 45 Misc., 247, 92 N. Y.
Supp. 32. 3

The legislature may, by special act deprive a board of supervisors of the right
to build a court house. People ex rel. Commissioners v. Supervisors, 170 N. Y.
105, affid. 68 App. Div. 650.

Statutes, conferring powers of local legislation upon boards of supervisors,
do not authorize the supervisors of Cattaraugus County to alter the salary of
the surrogate of that county. Spring v. Wait, 22 Hun, 441.

Power to lay out highways. While the legislature is prohibited from passing
a local bill laying out, opening, etc., highways, it may confer such power on
boards of supervisors, Town of Kirkwood v. Newbury, 122 N. Y. 571, 576; 26
N. E. 10; People ex rel. Morrill v. Supervisors, 112 N. Y. 585; 20 N. EB. 549. Leg-
islature may authorize boards of supervisors to lay out highways. Matter of
Church, 92 N. Y. 1; see Roberts v. Supervisors of Kings, 3 App. Div. 366, affd.
158 N. Y. 673; Hubbard v. Saddler, 104 N. Y. 223. And build bridges. Town of
Kinderhook v. Newbury, 122 N. Y. 571, affg. 45 Hun, 323. And borrow money to
erect such bridges. Barker v. Town of Oswegatchie, 41 St. Rep. 821.

Certiorari will not lie to review acts of boards of supervisors under power
conferred by the legislature for such ‘acts are legislative in their character.
People ex rel. O’Connor v. Supervisors, 153 N. Y. 370; People ex rel. Trustees
v. Supervisors of Queens, 131 N. Y. 468; People ex rel. Morrill v. Supervisors of
Queens, 112 N. Y. 585, affg. 48 Hun, 324; People ex rel. Wakely v. McIntyre,
154 N. Y. 628. :

3. Office of supervisor is elective and legislature cannot appoint. Williams v.
Boynton, 147 N. Y. 426, affg. 71 Hun 309, 25 N. Y. Supp. 60. Provision of Con-
stitution, Article 3, § 18, prohibiting legislature from passing local bill pro-
viding for election of supervisors, does not apply to city supervisors. People
ex rel. Clancy v. Supervisors, 189 N. Y. 524.

Supervisors though elected by the towns are for some purposes deemed county
officers. Godfrey v. County of Queens, 89 Hun, 18, 34 N. Y. Supp. 1052.

Supervisors of new county.—It is proper for the legislature to provide that
the board of supervisors of a new county be composed of the duly elected
supervisors of the towns that make up such county; though the board is a
county organization, its members are chosen by the several towns respectively,
and individually they are classed as town officers. Matter of Noble, 34 App.
Div. 55, 54 N. Y. Supp. 42 (1898).

3. Power of board as to qualification of its members. When the question
which settles the right of the claimant to the office of supervisor of a town
12 COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 10.

meet annually, at such time and place as they may fix, and may hold special
meetings at the call of the clerk, on the written request of a majority of
the board, and whenever required by law.1 A majority of the board shall
constitute a quorum.s They may adjourn from time to time, and their
meetings shall be public. At the annual meeting they shall choose one
of their number chairman for the ensuing year. In the event of a vacancy
occurring in the office of chairman by reason of death or expiration of term
of a supervisor, they may at a special meeting of the board called for such
purpose, choose one of their number chairman to serve until the next
cnnual meeting. In a county in which the biennial town meet-

 

has been substantially passed upon in his favor by the Court of Appeals, and he
has received the certificate of election and has qualified, and has been awarded
by the court, as acting supervisor, the custody of the books in the possession
of his predecessor, the county board of supervisors has no power to determine
a contest as to his seat and exclude him therefrom, and its illegal action in
so doing will be set aside. People ex rel. Bradley v. Board of Supervisors,
69 Hun, 406; 23 N. Y. Supp. 654.

Where, after a supervisor had been declared elected and a certifice.te was
given to him, a right of mandamus was granted directing the board of can-
vassers to make a re-canvass and count certain paster ballots for h‘s opponent,
which was done, and the latter declared elected, it was held that the board
of supervisors had no authority to determine that the former was entitled to
his seat in the board. Williams v. Boynton, 71 Hun, 309; 25 N. Y. Supp. 60;
affd., 147 N. Y. 426, in which case the Court of Appeals held that the supervisor
who was seated by the board had no authority whatever to act as a member
thereof. He had no right to vote, and a resolution which required his vote for
its passage was never legally passed.

4. Meetings of board. The supervisors are required to meet annually, and
may hold special meetings from time to time; their neglect to perform a duty
required to be performed at the annual meeting, cannot nullify the statute;
they or their successors are bound to do what was required, and may be com-
pelled to do so by mandamus. People v. Supervisors of Chenango, 8 N. Y. 317,
330. Supervisors are required to meet annually, but they may hold special
meetings, and adjourn from time to time People v. Stocking, 50 Barb. 573.

Resolutions. The board acts for the county by resolution, as an organized
body, and the action of the individual supervisors, although unanimous, would
not bind the county. Hill v. Supervisors of livingston Co., 12 N. Y. 52, 63.

5. Quorum of board. Whenever three or more public officers are given
any power or authority, or three or more persons are charged with any public
duty to be performed or exercised by them jointly or as a board or similar
body, a majority of all such persons or officers at a meeting duly held at a
time fixed by law, or by any by-law duly adopted by such board or body,
cr at any duly adjourned meeting of such meeting, or at any meeting duly
held upon reasonable notice to all of them, may perform and exercise such
power, authority or duty, and if one or more of such persons or officers shall
have died or have become mentally incapable of acting, or shall refuse or
neglect to attend any such meeting, a majority of the whole number of such
persons or officers shall be a quorum of such board or body, and a majority
of the quorum, if not less than a majority of the whole number of such persons
or officers may perform and exercise any such power, authority or duty.
Any such meeting may be adjourned by a less number than a quorum. A recital
in apy order, resolution or other record of any proceeding of such a meeting
that such meeting had been so held or adjourned, or that it had been held
ORGANIZATION, MEETINGS AND PROCEEDINGS. 13

County Law, § 10.

ings are held at a time other than the general election they may choose
one of their number chairman at a special meeting of the board called
for such purpose. In the absence of the chairman at any meeting they
shall choose a temporary chairman to serve during such absence. They
shall appoint a clerk to serve during their pleasure, and until his suc-
cessor is appointed; and shall fix his compensation.° They may compel
the attendance of absent members at their meetings, make rules for the

 

upon such notice to the members, shall be presumptive evidence thereof.
General Construction Law, sec. 41.

All questions may be determined by a majority of those present. People
ex rel. Hawes v. Walker, 23 Barb. 304. The provision of the statute declaring
that a majority of the supervisors of any county shall constitute a quorum for
the transaction of business cannot be altered by a rule of the board. People
ex rel. Burrows v. Brinkerhoff, 68 N. Y. 259.

The number necessary to constitute a quorum remains the same even though
there be vacancies in the board. Erie R. Co. v. City of Buffalo, 180 N. Y. 192, 197.

6. Clerk of board. The powers and duties of the clerk of the board of super-
visors are prescribed by art. 3 of the County Law. See post, p. 94. it 1S CUr-
tomary for the clerk of the previous board of supervisors to call the board
to order for the purpose of organization, and to hold office until his successor
is elected.

7. The rules of board. By the above section a board of supervisors is
authorized to pass rules regulating the business of the board. When it adopts a
rule by which it intends to reserve the right to review and reconsider its action
at any time before final adjournment, a reconsideration of its action upon the
Sheriff’s claim, before issue of a certificate allowing it, is valid; and when, upon
such reconsideration, the board indicates the specific items which it has dis-
allowed or reduced, the error, if any, resulting from the fact that the previous
audit indicated no such items but only the whole amount at which the bill
was audited, is cured. People ex rel. Caldwell v. Supervisors, 45 App. Div. 42;
60 N. Y. Supp. 1122.

Appointment of committees. It is customary for boards of supervisors,
and bodies of like character, to divide their membership into committees, to
whom is given the special charge of the various matters brought before them
for examination, and to report to the full board. These committees are the
hands and eyes of the board itself. It would be utterly impossible for each and
every member to make a special examination for himself of all the matters
that are brought before the board, and of each item in bills presented to it.
It is not only the customary way, but it is a legal way of discharging their
duties. See People ex rel. Caldwell v. Supervisors, 45 App. Div. 42; 60 N. Y.
Supp. 1122.

Each board of supervisors should appoint its committees for the transaction
of its own business. A committee has no authority to act after the expiration
of the term of office of its members. Rept. of Atty.-Genl., Feb. 14, 1912. One
who continues to act as chairman of the board of supervisors after his suc-
cessor has qualified and entered upon the discharge of his duties is not entitled
to the per diem compensation provided to supervisors by statute for attend-
ance upon sessions of the board or for committee work. Rept. of Atty.-Genl.
(1911), Vol. 2, p. 693.

Rules and order of business. The rules as adopted in the several counties
vary somewhat in their form and in the language used. The following rules
are in force by adoption of the board of supervisors of the county of Chemung,
and will be found complete and effective:

1. The annual meeting of the board of supervisors shall be held on the
Monday after general election, at 10 a. m.

2. The clerk of the last board shall call the members to order, and they
by a majority of their number, shall select a chairman, who shall preside
at such meeting, and at all other meetings during the year. In case of the
ebsence of the chairman at any meeting, or in case of a speciel meeting of
euch bocrd before the annual meeting, the members present shall choose one
14 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 10.

conduct of their proceedings,” and impose and enforce penalties for the
violation thereof, not exceeding fifty dollars for each offense. [County
Law, § 10, as amended by L. 1910, ch. 279; L. 1911, ch. 250, and L.
1912, ch. 193; B.C. & G. Cons L., p. 701.]

 

of their members as a temporary chairman; and in all cases of the absence of a
quorum, the members present shall take such measures as shall be necessary to
procure the attendance of absent members.

The following standing committees shall be appointed by the chairman at the
commencement of each annual session.

First.— On Equalization.— Eleven members whose duty it shall be to report on
equalization of assessments.

Second.—On Poor House and Superintendent’s Report.— Five members who shall
consider all claims arising from the support of the poor house or the poor of the
county.

Third.— On County Officers’ Accounts.— Three members who shall consider and
examine the accounts of the county judge, surrogate and sheriff.

Fourth.—On County Clerk and District Attorney’s Accounts.— Three members
who shall consider and examine the accounts of the county clerk and district
attorney.

Fifth On County Treasurer and Coroners’ Accounts.— Three members who shall
consider and examine the accounts of the county treasurer and coroners. Also the
condition of the U. S. deposit fund and the accounts of the commissioners.

Sixth.— On Coroners’ Jury Script and Physicians’ Accounts.— Three members who
shall examine and consider the accounts of the psysicians’ and coroners’ jury script.

Seventh.— On County Claims.— Three members who shall examine and report on
all claims against the county, from any source, not properly brought before either
of the preceding committees.

Eighth On Town Accounts.— Three members who shall examine all town ac-
counts, and recommend the appropriations required for highway purposes, poor
accounts and town audits.

Ninth. On Justices’ and Constables’ Accounts.— Three members who shall
examine and report all claims of justices and constables against the county.

Tenth.— On Special Legislation and Erroneous Assessments.— Three members to
whom shall be referred all matters relating to erroneous assessments and taxation.

Eleventh.— On Miscellaneous Accounts.— Five members who shall consider and
recommend the appropriations required for the payment of the state tax, and other
town and county charges. They shall also make a report of the assessments of
corporations as found in the several assessment rolls.

Twelfth. Grand Jury.— Three members to whom shall be referred all matters
relating to grand jury. ;

Thirteenth.— On Military Affairs.— Three members to whom shall be referred all
claims against the county, arising under the military code of the State of New
York.

Fourteenth.—Assessment Rolls and Footings. Three members who shall verify
the footings of assessment rolls.

Fifteenth.—Supervisors’ Accounts.— Three members to whom shall be referred the
accounts of the supervisors.

Sixteenth.— On County Officer’s Bonds.— Three members to whom shall be referred
all matters pertaining to the bonds of county officers.
ORGANIZATION, MEETINGS AND PROCEEDINGS. 15
County Law, § 10-a. .

Quarterly meetings. The board of supervisors in any county may,
by resolution, determine to hold, in addition to the annual meeting,
four regular quarterly meetings on the second Monday of the months
of February, May, August and November, except that in the county of
Livingston such quarterly meetings may be held on the first Monday in
the months of January, April, July and October. If such resolution be
adopted the board of supervisors may transact at any such meeting all

 

3. Such special committees may be appointed as the board may consider neces-
sary, all of which shall be appointed by the chairman, and consist of three mem-
bers, unless otherwise specially ordered by the board.

4. Upon the members being called to order, the minutes of the preceding day shall
be read, to the end that any mistake shall be corrected, unless such reading shall
be waived by the board.

5. At each session the order of business shall be:

1. Reading of the minutes.

2. Presentation of petitions and communications.
3. Resolutions, motions and notices.

4. Report of select committees.

5. Report of standing committees.

6. Unfinished business.

7. Special order of the day.

6. The chairman shall preserve order and decorum, and shall decide all questions
of order, subject to an appeal by the board. He shall have the right to name any
member to perform the duties of the chair, but such substitution shall not extend
beyond the next adjournment.

7. The chairman shall, in all cases, have the right to vote, and when the vote is
equally divided, including his vote, the question shall be lost.

8. Every member, previous to his speaking, shall arise from his seat and address
himself to the chair.

9. When two or more members arise at once, the chairman shall name the mem-
ber. who is first to speak.

10. No member shall speak more than once on any question, or in any case, until
every member choosing to speak shall have spoken; nor more than twice without
the leave of the board. . :

11. A member called to order shall immediately sit down, unless permitted to
explain. If an appeal is taken from the decision of the chair, the board shall decide
the case without debate, and the question shall be stated by the chair to be: “ Shall
the decision of the chair stand as the judgment of the board?”

12. Persons not members of the board may, by consent, be permitted to speak
in regard to matters pending before the board.

13. Every person present when a vote is stated from the chair shall vote thereon,
unless excused by the board, or unless he is directly interested in the question, in
which case, if he choose, he shall be excused from voting.

14. No motion shall be stated, debated or put unless it is seconded. When a
motion is seconded it shall be stated by the chairman before debate, and any motion
shall be reduced to writing if the chairman or any member desire it.

15. After a motion is stated it shall be in possession of the board, but may be
withdrawn at any time before the decision or amendment. /

16. If the question in debate contains several distinct: propositions, any member
may have the same divided.
16 COUNTIES; BOARDS OF SUPERVISORS.

: County Law, § 11.

business that may come before it, including the audit of accounts and
charges against the county which have been presented to the board and
which shall have been acerued. Whenever a board of supervisors of
any county shall have audited any account, claim or demand against
the county at a meeting other than the annual meeting of the board, it
shall certify the aggregate of all sums so audited and allowed to the
county treasurer of the county. Any such board of supervisors may,
concurrently with such certification or any time thereafter, authorize
the county treasurer to borrow upon the faith and credit of the county
a sum of money sufficient to pay the aggregate amount of the accounts
so audited and allowed at any one or more of the meetings so held.
No such loan shall be negotiated for a longer period than twelve
months. [County Law, § 10-a, as added by L. 1917, ch. 119, and
amended by L. 1921, ch. 57.]

Regular meetings; Ontario county. The board of supervisors of the
county of Ontario may by resolution determine to hold in addition to the

 

17. When a question is under debate no motion shall be received unless on the
previous question, to postpone it indefinitely, to adjourn it to a certain day, to lay
it on the table, to commit it or to adjourn the board.

18. A motion for the previous question, to lay the question on the table, to com-
mit it until it is decided, shall preclude all amendments and debate of the main
question, and the motion to postpone a question indefinitely, to adjourn to a certain
day, until it is decided, precludes all amendments to the main question.

19. The previous question shall be as follows: ‘Shall the main question be
put?”

20. A motion to adjourn the board shall always be in order, and be decided without
debate.

21. The name of the member offering resolutions shall be entered on the minutes.

22. The ayes and nayes upon the question shall be taken and entered upon the
minutes, if required by any member.

23. Select committees, to whom references are made, shall, in all cases, report a
state of facts, with their opinion thereon, if required by the board.

24. No motion for reconsideration shall be in order, unless on the same day or
the day following that on which the decision proposed to be reconsidered took place,
nor unless one of the majority shall move such reconsideration. A motion to recon-
sider being put and lost, shall not be renewed, ncr shall any subject be a second
time reconsidered without unanimous consent.

25. No standing rule or order shall be rescinded, suspended or changed, or any
additional rule or order added thereto, unless by unanimous consent without one
day’s notice being given of the motion thereof, and no motion to that effect shall
be in order without such notice.

26. The board shall hold two regular sessions daily —the morning session and
the afternoon session—and all of the general business of the board shall be
transacted at these sessions when first convened, and all the members shall be
present unless excused. When the general business before the board of that session
shall be disposed of the chairman shall announce the board adjourned for committee
labor, and no further business shall thereafter be done until next session.
ORGANIZATION, MEETINGS AND PROCEEDINGS. 17

County Law, § 11

annual meeting such regular meetings not exceeding one in each month
as they may determine. If such resolution be adopted such board of
supervisors may transact at any such meeting all business that ‘may
come before it, including the audit of accounts and charges against the
county which have been presented to the board, and which shall have
then accrued, and whenever such board shall have audited any account,
claim or demand against the county at any such regular meeting, it may
direct payment thereof by order drawn by the clerk of said board upon
the county treasurer of the county, and may authorize the county
treasurer to borrow upon the faith and credit of the county a sum of
money sufficient to pay the aggregate amount of the accounts so
audited and allowed at any one or more of the meetings so held. No
such loan shall be negotiated for a longer period than twelve months.
[County Law, § 10-b, as added by L. 1918, ch. 389.]

§ 3. PENALTY FOR FAILURE OF SUPERVISOR TO PERFORM OF-
FICIAL DUTIES.

If any supervisor shall refuse or neglect to perform any of the duties
which are or shall be required of him by law, as a member of the board of
supervisors, he shall for every such offense forfeit the sum of two
hundred and fifty dollars to the county. For a refusal or neglect to
perform any other duty required of him by law, he shall for every such
offense forfeit a like sum to the town.* [County Law, § 11; B.C. &G.
Cons. L., p. 703. ]

 

27. Every motion or resolution before the board shall lie over until the next day,
if so demanded by any member, and any member necessarily absent may, at the
first session after he shall learn of the adoption of any motion or resolution, have
a right to move w reconsideration of the same,

28. At each annual session the chairman of the board shall, atin the close of the
said session appoint four members of the board who, together with himself as
chairman, shall constitute a committee on all buildings and grounds belonging to
the county. Said committee shall have charge and supervision of all the county
buildings for the ensuing year, with power to make repairs which may become
necessary during the adjournment of the board.

8. Penal provision. Section 1841 of the Penal Law provides that, “A public
officer, or person holding a public trust or employment, upon whom any duty
is enjoined by law, who wilfully neglects to perform the duty, is guilty of a
misdemeanor. This and the preceding section do not apply to cases of official
acts or omissions, the prevention of punishment of which is otherwise specially
provided for by statute.” The penalty imposed by the above section may, therefore,
be exclusive of any punishment for a misdemeanor under this section of the Penal
Law.

Liability for Neglect. The supervisor, by voting against allewing a claim which
18 COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 23.

§ 4. COMPENSATION OF SUPERVISORS AS MEMBERS OF THE BOARD OF
SUPERVISORS; COPYING ASSESSMENT-ROLL.

1. For services of supervisors, except in the counties of Albany,
Columbia, Eric, Montgomery, Oneida, Onondaga, Rensselaer and
Westchester and except in a county in which a different compen-
sation or mileage is prescribed by this section or other statute
each supervisor shall receive from the county compensation at the
rate of six dollars per day, for each calendar day’s actual attendance
at the sessions of their respective boards, and mileage at the
rate of eight cents per mile for once going and returning from
his residence to the place where the sessions of the board shall
be held, by the most usual route, for each regular and_ special
session. In the following counties each supervisor shall receive such
mileage, and compensation at the following rates, respectively, for each
calendar day’s actual attendance at the sessions of their respective
boards: in Essex county, eight dollars. [Subd. 1 amended by L. 1918,
ch. 285 and L. 1919, ch. 497.]

the statute imperatively requires the board to allow, subjects himself to the above
penalty; so any supervisor who shall neglect or refuse to perform any duties which
are or shall be required of him by law, as a member of the board, whatever may
have been the motive which influenced him, is liable to the penalty. Morris v.
People, 3 Denio 381. And where a board neglected to raise money for the erection
of public buildings, which money they were required by law to raise, the super-
visors were held liable, although previous boards had been guilty of the same
neglect. Caswell v. Allen, 7 Johns. 63.

Where a supervisor is charged by statute with an absolute and certain duty,
in the performance of which an individual has a special interest, he is liable to an
action if he refuses to perform it, and he is not relieved from the consequences
of his disobedience because it is prompted by an honest belief upon his part that
the statute is unconstitutional. Clark v. Miller, 54 N, Y. 528; Hoover v. Burkhoof,
44 N, Y. 113.

Removal from office for wilful misconduct or neglect of duty. See Matter of
Hoag, 145 App. Div. 889, 129 N. Y. Supp. 775.

9. Compensation of supervisors as town officers. See Town Law, sec. 85.

The constitution provides that the board of supervisors shall not grant any extra
compensation to any public officer, servant, agent or contractor. See Constitution,
art. 3, sec. 28.

A supervisor in Westchester county may be employed in one of the county
offices, where he is not appointed by the board of which he is a member, and where
the claims and pay-rolls of said office are not audited by said board, there being
a county comptroller, and the functions of the two positions are not rendered in-
herently inconsistent and repugnant because of the authority resting in the said
board to fix salaries and appigens funds for the payment thereof. State Comp-
troller’s Opinions (1917), 13 St. Dept. Rep. 483.

Compensation for services on committees. A custom of the board to allow its
members five dollars per diem for services of its members on committees cannot be
shown; nor can it be proved that the services were worth that much; the statute
is conclusive and does not allow supervisors to pay themselves out of the county
funds as upon a quantum meruit. Supervisors of Richmond v. Van Clief, 1 Hun 454.

Mileage. Supervisors are not entitled to mileage for each day’s actual attend-
ance at regular or special meetings, but only for once going and returning. Wal-
lace v. Jones, 122 App. Div. 497, 500, 107 N. Y. Supp. 288.

A supervisor is not entitled to charge for services or mileage while serving upon
a committee of the board of supervisors during the session of the board, because
the statute provides that unless the compensation is specially provided he is pro-

 
ORGANIZATION, MEETINGS AND PROCEEDINGS. 19
County Law, § 23.

9. In the county of Allegany each supervisor shall receive from the
county compensation at the rate of six dollars per day for each calen-
dar day’s actual attendance at the sessions of the board of supervisors
and mileage at the rate of eight cents per mile for once going and re-
turning every week during any regular or special session of such board
from his place of residence to the place where any such session of the
board is held. [Subd. 2 amended by L. 1920, ch. 299. ]

2-a. In the counties of Cattaraugus, Wyoming and Otsego each
supervisor shall receive from the county compensation at the rate of six
dollars per day for each calendar day’s actual attendance at the sessions
of the board of supervisors and mileage at the rate of eight cents per.
mile for once going and returning every week during any regular or
special session of such board from his place of residence to the place
where any such session of the board is held. [Subd. 2-a, added by L.+
1918, ch. 285.]

3. In the county of Franklin each supervisor shall receive the mile-
age above provided and a per diem compensation for attending sessions
of the board, and for committee work when the board is not in session,
to be fixed by the board of supervisors at not to exceed eight dollars per
day. [Subd. 3, added by L. 1917, ch. 527.]

3-a. In the county of St. Lawrence each supervisor shall receive from
the county the mileage above provided, an annual salary of three hun-
dred and fifty dollars, six dollars per day while actually engaged in any
investigation or other duty which may be lawfully committed to him by
the board except for services rendered while the board is in session, and,

 

hibited from receiving other compensation than his per diem allowance and mileage
for his attendance during the sessions of the board. -Board of Supervisors v. Ellis,
59 N. Y. 620; Van Sicklen v. Supervisors, 32 Hun 62.

Special acts relating to salaries of supervisors.

In Albany county, see L. 1871, ch. 887, as amended by L. 1875, ch. 497, and L.
1908, ch. 445; L. 1884, ch. 368, § 11, as amended by L. 1906, ch. 5.

In Columbia county, see L. 1889, ch. 488, as amended by L. 1909, ch. 89 and re-
pealed by L. 1920, ch. 298.

In Dutchess county, see L. 1898, ch. 134.

In Erie county, see L. 1876, ch. 231, as amended by L. 1879, ch. 195, L. 1888, ch.
364, L. 1892, ch, 485, L. 1893, ch. 620, L. 1895, ch, 174, L. 1898, ch. 487, L. 1907, ch.
407, and L. 1909, chs. 129, 543.

In Montgomery county, see L. 1900, ch, 194, as amended by L. 1906, ch. 76, and

_ L, 1920, ch, 2382.

In Oneida county, see L. 1920, ch. 362, as amended by L. 1922, ch. 578,
which superseded L. 1908, ch. 418.

In Onondaga county, see L. 1906, ch. 10, as amended by L. 1916, ch. 180.

In Oswego county, see L. 1897, ch. 290, as amended by L. 1915, ch. 92,
and L. 1920, ch. 383.

ve county, see L. 1857, ch. 331, § 1, as amended by L. 1875,
ch. :

oo county, see L. 1887, ch. 722, as amended by L. 1904,
ch. L
In Westchester county, see L. 1902, ch. 342,.as amended by L. 1905, ch.
42, and L. 1910, ch. 91, in effect superseding L. 1894, ch. 5638.
20 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 23.

if such investigation or duty require his attendance at a place away
from his residence, his actual expenses incurred therein. Such per
diem compensation and expense allowance shall be in lieu of the per
diem compensation and expense allowance provided for by subdivision
eight. [Subd. 3a, added by L. 1918, ch. 285.]

4. In the counties of Hamilton, Herkimer, Niagara, Saratoga, Schen-
ectady and Steuben each supervisor shall receive an annual salary, in
the county of Herkimer of four hundred and “fty dollars and the mile-
age hereinbefore prescribed, in the county of Hamilton of two hundred

and fifty dollars and his reasonable traveling expenses actually and
necessarily incurred in once going and returning from his residence

to the place where the sessions of the board shall be held, by the most
usual route, for each regular and special session, in the county of
Niagara of four hundred dollars, in the county of Saratoga of five hun-
dred dollars, in the county of Schenectady of five hundred dollars and
in the county of Steuben of one hundred and fifty dollars, in lieu of
any per diem compensation. [Subd. 4, amended by L. 1918, ch. 285,
L. 1920, chs. 10 and 304, and L. 1921, ch. 107.]

4-a. In the county of Greene, each supervisor shall receive as com-

‘pensation from the county an annual salary of two hundred dollars and
mileage at the rate of eight cents per mile for the miles actually traveled
going and returning once in each week during the annual session of the
board of supervisors by the most usually travcled route from his resi-
dence to the place where the session of the board shall be held, and
such compensation shall be in full for acting as supervisor while the
board is in session and also while acting when the board of canvassers
are in session and for any and all services rendered the county, except
that in addition thereto he shall receive from the county ten dollars for
each special session and mileage at the rate of eight cents per mile for
the miles actually traveled; and also while actually engaged in any in-
vestigation or other duty which may legally be committed to him at a
time when the board is not in session, his actual expenses and per
diem compensation at the rate of six dollars per day; if engaged in
such investigation or other duty at a time when the board is in session,
he shall receive his actual expenses only. Said salary, mileage, com-
pensation and expenses shall be audited and paid as other county
charges are audited and paid. Each supervisor shall also be allowed
for his services in making a copy of the assessment roll and extending
taxes at the rate provided in section twenty-three of the county law.
[Subd. 4-a, added by L. 1919, ch. 497.] 1B
ORGANIZATION; MEETINGS AND PROCEEDINGS. 90

County Law, § 23.

4-b. In the county of Rockland each supervisor shall receive from
the county for his services as a member of the board of county canvas-
sers and as supervisor, an annual salary of six hundred dollars, and in
addition thereto, shall also receive compensation at the rate of six dol-
lars per day when employed and actually rendering services on any
committee of said board, by its direction, when said board is not in ses-
sion, and if such service requires his attendance at a place other than
his residence, he may receive his actual and necessary expenses while
engaged in such service.

The compensation and expenses above provided shall be in lieu of
any compensation, mileage or expenses allowed to supervisors by any
other provision of this section, for services rendered to the county, ex-
cept the compensation hereinafter allowed for copying tax and assess-
ment rolls and extending taxes.* [County Law, subd. 4-b, added by
L. 1920, ch. 310.]

5. In the counties of Dutchess and Orange each supervisor shall re-
ceive an annual salary from the county of two hundred and fifty dol-

 

9a, Construction.—Under the statute a supervisor may receive compensation
from the county at the rate of four dollars per day for any duty lawfully
committed to him by the board, except for services rendered when the board
is in session. This provision cannot be construed to mean that payment is
to be made upon a graduated basis, four dollars for a full day’s work, and
a proportionate sum for less. It means that a supervisor acting in good faith
shall be paid for every day upon which service is rendered in the perform-
ance of delegated duties, and while the statute means that some substantial
services must be rendered, yet the determination of their value and amount
is within the jurisdiction of the board of supervisors which knew or had the
means of knowing the facts, except where the bills presented by the super-
visor himself disproves his claim as being too trivial or having no relation
to official business. The omission of the clerk to enter on the minutes a
resolution committing matters to a member of the board does not prevent
allowance to him for services rendered. There is nothing in the statute
permitting the supervisor of a town to receive payment for attending meet-
ings of the board of county canvassers and inspectors, for reporting, correct-
ing and recapitulating the assessment and tax rolls, and for preparing the
annual town statement, a separate statement to the board of supervisors, and
a list of incorporated companies; and an audit and allowance of such charges
by the board of supervisors of Rockland county exceeding the jurisdiction of
the auditors, and the payments made thereunder must be returned. Stetler
v. McFarlane (1921), 230 N.Y. 400, 130 N.E. 591, revg. 181 App. Div. 957,
168 N.Y. Supp. 1131.

Official action of the board of supervisors in committing duties to a member
is not defeated either by silence of the minutes or by absence of other for-
malities if action was in truth intended. Stetler v. McFarlane (1921), 230
N.Y. 400, 130 N.E. 591, revg. 181 App. Div. 957, 168 N.Y. Supp. 1131.

Substitution of annual salaries for the per diem compensation previously
90b COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 23.

lars and also mileage at the rate of ten cents per mile for going and re-
turning, once in each week during the annual or quarterly session of
the board of supervisors and when the board is sitting as a board of
county canvassers by the most usually traveled route, from his resi-
dence to the place where the sessions of the board shall be held; and in
addition thereto compensation at the rate of six dollars per day and
mileage as hereinabove provided for each special session of the board
which he attends, and for each day while actually engaged in any in-
vestigation committee work or other duty which shall be lawfully com-
mitted to him by said board, and his actual expenses while in the dis-
charge of his duties on said committee ; such compensation and mileage
to be paid by the county treasurer on the last day of the annual session
in each year. [Subd. 5, amended by L. 1920, ch. 303.]

5-a In the county of Fulton, each supervisor shall receive an annual
salary from the county of five hundred dollars and mileage at the rate
of ten cents per mile going and returning once in each week, during
any regular session of such board, and once in going and returning
from each special session, by the most usual route, from his residence
to the place where any such session of the board is held. While en-
gaged in any investigation or committee work or the performance of
any other duty, when the board is not in session, which is delegated or
assigned to him by the board, each supervisor in such county shall also
receive his actual and reasonable expenses incurred therein. The com-
pensation and expenses above provided shall be in lieu of any compen-
sation, mileage or expenses allowed to supervisors by any other pro-
vision of this section, for services rendered to the county, except the
compensation, hereinafter allowed, for copying tax and assessment

 

established made by L. 1910, chap. 279, was not in violation of article 3,
section 18, subd. 10 of the Constitution. Ibid.

Where an amendment to this section made provision for extra compensa-
tion to supervisors for committee work at the rate of four dollars per day, ex-
cept in certain enumerated counties, of which Rockland county was one, and
it was not until the statute of June, 1911 (L. 1911, ch. 555), that Rockland
county was omitted from the excepted class, the board of supervisors of
that county had no jurisdiction to allow to a supervisor charges for com-
mittee work done between May 13, 1910 and June 30, 1911. Where a
supervisor of Rockland county rendered bills for extra services after June
30, 1911, which are said to include services on days when the board of
supervisors was in session, though for such services on those days he was
limited to his annual salary, such bill cannot be allowed upon the ground
that the statute does not exclude payment for services rendered on a day
ORGANIZATION; MEETINGS AND PROCEEDINGS. 90¢
County Law, § 23.

rolls and extending taxes. [Subd. 5a, added by L. 1919, ch. 497, and
amended by L. 1920, ch. 395.]

6. In the county of Suffolk each supervisor shall receive an annual
salary of one thousand dollars for all services to the county for board

meetings and committee work, in lieu of any per diem compensation.
He shall be reimbursed by the county for actual expenses to and from

board and committee meetings.
7. In the county of Ulster each supervisor shall receive an annual

salary from the county of three hundred and fifty dollars, and also
mileage at the rate of eight cents per mile for going and returning once
in each week during the annual session of the board of supervisors,
and when the board is sitting as a board of county canvassers, and once
in going and returning to and from each special session by the most
usually traveled route from his residence to the place where the session
of the board shall be held, and in addition thereto he shall receive from
the county while actually engaged in any investigation or other duty
which may legally be committed to him his actual expenses, and such
salary, mileage and expenses shall be audited and paid as other county
charges; and such compensation shall be for any and all services which
such supervisor shall render to the county and in lieu of all per diem
compensation, except that each supervisor may be allowed for his ser-
vices in making a copy of the assessment-roll and extending taxes as
hereinafter provided.

7-a. In the county of Delaware, each supervisor shall receive an an-
nual salary from the county of three hundred dollars and also mileage
at the rate of eight cents per mile going and returning once in each
week during the annual session of the board of supervisors, and when
the board is sitting as a board of canvassers, and once in going and
returning to and from each special session by the most usually traveled
route from his residence to the place where the session of the board

 

when there was a session, if rendered at some other hour or hours. The
substitution, by the amendment of 1910, of a salary for the per diem fee,
as compensation for attendance at the session, does not justify an audit and
allowance for double compensation. If, however, the board, intending to
exclude payment for the days when the board was in session, made an honest
mistake in dates, its award though erroneous is not void, and hence is not
subject to collateral attack. But if it proceeded upon an erroneous con-
struction of the statute, and with knowledge of the facts gave compensa-
tion which should have been withheld, it went beyond its jurisdiction. There
is evidence in this case which permits the latter inference. Ibid.

A supervisor of Rockland county is not entitled to per diem compensation
fer services rendered in connection with county highways when he has
received from his town the compensation fixed by the town board under
90a COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 23.

shall be held, and in addition thereto, he shall receive from the county
while actually engaged in any investigation or other duty which may
be legally committed to him, his actual expenses, and such mileage and
expenses shall be audited and paid as other county charges, and such
compensation shall be for any and all services which such supervisors
shall render to the county and in lieu of all per diem compensation
except that each supervisor may be allowed for his services in making
a copy of the assessment-roll and extending taxes thereon as herein-
after provided. [Subd. 7a, added by L. 1919, ch. 497.]

7-b. In the county of Columbia, each supervisor shall receive an an-
nual salary from the county of four hundred dollars, which amount
shall be full compensation for all services rendered as such supervisor
as a member of the board of supervisors and also as a member of the
county board of canvassers of such county. Each supervisor shall also
receive mileage at the rate of eight cents per mile for once going and
returning from his residence to the place where the session of the board
shall be held, by the most usually traveled route, for each regular or
special session of the board. Hach supervisor shall also be entitled to
receive, in addition to his salary and mileage, reimbursement of the ex-
penses actually incurred by him while engaged in the performance of
duties assigned to him by the board of supervisors and performed at
times when the board is not in session. Each claim for such expense
shall contain the date when each item of expense was incurred, and the
nature thereof, and shall be accompanied by an affidavit of the claim-
ant to the effect that the disbursements charged therein have been ac-
tually incurred and that no part of the claim has been paid or satisfied.
[Subd. 7-b, as added by L. 1920, ch. 298. ]

8. Each supervisor, except in the counties of Albany, Columbia, Erie,
Montgomery, Oneida, Onondaga, Rensselaer and Westchester, and in a
‘county in which a different compensation, mileage or expense pro-

 

and in conformity with the statute which provides that the supervisors
“shall receive annually, as compensation for services under this chapter in
lieu of all other compensation, an amount to be fixed by the town board.”
Ibid.

When allowance set aside.—Where an allowance by a board of super-
visors for extending liens upon the tax rolls and for incidental computation ‘
appears to be void for want of jurisdiction rather than merely an erroneous
- audit, the allowance must be set aside. Ibid.

When restitution will not be ordered.— Where some of the bills presented
by a supervisor for audit and allowance are criticised as inadequately item-
ized, others are imperfectly verified or based upon an error in dates, such
defects are insufficient of themselves to make out a case for restitution of
the payments made under the allowance of such bills. Ibid.
ORGANIZATION; MEETINGS AND PROCEEDINGS. 20e
County Law, § 23.

‘
vision is prescribed by law, may also receive compensation from the
county at the rate of six dollars per day while actually engaged in any
investigation or other duty which may be lawfully committed to him
by the board, except for services rendered when the board is in session
and, if such investigation or duty require his attendance at a place
away from his residence, and five miles or more distant from the place
where the board shall hold its sessions, his actual expenses incurred
therein. In the following counties each supervisor shall receive such
expenses and compensation at the following rates per day, respectively,

while engaged in such investigation or duty: In Franklin county, a
compensation to be fixed by the board of supervisors, not exceeding

eight dollars per day and in Herkimer county, six dollars per day.
[Subd. amended by L. 1918, chs. 49, 285, and L. 1919, ch. 497.]

9. Each supervisor in the counties of Dutchess, Orange and Allegany
shall also be entitled to receive in addition to the compensation herein-
above provided, to be paid in the same time and manner, compensation
at the rate of four dollars per day while actually engaged in any in-
vestigation or other duty which may be lawfully committed to him by
the board of supervisors of his county, together with his actual ex-
penses incurred therein.

10. No other compensation or allowance shall be made to any super-
visor for his services, except such as shall be by law a town charge, ex-
cept that in the counties of Niagara, Hamilton, Herkimer, Saint Law-

rence, Schenectady and Saratoga each supervisor, while heretofore or
hereafter actually engaged in any investigation, or in the performance

of any other duty, which shall have been legally delegated to him by
the board of supervisors, except when the board is in session, shall be
entitled to receive in addition to the compensation hereinbefore pro-

vided, his actual expenses incurred therein.
11. The board of supervisors of any county, except Saratoga and Suf-

folk counties, may also allow. to each member of the board for his ser-
vices in making a copy of the assessment roll, three cents for each writ-
ten line for the first one hundred lines, two cents per line for the sec-
ond hundred written lines, and one cent per line for all written lines
in excess of two hundred, and one cent for each tax actually extended
by him on the tax-roll, and, if there be more than one item of tax on a
line of the tax-roll, one cent for computing and extending the totai
of such items.
90 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 23a.

12. The board of supervisors of any county may also allow to each
member of the board for his services in making a copy of the tax-roll
for delivery to the collector compensation at the rate of one-half the
compensation authorized for making a copy of the assessment and tax-
rolls.?°

13. In the county of Suffolk the extension and copying of the tax-
rolls shall be performed by clerks and be a town charge.

14. In the counties of Livingston and Yates each supervisor shall.
receive from the county compensation at the rate of five dollars per
day, and in the county of Ontario six dollars per day, for each callen-
dar day’s actual attendance at the sessions of the board of supervisors,
and mileage at the rate of eight cents per mile for once going and re-
turning every week during any regular or special session of such board,
from his place of residence to the place where any such session of the
board is held, by the most usual route. [Subd. 14, added by L. 1918,
ch. 307, and amended by lL. 1919, ch. 182, and L. 1921, ch. 129.]
[County Law, § 23, as amended by L. 1910, ch. 279, L. 1911, ch. 554,

L. 1912, ch. 34, L. 1913, chs. 254, 355, L. 1914, ch. 357, L. 1915, ch.
332, L. 1916, ch. 426, L. 1917, ch. 527, L. 1918, chs. 49, 285, 307, L. 1919,
chs. 182, 497, and L. 1921, chs. 130, 263, 366; B. C. & G. Cons. L., 2nd
ed., p. 1428.]

§ ta. COMPENSATION OF SUPERVISORS IN CERTAIN COUNTIES.

In any county of the state having not more than four towns each
supervisor, including any now in office or hereafter elected, shall reccive
from the county for all services in any official capacity, except services

 

10. Extending assessment rolls. The process of ascertaining the amount
of the tax by multiplying the assessed value by the rate and setting it down
in the column as provided by section 58 of the Tax Law, is the extending of
the line. Where a supervisor extends special taxes on the same line with
the general tax, each extension of a special tax constitutes a new line for the
purpose of ascertaining his compensation. Pearsall v. Brower, 120 App. Div.
584, 105 N. Y. Supp. 207.

A line on an asessment-roll is one straight row of words and figures be-
tween the margins of the page, necessarily and properly a part of the roll.
Smith v. Hedges (1918), 223 N. Y. 176, 119 N. EB. 396.

A taxpayers’ action to recover, on behalf of a county, money allowed by its
board of supervisors under this section to a supervisor for copying written
lines of the assessment roll of his town, and extending certain lines of
the tax rolls, based on the claim that defendant was allowed and paid for
more lines than he had in fact copied and extended, is maintainable, and the
audit of the board of supervisors is not conclusive. Smith v. Hedges (1914),
87 Misc. 439, 150 N. Y. Supp. §99, affd. 169 App. Div. 115; revd. on other
grounds (1918), 223 N. Y. 176.
ORGANIZATION, MEETINGS AND PROCEEDINGS. 21

County Law, §§ 24la, 17.

exclusively for the town in which he is elected or a district or subdivi-
sion thereof, an annual salary of three thousand dollars, and his actual
and necessary expenses while performing services for the county, in lieu
of all per diem or other compensation, fees, allowances, percentages and
mileage. Any such supervisor shall receive from the town in which he
shall have been elected, for all services performed for the town or any
district or subdivision thereof, an annual salary of two thousand dollars,
and his actual and necessary expenses while performing services for the
town, in lieu of all other per diem or other compensation, fees, allow-
ances, percentages and mileage. In any such county, the foregoing pro-
visions shall be controlling, notwithstanding section twenty-three or any
other provision of this chapter or any provision of the town law or any
other statute. Percentages and fees payable by law to such supervisor
on account of duties relating to the affairs of the county shall belong to
the county. Percentages and fees payable by law to such supervisor
on account of duties relating to the affairs of the town or of any district
or subdivision thereof shall belong:to the town. [County Law, § 23a,
as added by L. 1917, ch. 586.]

§ 4b. COMPENSATION OF SUPERVISORS AND ASSESSORS IN AT-
TENDING TAX MEETINGS.

Supervisors, in addition to the compensation provided by section
twenty-three of this chapter, and town assessors, shall be entitled to
receive compensation at the rate of four dollars per day for each calendar
day actually and necessarily spent in attending a meeting within the
county held for the purpose of conference with the state board of tax-
commissioners or a member of such board, and mileage at the rate of
eight cents per mile by the most direct route from his residence, in going
and returning from the place within the county where such meeting is
held. Such compensation and mileage shall be a county charge.
[County Law, § 241a, as added by L. 1911, ch. 51.]

§ 5. ACTS AND RESOLUTIONS OF HOARDS OF SUPERVISORS;
FORM AND CCNTENTS; ADOPTION; PUBLICATION.

Every act or resolution of the board shall require for ita passage the
assent of a majority of the supervisors elected, unless otherwise required
by law.* Every act or resolution of such board in the exercise of its

 

11. As to power of majority. See Note, ante p. 12.

In a county in which there were eighteen supervisors the board, by a vote of
those present at a meeting, passed a resolution for the removal of the county seat,
ten voting in favor of the resolution and eight against it. One of the ten had
no authority to act as supervisor, not even de facto; it was held that there was
not a majority of those elected voting in favor of the resolution and that it wae
not carried, and further, that the purpose of such resolution ec~ld not be effected
notwithstanding an attempted ratification by the legislature. Williams v. Boyntun.
71 Hun 309; 25 N. Y. Supp. 60.
91a COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 17.

legislative powers shall have a title prefixed, concisely expressing its
contents, followed by a reference to the law or laws conferring the
authority to pass the act or resolution, the number of votes, both for
and against its passage, and when the assent of any supervisor is re-
quired that such assent was given ; *’ and all acts or resolutions so passed
shall be numbered in the order of their passage and certified by the
chairman and clerk, and within six weeks after the close of each session,
such resolution shall be published in the newspapers in the county

 

12. For form of resolutions adopted by boards of supervisors, see Forms, Nos.
1 and 2, post.

Resolution authorizing the issue of county and town bonds, see County Law,
sec. 14, post. Form of resolution to acquire bridge pursuant to statute, see
Matter of Saratoga Lake Bridge Co. v. Walbridge, 140 App. Div. 817, 124 N. Y.
Supp. 468.

Resolution changing location of county buildings in corformity with the
vote of the electors of the county is not within the meaning of this section.
This section applies only to resolutions which become final and complete solely
by the action of the board. Stanton v. Supervisors of Essex County, 112 App.
Div. 877, 98 N. Y. Supp. 159 (1906).

Validity of resolution. A board of supervisors has no power except such
as is vested in it by legislative enactment. Whenever power is so vested in a
board and the legislature prescribes the manner in which such power shall be
exercised, every substantial requirement. or condition in regard to such exercise,
beneficial to any citizen, must be observed and carefully complied with, or
the action of the board cannot be sustained. Barker v. Town of Oswegatchie,
10 N. Y. Supp. 834. If the board of supervisors has full power to do an act,
its performance of such act is not rendered illegal by a mistake in a recital in
its resolution as to the source of its power even if the alleged source of its power
to do such an act is a repealed statute. Matter of Rockaway Park Improvement
Co., 83 Hun 263; 31 N. Y. Supp. 386. The resolution in question in this case
was for the purpose of creating a fire district outside of an incorporated village
under sec. 38 of the County Law, post, p. 74. The resolution referred to an act
authorizing the board to create such a district which was repealed by the County
Law and its provisions re-enacted with modification in such sec. 38 of the County
Law. As to effect of failure to elect a commissioner of elections by a majority
vote, see People ex rel. Woods v. Flynn, 81 Misc. 279.

If the board of supervisors has no seal, the lack of a seal which the statute
ORGANIZATION, MEETINGS AND PROCEEDINGS. 21b

County Law, §§ 18, 19.

appointed to publish the session laws of the legislature." [County
Law, § 17, B. C. & G. Cons. L., p. 720.]

§ 6. PUBLICATION OF ACTS OF BOARD.

All acts passed by the boards of supervisors of the several counties of
this state, shall be published in two newspapers representing respectively
the two principal political parties into which the people of the counties
are divided, after such manner, and at such compensation as the several
boards of supervisors may provide, the same to be a county charge,
payable in the manner provided in section forty-eight of the legislative
law for the publication of local laws enacted by the legislature, provided
that the rate of compensation shall not be less than the rate fixed by said
section for the publication of laws of a local nature, enacted by the legis-
lature. [County Law, § 18; B. C. & G. Cons. L., p. 721.]

§ 7% PROCEEDINGS OF BOARD OF SUPERVISORS TO BE PRINTED
AND DISTRIBUTED; CONTENTS.

Each board of supervisors shall cause as many copies of the proceed-
ings of its sessions as it may deem necessary, certified by its chairman
and clerk, to be printed as a county charge, in a pamphlet volume, as
soon as may be after each session, for exchange with other boards, for
the members of the board and other town and county officers and for
public distribution. At least three copies of such printed volume shall
be forwarded to and filed in each town clerk’s office and in the county
clerk’s office. In counties containing cities of the first class, and in

 

may direct to be affixed to the certificate to the resolution, does not impair its
validity. People ex rel. Masterson v. Gallup, 12 Abb. N. C. 64; 65 How. Pr. 108;
affd., 96 N. Y. 628.

Even though a resolution to acquire a bridge pursuant to a special act should
have complied with this section, requiring a title and enacting clause and a
publication, the county, after having become seized of the bridge property, must
pay the purchase price. Matter of Saratoga Lake Bridge Co. v. Walbridge, 140
App. Div. 817, 126 N. Y. Supp. 468.

13. Publication of resolutions.— The provision of this section, which directs
all acts as resolutions passed by the board of supervisors to be published, has
A1e COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 19.

counties containing three cities of the third class, the publication of the
proceedings of the board of supervisors may be ordered to be made in a
daily newspaper, the work to be done by contract, let to the lowest bidder,
after an opportunity to bid therefor has been given to the proprietors of
all the daily newspapers printed in the English language in said county ;
such bid may include the printing and binding in pamphlet volumes of
such number of copies of the proceedings of such board as may be re-
quired, and also the printing of pamphlet copies thereof for the use of the
members of said board at its sessions. Such printed proceedings shall
contain a summary statement of all bills against the county, presented to
the board and audited and allowed or disallowed, indicating the amount
allowed or disallowed. The board of supervisors may as often as it
shall deem necessary, cause to be printed and distributed in like manner,
in the same volume or otherwise, its county laws, combined with suit-
able forms and instructions thereunder, and reports of committees and

county officers filed with it.**

 

no reference to the ordinary proceedings of the board, but only to such as are
legislative in their character, and within the scope and authority of section 27 of
article 3 of the State Constitution. Kingsley v. Bowman, 33 App. Div. 1, 53
MN. Y. Supp. 426. The words, “such resolution shall be,” in the last sentence
were added by the consolidation of 1909.

Resolution as evidence. Section 941 of the Code of Civil Procedure pro-
vides that: “An act, ordinance, resolution, by-law, rule or proceeding of the
common council of a city, or the board of trustees of an incorporated village,
or of a local board of health of a city, town or incorporated village, or of a
board of supervisors, within the state, may be read in evidence, either from a
copy thereof, certified by the city clerk, village clerk, clerk of the common council,
clerk or secretary of the iocal board of health, or a clerk of the board of super-
visors; or from a volume printed by authority*of the common council of the city,
or the board of trustees of the village, or the local board of health of the city,
town or village, or the board of supervisors.”

14. Daily publications not authorized prior to amendment of former law by
act of 1899, Kingsley v. Bowman, 33 App. Div. 1, 53 N. Y. Supp. 426.
ORGANIZATION, MEETINGS AND PROCEEDINGS. 21d

County Law, § 26.

Whenever the proceedings of the board of supervisors of any county
are printed in a volume by authority of the board of supervisors, the
volume so printed, and duly certified by the chairman and clerk of the
said board of supervisors to be a true record of such proceedings, shall
be and constitute the book of records of the said board. [County Law,
§ 19, as amended by L. 1913, ch. 256, and L. 1916, ch. 606; B. C. & G.
Cons. L., p. 721.]

§ 8. COUNTY RECORDS, BOARDS OF SUPERVISORS TO HAVE GEN-
ERAL CHARGE OF; COPIES MAY BE MADE FOR PUBLIC
USE; COST OF COPIES.

Such boards shall have the general charge of the books and records of
the county, subject to the legal rights of the officers using or having cus-

5

tody of the same, and shall provide for their safe-keeping.* They may
authorize county officers having the official custody or control of any such

books and records, or of maps and papers, to cause copies thereof to be

 

Use of union label.— The requirement by a board of supervisors advertising
for bids for the printing of its journal that a union label be used by the printer
is unlawful and against public policy as tending to create a monopoly by restrict-
ing competition to a special class of printers. People ex rel. Single Paper Co.
Co. Limited v. Edgecomb, 112 App. Div. 604, 98 N. Y. Supp. 965.

15. Manual custody unnecessary.— The officer charged with the care of
books and records need not have manual custody of the same, and the court will
take judicial notice that he acts through subordinates. People ex rel. McGinnis v.
Palmer, 6 App. Div. 19, 389 N. Y. Supp. 631.

Indexing county records; compensation.— The board of supervisors has no authority
in the absence of a special statute authorizing them to do so, to authorize the
sounty clerk to make new indexes of the county records for additional compensation,
or to compromise a claim for payment under a contract to make such indxes.
Wadsworth v. Board of Supervisors, 217 N. Y. 484, rev’g 139 App. Div. 832, 124 N.

Y. Supp. 334.
22 COUNTIES; BOARDS OF SUPERVISORS.
County Law, §§ 27, 28.

made and certified for the public use; and it shall be their duty to cause
the same to be made and certified whenever by reason of age or exposure,
or any casualty, the same shall be necessary. Any officers making such
transcripts or copies shall be paid such sum therefor as may be just; but
such payment shall not exceed a sum to be ceftified by thé county judge,
or a justice of the supreme court of the judicial district, as reasonable
therefor. Such board of supervisors shall not accept and pay for any
such services, until the work shall be examined and approved as to its
manner and form of execution, by such judge or justice; nor shall any
board of supervisors order any such work to be done until such judge or
justice, after an examination, shall certify that such work is necessary
for the security and safety of the public records.1® [County Law, § 26;
B. C. & G. Cons. L., p. 727.]

§ 9. WITNESSES AND COUNTY OFFICERS MAY BE EXAMINED BY
BOARD; BOOKS AND PAPERS MAY BE INSPECTED.

Any such board may require the attendance of witnesses and may
examine any person as a witness upon any subject or matter within its
jurisdiction, or examine any officer of the county, or a town therein, in
relation to the discharge of his official duties, or to the receipt or disburse-
ment by him of any moneys, or concerning the possession or disposition
by him of any property belonging to the county, or to use, inspect or
examine, any book, account, voucher or document in his possession or
under his control relating to the affairs or interest of such county or
town.*® [County Law, § 27; B. C. & G. Cons. L., p. 728.]

 

16. Subpoena and examination of witnesses. For form of subpoena, see
Form No. 3, post. By the above section and section 28 of the County Law
immediately following power is conferred upon the board of supervisors or
a committee thereof to require the attendance of witnesses upon sub-
jects within the jurisdiction of the board and to send for persons and papers.
In the case of Matter of Superintendent of the Poor, 6 App. Div. 144; 39 N.
Y. Supp. 878, it was held that neither the Supreme Court nor a judge of that
court can punish as for a contempt a disobedience of the command of the
subpoena. The court said: ‘A person who fails to obey a subpoena is
made liable for the damages sustained by the party aggrieved, and $50 in
addition thereto, which may be recovered by action. (Code Civ. Proc.,
secs. 853, 855, now Civ. Prac. Act, §§ 405, 406, subd. 3.) By section
855 of the code (now Civ. Prac. Act, § 406, subd. 2), it is provided that in
case a person is duly subpoenaed by a board or committee, and fails to attend
in obedience thereto, any judge of the court, upon proof by affidavit of the
failure to attend, must issue a warrant to the sheriff commanding him to
apprehend the defaulting witness and bring him before the body before whom
his attendance was required, and by section 856, if the person subpoenaed
by such a body refuses, without reasonable cause, to be examined or to answer
any legal or pertinent question or to produce a paper or book he may be
committed to jail by a judge upon proof of such facts, there to remain until
he cubmits to do the act which he was required to do, or is discharged accord-
ing to law. But no provision of the code authorizes the punishment of such
ORGANIZATION, MEETINGS AND PROCEEDINGS. 23
County Law, §§ 28-30.

§ 10. POWERS OF COMMITTEE OF BOARD OF SUPERVISORS AS
TO HEARINGS AND EXAMINATIONS.

When any such board shall have appointed any member or members
thereof, a committee upon any subject or matter of which the board has
jurisdiction, and shall have conferred upon such committee power to
send for persons and papers, the chairman of such committee shall possess
all the powers herein given to, and imposed upon the chairman of the
board of supervisors.

The chairman of any committee appointed by a board of supervisors is
authorized to administer an oath to any person presenting an account
or claim before such committee to be audited, as to services rendered
and the correctness of such claim. [County Law, § 28; B..C. & G. Cons.
L., p. 728.]

§ 11. ADJOURNMENT OF HEARING OR EXAMINATION BY BOARD
OR COMMITTEE; DISCHARGE OF PERSONS ARRESTED
FOR FAILURE TO APPEAR.

Such board or committee may adjourn from time to time, and such
committee may hold meetings in pursuance of such adjournments, or on
call of the’ chairman thereof, during the recess, or after the final ad-
journment of the board of supervisors; but where a warrant shall have
been issued as provided by section eight hundred and fifty-five of the
code of civil procedure and not returned such adjournment of the board
or committee at whose instance it was issued, shall be to a time and place
certain, of which notice shall be given by the chairman, to the judge
before whom the warrant shall be returnable; and if the person against
whom it was issued shall be arrested, he may, in the discretion: of the
judge who issued the warrant, be discharged from custody, upon entering
into an undertaking to the county, with two sureties to be approved by
such judge, to the effect that he will appear and submit to an examina-
tion before such board or committee, as required, at the time and place
to which it shall have been adjourned, or pay to the county treasurer such
sum of money as such judge may direct. [County Law, § 29; B. C. & G.
Cons. L., p. 728.]

§ 12. FILING AND ENFORCEMENT OF UNDERTAKING GIVEN
UNDER PRECEDING SECTION.

Such undertaking shall be filed in the clerk’s office of the county, and
if default shall be made in the condition thereof, the district attorney
of the county may sue and collect the sum therein mentioned, and the
money when received, and all moneys received for fines and penalties
before such board or committees, shall be paid into the treasury of the
county. [County Law, § 30; B. C. & G. Cons. L., p. 729.]

 

a witness for a contempt. These provisions of the code establish the present
practice, whereby a person may be compelled to attend before an inferior
legislative body and give his testimony upon matters within its jurisdiction.”
24 COUNTIES; BOARDS OF SUPERVISORS.

Explanatory note.

CHAPTER III.

AUDIT BY BOARD OF SUPERVISORS ; COUNTY CHARGES.

EXPLANATORY NOTE.
Audit by Board.

One of the most important functions of the board of supervisors is the
audit of claims against the county. ‘ Audit” means to hear and
examine; it includes both the allowance and rejection of a claim. In
auditing a claim the board exercises a judicial diseretion. In making
an audit the board must ascertain if the claim is properly chargeable
against the county, settle the amount of the claim, and allow it as thus
settled. Ifa claim is not a county charge the board has no power to
pay it. The audit of a claim not properly chargeable against the
county, is null and void, and its payment may not be compelled.

In auditing a claim the board may, either itself, or by a committee
of its members, take evidence, examine witnesses and books and papers.
The board should act fairly and should allow the claim if there is
sufficient evidence to justify it. If the claim is based upon a statute
which fixes the amount, the board has no discretion. If no price is
so fixed, or such price is not based upon a contract, the board may
exercise its discretion as to the amount to be paid.

The final audit must be made by the full board, although the ex-
amination of accounts may be referred to a committee.

Where possible all accounts must be itemized. In such eases the
various items must be either allowed or disallowed. The courts have
held that a person who presents a bill for audit consisting of several
items is entitled to the judgment of the board on each item. (838
App. Div. 51, 82 N. Y. Supp. 504). It will not do for the board to
merely cut down the gross amount of an itemized claim, without
determining the particular items disallowed or reduced.

The rule is that the acts of a board of supervisors in auditing bills
which are proper county charges, in the absence of fraud and collusion,
are final and conclusive. There may be no review by the courts, if
the board acts within its jurisdiction and in good faith.

Where an account has been rejected by one board it cannot be
allowed by a subsequent board. Where a claim has been reduced and
AUDIT BY BOARD; COUNTY CHARGES. 95

Explanatory note.

then allowed by one board, a subsequent board has no power to audit
the claim anew at the full amount. The acts of one board pertaining
to the allowance, reduction or rejection of claims presented to it are
binding upon all subsequent boards.

Forms of Accounts.

Accounts must be made out in items and verified by the claimant.
The statute requires this; without compliance with the statute the
account may not be audited. Form No. 4 gives the proper form
of an itemized and verified account against a county. If the account
is not in proper form it should be returned by the clerk to the claimant.

Each account should be numbered by the clerk at the time and in
the order of its presentation. A memorandum, showing time of pres-
entation, name of claimant, and if assigned, the name of assignor and
assignee, should be entered in the proceedings of the board.

The clerk must designate upon each account audited, the amount
allowed, the item or amount disallowed, and deliver to any person on
demand a certified copy of any account filed in his office.

The board may by rule make additional regulations as to the keep-
ing and rendering of accounts of county and town officers, and the
presentation and audit of bills presented to the board.

County Charges.

The statutes prescribe the claims which are chargeable against a
county. The county cannot be made liable for any claim unless the
act upon which the claim was based was authorized by express pro-
vision of statute.

Any expense necessarily incurred by the board in protecting the
interests of the county, may be chargeable to the county; but the
act of the board must be based upon statutory authority.

Services rendered by an officer which are beneficial to the county
may be paid for, even if no provision be made by statute for such pay-
ment; but probably not, if such services were gratuitous and without
authority of law. If a county is required to provide property for the
use of its officers, the expense attached to the furnishing and main-
tenance of such property is a proper county charge.

The moneys necessary to pay county charges are to be raised by
tax levied by the board upon the taxable property in the several towns
26 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 12, subd. 2.

and cities in the county. Taxes are levied as provided in § 58 of the
Tax Law. See chapter XX XI,‘ Duties of supervisors as to taxation.”
Where necessary the board may authorize the borrowing of money to
meet the payment of county charges. See County Law, § 12, subd.
6, post, p. 55.

 

Section 1. Power of board of supervisors to audit accounts and charges against

the county.

2. Accounts to be itemized; verification; may be disallowed in part;
accounts to be numbered.

8. Board may make additional requirements as to accounts.

4. Penal provisions respecting the unlawful audit and presentation
of accounts against municipalities.

5. County charges.

6. County charges. how raised.

§ 1. POWER OF BOARD OF SUPERVISORS TO AUDIT ACCOUNTS
AND CHARGES AGAINST THE COUNTY.

The board of supervisors shall “ Audit all accounts and charges against
the county, and direct annually the raising of sums necessary to defray
them in full.” + [County Law, § 12, sub. 2; B. C. & G. Cons. L., p. 704.]

 

1. Audit defined. The term “ audit ’’ means to hear and examine; it includes
both the adjustment or allowance, and the disallowance or rejection of an
account. People ex rel. Myers v. Barnes, 114 N. Y. 317; 20 N. E. 609; Morris
v. People, 3 Den. 381,:391; Matter of Murphy, 24 Hun, 592, affd., 86 N. Y. 627;
People ex rel. Read v. Town Auditors, 85 Hun, 114, 32 N. Y. Supp. 688. The
verb “ audit” as here used, means simply to examine, to adjust, and it clearly
implies the exercise of judicial discretion. People ex rel. Hamilton v. Super-
visors, 35 App. Div. 289, 54 N. Y. Supp. 782.

The term includes both the allowance and rejection of a claim, and also
the allowance of a claim in part and its rejection in part. People ex rel.
Andrus v. Supervisors, 106 App. Div. 381, 94 N. Y. Supp. 1012.

What constitutes an audit. The duty of a board of supervisors in auditing
and allowing accounts is: (1) To examine and determine whether an account
is properly verified; (2) to see if it is properly chargeable against the county;
(3) to settle or fix its amount; (4) to allow it as thus settled; (5) lo provide
means for its payment. People ex rel. Sherman v. Supervisors, 30 How. Pr. 173.

Jurisdiction of board. Boards of supervisors, in auditing and allowing
accounts, are limited to the powers conferred upon them by statute. People
ex rel. Merritt v. Lawrence, 6. Hill, 244; Chemung Canal Bank v. Supervisors,
5 Denio, 517. And when they transgress these limitations, their acts are void.
If, for example, a board should audit a claim which was plainly not a county
charge, its determination would be void for the reason that county charges
only are within its jurisdiction. Osterhoudt v. Rigney, 98 N. Y. 222, 233. As
was said in the case of Board of Supervisors v. Ellis, 59 N. Y. 620, 624: “A
board of supervisors has no power to audit and allow accounts not legally
AUDIT BY BOARD; COUNTY CHARGES. ay
County Law, § 24.

§ 2. ACCOUNTS TO BE ITEMIZED; VERIFICATION; MAY BE DIS-
ALLOWED IN PART; ACCOUNTS TO BE NUMBERED.

No account shall be audited by a board of supervisors or by a committee
thereof, or by superintendents of the poor, unless it shall be made out in

 

chargeable to their county; and if it attempts to do so, it is an act in excess
of jurisdiction, done without power to make it valid, and is null and void.
It may be disregarded by other officers of the county, and is not binding and
conclusive upon another board.”

Claims which need not be audited.—A claim for money illegally collected
as taxes and paid into the county treasury is not a county charge which the
statute intended should be audited. Newman v. Supervisors of Livingston Co.,
45 N. Y. 676. See also Ross v. Supervisors of Cayuga Co., 38 Hun, 20. Claims
which have their origin in torts need not be presented to the board for audit.
McClure v. Supervisors of Niagara, 50 Barb. 594. See also Howell v. City
of Buffalo, 15 N. Y. 512. The bonds and notes ‘of a county, issued for loans
authorized by law, are not open accounts for county charges which must be
presented for audit. Parker v. Supervisors of Saratoga Co., 106 N. Y. 392.

Effect of legislative enactments.—L egislature may direct the board to assess
the costs and expenses of a suit brought by direction of the voters of a town
by the highway commissioners on the town. Town of Guilford v. Supervisors,
13 N. Y. 143. See also People ex rel. Morrill v. Supervisors, 112 N. Y. 585;
People ex rel. Outwater v. Green, 56 N. Y. 466.

Local act (1900, ch. 277, § 6) providing for the payment of the proceeds
of bonds, issued for the acquisition of certain property within a county, upon
the order of the board of supervisors, is entirely in accord with provisions
of this subdivision. People v. Neff, 191 N. Y. 210, affg. 122 App. Div. 135, 106
N. Y. Supp. 747.

Rules of the board cannot operate to change the provisions of the statute
as to auditing. People v. Supervisors, 22 How. Pr. 71, affg. 21 How. Pr. 322.

Board acts judicially. In the settlement of disputed claims, or in the audit
and allowance of county charges, a board of supervisors acts judicialy where
the subject of the claim is within its jurisdiction. Peco. ex. rcl. Canajoharie
Nat. Bank v. Supervisors, 67 N.Y. 109, 114. In this case the court said: ‘‘The
acts which can in any respect be régarded as judicial, and therefore final and
conclusive until reversed, had respect solely to the amounts at which claims
under an act should be audited and allowed. Had they been left to determine
also whether these claims were or were not county charges, their decision of
that question might have been claimed to be judicial and in the nature of a
judgment; but the functions of the supervisors, judicial in their character,
being limited to ascertaining and determining the amount or amounts, which,
when ascertained and determined, the legislature had directed to be raised
by tax and paid as other county charges are provided for and paid, a repeal
of the acts making the claims a county charge, does not reverse any judgment
or judicial determination of the board of supervisors in respect to any matter
referred to them.” In other words, the board does not act judicially in
determining whether,or not a claim which is clearly declared by statute to be
a county charge is binding upon the county. See, also, People v. Supervisors
of Livingston, 26 Barb. 118; Supervisors of Onondaga v. Briggs, 2 Denio, 26;
Supervisors of Chenango v. Birdsall, 4 Wend. 453; Bank of Staten Island v.
City of New York, 68 App. Div. 231, 74 N.Y. Supp. 284. In exercising the
power to audit, the board acts judicially and its action may be reviewed by
certiorari. New York Catholic Protectory v. Rockland County, 159 App.
Div. 455.

Whero it is doubtful and rests uvon disputed evidence, whether a claim
is a proper county charge the determination is committed to the discretion
of the board. Osterhoudt v. Rigney, 98 N.Y. 222, 232.
98, COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 24.

items and accompanied with an affidavit that the items of such accounts
are correct, and that the disbursements and services charged therein havé

 

Power to audit is a judicial act, and the board is not liable for an erro-
neous determination. Chase v. Saratoga Co., 33 Barb. 603; Osterhoudt v.
Rigney, 98 N.Y. 222; People v. Stocking, 50 Barb. 573; Weaver v. Daven-
dorf, 3 Den. 117; People ex. rel. Brown v. Supervisors, 3 How. Pr. (N.S.)
241; People ex. rel. Kelly v. Haws, 21 How. Pr. 117; Supervisors of Onon-
daga v. Briggs, 2 Denio 26.

While in a very largely qualified sense the action of the board is quasi-
judicial, it is not so in the sense that an erroneous and improper audit is
incapable of correction by the board. People ex. rel. Hotchkiss v. Super-
visors, 65 N.Y. 222.

Where the amount of services is undisputed and where the rate of com-
pensation is established by law or undisputed contract so that an unques-
tionable duty exists that the board pay the claim, then the board cannot
evade this duty by saying that the board is a quasi-judicial tribunal. People
ex. rel. Morrison v. Supervisors, 56 Hun, 459, 10 N.Y. Supp. 88, affd. 27
N.Y. 654. See also Matter of Murphy, 24 Hun, 592, affd. 86 N.Y. 627;
People v. Supervisors of Cortland, 58 Barb. 139.

When board may exercise discretion. Such boards have no discretion
where the salary of an officer is fixed by law and made a county charge.
The amount as so fixed concludes the board in its action. Morris v. People,
38 Denio, 381; People v. Stout, 23 Barb, 338; People v. Supervisors of Cort-
Jand, 58 Barb. 139; 40 How. Pr. 538.

In passing upon claims where no price fies been agreed upon, and in
auditing claims for legal and other services where no price is fixed by sta-
tute, and no sum has been fixed upon by contract as compensation for such
services, the board may exercise its discretion in fixing the amount; and
where it acts in good faith in auditing and allowing the claim, its action
will not be reviewed. People ex. rel. Johnson v. Supervisors of Delaware
Co., 45 N.Y. 196; People v. Supervisors of Albany Co., 12 Wend. 257; People
v. Supervisors of Otsego Co., 51 N.Y. 407; People v. Supervisors of Dutchess
Co., 9 Wend. 508; People v. Supervisors of Cortland Co., 58 Barb. 139; 40
How. Pr. 53.

When the law has declared that certain claims shall be a debt of the
county, then the supervisors cannot reject the claims upon the idea that they
are not valid and legal claims against the county; but if they admit all the
facts upon which the claims are legally founded, they must audit and allow
them. But where any of the facts material to the existence of the claim are
disputed, then the point arises at which their judicial discretion is called
into exercise, and they cannot be compelled by mandamus to decide this
question in any particular manner. People ex rel. Benedict v. Supervisors
of Oneida, 24 Hun, 413.

The special county judge of Monroe county, who receives a salary by statute
of $4,500 per year, is entitled to receive, for acting as surrogate in pursuance
of the authority of sections 2478-2485 of the Code of Civil Procedure (now
sections 8-15 of the Surrogate’s Court Act), in addition to his regular salary
as special county judge, during the time which he so acted as surrogate, a
compensation equal pro rata to the salary of the surrogate, which compen-
sation must be audited and paid in like manner as the salary of the surro-
gate, and the board of supervisors has no discretion as to whether it will
audit and allow a claim for such compensation, there being no dispute as
to the number of days of service, or in the amount which it may allow.
Matter of Barhite (1921), 199 App. Div. 234, 191 N.Y. Supp. 461.

Power of audit cannot be delegated. The final audit should be by the
board as a whole. The examination of accounts may be made by a commit-
tee of the board, but the determination as to the allowance or disallowance
of any part thereof rests exclusively with the board itself. People v. Super-
visors, 25 Hun, 131. The power of audit is judicial and cannot be delegated.
People v. Hagadorn, 104 N.Y. 516; 10 N. E. 891; Belinger v. Gray, 51 N.Y.
610; Town of Salamanca v, Cattaraugus Co., 81 Hun, 282, 30 N.Y. Supp. 790.
AUDIT BY BOARD; COUNTY CHARGES. 29
County Law, § 24.

been in fact made or rendered, or are necessary to be made or rendered

 

It seems that where the board exercises governmental functions, the whole
body must act; but, when it acts as a mere business corporation, it may delegate
the mechanical and physical work to its agents. People ex rel. Vaugh v.
Supervisors, 52 Hun, 446, 5 N. Y. Supp. 600.

Manner of auditing. A legal and proper auditing of an account requires
an examination of the items of which it is composed, and the allowance or
disallowance of them accordingly as they shall be found correctly or incor-
rectly, charged both in law and in fact. The board must examine each bill
in detail and allow or disallow the various items. It would be no proper or
just audit of an account made up of numerous items to allow a gross sum
instead of considering and passing upon the items. People ex rel. Johnson
v. Supervisors of Delaware Co., 45 N. Y. 196; People ex rel. Thurston v. Board
of Auditors, 20 Hun, 150, affd. 82 N. Y. 80; People ex rel. Drummond v.
Supervisors of Westchester Co., 82 N. Y. Supp. 504 (App. Div., 2d Dept., May
28, 1903). A person who presents a bill for audit consisting of several items
is entitled to the judgment of the board on each item. People ex rel. Drum-
mond v. Supervisors, 83 App. Div. 51, 82 N. Y. Supp. 504.

For instance, where a claim is presented by a county officer for services
performed by him for which he is entitled by statute to a certain per diem
compensation, specifying the number of days employed by- date, and the
particular duty or service performed on each day, and charging for each day
so employed the compensation allowed by law, the board would not be
justified in allowing a gross sum without specifying the particular items in
the account which are disallowed. See People ex rel, Thurston v. Board of
Auditors, 82 N. Y. 80, in which case the Court of Appeals says: “If (in
allowing such a claim at a gross sum), they rejected no specific day or days,
but allowed them all to stand, then they violated the statute rate of com-
pensation. But if, as they claim, they reduced the number of days as a
whole without disallowing any specific one, they did not audit the account
at all; they merely guessed at the result and offered a compromise. Within
the range of their discretion they are sufficiently powerful. The courts may
not dictate their conclusion, but may justly require that they arrive at one
in a just and intelligent way, and with some reasonable respect for the
possible rights of the creditors. In this case the board of auditors, instead
of passing on the relator’s bill, and allowing or disallowing the items accord-
ing to the facts and the law, assumed the right to allow what they pleased,
without disputing the facts on the one hand or the law on the other. In
other words, acting on the theory that the commissioners were costing the
town too much, the auditors cut down the gross amount of the bill to their
own arbitrary standard, without regard to the right or wrong of a single
item presented for their judgment. It is well to regard economy, but it is
better to do fair and complete justice. . . . The amount to be allowed
has in no manner been dictated by the courts. That is the duty of the
auditors. But they must perform that duty by passing specifically upon the
separate charges, so that both claimants and the people may know what
has been done. Their conclusion must be, not an arbitrary guess at a gross
sum, but an actual audit of the several charges presented.”

In the case of People ex rel. Sutliff v. Supervisors of Fulton, 74 Hun, 251;
26. N. Y. Supp. 610, a sheriff’s bill contained numerous items for board of
prisoners at the county jail, and for various fees for services performed by
30 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 24.

at that session of the board, and stating that no part of the amount

 

the sheriff and his agents in respect to such prisoners. The board passed a
resolution auditing and allowing the bill at a greatly reduced gross sum
without specifying the items rejected. The court said: ‘They must pass
upon the items, and should so discharge their duties in that regard that the
relator will be able to know which items were allowed and which were dis-
allowed. It may not be necessary for the board in their decision to pass
upon each item of relator’s bill separately. For instance, if they shou!d
disallow all “turnkey’s” fees and all “tub” fees, it would be sufficient to
so declare without specifying each item. If they should allow the number
of weeks’ board claimed, but should reduce the price it would be sufficient
to merely state the price per week allowed. But in some way the board
should pass on and allow or disallow the items of the relator’s bill, and
in such a way that it may be known what the determination in fact was as
to each item. This may cause much trouble, but it seems necessary under
the statute and decisions.”

Audit of claim for services.—In reference to charges for services fer which
no fixed or definite sum is prescribed as a compensation the board is vested with
a discretion, and may allow such sum as they deem just. In auditing and
allowing this class of accounts they act judicially, and no proceedings can be
hed against them, or against the county, for an erroneous det2rmination in
relation to their acts. Chase v. County of Saratoga, 33 Barb. 603; People v.
Stocking, 50 Barb. 573; 32 How. Pr. 48; People ex rel. Sherman v. Supervisors
of St. Lawrence Co., 30 How. Pr. 178.

A board of supervisors in passing on a claim for services may act upon in-
formation acquired apart from any formal] hearing. Thus, they may consider
letters received from clerks of other counties stating the rates paid by them for
similar services. People ex rel. McHenry v. Board of Supervisors, 140 App. Div.
759, 126 N. Y. Supp. 153.

Where a board of supervisors has received a claim against a county based on
quantum meruit for services of a physician in making post-mortem examinations,
and has acted upon it by allowing it in part and reducing the amount, the claim-
ant cannot disregard the audit and sue the county eo nomine for the entire amount
of his claim. Such an audit is final and reviewable only by certiorari. Foy v.
County of Westchester, 60 App. Div. 412, 69 N. Y. Supp. 887, affd. 168 N. Y. 180.

The audit by a board of supervisors, having jurisdiction over the matter of a
claim for services rendered the county, at a reduced amount. is, in the absence of
fraud or collusion, final and conclusive. and cannot be attacked collaterally in an
action brought by an assignee of the claimant, even though tle board of supervisors
erroneously allowed on plausible grounds items which were not a proper county
charge. The rule of res adjudicata applies to such an audit. Bank of Staten Island
v. City of New York, 68 App. Div. 231, 74 N. Y. Supp. 284, affd. 174 N. Y. 519,

Supervisors must audit salary of an officer as fixed by law. People v.
Stout, 23 Barb. 388 (1856). See People v. Haws, 21 How. Pr. 178. But see
People v. Supervisors, 12 How. Pr. 204.

Attorney’s services.—Claim for services by an attorney assigned to defend a
prisoner is not a charge on the county, and in the absence of statutor>
authority the board is powerless to audit same. People v. Supervisors of
Albany, 28 How. Pr. 22. A claim for attorney’s services rendered to the board
is a county charge and must first be presented for audit. Brady v. Super-
visors of N. Y., 10 N. Y. 260.

Charges for legal services to county excise board were required to be
presented to supervisors for audit; and mandamus will lie if board refuse to
AUDIT BY BOARD; COUNTY CHARGES. 31
County Law, § 24.

audit such claim if legally chargeable to county. People v. Supervisors of
Delaware, 45 N. Y. 196. See also People v. Supervisors, 14 Barb. 52.

Aclaim by an attorney, assigned to defend a poor person, indicted for murder
in the first degree, for the services of an interpreter, apparently rendered
prior to the trial, should not be allowed by the county, where it appears that
a similar item has been paid for the services of an interpreter at the trial in
the interest of the defense, and the papers do not show that the additional item
claimed was necessary and proper. Although an order has been granted in
such an action requiring the stenographer to furnish from day to day a
transcript of his minutes to the attorney assigned for the defense, the expense
incurred is not chargeable to the county. Matter of Kenney v. Prendergast
(1912), 153 App. Div. 325.

Affidavit as to value of services. Where a claim for services rendered,
presented to a board of supervisors for audit, which board has authority to
exercise its judgment in reference to the amount to be allowed, is sustained
only by the affidavit of the claimant, the board is not compelled to accept his
statement, although it is uncontradicted, but may award such sum as in its
judgment seems proper compensation for the services. Matter of Lanehart,
382 App. Div. 4; 52 N. Y. Supp. 671.

Hearing evidence as to claims. In all cases where auditing officers are
vested with the right to exercise their discretion in determining the amount to
be paid, it is a matter of fair dealing that the claimant should be given an
opportunity to be heard in his own behalf, and to furnish evidence if he so
desires. People v. Supervisors of St. Lawrence Co., 30 How. Pr. 173. But the
board cannot be compelled to receive evidence in regard to an account where
such evidence could not affect its decision. People ex rel. White v. Supervisors
of Clinton Co., 20 N. Y. Supp. 273; 48 N. Y. St. Rep. 457. And the hearing of
counsel in favor of a claim presented for audit, and the writing out of the
stenographer’s minutes taken at a hearing before a committee, is within the
discretion of the board and cannot be compelled. People ex rel. Sutliff v.
Supervisors of Fulton Co., 74 Hun, 251; 26 N. Y. Supp. 610.

Examination of claims. In investigation of a claim the board of supervisors
are not the protectors of the county, but are bound to stand impartial between
claimant and county; they are made by statute the judges of what is justly
due. The claimant may claim opportunity to be heard, to produce witnesses
and cross-examine witnesses; the county likewise should have a right to be
represented. A record of all evidence should be kept so that it may be pre-
pared to return its proceedings for review on certiorari. People ex rel. Bliss
v. Supervisors, 39 St. Rep. 313, 15 N. Y. Supp. 748. See also People ex rel.
White v. Supervisors, 48 St. Rep. 3, 20 N. Y. Supp. 273, holding that board has
reasonable discretion as to reception of evidence,

Where the claimant has failed to observe the statutory requirement as to
proof, the board can either reject the bill altogether or allow what they
consider fair compensation. People v. Webb, 21 N. Y. Supp. 298.

The board cannot audit a claim barred by the statute of limitations. Woods
y. Supervisors of Madison Co., 186 N. Y. 403.

Audit, how far conclusive. In the case of Martin v. Supervisors of Greene
Co., 29 N. Y. 645, it was held that after a claim against a county has been
presented to the board of supervisors for allowance, and has been examined
and passed upon by that board, the amount determined to be actually and
justly due declared, and its payment provided for in the mode prescribed
by law, no action will lie against the county, to recover the same claim, upon
the ground that the decision of the board was erroneous in respect to the
amount actually and legally due to the plaintiff. The rule is that the acts of
a board of audit, within its jurisdiction, in the absence of fraud and collusion,
are final and conclusive, and cannot be questioned in a collateral proceeding.
Whether a claim is a proper county charge, in a case where it is doubtful
and rests upon disputed evidence, and what amount shall be allowed, when not
fixed by statute, are questions which the statute commits to the board, and
however much it may err in judgment on the facts, so long as it keeps within
its jurisdiction and acts in good faith, its audit cannot be overhauled, but is
final both to the claimant and all taxpayers. Osterhoudt v. Rigney, 98 N. Y.
32 COUNTIES; BOARDS OF SUPERVISORS,
County Law, § 24.

222, 232. And see People v, Supervisors of Livingston, 26 Barb. 118; People ex
rel. Vaughn v. Supervisors, 52 Hun, 446; 5 N. Y. Supp. 600. The audit of the
board is in the nature of a judgment. People ex rel. McDonough v. Super-
visors of Queens, 33 Hun, 305, 307. ;

When the question whether a charge made by a county clerk is a valid county
charge is dependent upon a question of fact to be determined by the board of
supervisors, the audit and allowance of the claim by the board, in the absence
of fraud or collusion, is conclusive in the claimant’s favor. Where the law-
fulness of a charge made by a county clerk does not depend upon any such
question of fact, but the charge is unlawful on its face, it is not aided in any
respect by the audit thereof; and the association of such illegal claims with
claims which are lawful in an audited bill does not serve to protect the former
from attack notwithstanding the audit. People v. Sutherland (1912), 207
N. Y. 22.

Certificate of audit is conclusive against the county. People ex rel. Central
Nat. Bank v. Fitzgerald, 54 How. Pr. 1. If claimant accepts payment of claim
as audited, he is estopped. People ex rel. O’Mara v. Supervisors, 40 N. Y.
St. Rep. 238, 16 N. Y. Supp. 254. The audit and allowance of an account by
the board is conclusive of the right of the claimant to recover it. Brown v.
Green, 46 How. Pr. 302, affd. 56 N. Y. 476. See also People ex rel. Kelly v.
Haws, 21 How. Pr. 117. The prior audit by the town board of an account
against the town is conclusive, and cannot be reversed or reviewed by the
board of supervisors. McCrea v. Chahoon, 8 N. Y. Supp. 88 But a claim
against a county is not made legal by its audit by the board of supervisors.
People ex rel. Tracy v. Green, 47 How. Pr. 382.

As to conclusiveness of audit, see, also, Supervisors of Onondaga v. Briggs,
2 Denio 26; People v. Stout, 23 Barb. 338.

The fact that a sheriff’s account has been illegally audited by a board of super-
visors does not prevent the recovery of the amount paid in an action against the
sheriff. Franklin County v. Henry, 148 N. Y. Supp. 627. The validity of the claim,
notwithstanding audit by a board of supervisors may be attacked in a taxpayer’s
action if it appears that the board exceeded its jurisdiction. Smith v. Hedges, 169
App. Div. 115, 154 N. Y. Supp. 867. In this case it was held that the fact that some
part of the claim was within the jurisdiction of the board did not make conclusive
the audit of another part of the claim which was without the jurisdiction of the
voard. But where the charges audited and allowed are in their legal nature proper
charges, then the audit and allowance is conclusive as to the performance and extent
of the work on which the charges are based. This case was reversed on appeal by
the Court of Appeals, 223 N. Y. 176, on the ground that the audit was illegal.

The reasonableness of the amount of a bill for costs and expenses in a proceeding
before the governor for the removal of a sheriff is a question purely for the board of
supervisors to determine when they make their audit. Gavin v. Supervisors of
Rensselaer (1916), 93 Mise. 264, 157 N. Y. Supp. 973.

Reconsideration of audited claims. Where a claim has been considered, audited
and allowed by a board of supervisors, but not actually paid, said board may
reconsider its action and reaudit the account. However, an audit by one board,
uniess fraudulent or illegal, cannot be revised by a subsequent board. The fact
that the claim as audited was assigned prior to the reconsideration thereof by the
board of supervisors does not change the situation, as the assignee acquired no
greater right than the assignor had and must be presumed to have known that the
board had power to reconsider its action and reaudit the claim. Matter of Equit-
able Trust Co. v. Hamilton (1919), 226 N. Y. 241, affg. 177 App. Div. 390, 164
N. Y. Supp. 58.

Audit of rejected accounts. An account rejected by a board upon its merits
cannot be audited by a subsequent board. Osterhoudt v. Rigney, 98 N. Y. 222;
Board of Supervisors v. Ellis, 59 N. Y. 620. If a claim is disallowed for any reason
not affecting the merits thereof, it may be audited by a subsequent board. People
ex rel. Mason v. Boa:d of Supervisors, 45 Hun 62. The board may properly re-
ject a claim which has been audited and rejected by the board of a previous year.
People ex rel. Andrus v. Supervisors, 106 App. Div. 381, 94 N. Y. Supp. 1012.

After allezed erroneous audit by board of supervisors, an action will not lie for
the recovery of a larger sum. Martin v. Supervisors, 29 N. Y. 645. ‘See also Chase
v. County of Saratoga, 33 Barb. 603, 3 How. Pr. (N. S.) 241.

Review by certiorari, Where a claim presented to the board is of such a
character that the board is vested with authority to exercise its judzment in
AUDIT BY BOARD; COUNTY CHARGES. 33
County Law, § 24.

respect thereto, and requires a determination based upon conflicting testimony
and inferences arising therefrom, whatever right of review exists must be by
certiorari, and mandamus is improper. Matter of Lanehart, 32 App. Div. 4; 52
N. Y. Supp. 671. In the case of People ex rel. Myers v. Barnes, 114 N. Y. 317;
20 IY. E. 609, it was held that not only does an auditing board possess discretionary
and judicial power, but its jurisdiction over claims which are properly submitted
to it is original, and its decision thereon is conclusive until modified or reversed
by another court in the manner prescribed by law, that is, in proceedings by
certiorari. See, also, People ex rel. Hamilton v. Supervisors of Jefferson Co., 35
App. Div. 239; 54 N. Y. Supp. 782.

Where services have been rendered by w physician in making post-mortem
examinations, the compensation for which is a county charge, and the claim has
been presented to and audited by the board of supervisors, the audit is final; and
while the amount of the audit may not be the value of the services, and may
present a case for review by certiorari, no cause of action therefor arises against
the county. Foy v. County of Westchester, 168 N. Y. 180; 61 N. E. 174, affg.
60 App. Div. 412; 69 N. Y. Supp. 887.

Certiorari will lie to review an erroneous determination of the board of super-
visors ‘as to a claim declared by the legislature to be just; after such review, if
board still refuse to allow the claim, further remedy by mandamus will be given.
People 'v. Supervisors, 51 N. Y. 442.

Mandamus to compel audit. If audit is refused or amount is arbitrarily reduced,
remedy is by mandamus. Matter of Lanehart, 32 App. Div. 4, 52 N. Y. Supp. 671;
but if claim requires exercise of discretion and a determination based upon con-
flicting evidence, remedy is by certiorari. Id. And see also People ex rel. Hamil-
ton v. Supervisors of Jefferson, 35 App. Div. 239, 54 N. Y. Supp. 782; People ex
rel. Plumb v. Supervisors of Cortland, 24 How. Pr. 119; People ex rel. Martin v.
Earl, 47 How. Pr. 458; People ex rel. McAleer v. French, 119 N. Y. 502; Vedder v.
Superintendent, 5 Den. 564; Albrecht v. County of Queens, 84 Hun 399, 32 N. Y.
Supp. 473; New York Catholic Protectory v. Rockland County, 159 App. Div. 455.

Where a board have once considered a claim and audited and allowed it at a
certain sum, the claim being one where they have the right to exercise a discre-
tion in determining the amount, a mandamus cannot issue to compel them to audit
the claim anew and allow it at a greater amount. People ex rel. Johnson v.
Supervisors of Delaware Co., 45.N. Y. 196.

The action of a board of supervisors in rejecting or alleging a claim presented
to it is judicial, and to some extent discretionary; it cannot be reversed for any
cause by a subsequent board; it is conclusive as to the proper form and details
of the claim presented; and although a peremptory mandamus may issue, com-
pelling the board to act, it cannot direct it how to decide. People ex rel. Brown
v. Supervisors of Herkimer, 3 How. Pr., N. S., 241.

The board of supervisors being vested with jurisdiction to audit all claims
legally chargeable to the county, the law imposes upon them the duty of acting
on all such claims legally presented to them; and if they refuse to act upon a
valid claim, they may be compelled to act by mandamus. People ex rel. Johnson
v. Supervisors of Delaware Co., 45 N. Y. 196; People ex rel. Hall v. Supervisors
of New York, 32 N. Y. 473. A claim presented to a board of supervisors, who
permitted their session to expire without taking any action upon it, is to be
regarded as rejected, for the purpose of mandamus to compel the board to act
thereon. People ex rel. Aspinwall v. Supervisors of Richmond Co., 20 N. Y. 252.
Where the supervisors of a county have neglected to perform any duty required
of tnem at their annual meeting they may be compelled by mandamus to meet again
and perform it. They cannot by their neglect nullify a statute imposing duties
upon them. People ex rel. Scott v. Supervisors of Chenango Co. 8 N. Y. 317.
The rejection of a claim by a board of supervisors on the ground that the county
is not liable therefor, may be reviewed by mandamus as well as by writ of
certiorari. People ex rel. Smart v. Supervisors, 66 App. Div. 66, 72 N. Y. Supp.
568.

Where a question of fact is to be determined by the board of supervisors, the
board has the right to decide, and mandamus will not lie; but where no such
question exists and the amount of the claim is undisputed, so that on the facts
a clear, unquestionable duty exists that the board pay the claim, then the board
may be compelled by mandamus to perform its duty. People ex rel. Morrison v.
34 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 24.

claimed has been paid or satisfied.?, But any such account so presented
and verified may be disallowed in whole or in part and the board or such
superintendents may require any other or further evidence of the truth
or propriety thereof.* Each such account shall be numbered from one

Supervisors, 56 Hun 459, 10 N. Y. Supp. 88, affd., 127 N. Y. 654. See also People
v. Supervisors of St. Lawrence Co., 30 How. Pr. 173.

Where the supervisors refuse to allow a legal charge, the court may instruct and
guide them in the execution of their duty by mandamus and compel them to
admit the claim as a county charge without controlling the exercise of their
judgment and discretion as to the amount to be allowed. Hull v. Supervisors
of Oneida, 19 Johns. 259. See also People ex rel. Bliss v. Supervisors of Cortland,
39 N. Y. St. Rep. 313, 15 N. Y. Supp. 748; People v. Supervisors of Otsego Co.,
51 wv. Y. 401.

If a board of supervisors refuses to act upon or allow or disallow a claim, the
remedy of the claimant is by writ of mandamus. If a valid claim against a
county is not allowed at a proper amount, the remedy of the claimant is by writ
of certiorari to review the audit. Matter of Equitable Trust Co. v. Hamilton
(1917), 177 App. Div. 390.

When the board refuses to examine the accounts, for some cause other than
errors or want of proof as to the items, it may be compelled to proceed with the
examination and audit. People v. Supervisors of N. Y., 21 How. Pr. 322.

To entitle creditor to mandamus to compel board of supervisors to assess against
a town a judgment recovered against its highway commissioners, it must be
established that the judgment is one the town is precluded from disputing. Peo-
ple ex rel. Everett v. Supervisors, 93 N. Y. 397, affg. 26 Hun 185.

if the board has acted on the subject matter and exercised its discretion by
allowing but part of an account, though it be less than that certified by a justice
of the supreme court, mandamus will not lie. People ex rel. Ayres v. Supervisors,
14 Barb. 52.

Where the board has passed upon the whole claim on its merits and has exer-
cised its judgment in good faith, mandamus will not lie to compel board to allow
a greater amount; where the board has not acted upon each item of the claim and
arrived at its decision in a systematic way it may be required to do so by mandamus.
People ex rel. O’Mara v. Supervisors, 40 N. Y. St. Rep. 238, 16 N. Y. Supp. 254.

2. For form of accounts against county, see Form No. 4, post.

The form and verification of accounts against towns and counties is also pre-
scribed by sec. 175 of the Town Law, post. ;

3. Presentation of accounts in other counties, In Albany County the presenta-
tion and audit of accounts against the county by the board of supervisors would
seem to be controlled by L. 1881, ch. 283.

In Rensselaer county it is provided by L. 1901, ch. 124, as amended by L. 1904,
ch. 217, that the board of supervisors shall meet annually between general election
day and the fifteenth day of December following for the purpose of examining and
auditing accounts against the county, and transacting other business. This act
also provides for the presentation of claims and regulates their audit by the board.

Sufficiency of presentation. The board of supervisors may insist upon a com-
pliance with the provisions of the above section. It is not the duty of the board
to audit accounts not made out in items and verified as required by the statute.
People v. Supervisors of Monroe County, 18 Barb. 567. And the refusal of the
board to audit a claim which was not presented in the form prescribed by statute
will not be reviewed by the court. People ex rel. Johnson v. Supervisors of Dela-
ware County, 9 Abb. Pr. N. S, 416. And in this case it was also held that neither
ihe report of a committee of the supervisors, setting forth the itemized claim nor
a similar report made by the claimant as a public officer, can be regarded as a
presentation of the claim for the purpose of audit.

If an account is not properly verified it should be returned to the claimant with
notice, so that he may appear and correct it. People ex rel. Sherman v. Super-
visors of St. Lawrence County, 30 How. Pr. 173. An affidavit stating that the
services claimed for were performed (but not stating that they were rendered
for the county), and that no part of the claim had been paid by the board

 
AUDIT BY BOARD; COUNTY CHARGES. 35
County Law, § 24.

upwards in the order of presentation, and a memorandum of the time of
presentation and the name of the claimant, and if assigned, the name
of each assignor or assignee shall be entered in the proceedings of the
board. No such account, after being so presented, shall be withdrawn
without the unanimous consent of the board except to be used as evidence
in an action or proceeding, and after being so used it shall be forthwith
returned.* [County Law, § 24; B. C. & G. Cons. L., p. 726.]

§ 3. BOARD MAY MAKE ADDITIONAL REQUIREMENTS AS TO AC-
COUNTS.

Boards of supervisors may make such additional regulations and re-
quirements, not in conflict with law, concerning the keeping and
rendering of official accounts and reports of its county and town officers,
and the presentation and auditing of bills presented to their board or to
the town boards of their county, as they may deem necessary for the
efficiency of the service and the protection of the interests of the public.
[County Law, § 25; B. C. & G. Cons. L., p. 727.]

 

or any one on their behalf, is not a sufficient verification. People ex rel. Cagger v.
Supervisors of Schuyler County, 2 Abb. Pr. N. S. 78. All claims against the
county must be itemized before they can be audited, and a charge for “ traveling
expenses,” and “incidentals,” is not sufficiently specific to comply with the
requirements of the statute. Matter of Pinney, 17 Misc. 24; 40 N. Y. Supp. 716.
And where a claim is presented to the board of supervisors for expenses
and disbursements by the board of health of a city, but the accounts
presented are in gross sums, being the total amounts paid to various persons,
without any items whatever, it was held that the accounts are not sufficiently
itemized to entitle them to be audited by the board. People ex rel. Board of
Health v. Supervisors of Monroe County, 18 Barb. 567.

The fact that the claimant has presented informal bills to the board for
audit is not a reason for absolutely rejecting the claim and thus deprive
him of that which may be honestly and fairly due him. In a disposition to
be just the right to amend will readily be suggested. By permitting an amend-
ment the claimant could present his claim in the form and manner prescribed
by the statute, and then the board of supervisors could examine and pass upon
the various items embraced therein, doing justice to all parties. People ex rel.
Mason v. Board of Supervisors of Wayne County, 45 Hun, 62. |

Account must state that the services were necessarily rendered. People
ex rel. Toohey v. Webb, 50 St. Rep. 46, 21 N. Y. Supp. 298. As to criminal
offense of fraudulent presentation of claim, see People v. Bragie, 88 N. Y. 585,
affg. 10 Abb. N. C. 300.

4. The clerk of the board of supervisors is required to designate upon each
account audited the amount allowed, and the items or amount disallowed,
and to deliver to any person on demand a certified copy of any account on file
in his office. County Law, § 50, sub. 5, post, p. 96.

The withdrawal of an account is not necessary for the purpose of correct-
ing informalities and defects contained therein. Notwithstanding the above
provision of the'statute a claimant should be given leave to amend such an
account. People ex rel. Mason v. Board of Supervisors, 45 Hun, 62.
36 COUNTIES; BOARDS OF SUPERVISORS.
Penal Law, §§ 1863, 1864.

§ 4. PENAL PROVISIONS RESPECTING THE UNLAWFUL AUDIT
AND PRESENTATION OF ACCOUNTS AGAINST MUNICIPAL-
ITIES.

Unlawfully auditing and paying claims. A public officer, or person
holding or discharging the duties of any office or place of trust under
the state, or in any county, town, city or village, a part of whose duties
it is to audit, allow or pay, or take part in auditing, allowing or paying
claims or demands upon the state, or such county, town, city or village who
knowingly audits, allows or pays, directly or indirectly consents to, or
in any way connives at the auditing, allowance or payment of any claim
or demand against the state or such county, town, city or village, which
is false or fraudulent, or contains charges, items or claims, which are
false or fraudulent, is guilty of felony, punishable by imprisonment for a
term not exceeding five years, or by a fine not exceeding five thousand
dollars, or by both. [Penal Law, § 1863; B. C. & G. Cons. L., p. 4050.]

A person who, being or acting as a public officer or otherwise,
by wilfully auditing or paying, or consenting to, or conniving at the
auditing or payment of a false or fraudulent claim or demand, or by any
other means, wrongfully obtains, receives, converts, disposes of or pays
out or aids, or abets another in obtaining, receiving, converting, dis-
posing of, or paying out any money or property held, owned or in the
possession of the state, or of any city, county or village, or other public
corporation, or any board, department, agency, trustee, agent or officer
thereof, is guilty of a felony, punishable by imprisonment for not less than
three nor more than five years, or by a fine not exceeding five times the
amount or value of the money or the property converted paid out, lost or
disposed of by means of the act done or abetted by such person, or by
both such imprisonment and fine. The amount of any such fine when
paid or collected, shall be paid to the treasury of the corporation or body
injured. A conviction under this section forfeits any office held by the
offender, and renders him incapable thereafter of holding any office or place
of trust.

A transfer in whole or part of any deposit with any bank or other de-

 

5. Fraud cannot be based upon an excessive charge. People v. King, 19 Misc.,
98, 100, 48 N. Y. Supp. 975.

Indictment charging official with presenting a fraudulent claim to an auditing
board for allowance and also with corruptly auditing a claim is void for
duplicity. People v. Stock, 21 Misc. 147, 47 N. Y. Supp. 94. But an indictment
of one count describing both crimes is not invalid. People v. Klipfel, 160 N. Y.
371, affg. 37 App. Div. 224, 55 N. Y. Supp. 789. Indictment of a deputy com-
missioner of city works for certifying fraudulent bills. People v. Fielding,
36 App. Div. 401, 55 N. Y. Supp. 530, revd. 158 N. Y. 542. As to sufficiency
of indictment, see People v. Coombs, 158 N. Y. 532, affg. 36 App. Div. 284, 55
N. Y. Supp. 276; People v. Miles, 123 App. Div. £62, 108 N. Y. Supp. 510.
AUDIT BY BOARD; COUNTY CHARGES. 37
Penal Law, §§ 1864, 1872; County Law, § 240.

pository, or of any credit, claim or demand upon such depositary, whereby
the right, title or possession of the owner or holder of such deposit, or of
any custodian thereof, is impaired or affected, is a conversion thereof
under this section [Penal Law, § 1864; B. C. & G. Cons. L., p. 4050.]

Fraudulently presenting bills or claims top. ublic officers for payment.
A person who, knowingiy, with intent to defraud, presents, for audit,
or allowance, or for payment, to any officer or board of officers of thé
state, or of any county, town, city or village, authorized to audit or allow,
or to pay bills, claims or charges, any false or fraudulent claim, bill ac-
count, writing or voucher, or any bill, account or demand, containing false
or fraudulent charges, items or claims, is guilty of a felony. [Penal Law
§ 1872; B. C. & G. Cons. L., p. 4053. ]

§ 5. COUNTY CHARGES.
The following are county charges:
1. Charges incurred against the county by the provisions of this chapter;§
2. All expenses necessarily incurred by the district attorney in criminal
actions or proceedings arising in his county;?

 

6. The chapter here referred to is the County Law, and the intent of the
above subdivision is to make all charges incurred pursuant to the provisions of
the County Law county charges.

County charges generally. To determine what are county charges refe1:
ence must be made in each case to the statute authorizing the incurring of the
charge. The county cannot be made liable for any claim unless the act upon
which the claim was based was authorized by express provision of statute.
As was held in the case of People ex rel. Hadley v. Supervisors of Albany
County, 28 How. Pr. 22, to charge a county with a claim for services or expenses
incurred, there must be some statutory authority authorizing them to be
rendered or incurred, or directing their payment. Without this the board of
supervisors cannot be compelled by mandamus to audit the claim.

As to audit of claims against the county, see County Law, § 12, subd. 2, ante,

7 What are “necessary expenses” must inevitably depend upon circum-

stances, and it is a flexible term. The district attorney is invested with much
latitude and discretion in determining what expenses are necessary. In the
performance of the responsibility with which he is charged in the prosecu-
tions of crimes within his county, he is required to exercise his judgment as
to the wisdom of employing experts and as to other expenses to be incurred in
any given case. The expense of employing a civil engineer, to make an expert
investigation as to whether a contractor building State and county roads was
properly performing his contract, is a proper charge against the county. People
ex rel. Koetteritz v. Eoard of Cupervi:ors (1911), 148 Anp. Div. 392.
- The district attorney may employ private detectives to aid him in his duties
without authority of the board of supervisors, and the expense thereof is a proper
charge against the county. People ex rel. Watts v. Niagara County, 170 App. Div.
334, 156 N. Y. Supp. 148.

Traveling expenses necessarily incurred in criminal investigations which require
his presence in different parts of the county may be legally claimed by a district
attorney, bub he is not entitled to expenses incurred at the county seat or while
traveling between his residence and the county seat. State Comptroller’s Opinions
(1917), 11 St. Dept. Rep. 596.

Expenses in criminal actions. The duty of prosecution for criminal offenses
committed in a county devolves upon its district attorney, and as incidental thereto,
he has the power to do that which is essential to such prosecution, All expenses
necessarily incurred by such officer in the performance of such duty, or the exer-
cise of the power, are a county charge. The duty embraces whatever is essential
to bring a criminal to trial as well as the proceedings on trial; and so, if he is
in a foreign jurisdiction, it includes efforts to effect his arrest and custody for
the purpose of extradition, in order that he may be brought within the jurisdiction
of the court. People ex rel. Gardinier v. Supervisors of Columbia County, 134
N.Y. 1; 31 N. C. 322; see also, Matter of Pinney, 17 Misc. 24; 40 N. Y. Supp. 716.

\
38 COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 240.

3. The compensation of the county officers, their subordinates and
assistants, which are payable by the county: °

 

Accounts of district attorney for expenses. A district attorney, who
incurs expenses in connection with criminal actions or proceedings arising
in his county, should, when presenting his bill to the board of supervisors,
specifically state therein the nature of such expenses so that the board may
determine whether they were expenses necessarily incurred by him within the
meaning of the above subdivision. A board of supervisors may properly refuse
to allow a bill containing items for “ expenses” to and at different places within
the county on certain dates, where none of the items states the nature of the
expenses and only a portion of them specify the matter in connection with which
the expenses were incurred. Matter of White, 51 App. Div. 175; 64 N. Y. Supp.
726.

Expense of prosecution for illicit traffic in intoxicating liquors by the district
attorney, under the metropolitan police act, is a county charge. People v. Super-
visors of New York, 382 N. Y. 473. But see People ex rel. Kelly v. Haws, 21 How.
Pr. 117. Expense of prosecutions under the Liquor Tax Law. Rept. of Atty. Genl.
(1902) 342.

Expert witnesses, The above subdivision has been held to embrace within
its terms the expenses necessarily incurred by a district attorney in procuring
the attendance of medical experts at the trial of an indictment for murder.
People ex rel. Tripp v. Supervisors, 22 Misc. 616, 50 N. Y. Supp. 16. Although
a charge for the employment of an expert in making tests and giving evidence
upon the trial of an indictment for murder is authorized, without the consent
of the board of supervisors first obtained, a claim for services so rendered is
subject to the adjudication of such board, and that body is not concluded by
a contract entered into between the district attorney and the expert, by which
the compensation of the latter is fixed. People ex rel. Hamilton v. Supervisors,
of Jefferson County, 35 App. Div. 239, 54 N. Y. Supp. 782. See, also, People
ex rel. Sherman v. Supervisors of St. Lawrence County, 31 How. Pr. 173;
People ex rel. Bliss v. Supervisors, 39 St. Rep. 313, 15 N. Y. Supp. 748. The
district attorney may and if necessary should employ expert testimony in be-
half of the people before a commissioner appointed by the governor to conduct
a hearing on an application for executive clemency, and the expense of same
is a county charge. Tompkins v. Mayor, 41 App. Div. 536, 43 N. Y. Supp. 878.
It is the duty of the district attorney to procure the services of expert witnesses
where necessary, and the amount paid them will not affect the regularity of
the trial. People v. Montgomery, 13 Abb. (N. S.) 207.

A district attorney has power under this section to obligate his county to
pey a reasonable sum for the services of an expert witness in a criminal trial.
Although the witness’ bill is subject to review and audit by the board of super-
visors and although the board is not bound ly any speeife sum which the dis-
trict attorney had agreed to pay, it must audit a reasonable sum. People ex rel.
Manley v. Board of Supervisors (1911), 148 App. Div. 584, 182 N. Y. Supp. 868.

‘the costs of a commission in lunacy, pursuant to the provisions of the

chapter of the Code of Criminal Procedure, relating to an inquiry into the
insanity of the defendant, before or during trial or after conviction, are a
charge upon the county in which the commission shall have been execute’.
The commissioners are entitled to such compensation for their services as the
court may direct. Code Crim. Proc., § 662a, as added by L. 1903, ch. 129.

8. Compensation of county officers. Unless otherwise provided by statute the
compensation of county treasurers, district attorneys and superintendents of
the poor is fixed by the board of supervisors, and the board also fixes the
number, grade and pay of the clerks, assistants and employees in such offices.
See County Law, § 12, sub. 5, post, p. 54.

Board of supervisors cannot provide compensation for a clerk in a county
office. People v. Gallup, 30 Hun, 501, affd. in 96 N. Y. 628. Salary of stenog-
rapher in surrogate’s office in New York a county charge. Munson v. Mayor,
etc., of New York, 57 How. Pr. 497.
AUDIT BY BOARD; COUNTY CHARGES. 39
County Law, § 240.

4. The compensation of the criers of the courts of record within the
county for attendance thereat, and also traveling fees, at the rate of five
cents per mile, for going to and returning from the place of attendance *
[Thus amended by L. 1910, ch. 34.]

5. The compensation of the sheriff for the commitment and discharge
of his prisoners on criminal process within the county, and for summoning
constables to attend court ;'°

 

Supervisors may employ person to take charge of county offices, and the
expense incurred thereby is a legal county charge. Conway v. Mayor, etc., of
New York, 6 Daly, 515. Salaries of police justices of city of New York are county
charges and payable by county as contingencies. People v. Edmonds, 19 Barb.
468. :

Where no provision has been made for payment of a person entitled to
monthly payments for services rendered the county, discounts by a bank on
his bills issued to raise the money cannot be made a county charge. People
ex rel. Johnston v. Supervisors, 43 Hun, 385.

9. Court Criers. The crier appointed by the county judge of each county,
except Kings and Erie, to be crier for the courts of record held in his county
is entitled to a compensation to be fixed by the board of supervisors and to be
paid as prescribed by law, except in the county of Westchester where the com-
pensation of such crier shall be fixed by the county judge, not to exceed the sum
of one thousand two hundred dollars a year to be paid in equal monthly pay-
ments by the treasurer of Westchester county in full compensation for all ser-
vices rendered by him, and except in the county of Queens whére the compensa-
tion of such crier shall be the sum of one thousand eight hundred dollars a year,
to be paid in equal monthly payments and to be a county charge. Judiciary
Law, § 865, as amended by L. 1910, ch. 34, and L. 1911, ch. 566.

The salary of the criers appointed for Erie county by the justices of the
supreme court residing in Erie county together with the county judge, of
Erie county, in pursuance of section one hundred and sixty-nine of this
chapter, shall be fixed by the justices of the supreme court residing in Erie
county, or a majority of them; and when so fixed shall be paid in equal monthly
payments by the treasurer of Erie County in full compensation for all services
rendered by said criers. (Judiciary Law, § 366, as amended by L. 1910, ch. 15.

Except as provided in the preceding sections of the Judiciary Law, the
compensation of court criers is fixed by the above subdivision.

10. Compensation of sheriff. In all counties except those where by statute
the office of sheriff is made salaried, the fees which the sheriff is authorized
to charge for his services belong to him. For list of statutes making office
of sheriff salaried, see post, p. 155. For list of fees chargeable by sheriff
for services performed by him, see ch. 71, post.

The accounts of the sheriff for receiving prisoners into and discharging
them from jail, and for their board while confined therein, are properly
county charges. The liability of the county extends not only to such official
services in cases strictly criminal, but includes also quasi criminal offenses,
such as violations of city ordinances, the only distinction being that in the
latter case instead of the Statutory fee, the board of supervisors have power
to fix the compensation. People ex rel. Van Tassel v. Supervisors of Columbia
County, 67 N. Y. 330; Ross v. Supervisors of Cayuga County, 38 Hun, 20.
40 COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 240.

6. Compensation allowed by law to constables for attending courts of
record, and the compensation allowed by law to constables and other
ofticers, for executing process on persons charged with a felony; for ser-
vices and expenses in conveying such persons to jail; and for the service
of subpcenas issued by the district attorney and for other services in re-
lation to criminal proceedings and support of prisoners in transit, for
which no specific compensation is prescribed by law, and which are not a
town charge, as prescribed hy article eight of the town law; but no charge
for issuing or serving any subpcena in any criminal action or proceedings
issued or served on behalf of a defendant shall be allowed, unless other-
wise ordered by the court in which the action or proceeding was pending ;"*

 

Where prisoners are confined in a county jail, under authority of a village
charter providing that persons arrested in the village by the local police may
be detained therein until a police justice be found, not exceeding twenty-four
hours, the expense of their support in the jail is a county charge which should
be allowed the sheriff at a reasonable rate. People ex rel. Gray v. Board of
Supervisors, 89 App. Div. 152, 85 N. Y. Supp. 284.

In the absence of a statute, the expense for stationery furnished to a sheriff
is not a county charge. People ex rel. Brown vy. Greene, 46 How. Pr. 302;
27. &C. 23.

Expenses of sheriffs in transporting convicts to State prison in compliance
with the orders of the court, should be audited by the board of supervisors.
Rept. of Atty.-Genl., Dec. 16, 1910.-

11. Compensation of constables for attending courts. Section 85, subd. 4 of
the Town Law, provides as follows:

“A constable, for attending a sitting of a court of record, pursuant to a
notice from the sheriff, to a fee for each day’s actual attendance, in any
county in the state, to be fixed by the board of supervisors thereof, and
mileage as allowed by law to trial jurors in courts of record and in any
county where the court or grand jury holds evening or night sessions, the
board of supervisors may provide for additional compensation to be allowed
to each constable for each evening or night session actually attended by him.
Such fees must be paid by the county treasurer, upon the production of the
certificate of the clerk, stating the number of days and evenings that the
constable attended. If a constable attending a sitting of a court of record
pursuant to a notice from the sheriff is unable to reach his home upon the
day he is excused from attendance he shall be entitled to compensation for
an additional day, and the clerk shall certify accordingly upon satisfactory
proof of such fact by affidavit. The provisions of this section shall not be
applicable to the counties-of Kings, New York and Erie.

For fees of constables for services rendered in criminal proceedings as
prescribed by Code Crim. Pro., § 740b, see post, ch. 71.

When a town charge. The fees of a constable in criminal proceedings or
actions tried before a magistrate of the town where the offence is charged
to have been committed are a charge against such town. See Town Law,
sec. 171, post.

Conveyance of prisoners. The provisions of the above subdivision relating
to the compensation of constables for services and expenses in conveying
criminals to jail and for other services in relation to criminal proceedings
should be construed in connection with section 171 of the Town Law, post.
In the case of People ex. rel. McGrath v. Supervisors of Westchester
County, 53 Hun 157; 6 N.Y. Supp. 153, it was held that the account of a
constable for fees and expenses in conveying to the penitentiary prison-
ers convicted and sentenced in a court of special sessions in his town
was a town and not a county charge, so that a refusal of the board of super-
visors of the county to audit it as a county charge was proper. But see People
ex. rel. Bancroft v. Supervisors of Orange County, 18 Hun 90. Fees of con-
AUDIT BY BOARD; COUNTY CHARGES. 41
County Law, § 240.

7. The expenses necessarily incurred in the support of persons charged
with, or convicted of crimes, and committed to the jails of the county ;”

8. The sums required by law to be paid to witnesses in criminal actions
and proceedings ;*

 

stable for killing dogs a county charge. Matter of Town of Hempstead, 36
App. Div. 321, 335, 55 N. Y. Supp. 345. The fees of sheriffs and other officers
for the transportation of convicts to state prisons and houses of refuge are
fixed by statute and are to be paid by the state. Prison Law, §§ 12, 322.

Compensation for conveying juvenile delinquents. It is provided by
the County Law, § 12, subd. 20, that: “The board of supervisors shall annually
fix and determine the compensation to be allowed and paid to officers for ie
conveyance of juvenile delinquents to the houses of refuge and state industrial
schools, and no other or greater amount than that so fixed and determined
- shall be allowed and paid for such service.” |

12. Contracts with sheriffs. The board of supervisors is authorized by sec.

12, sub. 15, post, p. 59, to contract with the sheriff of the county for the board,
maintenance and care and custody of prisoners committed to the county jail
of his county. Prior to the insertion of this subdivision in section 12 it was
held that the board of supervisors had no power to make a contract to pay to
the sheriff a fixed weekly rate for the board of each prisoner, determined with-
out regard to the expense incurred. People ex rel. Caldwell v. Supervisors of
Saratoga County, 45 App. Div. 42; 60 N. Y. Supp. 1122. It would seem
under the ruling in this case that where a contract had not been made
with the sheriff for the board of the prisoner, that the sheriff would only be
entitled to reimbursement for the moneys actually expended by him in boarding
the prisoners. A civil prisoner confined in jail under an execution or for a
contempt is to be supported at the expense of the county if he makes oath
before the sheriff, jailer or deputy jailer that he is unable to support himself
during his imprisonment. See Code Civ. Proc., sec. 111, and County Law §
240, subd. 19, post, p. 47. People ex rel. Tracey v. Green, 47 How. Pr. 382.
13. Fees of witnesses in criminal actions. ‘The following sections of the
Code of Criminal Procedure relate to fees of witnesses in criminal actions:
§ 616. <A witness in behalf of the people in a criminal action in a court of
‘ record is entitled to the same fees and mileage as a witness in a civil action
in the same court, payable by the treasurer of the county upon the certifi-
cate of the clerk of the court, stating the number of days the witness ac-
tually attended and the number of miles traveled by him in order to attend.
In any such action, the court may, by order, direct the county treasurer to
pay to such witness a further reasonable sum for expenses, to be specified
in the order, and the county treasurer, upon the production of the order or
a certified copy thereof must pay the witness the sum specified therein out
of the county treasury. Such certificates shall only be issued by the clerk
upon the production: of the affidavit of the witness, stating that he attended
as such either on subpoena or request of the district attorney, the number
of miles necessarily traveled and the duration of attendance. An officer in
any state department who attends as a witness under this section in his
official capacity, or in consequence of an official action taken by him, and
who receives a fixed sum in lieu of expenses, or who is entitled to receive
the actual expenses incurred by him in the discharge of his official duties,
is not entitled to the compensation herein provided. [As amended by L.
1921, ch. 210.]

§ 617. In any such action, the court may also, in its discretion, by order,
direct the county treasurer to pay a reasonable sum for expenses, to be
specified in the order, to any witness attending in behaif of the defendant.
Upon the production of the order or a certified copy thereof, the county
42 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 240.
9. The moneys necessarily expended by any county officer in executing
the duties of his office in cases in which no specific compensation for such
services is provided by law,14 including the expense of printing the copies

 

treasurer must pay the witness the sum specified therein, out of the county
jtreasury. [As amended by L. 1921, ch. 210.]

14. Moneys necessarily expended by county officers. By this subdivision
the necessary expenditures of a county officer in the discharge of his official
duties, not otherwise specifically provided for, ave made a legitimate county
charge. In the case of People ex rel. Hall v. Supervisors of New York, 32 N. Y.
473, 475, the court said: ‘The import of the words ‘necessarily expended’ is
3ufficiently evident, wien we consiaer the purpose for which they were inserted,
and the nature of the subject to which they are applied. They relate not to
the necessity of payment as between the officer and the party to whom it is made,
—which would be satisfied, perhaps, by nothing short of the power of legal
compulsion,—but to the necessity of the expenditures having reference to what
is due to the public and the law, in the efficient and faithful discharge of official
duty. . . . Expenditures are to be deemed necessary within the plain intent
of the statute, when, as in the present case, they are not only needful and proper
—as contra distinguished from such as are needless and improvident—but also
reasonable, appropriate and customary in the discharge of the particular official
duty.” The expenditures which are made by the statute a charge against the
county are not limited to those of which payment can be recovered by civil
action against the officer. This proposition is the result of the reasoning of the
court in the above case.

But the expenditures of the officer must have been made by the officer in the
performance of duties which are for the benefit of the county alone. People
ex rel. Kelley v. Hawes, 12 Abb. Pr. 192; 21 How. Pr. 117.

The expense incurred by a superintendent of the poor in the employment of
counsel to conduct proceedings in bastardy, the direct object of which is to
indemnify the county and protect it from loss, may be allowed to the super-
intendent as an expense necessarily incurred by him in the performance of his
duties. Neary v. Robinson, 98 N. Y. 81, 85. See also People v. Supervisors of
Delaware Co., 45 N. Y. 196.

The County Law does not make the personal expenses of a superintendent of the
poor a county charge and they are not « proper charge unless the board of super-
visors has expressly so provided in fixing the compensation of the superintendent.
Strong v. Williams (1915), 167 App. Div. 714, 153 N. Y. Supp. 175.

Section 3 of L. 1898, ch. 588, establishing the county of Nassau, which provides
that the sheriff of the county shall receive an annual salary of not more than
$2,500, and that all fees for his services shall be paid into the county treasury
does not prevent the sheriff from receiving, under the above subdivision, traveling
expenses necessarily incurred in the execution of process delivered to him. People
ex rel, Wood v. Denton, 41 App. Div. 386; 58 N. Y. Supp. 722. And an expenditure
by the county clerk of Kings county in arranging papers which were scattered and
oe ty haga! oe oe of a large detrei cases in his office, without fault
on his ; z o be a proper . j
= ope Dik ee cts lia y charge. Worth v. City of Brooklyn,

Services. In the discharge by a county officer of the duties of his office
it is evident that he will often be compelled to expend moneys for the per-
formance of services which he is not required by law to personally perform.
The above subdivision refers to disbursements necessarily expended for such
services, and not money paid for work which it is his duty to himself perform.
Matter of Walsh v. Supervisors of Albany Co., 20 App. Div. 489; 47 N. Y, Supp.
AUDIT BY BOARD; COUNTY CHARGES. 43
County Law, § 240.

of the calendar for a term of the supreme court held within the county,
or of the county court, and including in any county where the duties of
county judge and surrogate are performed by the same officer, except in the
county of Herkimer, the actual and necessary expenses of such ‘officer
and his clerk, incurred in holding court, by authority of the board of super-
visors, at a place or places other than the county seat or place of residence
of such office or clerk.

10. All items of coroner’s compensation and the accounts of the coroners
of the county for such services as are not chargeable to the person employ-
ing them 375

11. The accounts of the county clerks, for the services and expenses
incurred under the law respecting elections, other than for militia and
town officers ;*¢

12. The sums required to pay the bounties authorized by resolution of
the board of supervisors for the destruction of wild animals and noxious
weeds, unless the supervisors, by resolution, direct that any such bounties
shall be town charges.

13. The compensation of the members of the board of supervisors ;17

14. The charges and accounts for services rendered by justices of the

 

35. In this case it was held that section 3280 of the Code of Civil Procedure
(reenacted in Judiciary Law, § 252, and Public Officers’ Law, § 67) providing that:
“Bach clerk of the court must perform all the duties required of him, in the
course and practice of the court, without fee or reward, except as expressly pre-
scribed by law,” was not repealed by the subsequent enactment of the above sub-
division, and that therefore a county clerk is not entitled to have allowed to him
by the board of supervisors as a county charge moneys which he paid to his as-
sistants for assorting and arranging jury slips.

Re-indexing county records.— Unless authorized by special statute, boards of
supervisors have no power to make a contract to pay a county clerk for re-index-
ing deeds and mortgages recorded in the office of such clerk. Wadsworth v. Super-
visors of Livingston County, 217 N. Y. 484, 112 N. E. 16.

15. Fees of coroners, generally. As to recovery of value of services from county,
see People ex rel. Cosford v. Supervisors of Niagara Co., 15 N. Y. Supp. 680; 38 N.
Y. St. Rep. 964. But coroners cannot employ an expert to make a chemical analysis
of the remains of a deceased person, or of other substances in connection with the
cause of his death. Doremus v. Mayor, etc., 6 Daly, 121. The expense incurred by
we district attorney for such a purpose would be a proper county charge. See
sub. 2 of the above section, ante p. 37. A board of supervisors cannot audit an
account unless he presents a statement of property and money found on the body
of a deceased person, as provided by Code Crim. Proc., sec. 788, post, p. 203.

16. Election expenses. The expense of printing and delivering official ballots,
sample ballots and cards of instructions, poll books, tally sheets, return sheets for
inspectors and ballot clerks, and distance markers, at an election where no town
meeting or village election is held at the same time is a charge upon the county.
If a town meeting or village election is held at the same time as a general elec-
tion the expense is to be apportioned by the county clerk upon the county, town
and village. See Election Law, § 318, as amended by L, 1918, ch. 323; § 319, as
amended by L. 1915, ch. 678, and L. 1918, ch. 323; Jewett’s Election Manual, 1918.

Cost of printing election ballots—A claim presented by the county clerk for the
printing of election ballots should be audited by the board of supervisors; but said
board cannot be compelled by certiorari to audit such a bill at the same amount
as they allowed on a prior audit. People ex rel. Newburg News P. & P. Co. v.
Board of Supervisors, 140 App. Div. 227, 125 N. Y. Supp. 105.

17. Compensation of members of boards of supervisors. See County Law, sec 23,
ante, p. 17.
44 COUNTIES; BOARDS OF SUFERVISORS.

County Law, § 240.

peace in the examination of felons, and in other criminal proceedings as
mentioned in section one hundred and seventy-one of the town law, when
not otherwise provided for ;**

15. The expenses necessarily incurred, and sums authorized by law, or
by the board of supervisors, pursuant to law, to be raised for any county
purpose ;*°

 

justi in criminal actions and proceedings, see Town Law, sce.
Po rca ee oir : Not entitled to ties for making returns required
in cases prosecuted by indictment. State Comptroller’s Opinions (1917), 11 St.
Dept. Rep. 582.

19. Expenses for any county purpose. This subdivision seems to authorize
generally the charge against the county of any expense necessarily incurred by
the board of supervisors in protecting the interests of the county. But no such
charge will exist unless the act, in connection with which the expense was in-
curred, was authorized and done pursuant to statute. People ex rel. Hadley v.
Supervisors of Albany Co., 28 How. Pr. 22. See also People v. Supervisors of
Nisgara, 78 N. Y. 622.

Authorized by law. The legislature has power to fix a maximum amount to
be paid for a county improvement as it has to fix an exact amount. People ex
rel. McSpedon v. Haws, 21 How. Pr. 178. No court can audit a claim against a
county, or order it paid, unless authorized by statute. Matter of Tinsley, 90
N. Y. 231.

Boards of supervisors cannot bind their counties by an act not within the
limits of the express powers conferred upon them by statute; they cannot allow
a claim on any notions of their own as to its equity. Chemung Canal Bank v.
Supervisors of Chemung, 5 Den. 517.

Audit by the board of supervisors of a claim does not have the legal effect of
making it a county charge; what are county charges are fixed by law, and when
the board determines the amount thereof, their fiat is conclusive inasmuch as
they act judiciaily. People ex rel. Tracy v. Green, 47 How. Pr. 382.

Expenditures for a survey of railroads and corporate property are not a
county charge. ‘Rept. of Atty. Genl. (1902) 278.

Highway expenses. The common-law rule that the care and repairs of roads
is a charge against the county does not obtain in this state. Unless authorized
by statute highway expenses are not chargeable against the county. People ex.
rel. Slosson v. Board of Supervisors, 116 App. Div. 844, 102 N. Y. Supp. 402.

Contingent expenses. Services rendered by an officer specially for the
benefit of the county, if there is no specific provision of law for payment,
constitute a part of the contingent charges of the county, to be audited by the
board. Bright v. Supervisors of Chenango Co., 18 Johns 242; Doubleday v.
Supervisors of Broome Co., 2 Cow. 533; Brady v. Supervisors of New York
Co., 2 Sandf. (Super. Ct.) 460; affd., 10 N. Y. 260. But it would be otherwise
where it appears to have been the intention of the legislature that no compen-
sation should be made. Mallory v. Supervisors of Cortland Co, 2 Cow. 531.

Discount allowed to a bank by an employee of a county on discounting
a claim for services is not a county charge. People ex rel. Johnson v. Super-
visors of Ulster County, 43 Hun, 385.

Buildings and other county property. The expense of equipping and fur-
nishing a county jail is a county charge. Schenck v. Mayor, etc., of New York,
67 N. Y. 44. The necessary expenses incurred in keeping in repair and in a
condition for use, the court rooms which the county is required to provide, or
AUDIT BY BOARD; COUNTY CHARGES. 45

County Law, § 240.

16. The reasonable costs and expenses in proceedings before the gov-
ernor for the removal of any county officer upon charges preferred
against him including the taking and printing of the testimony therein.
This subdivision shall also apply to the county of New York [Subd.
16, as amended by L. 1922, ch. 384.]

 

any other property of the county, are county charges. People ex rel. McSpedon
v. Stout, 23 Barb. 349; 13 How. Pr. 314.

Court rooms and furniture. It is provided by section 42 of the County Law,
as amended by L. 1913, ch. 394, L. 1915, ch. 443, and L, 1919, ch. 50, that: “ Ex-
cept where other provision is made therefor by law, the board of supervisors of
each couni‘y must provide each court of record therein, and the resident judges or
justices thereof, with proper and convenient rooms and furniture, together with
court attendants, fuel, liglts, telephone, postage and stationery suitable and suffi-
cient for the transaction of its business. If the supervisors shall neglect so to do,
the court may order the sheriff to make the requisite provision; and the expense
incurred by him in carrying the order into effect, when certified by the court, is a
county charge.”

In the case of People ex rel. Westbrook v. Supervisors of Montgomery County,
34 Hun 599, it appeared that the board of supervisors of Montgomery county had
provided a proper and convenient room for the use of the surrogate in the county
court house at Fonda, and refused to provide one at Amsterdam when requested
so to do by the surrogate. Thereupon the surrogate made an order for his office
at Amsterdam, and directed the sheriff to furnish a suitable office and furniture
therefor at that place, Upon an application to compel the board of supervisors
to pay the rent and expenses thereby incurred, it was held that as the board had
provided a proper office and furniture, it could not be compelled to pay for any
other. :

Court expenses. As there are contingent expenses necessarily incurred in the
holding of courts, for which there is no express statutory provision, and as the
board of supervisors must provide a fund to be placed in the hands of its county
treasurer “to pay such contingent expenses as may become payable from time to
time,” it necessarily follows that a court held in a county must determine what is
a lawful and proper charge upon such fund. People ex rel. Cole v. Supervisors of
Greene Co., 15 Abb. N. C. 447; 2 How. Pr. N. S. 483; affd. 39 Hun 299.

20. Constitutionality. This subdivision does not offend article VIII, § 10, of the
Constitution. Gavin v. Supervisors (1917), 221 N. Y. 222, 116 N. E. 996, affg. 174
App. Div. 900, 159 N. Y. Supp. 1114.

Removal of county offices. Sestion 1 of art. 10 of the constitution provides that
the governor may remove a sheriff, county clerk, district attorney and register
within the terms for which he shall have been elected, giving to such officer a copy
of the charges against him, and an opportunity of being heard in his defense. Sec-
tions 33 and 34 of the Public Officers’ Law, provide for the removal by the governor
of a county treasurer, county superintendent of the poor, coroner or register of a
county. See also, section 35a of the Public Officers’ Law, as added by L. 1917, ch.
416, as to removal of perscns helding public office for treasonable acts or utterances.

The costs and expenses of proceedings for the removal of county officers by the
governor, are by the above subdivision made a county charge. Such costs and
expenses include counsel fees in the prosecution of the charges. People ex rel.
Benner v. Supervisors of Queens County, 39 Hun 442. And in this case it was also
held that the attorney general may employ special counsel to prosecute the charges,
and the expense of such employment is a county charge under the statute. Such
costs are a county charge although the proceedings were instituted by the presi-
dent of a taxpayers’ association, who appeared as an individual complainant.
People ex rel. Smart v. Board of Supervisors, 66 App. Div. 66, 72 N. Y. Supp. 568.

In auditing and allowing the costs and expenses incurred in proceedings for the
removal of a county officer the board of supervisors may, when a claim is pre-
sented therefor, examine the items thereof and determine whether or not such
costs and expenses were reasonable, and whether or not they were necessarily
incurred. People ex rel. Benedict v. Supervisors of Oneida County, 24 Hun 413.
46 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 240.

17, All judgments duly recorded against a county ;*

18. All damages recovered against, or costs and expenses lawfully in-
curred by a'county officer in prosecuting or defending an action or pro-
ceeding brought by or against the county, or such officer, for an official
act done, when such act was done, or such action or proceeding was
prosecuted or defended pursuant to law, or by authority of the board of
supervisors; and any such damages so recovered, or costs and expenses
incurred by any such officers, for any act done in good faith in his
official capacity, without any such authority, may be made a county
charge by a majority vote of all the members elected thereto.”

 

A district attorney who has successfully met the charges against him in a pro-
ceeding before the Governor for his removal from office is entitled to charge to the
county his expenses for counsel fees and various disbursements incurred in the
defense and the supervisors will be required to audit the claims. Said statute,
being purely prospective and not retroactive, is constitutional and does not involve
a grant of the public moneys of a municipality in the aid of a private individual.
People ex rel. Gagan v. Purdy (1916), 173 App. Div. 350, 159 N. Y. Supp. 246.

Expense of prosecution resulting in removal of sheriff; when counsel fees are
county charge. The reasonable expense of residents of a county in employing
counsel to prosecute before the Governor a proceeding voluntarily brought by them,
resulting in the removal of a sheriff from office upon the ground that he was unfit
to discharge his duties, is an expense for a county or public purpose within the
meaning of this section and the board of supervisors of the county will be
required by mandamus to audit such claim as a county charge. It seems, that if
the accusation against such officer were frivolous or not presented in good faith,
the expense of the prosecution would not be a county charge, and that the audit
thereof would be a gift and within the prohibition of section 10 of article 8 of the
State Constitution. People ex rel. Nash v. Board of Supervisors (1914), 164 App.
Div. 89, 149 N. Y. Supp. 572.

The reasonable costs and expenses incurred by a sheriff in the successful defense
of charges made to the Governor against him in a proceeding for his removal from
office are legal county charges, and when his claim therefor has been duly allowed
and audited by the board of supervisors a taxpayer’s action will not lie to recover
the money paid pursuant to such audit. Gavin v. Supervisors of Rensselaer (1916),
93 Mise. 264, 157 N. Y. Supp. 973, affd. 157 App. Div. 973, 159 N. Y. Supp. 1114.
There is no greater objection to the payment of the costs and expenses incurred by
a public officer in defending himself against charges of misconduct than there is to
the payment of costs and expenses incurred in the prosecution of such charges, and
the board of supervisors may properly allow such charges. Gavin v. Board of Super-

visors (1917), 221 N. Y. 222, affg. 174 App. Div. 900, 159 N. Y. Supp. 1114. But this rule
only applies where the ollicer hax made a su.cessful defense against the charges. [People
ex rel. Moss y. Board of Supervisors (1917), 178 App. Div. 716, 165 N. Y. Supp. 511, ep-
peal dismissed 221 N. Y. 367.

21. Judgments against a county. Section 70 of the General Municipal Law, post, pro-
vides that where a final judgment Las been recovered against a municipal corporation
and the execution thereof is not stayed, the treasurer of such corporation shall pay
such judgment upon the production of a certified copy of the docket thereof.

22, Payment of counsel fees. Since a bonrd of supervisors has authority to institute
proceedings in behalf of the county, the fair charges of the attorneys and counsel em-
ployed by them in such proceedings are a legal demand against the county, although the
board may misjudge in regard to the county having a cause of action in a particular
case. Gillespie v. Broas, 23 Barb. 370.

The district attorney of any county in which a capital or other criminal action is to be
tried, may, with the approval of a county judge, employ counsel to assist him on such
trial; and the costs and Ve thereof are a charge upon the county. See County
Law, sec, 204, post, p, 143. Superintendeuts of the poor may employ counsel and their
compensation is a county charge. Neary v. Robinson, 98 N. Y. 81.

Costs in equalization proceedings. The board of supervisors may employ counsel to
defend its equalization, and the expense thereof is a contingent charge against the
county. People v. City of Kingston, 101 N. Y. 82, 96.

Cost in action against county treasurer. The amount of a judgment for costs against
a county treasurer, in a proceeding to review the action of such oflicer in refusing to
issue a liquor tax certificate is a proper charge against the county. Report of Attorney-
General, 1913, Vol. 2, p. 532.
AUDIT; BY BOARD; COUNTY CHARGES. 47
County Law, § 240.

19. In any county, if a prisoner, actually confined in jail, makes oath

 

Expense of town litigation not county charge. The expenses of a litiga-
tion, arising out of the action of a town in assessing a railroad at a rate fixed and
directed by. the Board of Supervisors, are not a county charge; an agreement by
the Board of Supervisors to pay them is ultra vires and cannot be enforced by the
town. People ex rel. Sweet v. Board of Supervisors of St. Lawrence Co., 101
App. Div. 327, 91 N. Y. Supp. 948.

Liability for injuries. Though a county have the duty of maintaining a
bridge, it is not liable to a person sustaining an injury by reason of neglect of
this duty; the right of action must have been given by statute. Ensign v.
Supervisors of Livingston Co., 25 Hun 20.

Other county charges. Statutes imposing certain obligations upon county
officers frequently expressly provide that the expenses incurred shall be a county
charge. The above section of the County Law is general in its purpose and includes
as charges against the county all claims which have been by such statutes declared
to be county charges. Reference should be made to the various chapters and
sections of this work relating to the powers and duties and liabilities of county
officers for the purpose of determining what may be declared as proper county
charges.

It may be well, however, in this connection to cite a few special statutes in which
claims for services and expenses are specially prescribed to be county charges.

By L. 1899, ch. 700, it was provided that any county official who shall have been
successfully defended in proceedings to remove him from office might present a
claim for his expenses in such proceedings and have the same audited and allowed
by the board of supervisors. But in the case of Matter of Strauss, 44 App. Div.
425; 61 N. Y. Supp. 37, and Matter of Jensen, 44 App. Div. 509; 60 N. Y. Supp.
933, this act was declared unconstitutional, since the county being under no legal
or moral obligation to pay such a claim, it was in the nature of a gift to the
claimant.

Special deputy attorney-general, assigned by attorney-general, when
required by governor, to prosecute specified criminal charges, is to be paid by
county. See Executive Law, § 62, subd. 2, as amended by L. 1911, ch. 14. Deputy
so assigned may not compel payment of compensation until the amount thereof
has been fixed by the attorney-general. People ex rel. Osborne v. Westchester Co.,
168 App. Div. 765, 154 N. Y. Supp. 266. i

County Detective. By L. 1897, ch. 62, as amended by L. 1900, ch. 62, and L.
1911, ch. 598, the county judge of a county containing a population of not less than
one hundred and twenty-five thousand inhabitants, and adjoining a county con-
taining a population of not less than one million inhabitants, may appoint a county
detective for such county. This act would seem to apply only to the counties of
Westchester and Queens. The compensation of a county detective appointed there-
under is made a county charge.

Costs and compensation of counsel in murder cases. Where services are ren-
dered by counsel assigned to defend a person indicted for an offense which is
punishable by death, the court in which the defendant is tried may allow such
counsel his expenses, and also reasonable compensation for his services not exceed-
ing the sum of $500, which allowance is a charge upon the county in which the
indictment is found, to be paid out of the court fund. See Code Crim. Proc., sec.
308, as amended by L. 1918, ch. 242, and L. 1919, ch. 283. Where the defendant
is convicted of a crime the clerk of the court in which the conviction was had
shall within two days after a notice of appeal shall be served upon him notify the
stenographer that an appeal has been taken whereupon the stenographer shall
within ten days after receiving such notice deliver to the clerk of the court a copy
of the stenographic minutes of the entire proceedings of the trial certified by the
stenographer as an accurate transcript of such proceedings. Such copy shall be
filed by the clerk in his office and shall constitute the minutes of the court of the
trial and be included in the judgment-roll as provided by section four hundred and
eighty-five of this act. The expense of such copy shall be a county charge pay-
able to the stenographer out of the court fund upon the certificate of the judge
presiding at the trial. See Code Crim. Proc., sec. 456, as amended by L. 1916, ch. 230.
48 COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 240.

before the sheriff, jailer, or deputy-jailer, that he is unable to support

 

Stenographers’ fees. A court stenographer is entitled to his fees for min-
utes furnished to the district attorney or attorney-general in a criminal case,
which fees are a county charge and must be paid by the county treasurer
like other county charges. Judiciary Law, § 303, amended by L. 1912,
ch. 202.

The board of supervisors of each county must provide for the payment of
the sums chargeable upon the treasury of a county for the salary, fees, or
expenses of the stenographer or assistant stenographer; and all laws relating
to raising money in a county by the board of supervisors thereof, are appli-
cable to those sums. :

Supreme Court stenographers in second district. Judiciary Law, section
161, subdivisions 3 (as amended by L. 1921, ch. 674), and 3a provide that:.
“The justices of the supreme court for the second judicial district, who do
not reside in the county of Kings, or a majority of them, may appoint, and
may at pleasure remove, seven stenographers. The justices of the supreme
court residing in the county of Kings, or a majority of them, may appoint,
and at pleasure remove, a typewriter cperator for the purpose of copying
their minutes and doing any other confidential work which may be required
by said justices or the clerk of the court. The salary or compensation to be
paid to such typewriter operator shall be fixed by said justices, and the ex-
pense thereof shall be raised with the annual tax levy as a county.charge.”

Judiciary Law, section 309, subdivisions 1 and 2, provide that: ‘‘The sten-
ographers appointed pursuant to section one hundred and sixty-one of this
chapter, by the justices of the supreme court, residing in the county of
Kings, shall severally attend, as directed by the respective justices appoint-
ing them, the terms of the appellate division and trial and special terms of
the supreme court, in the county of Kings. Each of the stenographers ap-
pointed pursuant to said section one hundred and sixty-one, by the justices
of the supreme court for the second judicial district, who do not reside in
the county of Kings, must attend as directed by the justice appointing him
the trial and special terms of the supreme court he!d in the counties of Suf-
folk, Queens, Nassau and Richmond, or either of them, and, when thus not
officially engaged, the stated terms of the county court, in each of those
counties.”

-Salary of stenographer. Section 316 of the Judiciary Law, subdivision 2,
as amended by L. 1910, ch. 180, L. 1913, ch. 491, and L. 1919, ch. 556,
provides that: ‘‘Each stenographer appointed as prescribed in section one hun-
dred and sixty-one of this chapter, by the justices of the supreme court for
the second judicial district who do not reside in the county of Kings, shall
receive an annual salary of four thousand two hundred dollars. To make
up and pay the salaries specified in this subdivision, the board of supervisors
of each of the counties in said district must annually levy, and cause to be
collected, as a county charge, a proportionate part of the sum necessary to
pay the same, to be fixed by the comptroller of the state, in accordance with
the amount of the taxable real and personal property in each county, as
shown by the last annual assessment-roll therein. The treasurer of each
county must pay over the sum so raised, to the comptroller of the state, who
must thereupon pay the salary of each stenographer, in equal quarterly pay-
ments, under the direction of the justice making the appointment.”

Court stenographers in other districts. Section 161 of the Judiciary Law,
as amended by L. 1910, ch. 60, L. 1916, chs. 128, 344, and L. 1921, chs.
658, 674, provides that:

1. In addition to the stenographers appointed under special laws, the jus-
tices of the supreme court, or a majority of them, for each judicial district,
excepting the first, second, third, fifth, sixth, seventh, eighth and ninth, shall
appoint, and may at pleasure remove, three stenographers.

2. The justices of the supreme court residing in the county of Kings, or a
majority of them, may appoint, and may at pleasure romove, sixteen sten-
ographers. -
AUDIT BY BOARD; COUNTY CHARGES. 49

County Law, § 240.

himself during his imprisonment his support is a county charge. This

 

The justices of the supreme court for the second judicial district who do
not reside in the county of Kings, or a majority of them, may appoint, and
may at pleasure remove seven stenographers.

3-a. The justices of the supreme court residing in the county of Kings, or-
a majority of them, may appoint, and at pleasure remove, a typewriter oper-
ator for the purpose of copying their minutes, and doing any other confiden-
tial work which may be required by said justices or the clerk of the court.
The salary or compensation to be paid to such typewriter operator shall be
fixed by said justices, and the expense thereof shall be raised with the annual
tax levy as a county charge. :

4, The justices of the supreme court, or a majority of them, for the third
judicial district, shall appoint, and, may at pleasure remove, four sten-
ographers of the supreme court for such district.

5. Each of the justices of the supreme court assigned to hold special terms
in the third and fourth judicial districts for the hearing of contested motions,
and the trial of issues of fact and law, may appoint, and at pleasure remove,
a stenographer.

6. The justices of the supreme court, or a majority of them, for the fifth
and seventh judicial districts, respectively, shall appoint, and may at pleasure
remove, five stenographers of the supreme court for each of such districts.

7. The justices of the supreme court for the eighth judicial district shall
appoint, and may at pleasure remove, eleven stenographers of the supreme
court for such district.

8. The justices of the supreme court for the ninth judicial district, or a
majority of them, may appoint the stenographers of said court, the number
or said stenographers not to exceed the number of all the justices in said

istrict.

The present stenographers of the supreme court for such district, and
those who may hereafter be appointed, shall hold office until removed by the
said justices.

9. The justices of the supreme court for the fourth asd sixth judicial dis-
tricts, respectively, shall appoint, and may at pleasure remove, four stenog-
raphers of the supreme court for such district.

Judiciary Law, section 309, subdivisions 3 and 4, provide that: ‘‘Each of
the stenographers appointed pursuant to said section one hundred and sixty-
one by the justices of the supreme court for the ninth judicial district, must
attend, as directed by the justice appointing him, the trial and special terms
of the supreme court held in the counties of Westchester, Putnam, Dutchess,
Orange and Rockland or either of them, and when not thus officially engaged,
the stated terms of the county court in each of those counties. Each of the
stenographers appointed pursuant to said section one hundred and sixty-one,
by the justices of the supreme court for each judicial district except the first,
second and ninth, shall attend such special and trial terms of the supreme
court in his judicial district as he shall be assigned to attend by the justices
of the supreme court, or a majority of them, for such district.”

Salary of stenographers. Judiciary Law, section 313, as amended hy
L. 1910, ch. 180, L. 1913, ch. 491, and L. 1919, ch. 556, provides that
“Bach of the stenographers appointed by the justices of the supreme court
pursuant to subdivisions one, four, six, seven and eight of section one hun-
dred and sixty-one of this chapter shall receive an annual salary of four
thousand two hundred dollars, to be paid by the comptroller of the state in
equal quarterly payments, upon the certificate of a justice of the supreme
court of the judicial district for which he shall have been appointcd. To
provide the means to pay such salary, the comptroller of the state shall, on
or before the first day of November in each year, fix and transmit to the cierk
of the board of supervisors in each of the counties in said district a state-
ment of the sum to be raised by such board of supervisors, in
accordance with the amount of taxable real and personal property
30 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 242.

subdivision shall also apply to the county of New York. [Sub. 19 added
by L. 1909, ch. 16.]

20. The expense of the publication of notices of appointment of terms
of the county court is a county charge. [Sub. 20 added by L. 1909, ch.
16.]

21. The fees of a county clerk or of the clerk of any court of record
for making and certifying a copy or copies of any record, document or
paper, when ordered so to do by the state comptroller, pursuant to section
four of the state finance law, shall be a charge upon the county where
such records, documents or papers are recorded or filed. This subdivision
shall also apply to the county of New York. [Sub. 21 added by L. 1909,
ch. 16. County Law, § 240; B. C. & G. Cons. L., p. 825.]

§ 6. COUNTY CHARGES, HOW RAiSED.

The moneys necessary to defray the county charges of each county
shall be levied on the taxable property in the several towns therein, in the
manner prescribed in the general laws relating to taxes; and in order to
enable the county treasurer to pay such expenses as may become payable
from time to time, the board of supervisors shall annually cause such
sum to be raised in advance in their county, as they may deem necessary
for such purpose.?? [County Law, § 242; B. C. & G. Cons. L., p. 830.]

 

in each of said counties as shown by the last annual assessment roll therein.
The boards of supervisors in each of such counties shall annually levy and
cause to be collected in such county and to be paid over to the county
treasurer thereof, the sums fixed by the comptroller to be raised by such
board of supervisors and such county treasurer shall pay such sum to the
comptroller of the state for the payment of said salaries.”

Expenses. Judiciary Law, section 314, as amended by L. 1910, ch 180, pre
vides that: “Bach of the stenographers specified in the last section is also
entitled to payment of his actual and necessary expenses, while attending court,
including stationery, and ten cents for each mile for his actual travel, between
the place of holding each term and his residence, going and returning, or from
term to term, as the case may be. The amount thereof must be paid upon the
certificate of the judge holding or presiding at the term by the treasurer of tne
county where the term is held, from the court fund, or the fund from which
jurors are paid. But mileage shall not be computed beyond the bounds of the
judicial district, except where the usual line of travel, from one point to another
within that district, passes partly through another judicial district.

Judiciary Law, section 164 provides that: “The amount to which the
etenographers of the supreme court are entitled for expenses, as prescribed
in section three hundred and fourteen of this chapter, must be certified by
the judge holding or presiding at the term.”

Levy for county charges must be made by the board of supervisors. Chemung
Canal Bank v. Supervisors of Chemung, 5 Den. 517; People ex rel. Downing
v. Stout, 23 Barb. 338.
GENERAL POWERS OF BOARDS OF SUPERVISORS. 51

Explanatory note.

CHAPTER IV.

GENERAL POWERS OF BOARDS OF SUPERVISORS; PUBLICATION OF
SESSION LAWS; REMOVAL OF COUNTY BUILDINGS; OTHER
POWERS.

EXPLANATORY NOTE.

General Powers of Board.

Generally speaking boards of supervisors only have the powers con-
ferred by the statute. Their powers are limited to those so conferred.
If they act beyond statutory limitation their acts are void, the same
as where the legislature exceeds the powers conferred by the consti-
tution. There will be cases where the acts of boards do not come
within the expressed language of a statute, but will nevertheless be
sustained because within the implied powers conferred by such statute.
In other words, as expressed by the court of appeals in the case of
People ex rel. Wakely v. McIntyre, 154 N. Y. 628, 49 N. E. 70,
boards of supervisors, in the exercise of the legislative powers con-
ferred upon them by the constitution, are not confined in their action
to the bare letter of the statute, but may in the exercise of a sound dis-
cretion, act under powers that are to be fairly implied. However this
may be, some statute must be found either expressly or impliedly
authorizing the act sought to be accomplished.

It will be noticed that many of the powers conferred upon boards
of supervisors are specified and declared in § 12 of the County Law.
Of course, this section is not inclusive of all powers to be exercised
by such boards. References are made in many statutes, pertaining
to many subjects, giving boards certain powers and duties. Many of
these statutes are contained in this chapter, but many more of them
will be found in chapters covering the subjects to which they relate.
It will not be necessary in this preliminary note to explain the general
powers conferred by § 12 of the County Law. The section itself
must be considered, together with the cases construing the provisions
of that section. It may be appropriately suggested that this section
is the most comprehensive of those laws conferring powers upon boards of
supervisors, and it will be found necessary to constantly refer to it.
52 COUNTIES; BOARDS OF SUPERVISORS.

Explanatory note.

Designation of Newspapers.

One of the duties of a board of supervisors, fruitful of much con-
troversy and litigation, is the designation of newspapers for the publi-
cation of session laws and concurrent resolutions. All general laws,
and all local laws affecting the county, are to be published in the
newspapers designated. Two newspapers are to be designated, one by
the members of the board representing the majority party, and one by
the members representing the minority party. It is not the politics
of the member which controls his right to vote for the newspaper. If
he was elected on a prohibitionist or independent ticket he cannot vote
on this question with the republicans because he believes in the prin-
ciples of, and is affiliated with, the republican party. It is the party
which he represents and by which he was elected which determines his
right to vote for the designation of a newspaper for the publication of
session laws.

The paper designated must be recognized throughout the county
as representing the party for which it is designated. A paper which
has not fairly and for a number of elections advocated the election
of the ticket nominated by either one or the other of the parties is
not entitled to designation. If there is only one party represented
in the board, the paper last designated by the other party, is to con-
tinue to publish.

Section 1. General powers of boards of supervisors.

2. Legalization of informal acts of town meeting or village election.
8. Concurrent resolutions, designation of newspapers for publica-
cation of. .

4-5. Publication of concurrent resolutions.
6. Newspapers designated to publish election notices and official
notices
7. County buildings, loeation of may be changed; petition for change
beyond boundaries of village or city.
8. Action of board upon presentation of petition for change of loca-
tion.
9. Submission of question of removal of county buildings to vote
of people.
10. After destruction of poor-house, petition for change of site.
11. Board may establish fire district outside of an incorporated vil-
lage; fire commissioners; levy of taxes for fire protection.
12. Effect of incorporation of village within limits of fire district.

a
GENERAL POWERS OF BOARDS OF SUPERVISORS. 53
County Law, § 12.

SECTION 13. Soldiers’ Monument, board of supervisors may appropriate moneys
for the erection of.
14. Temporary loans; issue of obligations therefor.
14a. Supervisors to furnish funds for necessaries for courts of record.
15. Establishment of county laboratorics.
16. County attorney.

§ 1. GENERAL POWERS OF BOARDS OF SUPERVISORS.

The board of supervisors shall :*

1. County property. Have the care and custody of the corporate
property of the county.”

 

1. General powers of board. The constitution (art. ITI, sec. 27), empowers the
legislature by general laws to confer upon boards of supervisors of the counties
such further powers of local legislation and administration as it may from time
to time deem expedient. Such boards are legislative bodies, in many respects of
limited powers; but where they have jurisdiction, they may act for the county
precisely as the legislature may act for the state. If they act without juris-
diction their acts are void, the same as is the action of the legislature when in
violation of any provision of the constitution. People ex rel. Hotchkiss v. Super-
visors'of Broome Co., 65 N. Y. 222.

The board of supervisors of a county is vested with such powers of local legis-
lation and administration as are conferred upon it by the legislature. Its power
is co-extensive with the power expressly granted to it or which is necessarily or
reasonably implied from the powers so expressly conferred. Wadsworth v. Super-
visors of Livingston (1916), 217 N. Y. 484, 112 N. E. 161.

The acts of a board of supervisors within their statutory powers are legis-
lative and not judicial, and they cannot be reviewed by certiorari. People ex
rel. O’Connor v. Supervisors of Queens County, 153 N. Y. 370; 43 N. BH. 790;
People ex rel. Village of Jamaica v. Supervisors of Queens, 131 N. Y. 468; 30
N. E. 488. :

Boards of supervisors, in the exercise of the legislative powers conferred upon
them by the constitution, are not confined in their action to the bare letter
of the statute enacted to carry out the constitutional provisions, but may, in
the exercise of a sound discretion, act under powers that are to be fairly
implied. Within the limits of the powers constitutionally delegated by the
legislature, each board is clothed with the sovereignty of the state, and is
authorized to legislate as to all details precisely as the legislature might have
done in the premises. Woods v. Supervisors, 136 N. Y. 403; People ex rel.
Wakely v. McIntyre, 154 N. Y. 628, 49 N. E. 70. In this case Bartlett, J., said:
“The evident intent of the framers of the constitution in permitting the legis-
lature to delegate certain of its powers to the local boards was to carry out a
public policy which assumes that the interests of a particular locality are
best subserved by those who are familiar with its affairs. It would be quite
impossible for a board of supervisors to properly legislate in regard to local
affairs, if it were not at liberty to resort to those implied powers, within the
limits of its jurisdiction, vested in the legislature of the state.” But, as was
remarked by Parker, Ch. J., in the case of Weston v. City of Syracuse, 158 N. Y.
274, 287, while it is true that a board of supervisors is clothed with the
sovereignty of the state to legislate as to all details, within the limits of its
delegated powers, “ there are many duties devolved upon boards of supervisors
by the legislature which are not legislative in character, but are administrative,
and in some cases quasi judicial in nature, and not at all impressed with the
character of sovereignty.”

2. County property. As to change in the location of county buildings, see
County Law, sec. 31, post, p. 69. Records of conveyances in the office of the
county clerk are not county property, and even if so regarded, the board is
54 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 12

2. Audit. Audit all accounts and charges against the county, and
direct annually the raising of sums necessary to defray them in full#

3. Town charges. Annually direct the raising of such sums in each
town as shall be necessary to pay its town charges.*

4. Taxes. Cause to be assessed, levied and collected, such other as-
sessments and taxes as shall be required of them by any law of the
state®

5. Have power to fix the amount and the time or manner of payment

 

not authorized by the above subdivision to purchase new indexes for such
conveyances, as sucn subdivision does not apply to the acquisition of new
property. People ex rel. Welch v. Nash, 3 Hun, 535; affd. 62 N.Y. 484.
But in the case of Schenck v. Mayor, ete., of New York, 67 N. Y. 44, it was
held that a board of supervisors has power to purchase, by virtue of its
general and incidental powers, supplies to equip the county jail.

A county owning a farm is subject to the same care in its management
as is imposed on other owners of real estate, and hence is liable for nuisance
thereon. Lefrois v. County of Monroe, 24 App. Div. 421, 426, 48 N.Y.
Supp. 519.

Board cannot lease premises for an armory except in compliance with state
military code. Boller v. New York, 40 Super. Ct. 5238.

8. Audit of claims against the county, see preceding chapter.

4. Town charges, what are. See Town Law, sec. 170, post. Audit of claims
against the town by the town board, see Town Law, sec. 1338, post, and notes
thereunder. Appeal from audit by town board of fees in criminal proceed-
ings to board of supervisors, see Town Law, sec. 177, post;and as to fees of
officers in criminal proceedings, see Town Law, secs. 107, 171, post. Ac-
counts against towns to be itemized and verified, see Town Law, sec. 175,
post. Abstracts to be made by town auditors of accounts audited against a
town, and presented to board of supervisors. See Town Law, sec. 155, post.
The supervisors are required to cause the amounts specified in the certifi-
cates of the auditors to be levied upon the towns, and they cannot review or
reverse the action of the auditors. Osterhoudt v. Rigney, 98 N.Y. 222, 234.

Duty to levy. Supervisors are required to cause the amounts specified in
the certificates of the town auditors to be levied upon the town, and they
cannot reverse or review the action of the auditors. Osterhoudt v. Rirney,
98 N. Y. 222, 234. When towns are divided, board cannot be compelled to
levy until debts are apportioned. People ex rel. McKenzie v. Supervisors,
30 Hun, 148.

Judgments against towns. Board cannot be compelled by mandamus to
Jevy the amount of a judgment against a highway commissioner upon the
property of the town. People ex rel. Everett v. Supervisors, 93 N.Y. 397,
affg. 29 Hun, 185. It is the duty of the board of supervisors to provide fos
the payment of judgments against the town and mandamus will lie upon
their neglect to do so. People ex. rel. Crouse v. Supervisors, 70 Hun, 560,
564, 24 N.Y. Supp. 397.

5. Purpose of tax. The legislature may delegate to a county board of
sunervisors the power to erect a bridge and to assess a tax on particular
GENERAL POWERS OF BOARDS OF SUPERVISORS. 55
County Law, § 12.

of the salary or compensation of any county officer or employee, except
a judicial officer or an officer or employee of a county tuberculosis hos-
pital and the term of office and mode of appointment, number and
grade of any appointive county officer and of the clerks, assistants or
employees in any county office, except an officer or employee of a
county tuberculosis hospital, notwithstanding the provisions of any
general®™ or special law fixing the amount of such salary or compensa-
tion or the time or manner of payment thereof, or fixing the term of
office or providing for the mode of appointment, number or grade of
any such county officer or of the clerk, assistants or employees in any
county office, or vesting in any other board, body, commission or officer
authority to fix such term of office, or the amount of such salary or
compensation or the time or manner of payment thereof or to provide
for the mode of appointment, number or grade of such officers or of
the clerks, assistants or employees in any county office; and the power
hereby vested in the board of supervisors shall be exclusive of any
other board, body, commission or officer, except the authorities of a
county tuberculosis hospital, notwithstanding any general or special
law. The salary or compensation of an officer or employee elected or
appointed for a definite term shall not be increased or diminished dur-
ing such term.® [Subd. amended by L. 1911, ch. 359, L. 1913, ch, 742,
and L. 1914, ch. 358.]

 

towns for the payment thereof. Town of Kirkwood v. Newbury, 122 N.Y.
571, affg. 45 Hun, 323. As to building and maintenance of bridges, see
Huggans v. Riley, 125 N.Y. 88.

A county is not bound to levy a tax for the default of a county treasurer,
until all remedy against him personally has been exhausted. Nat. Bank of
Ballston Spa v. Supervisors, 106 N.Y. 488.

5-a. Additional assistants for board of elections. It seems that a county
may employ additional assistants, and obligate itself to pay a greater amount
than provided by § 197 of the Election Law. Opinion of Atty. Gen. (1918),
15 State Dept. Rep. 529.

A board of supervisors has no power under this subdivision to increase
the compensation of commissioners of election beyond the limitation fixed
py section 190 of the Election Law. Opinion of Atty. Gen. (1919), 19 St.
Dept. Rept. 317.

6. Compensation of officers. The constitution (Art. III, sec. 28), provides
that a board of supervisors shall not “grant any extra compensation to any
public officer, servant, agent or contractor.” In the case of People ex rel.
Masterson v. Gallup, 65 How. Pr. 108; 12 Abb. N.C. 65, it was held that a
resolution of the supervisors of Albany county giving a clerk to the coroners
of such county did not violate this constitutional provision. But the Court
of Annecls held in this case on appeal that the board was not authorized by
56 COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 12.
o-a. Fix the amount of the undertakings required by law to be exe-
cuted by the clerk, district attorney and the superintendent of the poor

of the county. [Subd. added by L. 1914, ch. 63.]
6. May borrow money. Borrow money when they deem it necessary,

 

the above subdivision of this section of the County Law to appoint such
clerk, since such subdivision applies only to those officers which by pre-
existing law were entitled to a clerk. See 96 N.Y. 628; affg. 30 Hun, 501,
but reversing the case above cited.

When a district attorney is assigned a fixed salary, it is in lieu of all other
compensation, and he is not entitled to more on account of a new duty im-
posed upon him. People v. Supervisors, 1 Hill, 362. A board of super-
visors may not increase the compensation of its members for services per-
formed by them. Report of Attorney-General (1912), Vol. 2, p. 584.

The county treasurer is himself entitled to the fees allowed by law for re-
ceiving and paying state taxes to the state comptroller, and the board has no
power whatever over those fees. Supervisors of Monroe v. Otis, 62 N.Y. 88.
Unless otherwise expressly provided by law the fees of a county treasurer on
account of state taxes belong to him. Supervisors of Seneca v. Allen, 99 N. Y.
532. See, also, People ex. rel. Lawrence v. Supervisors, 73 N.Y. 173.

It was intended by the revision of the statutes in the County Law that the
county treasurers in those counties where, at the time of the enactment of
such law, such treasurers were salaried officers, that they should be retained
as such, and that the salary and compensation which the board of super-
visors had fixed for them should be in full of all compensation allowed them
for every official duty pertaining to their office, including their services for
the collection and paying over of state, school and court moneys. People
ex. rel. Conine v. Steuben Co., 183 N.Y. 114.

A county treasurer whose salary and compensation has, pursuant to the
provision of this section, been fixed by the board of supervisors “‘at the sum
of $1,500, and, in addition all fees allowed by law” is not entitled to retain
the fees and commissions for collecting and paying out bank taxes and court
and trust funds, as provided in section 24 of the Tax Law and section 3321
of the Code respectively, or for preparing conveyances of property sold for
taxes, as provided by section 154 of the Tax Law, but must account therefor.
Report of Attorney-General (1912), vol. 2, p. 258.

A county treasurer whose salary has been fixed by the board of supervisors
is net entitled to fees fixed by other statutes for receiving and disbursing
moneys referred to therein. Opinion of Atty. Gen. (1919), 20 St. Dept.
Rep. 307.

An additional allowance for clerk hire during the term of any county treas-
urer necessarily increases his compensation and is unauthorized. Report of
Atty. Gen., March 7, 1912.

Court attendants.— Where a board of supervisors passed resolutions em-
powering the sheriff to appoint ‘“‘three court officers’? and authorizing the
superintendent of the court house and annex to appoint “‘ten laborers” at
three dollars per day, thereby providing an equivalent of thirteen court at-
tendants which the sheriff of said county was entitled to appoint under Laws
of 1910, chapter 243, it was proper to recognize only the court attendants
selected by the sheriff, because the amendments to the County Law did not
divest the sheriff of his power of appointment. Halligan v. Runkle (1916),
174 App. Div. 497, 160 N. Y. Supp. 42,
GENERAL POWERS OF BOARDS OF SUPERVISORS. 5G@a
County Law, § 12.
for the erection or alteration of county buildings, and for the purchase

of sites therefor, on the credit of the county, and for the funding of
any debt of the county not represented by bonds, and issue county
obligations therefor, and for other lawful county uses and purposes ;?
and authorize a town in their county to borrow money for town uses

 

County superintendent of highways.—A board of supervisors has the abso-
lute and exclusive right to appoint a county superintendent of highways and
to fix his salary and provide for the payment of his necessary expenses, al-
though said salary at the time of the appointment exceeds the salary stated
in the notice published by the commission for the competitive examination
of candidates. MacDonald v. Ordway (1916), 219 N. Y. 328, revg. 174
App. Div. 518.

Superintendent of poor.—Personal expenses of a superintendent of the
poor are not a county charge unless the board of supervisors has expressly
so provided in fixing his salary or compensation. Matter of Strong v. Wil-
liams (1915), 167 App. Div. 714, 153 N. Y. Supp. 175.

Commissioner of charities and corrections, Erie county; increase of sal-
ary.— The legislature having failed to except from the county officers whose
salaries are to be fixed by the board of supervisors under the broad condi-
tions of this subdivision, notwithstanding any general or special law, the
office of commissioner of charities and corrections of Erie county, created
by L. 19138, ch. 293, and the salary fixed thereby, it must be held that it was
the legislative intent that the power to increase such salaries should remain
and be exercised by the board of supervisors in its discretion, and where the
manner of the exercise of such power has been lawful, the complaint in a
taxpayer’s action to restrain the payment of the salary will be dismissed.
Wende v. Board of Supervisors(1921), 115 Mise. 250.

Clerks and deputies.—Board can only fix the number, grades and pay of
clerks in county offices required by statute to have such clerks and deputies.
People ex rel. Masterson v. Gallup, 96 N. Y. 628. And see People ex rel.
Bacon v. Supervisors of Kings Co., 105 N. Y. 180, affg. 33 Hun 373.

Amendment of 1911 authorizes boards of supervisors to prescribe or fix
the mode or manner in which those authorized by law to appoint clerks, as-
sistants and employees in county offices should exercise the power and does
not confer upon boards of supervisors the power themselves to make such
appointments. Sheldon v. MacArthur, 73 Mise. 575; 133 N. Y. Supp. 194,
affd. 148 App. Div. 908.

Employment of attorney. A board of supervisors may employ an attorney
and counsel as the necessity arises, but it cannot appoint an attorney to act
for a term of one year at a yearly salary payable in quarterly installments,
and thus prevent their successors from exercising the right to change counsel.
Vincent v. County of Nassau, 45 Misc. 247, 92 N. Y. Supp. 32. But see
County Law, § 210, post, p. 81, as to employment of county attorney.

7. County bonds. As to limitations of indebtedness of county, and resolu-
tions authorizing the issue of obligations, see County Law, secs. 13, 14, post.
As to municipal bonds generally, see General Municipal Law, secs. 3, 5, 12,
post.

Highway and bridge bonds. Boards of supervisors to authorize issue of
bonds by towns for highways and bridges, Highway Law, § 97, post. County

 
56d COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 12.

and purposes on its eredit, and issue its obligations therefor, when and
in the manner, authorized by law.8 [Subd. amended by L. 1915, ch.
106. ]

7. Animals and weeds, destruction of. Make such law and regula-
tions as they may deem necessary for the destruction of wild and nox-
jous animals and weeds within the county.®

8. Fish and game. Provide for the protection, preservation, or for
the propagation at county institutions, subject to the laws of the state,
of wild animals, birds and game, and fish and shell-fish, within the

county; and prescribe and enforce the collection of penalties for the

 

or town may borrow money to pay for county’s and town’s share of cost of
construction of county highway. Highway Law, § 142, post.

Funded debt includes all county indebtedness embraced within or evi-
denced by a bond, the principal of which is payable at a time beyond the
current fiscal year of its issue, with periodical terms for the payment of in-
terest, and where provision is made for payment by the raising of necessary
funds by future taxation and the quasi pledging, in advance, of the county
revenue. People ex rel. Peene v. Carpenter, 31 App. Div. 603, 52 N. Y.
Supp. 781.

8. Town bonds. This subdivision vests generally in the board of supervi-
sors the power to authorize a town to issue its bonds for the raising of money
for a town purpose. If bonds are to be issued for the construction, repair or
discontinuance of a highway, for the repair or rebuilding of a highway or
bridge destroyed by the elements or otherwise, or for the repair or rebuild-
ing of a bridge condemned by the state highway commission, or for the pur-
chase of road machinery, application should be made as provided in section
97 of the Highway Law, as amended by L. 1914, ch. 202, and L. 1915, ch.
322. See also Highway Law, §97a, as added by L. 1917, ch. 565.

The above subdivision is sufficiently broad to empower the board to author-
ize a town to raise, by the issue of bonds, funds necessary to acquire lands
adjacent to a town hall. Jamaica Sav. Bank vy. City of New York, 61 App.
Div. 464, 70 N. Y. Supp. 967.

As to power of board to authorize a town to bond itself for the erection
of a bridge, see Barker v. Town of Oswegatchie, 41 N. Y. St. Rep. 821, 16
N. Y. Supp. 727.

Action of board legislative. The action of the boarl in directing issue of
bonds for the improvement of a highway is purely legislative, and cannot be
reviewed on certiorari. People ex rel. Trustees of Jamaica v. Supervisors,
131 N. Y. 468 (1892).

As to resolution authorizing issuance of bonds by a town, see County Law,
§ 14, post.

9. Noxious weeds. Town meetings may also provide for the destruction of
noxious weeds. Town Law, § 43, subd. 5, post. Removal of noxious weeds
and brush within the highways, Highway Law, § 54, as amended by L. 1911,
eh. 151.
GENERAL POWERS OF BOARDS OF SUPERVISORS. 57
County Law, § 12

violation of regulations adopted by the board pursuant to this subdivi-
sion.° [Subd. 8, as amended by L. 1922, ch. 34.]

9. School commissioner districts. Divide any school commissioner’s
district within the county which contains more than two hundred
school districts, and erect therefrom an additional school commission-
er’s district, and when such district shall have been formed, a school
commissioner for the district. shall be elected in the manner provided
by law for the election of school commissioners.14

10. Opening and closing of county offices. Fix and regulate the
time of opening and closing the county offices daily, except Sundays
and holidays, where such time is not fixed by law.

11. Contracts with penitentiaries. Contract, at such times and upon
such terms as the board may by resolution determine, with the authori-
ties of any other county for the reception into the penitentiary of such
county, and the custody and employment at hard labor therein, of any
person convicted within their county of any offense, other than a fel-
ony, and sentenced to imprisonment in a county jail, or penitentiary,
for a term exceeding sixty days.

 

10. Fish and game. The Forest, Fish and Game Law (now Conservation
Law), has regulated the taking of fish and game within the several counties of
the state. That act does not authorize boards of supervisors to adopt local laws
“or the protection and preservation of fish and game. The legislature having
specially legislated on this subject, the board of supervisors cannot override such
legislation. People v. Fish, 89 Hun, 163, 34 N. Y. Supp. 1013.

The boards of supervisors of Nassau and Suffolk may respectively pass laws
regulating and controlling the taking of fish and shell+fish in arms of the sea
and fish bait from public lands of such counties, and prescribe what violations
thercof shall be punishable as misdemeanors and to impose penalties, the same
to be enforced under the provisions of article three uf this act. (Conservation
Law, § 334, as added by L. 1912, ch. 318.)

11. School commissioner districts. By L. 1910, chap. 607, the office of
school commissioner was abolished and a district superintendent of schools sub-
stituted therefor. This act takes effect January 1, 1912. The board of super-
visors must divide the county into sunervisory districts on the 3rd ‘Tuesday
of April, 1911. See Education Law, § 381, post.

12. Hours of closing county offices. As to business hours in office of county
clerk, see County Law, sec. 165, post, p. 130; in office of sheriff, see County
Law,, sec. 184, post, p. 155.

Holidays and half holidays shall be considered as Sunday for all purposes
relating to the transaction of business in tke public offices of the state, and
of each county. Public Officers’ Law, sec. 62.

13. Form of contract with a penitentiary of another county, see Form
No. 5, post.

Contracts. Board of supervisors cannot contract with the authorities of a
penitentiary for the support of felons. Commissioners of Charities v. Super-
visors, 64 Hun, 195, 18 N. Y. Supp. 883.
58 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 12.

12. Actions on undertakings. Cause an action to be brought upon the
undertaking of any county officer, whenever a breach thereof shall
oceur.**

13. County buildings ; acquisition of lands. Purchase, lease or other-
wise acquire, for the use of the county, necessary real property for court
houses, jails, alms-houses, asylums and other county buildings, and for
other county uses and purposes ;*° and erect, alter, repair, construct, any
necessary buildings or other improvements thereon for necessary county
use, and cause to be levied, collected and paid, all such sums of money
as they shall deem necessary therefor; to select such name as they may
deem proper and appropriate for the alms-house of such county and
thereafter to: designate such alms-house by the name so selected; and

 

Contracts for keeping prisoners; notice to ke published. It is provided by
the Prison Law, § 320, as follows:

It shall be lawful for the several boards of supervisors in the several counties
of this state to enter into an agreement with the board of supervisors of any
county having a penitentiary therein, or with any person in their behalf by
them appointed to receive and keep in the said penitentiary any person or
persons who may be sentenced to confinement therein by any court or magis-
trate, in any of the said several counties in this state, for any term not less than
sixty days. Whenever such agreement shall have been made, it shall be the duty
of the said several boards of supervisors of the several counties aforesaid, to give
public notice thereof, specifying in such notice the period of the continuance
of such agreement, which said notice shall be published in such newspapers,
printed in said several counties, not less than two, and for such period of time,
not less than four weeks, as the several boards of supervisors of said several
counties shall direct.

14, Actions on undertakings. The word “undertaking” includes an official
bond, General Construction Law, sec. 27. As to the force and effect of an
official undertaking of a county officer, see County Law, sec. 247, post.
The sureties on the bond of a county treasurer are not exonerated by any
neglect or malfeasance of the supervisors in passing upon his accounts. The
bond is not conditioned for, and the law does not guarantee such an examina-
tion. Supervisors of Monroe v. Otis, 62 N. Y. 88. The condition of a treasurer's
bond that he should faithfully discharge his duties, involves the obligation of
making correct reports, confoy ming to the requirements of the statute, and the
failure so to do is a breach of this condition. Supervisors of Tompkins Co.
v. Bristol, 99 N. Y. 316.

15. Acquisition of real property. A county, if unable to agree with the
owners, may acquire title to real property by condemnation. See General
Municipal Law, sec. 74, post. Proceedings for the acquisition of real
property by ccndemnation, see Condemnation Law.

The board of supervisors can take and hold a fee in lands for county build-
ings. Ard a town which conveys for this purpose, for a nominal consideration,
cannot, on a subsequent removal of the county seat, maintain an action to
GENERAL POWERS OF BOARDS OF SUPERVISORS. 59°
County Law, § 12

sell, lease or apply to other county use, the sites and buildings, when a
site is changed; to sell, and for a proper consideration to convey, all of
the title and interest of the county in and to any land or property
owned by the county but not in actual use by the county; and if sold,
apply the proceeds to the payment for new sites, buildings and im-
provements.1® [Subdivision amended by L. 1917, ch. 304.]

14. Jury districts. To make one or more jury districts and to make

such regulations in respect to the holding of the terms of courts as
shall be necessary by reason of such change.1®

15. Contracts for board of prisoners." [Subd. repealed by L. 1917,
ch. 352.]

16. Tax to enforce Game Law. To raise by tax a sum not exceeding
one thousand dollars in any year, except in the county of Erie and in
said county a sum not to exceed four thousand dollars in any year to
aid in carrying out the provisions of the forest, fish and game law.
[Subd. amended by L. 1909, ch. 477.]

17. Sheriff salaried office in Chautauqua county. The board of su-
pervisors of Chautauqua county shall have power to determine that a
sheriff thereafter elected in such county shall receive a salary instead
of fees, and may fix such salary, or if the sheriff of such county shall
thereafter be made a salaried office to determine that a sheriff there-
after elected shall receive the fees prescribed by law, as compensation
for his services, instead of his salary. In case the office of
sheriff of such county is made a salaried office, in pursuance
of this subdivision, the sheriff shall collect all fees and perquis-
ites to which he is entitled, in pursuance of law, except such as
are payable by the county, and shall at least once in each month pay

 

enjoin a sale of the lands. Trustees of Havana v. Supervisors of Schuyler
Co., 5 T. & C. 703.

16. Erection of buildings. As to removal of county buildings, see County
Law, secs. 31-33, post, p. 69. Under the power conferred upon the board by
the above subdivision it is not necessary that the board should purchase a
site and then erect a building thereon. If the county owns real estate with
an appropriate building thereon, it may appropriate a part of such building
to be used as a jail. Roach v. O’Dell, 33 Hun 320, affd. 99 N. Y. 635.

The supervisors of the county of Steuben have authority under this sub-
division to erect a courthouse in the city af Hornellville and to appropriate
money therefor. Special action by the supervisors does not change the
county seat from its present location in Bath. Lyon v. Board of Supervisors,
115 App. Div. 198, 100 N. Y. Supp. 676.

Power to borrow money. Board is given power to borrow money for erec-
tion of county buildings and purchase of sites, and issue of obligations
therefor. Ghiglione v. Marsh, 23 App. Div. 61, 48 N. Y. Supp. 604.

16a, Abolition of jury districts. The board of supervisors of Seneca county,
by virtue of this subdivision, had plenary power to adopt the resolution of
August 30, 1920, abolishing the two jury districts into which by L. 1822,
ch. 127, said county was divided, and providing that thereafter the county
should consist of a single jury district. The repeal of said statute of 1822
was accomplished not by the County Law, but by the resolution of the board
of supervisors which has the same force as a statute passed by the legisla-
ture itself. Matter of Seely (1921), 114 Misc. 633, 187 N. Y. Supp. 130.

17. Existing contracts with sheriffs in office on May 3, 1917, providing for
board of prisoners not affected by repeal; see L. 1917, ch. 352, § 4.
60 COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 12.

the same to the county treasurer, and such fees and perquisites shall
become part of the general fund of the county.’*

18. Other powers and duties of boards of supervisors.

1. Towns and town meetings. As to the erection of new towns and the alter-
ation of boundaries of towns by the board of supervisors, see County Law, sec.
35, post. (For the pages of this Manual where sections of laws may be found,
see Schedule of Laws, following table of contents.)

The board of supervisors may by resolution fix a time for holding biennial
town meetings, see Town Law, sec. 40, post.

2. Registration of dogs; taxation. Formerly the Loard cf s2pervisors could fix
and impose a tax, and regulate the registration of dogs within the county pur-
-suant to County Law, secs. 110, 128-136. However these sections were repealed
by L. 117, ch, 800, which added art. 5-b ($§ 131-1391) to the agricultural law, and
which regulate the licensing of dcgs and protecticn cf Ccmestic animals therefrom.

3. Taxation. As to the duties of the board of supervisors in relation to the
assessment of bank shares, see Tax Law, sec. 24, post.

The board of supervisors must add to the tax on a tract of land belonging to
a non-resident the expense of making a survey of such tract as authorized
by ‘Tax Law, sec. 31, post.

As to the equalization of assessments by boards of supervisors, see Tax Law,
sec. 50, post, and as to the appointment of commissioners of equalization by the’
boards of supervisors, see Tax Law, §§ 51-53, post.

As to the duties of the board in relation to the assessment of non-resident
real property, see Tax Law, secs. 54, 55, post.

As to the correction of errors in assessment-rolls by boards of supervisors,
and the reassessment of property illegally assessed, see Tax Law, secs. 56, 57,
post, and the County Law, sec. 16, post.

As to the levy of taxes by the board of supervisors, see Tax Law, sec. 58,
post.

As to appeals from the equalization of boards of supervisors by a town,
to the state board of tax commissioners, see Tax Law, secs. 175-178, post.

The board of supervisors is required to annex to the tax roll of each town
a warrant under the seal of the county, signed by the chairman and clerk of the
board, commanding the collector to collect from the several persons named
in such roll the several sums mentioned therein. As to the completion of such
warrant, see Tax Law, sec. 59, post.

4. Relief of poor. The board of supervisors may determine the number of
county superintendents of the poor and may oppoint superintendents when a
vacancy shall occur in the office, see County Law, sec. 220. The board of super-
visors may aproint one of the superintendents of the poor to act as keeper of
the alms-house, see Poor Law, sec. 4, post.

The board must cause money to be raised for the support of the poor, see
Poor Law, sec. 11, post.

The board may make rules and regulations respecting the temporary relief
of the Poor, see Poor Law, sec. 138, post.

The board shall cause the amount estimated by overseers of the poor and
appropriated by the town board to be raised in each town, see Poor Law, sec.
27, post.

The board shall charge to the town liable for the support of poor persons,
the expenses of such support, when the overseer of the proper town fails to
remove such person, see Poor Law, sec. 45, post.
GENERAL POWERS OF BOARDS OF SUPERVISORS. 61

" County Law, § 12.

18. The board of supervisors of each county may raise by tax on real

 

The board may abolish the distinction between town and county poor, see
Poor Law, sec. 138, post.

The board shall provide for the proper burial of indigent soldiers, sailors
and marines, Poor Law, sec. 84, post; and shall provide proper head stones
for the graves of such soldiers, sailors and marines, Poor Law, sec. 85, post.

The board shall audit tke accounts of the Syracuse State Institution for
Feble-Minded Children for support of children sent thereto, see State Charities
Law, sec. 70, post; and also accounts for the support of epileptics at Craig
Colony, see State Charities Law, sec. 109, post.

5. Highways and bridges. As to the duties of boards of supervisors in respect
to highways and bridges generally, see chapter LXVII, post.

For duties of the board of supervisors as to the construction of state and’ county
highways, see Highway Law. secs. 123-128, 131, 134-142, 148-155, post. As to state-
ment of clerk of board of supervisors to state comptroller and commission as to
amount of highway taxes levied upon towns, see Highway Law, sec. 100, post.

As to appointment of county superintendent, see Highway Law, sec. 30, post.

As to duties of board of supervisors in respect to levy of taxes upon towns for
highway and bridge purposes, see Highway Law, secs. 90-96, post. As to duties
of board of supervisors in respect to the construction and maintenance of certain
bridges, see County Law, sec. 63, post; and as to duties of the board in relation to
bridges over boundary lines of towns, see Highway Law, secs. 250-262, post.

Application must be made to the board of supervisors by turnpike corporations
for laying out the highway of such corporation, and the board is required to appoint
commissioners for such purpose, see Transportation Corporations Law, secs. 123,
124, post. The board may acquire the rights and franchises of turnpike and plank
road corporations, see Transportation Corporations Law, § 139, post, p. 795.

6. School commissioners. The board of supervisors may increase the salaries of
school commissioners (now district superintendents of schools), see Education
Law, § 389, post. Office of schooi commissioner abolished by L. 1910, ch. 607, in
effect January 1, 1912.

7. County Officers. The board of supervisors may appoint a temporary surro-
gate, see Code Civ. Proc., sec. 2492, post. The board may create the office of
surrogate in counties containing a certain population, see County Law, sec. 231,
post. Surrogates are required to report to the board of supervisors, see Code Civ.
Proe., sec. 2501, post, p. 146.

The board may authorize the appointment of assistant district attorneys in certain
counties, see County Law, sec. 202, post.

The board of supervisors may appoint a jail physician for each jail in the county,
see Prison Law, § 348.

The board of supervisors may abolish the office of ra¥froad commissioners in the
several towns in the county, see General Municipal Law, sec. 16. post.

The board of supervisors may fix and determine the salaries of coroners, see
County Law, sec. 191, post.

Coroners are required to render to the board of supervisors a statement of prop-
erty found on the person of the deceased before the accounts of such coroners
for their fees and compensation can be audited, see Code Crim. Proc., sec. 788,
post.
62 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 12.

and personal property, subject to taxation in such county, not more
than five thousand dollars, to be expended in the repair and construction
of sidepaths in such county. The county treasurer of each county where
such sum has been raised shall place the same to the credit of the sidepath
fund, provided by section four, chapter one hundred and fifty-two of
the laws of eighteen hundred and ninety-nine as amended by chapter six
hundred and foity of the laws of nineteen hundred, and it shall be ex-
pended and paid out according to the provisions of said last named
chapter.

19. Whenever a judgment has been rendered in the court of claims in
favor of any county against the state of New York, and the time to appeal
therefrom has expired or the attorney-general has issued a certificate that
there has been no appeal and that no appeal will be taken by the state
from such judgment, the board of supervisors of such county may sell,
assign, transfer or set over such judgment to the comptroller, who may
purchase the same as an investment for the various trust funds of the
state or canal debt sinking fund, or to any person, firm, association or
corporation desiring to purchase such judgment, for a sum not less than
the amount for which same was rendered with accured interest, but no
judgment so acquired by the state shall be deemed merged or satisfied
thereby. And such board of supervisors may designate and authorize its
chairman and clerk, the treasurer of the county and the attorney of
record procuring the entry of such judgment, or any or either of them
to execute in the name of the county and deliver to the party purchasing
such judgment the necessary relace, transfer or assignment required in
law to complete such sale, setting over, transfer or assignment.

 

8. County jails, work houses and houses of detention. The board of super-
visors may provide for the labor of prisoners confined in county jails, see
County Law, sec. 93, post. Such board may establish and maintain work houses,
see County Law, sec. 100, post. It may provide houses of detention for the
safe and proper keeping of women and children convicted of crime and of
persons detained as witnesses, see County Law, sec. 99, post.

9. Miscellaneous duties. As to the duties of the board in relation to the
preparation of grand jury lists, see Code Crim. Proc., § 229a, post. As to pro-
visions relating to the adoption of an official seal by the board of supervisors,
see County Law, sec. 245, pest.

A hospital, camp or other establishment for the treatment of patients suffering
from pulmonary tuberculosis shall not be established in any town by any person,
association, corporation or municipality except when authorized as provided by
Public Health Law, sec. 319, as amended by L. 1916, ch. 291, and by L. 1919, ch. 421.

County hospital for tuberculosis, establishment and maintenance, see County
Law, §§ 45-49e, post.
GENERAL POWERS OF BOARDS OF SUPERVISORS. 63
County Law, § 12.

20. The board of supervisors shall annually fix and determine the com-
pensation to be allowed and paid to officers for the conveyance of juvenile
delinquents to the houses of refuge and state industrial schools, and no
other or greater amount than that so fixed and determined shall be allowed
and paid for such service.

21. The board of supervisors shall have power to direct the payment,
by justices of the peace, of all fines and penalties imposed and received
by them, to the supervisors of their respective towns, on the first Monday
in each month, and to direct justices of the peace to make a verified report
of all fines and penalties collected by them to the board of town auditors
of their respective towns on the Tuesday preceding the annual town meet-
ing. Upon such payment as herein prescribed to the supervisor of any
town, he shall immediately pay over such part of such fines and penalties
to any person or corporation who shall be entitled to receive the same
by virtue of any statute, special or otherwise. The residue of such amount
shall be applied to the support of the poor of such town. This subdivision
shall not apply to the county of Kings.

22. The board of stpervisors may contract with the sheriff of their
county, or the jailer of the common jail therein, for the support and
maintenance of such persons as may be confined in such jail upon any
writ or process in any civil action or proceeding in the nature of a civil
action. Such sheriff or jailer shall attach to all bills rendered for such
support and maintenance, a list, under oath, of the number and names of
the persons to whom such support and maintenance was furnished, and
the length of time each person was so supported. This subdivision shall
not be construed as repealing any present provisions of law relating to the
care, custody, support or maintenance of such prisoners in the counties of
Kings and Monroe.

23. The board of supervisors of a county in which a law library is
maintained by the state shall, upon the request of a judge of the court
of appeals who resides therein, provide and maintain for his use, suitable
and commodious offices, approved by him. In case of the refusal or
neglect of such board of supervisors to provide and maintain such offices
the expense of the same pursuant to the judiciary Jaw shall be a county
charge.

23a. The board of supervisors of any county may appropriate and
make available for the home defense committee of the county such
amount as it may deem proper to defray the disbursements of the com-
mittee, to be paid out by the county treasurer on the order of the treas-
urer of such committee out of any moneys of the county available there-
for; but this subdivision shall not be operative longer than the expira-
tion of six months after the close of the present war. [Subd. added by
L. 1917, ch. 525.]
64 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 12.

24, The board of supervisors of any county, except Kings, Queens,
Livingston, Monroe, Cortland, Westchester and Onondaga, may, in their
discretion, provide for the employment of a stenographer for the county
court thereof, and said board of supervisors must fix his compensation
and provide for the payment thereof in the same manner as other county
expenses are paid. [Subd. amended by L. 1915, ch. 91.]

25. The board of supervisors of each county must provide for the pay-
ment of the sums, chargeable upon the treasury of the county, for the
salary, fees, or expenses of a stenographer or assistant stenographer ;
and all laws relating to raising money in a county, by the board of
supervisors thereof, are applicable to those sums.

26. The board of supervisors of any county may, on the application
of any city of the third class, village, town, school district, water dis-
trict, lighting district or fire district in the county, authorize such
municipality or district by referendum vote thereon, to raise moneys
or issue the bonds or other obligations of such municipality or district,
to run for such period of time not exceeding fifty years, as the board
of supervisors may prescribe, for paving the streets, roads and high-
ways and constructing sidewalks within such municipality, and any
public municipal or district improvement, and to raise moneys by local
taxation for the redemption of such bonds or obligations; to extend
or diminish municipal or district boundary lines; to widen, extend,
limit or diminish the area occupied by streets, roads and highways; and
to establish, increase or lower stated salaries of local officials. Nothing
in this subdivision, however, shall operate to abridge the right or power
now possessed by any such municipality or district, under any general or
special law, whether heretofore or hereafter enacted, to perform any of
the acts which such municipality or district might perform without
authority from such board; but the provisions of this subdivision shall
be liberally construed to enable municipalities and districts, with the
authority of the board of supervisors, to exercise their legitimate munic-
ipal or district functions without special recourse to the legislature.
[Subd. 26, added by L. 1910, ch. 141, and amended by L. 1913, ch,
351.]

27. The board of supervisors of any county in which there is a so-
ciety for the prevention of cruelty to children may from time to time
appropriate and pay for the support and maintenance of such society
from county funds available therefor, such sums as it may deem proper
and may raise moneys for such purposes by tax on real and personal
property within the county. The moneys thus applied shall be paid to
the board of directors of such society and by it expended for corporate
purposes, but the board of supervisors may, in its discretion, prescribe
GENERAL POWERS OF BOARDS OF SUPERVISORS. 65
County Law, § 12

rules and regulations governing such expenditures and require the sub-
mission of reports of the disbursements of the corporation and the ap-
proval by the board of supervisors of accounts to be paid from moneys
thus appropriated. [Subd. 27 added by L. 1911, ch. 545.]

28a. The board of supervisors of any county may from time to time
appropriate and pay out for the general improvement of agricultural
and home conditions and for the support and maintenance of county
farm and home bureaus to conduct demonstration work in agriculture
and home economies and for the employment by said bureaus of county:
agricultural agents and home demonstration agents, and for any other
purpose which the board of supervisors shall deem proper and which,
in its judgment, will encourage and promote the general improvement
of agricultural and home conditions therein, such sums as it may deem
proper, and may raise money for such purpose by a tax on real and
personal property in the county. The board of supervisors may by
resolution, duly passed, direct the county treasurer to pay out moneys
from such appropriation upon the order of the treasurer of the county
association hereinafter provided for upon his giving a proper receipt
therefor, and the chairman of the board of supervisors may be author-
ized to enter into an agreement to pay such funds in regular install-
ments in advance, and such agreement shall be sufficient authority in
the hands of said county treasurer to pay out such moneys, provided
that this money shall be expended under an agreement to be entered
into between the county association and Cornell University, for the
co-operative management of said farm and home bureaus and the
proper supervision of said county agricultural agent and home demon-
stration agent; and provided that the co-operative relations therein
established shall continue until either party to the agreement shall
notify the other party that it wishes to terminate the agreement. Such
a notification shall be in writing and shall be served at least six months
preceding any action taken to annul the agreement. After receiving
such notice co-operative relationships between said parties shall cease at
the expiration of the six months’ period of notice providing reconsider-
ation or request for continuance is not made by the party issuing
notification of desire to continue work under the provisions of this
agreement. On or before the first day of December in each year and
at any other time when requested by the board of supervisors the offi-
cers of such county association shall report in writing to the board of
supervisors a detailed statement of its work and transactions for the
year ending November thirtieth, and for any other period which the
board of supervisors may request and in such form as said board may
direct.

For the purpose of this act there shall be recognized in each county
of the state which shall qualify under this act to co-operate with the
state college of agriculture in conducting the work provided for in this
act, a public county association, known as a county farm and home
bureau association, or as county farm bureau association or county
home bureau association, as the case may be, if only one division is or-
ganized, herein referred to as the county association, when the form of
organization has been duly approved by Cornell University, provided
that only one such association shall be recognized in each county. The
county association thus created may adopt such regulations and by-
laws governing its procedure in the work as are not inconsistent with
the provisions of this act.
652 COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 12

There shall be annually appropriated out of any moneys in the treas-
ury not otherwise appropriated, for the purpose of assisting in the or-
ganization and contributing towards the support of county farm and
home bureaus in the various counties of the state the sum of six hun-
dred dollars ($600) per annum for each county in the state for agricul-
tural work and the sum of five hundred dollars ($500) per annum for
home economics work for each county in the state which shall qualiry
as required by this section; provided, however, that no such bureau
shall be entitled to receive any money so appropriated for agricultural
work unless the county in which the same is organized shall appropri-
ate through its board of supervisors or otherwise raise and provide at
least eighteen hundred dollars per annum for the support and mainten-
ance of such work, nor shall any county be entitled to receive any
money for home economies work unless said county shall appropriate
through its board of supervisors or otherwise raise and provide not less
than fifteen hundred dollars per annum for the support and mainten-
ance of such work; provided further that two contiguous counties may
co-operate and be regarded as one county for the purposes of this act,
and the boards of supervisors in such counties may appropriate for the
purpose of jointly conducting the work provided for in this act when
the plans for such co-operation are approved by Cornell University;
and in addition there shall be annually appropriated such sums of
money as may be necessary for the proper and necessary supervision
thereof.

The general supervision of the co-operative agricultural and home
economics extension and development work herein provided for shall
be under the direction of Cornell University as agent for the state in
the administration of the New York state college of agriculture, and
the trustees thereof are hereby authorized to make rules and regula-
tions for the organization and conduct of such county farm and home
bureaus. The moneys appropriated pursuant to this subdivision shall
be paid by the state treasurer on the warrant of the comptroller on
vouchers approved by the treasurer of Cornell University. [Subd.
28a added by L. 1917, ch. 281, and amended by L. 1918, ch. 301, L. 1919,
ch. 499, and L. 1922, ch. 282.]

29. The board of supervisors of any county may from time to
time appropriate and pay out for the general improvement of
agricultural conditions in said county such sums as it may deem

proper, and may raise money for such purpose by a tax on
real and personal property in the county. The moneys so raised may
be used in the employment of a person or persons to give free
agricultural advice in said county and for any other purpose
which the board of supervisors shall deem proper and which,
in its judgment will encourage and promote the general improvement
GENERAL POWERS OF BOARDS OF SUPERVISORS. 65b
County Law, § 12.

of agricultural conditions therein, [Subd. 28 added by L. 1912, ch. 35, and renum-
bered 29 by L. 1917, ch. 106.]

29. Where by statute a county is required to cause to be raised and paid
moneys for the support and maintenance of any person or persons in any state
charitable institution which otherwise would be a charge against and payable by
the towns and cities of such county, or where a county officer, or board, is required
to incur expenses for supplies or services, which are required to be apportioned
to the towns and cities of such county, the board of supervisors of such county
may audit and pay claims therefor and cause the amounts thereof to be raised by
tax levy and collected in the same manner and at the same time as state and county
taxes are levied, assessed and collected in said towns and cities. [Subd. 29 added
by L. 1912, ch, 148.]

30. The board of supervisors of any county in which there is a so-
ciety for the prevention of cruelty to animals may from time to time
appropriate and pay for the support and maintenance of such society
from county funds available therefor, such sums as it may deem proper
and may raise moneys for such purpose by tax on real and personal
property within the county. The moneys thus applied shall be paid to
the board of directors of such society and by it expended for corporate
purposes, but the board of supervisors may, in its discretion, prescribe
rules and regulations governing such expenditures and requiring the
submission of reports of the disbursements of the corporation and the
approval by the board of supevisors of accounts to be paid from moneys
thus appropriated. [Subd. 27 added by L. 1911, ch. 663, renumbered
28 by L. 1912, ch. 148, and renumbered 30 by L. 1917, ch. 106.]

32. The board of supervisors of any county in which there are moneys
in the county treasury consisting’ of revenues received under the pro-
visions of chapter six hundred and forty of the laws of nineteen hun-
dred, repealed by chapter three hundred and thirty of the laws of nine-
teen hundred and eight, may provide by resolution that such moneys
shall be expended for the repair and improvement of side-paths, in the
various towns of the county, under the direction of the county superin-
tendent of highways, so far as the same may be sufficient therefor, upon
side-paths leading from each city or town, in an amount to be specified
in the resolution, equal to the portion derived from the revenues col-
lected under such chapter therein. The moneys to be thus applied shall
be paid to the county superintendent of highways by the county treas-
urer in the same manner as other county funds which are ordered paid
by the board of supervisors; but all orders or warrants therefor shall
refer to such fund as the side-path fund. [Subd. added by L. 1912, ch.
194, and renumbered 32 by L. 1917, ch. 106.]

23, The board of supervisors shall have power to, and may, provide a
fund for the payment in advance of audit of properly itemized and veri-
fied bills for the expenses of the district attorney lawfully and necessar-
ily incurred in the prosecution of criminal actions or proceedings aris-
ing in his county, and, by resolution, authorize the county treasurer to
apply said fund in payment of such bills on the approval of the district
65¢ COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 12.

attorney endorsed thereon; said bills so paid to be transmitted to the
clerk of the board of supervisors and audited by it at its next regular
session held: subsequent to their payment. The district attorney and
any claimant receiving payment as aforesaid shall be jointly and sev-
erally liable for any item or items contained in a bill so paid in advance
of audit which shall be disallowed and rejected by the board of super-
visors upon final audit, to be recovered in an action brought by the
board of supervisors in the name of the county. [Subd. 29 added by
L. 1912, ch. 235, and renumbered 33 by L. 1917, ch. 106.]

34, The board of supervisors are authorized to contract for telephone
service and for the lighting, heating and maintenance of county build-
ings, and to provide the method and time of payment for the same, or it
may provide a fund for payment in advance of audit of such bills, and
by resolution authorize the county treasurer to apply such fund to the
payment of duly itemized and verified bills for such purposes, on the
approval endorsed thereon of its proper committee of the proper county
officer having charge thereof; such bills so paid to be transmitted to the
elerk of the board of supervisors for final audit as provided in the next
preceding subdivision of this section. The members of any committee,
or any officer, approving said bills as aforesaid, and any claimant receiv-
ing payment, shall be jointly and severally liable for the amount of any
bill or item or items contained in a+ bill so paid in advance of audit,
which shall be rejected and disallowed by the board of supervisors upon
final audit, to be recovered in an action brought by the board of super-
visors in the name of the county. [Subd. 30 added by L. 1912, ch. 235,
and renumbered 34 by L. 1917, ch. 106. ]

34, The board of supervisors of the county of Erie shall have power
exclusively, and it shall be its duty, to contract annually with one or
more undertakers for the care, removal and burial of bodies of persons
dying within said county, where there are no known relatives, friends
or personal representatives of such deceased in the state liable or willing
to become responsible for the expense thereof and for the conveyance
and delivery of such bodies to and from the public morgue of such
county and the performance of any other acts incidental thereto. Each
undertaker, with whom such a contract shall be made, shall execute and
deliver a bond in such amount, with such sureties and upon such con-
ditions as such board shall require. [Subd. 34 added by L. 1917, ch.

289.]

35. The board of supervisors of a county adjoining a city of
the first class, except the county of Nassau, shall have the power
to appoint a commission of taxpayers, of said county, not exceed-
ing seven in number, who shall serve without compensation, to
examine the question of the application of the different laws
GENERAL POWERS OF BOARDS OF SUPERVISORS. 654
County Law, § 12.

of the state as applicable to the method of government of the
county, its population, needs and the advisability of changing the
forms or methods of government of the county and its several locali-
ties; to investigate the form of government of other counties or cities
within and without the state of New York, the method used in the ad-
ministrative, judicial and economic branches of the different munici-
palities investigated, for the purpose of recommending an improve-
ment in the government and welfare of the people of the county, and to
report its investigation, findings and recommendations with all con-
venient speed to the board of supervisors. Such commission of tax-
payers shall have the power to employ counsel, to appoint such assist-
ant or assistants, including one or more stenographers as the com-
mission may require to aid in such investigation, to fix the salaries of
such counsel, assistants and stenographers, to purchase the necessary
stationery and equipment. The board of supervisors shall provide
rooms for the commission to hold its meetings, and raise and provide
the money by taxation or otherwise to pay all expenses necessarily
incurred during the investigation by such commission and such coun-
sel, assistants and stenographers as may be employed by said commis-
sion. In the county of Westchester such commission shall have power
to add to its number not exceeding twenty-five additional members.
[Subd. 31 added by L. 1914, ch. 324, and renumbered 35 by L. 1917,
ch. 106, and amended by L. 1922, ch. 254.]

36. The board of supervisors is authorized to provide for the pay-
ment of properly itemized and verified bills of district superintendents
of schools of the supervisory districts in the county rendered by them
for expenses incurred for necessary printing, office supplies, and cleri-
cal assistance, subject to such conditions as the board may prescribe.
The board may, by resolution, authorize the incurring of indebtedness
for such purposes and when so authorized the bills therefor shall be
audited and paid in the same manner as other charges against the
county. [Subd. 31 added by L. 1914, ch. 389, and renumbered 36 by
L. 1917, ch. 106, and amended by L. 1922, ch. 494.]

87. The board of supervisors in any county in which the poor are a
town charge may by resolution provide that a soldier, sailor or marine
who has served in the military or naval service of the United States
and who has received an honorable discharge from service, or his.
family or the family or any who may be deceased shall be relieved and
provided for as a county charge. Application for such relief and the
granting thereof shall be governed by sections eighty, eighty-one and
eighty-two of the poor law. [Subd. 32 added by L. 1915, ch. 248, and
renumbered 37 by L. 1917, ch. 106.]

38. The board of supervisors of any county containing a population of
less than two hundred thousand and adjoining a city of the first class
may authorize the establishment of a plan for the grades of streets, ave-
nues and boulevards; the alteration of such plan of grades, or of any
plan thereof, which shall have been established by law; the laying out,
65e COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 12.

opening, grading, construction, closing and change of line, or of the
width of any one or more of such streets, avenues and boulevards or
any other streets, avenues and boulevards, within said county, or any
part or parts thereof, and of the courtyards, sidewalks and roadways;
to provide for the estimation and award of the damages to be sustained,
and for the assessment on property intended to be benefited thereby, and
fixing assessment districts therefor, the levying, collection and payment
of such damages, and of all other charges and expenses to be incurred,
or which may be necessary in carrying out the provisions of this sub-
division; the laying out of new or additional streets, avenues or boule
vards according to. a general scheme or plan for the improvement of
highways in said town, the acceptance by town officers of conveyances of
land for public highways, naming and changing of names of streets and
avenues within the said county, the opening, laying out, grading, con-
struction, closing and change of line of any street, avenue or boulevard
within the county, provided, however, that nothing shall be done here-
under in respect or concerning any street, avenue or boulevard situated
within an incorporated village, without the consent of the board of
trustees of such incorporated village. The provisions, however, for the
defraying of the expenses thereof by assessment as herein provided, shall
only be exercised on the petition of the property owners who own more
than one-half of the frontage on any such street, avenue or boulevard,
or on the certificate of the supervisor, justice of the peace, and town
clerk of the town in which said street, avenue or boulevard is located,
or two-thirds of such officers, that the same is in their judgment proper
and necessary for the public interest; or in case the said street, avenue,
or boulevard, in respect to which such action is proposed to be taken,
shall he in two or more towns, on a like certificate of such town officers
of each of said towns, or two-thirds of all of them; provided, however,
that before proceeding to make any such certificate, the said officers, or
such number of them as aforesaid, shall give ten days’ notice by publica-
tion in one of the weekly papers of said county and by posting in six
public places in said town, or in each of said towns, of the time and
place at which they will meet for the purpose of considering the same,
at which meeting the public and all persons interested may appear and
be heard in relation thereto; and provided that no such street or avenue
shall be Jaid out, opened or conatructed upon or across any lands hereto-
fore acquired by the right of eminent domain, and held in fee for depot
purposes by any railroad. [Subd. 32 added by L. 1915, ch. 679, and
renumbered 38 by L. 1917, ch. 106.]

39. Should the board of supervisors of any county containing a pop-
ulation of Jess than two hundred thousand and adjoining a city of the
first class at any time deem it for the public interest to acquire title
to lands and premises required for any streets, highway or boulevard
heretofore or hereafter laid out, widened, altered, extended or otherwise
improved, it may acquire the same by dedication, or by condemnation
under the condemnation law, provided, however, that no land shall be
GENERAL POWERS OF BOARDS OF SUPERVISORS. 65£
County Law, § 12.

acquired for any street, highway or boulevard in an incorporated village
without the consent of the board of trustees of such incorporated village.
Such board may direct, by a two-thirds vote, where no buildings are
upon the lands, that the title to any piece or parcel of land lying within
the lines of any such street, highway, or boulevard shall be vested in the
county upon the dace of recovery of such dedication or upon the date of
the filing of the cath of the condemnation commissioners as provided
in the condemnation law, or upon a specified date thereafter and where
there are buildings upon such lands, upon a date not less than six
months from the date of the filing of said oath. Thereafter, when the
condemnation commissioners shall have taken and filed said oath, upon
the date of such filing or upon such subsequent date as may be specified,
where no buildings are upon such lands and where there are buildings
upon such lands upon the date specified by said board of supervisors.
either before or after the filing of such oath, the same being not less
than six months from the date of said filing, the county shall become
and be seized in fee of said lands, tenements, and hereditaments in the
said resolution mentioned, that shall or may be so required as aforesaid,
the same to be held, appropriated, converted and used to and for such
purpose accordingly, in like manner as are other public streets in said
county. In such cases interest at the legal rate upon the sum or sums to
which the owners, lessees, parties or persons are justly entitled upon the
date of the vesting of title in the county aforesaid, from said date to
the date of the report of the commissioners shall be allowed by the com-
missioners as a part of the compensation to which such owners, lessees,
parties or persons are entitled. In the other cases, title, as aforesaid,
shall vest in the county upon the confirmation by the court of the report
of the condemnation commissioners. Upon the vesting of title as herein
provided, the county or any person or persons acting under its authority,
may immediately, or at any time thereafter take possession of the same,
or any part or parts thereof, without any suit or proceeding at law for
that purpose. The title acquired by the county, to lands and premises
required for a street, shall be in trust, and such lands and premises
appropriated and kept open for, or as part of a public street or high-
way, forever, in like manner as the other streets in the county. [Subd.
33 added by L. 1915, ch. 679, amended by L. 1916, ch. 5, and renum-
bered 39 by L. 1917, ch. 106.]

40. The board of supervisors of any county wherein a deputy county
treasurer is not allowed by law to be appointed, may by resolution
authorize the appointment of a deputy county treasurer and shail fix
his salary. Such deputy county treasurer shall act for the county treas-
urer during his absence from the state or his inability to act as such
county treasurer, and may act for such county treasurer during his
temporary absence from the office when authorized so to do by such
treasurer. Such authorization shall be in writing under the hand and
seal of such treasurer. [Subd. 40 added by L. 1917, ch. 106.]
66 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 12.

41. The board of supervisors of Ontario county shall have power to

and may provide for the payment in advance of audit of properly item-
ized and verified bills for the expenses of any county officer necessarily
incurred by him in the performance of his duties and for supplies or-
dered and purchased by him, not, however, excceding the sum of fifty
dollars unless the same is approved by the ‘a’ an of the committee
having charge of the affairs of his office, ax. nay by resolution au-
thorize the clerk of the board to draw orders upon the county treasurer
in payment of such bills approved by the chairman of its committee on
finance or by such other member of the board as it may determine, and
certified by the county attorney to be lawful county charges. Said
bills so paid to be audited by the board at its next regular session held
subsequent to their payment. The said officer and any claimant re-
eeiving payment as aforesaid shall be jointly and severally liable for
any item or items containcd in a bill so paid in advance of audit which
shall be disallowed or rejected by such board of supervisors upon final
audit, to be recovered in an action brought by the board of supervisors
in the name of the county. Said board may also provide for the pay-
ment in advance of audit of the salaries and compensation of the super-
intendent, nurses and employees at Oak Mount sanatorium, on properly
itemized and verified bills therefor, and a pay roll of the same, duly
approved by the state civil service commission, in the same manner as
other claims hereinbefore mentioned. [Subd. 41 added by L. 1918,
ch. 390.]

42, The board of supervisors of any county may, on the application
of any town, authorize such town to raise ‘such sum of money as may
be necessary to pay for damages to or the killing of sheep by dogs in
such town, which damages occurred prior to June ninth, nineteen hun-
dred and seventeen. [Subd. 42, added by L. 1919, ch. 34.]

43. The board of supervisors of any county may, on the application
of an incorporated association having for its purpose the relief and
education of the indigent blind, appropriate for such purpose such
sums of money as it may deem propcr, and may raise money therefor
by tax upon the real and personal property in the said county in the
same manner as other county taxes are levied and collected. The
board of supervisors may by resolution direct the county treasurer to
pay such appropriation to the treasurer of such association, but before
GENERAL POWERS OF BOARDS OF SUPERVISORS. 662
County Law, § 12

such payment shall be made the treasurer of such association shall
file with the county clerk an undertaking for the proper performance
of his duties under this subdivision, which undertaking must have en-
dorsed upon it the approval of the county judge as to form and suffi-
ciency of sureties. The treasurer of such association shall disburse
such funds upon properly itemized and verified vouchers for the relief
or education of indigent poor persons legally domiciled in the county
and for no other purpose. On or before the first day of October in
.each year and at any other time when requested by the board of super-
visors he shall render to the board of supervisors a verified written
statement, with vouchers of his disbursements of such funds for the
year ending the thirtieth day of September or for any other period
which the board of supervisors may request. [Subd. 48, added by L.
1920, ch. 318.]

44, The board of supervisors of any county not having a county
tuberculosis hospital established under the provisions of sections forty-
five to forty-nine-e hereof shall have power to appoint and employ
such public health nurses as it may deem proper. [Subd. 44, added by
L. 1921, ch. 180.]

44. The board of supervisors of any county may appropriate such sums
of money as it may deem proper, subject to the provisions of this

article, toward the maintenance of any duly incorporated society or
organization, the corporate purposes of which include the aid and re-
lief of poor persons permanently or temporarily within the county, and
may raise money therefor by tax upon the real and personal property
in the said county in the same manner as other county taxes are levied
and collected; provided, however, that no such appropriation shall be
made except upon presentation to the board of supervisors with the
application of such society or organization therefor of a certificate
from the state board of charities certifying that such society or organ-
ization has complied with all of its rules and regulations applicable to

such society, and approving of such application. The board of
supervisors may by resolution direct the county treasurer to pay such

appropriation to the treasurer of such society or organization, but be-
fore such payment shall be made the treasurer of such society or or-
ganization shall file with the county clerk an undertaking for the pro-
66> COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 15.

per performance of his duties under this subdivision, which undertak-
ing must have endorsed upon it the approval of the county judge as to
form and sufficiency of sureties. The treasurer of such society or or-
ganization shall disburse such funds upon properly itemized and veri-
fied vouchers for the relief or education of poor persons permanently
or temporarily within the county and for no other purpose. On or
before the first day of October in each year and at any other time when
requested by the board of supervisors he shall render to the board of
supervisors a verified written statement, with vouchers of his disburse-
ments of such funds for the year ending the thirtieth day of Septem-
ber or for any other period which the board of supervisors may re-
quest. Nothing herein contained shall be deemed to be an abridg-
ment or limitation of the power of boards of supervisors to appro-
priate money under or pursuant to the provisions of any other law.
[Subd. 44 added by L. 1921, ch. 366.]

45. The board of supervisors of any county not having a county
tuberculosis hospital established under the provisions of sections forty-

five to forty-nine-e hereof shall have power to organize and operate
clinies for the medical examination of persons who are or may be suf-

fering from tubereulosis. [Subd. 45, added by L. 1921, ch. 263.]

‘46. In order to provide an adequate number of teachers to be avail-
able for employment in the public schools in the county, the board of
supervisors of any county in which is located a college or university
having a department for fitting pupils to be teachers, and commonly
known as a pedagogical department, may, from time to time, appro-
priate moneys for salaries of the teaching staff in such department,
or to be applied toward the payment of such salaries, and may raise
such moneys by tax on the taxable property within the county. [Subd.
46, as added by L. 1922, ch. 307.]

§ 2. LEGALIZATION OF INFORMAL ACTS OF TOWN MEETING OR
VILLAGE ELECTION.

Any such board may, by a two-thirds vote of all its members, legalize
the informal acts of any town meeting or village election within such
county, and the regular acts of any one or more town or village officers,
performed in good faith, and within the scope of their authority.
[County Law, § 15; B. C. & G. Cons. L., p. 717.]
GENERAL POWERS OF BOARDS OF SUPERVISORS. 66¢
County Law, § 20.

§ 38. CONCURRENT RESOLUTIONS; DESIGNATION OF NEWSPAPERS
FOR PUBLICATION.

The members of the board of supervisors in each county represent-
ing, respectively, each of the two principal political parties into which
the people of the country are divided or a majority of such members
representing respectively, each of such parties, shall designate in writ-
ing a paper fairly representing the political party to which they re-
spectively belong, regard being had to the advocacy by such paper of

the principles of its party and its support of the state and national
nominees thereof, and to its regular and general circulation in the

towns of the county, to publish the concurrent resolutions of the legis-
lature required by law to be published, which designation shall be
signed by the members making it and filed with the clerk of the board
of supervisors.”

 

19. Number of votes. Under the act of 1845, ch. 280, containing a provision
that in designating official newspapers each member of the board should vote
for one paper, and that the two newspapers receiving the highest number of
votes should be designated, it was held that votes cast bearing the names of
two newspapers were void, and that at least three votes having only one name
on each must be cast to constitute a valid election; i. e., two votes for one paper,
and one for another. People ex rel. Del. Vecchio v. Supervisors of Kings Co.,
3 Keyes, 630, 3 Abb. Ct. App. Dec. 568.

Representatives of political parties.— The designation is to be made by
majority of supervisors representing the two political parties. People ex rel.
Baldwin v. Barnes, 17 App. Div. 197, 45 N. Y. Supp. 356. And should be made
annually. Rept. of Atty.-Genl. (1903), 495.

A Republican who had been elected supervisor of his town upon the Republican
ticket sought a renomination, but was umsuccessful. He was then nominated by
the Democrats and placed at the head of the ticket under the regular party symbol
of that party. He was elected over the regular Republican candidate. It was
held that he was entitled to vote with the Democratie members of the board upon
the question of designating a Democratic newspaper for the publication of the
session laws. Norris v. Wyoming County Times, 83 App. Div. 525, 82 N. Y.
Supp. 322.

A city editor of a newspaper, who is not a stockholder in the corporation pub-
lishing such newspaper, or otherwise financially interested therein, is not pro-
hibited from voting as a supervisor for the designation of such newspaper to pub-
lish the session laws. People ex rel. Crowe v. Peek, 88 Misc. 230, 151 N. Y. Supp.
835.

The purpose to be served by requiring publication of the Session Laws
and Concurrent Resolutions of the Legislature is to give to the people of
the State early and general notice of their enactment and of the provisions
thereof. It is publicity of the laws for general information of the people subject
to them that is sought. People ex rel. Utica Sunday. Tribune Co. v. Williams,
140 App. Div. 58, 60, 124 N. Y. Supp. 328, affd., 200 N. ¥. 585 (Mem.); People
ex rel. Mayham v. Dickson, 138 App. Div. 606, 123 N. Y. Supp. 110.
664 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 20.

If a majority of the members of the board representing either of
such parties cannot agree upon a paper or shall fail to make a
designation of a paper or papers, as above provided, then and in
such case, the paper or papers last previously designated in behalf
of the party or parties whose representatives, or a majority of
them, have failed to agree shall be held to be duly designated to
publish the concurrent resolutions for that year, and any designation
of a paper or papers made contrary to the provisions of this section

 

“In testing the question whether a newspaper does in fact fairly represent the
principles of a political party so as to make it eligible for designation regard must,
as the statute provides, be had, not only to its advocacy of the principles of its
party and its support of the state and national nominees thereof, but also to its
general and regular circulation in the towns of the county in which it is published.
lf a newspaper is deficient in either of these particulars, and there is another news-
paper published in the county which clearly measures up to the full requirements
of the statute, it would seem that a designation of the former would not be war-
ranted. Such a newspaper may be a type or specimen of a party paper, but it
does not fairly represent the party to which it belongs within the plain purpose
and intent of the statute.” People ex rel. Utica Sunday Tribune Co. v. Williams,
140 App. Div. 58, 60, 124 N. Y. Supp. 328, affd. 200 N. Y. 585 (Mem.).

In determining whether a newspaper is eligible to be designated pursuant to this
section, for the publication of Session Laws and Concurrent Resolutions of the
Legislature, regard must be had not only to its advocacy of the principles of its
party and its support of the State and National nominees, but also to its general
and regular circulation in the towns of the county where it is published. If a news-
paper be deficient in either of these particulars it should not be designated if there
be another paper published in the county which masures up to the full requirements
of the statute. Hence, the designation of u newspaper whose aggregate circulation
does not exceed 1,000 copies, and which has no circulation in two of the towns of
the county, is of no effect, if there is another paper published in the county, qualified
on the grounds of political advocacy which has a circulation of over 11,000 covering
all of the towns of the county. People ex rel. Guernsey v. Somers (1912), 153 App.
Div. 623. ;

Where one of two Republican papers of equal party loyalty has a circulation of
2,700 within a county ‘and the other has only 900 within the same territory the
former should be designated. People ex rel. Mayham v. Dickson, 138 App. Div. 606,
123 N. Y. Supp. 110.

The fact that a newspaper has for a long series of years advocated the principles
and policies of a political party, gives it no right to the publication of the Session
Laws, etc., unless it is at the time of the designation fulfilling that role. It seems,
that a board of supervisors acting in good faith may designate a newspaper to
publish the Session Laws, etc., on behalf of a political party, although such paper
has not always been a party organ, in the place of the paper which had always
fulfilled this role, but which, upon a particular occasion and in the year just then
closing, had concededly varied its’ policy and refrained from the support of some
of the party candidates. People ex rel. Elmira Advertiser Association v. Gorman
(1915), 169 App. Div. 891, 155 N. Y. Supp. 727; App. dismissed, 222 N. Y. 712.

Failure of the clerk to file the designation until nearly 4 year after it has been
made, does not authorize the selection of the paper last designated. Rept. of Atty.
Genl., Mch. 1, 1911.

The paper should fairly represent the party for which it is designated. People
v. Supervisors of Monroe Co., 60 Hun 328, 14 N. Y. Supp. 867. Effect of a tie vote,
see People v. Supervisors of Seneca, 18 How. Pr. 461. ;

The members of the board of supervisors are not required to select the news-
paper having the largest circulation, but in making the designation of the news-
paper the statute requires that they must have regard to its regular and general
circulation in the towns of the county. An agreement by the paper designated
with ether newspapers in the county for the joint publication of the Session
Laws, is illegal. People ex rel. Republican and Journal Co. v. McCarthy, 134 App.
Div. 761, 119 N. Y. Supp. 387; and see People ex rel. Utica Sunday Tribune Co.
v. Hugo, 93 Misc. 618, 158 N. Y. Supp. 490.
GENERAL POWERS OF BOARDS OF SUPERVISORS. 67
County Law, § 20.

caail be void. If there shall be but one paper published in the county,
then, in that case, such resolutions shall be published in that paper.
If either of the two principal parties into which the people of the
county are divided shall have no representative among the members of
the board of supervisors, then, and in that event, the newspaper last
legally designated in behalf of such party, not having a representative
among the members of the board of supervisors, shall be held to be
duly designated to publish the concurrent resolutions for that year.
The clerk of each board of supervisors as soon as such designation is
made shall forward” to the secretary of state a notice stating the name

 

Revocation of designation.— Members cannot change designation after cer-
tificate has been filed with clerk. People v. Supervisors of Monroe, 60 Hun
328, 14 N. Y. Supp. 867.

A valid designation of a newspaper by the board of supervisors, made at
any meeting, cannot be revoked. Rept. of Atty. Gen., Jan. 14, 1911.

A supervisor may revoke his signature to the designation of a newspaper
by delivering to the clerk a written notice to that effect at any time before
the clerk has acted upon the designation. The power to designate news-
papers under this section is conferred upon the supervisors individually.
People ex rel. Harper v. Roberts, 52 Misc. 308, 102 N. Y. Supp. 1110.

Effect of reversal of order in certiorari.—A board of supervisors designated
@ newspaper to publish the session laws and concurrent resolutions. On
review of this action by certiorari on behalf of another newspaper, the Ap-
pellate Division annulled the designation, whereupon the relator was desig-
nated by the board as the official paper. Thereafter the action of the Appel-
late Division was reversed (199 N. Y. 382) and the relator applied for a
mandamus to compel the comptroller to audit its bill for services rendered
while it was the official paper under such designation. Held, that since the
judgment of a competent court is binding until it is reversed, the relator is
entitled to be paid for services rendered until the reversal of the order of
the Appellate Division in the certiorari proceeding. People ex rel, Republi-
can & J. Co. v. Lazansky, 208 N. Y. 435, revg. 153 App. Div. 547.

Where a new political party, at the last general election, cast the second
highest number of votes in a particular county, thus becoming one of the
two principal parties into which the people of the county have divided them-
selves, and yet has no representative in the board of supervisors, and no
newspaper which had been previously designated to publish the session laws
and which could hold over, a contingency arises not provided for in section
20 of the County Law, and it is the duty of the board of supervisors, under
its general power, to designate a newspaper representing the principles of
the new party to publish the session laws, concurrent resolutions of the legis-
lature and its own acts, and it may be compelled to perform that duty by
mandamus. People ex rel. Bonheur v. Crist, 208 N. Y. 6.

Session laws and concurrent resolutions to be published in same paper.—
The purpose of this section is to give publicity and not patronage. Thus, the
supervisors of one party have no right to select one paper to publish the
session laws and another to publish the concurrent resolutions. People ex
rel. Hall v. Ford, 127 App. Div. 444, 112 N. Y. Supp. 130.

20. Mandamus to compel clerk to give notice of designation.—The board of
supervisors of a county cannot designate newspapers to publish session laws
for a period exceeding one year. After such designation has once been law-
fully made it cannot be revoked. Where the clerk of a board refuses to
notify the secretary of state of such designation without good reason, a writ
of mandamus will be issued to compel him to perform such duty. Matter of
Troy Press Co., 94 App. Div. 514, 88 N. Y. Supp. 115, affd. 179 N. Y. 529.
Compare People ex rel. Donnelly v. Riggs, 19 Misc. 693, 45 N. Y. Supp. 53,
holding that the duty of the clerk is not absolutely ministerial, but involves
to some extent the exercise of discretion; therefore, mandamus will not lie
against him to act in a particular manner.

Where an application for a writ of mandamus to compel supervisors to
designate a newspaper was denied, and such decision was affirmed by the

 
68 COUNTIES; BOARDS OF SUPERVISORS.
Legislative Law, § 48.

and address of such newspapers as have been selected for the publi-
cation within the county of the concurrent resolutions of the legisla-
ture, or if there is but one newspaper in such county he shall before
the first day of January in each year, forward to the secretary of state
a notice stating the name and address of such newspaper, and that it
is the only newspaper published in the county. [County Law, § 20, as
amended by L. 1921, ch. 467.]

§§ 4-5. PUBLICATION OF CONCURRENT RESOLUTIONS.

The secretary of state shall send to each newspaper designated
pursuant to law, in the order in which they are passed, and as soon as
the slips are printed, copies of such concurrent resolutions as are re-
quired to be published. Concurrent resolutions proposing amend-
ments to the constitution shall be published in such newspapers, at the
times prescribed by the election law, under the direction of the secre-
tary of state, at the expense of the state, in such manner, by the use
of italics and brackets, as to indicate the new matter added and the
old matter eliminated. The charge for such publication shall be paid
by the treasurer of the state on the warrant of the comptroller, after
certification by the secretary of state that the said publication has been
regularly made as provided in this section, at the rate prescribed by
law, specifying such rate. The charge for such publication outside of
a city shall be at the fixed rate of thirty cents for each folio of one
hundred words. The charge for such publication within any city
shall be at the rate prescribed by statute for the publication of a sum-
mons, notice, order or citation in the same city. Provided, that in any
county containing wholly within its boundaries a city of the second
class, the charge for the publication of such resolutions in such news-
papers shall be at the rate of six cents per agate line of a column
width not less than twelve and one-half ems for each insertion; and
provided further, that in any county containing wholly within its
boundaries a city of the first class, the charge for the publication of
such resolutions in such newspapers shall be at the rate of eight cents
per agate line of a column width not less than twelve and one-half ems
for each insertion. [Legislative Law, § 48, added by L. 1921, ch. 467;
old § 48 repealed by L. 1921, ch. 467.]

 

Appellate Division, the order of affirmance is not reviewable by the Court of
Appeals. People ex rel. Elmira Advertiser Assn. v. Gorman (1918), 222 N.
Y. 712, dis. appeal from 169 App. Div. 891, 155 N. Y. Supp. 727.

Certiorari will not lie except where the question to be reviewed is clearly of
a judicial character. Hence, the determination of the supervisors, represent-
ing one of the two principal political parties into which the people of the
county are divided, or a majority of them, which designates a newspaper to
publish the session laws and concurrent resolutions is an administrative act
not reviewable by certiorari. Peo. ex rel. R. & J. Co. v. Wiggins, 199 N. Y.
382, revg. 138 App. Div. 933, and 127 App. Div. 444, 112 N. Y. Supp. 130.

The statute does not require the designation of the paper having the lar-
gest circulation in the county but leaves a very large discretion to the board
of supervisors, and their acts in this respect are purely administrative and
not reviewable. People ex rel. Utica Sunday Tribune Co. v. Hugo (1916),
93 Misc. 618, 158 N. Y. Supp. 490.
GENERAL POWERS OF BOARDS OF SUPERVISORS. 69
County Law, §§ 22, 31.
§ 6. NEWSPAPERS DESIGNATED TO PUBLISH ELECTION NOTICES AND
OFFICIAL NOTICES. :

Such boards, except in the counties of Erie, Kings, Queens and Rich-
mond, shall in like manner, designate two newspapers,” representing
respectively each of the two principal political parties into which the
electors of the county are divided, in which shall be published the elec-
tion notices issued by the secretary of state, and the official canvass, and
fix the compensation therefor, which shall be a county charge. [County
Law, § 22, as amended by L. 1919, ch. 501; B. C. & G. Cons. L. 2d
Ed. p. 1427.]

§ 7. COUNTY BUILDINGS, LOCATION OF, MAY BE CHANGED; PETITION
FOR CHANGE BEYOND BOUNDARIES OF VILLAGE OR CITY.

The board of supervisors may, except in the county of Kings, by a
majority vote of all the members elected thereto, fix or change the site of
any county building, and the location of any county office ;” but the site or

 

21. Designation of more than two newspapers——An attempt by members of a
board of supervisors to designate for the publication of election notices four papers
for each of the two principal political parties is void as to all the papers so desig-
nated, and a resolution revoking the designation is unnecessary. The compensation
to be paid for publishing election notices is not limited by the rates fixed for the
publication of the Session Laws. Matter of Ford v. Supervisors, 92 App. Div. 119,
87 N. Y. Supp. 417, appeal dismissed 178 N. Y. 616.

In construing this section the identity of the two principal political parties is
established by the result of the state election rather than by the outcome of a
county or local election. In designating newspapers to publish the election notices
the choice should therefore be confined to newspapers representing the parties
whose candidates receive the highest number of votes in the last State election.
Rept. of Atty. Genl. (1912), Vol. 2, p. 379.

Publication of determinations and statements of county boards of canvassers
as to persons elected should be made only as to county officers, members of assem-
bly and county propositions. Rept. of Atty. Genl. (1912), Vol. 2, p. 423.

Provisions mandatory.— The provisions of this section relative to the “ official
canvass” are mandatory and such canvass which is a tabulation of all the vo‘es
of the county by election districts, should be published in addition to the publi-
cation of the determinations and statements mentioned in section 438 of the
Election Law. Opinion of Atty. Genl. (1917), 10 State Dept. Rep. 506.

All determinations of the county board of canvassers and the statements upon
which they are based, are required to be published in one issue of two newspapers
designated by the board of supervisors. The determination may be combined as
to all officers elected in the county. Opinion of State Comptroller (1916), 10 State
Dept. Rep. 547.

22. Constitutionality—— The provisions of this section and of §§ 32 and 33 post,
as to removal of county buildings and offices from one part of the county to an-
other, are not an invalid delegation of the legislative power to the people; the line
of demarcation between legislative and administrative functions may not always
be easily ascertained, but the deciding upon the site of county buildings is in its
nature administrative and is not strictly and exclusively a legislative power
within the meaning of the Constitution. Stanton v. Board of Supervisors, 191
N. Y. 428, affg. 112 App. Div. 877, 98 N. Y. Supp. 1059.

Exclusive power to erect county buildings and to fix or change the site is
vested in the board of supervisors, except where a change in location exceeds one
mile, and a submission of the proposition to the electors of the county is not bind-
ing on the board. Rept. of Atty. Genl., Apr. 28, 1911.

Majority vote— A resolution to change a county seat must be adopted by a ma-
jority vote of the members elected, and a member not legally elected is not to be
counted; an act of the legislature attempting to legalize an illegal resolution of
the board, locating or changing a county seat, is in violation of article 3, § 18, of
"1 COUNTIES; BOARDS CF SUPERVISORS.

County Law, § 32.

location of no county building or office shall be changed when the change
shall exceed one mile, and shall be beyond the boundaries of the incorpo-
rated village or city, where already situated, except upon a petition of at
least twenty-five freeholders of the county, describing the vuildings or
office, the site or location of which is proposed to be changed, and the place
at or near which it is proposed to locate such new building or office ; which
petition shall be published once in each week for six weeks immediately
preceding an annual or special meeting of such board, in three news-
papers of the county, if there be so many, otherwise, in all the newspapers
published in the county as often as once a week. With such petition shall
also be published a notice, signed by the petitioners, to the effect that
such petition will be presented to the board of supervisors at the next
mecting thereof.

The board of supervisors of any county may acquire a new site or location
for the county almshouse, erect suitable buildings thereon, and remove the
inmates of the existing almshouse thereto, upon a majority vote of all the
members elected to said board at a regular session thereof or at a special
session called for that puipose, in any case where the state board of
charities shall have certified to said board of supervisors that in the opinion
of a majority of said state board of charities such change is necessary to the
proper care of the inmates of such institution; in which case it shall not be
neesssary to reccive or publish the petition hcreinbefore provided or to sub-
mit the question of change or removal to the electors of such county as
provided in sections thirty-two and thiity-three of this chapter; provided,
however, that no site or location shall be selected ov acquired by such board
of supervisors which shall not have been approved by said state board of
charities. [County Law, § 31, B. C. « G. Cons. L., p. 729.]

§ 8. ACTION OF BOARD UPON PRESENTATION OF PETITION FOR
CHANGE OF LOCATION.

On the presentation of such petition and notice, with due proof of their
publication, if a majority of all the members elected to such board vote in
favor of a resolution for the removal of the site of the buildings described
in such petition, to the site also therein described, or the change of the.
location of its county offices or any of them, said board shall thereupon
direct that such resolution, together with the notice that the question of
such removal will be submitted to the electors of the county at the ensuing
general election, be published in at least two newspapers published in the
county to be designated by the board, once in each week for six consecu-

 

the Constitution. Williams v. Boynton, 147 N. Y. 426, affg. 71 Hun 309, 25 N. Y.
Supp. 60. See also Trustees of Havana v. Supervisors, 2 Hun 600. :

New courthouse— The building of a new courthouse in addition to the two
already existing in a county is not a change of location of a county building re-
quiring the vote of the electors of the county under this section. Lyon v. Board
of Supervisors, 115 App. Div. 193, 100 N. Y. 676.
GENERAL POWERS OF BOARDS OF SUPERVISORS. 41

County Law, §§ 33, 34.

tive weeks inimediately preceding such general election. Such resolution
and notice shall be published accordingly.* [County Law, § 32; B. C. &
G. Cons. L., p. 730.].

§ 9. SUBMISSION OF QUESTION OF REMOVAL OF COUNTY BUILD.
INGS TO VOTE OF PEOPLE.

The question of the removal of the site of such buildings, or the change
cf tte lucation of any such office, shall thereupon be voted on by the
electors of the county at such general election by ballot. If a majority
of the ballots cast shall be in favor of such removal, the proceedings of
such board of supervisors shall be deemed ratified by the electors, and the
change of the site of such buildings, or the removal of such offices, shall
be nade accordingly: but the old site, and buildings thereon shall be con-
tinued and used until new buildings upon the new site have been provided
and accepted by the board of supervisors. [County Law, § 33; B. C. &
G. Cons. L., p. 730.]

§ 10. AFTER DETRUCTION OF POOR-HOUSE, PETITION FOR
CHANGE OF SITE.

Whenever any county poor-house or almshouse shall have heretofore been,
or shall hereafter be destroyed by fire or otherwise, twelve or more resi-
dent freeholders of the county may present to the chairman of the board
of supervisors of the county a petition for the change of site of such county
poor-house. If the annual meeting of the board of supervisors is to be held
at any time within three months following the presentation of such petition
to the chairman, he shall cause the same to be presented to such annual
meeting for the consideration and action of such board; but if an annual
meeting of the board is not to be held within three months following the
presentation of such petition to the chairman, he shall, upon the presenta-
tion of such petition to him, cause a special meeting of such board to be
convened for the purpose of considering and acting upon such petition.

 

23. Legislature cannot change location. The legislature cannot pass a
private or local bill locating or changing county sites, see Constitution, -art.
3, sec. 18. It was held in the case of Williams v. Boynton, 147 N. Y. 426,

“42 N. EL 184, that a special act of the legislature which undertakes to vali-
date an illegal and wholly unauthorized resolution of the board of super-
visors, locating or changing a county site, is a local act; and that such act
is an attempt to do indirectly what cannot, within the provision of the
constitution, be done directly by the legislature, and is therefore unconstitu-
tional and void. But see People ex rel. Commissioners v. Supervisors, 36 Misc.
597, 73 N. Y. Supp. 1098, aff'd 170 N. Y. 105.
72 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 34.

Such meeting may be called upon a notice signed by the chairman, directed
to the members of the board and stating the time, place and object of the
meeting, which shall be served upon each member of the board, either per-
sonally or by leaving it at his residence with some person of suitable age
and discretion, at least three days before the time when such meeting is to
be. held, or by mail at least ten days before such time. The chairman shall
call such meeting to be held upon some day within thirty days from the
time of the presentation of the petition to him. At any such special meet-
ing or at any annual meeting at which such petition shall be presented for
the consideration and action of,the board, the board may by a vote of two-
thirds of all the members thereof, determine by resolution, to change the
site of any such county poor-house, and to purchase a new site and farm
for such county-house and for the support, care and maintenance of the
poor of the county, and to sell and convey the old site of the county poor-
house and the farm connected therewith.?* The board shall also, by resolu-
tion, direct that every such resolution. with a notice signed by the chairman
and clerk of the board, that the question of such sale and disposal of the
old site and farm, and the purchase of a new site and farm for the county
poor-house, and for the support, care and maintenance of the poor of the
county, will be submitted to the electors of the county, at the ensuing town
meeting to be held in the several towns thereof, shall be published in at
least six newspapers published in the county designated by the boards, if
there be that number, if not, in all the newspapers of the county, at least
one full week immediately preceding such town meeting, and posted for at
least ten days before the town meeting in at least six public places in each
town in the county. If the annual town meetings of the county are not to
be held within three months after the passage of such resolution, the board
shall, by resolution, direct that a special town mceting shall be held in each
town of the county on a day to be specified therein, at which such ques-
tions will be submitted to the electors of the county. Every resolution of
‘the board calling such special town meeting shall be published in at least
six newspapers of the county, to be designated by the board, for the period
of at least four successive weeks immediately preceding the time when such
special town meetings are to be held; or if a less number of newspapers
than six are published in the county, such resolution shall be published in
all the newspapers tnereof. At any annual or special town meeting at
which sych qucstion shall be submitted to the electors of the county, the
vote shall be by ballot, which shall be in this form: “In favor of the sale

 

24. Form of resolution.—Resolution changing the location of county build-
ings need not comply with section 17 of the County Law. Stantion v. Super-
visors of Essex County, 112 App. Div. 877, 98 N. Y. Supp. 1059.
GENERAL POWERS OF BOARDS OF SUPERVISORS. "3

County Law, § 34.

and disposal of the present county poor-house site and farm; and of the
purchase of a new site and farm”; or, “ Against the sale and disposal of
the present county poor-house site and farm, and the purchase of a new
site and farm.” The ballots shall be provided and delivered by the county
clerk of the county; and the expense thereof shall be a county charge. The
officers presiding at such town meeting shall canvass the votes cast thereat
and make a correct statement of the number cast in favor of and the num-
ber cast against the question submitted, and certify the same in duplicate;
one of which shall immediately be filed in the town clerk’s office, and the
other of which shall, within twenty-four hours after the conclusion of such
canvass, be filed in the county clerk’s office. Within twenty-four hours
after the statements of the canvass of votes in all the towns of the county
shall have been filed with the county clerk, he shall canvass and compile
a statement of the whole number of votes cast in the county upon the ques-
tion submitted, and of the number cast in favor of and against such ques-
tion, respectively, and make and record a certificate of such result in his
office; and within twenty-four hours thereafter cause a certified copy
thereof to be delivered to the chairman of the board of supervisors, if a
majority of the electors of a county voting upon such question at such
town meetings shall have voted in favor of the question submitted. The
chairman of the board, upon the receipt of the certified copy of such cer-’
tificate from the county clerk, shall call a special meeting of the board,
to be held at some time to be designated by him, not more than thirty
days thereafter, and of which meeting notice shall be given to each mem-
ber of the board, either personally or by mail, at least ten days before
the time of the meeting. If the annual meeting of the board is to be held
within such period of thirty days a special meeting shall not be called. At
any special meeting of the board, called and convened as herein provided,
or at any annual meeting convened within such period of thirty days,
such board of supervisors shall have full power and authority to sell and
dispose of the site and farm then owned and used by the county for the
support, care and maintenance of its poor, and to select, locate and pur-
chase a new site or farm for the county poor-house, and for the support,
care and maintenance of the poor of the county, and to raise all necessary
sums of money upon the taxable property of the county to defray the ex-
pense and cost of the purchase of such new site and farm, and to carry
out the provisions of this section over and above the amount that shall be
realized from the sale and disposal of the old site and farm, and such
moneys as may be in the hands of the county treasurer of the county
applicable to such purchase. And the board may also, at any such meeting,
provide for the erection of a new county poor-house, and other buildings
to be used in connection therewith, and for the levy of a tax upon the
taxable property of the county, to raise the necessary sums of money to
4 COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 38.

defray the expense thereof. In case there shall be no chairman of the
board of supervisors at a time when any notice required by this section is
to be served, or any call of a meeting to be made by such chairman, the
clerk of the board of supervisors, if there be one, or, if not, any member
of the board of supervisors designated by such petitioners, shall serve the
notices and call the meetings required by this section to be served or called
by the chairman.

This section shall not apply to Kings county.** [County Law, § 34;
B.C. & G. Cons. L., p. 731.]

§ 11. BOARD MAY ESTABLISH FIRE DISTRICT OUTSIDE OF AN
INCORPORATED VILLAGE; FIRE COMMISSONERS; LEVY
OF TAXES FOR FIRE PROTECTION.

1. Each board of supervisors may, on the written, verified petition of
the taxable'inhabitants of a proposed fire district outside of an incorpo-
rated village or city, and within the county, whose names appear on the last
preceding assessment-roll of the town wherein such proposed fire district
is located, as owning or representing more than one-half of the taxable
teal property of such district, or as owning or representing more than
one-half of the taxable real property of such district owned by the resi-
dents thereof, establish such district as a fire district.2° Where such pro-
posed fire district is situated in two or more counties, the board of super-
visors of each county in which a part of such fire district is located, may,
by resolution, on the written, verified petition of the taxable inhabitants
of that portion of the proposed fire district located in such county, whose
names appear on the last preceding assessment-roll of the town or towns
in which the proposed fire district is located, as owning or representing
one-half of the taxable real property of that part of such proposed fire
district located in such county owned by the residents thereof, direct
that when a similar resolution is adopted by the board of supervisors of
each of the other counties in which such proposed fire district is located,

 

25. Reference.—This and the preceding section were both taken in part from
L. 1885, ch. 160, as amended, and are apparently in conflict with each other. This
section is to be followed where it is sought to acquire a new site for an alms-
house after the destruction of the old almshouse.

26. Establishment of districts; preliminary petition. The action of the
board of supervisors in undertaking to establish a fire district in a town, under
the above section, is legislative in character and is not rendered subject to
review by a certiorari, because the affidavit verifying the preliminary petition
does not state that the petition complies with the requirements of the statute
that the names attached appear, by the last assessment-roll, to be those of the
owners of more than one-half of the taxable real property of the district
described. Since the action of the board is legislative in form, they are pre-

.
GENERAL POWERS OF BOARDS OF SUPERVISORS. q5

County Law, § 38.

i
and pon the adoption of such resolution by each such board, such fire
district shall be and be deemed to be legally established. No such dis-
trict shall extend in any direction to exceed one mile from the nearest
engine or hose or hook and ladder house located within the district,
or to exceed three miles from the nearest station at which an automobile
fire engine or an automobile chemical engine is maintained within the
district. When any two or more fire districts, established as above pro-
vided, not within an incorporated village, adjoin each other, the board
of supervisors of the county in which said districts are located, may,
upon a written, verified petition of the taxable inhabitants of each of
said districts whose names appear or the last preceding assessment-roll
of the town or towns within which said fire districts are located, as
owning or representing more than one-half of the taxable real property
of each of said districts, or as owning or representing more than one-half
of the taxable real pronerty of each of said districts owned by the resi-
dents thereof, consolidate such fire districts ana establish the same into
one fire district. The trustees of such fire district hereinafter provided
may establish, equip and maintain such engine, hose or hook and ladder
houses as they may deem necessary. [Sub. amded. by L. 1914, ch. 381.]
2. When any such fire district has been established or consolidated in
the manner above provided, the legal voters thereof may elect not less
than three nor more than five residents thereof to be the fire commissioners
for a term of five years or such less term as a majority of such voters
at the time of any such election may express on their ballots ;?" and may
also elect a treasurer in such fire district for a term of three years, who.
shall be entitled to receive and have the custody of the funds of the dis-
trict and pay out the same for the purposes herein provided for, on the
order of the fire commissioners, which treasurer before entering on the du-
ties of his office, shall give such security as the board or boards of super-
visors may require. The first election for such fire commissioners and
treasurer shall be called by the clerk of the town within which any such
district shall be established, or when any such district is within more than

 

sumed to have determined the preliminary question of fact that the petition
was signed by the requisite number of owners of taxable real property; and
although such determination may not be final the burden of showing the fact to
be otherwise devolves upon those who attack the validity of the action of the
board. This may be done in an appropriate action, but not in certiorari pro-
ceedings where the issue is not raised. The statutory requirement of a petition
is not violated by the circulation and presentation as one petition, of several
separate pieces of paper, all expressing the same subject matter, alike except as
to the signatures. People ex rel. O’Connor v. Supervisors of Queens County,
153 N. Y. 870; 47 N. E. 790. Cited in Weston v. City of Syracuse, 158 N. Y. 274,
286. Resolution will not be invalidated by recital of repeal statute. Matter
of Rockaway Park Imp. Co., 83 Hun, 263, 31 N. Y. Supp. 386.

27. Fire commissioners.—Hlection of fire commissioners must follow act of
board creating fire district. Matter of Rockaway Park Imp. Co., 83 Hun, 263, 31
N. Y. Supp. 386.
"6 COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 38.

one town within the county, or if located in more than one county, by
the clerks of such towns jointly and concurrently, within thirty days
from the establishment or consolidation of such fire district or dis-
tricts, and upon such notice and in the same manner as required for
special town meetings. All subsequent elections shall be called in the
same manner by the clerk or clerks of the town or towns, not less than
thirty days prior to the expiration of the term of office of any such com-
missioners or of the treasurer; special elections to fill any vacancies
shall be called in the same manner within thirty days after any such
vacancy shall occur.

3. Any such district when established or consolidated shall be known
by such name as the fire commissioners thereof may adopt at their first
mecting for the organization, and thereafter such fire commissioncrs
shall be authorized and empowered to purchase apparatus for the ex-
tinguishment of fires therein; rent or purchase suitable real estate and
buildings or erect, alter or repair buildings, for the keeping and stor-
ing of the same; and, with the consent of the supervisor of the town
in which such district is located, or if located in more than onc town,
with the consent of the supervisors of such towns, to furnish lighting
apparatus or such other equipment for such a building or buildings as
in their judgment shall be necessary and pay for the same out of any
unexpended balance in the hands of the treasurer, but the cost of such
lighting apparatus or other equipment if paid pursuant to this pro-
vision out of an unexpended balance shall not exceed two hundred and
fifty dollars or in any case the amount of such unexpended balance;
and to procure supplics of water, and have control and provide for the
maintenance and support of a fire department in such district; and
shall have power te organize fire, hook, hose, ladder, axe and bucket fire
patrol companies; and to appoint a suitable number of able and re-
spectable inhabitants of said district as firemen and to prescribe the
duties of the firemen and the rules and regulations for the government
of all companies and of the fire department in such district; and who
shall have power to make any and all contracts within the appropria-
tions voted by the resident taxpayers of the district for the purpose of
carrying out the authorization and powers herein granted.”* [Subd. 3,
amended by L. 1919, ch. 256.]

4, Such fire commissioners may expend in any one year for any or all
the purposes above specified a sum or sums not exceeding the total of five
hundred dollars, and make a contract for a supply of water for fire pur-
poses for a period not to exceed five years, without any appropriation
voted therefor by the taxpayers of such district. For the purpose of
giving effect to these provisions the fire commissioners are hereby author-
ized whenever a tax shall be voted to be collected in instalments for the
purposes of carrying out the authorization and powers herein granted, to

27-a. The purchase of badges, caps and uniforms, for themselves, by commis-

sioners of fire districts, out of moneys raised for miscellaneous purposes, is up-
authorized. State Comptroller’s Opinion (1917), 11 St. Dep. Rep. 584.
GENERAL POWERS OF BOARDS OF SUPERVISORS. "7
County Law, § 38.

borrow so much of the sum voted as may be necessary at a rate of in-
terest not exceeding six per centum per annum and to issue bonds or
other evidences of indebtedness therefor, which shall be a charge upon
the district and be paid at maturity; and such bonds shall not be sold
below par; due notice of the time and place of the sale of such bonds
shall be given at least ten days prior thereto; the payment or collection
of the last installment shal] not be extended beyond ten years from the
* time when such vote was taken. [Subd. 4, amended by L. 1918, ch. 110.]

5. Whenever the fire commissioners in any such fire district shall submit a re-
quest in writing for an appropriation of any sum of money for the purposes
herein authorized, the clerk or clerks of the town or towns in which such fire dis-
trict shall be located, shall call a meeting of the resident taxpayers of the district
for the purpose of voting upon the question of appropriating such money, such
meeting to be called by a notice posted conspicuously in at least two of the most
publie places in such fire district, at least ten days before the holding of any such
meeting, which notices shall state the time, place and purpose of the meeting. At
any such meeting such resident taxpayers may appropriate the amount requested
by the fire commissioners, or any less amount, and may determine that the sum so
appropriated or some part thercof shall be raised by instalments. When any such
appropriation is made, or when any amount less than the sum of one hundred dollars
shall have been expended by such fire commissioners, as above authorized, the
amount appropriated or expended and the amount contracted to be paid yearly for
the supply of water for fire purposes, shall be assessed, levied and collected on
such district, in the same manner, at the same time and by the same officers as the
taxes of the town in which the district is located, are assessed, levied and collected,
and when coliected shall be paid over immediately by the supervisor 27> of the
town to the treasurer of the fire district; and the town shall be responsible for
any and all sums so collected until the same shall be paid over to such treasurer.28

6. Such fire commissioners shall before the annual meeting of the board of
supervisors present to the supervisor of the town or towns in which such fire dis-
trict is situated an itemized and verified statement in duplicate of the amount ex-
pended by them during the preceding year, without an appropriation having been
made therefor by the taxpayers of such district. The supervisors shall file one of
such duplicates in the office of the town clerk, and one shall be presented by him
to the board of supervisors.

7. All meetings of any such district called for the election of officers, or for the
appropriation of money, shall be presided over by a resident taxpayer to be desig-
nated by the fire commissioncrs, exccpt that the first meeting after any such fire dis-
trict shall have been established shall be presided over by a resident taxpayer selected
by the legal voters at the meeting; and all elections for fire commissioners and for
treasurer shall be by ballot, in the same manner as is provided for the election of other

 

27-b. Conversion by supervicor of mozeys raised to purchase hose for unincor-
porated fire district; wken town not liable to seller; mandamus proper remedy to
compel retaxation of fire dictrict. Where in an action against a town to recover
the contract price of fire hose sold for use by an unincorporated fire district which
is not wholly within the boundaries of any municipality there is no evidence show-
ing under what provision of law the fire district was created, the seller cannot
recover against the town after a tax levied and collected for the purchase of the
fire hose was turned over to the supervisor of the town who appropriated the same
to his own use. The action of the town officials was for the benefit of the taxpayers
of the fire district only and their acts did not bind the town which cannot be held
liable for any deréliction of such officers in the discharge of functions exercised
in behalf of such district. It seems, that if the fire district is still liable for the
price of the fire hose and may be taxed again to defray such obligation the proper
remedy is by mandamus to compel the proper authorities again to raise the money
by taxation. Fabric Fire Hose Co. v. Town of Whitestown (1919), 187 App. Div. 118.

28. Women may vote on an appropriation of money for a fire district. Rept.
of Atty. Genl. 407.

Assessments for fire department purposes. Rept. of Atty. Genl. (1896). 188.
Taxation in fire districts in unincorporated villages. Rept. of Atty- Genl. (1899) 356.
"8 COUNTIES; BOARDS OF SUPERVISORS.
County Law, § 38.

town officers. Such meetings shall be open to receive ballots for not
less than two hours, which hours shall be stated in the notice. There
shall be one inspector to receive ballots and one clerk to record the names
of the voters. The chairman, inspector and clerk shall receive the sum of
three dollars each for their services as such.

8. The board of supervisors in any county in which any such fire
district shall have been heretofore or shall be hereafter established,
or, where such fire district is located in two or more counties, the several
boards of supervisors of the counties in which a part of such fire dis-
trict is located, by resolution adopted in the manner provided for the estab-
lishment of such district, may at any time, upon the written verified
petition of the taxable inhabitants of any such district, whose names
appear upon the last preceding assessment-roll of the town within which
such district is located as owning or representing more than one-half
of the taxable real property of such district, or as owning or representing
more than one-half of the taxable real property in such district owned
by the residents thereof, discontinue such district as a fire district,
and upon such action being taken by the supervisors, the fire commissioners
of such district, where it is wholly within a village incorporated since
said district was formed, shall turn over to any fire corporation organized
by the trustees of said village all the property thereof, such village to
pay all the debts thereof, and in other than such last-named districts
the fire commissioners shall proceed to sell the property belonging to such
district at public sale; three notices of such sale shall be posted conspicu-
ously in three of the most public places in the district, for a period of
thirty days prior to the sale, and the proceeds of such sale shall be paid
over by the treasurer of the district to the supervisor of the town and
the sum so paid over shall be credited to the taxable real property
located in such district, in the next succeeding assessment of town taxes,
provided, however, that, if there be outstanding any bonded or other in-
debtedness of such fire district, the proceeds of such sale shall be used
to pay such bonds or obligations as shall then be due, and as to any bonds
or obligations which are not due, such part of said proceeds as shall be
sufficient to meet such outstanding bonds or obligations at their maturity
shall be invested and held by the county treasurer under the supervision
of the board of supervisors as a sinking fund for the redemption of such
outstanding bonds or obligations at their maturity. Provided, however,
that if it shall, at any time, be possible to purchase at par or less any
of such bonds or obligations, such board of supervisors may cause to be
bought in and canceled any such bonds or obligations of the fire district ;
and if such proceeds of such sale and the income therefrom be not
sufficient to redeem such bonds or obligations at their maturity, and to
pay the interest thereon, then there shall be levied and collected, in annual
GENERAL POWERS OF BOARDS OF SUPERVISORS. 79
County Law, § 38.

instalments, from the district charged with the payment of such bonds or
ebligations, such 4 sum as will be sufficient to pay the interest on such bonds
er obligations and to redeem them at their maturity. If, however, there shall
be any excess collected, such excess shall be paid over to the supervisor of the
town, and the sum so paid over to the supervisor shall be credited to the tax-
able real property located in such district, in the next succeeding assessment
of town taxes. [Sub. amended by L. 1910, ch. 115.]

9. Whenever any portion of any such fire district heretofore or hereafter
established shall be incorporated into the corporate limits of any incorporated
village or city, the board of supervisors of the county in which such district is
located, or where such fire district is located in two or more counties, the
several boards of supervisors, by resolution adopted as herein provided for
the establishment of such district, shall, upon the written verified petition of
more than one-half in assessed valuation of the taxable inhabitants of such in-
corporated portion of the fire districts, or upon the written, verified petition
of: more than one-half in assessed valuation of the taxable inhabitants of such
unincorporated portion of the fire district, change the boundaries of such
district in such manner as shall exclude such incorporated portion of the
district, if the petition be by such taxable inhabitants of the incorporated por-
tion, or in such manner as to exclude such unincorporated portions of the
district, if the petition be by such taxable inhabitants of the unincorporated
parts and thereafter such excluded portion of the district shall not be entitled
to the protection, nor liable to be assessed or taxed for the support of the fire
department of such district, and the portion not excluded shall thereupon
assume and be liable to pay all the bonded or other indebtedness of said
district. [Sub. amended by L. 1910, ch. 115.]

10. Where any two fire districts not within any incorporated village adjoin
each other,.the boundary line between such districts may be changed by the
board of supervisors of the county in which they are located, or, where such
fire district is located in two or more counties, by resolution adopted in the
manner herein provided for establishing such district, as the case may be, upon
a written verified petition of the taxable inhabitants of the portion of the fire
district applied to be changed, whose names appear upon the last preceding
assessment-roll of the town within which said portion of said fire district is
located, as owning or representing more than one-half of the taxable property
of such portion of said fire district, or as owning or representing more than
one-half of the taxable real property of such portion of said fire district owned
by the residents thereof, provided the taxable inhabitants of both srid fire 1is-
tricts and within the county, whose names appear upon the last preceding
assessment-roll of the town or towns, owning or representing more than one-
half of the taxable property of said district, or as owning or representing more
than one-half of the taxable real property of such fire districts owned by the
residents thereof, shall consent in writing to such change.

11. Territory not in a city, village or fire district may be annexed to an adjoining
fire district as provided in this subdivision. A verified petition for such annexation
describing the territory and signed by taxable inhabitants whose names appear on
the last_preceding assessment-roll of the town wherein such proposed annexed terri-
tory is located as owning or representing more than one-half of the taxable real
property of such annexed territory or as owning or representing more than one-half
of the taxable real property of such annexed territory owned by the residents
thereof, may be presented to the commissioners of such fire district. Each person
signing the petition shall state opposite his or her name the assessed valuation of
ve property assessed to him or her in such territory. Such petition must be verified
by at least three persons signing the same to the effect that the petition represents
in value more than one-half of the assssed valuation of the property as above
described or that it represents in value more than one-half of the taxable real prop-
erty of such territory owned by the residents thereof. Such petition must be accom-
panied by a resolution of the board of supervisors of the county in which such ter-
ritory is situated consenting to such annexation. Upon the presentation of such
petition and consent the fire commissioners shall cause a proposition for such annexa-
tion to be submitted at a special election.28a If the proposition be adopted, the

 

28a. Who may vote on question of annexation. Only qualified voters residing in
the original fire district are entitled to vote at a special election called for the
80 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 38.

petition and consent and the certificate of the election shall be recorded
in the book of records of the commissioners of the district. Such
annexation shall take effect upon the receipt by the fire commissioners
of the certificate of the clerk of the board of supervisors, under the
seal of his office, certifying that he has received and placed on file in
the office of the board of supervisors an outline map and description of
the corporate limits of such fire district as extended, together with the
date of filing’ the same in his office. Such outline map and description
shall plainly show and describe the territory annexed. A certificate
thereof containing a description of the territory annexed shall, within
ten days after such election, be filed by the fire commissioners in the
offices of the clerk of the town and of the county in which such an-
nexed territory is situated. [Subd. 11, as added by L. 1913, ch. 127.]

12. The fire commissioners of any fire district, created pursuant to
this section, shall have power to adopt ordinances, not inconsistent
with law, applicable to the territory within the district, for preventing
and extinguishing fires and regulating conduct thereat; for regulating
or preventing the discharge of fireworks and firearms; for regulating
the use of inflammable materials and the storing, sale and transporta-
tion of such materials and of gunpowder and other explosives ; for pro-
teeting and preserving the property and apparatus of the department;
for preventing damage from fires and protecting property exposed
to destruction by fire; for the pulling down, blowing up and removal
of buildings and property to arrest fires or extinguish the same; for
regulating the parking of automobiles and other conveyances in the
locality of fire houses and hydrants; for regulating the erection of
buildings were extra hazardous business is to be carried on and the
carrying on of such business; for regulating the attendance in
public buildings and the use of the aisles and standing room for
spectators, and the erection of fire escapes on all public buildings;
and for such other and further purposes as shall tend to provide for
the general safety of the persons and property within such district.
The board may enforce observance of such ordinances by the imposi-
tion of penalties and by actions to collect the same. [Subd. 12, as
added by L. 1921, ch. 29.]

13. If a fire district established pursuant to this section be wholly
within and substantially coterminous with a lighting district estab-
lished pursuant to article twelve of the town law, the town board of
the town in which such fire district is located, or if it be located in
two or more towns, the town boards of such towns by joint action, may
call a meeting of the resident taxpayers of the fire district for the
purpose of voting upon a proposition to merge such fire district with
the lighting district in which it is located. Such meeting shall be
called by a notice posted conspicuously in at least two of the most
GENERAL POWERS OF BOARDS OF SUPERVISORS. 80a

County Law, § 38.

public places in such fire district, at least ten days before the holding
of any such meeting, which notices shall state the time, place and pur-
pose of the meeting. Such meeting shall be presided over by the clerk
or clerks of the towns in which such fire district is located. The resi-
dent taxpayers attending such meeting shall select an inspector to re-
ceive ballots, and a clerk to record the names of the voters. Such
meeting shall be open to receive ballots for not less than two hours,
which hours shall be stated in the notice. Every taxpayer in such fire
district who is assessed for real or personal property on the last pre-
ceding assessment-roll of the town in which he resides shall be entitled
to vote thereat. Ifa majority of the ballots cast upon such proposition
be in the affirmative, the officers presiding over such meeting shall file
a certificate of the result of such election in the office of the clerk or
clerks of the town or towns in which such fire district is located. Upon
the filing of such certificate, the fire district as a separate district shall
be abolished, and the boundaries thereof shall be deemed extended so
as to be coterminous with the boundaries of the lighting district in
which such fire district is wholly situated. The fire commissioners of
such fire district, upon request, shall turn over to the clerk of the town
in which such district is located, or if located in two or more towns to
the clerk of the town whose office shall be agreed upon as the record
office of the fire district by the town boards of the towns in which such
fire district is located, all the books, records and personal property
of the fire district. After such merger is effected the office of fire com-
misioner and treasurer of the fire district shall be abolished, and the
town board of the town, or the town boards of the several towns, in
which such fire district is located shall, in respect of such fire district,
have all the powers of fire commissioners under this section. The
money needed for any purpose authorized by this section shall be ap-
propriated or raised only in the manner authorized by the town law
for expenses incurred or to be incurred, under article twelve of the
town law. The principal and interest of bonds of the fire district out-
standing at the time of such merger shall be a charge only upon the
real property included within the fire district, and the amount needed
to pay such interest and principal, as the same shall become due, shall
be assessed; levied and collected on the territory included in such for-
mer fire district in the same manner at the same time and by the same
officers as the taxes of the town in which the fire district is located
are assessed, levied and collected, and the town board of the town in
which such district is located shall provide for the manner in which
such interest and principal shall be paid. The treasurer of the fire
district shall pay over to the supervisor of the town in which such fire
district is located, or if located in two or more towns, to a supervisor
of one of such towns to be selected by the town board or boards, any
money of the fire district remaining in his hands at the time of such
80> COUNTIES; BOARDS OF SUPERVISORS.
County Law, §§ 39, 40.

merger, and shall take a receipt therefor. Any of such unexpended

balance shall be expended for the purposes specified in this section, as

provided by the town board of the town or towns in which such fire

district is located. [County Law, § 38, as amended by L. 1909, ch.

405; subd. 13, added by L. 1922, ch. 118.]

§ 12. EFFECT OF INCORPORATION OF VILLAGE WITHIN LIMITS OF
FIRE DISTRICT.

Whenever any fire district is located entirely within the corporate
limits of two or more villages by virtue of the incorporation of such vil-
lages after the establishment of such fire district, and the said villages
or either of them has not been excluded from the limits or boundaries
of such fire districts in accordance with the provisions of section thirty-
eight of this chapter, the town board and the board of fire commission--
ers of such fire district, shall meet together on the Friday next preced-
ing the annual meeting of the board of supervisors and estimate the
amount necessary for the support of the fire department within such
fire district, the purchase, lease and maintenance of suitable real estate
and buildings for the keeping and storing of the same for the purchase
of the water supply for fire purposes and for the payment of debts and
accounts which may have become due and shall certify the same to the
board of supervisors of the county, which said estimated amount shall,
in the same manner as the expenses of the town are raised, be assessed,
levied and collected only from the property within such fire district.
The collector shall pay the sums thus collected to the supervisor of the
town who shall pay the same to the treasurer of the fire district upon
the order of the board of fire commissioners. [County Law, § 39, B.
C. & G. Cons. L., p. 740.]

§ 13. SOLDIERS’ MEMORIAL; BOARD OF SUPERVISORS MAY APPRO-
PRIATE MONEYS FOR THE ERECTION OF.

Any such board may also, by a vote of two-thirds of its members,
raise and appropriate such moneys as it may deem necessary, for the
erection within the county of public monuments or memorials, in ecom-
memoration of the soldiers, sailors, marines and nurses who served in
the forces of the United States in any of its wars, or of any other pub-
lie person or event, and for repairing, remodeling and maintaining such
monuments or memorials; all moneys so raised shall be expended by
direction of the board of supervisors or may be expended by trustees
of such monument or memorial to be appointed as may be provided by
law; but no county officer or such trustee shall: receive any compen-
sation for services rendered pursuant to this section. Provided, how-

 

purpose of annexing territory. Those residing in the territory to be an-
nexed are mere petitioners submitting their requests to the original fire dis-
trict and can in no way participate in such special election. Opinion of Atty.
Cenl., November (1916), 9 State Dept. Rep. 449.
GENERAL POWERS OF BOARDS OF SUPERVISORS. 81
County Law, §§ 41, 42.

ever, that if, at the time of the appropriation of such moneys by the
board of supervisors, a monument or memorial in commemoration of
soldiers, sailors, marines or nurses, or of any of them, who served in
any wars or a particular war, or a monument or memorial in com-
memoration of the public person or event, in commemoration of whom
or of which a monument or memorial is to be erected by the county,
shall have been erected, or a site provided therefor, in any city, town
or village within the county at the expense of the city, town or village
or by public contributions or subscription, or partly by each method,
no tax shall be levied on the property within such city, town or village
to provide for or replace any part of the moneys so appropriated by
the county.” [County Law, § 40, as amended by L. 1920, ch. 391, and
LL. 1921, ch. 283.]

§ 14. TEMPORARY LOANS; ISSUE OF OBLIGATIONS THEREFOR.

Whenever moneys are borrowed by a county on temporary loans, pur-
suant to a resolution duly adopted by the board of supervisors of such
county, in anticipation of the taxes of the current fiscal year and for the
purposes for which such taxes are levied, as provided by section five of
the general municipal law, the notes, certificates of indebtedness or other
county obligations issued for the moneys so borrowed shall be signed by
the county treasurer and countersigned by the county clerk. The county
clerk shall enter in a book in his office, to be provided therefor at the
expense of the county, the date of each such note, certificate of indebt-
edness or other county obligation, the amount for which it was issued,
the time when payable, and a general statement as to the resolution of
the board of supervisors authorizing the’ issue thereof. [County Law,
§ 41, B. C. & G. Cons. L., p. 741.]

§ 14-2. SUPERVISORS TO FURNISH FUNDS FOR NECESSARIES FOR COURTS
OF RECORD.

1. Except where other provision is made therefor by law, the board
of supervisors of each county must provide each court of record therein,
and the resident judges and justices thereof, with proper and con-
venient rooms and furniture, together with court attendants, fuel, lights,
telephone, postage and stationery suitable. and sufficient for the trans-
action of its business. If the supervisors shall neglect so to do, the

 

29, Erection of public monuments. Town Law, § 45, provides that: “It shall
be competent for electors of any town, at any regular town meeting at any regular
election to vote any sum of money, to be designated by a majority of all the electors
voting at such town meeting or election, for the purposes of erecting a public monu-
ment within such town in memory of the soldiers of such town or in commemoration
of any public person or event; but no debt shall be created nor shall any tax be
imposed on any town for such purpose unless the same shall have been voted for
by a majority of the legal voters of the town affected, voting at such election. The
board of supervisors may legalize the vote of any town for such purpose, and
after such vote they may raise or authorize the specified sum or sums of money to
be raised for such purpose in any of the modes provided for by law for raising
money for towns. All moneys expended by any town for the purposes authorized by
this section shall be expended under the direction of the supervisor, town clerk and
justices of the peace of such town or a majority of them or by a commissioner or
commissioners for that purpose appointed by such town officers or by a majority of
them. But nothing in this section shall affect the right of the electors to vote on a
proposition heretofore directed to be submitted by a board of supervisors, or the
power of a board of supervisors to carry into effect the vote upon such proposition.’’
82 COUNTIES; BOARDS OF SUPERVISORS.

County Law, §§ 44, 210.

court may order the sheriff to make the requisite provision; and the
expense incurred by him in carrying the order into effect, when cer-
tified by the court, is a county charge. [Subd. 1, amended by L. 1915,
ch. 443, and L. 1919, ch. 50.]

2. Except where other provision is made therefor by law, the ex-
pense of providing suitable food and lodging, and other necessary ex-
penses, for a jury in a court of record kept together either during the
progress of a trial or after they retire for deliberation, and, except in a
case of a salaried interpreter appointed under the provisions of section
three hundred and eighty-seven of the judiciary law and except in a
county in which the appointment or compensation of court interpreters
is governed by a special or local act or by a special provision of a gen-
eral act, the compensation and expense of procuring an interpreter for
the court during a term or part of a term or for special services, may be
incurred by direction of the court and accounts therefor audited by the
judge or justice presiding, and shall be paid by the county treasurer,
out of county funds available therefor, upon an order of the court
directing such payment, without the audit or authorization of any other
body or officer; and a certified copy of each such order shall be trans-
mitted by the clerk of the court to the county treasurer. It shall be the
duty of the board of supervisors to provide annually by taxation, and
appropriate and set apart for the courts of record held within the
county, sufficient moneys to meet the requirements of this subdivision.
If at any time the funds available for such expenses be not provided or
be insufficient, the court may order the sheriff to make the requisite
provision therefor; and the expense incurred hy him in carrving the
order into effect, when certified. by the court, shall be a county charge.
[County Law, § 42, as amended by L. 1913, ch. 394, L. 1915, ch. 443,

and L. 1919, ch. 50.]

§ 15. ESTABLISHMENT OF COUNTY LABORATORIES.

The board of supervisors of any county shall have the power, by the vote of a ma-
jority of said boerd, to establish a county laboratory and to appoint a thoroughly
trained and competent county bacteriologist to have charge of such laboratory, and
such assistants as may be required. [County Law, § 43; B. C. & G. Cons. L., p. 742.1

Such board of supervisors sha!l have, by like vote, power to fix the compensation of
such county bacteriologist and to remove him from office; fix the compensation of such
assistants and remove them from office; also to provide any necessary supplies, equip-
ments, and samples not otherwise provided. Such board of supervisors may from time
to time make such rules and regulations concerning the duties and liabilities of such
officers as said board may deem for the best interests of the county. Provided that
the board of supervisors of any county having no county bacteriologist may, and
such board is hereby authorized and empowered to make a contract with a county
having such county bacteriologist and county laboratory, or with a city having a city
bacteriologist and city laboratory, for the performance of such services as said board
may deem necessary in the interests of public health. [County Law, § 44; B.C. & G.

Cons. L., p. 742.]

§ 16. COUNTY ATTORNEY.

The board of supervisors in any county may appoint a county attorney. The term
of office of a county attorney so appointed shall be two years and his salary shall be
fixed by the board of supervisors and be a county charge. A county attorney may be
removed by the appointing officer for inefficiency, neglect of dutv or misconduct in
office, but onlv after notice and an opportunity to be heard. The board of supervisors
mav. hy local law, prescribe the duties of the county attorney, which duties mav
include the services to town boards and town officials when not in conflict with
the interests of the county. [County Law, § 210, as amended by L. 1918, ch. 573;
B. C. & G. Cons. L., 2d Ed., p. 1536.]
COUNTY BOARDS OF CANVASSERS. 83

Explanatory Note.

CHAPTER V.

BOARDS OF SUPERVISORS AS BOARDS OF COUNTY CANVASSERS.

EXPLANATORY NOTE.

County Canvass.

The powers and duties of boards of supervisors as county canvassers
are prescribed by sections 272 to 278 of the Election Law (L. 1922, ch.
588, in effect April 12, 1922). The proceedings of the board as to the
canvass of votes cast at general elections held in the county are de-
clared in such sections. The canvass includes the consideration of
statements received from the inspectors of the several election districts
in the county, and the determination of the number of votes cast in
the county for the candidates for public office and for and against such
propositions as may have been submitted at the election. Separate
statements are required to be made of the votes cast for electors, state

officers, representatives in congress, members of assembly, state sena-
tors, county offices and proposed constitutional amendments or other

propositions.
Meetings and organization of board of canvassers.

The board of supervisors meets as a board of county canvassers in
the county clerk’s office on the Tuesday following the election. The
board must then elect a chairman. The county clerk acts as the secre-
tary of the board; in his absence, the deputy county clerk acts as such.

Section 1. County boards of canvassers; board of canvassers of the city of
New York and the counties therein.
2. Canvass of election district returns of general and special elec-
tions.
8. Statements of canvass by canvassing boards.
Determination by county and city canvassing boards. -
5. Transmission of statements of canvassing boards to secretary of
state.
6. Canvass of statements of general and special elections by state
board of canvassers. ‘

7. Proceedings by boards of canvassers to carry into effect a court
order.

~
84 COUNTIES; BOARDS OF SUPERVISORS.

Election Law, § 272.

§ 1. COUNTY BOARDS OF CANVASSERS; BOARD OF CANVASSERS OF
THE CITY OF NEW YORK AND THE COUNTIES THEREIN.1

Outside of the city of New York, the board of supervisors of each
county shall be the county board of canvassers of such county. Such
board also shall be the city board of canvassers of any city or cities
within the county for a city election held with the general election,
except as otherwise provided in local acts enacted after the cighth day
of June, nineteen hundred and ten, and except also that the council of
the city of Buffalo shall be the city board of canvassers of such city.
The board of elections of the city of New York shall be the county
board of canvassers of each of the counties in such city and the city
board of canvassers of such city. The term ‘‘canvassing board’’ as
used in this article, shall mean the county board of canvassers, in-
eluding the board of elections of the city of New York sitting as such
a county board and as a city board of canvassers. In the city of New
York, the secretary of the board of elections, or, if he be absent or un-
able to act, a member or chief clerk designated by the board, and else-
where the president of the board of clections, or, if he be absent or un-
able to act, the secretary of such board, or, in a county having a single
commissioner of elections, such commissioner, or, in a county in which
the county clerk? is the board of elections, such clerk or a deputy clerk
designated by him, shall be the secretary of the canvassing board.
Each canvassing board shall meet on the Tuesday next after each elee-
tion of public officers, held within its jurisdiction, except an election of
town, city, village or school district officers held at a time other than
that of a general election, or before that day and not carlier than the
Thursday following the election, if the secretary shall issue a call
therefor. The canvassing board shall meet at the place where it
usually meets in other capacities, but in the city of New York its duties
may be performed in any or all of the offices of the board of elections.
The canvassing board shall organize by selecting one of its members as
chairman. The secretary shall administer the constitutional oath of
office to the chairman, who shall then administer such oath to the sec-
retary and each member of the board. A majority of the members of
the board shall constitute a quorum, but if a majority shall not attend
on the day fixed for the meeting, the members present shall elect the
chairman and adjourn to a stated hour of the next day. [Election
Law, § 272.]

 

1. As to conduct of elections and powers and duties of county boards of
canvassers, see Jewett’s Election Manual, 1921. Published by Matthew
Bender & Co., Albany, N. Y.

2. If the county clerk fails to appear, and if his deputy be also absent, the
board has power to appoint a secretary in their place to perform the duties
which appertain to that office. The same is true, if the county clerk is pres-
ent but refuses to perform his duties. People ex rel. Daley v. Rice, 129 N. Y.
449; 29 N. BE. 355.
COUNTY BOARDS OF CANVASSERS. 85
Election Law, § 273.

§ 2. CANVASS OF ELECTION, DISTRICT RETURNS OF GENERAL AND
SPECIAL ELECTIONS.

The board of elections with which they were filed shall produce or
deliver to the canvassing board all the returns, with tally sheets, if any,
annexed, containing the statement of canvass received from inspectors
of election for election districts within the county, or each county, for
which such canvassing board is constituted. If a return for any such
election district cannot be so produced or delivered, the canvassing
board shall require the other return, filed with a county, city or town
elerk, to be produced. The canvassing board shall then proceed to
canvass the vote cast within the county,’ or, in the city of New York,
within each county in the city; provided, however, that a county board
of canvassers shall not canvass the votes for town officers or upon town
questions or appropriations except in a county where, by the provisions
of the town law or other statute, such board is required to canvass
the same. The canvass of votes for the office of United States senator
to fill a vacancy shall be completed within ten days after the election.
If, during the canvass, there shall clearly appear, in the return for any
district filed with the board of elections, to be any omission or clerical
mistake, the canvassing board may cause to be produced and may ex-
amine the return filed with the county, city or town clerk, to ascertain
the action of the election officers, or, where any such omission or mis-
take clearly appears in any return, or two returns for the same dis-
trict examined by the board are inconsistent, the canvassing board may
summon the election officers before the board, and such officers shall
meet forthwith and make any necessary correction, in order that their
canvass may be correctly stated,* but they shall not alter any decision

 

8. Determination of board. It is not the duty of a board of county can-
vassers to ascertain which of the candidates for an office was in fact elected,
but simply to determine from the documentary evidence before them, fur-
nished by inspectors of election, upon which alone they may act, the number
of votes given for each candidate. People ex rel. Noyes v. Board of Canvas_
sers, 126 N. Y. 392.

Ministerial duties. Board of county canvassers cannot act judicially. Id.
People ex rel. Blodgett v. Board, 44 N. Y. St. Rep. 738, 19 N. Y. Supp. 206;
Matter of Woods, 5 Misc. 575, 26 N. Y. Supp. 169; People ex rel. Derby v.
Rice, 129 N. Y. 461. See Matter of Hart, 161 N. Y. 507.

4. Correction of errors. A board of county canvassers has only minis-
terial and not judicial duties to perform, and cannot enter upon a judicial
investigation to ascertain the genuineness of a return which the law requires
inspectors to make to it. The correctness of such return is favored by the
presumption of, official honesty and regularity. If the returns are not regu-
lar, the board should send them back to the inspectors for correction. Peo-
ple ex rel. Russell v. Board, 46 Hun 390; People ex rel. Noyes v. Board of
County Canvassers, 126 N. Y. 392, 27 N. EB. 792; People ex rel. Fiske v.
Devermann, 83 Hun 181, 31 N. Y. Supp. 593.
86 COUNTIES; BOARDS OF SUPERVISORS.
Election Law, § 273.

theretofore made by them. The canvassing board may adjourn from

 

Boards of canvassers have no power conferred upon them to correct frauds
or rectify mistakes, except clerical ones. Their duty is simply to add to-
gether the statements of results filed with them by inspectors. People ex rel.
Blodgett v. Board of Town Canvassers, 44 N. Y. St. Rep. 738, 19 N. Y. Supp.
206. But returns cannot be sent back to inspectors of election for a recount.
People ex rel. Fiske v. Devermann, 83 Hun 181, 31 N. Y. Supp. 593.

A writ of mandamus will issue to compel the board to send back to the
inspectors, for correction, returns which do not show upon their face that
any particular person received any votes whatsoever and which do not con-
tain a statement of the number of general ballots protested as ‘‘marked for
identification.” People ex rel. Ranton v. City of Syracuse, 83 Hun 203; 34
N. Y. Supp. 661; People ex rel. Munro v. Board, 129 N. Y. 469. But where
it does not clearly appear that a clerical error exists in the returns of a can-
vass an application to the court to have it corrected will be refused. Matter
of Application of Aldermen, 49 N. Y. Supp. 241.

When the statement or return states a less number of votes for certain
candidates than that shown by the unquestioned tally sheet the board of
county canvassers may be required by mandamus, on the petition of the can-
didates prejudiced, to exercise the powers conferred by this section to sum-
mon inspectors to correct their returns. Matter of Stewart, 155 N. Y. 545,
affg. 24 App. Div. 201, 48 N. Y. Supp. 957.

There is no authority in the election law or otherwise granting the su-
preme court power to make an order directing inspectors of election to pro-
duce a tally sheet, where such action would force them to make a tally sheet
from memory, or where nothing is omitted from the statement of the canvass
and no merely clerical errors exist therein, to direct the inspectors to recan-
vass the vote. People ex rel. Fiske v. Bantz (1918), 222 N. Y. 676, 118 N.
E. 807, affg. 181 App. Div. 702, 168 N. Y. Supp. 965.

Mandamus to compel inspectors of election to correct return as to soldier
votes; intention of voter. A soldier ballot marked ‘‘Dr. Brush” was not pro-
tested, and the inspectors of election credited the same to Edward F. Brush,
the intention of the voter being clearly apparent. Held, that mandamus
would not lie to compel the inspectors of election to correct their return.
People ex rel. Fiske v. Anderson (1918), 181 App. Div. 705, 168 N. Y. Supp.
839, affd. 222 N. Y. 678.

Where local inspectors, not provided with tally sheets as required by § 334
of the election law, as amended, after they had canvassed soldier votes,
returned the result, a candidate for mayor upon affidavit that he had been
informed by an inspector and a watcher that the true results of the count had
been transposed by the inspectors, is not entitled to a writ of mandamus to
eorrect the return, as the court has no power in such proceeding to open the
ballot box and direct a recanvass of the votes so cast. But clerical errors on
the return or made apparent by not agreeing with the tally sheet may be
thus corrected. People ex rel. Fiske v. Bantz (1918), 181 App. Div. 702,
168 N. Y. Supp. 965, affd. 222 N. Y. 680. :

Where a ballot was marked with the word ‘‘Fiske”’ and the inspectors fail-
ed to find the voter’s intent to vote for the relator Edwin W. Fiske and there
was no protest in regard to said ballot, the court, on application for a writ
of mandamus to correct the return, has no authority to count said vote for
the relator. A subsequent assertion that all the soldier ballots had been
COUNTY BOARD OF CANVASSERS. 87
Election Law, § 274.

day to day, not exceeding three days in all, for the purpose of receiv-
ing corrected statements. [Election Law, § 273.]

§ 38. STATEMENTS OF CANVASS BY CANVASSING BOARDS.

Upon the completion of the canvass the canvassing board shall make
statements thereof showing separately the result as to each office or
question® Each such statement shall set forth, in words written out at
length, all votes cast for all the candidates for each office ; the name of
each candidate; the number of votes so cast for each, and, in the case
of a candidate for governor or member of assembly who was nominated
by two or more parties or independent bodies, the number separately
stated of votes cast for him as the candidate of each party or inde-
pendent body by which he was nominated; and all votes so cast upon
any proposed constitutional amendment or other proposition or ques-
tion, and all votes so cast in favor of and against the same respectively.
In the city of New York, the board shall make no statement of the
votes cast within a county therein for any candidate for the office of
member of assembly, state senator or representative in congress voted
for also in a county outside of such city.

Such statements shall be certified as correct over the signatures of
the members of the board, or a majority of them, and such statements,
together with any tabulation sheets showing the vote by election dis-
tricts from which such statements were made, shall be filed in the office

 

protested’ because of a certain challenge or objection, did not authorize an
order for a recount and recanvass. People ex rel. Fiske v. Schum (1918),

181 App. Div. 717, 168 N. Y. Supp. 967, affd. 222 N. Y. 679.
Upon an application for a writ of mandamus in a proceeding relating solely

to soldiers’ votes, questions with reference to the procedure under the Elec-
tion Law as amended by L. 1917, ch. 815, and as to the validity of certain
ballots considered, and Held, that no ballot should be rejected as void where
the intent of the voter was clearly apparent. People ex rel. Fiske v. In-
spectors of Election (1917), 102 Misc. 136, 168 N. Y. Supp. 398.

5. The statement returned by board of county canvassers to the state board
may not lawfully contain anything save the whole number of votes in the
county, the names of the candidates, and the number of votes given for each,
and this must be made up solely from the original statements of the canvass
returned by the inspectors in each and all of the election districts of the
county. Such a board has no authority to transmit with its return any paper
attacking the validity of the election, and if such a paper is so transmitted
the state board has no power to consider it. People ex rel. Derby v. Rice,
129 N. Y. 461.

Separate return of votes cast for candidates of political party. The court
cannot compel a county board of canvassers to make its return so as to show
separately the number of votes cast for the office of governor in the column
and under the emblem of a political party whose candidate for the office of
governor was the same as that of another political party, in order that it may
appear from the returns filed in the office of the secretary of state whether or
not such political party polled the required number of votes for state officers
S8 COUNTIES; BOARDS OF SUPERVISORS.
Election Law, § 275.

of the board of elections. To facilitate its work, the board of elections

may cause copies of such tabulation sheets to be printed in pamphlet
form. Statements of the canvass as made by inspectors and used by

the canvassing board shall be returned to the officer or board from
whom or which they were received. The secretary of the canvassing
board shall file a report of the canvass with the board of supervisors,
except in the city of New York. [Election Law, § 274.]

§ 4. DETERMINATIONS BY COUNTY AND CITY CANVASSING BOARDS.

Upon the completion of the statements required by the preceding
section the canvassing board shall determine what person has by the
greatest number of votes been elected to each office of member of as-
sembly within the county, and each person elected by the greatest num-
ber of votes to each county office, and each person elected by the great-
est number of votes to each city office of a city of which it is the city
board of canvassers. The board of elections of the county of Hamilton
shall transmit forthwith to the board of elections of the county of Ful-
ton a certified copy of the statement filed in its office as to the votes cast
in Hamilton county for candidates for the office of member of assembly
of the assembly district composed of Fulton and Hamilton counties;
and the board of elections of Fulton county shall deliver the same
forthwith to the Fulton county board of canvassers, who shall from
such certified copy, and from its own statement as to the votes cast for
the candidates for such office in Fulton county, determine what person
was elected by the greatest number of votes to such office. The can-
vassing board also shall determine whether any proposition or question
submitted only to the voters of the county, or only to the voters of a
city of which it is the city board of canvassers, as the case may be, has
by the greatest number of votes been adopted or rejected.

All such determinations shall be in writing and signed by the mem-
bers of the canvassing board or a majority of them and filed and re-
corded in the office of the board of elections. «Except in the city of
New York, the board of elections shall cause a copy of such deter-
minations, and of the statements filed in its office upon which such de-
terminations were based, to be published once in each of the news-
papers designated to publish election notices and the official canvass.
The statement of canvass to be published, however, shall not give the
vote by election districts but shall contain only the total vote for a
person, or the total vote for and the total vote against a proposition
or question, cast within the county, or within the portion thereof, if
any, in which an office is filled or proposition or question is decided by
the voters if the canvass of the vote thereon devolves upon the county
board of canvassers.

 

to entitle it to make its nominations by conventions during the next vear.
There is no provision in the statute authorizing such a separate return. Peo-
ple ex rel. Boies v. Board of Canvassers, 79 App. Div. 514, 80 N. Y. Sunn, 95,
COUNTY BOARDS OF CANVASSERS.. 89
Election Law, § 276.

The board of elections shall prepare and forthwith transmit to each
person determined by the canvassing board to have been elected a cer-
‘tified statemnt that such canvassing board declared him elected, nam-
ing the office. [Election Law, § 275.]

§ 5. TRANSMISSION OF STATEMENTS OF CANVASSING BOARDS TO
SECRETARY OF STATE.

The board of elections’ shall transmit by mail to the secretary of
state and state comptroller each a certified copy of the statement of.
the canvassing board relating to the offices of electors of president and
vice-president of the United States, United States senator, representa-
tives in congress and state offices, except member of assembly, and as
to the votes cast on any proposed constitutional amendment or other
question submitted to all the voters of the state, within five days after
the filing of such statements in the office of the board, and shall so
transmit certified copies of any statement relating to the office of
United States senator, when the election is to fill a vacancy, immedi-
ately after such filing. The comptroller, forthwith upon the receipt
thereof, shall deliver such copy to the secretary of state. If any cer-
tified copy shall not be received by the secretary of state on or before
the last day of November next following a general election, or within
twenty days after a special election, he shall dispatch a special mes-
senger to obtain such certified copy, and the board of elections, im-
mediately upon demand of such messenger at its office, shall make and
deliver a certified copy to such messenger who shall deliver it forth-
with to the secretary of state.

The board of elections shall transmit to the secretary of state within
twenty days after a general election, and within ten days after a spe-
cial election, a list of the names and residences of all persons deter-
mined by the canvassing board to be elected member of assembly or

 

6. Canvass of votes cast for persons of similar names. The board of
county canvassers cannot determine that the votes cast for several somewhat
similar names were all intended for the same person, and from the result
thus reached issue a certificate of election to him, but they should certify
separately the separate names and issue the certificate of election to the one
entitled thereto on the face of the returns. People ex rel. Katham v. County
Board of Canvassers, 75 App. Div. 110, 77 N. Y. Supp. 620.

7. Failure or refusal of clerk to send statement. If the county clerk fails
or refuses to send certified copies of the statements of county boards to secre-
tary of state and other state officers, the board may cause statements, at-
tested by one of their number acting as secretary pro tempore, to be trans-
mitted, and such statements shall be filed and considered by the board of
state canvassers as the properly certified result of the canvass of the board
of county canvassers. People ex rel. Daley v. Rice, 129 N, Y. 449, 29
N. E. 358.

The court cannot compel the return to be changed so as to show that a
political party polled 10,000 votes, and is thus entitled to make nominations
by convention. People ex rel. Boies, 79 App. Div. 514.
90 COUNTY BOARD OF CANVASSERS.
Election Law, § 277.

to any county office, and on or before the fifteenth day of December
following an election of governor, a certified tabulated statement, by
election districts, of the official canvass of the votes cast for candidates
for governor, to include, in the case of a candidate who was nominated
by two or more parties or independent bodies, a separate statement of
the number of votes cast for him as the candidate of each party or
independent body by which he was nominated. [Election Law, § 276.]

§ 6. CANVASS OF STATEMENTS OF GENERAL AND SPECIAL ELEC-
TIONS BY STATE BOARD OF CANVASSERS.

1. The secretary of state, attorney-general, comptroller, state en-
gineer and surveyor, and treasurer, to be known as the state board of
canvassers, shall canvass the certified copies of the statements of the
county board of canvassers of each county. They shall canvass first
the statements, if any, for the office of United States senator to fill a
vacancy. Three members of the board shall constitute a quorum. The
secretary of state shall call a meeting of the board at his office or at the
office of the treasurer or comptroller, on or before the fifteenth day of
December next after each general election and within forty days after
each special election, to canvass such statements. If three members of
the board shall not attend on a day appointed for a meeting of the
board, the secretary of state shall notify the mayor and recorder of the
city of Albany to attend such meeting and they shall attend accord-
ingly and shall with the other such officers attending, constitute such
board. The board may adjourn from day to day, not exceeding a term
of five days. If any member of the board shall dissent from a decision
of the board or shall protest against any of the proceedings of the
board as irregular, he shall state such dissent or protest in writing
signed by him setting forth his reasons and deliver it to the secretary
of state, who shall file it in his office.

2. Upon the completion of the canvass the board shall make separate
tabulated statements signed by the members of the board or a major-
ity thereof of the number of votes cast for all the candidates for each
office voted for, the number of votes cast for each of such candidates,
the number of votes cast in each county for each of them, and if the
voters of only a district of the state voted for any such candidate, the
name and number of such district, the determination of the board as
to the persons elected to office, the number of votes cast upon each
proposed constitutional amendment or other proposition or question,
the number of votes cast in favor of and against each respectively, and
the determination of the board as to whether it was adopted or re-
jected.

3. Such tabulated statements shall be filed and recorded in the office
of the secretary of state. Thereupon the secretary of state shall trans-
mit a copy, certified hy him, of each such statement as to votes east for
COUNTY BOARD OF CANVASSERS. 91
Election Law, § 278.

candidates for any office, to the person shown thereby to have been
elected to such office. He shall prepare a general certificate under the
seal of the state and attested by him as secretary thereof, addressed
to the house of representatives of the United States, in that congress
for which any persons shall have been chosen, of the due election of all
persons chosen at that election as representatives of this state in con-
gress, and shall transmit the same to the house of representatives at
its first meeting. If any person so chosen at such election shall have
been elected to supply a vacancy in the office of representative in con-
gress, it shall be mentioned by the secretary of state in the statements
prepared by him. [Election Law, § 277.]

§ 7. PROCEEDINGS BY BOARDS OF CANVASSERS TO CARRY INTO
EFFECT A COURT ORDER.

1. Upon the re-convening of the state board of canvassers or any
county board of canvassers, or of the board of elections of the city of
New York as a county or city board of canvassers, by order of a court
of competent jurisdiction, for the purpose of correcting an error or of
performing a duty imposed by law or by an order of the court granted
pursuant to law, the meeting for that purpose shall be deemed a con-

 

8. Court may compel board to perform its duty. The above section is in
effect a re-enactment of L. 1880, ch. 460, authorizing the supreme court in
proceedings by writ of mandamus to correct errors in the determination of
board of county canvassers to compel them to reconvene and declare a
truthful result of the returns before’ them. See People ex rel. Noyes v.
Board of County Canvassers, 126 N. Y. 392, 27 N. E. 792; Kutz v. County
Canvassers, 12 Abb. N. C. 84; People ex rel. Noyes v. Board, 126 N. Y. 392;
People ex rel. Daley v. Rice, 129 N. Y. 449; People ex rel. Munro v. Board,
129 N. Y. 469; People ex rel. Russell v. Board, 46 Hun 390; People ex rel.
Fiske v Devermann, 83 Hun 81, 31 N. Y. Supp. 593.

The board of county canvassers is manifestly created for the fulfillment of
a mere ministerial function. The legislature has not invested it with power
to determine questions concerning the conduct or legality of an election.
These boards derive their powers strictly from the statute. They cannot
hear or consider evidence outside of the returns. They are restricted by the
law of their creation to certain prescribed functions, and in their fulfillment
they act under the written commands of the statute. <A writ of mandamus
will lie against them for a failure to perform a specific duty which has been
imposed upon them by statute, or where they have failed to conform to the
law, or have refused some legal right. People ex rel. Derby v. Rice, 129
N. Y. 461, 29 N. E. 358. The courts in the issuing of such writs will not
compel the board to do that which the statute does not authorize them to
do. Matter of Woods, 5 Mise. 575, 26 N. Y. Supp. 169.

Upon a writ of mandamus to require the board of canvassers to reconvene
and correct alleged errors in its canvass of the votes cast upon a question
relating to the location of county buildings, the court cannot decide whether
the question, as printed on the ballot, was in the form prescribed by law.
People ex rel. Williams v. Board of Canvassers, 105 App. Div. 197, 94 N. Y.
Supp. 996.
99 COUNTIES; BOARDS OF SUPERVISORS.
Election Law, § 278.

tinuance of its regular session, and any new or corrected statement.
determination or certificate which is made to give effect to the order
shall stand in lieu of the original statement, determination or cer-
tificate.

2. When a new or corrected statement or certificate, to give effect
to an order of the court, shall vary from the original statement or cer-
tificate respecting the votes cast for an office as to which the state
board of canvassers is required to canvass statements made by county
boards, the board of elections forthwith shall transmit certified copies
of the new or corrected statement or certificate to the secretary of
state and state comptroller. The state comptroller, immediately upon
receiving it, shall deliver his copy to the secretary of state. The secre-
tary of state shall appoint a meeting of the state board of canvassers
to be held in the city of Albany within five days after he has received
such a certified copy. From such certified copy or copies, such board
shall make a new statement as to the votes for such office cast in the

 

When refusal of mandamus proper. When a relator seeks a determination
by mandamus of a canvassing board that he has been elected to an office in
the possession of another, claiming title thereto, who is not a party to the
proceeding, the court may refuse the writ as a matter of discretion, leaving
him to his remedy in the action provided by law for the determination of a
title to an office. Matter of Hart, 159 N. Y. 278.

The court has no power to interfere by mandamus with the canvassing of
returns, regular upon their face, by the county board, when it is simply
alleged that fraud has been committed in the counting of votes by the inspec-
tors. If there were two returns, one true and the other false, the court might
compel the board to canvass the true one. People ex rel. Gregg v. Board of
County Canvassers, 54 Hun 595, 8 N. Y. Supp. 259.

The court cannot compel the county board of canvassers to change the
returns of a general election so as to show separately the number of votes
east for the office of governor in the name of and under the emblem of, the
political party whose candidate for the office was the same as that of another
political party, in order that it shall appear from the returns filed in the
office of the secretary of state, whether or not such first mentioned political
party polled 10,000 votes for such officer at such election, and is thus en-
titled to make its nominations for the next year by convention. People ex
rel. Boies v. Board of Canvassers, 79 App. Div. 514, 80 N. Y. Supp. 25.

Former § 433 of the Election Law cited in the following cases: People ex
rel. Fiske v. Bantz (1918), 222 N. Y. 681, affg. 181 App. Div. 702, 168 N. Y.
Supp. 965; People ex rel. Fiske v. Schum (1918), 222 N. Y. 684, affg. 181
App. Div. 717, 168 N. Y. Supp. 1124.

Production, etc., of protested, void or blank ballots. If, in the course of
the proceedings upon an application for a writ of mandamus under section
381, the production and inspection or investigation of protested, void or
blank ballots is deemed by the trial court, or special term, aidful or desir-
able, it can by its order secure those results by virtue of this section. Matter
of Whitman (1918), 225 N. Y. 1, revg. 185 App. Div. 571, 172 N. Y. Supp.
748, modfg. 105 Misc. 74, 172 N. Y. Supp. 830.
COUNTY BOARD OF CANVASSERS., 93
Election Law, § 278.

state or political subdivision in which such office ts filled, and shall de-
termine and declare what person or persons whose votes are affected

by such new or corrected statement have been, by the greatest number
of votes, duly elected to the office or offices. The state board of can-
vassers and the secretary of state shall respectively have the same
powers and duties in respect of new or corrected statements that they
have in respect of original statements. [Election Law, § 278.]
94 COUNTIzS; BCARDS OF SUPERVISURS.

Explanatory note.

CHAPTER VI.

CLERKS OF BOARDS OF SUPERVISORS.

EXPLANATORY NOTE.

Appointment of Clerk.

Each board of supervisors is required to appoint a clerk, who shall
serve during the pleasure of the board and until his successor is ap-
pointed. (County Law, § 10, ante.) His compensation is fixed by the
board. (Idem.) He should take the constitutional oath of office like
any other county officer, before the county clerk or county judge (County
Law, § 246, post.)+*

Functions of Clerk.

The clerk has many important duties to perform, some expressly re-
quired by statute and others conferred upon him by the board. He is
to record all the proceedings of the board, file and preserve accounts
acted upon or audited by the board, give certified copies of accounts
when requested and upon the payment of fees for copying, prepare
tax-rolls under the direction of the board, and perform or cause to be
performed under the direction of the board such clerical duties as may
be demanded of him. Abstracts of county accounts are to be prepared
by him, and he is to cause their publication.

 

Section 1. General duties of clerks of boards of supervisors.
2. Clerk to cause statement of accounts audited to be published.
3. Statement of railroad, telegraph, telephone and electric light taxes.
4, Failure to make statement, return or report, penalty for; action to
recover penalty.

§ 1. GENERAL DUTIES OF CLERKS OF BOARDS OF SUPERVISORS.
Clerks of boards of supervisors shall :?

 

1, For form of oath of office, see Form No. 6, post.

For manner of executing oath, time and place of filing and effect of failure to file,
see Public Officers Law, secs. 10, 13, 15 and 30, post.

2. In Westchester county the board is authorized to appoint one or two
CLERKS OF BOARDS OF SUPERVISORS. 95

County Law, § 50.

1. Record in books provided for the purpose all the proceedings of such
board.?

2. Make regular entries of all their resolutions or decisions.*

3. Record the vote of each supervisor on any question submitted to the
board, when the law authorizing the vote requires an entry of the yeas and
nays, and in other cases if required by any member present.

+. File and preserve all accounts acted upon by the board.

5. Designate upon every account audited and allowed by the board
the amount so audited and allowed and the items or amount disallowed;
and deliver to any person who may demand it a certified copy of any
account on filé in his office, on receiving from such person eight cents per
folio therefor.®

6. Keep the books and papers of the board open to public inspection
without charge.

7. Transmit to the librarian of the state library at Albanay, a copy of
the proceedings of such board, annually, and within twenty days after
the same shall be published.

8. Prepare the tax-rolls under the direction of the board.

 

deputy clerks to said board, and may fix their compensation and prescribe
their duties. See L. 1903, ch. 483.

It seems that duties properly belonging to the clerk may be committed by
the board to a member, even without a formal resolution adopted and record-
ed. Stetler v. McFarlane (1921), 230 N. Y. 300, 130 N. E. 591, revg. 181
App. Div. 957, 168 N. Y. Supp. 1131.

3. Record of proceedings. The duties of the clerk of a board of super-
visors are purely ministerial—simply to record correctly what took place at
the session of the board, in the order in which it took place. He cannot
alter or affect the action of the board in any way. It is his duty by law to
make a correct recital of the doings of the board. People ex rel. Burroughs
v. Brinkerhoff, 68 N. Y. 259, 267.

The record of proceedings of the board of supervisors, kept pursuant to
this section, is for public information and for authentic evidence, and it seems
that the supervisors are not entitled to compensation for special services
rendered to the county, in the absence of a record showing that such special
duties. were lawfully committed to them. Wallace v. Jones, 122 App. Div.
497, 501, 107 N.Y. Supp. 288.

4. Entries by clerk. The proper mode by which a board of supervisors
renders itself legally liable is by resolution entered in its minutes; its clerk
is to make entries of all resolutions or decisions on questions concerning
the raising or payment of moneys. Chemung Canal Bank v. Supervisors of
Chemung, 5 Den. 517.

Service of process in actions against the county may be made upon the
clerk. People ex rel. Van Keuren v. Town Auditors, 74 N. Y. 310.

5. Town abstracts are to be delivered by town boards to the clerk of the
board of supervisors and he “shall cause the same to be printed, with the
statements required to be printed by him.’’ See Town Law, sec. 155, post,

Cited in Matter of Equitable Trust Co. v. Hamilton (1919), 226 N. Y. 241,
affg. 177 App. Div. 390, 164 N. Y. Supp. 58.
96 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 51.

9. Perform such other duties as may lawfully be required of him by the
board.® [County Law, § 50; B. C. & G. Cons. L., p. 748.]

§ 2. CLERK TO CAUSE STATEMENT OF ACCOUNTS AUDITED TO
BE PUBLISHED.

The clerk shall annuall-, cn or before the first day of January, make
out and certify, and within two weeks cause to be published in a nenws-
paper printed in the county, a statement for the preceding year, con-
taining:

1. An abstract of all county accounts presented to the board at its last
annual meeting, allowed or disallowed, with the amount claimed and
allowed, and the name of each person presenting the same, and the gen-
era] nature of the account. ® ;

2. The amount, items and nature of all compensation, audited by the
board to each member thereof.

 

6. Other powers and duties of clerk. (See Schedule of Laws after table of
contents for pages in this Manual where sections referred to may be found.)

1. As to taxation. The clerk of the board of supervisors is required to
transmit to the comptroller, on or before the second Monday in December in
each year, a statement of the equalized valuation of the real and ‘personal
property in each tax district, and also a statement of the names of corpora-
tions and the amount for which each is assessed. See Tax Law, sec. 61, post.
He is also required, on or before December 20 in each year, to transmit
to the county treasurer an abstract of the tax rolls. See Tax Law, sec.
62, post. For form of abstract of tax rolls, see Form No. 44, post.

2. As to relief of poor. The supervisor of each town is required to report
to the clerk of the board of supervisors an abstract of the amount expended
in the town for the relief of the poor. See Poor Law, sec. 141. post. For
form of report, see Form No. 73, post. When the distinction between towa and county
poor has been abolished by the board of supervisors, the clerk is rey..ired to serve upon
each town, village and city clerk, and upon each of the superintendents and over-
seers of the poor, a copy of the resolution adopted by the board. See Poor Law,
sec. 138, post.

3. As to highways. The clerk of the board of supervisors is required to
transmit to the comptroller and the commission the amount of highway
taxes levied in each town in the county for the repair and improvement of
highways therein during the ensuing year. See Highway Law, sec. 100.
Transmission of resolutions for construction of county highways to State
Commission, Highway Law, § 123, as amended by L. 1909, ch. 487, and § 128, as
amended by L. 1909, ch. 240.

4, As to session laws. The clerk is required to forward to the secretary of
state the names of the newspapers designated by the board to publish the
session laws. See County Law, sec. 20, ante.

5. As to reports. Reports of county officers are to be filed with the clerk

of the board of supervisors on or before tie fifth day of November of each year,
and are to be by him laid before the board of supervisors. See County Law, sec.
243, Post.

Ga. Cited in Matter of Equitable Trust Co. v. Hamilton (1919), 226 N. Y. 241,
affg. 177 App. Div. 390, 164 N. Y. Supp. 58. ,

7. Publication of abstracts, The above section, and section 155 of the Town
CLERKS OF BOARDS OF SUPERVISORS. 97
County Law, §§ 52, 53.

3. The number of days the board was in session, and the distance
traveled by each member in attending the same.’ [County Law, § 51,
as amended by L. 1920, ch. 393; B. C. & G. Cons. L., p. 749.]

§ 3. STATEMENT OF RAILROAD, TELEGRAPH, TELEPHONE AND
ELECTRIC LIGHT TAXES.

The clerk shall, within five days after the making out, or issuing of
the annual tax warrant by the board of supervisors, prepare and deliver
to the county treasurer of his county, a statement showing the title
of all railroad corporations and telegraph, telephone and electric-light
lines in such county, as appear on the last asssesment-roll of the towns
or cities therein, the valuation of the property, real and personal, of
such corporation and line in each town or city, and the amount of tax

assessed or levied on such valuation in each town or city in his county.’

[County Law, § 53; B. C. & G. Cons, L., p.. 750.]

 

Law as amended by L. 1910, ch. 316, only authorize the publication of town and
county abstracts in a single publication. These accounts cannot be cut up and
distributed for publication in a number of papers throughout the county. Rogers v.
Board of Supervisors, 77 App. Div. 501, 78 N. Y. Supp. 1081.

For form of statement of county and town accounts required by the above section,
see Form No. 7, post. :

8. Report as to town bonds. The supervisor of each town which has a public debt
consisting of bonds or other evidence of debt issued on the credit of the town, is
required to make a report to the board of supervisors at each annual session thereof,
of the amount of such indebtedness, specifying the different acts under which the
bonds were issued, the rate of interest, the amount unpaid, and the amount coming

due during the term of office of the supervisor. See Town Law, §§ 190-192, post.

9. See, also, Tax Law, sec. 60, post, which is to the same effect, and must be
construed with the above section.
98 COUNTIES; BOARDS OF SUPERVISORS.

County Law, § 54.

§ 4. FAILURE TO MAKE STATEMENT, RETURN OR REPORT, PEN-
ALTY FOR; ACTION TO RECOVER PENALTY.

1, Any such clerk, or any person or persons required under this
article to make any report, return or statement who shall refuse or
neglect to make the same, shall forfeit to the county the sum of one
hundred dollars, to be recovered by the district attorney thereof in the
name of the county, and whenever such failure or neglect is caused by
any such clerk, person or persons required to make such report, return
or statement under the provisions of section fifty-two of this article,
such district attorney shall forthwith proceed to obtain such forfeiture

on notice in writing by the state comptroller of such failure or neglect;

but such clerk shall not be subject to such forfeiture, in case he certify

to the said comptroller, on or before the second Monday in December,

the name or names of such person or persons who have refused or ne-
glected to furnish him with the information necessary to make such
report, return or statement required by said section fifty-two of this
article; provided, however, that any such report, return or statement,
which may have been made after said second Monday in December,
shall be furnished by said clerk to the comptroller immediately upon
its receipt.*°

2. The costs awarded upon the collection of such recoveries may be
retained by the district attorney for his own use. [County Law, § 54;

B. C..& G. Cons. L., p. 751.]

 

10. Penal provision as to failure to make report. Section 1842 of the Penal Law
provides that, “A county officer or an officer whose salary is paid by the county, who
neglects or refuses to make a report under oath to the board of supervisors of such
county on any subjects or matters connected with the duties of his office, whenever
required by resolution of such board, is guilty of a misdemeanor.”
PART II.

COUNTY OFFICERS; JAILS AND PRISONERS; LOAN COMMIS.
SIONERS ; COUNTY HOSPITALS.

CHAPTER VII.

COUNTY TREASURER.

EXPLANATORY NOTE.

Office of County Treasurer.

The county treasurer is the chief fiscal officer of the county, and as
such he has the custody and control of all county funds. The office of
county treasurer is not recognized in the constitution as in the case of
sheriff, county clerk and district-attorney, and the legislature may pro-
vide for his election or appointment by some competent county au-
thority. The office under the statute at the present time is elective.

Duties of Office.

The general duties of the office are prescribed by § 142 of the County
Law. But the county treasurer has many other duties conferred upon
him by other statutes. These duties pertain to financial matters in
which the state or county are interested. It is attempted to group in
this chapter all the statutes especially conferring duties upon the county
treasurer not properly included in separate chapters. Where he has
duties to perform in connection with other county officers or relating
to subjects covered by other chapters, references are made to those

chapters. It will be noticed that the county treasurer performs im-
portant duties in respect to the collection of liquor taxes and taxes upon

decedent’s estates. In respect to these taxes he acts as agent for the
state, and is required to account to state officers,

Official Bonds.
As the county treasurer is the custodian and disburser of county and
state funds, the statute is explicit in its requirement of a bond. Such
bond is to be in the sum fixed by the board of supervisors, if in session,
if not by the county judge and county clerk. The bond is approved in
° 99
100 COUNTY OFFICERS.

County Law, § 140.

the same manner. The board of supervisors may require additional
security, whenever the bond given is, in its opinion, insufficient. The
bond is for the protection of the county, and also of the state, to the
extent of the moneys in his hands belonging to the state. If a county
treasurer defaults his sureties should first be compelled to account; if
the remedy against the sureties is not sufficient to make good the loss
of the state, action may then be taken against the county. The county
will be bound to make good the loss to the state upon the theory that
the county treasurer is the agent of the county.

If a county treasurer defaults in the payment of school moneys, a
town or the supervisor thereof may sue on the bond.

 

SEcTIon 1. County treasurer to be elected in each county; vacancy filled by
governor; term of office; official undertaking.
2. Deputy county treasurers in certain counties.

General poweys and duties of county treasurer.

4. Time for making report may be extended by order of Supreme
Court.

5. County treasurer to designate banks of deposit; interest on de-
posits to be credited; deposits, when made.

6. Depositary to give undertaking before receiving deposits; con-
tents and effect of undertaking. ;

7. Treasurer not relieved from liability by designation of deposi-
tary and deposit of money.

8. Moneys Geposited not to be drawn except upon order of super-
viscrs; transfer of funds from one depositary to another.

9. Treasurer to deliver books and funds to successor; penalty for
failure.

10. Penalty for neglect to make report or statement.
11. Late county treasurer may maintain action for recovery of

moneys.

12. County treasurer as trustee of cemetery lots.

13. Penalty for neglect to pay over money on order of the court.

13a. Advancements to school districts; Suffolk county.

14. Misappropriation of moneys and securities by county treasurer.

15. Duties of county treasurers under taxable transfer provisions of
Tax Law.

16. When county treasurer of Erie county to act as coroner.

~

§ 1. COUNTY TREASURER TO BE ELECTED IN EACH COUNTY; VAC-
ANCY FILLED BY GOVERNOR; OFFICIAL UNDERTAKING.

There shall continue (1) to be elected in each of the counties except
in the counties of Kings, Queens and Richmond, a county treasurer, who
COUNTY TREASURER.

County Law, § 140.

shall hold his office for three years from and including, in the county of
Monroe, the first Tuesday of October, and in the other counties, the first
day of January, succeeding his election, and until his successor is duly
elected and qualified; (2) to be appointed by the governor, by and with
the consent of the senate, if in session, a county treasurer, when a vacancy
shall occur in such office, and the person so appointed shall hold the office
until and including, in the county of Monroe, the first Monday of October,
and in the other counties, the last day of December, succeeding his
appointment, and until his successor shall be duly elected and qualified.?
Every person elected or appointed to the office of county treasurer shall,
before he enters upon the duties of his office, and if appointed, within
fifleen days after notice thereof, give an undertaking to the county, with
three or more sufficient sureties, with the approval of the board of super-
visors, if in session, indorsed thereon by the clerk, otherwise with the ap-

 

1. References. (See Schedule of Laws after table of contents for pages in
this Manual where laws referred to may be found.) The constitution provides
that county officers whose election or appointment is not provided for by the
Constitution, shall be elected by the electors of the respective counties or ap-
pointed by the boards of supervisors, or other county authorities, as the leg-
islature shall direct. See Constitution, art. 10, sec. 2. Vacancies in county
elective offices are to be filled in the manner provided by the legislature; but
“but no person appointed to fill a vacancy shall hold his office by virtue of such
appointment longer than the commencement of the political year next suc
ceeding the first annual election after the happening of the vacancy.” See
Constitution, art. 10, sec. 5.

Official oaths, when and how taken. County Law, sec. 246, post. Effect of
failure to take oath. Public Officers Law, sec. 13, post. Vacancy created by
failure to take oath. Public Officers Law, sec. 30, post.

Undertaking, further provisions respecting. County Law, sec. 247, post.
Public Officers Law, sec. 11, post. Money to be delivered to county treasurer
before executing undertaking; force and effect of undertaking. Public Officers
sec. 12, post. Effect of failure to execute undertaking. Public Officers Law,
sec. 13, post. Validation of official acts of treasurer before executing bond.
Public Officers Law, sec. 15, post. Vacancy in office created by failure to execute
undertaking. Public Officers Law, sec. 30, sub. 7, post.

Vacancies, how created. Public Officers Law, sec. 30, post.

Resignations of all county officers are to be made to the county clerk.
Public Officers Law, sec. 31, post.

Supervisor. County treasurer not eligible to office of supervisor. Town
Law, sec. 81, post. 5

Official seal of county treasurer. County Law, sec. 245, post.

Superintendent of the poor, county treasurer not to be elected or appointed
as. County Law, sec. 220, post.

Compensation and clerks of county treasurer, board of supervisors to deter-
mine. County Law, sec. 12, sub. 5, ante.

Expiration of term, county treasurer to hold office until successor is
appointed and has qualified. Public Officers Law, sec. 5, post.
102 COUNTY OFFICERS.

County Law, § 140.

proval of the county judge and county clerk, and in such sum as such
board or judge and clerk approving the same shall direct, to the effect that
such person shall faithfully execute the duties of his office, and shall pay
over according to law, and account for all moneys, property and securities
which shall come to his hands as treasurer, and render a just and true ac-
count thereof to the board of supervisors when required, and obey all orders
and directions of a competent court relating thereto. When, in the opinion
of the board of supervisors, the moneys intrusted to such person as treas-
urer shall be unsafe, or the surety insufficient, such board may require from
such treasurer a new or further undertaking to the same effect as at first,
and with like sureties; and if such county treasurer shall fail to renew such
undertaking as required within twenty days after he shall be notified by
such board of such request, such omission shall work a forfeiture of his
office and the same shall become vacant. Such undertaking, with the ap-
proval indorsed thereon, shall be filed in the office of the county clerk. The
sureties and county therein named shall be liable to the state for the pay-
ment to the state treasurer, according to law, of all moneys belonging to
the state, which shall come into his hands as county treasurer, and for the
rendering of a just and true account thereof to the state comptroller.?
[County Law, § 140; B. C. & G. Cons. L., p. 780.]

 

2. Official undertaking. The county treasurer may file his bond at any
time before entering upon the duties of his office. McRoberts v. Winant, 15 Abb.
Pr. N. 8. 210. Additional securities may be required by board of supervisors.
Denton v. Merrill, 43 Hun, 224.

A bond of the county treasurer conditioned, “that he shall faithfully ex-
ecute the office of treasurer of such county and pay all moneys which shall
come into his hands as treasurer according to law, and render a just and
true account thereof, to the said supervisors, or to the comptroller of the
state when required,” and a further condition that he “shall well, truly, and
faithfully execute and perform the duties of treasurer of said county, ac-
cording to law,” contains in substance all that the act requires, and is valid.
Supervisois of Alleghany County v. Van Campen, 3 Wend. 48. In the case
of Supervisors of Schoharie County v. Pindar, 3 Lans. 8, it was held that a
bond is not void because its condition “to account to the board of super-
visors,” contains also the words, “or to the comptroller of the state.” These
words may be regarded as surplusage.

Liability of sureties. The sureties on the bond of a county treasurer
are not exonerated by any neglect or malfeasance of the supervisors in pass-
ing upon his accounts. The bond is not conditioned for, and the law does not
guarantee such examination. Supervisors of Monroe County v. Otis, 62 N. Y. 88.

The imposition by the board of supervisors upon the county treasurer,
during his term of office, of the duty of raising, keeping and disbursing large
sums of money, in addition to the usual and ordinary duties of his office,
does not discharge the sureties upon his bond from all liability. Conceding
that no liability is imposed upon them on account of such increased duties,
COUNTY TREASURER. 103
County Law, § 141.
§ 2. DEPUTY COUNTY TREASURERS IN CERTAIN COUNTIES.

The county treasurer of any county, having a population of less than
fifty thousand according to the last preceding state or federal census,

may, when authorized by a resolution of the board of supervisors, ap-
point and at pleasure remove a deputy county treasurer, who shall
perform all the duties and possess all the powers of a county treasurer,

during his absence, or inability to act. The compensation of such

deputy shall be paid by the treasurer out of the fees or salary allowed
to him by law and shall not be a county charge, or the board of super-
visors of such county may, by resolution, fix the compensation of such
deputy and make it a county charge. The appointment of such deputy
shall not release the treasurer, from any liability in relation to the
moneys in his hands or under his control, or in any manner affect such
liability, but any default by such deputy shall be deemed a default of
such treasurer, and he shall be liable therefor. The undertaking of
the county treasurer required by section one hundred and forty of
this chapter given after this chapter takes effect shall cover the acts
and default of such deputy. In all other cases the county treasurer
shall, before said deputy enters upon the discharge of his duties, give
an undertaking with three or more sufficient sureties to the effect that
such deputy shall faithfully execute the duties of his office and.shall
not make default therein, the amount thereof to be fixed and the same
to be approved as provided in section one hundred and forty of this

 

every obligation in réference to the usual and ordinary duties of the treasurer
remains unaffected. Supervisors of Monroe County v. Clark, 92 N. Y. 391;
see, also, People v. Vilas, 36 N. Y. 459.

The sureties of a county treasurer are liable for his failure to account for
interest on funds deposited. Supervisors of Richmond v. Wandel, 6 Lans. 33.

Allegations of money in hands of treasurer and refusal to pay on orders of
the board of supervisors, are material to constitute the breach, in an action
on the bond. Supervisors of Monroe v. Beach, 9 Wend. 143.

Moneys due state. The relation of the treasurer to the covnty and his duties
have the nature of an agency; and all losses sustained by reason of his default
are chargeable on the county. Supervisors v. Otis, 62 N. Y. 88. See also
Denton v. Merrill, 43 Hun, 224; Newman v. Supervisors of Livingston Co., 45
N. Y. 676, 686.

The moneys due the state are payable by the county treasurer, not as the
county’s officer or agent, but as an individual; and not until the remedy against
both the treasurer and his bail has been exhausted can the county be required to
act. Nat. Bank of Ballston Spa. v. Supervisors, 106 N. Y. 488.

Action on bond for conversion of school money. The bond of a county
treasurer running to the county, conditioned for the faithful performance of the
duties of his office, and for the payment over to the proper authorities of all
moneys received by him as such treasurer may be sued upon by a town or
supervisor thereof to recover school money which had been converted by the
treasurer to his own use. Town of Ulysses v. Ingersoll, 182 N. Y. 369, reversing
81 App. Div. 304, 80 N. Y. Supp. 924.
104 COUNTY OFFICERS.

County Law, § 142.

chapter for the fixing of the amount and the approval of the under-
taking of the county treasurer. [County Law, § 141, as amended by
1922, ch. 100.]

§ 3 GENERAL POWERS AND DUTIES OF COUNTY TREASURER.

The county treasurer shall,’

1. Receive all moneys belonging to the county, and all other moneys
by law directed to be paid to him, and apply them, and render an
account thereof, as required by law.*

2. Keep a true account of the receipts and expenditures of all such

 

§ 3. General powers and duties of county treasurer.

1. As to moneys paid into court. All moneys paid court are to be paid to
the county treasurer. Civil Practice Act, § 134. The county treasurer is
a trustee of the fund and may bring an action in relation thereto. Civil
Practice Act, § 185. Upon the expiration of term, removal or death of a
county areasurer, fund must be credited to his successor. State Finance
Law, § 44-b. No part of fund to be paid out except upon order of court. Civil
Practice Act, § 137. Accounts, how kept. Banking Law, § 45. Report of
funds to comptroller. State Finance Law, § 44-e.
COUNTY TREASURER. 105

County Law, § 142.

moneys, in books prepared for the purpose at the expense of the county.®

 

is required to deliver to the supervisor an abstract of the amount of taxes un-
paid on resident real property, see Tax Law, sec. 89, post.

It is provided by section 90 of the Tax Law, post, that, “Hach county
treasurer shall pay to the creditors of the county from moneys paid to
him by the collectors of taxes of the several towns therein, such sums and
in such manner as the board of supervisors of the county direct.” As-to pay-
ment of state tax to comptroller and fees therefor, see Tax Law, sec. 91, post.
The comptroller is required to state annually on June ist the account of each
county treasurer, and if any part of a state tax is unpaid at that date the
comptroller must transmit by mail to the county treasurer a copy of such ac-
counts and a requisition that he must pay the balance due to the state within
thirty days, see Tax Law, sec. 92, post. In case of a default by the county
treasurer or collector the county is to be chargeable, see Tax Law, sec. 98, post.

As to sales by county treasurer for unpaid taxes, see Tax Law, secs. 150-160,
post. The county treasurer is required to invest for the benefit of the town
taxes paid in such town by railroads constructed with aid of such town, see
General Municipal Law, sec. 13, post. As to payment to county treasurer by
county clerk of amounts received on account of mortgage tax, see Tax Law, sec.
261, post.

3. As to the relief of the poor. The county treasurer is required to charge
to the several towns the amount of money expended for the support of the
poor, see Poor Law, sec. 9, post. He is required to keep accounts with the
several towns as to the receipts and expenditures for town poor, see Poor
Law, sec. 8, post. Overseers of the poor are required to pay to the county
treasurer moneys in their hands when the distinction between town and county
poor is abolished, sce Poor Law, sec. 139, post.

4. As to school moneys. The county treasurer is required to furnish to the
commissioner of education a report showing the unexpended moneys in their
hands applicable to the payment of teachers’ wages and to library purposes,
see Education Law, sec. 495. The county treasurer is required to pay to the
collector of each school district the amount of taxes returned to him as unpaid,
upon the voucher or draft of the board of supervisors, see Education Law, sec.
435, as amended by L. 1910, chap. 284, and L. 1915, chap. 136. The amount so paid is
to be laid by the county treasurer before the board of supervisors, who shall cause
the amount thereof to be levied upon the lands chargeable therewith; the amount
of any such tax so levied may paid by the owner to the county treasurer, see Educa-
tion Law, sec. 436.

5. As to highways. The moneys received from the state in aid of the improvement
and repair of highways under sec. 101 of the Highway Law, as amended by L. 1913,
chap. 375, are to be paid by the county treasurer to the supervisor of each town as
provided in the Highway Law, sec. 103, post.

6. Fees. As to fees of county treasurer, see Civil Practice Act, § 15C1, ard ch,
71, post.

4. Payment of claims. For an improper refusal to pay a claim upon
the order of the board of supervisors, the appropriate remedy is by man-
damus; they have no right to adjust claims presented to them, nor to deter-
mine the validity of demands. Huff v. Knapp, 5 N. Y. 65. If the subject
matter of a claim against the county is within the jurisdiction of the board
of supervisors, and the board allows the ¢laim, the county treasurer has no
106 COUNTY OFFICERS.
County Law, § 142.

3. Yearly, and at such times as the board of supervisors shall by
resolution require, make a true, written statement of his accounts gen-
erally, verified by his oath to be in all respects true, and file the same
with the clerk of the county. [Subd. 3, amended by L. 1921, ch. 158.]

4. On or before the first day of March in each year transmit to the state
comptroller a statement of all moneys received by him during the preced-
ing year for penalties belonging to the people of the state; and at the
same time, pay to the treasurer of the state, the amount of such penalties,
after deducting his compensation, in the same manner as state taxes are
directed to be paid.’

5. On or before the fifteenth day of April in each year pay to the
treasurer of the state one-half of the state tax raised and paid over to him;
and on or before the fifteenth day of May, the other half, retaining the
compensation to which he may be entitled, which shall not in any case ex-
ceed the sum of two thousand dollars. If any county treasurer shall not
pay over the state tax as herein directed, the comptroller shall charge on

 

right to refuse payment on the ground that the payment was excessive. Peo-
ple ex rel. Martin v. Earle, 16 Abb. Pr. N. S. 64. Where it appears on the
face of the account that the board of supervisors had no jurisdiction to allow
the account, it is the duty of the county treasurer to withhold payment. Peo-
ple v. Lawrence, 6 Hill, 244.

To account for interest. If a county treasurer fails to pay over money in
his hands, he should be charged with interest upon the amount found to be due,
from the time that his successor qualifies and enters office, as the sum from
that time is not an unliquidated claim within the rule as to interest. Super-
visors of Monroe County v. Clarke, 25 Hun, 282. See, also, Supervisors of
Chenango County v. Birdsall. 4 Wend. 453.

5. Accounts of county treasurer. The county treasurer is required to keep
a true account of all moneys which come into his hands as such, in a book kept
for that purpose, provided at the expense of the county. Herendeen v. De Witt,
49 Hun, 53. This statutory provision imposes an active duty upon the
treasurer, and a failure to perform it constitutes a breach of the condition of
his bond. Supervisors of Monroe Co. v. Clarke, 92 N. Y. 391, 397. A copy of
such accounts duly certified by the treasurer may be used in evidence. Erickson
v. Smith, 2 Abb. Ct. App. Dec. 64, 38 Hun, Pr. 454.

6. A failure or refusal to furnish report when required by the board
of supervisors is a misdemeanr. See Penal Law, sec. 1842, ante.

7. Recovery and disposition of penalties. Actions for penalties incurred
to the people of the state may be brought by the attorney-general or district
attorney, see Civil Practice Act, § 1168. Penalties recovered by the district
attorney, which belong to the county, must be paid to the county treasurer,
and such district attorney is required to account for all penalties received by
him, at the first term of the county court held in each calendar year, County
Law, sec. 201. post.
COUNTY TREASURER. 107

County Law, § 142.

ail sums withheld, such rate of interest as shall be sufficient to repay all
expenditures incurred by the state in borrowing money, equivalent to the
amount so withheld, and such additional rate as he shall deem proper, not
exceeding ten per centum, from the first day of April in each year, which
shall be regarded as funds in the hands of the county treasurer, belonging
to the state, and for which his sureties and county shall be liable.*

6. Within ten days after the first day of July in each year, make and
file in the office of the clerk of his county, a special report, which shall
contain a statement of all moneys or securities in his hands belonging to

 

8. This subdivision is, for the most part, superseded by section 91 of the Tax Law,

post.

Fees and compensation. The board of supervisors may fix the compen-
sation of county treasurers. See County Law, sec. 12, subd. 5, as amended
by L. 1911, chap. 359, L. 1913, chap. 742, L. 1914, chap. 358. But the. fees
allowed by law for receiving and paying over the state taxes belong to the
county treasurer and not to the county. The compensation so fixed is for
services rendered to the state-—the allowance is by com»vetent authority,
from a fund not belonging to the county, and over which it has no control,
and the county has no right to the same, either as originally belonging to it,
or as received for its use. Supervisors of Monroe Co. v. Otis, 62 N. Y. 88.
But if it be expressly declared by statute that the salary as fixed is in full
compensation for all his services it has been held that such fees cannot be
retained by him for his own use, see Supervisors of.Seneca Co. v. Allen, 99 N.
Y. 532: Supervisors of Erie Co. v. Jones, 119 N. Y. 339. See People ex rel.
Conine v. Steuben County, 183 N. Y. 114; Upham v. State of New York, 174
N. Y. 336.

The limitation contained in subdivision 5 authorizing a county treasurer to retain
compensation on account of the state tax received and paid over by him in a sum not
exceeding $2,000 does not supersede the limitation of $500 fixed by L. 1871, ch. 110,
§ 1, amending L. 1846, ch. 189, and, therefore, the treasurer of a county not excepted
from the provisions of the act of 1871, cannot receive more than $500 for receiving
and paying over state tax and school moneys. Upham v. State of New York, 174
N. Y. 336, affirming 62 App. Div. 631, 71 N. Y. Supp. 1150. Such act does not au-
thorize a county treasurer to retain for his own use fees for receiving and paying
over state taxes and school moneys. People ex rel. Conine v. County of Steuben, 183
N. Y. 114, affg. 93 App. Div. 604.

When county treasurers become salaried officers they are not entitled to exact for
their own use, fees or commissions for receiving and paying out moneys passing
through their hands in the course of legal proceedings. Matter of N. Y. Central,
etc., R. Co., 7 Abb. N. C. 408.

A county treasurer is not allowed commissions on moneys not received by him,
as on collector’s fees retained by the collectors, back taxes and taxes levied on non-
residents’ lands returned to the comptroller’s office. Supervisors of Chenango v.
Birdsall, 4 Wend. 453. Where the compensation of a county treasurer is fixed by
the supervisors, he is not entitled to a fee on the state tax in addition to such com-
pensation. People ex rel. Conine v. County of Steuben, 41 Misc. 590, 85 N. Y. Supp.
244, affd. 93 App. Div. 604, 183 N. Y. 114. He is also entitled to the compensation
subsequently provided by the legislature for collecting liquor taxes, making reports
and issuing licenses, under the Liquor Tax Law. Montgomery v. Vosburgh, 74 Mise.
562, 134 N. Y. Supp. 457. As to rate of commissions allowed county treasurers, see
Supervisors of Otsego v. Hendryx, 58 Barb. 279.

An additional allowance for clerk hire during the term of a county treasurer

necessarily increases his compensation and is unauthorized. Rept. of Atty. Genl,
Mch. 7, 1912.
108 COUNTY OFFICERS.

County Law, §§ 143, 144.

infants, or other persons, for whom invested, and how invested, with a
particular description of such securities, containing a statement of the
amount due thereon for principal and interest, with a statement of his
account with each infant, up to the first day of July preceding the date of
such report, the amount of fees charged by him, the amount in his hands
invested and uninvested, and to whom the same belongs; and if he has in
his hands any money not invested, such report shall state the amount there-
of, the length of time the same has been in his hands uninvested, and the
reasons therefor; and whether the moneys so uninvested are for principal
and interest, and the length of time any principal sum thereof shall have
remained so uninvested, during the year preceding the date of such report;
which report he shall verify to be in all respects true;

7. Exhibit to the board of supervisors, at their annual meeting, or
whenever they direct, all his books and accounts, and all vouchers relating
thereto, to be audited and allowed. [County Law, § 142; B. C. & G.
Cons. L., p. 783.]

§ 4. TIME FOR MAKING REPORT MAY BE EXTENDED BY ORDER
OF SUPREME COURT.

The time for making and filing any report herein required, may be
extended twenty days by a justice of the Supreme Court, upon good
cause shown; but no order shall be made, unless notice of the application
of the same shall have been served on the district attorney of the county;
and no such order shall be of any force or effect, until the original order
signed by the justice, with the papers on which the same was granted, shall
have been filed in the office of the county clerk. [County Law, § 143; B.
C. & G. Cons. L., p. 785.]

§ 5. COUNTY TREASURER TO DESIGNATE BANKS OF DEPOSIT;
INTEREST ON DEPOSITS TO BE CREDITED; DEPOSITS,
WHEN MADE.

Each county treasurer shall, within twenty days after he shall have
entered upon the duties of his office, except in counties whose board of
supervisors shall otherwise direct, designate by written instrument in
duplicate, one copy of which shall be filed in the office of the county
clerk, and the other in the office of the state treasurer, one or more good and
solvent banks, bankers, or banking associations, in such county; or if there
shall be no such, then in an adjoining county within the state, for the
deposit of all moneys received by him as such treasurer and agree with
such bank or banks, banker or bankers, or banking associations, upon the
rate of interest to be paid on the moneys so deposited. The accrued
interest thereon shall, as often as once in six months, be credited by such
!

COUNTY TREASURER. 109

County Law, §§ 145, 146.

depositary to the account of such county treasurer, for the use of his
county; and he shall deposit with such depositary, or depositaries, at least
once in each week, and in a county containing a city having more than
ten thousand inhabitants, daily, all such moneys so received by him. But
nothing herein shall limit the power of any court or officer, by whose direc-
tion any moneys shall be paid over to, or received, by such treasurer,
to direct in relation to the custody or investment thereof, or the disposi-
tion to be made of the interest thereon; and no interest received from any
moneys so deposited which are not received for some public use, shall
belong to the county.? [County Law, § 144; B. C. & G. Cons. L., p. 785.]

§ 6. DEPOSITARY TO GIVE UNDERTAKING BEFORE RECEIVING
DEPOSITS; CONTENTS AND EFFECT OF UNDERTAKING.

Each bank, banker, or banking association, so designated, shall, for the
benefit and security of the county, and before receiving any such deposit,
give to the county a good and sufficient undertaking, with two or more
sureties to be approved by the judge of the county in which such
bank, banker or banking association, shall be located, the chairman of the
board of supervisors of the county of which such treasurer is an officer, and
such treasurer, or any two of them. Such undertaking shall specify the
amount which such treasurer shall be authorized to have on deposit at any
one time with such depositary, and shall be to the effect that such depositary
shall faithfully keep and pay over on the order or warrant, of such treasurer,
or on any other Jawful authority, such deposits, and the agreed interest
thereon; and for the payment of such bonds or coupons, as by their terms
are made payable at a bank or banks, for the payment of which a deposit
shall be made by such treasurer with such depositary. Such undertaking
shall be filed by the clerk of the board of supervisors with the clerk of the
county. [County Law, § 145; B. C. & G. Cons. L., p. 785.]

§ 7. TREASURER NOT RELIEVED FROM LIABILITY BY DESIGNA-
TION OF DEPOSITARY AND DEPOSIT OF MONEY.

Such designation and deposit of moneys shall not release the treasurer, or his
sureties, from any liability in relation to such moneys, or in any manner affect
such liability; but any default by such depositary, shall be deemed a default
of such treasurer, and he and his sureties shall be liable therefor. [County
Law, § 146; B. C. & G. Cons. L., p. 786.]

 

9. Authority to designate banks of deposit.—The board of supervisors has no
authority to direct the county treasurer where he shall deposit the moneys of
the county that come into his hands. Rept. of Atty.-Genl. (1911), Vol. 2, p. 608.
‘ The necessity of designating banks is in no way eliminated by the fact that
a county treasurer succeeds himself. Rept. of Atty.-Genl. (190¢), 210.

weer
110 COUNTY OFFICERS.
County Law, §§ 147, 148.

§ 8. MONEYS DEPOSITED NOT TO BE DRAWN EXCEPT UPON
ORDER OF SUPERVISORS; TRANSFER OF FUNDS FROM ONE
DEPOSITARY TO ANOTHER.

The county treasurer shall draw the moneys so deposited only for the
payment of claims ordered to be paid by the board of supervisors, or
other lawful authority, or of salaries, county officers, or pursuant to
the lawful direction of some court; and if he shall draw or appropriate
any money for any other purpose, it shall be deemed a malfeasance in
office, and cause for removal therefrom. Nothing herein shall prevent such
county treasurer from transferring any such moneys from one: depositary
to another, which shall have duly qualified by giving security as herein
provided.?° County Law, § 147; B. C. & G. Cons. L., p. 786.]

§ 9. TREASURER TO DELIVER BOOKS AND FUNDS TO SUCCES-
SCR; PENALTY FOR FAILURE.

When the right of a county treasurer to his office expires, the books and
papers belonging to the office, and all money in his hands by virtue thereof,
shall, upon his oath, or if not living, upon the oath of his executor or
administrator, be delivered to his successor.1! Any person violating this
section shall forfeit to the county the sum of twelve hundred and fifty
dollars. Such successor may recover such forfeitures, books, papers or

 

10. Audit. It is well settled that the duties imposed upon the board of
passing and auditing claims and ordering their payment cannot be delegated
to a county auditor. People v. Neff, 191 N. Y. 210, affg. 122 App. Div. 135, 106
N. Y. Supp. 747.

Money, belonging to county, deposited in a bank by the county treasurer in
his name as “ treasurer” and not mixed with his own funds, on his becoming
bankrupt, belong to county. Supervisors of Schuyler v. Bank of Havana, 5
Hun 649, affd. 76 N. Y. 598. County treasurer cannot determine for himself the |
amount of a levy to be applied to a sinking fund. Matter of Clark, 20 Wk. Dig.
274,

11. Delivery of books, etc. County treasurer cannot set up invalidity of
act by which funds were received by him, and claim them himself. Supervisors
of Seneca v. Allen, 99 N. Y. 582. Delivery of books to successor. Supervisors of
Monroe v. Clark, 92 N. Y. 391.

Where a trust, upon which certain securities are held, terminates during the
term of *«e ccunty treasurer, he is not bound to deliver them to his successor; it
seems that he must turn them over when the trust has not expired; qu@re as to
military fund. Supervisors of Tompkins v. Bristol, 15 Hun 116.

Summary proceedings to compel delivery of papers and books by out-going
officer, see Public Officers Law, § 80. A person who wrongfully refuses to
surrender the official seal or any books or papers appertaining to his office,
upon the demand of his lawful successor, is guilty of a misdemeanor, see Penal
Law, sec. 1836. post.
COUNTY TREASURER. 111

County Law, §§ 149, 151.

money due, by action or other legal proceedings, in the name of his
county, upon the official undertaking of such former county treasurer, or as
otherwise authorized by law. Whenever required so to do by the state
comptroller, he shall bring and maintain such action at the expense of the
county, for the recovery of all moneys and securities paid into court, or
that belong to any heir, litigant or party, or that stand to the credit of
any action or proceeding which have come into the hands of any county
treasurer whose right to office already has expired, or hereafter shall
expire, or which have been placed to his credit in any bank or depository,
or with which he is in any way chargeable, and which have not been
delivered to his successor; and for all increase, loss, penalty, damage or
expense lawfully chargeable to such treasurer in connection therewith.
A party to whom such county treasurer may have transferred or assigned
any security or other property belonging to any fund held by him, may be
made a defendant in the same action, and the rights of the several parties
determined therein. Any action so brought at the direction of the state
comptroller shall not be discontinued or compromised without the approval
of the state comptroller. [County Law, § 148; B. C. & G. Cons. L.,
p. 787.]

§ 10. PENALTY FOR NEGLECT TO MAKE REPORT OR STATEMENT.

If a county treasurer shall neglect to make any report or statement
herein required of him, except as herein otherwise provided, he shall
forfeit to the county a sum to be determined by the jury or court before
whom the trial is had, not less than one hundred nor more than five
hundred dollars, to be recovered by the district attorney, by action in the
name of the county, against such treasurer and his sureties, or one or more
of them.?? [County Law, § 149; B. C. & G. Cons. L., p. 787.]

§ 11. LATE COUNTY TREASURER MAY MAINTAIN ACTION FOR
RECOVERY OF MONEYS.

The county treasurer of any county in this state, within three years
after he has ceased to be county treasurer, may maintain an action in
any court of record in this state as late county treasurer to recover any
moneys, funds or properties belonging to the county or deposited with such
county treasurer pursuant to law, without right obtained, received, con-
verted or appropriated, disposed of or withheld by any party or parties,

 

12. Failure to make a report required by law is a misdemeanor, see Penal
Law, § 1842, ante.
112 COUNTY OFFICERS.
County Law, § 152.

association or corporation, their legal representatives and assigns, dur-
ing the term or terms of office of such county treasurer.

Any and all moneys, funds and properties recovered in such an
action, shall be paid to and deposited with the then treasurer of the
county from which such moneys, funds and properties were taken.

Upon the payment of any moneys or the depositing of any funds by
a late county treasurer bringing such action, he shall be forthwith
eredited with the amount and value of such deposit.

This section shall apply to all county treasurers of this state elected
to office on or after the seventh day of November, eighteen hundred
and eighty-two. [County Law, § 151; B. C. & G. Cons. L., 2d ed.,
p. 1504.]

§ 12. COUNTY TREASURER AS TRUSTEE OF CEMETERY LOTS.

Any person, persons or corporation owning or interested in a lot or
lots in any cemetery in this state may .create a trust in perpetuity for
the maintenance of such cemetery lot or lots, the preservation of a
building, structure, fence or walk in such cemetery, the renewal or
preservation of a tomb, monument, stone, fence, railing or other erec-
tion or structure on or around any of such lots, or the planting or
cultivation of trees, shrubs, flowers or plants in or about the same, or
for any of such purposes, by transferring, conveying, devising or be-
queathing to the county treasurer of the county in which such ceme-
tery is located, or if such cemetery is located in a county wholly within
a city, to the chamberlain of such city, real or personal property, and
designating such county treasurer or chamberlain as trustee in the in-
strument creating such trust. Such instrument may direct that the
income derived from such property shall be applied to one or more of
the purposes specified in this section. A county treasurer or city
chamberlain designated as trustee in pursuance of this section, must
aecept the property so transferred and shall cause the same to be
invested in accordance with the terms of the trust, if any are pre-
scribed, and otherwise shall invest and reinvest such property in
securities in which savings banks are authorized to invest. The in-
come derived from such property shall be collected by the county treas-
urer or chamberlain who shall be entitled to reeeive and deduct five per
centum of such income for administering the trust. The balance of
such income shall be paid by the county treasurer or chamberlain to
the treasurer of the association or corporation owning or conductinz
such cemetery, and such association or corporation shall accept the
same and apply the money so received, so far as the same may be ap-
plicable, in furtherance of the purposes for which such trust was ere-
ated. In case the cemetery association should become extinct, then it
shall be the duty of the supervisor of the town in which the cemetery
COUNTY TREASURED. ‘ 113
County Law, §§ 153, 154.

is located, or the president of the village or mayor of the city, if it is
located in a village or city, respectively, to receive the income from

such trust and expend it for the purposes provided for in the instru-
ment creating the trust. [County Law, § 152, as amended by L. 1922,

ch, 253.]

§ 13. PENALTY FOR NEGLECT TO PAY OVER MONEY ON ORDER OF
THE COURT.

Whenever any county treasurer, after service on him personally, or
by leaving at his office, in his absence, with some person having charge
thereof, or if such service can not be made, by leaving with some per-
son of suitable age and discretion at his place of residence, or at his
last place of residence in the county, if he has departed therefrom, of
a certified copy of an order or judgment of the court, directing the
payment or delivery of any money, stocks, securities or other invest-
ments held by him pursuant to an order of the court, to any person or
persons, shall fail or neglect so to do, or where any county treasurer
has invested or loaned any moneys held by him pursuant to an order
of the court, to any person or persons on inadequate or worthless secu-
rities, and shall fail or neglect, when required so to do, to pay over the
amount of the moneys so invested to the person or persons entitled
thereto, the court may, by order, direct that an action be brought upon
the official bond of such treasurer, against him and his sureties, to re-
cover the amount of the money or securities so directed to be paid or
delivered, or of the moneys so invested on inadequate or worthless
securities, for the benefit of the person or persons in whose behalf the
direction shall have been by such order given, and whose name or
names appear therein, or their assigns, and thereupon such action may
be brought for such purpose.4* [County Law, §153, as amended by L.
1920, ch. 921, in effect April 15, 1921. The effect of the 1920 amend-

ment is to include, without change of substance, in this section, § 1887
of the Code of Civ. Proe.]

§ 13a. ADVANCEMENTS TO SCHOOL DISTRICTS; SUFFOLK COUNTY.
In Suffolk county the county treasurer shall advance to the several

school districts within said county, in anticipation of the collection of

the school tax levies therein, and to provide funds for meeting the ex-

 

i

As to liability of sureties on county treasurer’s bond, see Supervisors of
Richmond v. Wandel, 6 Lans. 33, affd. 59 N. Y. 645; Town of Ulysses v.
Ingersoll (1905), 182 N. Y. 369, 75 N. E. 225, revg. 81 App. Div. 304, 80
N. Y. Supp. 924.

13. Action on bond. Where county treasurer has converted: money to his
own use and an action is brought upon his bond to recover same, the action
is properly brought in the name of the board of supervisors, and the recovery
will inure to the benefit of the individual whose property was converted.

Board of Supervisors of Tompkins Co. v. Bristol, 99 N. Y. 316.
114 COUNTY OFFICERS.
County Law, § 154; Penal Law, § 1867; Tax Law, § 222.

penses in the said several districts prior to the receiving of moneys
from the collection of school taxes, from funds in his hands available,
or if such funds be not available, borrow money on the faith and credit
of the county, when authorized so to do by the board of supervisors of
said county, such advancements only to be made upon a verified copy
of the annual budget voted at the preceding school meeting and veri-
fied report of the trustees or board of education of each district apply-
ing for such advancement, showing the amount of moneys on hand and
a list of unpaid current bills of said district, such advancements to be
made in installments in the months of September, October, November
‘and December, and not exceeding fifteen per centum in September,
fifteen per centum in Octobr, ten per centum in November and ten per
centum in December, of the total amount of the annual budget of such
district to which such advancement is made. The county treasurer of
Suffolk county is hereby authorized to reimburse the county of Suffolk
for such advancements as soon as the funds collected in the various
school districts are available therefor. [County Law, § 154, as added
by L. 1919, ch. 286.]

§ 14. MISAPPROPRIATION OF MONEYS AND SECURITIES BY COUNTY
TREASURER.

A county treasurer, who wilfully misappropriates any moneys, funds
or securities, reecived by or deposited with him as such treasurer, or
who is guilty of any other malfeasance of wilful neglect of duty in his
office, is punishable by a fine not less than five hundred dollars nor
more than ten thousand dollars, or by imprisonment in a state prison
not less than one year or more than five years, or by both such fing and
imprisonment. [Penal Law, § 1867; B. C. & G. Cons. L., 2d ed., p. 6002. ]

§ 15. DUTIES OF COUNTY TREASURERS UNDER TAXABLE TRANSFER
PROVISIONS OF TAX LAW.

Such tax shall be paid to the tax commission in a county in which
the office of appraiser is salaried, and in other counties, to the county
treasurer, and said tax commission or county treasurer shall furnish
and every executor, administrator or trustee shall take, duplicate re-
ecipts of such payment, as provided in section two hundred and thirty-
six.’ [See Tax Law, § 222, in part, as amended by I. 1921, ch. 476.]

 

15. The amount of the tax on transfers is determined by the Tax Law,
§ 220, as amended by L, 1910, ch. 706; 1911, ch. 732; L. 1915, ch. 664;
L. 1916, ch. 323, and L. 1922, ch. 430, and § 221, as amended by L. 1910,
chs. 600, 706; L. 1911, ch. 732; L. 1912, ch. 206; L. 1913, chs. 356, 795;
L. 1916, ch. 548; L. 1917, ch. 53, L. 1918, ch. 111, and L. 1919, ch, 626.

For provisions generally, relating to the taxation of taxable transfers, and
the duties of county officers in respect thereto, see McElroy on Taxable Trans-
fers, published by Matthew Bender & Co., Albany, N. Y.
COUNTY COMPTROLLER; COUNTY AUDITORS. 115-117.
Tax Law, §§ 237, 240; County Law, § 154.

Fees of county treasurer. The treasurer of each county in which the
office of appraiser is not salaried shall be allowed to retain, on all taxes
paid and accounted for by him each fiscal year under this article, five
per centum on the first fifty thousand dollars, two and one-half per
centum on the next fifty thousand dollars and one per centum on
all additional sums. Such fees shall be in addition to the salaries and
fees now allowed by law to such officers. [Tax Law, § 237; B.C. &
G. Cons. L., 2d Ed., p. 8575.]

Reports of county treasurer. Each county treasurer in a county in
which the office of appraiser is not salaried shall make a report, under
oath, to the tax commission, on January, April, July and October first
of each year, of all taxes received by him under this article, stating for
what estate and by whom and when paid. The form of such report
may be prescribed by the tax commission. The county treasurer shall,
within thirty days after the receipt thereof, pay the state treasurer all
taxes received by him under this article and not previously paid into
the state treasury, except as provided in the next section, and for all
such taxes collécted by him and not paid into the state treasury, he
shall pay interest at the rate of ten per centum per annum. [Tax Law,
§ 240, as amended by L. 1911, ch. 800, and L. 1921, ch. 476.]

§ 16. WHEN COUNTY TREASURER OF ERIE COUNTY TO ACT AS
CORONER.

In the county of Erie the powers imposed and the duties conferred
upon coroners by sections one hundred and ninety-six to one hundred
and ninty-nine-f of this chapter shall be exercised and performed by
the county treasurer of such county, and such county treasurer shall,
in the exercise and performance thereof, be subject to the same liabili-
ties and responsibilities as are prescribd in such sections in the case of
coroners. [County Law, § 154, as transferred from Code Civ. Proe.
§ 181-d, by L. 1920, ch. 921.]
118 COUNTY OFFICERS.
County Law, § 234.

CHAPTER VIII.

COUNTY COMPTROLLER; COUNTY AUDITORS.
EXPLANATORY NOTE.

County Comptroller.

The office of county comptroller is a new office, created by L. 1909,
ch. 466, which inserted a new article 14a in the county law. When a
petition signed by one per cent of the total vote cast in the county for
the office of governor at the last general election is presented to the
county clerk, a proposition must be submitted to the voters of the
county for the creation of the office. If the proposition is adopted, a
county comptroller must be elected at the next general election.

The duties of such officer are prescribed by statute. He is not to
supersede the board of supervisors in the audit of claims against the
county, but is to investigate as to such claims and report thereon to
the board.

County Auditor.

Chapter 152 of the 1aws of 1910, as amended by L. 1913, ch. 384,
amends the County Law by adding a new article thereto, which author-
izes a board of supervisors to appoint a county auditor. Such officer,
when appointed, audits all claims against the county, to the same effect
as though audited by the board of supervisors.

Section County comptroller; term of office.

A

2. Duties of county comptroller; issue and sale of bonds; audit
of records; reports.

3. County employees; how paid.

4. Filing and verification of accounts.

5. Purchase of supplies by county officers; sheriff to be custodian
of buildings.

6. Estimate of county officers.

7. Accounts with treasurer.

8. Appointment of county auditors.

9. Duties.

§ 1. COUNTY COMPTROLLER; TERM OF OFFICE.

Upon the filing with the county clerk of any county, prior to the
first day of October, of a petition, duly siened by a number of voters
equal to at least one per centum of the total vote cast in such county
for the office of governor at the last general election, asking that the
office of county comptroller be created in and for such county, such
county clerk shall prepare a question to be submitted, in the same man-
ner as other questions are submitted, to the voters of such county at
the next general election, in substantially the following form: ‘‘Shall
the office of county comptroller be ereated in and for the county
of 2’? At the next general election after the affirmative
determination of such proposition, there shall be elected, in the same
manner as are other county officers, a county comptroller, whose term
of office shall commence on the first day of January following and
shall be for three years and whose successor shall be elected in like
COUNTY COMPTROLLER; COUNTY AUDITORS. 119
County Law, § 235.

manner for a term of three years. A member of the board of super-
visors, during the term for which he has been so elected or appointed,
shall not be eligible for election or appointment to the office of county
comptroller, nor shall any person elected or appointed to the office of
county comptroller, while holding such office, be eligible to election or
appointment as supervisor. Before entering upon the duties of his
office he shall take the constitutional oath and execute to the county a
bond with good and sufficient sureties to be approved by the county
judge in a sum to be fixed by the board of supervisors, conditioned
upon the faithful performance of his duties. The annual salary of
such county comptroller shall be fixed by the board of supervisors, ex-
cept that in counties having a population not less than one hundred
and sixty thousand nor more than one hundred and eighty-five thou-
sand according to the last preceding federal census, the annual salary
of such county comptroller shall be five thousand dollars; the board
of supervisors shall also fix the compensation of assistants appointed
by such county comptroller and shall provide and maintain suitable
rooms to be used by him as his office. The office of the county comp-
troller shall be open daily, with the exception of Sundays and holi-
days, from nine ante meridian until five post meridian. The county
comptroller may be removed by the governor within the term for
which he shall have been chosen, after a copy of the charges against
him and an opportunity to be heard in his defense shall have been
given to such comptroller. Ifa vacancy shall occur, otherwise than by
expiration of term, the governor shall appoint a person to execute the
duties of county comptroller until the vacancy shall be filled by an
election.

If the county comptroller shall be unable to perform the duties of his
office in consequence of sickness or temporary absence from the county
he may designate one of the assistants, deputies, inspectors ot clerks in
his office to act in his place. If the county comptroller shall be so in-
capacitated for more than ten days without making such designation,
the board of supervisors may do so. Such designation shall be in writ-
ing and shall be signed by the county comptroller in case he makes
such designation and by the chairman and clerk of the board of super-
visors in case such designation is made by the board of supervisors.
Such designation shall be filed with the county clerk, and the clerk so
designated shall be known as the acting county comptroller. The assist-
ant, deputy, inspector or clerk so designated shall perform the duties
of county comptroller until the county comptroller shall resume them.
An assistant, deputy, inspector or clerk so designated shall not receive
any additional compensation while acting as county comptroller to
that which he is receiving at the time of the designation. [County
Law, § 234, inserted by L. 1909, ch. 466, and amended by L. 1917, ch.
76, and L. 1921, ch. 633.]

§ 2. DUTIES OF COUNTY COMPTROLLER; ISSUE AND SALE OF BONDS;
AUDIT OF RECORDS; REPORTS.

The comptroller shall superintend the fiscal affairs of the county pur-
suant to law and audit all bills for the expenses of the several county
officials for repairs and maintenance of the several county offices and
buildings and the expenses of the county officials and all other bills that
are properly chargeable to the county, or paid by moneys of the county,
120 COUNTY OFFICERS.
County Law, § 235.

and when so audited they shall have the same force and effect as if
audited by the board of supervisors and shall be paid by the county
treasurer upon the warrant of the comptroller. He shall keep a separate
account with every officer and department and with each improvement
for which funds are appropriated or raised by tax or assessment. No
warrant shall be drawn for the payment of any claim or obligation of the
county unless it state particularly against which of such funds it is
drawn. No fund shall be overdrawn nor shall any warrant be drawn
against one fund to pay a claim chargeable to another. The county
comptroller shall cause each claim upon presentation to him to be num-
bered consecutively, and the number, date of presentation, the name
of the claimant and a brief statement of the character of each claim,
shall be entered in a book kept for such purpose, which shall at all times
during office hours be so placed as to be convenient for public inspection
and examination. The comptroller shall cause to be kept in his office
such books as are necessary to contain all claims and accounts against
the county presented to him for audit, and the action taken by him on
each, and a record of the money appropriated by the board of super-
visors for the benefit of the county buildings and officers and the amount
drawn thereon, and a record of all contracts or agreements made for
supplies to be furnished any county building or county office. The
county comptroller shall report to the board of supervisors at each reg-
ular meeting thereof the balance of the appropriation to each depart-
ment remaining unexpended. A county comptroller first elected in any
county as above provided is authorized after he enters upon the dis-
charge of his duties to employ such expert accountants as may be neces-
sary in opening the proper books in his office and in establishing the
financial system herein provided for such time as he shall deem neccs-
sary, not exceeding ninety days, and the expense thereof shall be a county
charge. All bonds of the county for whatever purpose issued shall be
advertised and sold by the county comptroller. He shall cause to be
published, for such time as the board of supervisors shall prescribe, a
notice containing a description of the bonds to be sold, the manner and
place of sale, and the time when the same shall be sold. Award shall
be made to the highest bidder. At anv sale of bonds the county comp-
troller may reject all bids and readvertise, if in his opinion the price
offered is inadequate. All bonds shall be signed in the name of the
county, by the chairman of the board of supervisors and county treas-
urer and countersigned by the county comptroller. A list of all bonds
issued by the county shall be kept in the county comptroller’s office
and when any bonds are paid by the county treasurer they shall be pre-
sented by him to the county comptroller for cancellation. In case of
refusal or neglect of such comptroller to audit any bill presented for
audit for the full amount claimed, the claimant shall be unprejudiced
by such refusal or neglect and shall have the right to apply to the
COUNTY COMPTROLLER; COUNTY AUDITORS. 121
County Law, §§ 235a, 235b, 236.

supreme court for such relief as may be just and equitable+ [County
Law, § 235, as inserted by L. 1909, ch. 466, and amended by L. 1910,
ch. 8, and L. 1920, ch. 835.]

Audit of records.—The county comptroller shall examine and audit
the books, records and accounts of the county treasurer and those of
the various offices, bureaus, departments and institutions of the county
at least once yearly and at such other times as he may clect or as the
board of supervisors may direct. He shall, as soon as may be after
having made such an examination and audit, report to the board of
supervisors whether or not such books, records and accounts are ac-
curately kept, whether or not all county funds and properties are ac-
counted for and whether the business of the office is being transacted
pursuant to law and the rules and regulations of the board of super-
visors. He shall procure from the depositaries with which the county
treasurer shall have deposited funds and mozcys coming into his pos-
session statements, at least monthly, of all moneys which have been
deposited by the county treasurer or paid out pursuant to his order, and
shall reconcile such statements with the accounts kept by him and with
those kept by the treasurer. He shall have access to the books of the
county treasurer at all times. [County Law, § 235-a, added by L. 1920,
ch. 835. ]

Reports.—The comptroller shall, within thirty days after the close of
each fiscal year, prepare and publish a book or pamphlet form a full and
accurate statement in detail verified by-his oath, showing: (1) the re
ceipts of revenues of the county from all sources, and accounts which
may be due to the county and uncollected at the close of the fiscal year;
(2) the disbursements from all county funds and the expenditures in
all branches of the county government during the fiscal year, together
with the sum or sums, if any, expended but not paid during the year;
(3) the indebtedness of the county at the close of the fiscal year, the
provisions made for the payment thereof together with the purpose for
which it was incurred; (4) summarized statements of receipts and
payments of the county treasurer from other than county funds; (5)
the balance in each fund at the beginning and at the end of the fiscal
year; and (6) such other information as may be required by the board
of supervisors. [County Law, § 235-b, added by L. 1920, ch. 835.]

§ 3. COUNTY EMPLOYEES; HOW PAID.

Before presentation to the county comptroller of the claims or pay-
rolls for services rendered to the county, or for services of subordinate
officials, such claims shall be certified by the county officer appointing
or employing such persons to the effect that such persons were regularly
appointed to or employed in the positions held by them; that the ser-
vices represented were actually performed and that the compensation

 

1.- Audit of rejected claim. The board of supervisors cannot legally audit
a claim which the county comptroller advises should be rejected or medificd,
unless two-thirds of the board vote in favor of such audit. The remedy of
the claimant is by certiorari. Becker v. County of Oneida, 157 Anp. Div. 457.

Mandamus to compei comptroller to andit claim. See Matter of Obelisk
Waterproof Co. v. Cloher (1920), 111 Mise, 1.

Powers and duties. Ibid.
a

129 COUNTY OFFICERS.
County Law, §§ 237, 238.

demanded in said claims and the amounts contained in such payrolls
were correct. Upon the presentation of such claims or payrolls to the
county comptroller by the several county officers he shall audit the
same and transmit a certified transcript of such claims or payrolls as
audited by him to the county treasurer. All original payrolls and claims
for services shall be filed in the office of the county comptroller and tran-
scripts thereof in the ottice of the county treasurer. All county em-
ployees and county officers shall be paid by warrants issued by the
county comptroller upon the county treasurer. [County Law, § 236, as
inserted by L. 1909, ch. 466, and amended by L. 1920, ch. 835.]

§ 4. FILING AND VERIFICATION OF ACCOUNTS.

Each account or claim presented to the county comptroller for audit
shall be approved by the officer or head of the department incurring the
same; such claim or account shall be verified by the person presenting
it to the effect that it is just, true and correct; that no part thereof has
been paid or otherwise settled; that the prices charged in such accounts
or claims are correct and just, and, if there is any contract or agree
ment therefor, that the prices are in accordance with such contract or
agreement, a copy of which must be attached to said account or claim.
All orders or warrant for the payment of any claims or accounts
audited by the county comptroller and ordered paid shall be drawn and
signed by: the county comptroller before the same are paid by the county
treasurer. [County Law, § 237, as inserted by L. 1909, ch. 466 and
amended by L. 1920, ch. 835. ]

§ 5. PURCHASE OF SUPPLIES BY COUNTY OFFICERS; SHERIFF TO BE
CUSTODIAN OF BUILDINGS.

County officers may purchase for the use of the buildings or offices of
which they have charge or custody all supplies necessary for their sup-
port and maintenance, all accounts for which shall be presented to the
county comptroller for audit, and in case any purchase or contract shall
involve an expense exceeding two hundred dollars it shall be let to the
lowest responsible bjdder, after public advertisement such as the board of
supervisors shall prescribe. The superintendent or custodian of a county
building, a county officer, county comptroller or supervisor shall not be
directly or indirectly interested in a contract or purchase of supplies by
any such superintendent or custodian or county officer. All written con-
tracts or agreements for supplies for any county building or office shall
be made in duplicate, one copy of which shall be filed in the office of the
county comptroller and one copy in the office of the superintendent or
eustodian of the county building or county office for which such con-
tracts were made. The sheriff of the county shall be the superintendent
and custodian of the county jail and such other of the county buildings
as the board of supervisors shall designate and shall. except in counties
having a superintendent of buildings or similar officers appointed or
*

COUNTY COMPTROLLER; COUNTY AUDITORS. 123
County Law, §§ 239, 239-a.

elected pursuant to law make all contracts for heating, lighting and the
care and maintenance of the buildings of which he is custodian.
[County Law, § 238, as inserted by L. 1909, ch. 466, and amended by L. °
1920, ch. 835.]

§ 6. ESTIMATE OF COUNTY OFFICERS.

The superintendent or custodian of county buildings and all county
officers shall annually submit to the board of supervisors on or before
the fifteenth of the last month of the fiscal year upon forms pre-
scribed by the county comptroller an estimate of the amount necessary
to be expended for supplies, for the support, the conduct and maintenance
of such buildings or offices during the next fiscal year. They shall include
in their annual report to the board of supervisors at its first regular meet-
ing after the beginning of the fiscal year upon forms prescribed by the
county comptroller the quantity of supplies used by them, the amount
paid for them during the preceding year; and also a statement of all con-
tracts made by them for supplies, and all facts as shall be required to
show whether such contracts were reasonable and just and shall state
the action of the board of supervisors thereon. The board of supervisors
may call upon any such superintendent or custodian or officer for a
further or more detailed report or for further information on any subject
embraced in the report. The board of supervisors by a committee ap-
pointed for the purpose may investigate any such report or any agreement
or contract for supplies at any time. Upon such examination said board
or committee shall have the power to subpcena witnesses and to compel
their attendance with or without books or papers. [County Law, § 239, as
inserted by L. 1909, ch. 466; B. C. & G. Cons. L., p. 824.]

§ 7. ACCOUNTS WITH TREASURER.

The comptroller shall keep an account between the county and treas-
urer of all moneys received and disbursed by the treasurer, and for all
purchases made shall procure daily statements from the treasurer as to
the moneys received and disbursed by such treasurer. He shall procure
from the banks in which the amounts have been deposited by the treas-
urer monthly statements of the moneys which have been received and
paid out on account of the county. He shall examine the treasurer’s
books, accounts and bank books and ascertain as to their correctness and
shall render to the board of supervisors, as often as such board shall
prescribe, a detailed report of the funds and of the financial condi-
tion of the county. All moneys deposited by the treasurer shall be placed
to the credit of the county. The treasurer shall keep bank books in which
shall be entered his deposits in and moneys drawn from the banks or
trust companies in which such deposits shall be made. He shall exhibit
124 COUNTY OFFICERS.
County Law, §§ 215, 216.

such books to the county comptroller for his inspection at least once each
month, and oftener if required. The banks or trust companies in which
such deposits are made shall make to the comptroller monthly statements
of moneys which shall have been received and paid out by them on account
of the county. Deposits in banks and trust companies shall be made by
the treasurer in-conformity with the provisions of this chapter. [County
Law, § 239a, as inserted by L. 1909, ch. 466; B. C. & G. Cons. L., p. 825.]

§ 8. APPOINTMENT OF COUNTY AUDITORS.

The board of supervisors in any county may, by resolution duly adopted,
appoint a county auditor or auditors in and for such county and fix the
term of office and salary. The county auditor or auditors may also act
as county purchasing agent or committee where so directed by the board
of supervisors which shall prescribe the place where and the time when
the office shall be open. [County Law, § 215, as added by L. 1910, ch. 152.]

§ 9. DUTIES.

The county auditor or auditors shall audit all the bills for the ex-
penses of the several county officials for repairs and maintenance of the
several county offices and buildings under their respective jurisdictions
and the expenses of county officials and all other bills that are properly

chargeable to the county, unless their powers shall be limited by the
board of supervisors, and when so audited they shall have the same force
and effect as if audited by the board of supervisors and shall be paid by
the county treasurer upon the certificate of such auditor or auditors in
the same manner. But any board of supervisors which has appointed
or which may hereafter appoint a county auditor or county auditors,
may by resolution limit his or their power of audit to certain accounts
or classes of accounts against the county, in which case such auditor or
auditors shall have power to audit such accounts or classes of accounts
only. The board of supervisors also by resolution or resolutions, duly
adopted, shall prescribe the form and manner of presentation of such
bills. and the form and manner in which such auditor or auditors shall
keep a record of the presentation thereof, and the action of such auditor
or auditors thereon. In case of refusal or neglect of such auditor or
auditors to audit any bill presented for audit for the full amount claimed
the claimant shall be unprejudiced by such refusal or neglect and shall
have the right to present the same to the board of supervisors for audit.
[County Law. § 216, as added by L. 1910, ch. 152, and amended by L.
1918, ch. 384.)
COUNTY CLERK. 125
Explanatory note; County Law, § 160.

CHAPTER IX.

COUNTY CLERK.

EXPLANATORY NOTE.
Office of County Clerk.

The office of county clerk is created and the term fixed at three years
by the constitution. The office is thus a constitutional office and may
not be abolished or the term changed by act of the legislature.

The duties of the office are prescribed by statute. The county clerk
is the clerk of the supreme and county courts and his duties as such are
conferred upon him by the Judiciary Law and the Civil Practice:
Act. He is made the recording officer in all counties, except those
having registers of deeds, by the Real Property and other laws. It is
not within the scope of this work to treat of his powers and duties as
a clerk of the court or a recording officer. We will only consider his
powers and duties as a county administrative officer.

 

Section 1. eee appointment, term of office and undertaking of county
clerk.
- General powers and duties of county clerk.
. County clerk to appoint a deputy; oath cf office of deputy; desig-
nation of clerk to act as deputy.
. Duties of deputy county clerk.
. Duties of special deputy county clerk.
. County clerk to present statement of receipts and expenditures
to board of supervisors. .
. Busiiess hours in office of county clerk.
. County clerk may complete records of predecessor.
. County clerks may receive certain papers for safe keeping.
10. County clerk shall maintain register of moneys paid or ordered
paid into court, penalty for failure therecf.
10a. Records to be kept by the county clerk.
11. False certificates by clerk, etec.; penalty for recording instrument
without acknowledgment attached.
12. County clerk omitting to publish statement required by law.

§ 1. ELECTION, APPOINTMENT, TERM OF OFFICE AND UNDERTAK-
ING OF COUNTY CLERK.

won aor ooh

There shall continue:

1. To be elected in each of the counties a county clerk, who shall
hold his office for three years from and including the first day of Jan-
uary succeeding his election;

2. To be appointed by the governor, a county clerk, when a vacancy
shall occur in such office, and the person so appointed shall hold the
office until and including the last day of December succeeding the first
annual election after the happening of the vacancy.

Every person elected or appointed to the office of county clerk shall,
before he enters upon the duties of his office, and if appointed, within
fifteen days after notice thereof, execute an undertaking to the county,
with at least two sureties, with the approval of the board of supervisors,
if in session, indorsed thereon by the clerk of the board, otherwise with
126 COUNTY OFFICERS.
County Law, § 160.

the approval of the county judge, or a justice of the supreme court re-
siding in the county, and-in such sum as such board, judge or justice
approving the same shall direct, to the effect that he will faithfully
execute and discharge the duties of county clerk, and account for all
moneys deposited with: him pursuant to law, or the order of any court,
or by his predecessor in office, and pay them over as required by law,
or directed by such order. [County Law, § 160, as amended by L.
1914, ch. 62; B. C. & G. Cons. L., 2d ed., p. 1506.]

 

1. Vacancy in office of county clerk. The ‘‘vacancy’’ referred to in this
subdivision must be construed with section 42 of the Public Officers Law,
and as so construed means a vacancy occurring when the term of the officer
would not expire at the end of the current year, and where a county clerk
dies after re-election and before the commencement of his new term, the
governor has power to appoint a successor for the remainder of the term
only, and another person appointed at the beginning of the new term be-
comes the legal county clerk and entitled to the books, records and papers
appertaining to the office. Matter of Hamlin (1912), 196 App. Div. 714,
188 N. Y. Supp. 326. See, also, Matter of Hamlin (1921), 186 N. Y.
Supp. 611.

la. Reference. Reference should be made to the following provisions re-
lating to county clerks (see Schedule of Laws, after Table of Contents, for
places in this Manual where laws referred to may be found):

County clerk must be elected by electors of county for terms of three years,
except in New York and Kings counties. Constitution, art. X, sec. 1.

Local officer; state officer. The county clerk in all his administrative
duties is a local officer elected by the electors of the county and paid by
taxes collected from the people included in the territory comprising the
county. It is only when he performs state functions that he is to be treated
as a state officer. People ex rel. Plancon v. Prendergast (1916), 219 N. Y.
252, 114 N. E. 438.

Removal of county clerk. The county clerk is removable by the governor.
Constitution, art. X, sec. 1. The procedure for such removal is prescribed
by Public Officers Law, secs. 33-35, post. The expenses of such removal are
a county charge. County Law, § 240, sub. 16, ante.

Official oath to be taken. County Law, § 246, post. Effect of failure to
take oath. Public Officers Law, sec. 18, post. Vacancy created by failure
to take. Public Officers Law, sec. 30, post.

Undertaking, further provision respecting. County Law, sec. 247, post,
Public Officers Law, sec. 11, post. Effect of failure to execute undertaking.
Public Officers Law, sec. 13, post. Validation of official acts before executing
undertaking. Public Officers Law, sec. 15, post. Vacancy in office created
by failure to execute undertaking. Public Officers Law, sec. 30, sub. 7, post.

Vacancies, how created. Public Officers Law, sec. 30, post. ©

Resignations of county clerks are to be made to the governor. Public
Officers Law, sec. 31, post.

Expiration of term of office, county clerk to hold office after, until suc-
cessor is appointed and has qualified. Public Officers Law, sec. 5, post.

The Constitution, Art. VII, § 3, does not require that the term of office of
the county clerk of Queens county, expire on the odd-numbered year, as this
section does not apply to said county. Matter of Becker et 179 App.
Div. 789, 167 N. Y. Supp. 118, affd. 221 N. Y. 681, 117 N. E. 610

Fees of county clerk, see ch. 71, post,

County clerk, Erie county; compensation. His salary being fixed by stat-
ute, the county clerk of Erie county is not entitled to the fees payable under
federal statutes in naturalization proceedings. Price v. County of Erie
(1917), 221 N. Y. 260, 116 N. E. 988, revg. 163 App. Div. 437, 148 N. Y.
Supp. 864.

Special acts relating to salaries of county clerks. In many of the counties
the office of county clerk is made salaried by special act of the legislature.
It is generally provided in such acts that the fees chargeable by the county
clerk for services performed by him shall belong to the county.

The following is a list of such acts:
COUNTY CLERK. 127
County Law, § 161.

§ 2. GENERAL POWERS AND DUTIES OF COUNTY CLERK.

The county clerk shall:

1. Have the custody of all books, records, deeds, parchments, maps
and papers, deposited in his office in pursuance of law, and attend to
their arrangement and preservation.”

 

Alleghany county, L. 1897, ch. 340.

Bronx county, L. 1912, ch. 548, as amended by L. 1913, ch. 266, as to fees, see
L. 1915, ch. 355. ;

Broome county, L. 1900, ch. 655.

Cattaraugus county, L. 1891, ch. 281, as amended by L. 1901, ch. 2, and L. 1914,
ch. 129.

Cayuga county, L. 1906, ch. 93, as amended by L. 1907, ch. 29.

Chautauqua county, L. 1890, ch. 547, as amended. by L. 1903, ch. 310; L. 1907,
ch. 101, and amended by L. 1908, ch. 39.

Columbia county, L. 1893, ch. 52, as amended by L. 1901, ch. 463.

Delaware county, L. 1911, ch. 110.

Dutchess county, L. 1915, ch. 303, as amended by L. 1920, ch. 25,

Erie county, L. 1885, ch. 502, as amended by L. 1887, ch. 125, L. 1891, ch. 149,
and L. 1910, ch. 48. '

Genesee county, L. 1909, ch. 334.

Greene county, L. 1900, ch. 161.

Herkimer county, L. 1891, ch. 47, as amended by L. 1904, ch. 66, L. 1905, ch. 412,
and L. 1908, ch, 413.

Livingston county, L. 1903, ch. 200, amended by L. 1905, ch. 52, and L. 1916,
eh, 241.

Madison county, L. 1891, ch. 64, as amended by L. 1898, ch. 492, ry, 1897, ch,
540, L. 1898, ch. 492, and L. 1920, ch, 491.

Monroe county, L, 1886, ch. 195, as amended by L. 1889, ch. 498, L. 1893,
ch. 243, and L. 1907, ch. 55.

Montgomery county, L. 1898, ch. 41, as amended by L. 1899, ch. 216.

Nassau county, L. 1901, ch. 337.

Niagara county, L. 1894, ch. 422, as amended by L. 1696, ch. £5, and L.
1920, ch. 453.

Oneida county, L 1898, ch. 10.

Onondaga county, L. 1893, ch. 520, as amended by L. 1895, ch. 44, L.
1896, ch. 14, L. 1897, ch. 512, L. 1898, ch. 14, L, 1900, ch. 116, L. 1901, ch,
516, ‘fs, 1903, ch. 604, L. 1904, ch. 175, and L. 1912, ch. 244,

Ontario county, L. 1890, ch. 327, as amended by L. 1895, ch. 128.

Orange county, L. 1904, ch. 213, as amended by L. 1907, ch. 31, and L.
1911, ch. 691.

1 Oswee county, L. 1897, ch. 118, amended L. 1906, ch. 1438, and L. 1908,
ce

Richmond county, L, 1909, ch. 813.

St. Lawrence county, L. 1887, ch. 392, as amended by L: 1888, ch. 79, L.
1889, ch. 287, and L. 1896, ch. 47.

Saratoga county, L. 1898, ch. 43, as amended by L. 1909, ch. 72.

Schenectady county, L. 1907, ch. 390.

Schuyler eouaiys: L. 1892, ch. 590.

Seneca county, L. 1899, ch. 546.

Steuben county, L. 1890, ch, 323, as amended by L. 1893, ch. 713, L. 1908,
eh. 15, and L. ies ch. 204,

Sullivan county, L. 1897, ch. 440, as amended by L. 1901, ch. 119.

Tompkins county, L. 1909, ch. 298.

Ulster county, L. 1906, ch. 103, as amended by L. 1911, ch. 237.

Washington county, L. 1897, ch. 116, as amended by L. 1898, ch. 324, L.
1906, ch. 112, and L. 1911, ch. 723.

Wayne county, L. 1892, ch. 663.

Westchester county, L, 1909, ch. 318.

Yates county, L. 1897, ch. 363.

2, Books and papers. Clerk has power to repair damage accidentally done
to books, papers, etc., in his office at a reasonable expense, and the cost
128 COUNTY OFFICERS.

County Law, § 161.

2. Provide at the expense of the county, all necessary books for re-
cording all papers, documents or matters authorized by law to be recorded
in his office.

3. When a certificate of election, or appointment to any county office,
or revocation thereof, is received at his office, give immediate notice
thereof, at the expense of the county, to every person named therein.
When any other commission or appointment to office, or order of removal
from office is received at his office, give immediate notice thereof, at the
expense of the state, to every person named therein.

4. Give immediate notice to the governor, at the expense of the state,
when there is a vacancy in any county office which he is authorized to fill;
and the names of all persons elected or appointed to any such office who
have neglected, within the time required by law, to file the constitutional
oath of office, or the undertaking severally required of them; and on or
before the fifteenth day of January in each year, the names of all persons
elected or appointed to a county office in his county during the preceding
year, who have duly qualified.

5. On or before the first day of January in each year, report to the
secretary of state, at the expense of the state, the names of all corpora-
tions whose certificates of incorporation have been filed in his office during
the previous year.

6. Record at length in the book kept in his office for recording certifi
cates of incorporation an order entered in his office changing the name of
a corporation. This subdivision also applies to the county of New York.

7. Annually, in the month of December, report to the secretary of
state all changes of names of individuals or of corporations, which have
been made in pursuance of orders filed in his office during the past year and
since the last previous report, and also report in like manner to the
superintendent of banks all changes of the names of banking corporations,
and to the superintendent of insurance all changes of names of corpora-
tions authorized to make insurances. This subdivision also applies to the
county 0” New York.

8. Keep in his office a book, free at all times to public inspection, in

 

thereof is a county charge. Worth v. City of Brooklyn, 34 App. Div. 223, 54 N. Y.
Supp. 484.

Making new indexes. A board of supervisors has no power to contract with a
county clerk to make an entirely new set of indexes of the county records for a
compensation in addition to his regular fees where the old indexes have become
dilapidated and inadequate. Wadsworth v. Supervisors of Livingston (1916), 217
N. Y. 484, 112 N. E. 161, revg. 159 App. Div. 934, 144 N. Y. Supp. 1149.

Presumption as to existence of document. The law presumes that all officers in-
trusted with the custody of public files and records will perform their official duty
by keeping the same safely in their offices, and if a paper is not found where, if in
existence, it ought to be deposited or recorded, the presumption thereupon arises
that no such document has ever been in existence, and until this presumption is re-
butted it must stand as proof of such non-existence. Deshong v. City of New York,
176 N. Y. 475.
COUNTY CLERK. 129
County Law, §§ 16la, 162.

which shall be entered all fees charged or received by him for any offi-
cial service, the time of receiving it, its nature, and the persons for
whom rendered.

9. Except as otherwise specially prescribed by law, each county clerk
or register, who receives a salary, must account for, under oath, and
pay to the treasurer of his county, in the manner prescribed by law, all
fees, perquisites, and emoluments, received by him, for his official ser-
vices. This subdivision also applies to the county of New York.

10. Upon request, and upon payment of, or offer to pay, the fees al-
lowed by law, diligently search the files, papers, records, and dockets
in his office; and either make one or more transcripts therefrom, and
certify to the correctness thereof, and to the search, or certify that a
document or paper, of which the custody legally belongs to him, can-
not be found. This subdivision also applies to a register of a county
and to the county of New York.

11. Be clerk of the county court in his county. [County Law, § 161;
B.C. & G. Cons. L., 2d ed., p. 1507. ]

Recording certificates of honorable discharge. _A certificate, issued
since April sixth, nineteen hundred and seventeen, of the honorable
discharge of any soldier, sailor or marine from the military, naval or
marine service of the United States, may be recorded in any county, in
the office of the county clerk. It shall be the duty of the county clerk
to record any such certificate, upon presentation thereof without the
payment of any fee. This section also applies to the county of New
York. For any purpose for which such original honorable discharge
may be required in the state of New York, a certified copy of such
record shall be deemed sufficient and shall be accepted in lieu thereof.
[County Law, §161a, as added by L. 1920, ch. 214, and amended by

1922) ch. 283. ]

§ 3. COUNTY CLERK TO APPOINT A DEPUTY; OATH OF OFFICE OF
DEPUTY; DESIGNATION OF CLERK TO ACT AS DEPUTY.

Every county clerk shall, within ten days after entering upon the

 

3. Other powers and duties. Among the other powers and duties of county
elerks the following are here referred to:

Notary public, county clerk must notify person appointed as. Executive
Law, sec. 103, as amended by L, 1915, ch. 18.

Elections. Secretary of state to publish notice of submission of proposed
constitutional amendments and other questions. Election Law, sec. 80.
Compensation for duties respecting election~,to be fixed by board of super-
visors. County Law, sec. 319. Copy of election laws to be transmitted to
clerk. Election Law, sec. 67. Certificates of nomination to be filed. Elec-
tion Law, sec. 141. List of candidates to be sent to board of election. Elec-
tion Law, sec. 69. Notice of declination of nominations to be filed. Elec-
tion Law, sec. 138. Vacancies in nominations, how filled, and correction of
certificates of nominations. Election Law, secs. 139, 140. See Jewett’s
Election Manual, 1921, published by Matthew Bender & Co., Albany, N. Y.

Ballots, form of. Election Law, secs. 104-108. Sample ballots to be pro-
vided for each polling place. Election Law, sec. 101. Boards of election to
furnish blank forms for election officers. Election Law, sec. 111. Number
of official ballots. Election Law, sec. 101. County clerk to furnish and dis-
tribute ballots and stationery. Election Law, secs. 77, 87.

District superintendents of schools, county clerks to furnish to commission-
ers of education certificates of election of. Education Law, § 383, as amended
130 COUNTY OFFICERS,

County Law, §§ 163, 163a.

duties of his office, make, under his hand and seal, and record in his office, a
written appointment of some suitable person to be deputy clerk of his county.
In counties containing a population of more than one hundred thousand by the
last preceding federal census or state enumeration, the county clerk, may, in like
manner, appoint not to exceed two additional deputies. The clerks of the counties
of New York, Kings, Bronx, Queens and Richmond may also designate assistants
or clerks appointed by him and employed in the naturalization of aliens to be
special deputy county clerks authorized to administer oaths required by the
naturalization laws; but such special deputy county clerks shall not receive any
compensation other than the salaries paid them as such assistants or clerks. Every
such deputy, and every such special deputy designated pursuant to the provisions
of this section, shall hold such office during the pleasure of the clerk. When any
such deputy is temporarily absent, disqualified or disabled, the clerk shall appoint
some one of his assistants to act as a aeputy in his place for a period not exceeding
thirty days and without any additional compensation. Before any such deputy so
appointed, or special deputy so designated pursuant to the provisions of this section,
enters on his duties as such, he shall take the constitutional oath of office. If
there shall be no county clerk, or deputy county clerk, or assistant authorized to
act as deputy, the county judge may designate in writing, to be recorded in the
county clerk’s office, a suitable person to act as county clerk with all the powers,
duties and privileges of the office, and subject to the liabilities thereof, until a
county clerk shall have been elected, or appointed, and qualified. This section shall
not apply to or affect any special deputy clerk to the county clerk appointed
pursuant to the provisions of the judiciary law of this state. [County Law, § 162,
as amended by L. 1911, ch. 727, and L. 1916, ch. 452; B. C. & G. Cons. L., p. 793.]

§ 4. DUTIES OF DEPUTY COUNTY CLERE.

Any such deputy may perform such duties of the clerk as may be assigned to
him by an order of the clerk to be entered in his office and shall also perform all
the duties of the clerk when the clerk shall be absent from his office, or shall be
incapable of performing the duties thereof, or when the office shall become vacant,
until it shall be filled, except that of deciding upon the sucffiiency of sureties, which
duty shall devolve upon the county judge. [County Law, § 163; B. C. & G.
Cons. L., p. 793.]

§ 4-a. DUTIES OF ASSISTANT CLERKS IN COUNTIES.

The clerk of any county may designate one of his assistants to be the calendar
clerk of such county who may in the absence of any deputy clerk or for the pur-
pose of assisting any deputy clerk, and after taking the required oath, perform
such duties of the clerk as may be assigned to him by an order of the county clerk
to be entered in his office. The compensation of any such assistant of the clerk
shall be fixed by the county clerk, and when so fixed, no additional compensation
shall be paid to any such assistant of the clerk for the performance of any duties
whatsoever which the county clerk may assign to him. [County Law, § 163-a, as
added by L. 1913, ch. 368.]

 

by L. 1910, ch. 607. Oath of, to be filed in county clerk’s office. Idem, § 385, as
amended by L. 1910, ch. 607. |.

Registration of titles to reali property. The county clerk has certain duties
to perform under the so-called Torrens Land Title Registration Act which was
enacted into law by ch. 444 of L. 1908, and re-enacted in Real Prop. Law, art. 12.

4. Charges against employees may be heard by deputy in the event of the
clerk’s inability. People ex rel. De Vries v. Hamilton, 84 App. Div. 369, 82 N. Y.
Supp. 884.

The authority of a deputy clerk, discharging the duties of clerk in conse-
quence of the death of his principal, ceases on the appointment by the governor
of a person to be clerk during the vacancy. People v. Fisher, 24 Wend. 215.

Oath may be administered by deputy, who may sign name of clerk to jurat.
People v. Powers, 19 Abb. Pr. 99. pre oe eezenieae fe
COUNTY CLERK. 131
County Law, § 169.

§ 5. DUTIES OF SPECIAL DEPUTY COUNTY CLERK.

1. In every county other than the counties of Queens, Dutchess,
Orange and Rockland the county clerk may, from time to time, by an
instrument in writing filed in his office, appoint, and at pleasure re-
move, one or more special deputy clerks to attend upon any or all of
the terms or sittings of the courts of which he is clerk, and in any
county having a population of more than sixty thousand at the last
enumeration, the salary of such special deputy clerks shall be fixed by ,
the board of supervisors of such county, and when the said salary shall
be so fixed the same shall be paid from the court funds of said county
or from an appropriation made therefor. Each person so appointed
must, before he enters upon the duties of his office, subscribe and file
in the clerk’s office the constitutional oath of office; and he possesses
the same power and authority as the clerk at any sitting or term of the
court which he attends, with respect to the business transacted thereat.
The salaries of special deputy clerks and assistants appointed in
Queens county under the provisions of section one hundred and fifty-
nine of the judiciary law shall be fixed by the justice residing in such
county and shall be a county charge. The provisions of this subdivision
shall not apply to the first judicial department.

All special deputy clerks appointed in the counties of Dutchess,
Orange and Rockland, situate in the ninth judicial district hereunder,
shall be appointed by the justices of the supreme court residing in said
district, or a majority of them, which appointment shall be filed in
writing in the clerk’s office of the county affected thereby, and the sal-
aries of such deputy clerks shall be fixed by the justices making the
appointment and paid as hereinbefore provided. [Subd. 1, amended by
L. 1915, ch. 345, L. 1918, ch. 411, and L. 1920, ch. 156.]

2. The minutes of the part or term of the supreme court to which
any of the special deputy clerks to the clerk of the county of New York
appointed pursuant to the judiciary law is assigned, kept by him, and
the records kept by the supreme court jury clerk in the first judicial
district shall be kept by the county clerk of New York county in his
office and said county clerk shall give extracts from such minutes and
records as now prescribed by law.

38. The minutes and records kept by the special deputy clerks ap-
pointed in the county of Queens pursuant to the judiciary law shall be
132 COUNTY CLERK.
County Law, §§ 164, 165.

kept by the county clerk in his office and he shall give extracts from
such minutes and records as now prescribed by law. [County Law,
§ 169, as amended by L. 1910, ch. 694, and L. 19138, chs. 109, 367,
637; B. C. & G. Cons. L., p. 796.]

§ 6. COUNTY CLERK TO PRESENT STATEMENT OF RECEIPTS AND
EXPENDITURES TO BOARD OF SUPERVISORS.

Every county clerk shall present to the board of supervisors of his
county, upou the first day of their annual meeting, a statement, verified
by his oath to be true, showing for the year preceding the first day of
January:

1. The amount of all fees charged or received for searches, and for
fertificates thereof.

2. The amount of all fees charged or received for recording any
documents in his office, and for certificates thereof.

3. The amount of all sums charged or received for services rendered
the county.

4, The amount of all sums charged or received for official services,

5. The sums paid by him for assistance, fuel, lights, stationery and
other incidental expenses, the names of the persons paid and the items
thereof; but he shall not make any charge against the county for sta-
tionery, except record books and stationery furnished by him for courts
held in his county, but the board of supervisors may allow the county
clerk the necessary expenses incurred by him for lighting and heating
his office.® [County Law, § 164; B. C. & G. Cons. L., p. 794.]

§ 7%. BUSINESS HOURS IN OFFICE OF COUNTY CLERK.

Cierks of counties, courts of record, and registers of deeds, except in
the counties of New York, Kings, Queeus, Riclunond, Bronx, Erie ani
Westchester, as hereinafter provided, shall respectively keep open their
offices for the transaction of business every day in the year, except Sun-
days and other days and half-days declared by law to be holidays or
half-holidays,® from nine o’clock in the forenoon to five o’clock in the

5. For form of statement of county clerk to be made to the board of supervisors
see Form 8, post.

6. Holidays and half-holidays are enumerated in the General Construction Law,
sec. 24, as amended by L. 1909, ch. 112, as follows: Jan. 1 (New Year’s day); Febru-
ary 12 (Lincoln’s birthday); February 22 (Washington’s birthday); May 50
(Memorial day); July 4 (Independence day); first Monday of September (Labor
day); Oct. 12 (Columbus day); first Tuesday after first Monday in November (Elec-
tion day); Thanksgiving day; December 25 (Christmas day). If any such days fall
on Sunday, the day following is observed as a holiday. The term, half-holiday,
includes the period from noon to midnight of each Saturday which is not a holiday.

Office hours. Keeping open the clerk’s office after or before the hours mentioned
is not unlawful; and a certificate of nomination may be filed at 11 P. M. on the last
day allowed for such filing. Matter of Norton, 34 App. Div. 79, 53 N. Y. Supp. 1093.

Judgments docketed out of office hours must be considered as docketed and become
liens equally at the next office hour thereafter. France v. Hamilton, 26 How. Pr.
180.

Business in public offices on holidays. Holidays and half-holidays shall be
considered as Sunday for all purposes relating to the transaction of business in
the public offices of the state, and of each county. [Public Officers Law, § 62.]

 
COUNTY CLERK. 133
County Law, §§ 166, 167.

afternoon. In the counties of New York, Kings, Queens, Richmond
and Bronx, said offices, the sheriff’s office and the offices of the com-
missioner of jurors shall remain open during the months of July and
August in each year from nine o’clock in the forenoon to two o’clock in
the afternoon, and during the other months in the year from nine o’clock
in the forenoon to four o’clock in the afternoon; and in Erie county
the county clerk’s office shall remain open from nine o’clock in the fore-
noon to five o’clock in the afternoon; and in Westchester county the
offices of clerks of counties, courts of record, registers of deeds, sheriffs,
commissioner of jurors and surrogates shall remain open from nine
o’clock in the forenoon to five o’clock in the afternoon, except during
the months of July and August, when they shall remain open from
nine o’clock in the forenoon to three o’clock ‘in the afternoon. [County
Law, § 165, as amended by L. 1909, ch. 199, L. 1918, ch. 576, and L.
1919, ch. 284.]

§ 8 COUNTY CLERK MAY COMPLETE RECORDS OF PREDECESSOR. ;

1. The county clerk of any county of this state upon order duly made
by the supreme court at a special term thereof shall hereafter have
power to complete and sign and certify in his own name, adding to his
signature the date of so doing, all records of papers, orders and minutes
of proceedings of any court of which he is clerk or ex officio clerk. left
uncompleted or unsigned by any of his predecessors. This subdivision
shall also apply to the county of New York.

2. The county clerk of any county or register if any upon .an order
made by the county judge or by a-justice of the supreme court in a
county in which there is no county judge and filed with such clerk, may
complete and sign all uncompleted or unsigned records of conveyanzes
and mortgages of real estate and other instruments affecting real prop-
erty filed for record during the term of any of his predecessors. Snch
records shall be signed in his own name. [County Law, § 166. as
amended by L. 1915, ch. 246; subd. 2, as added by L. 1915, ch. 246.]

§ 9. COUNTY CLERKS MAY RECEIVE CERTAIN PAPERS FOR SAFE
KEEPING.

The clerk of every county in this state, upon being paid the fees al-
lowed therefor by law, shall receive and deposit in their offices re-
spectively, any deeds, conveyances, wills or other papers or documents,
which any person shall offer to them for that purpose; and shall give to
such person a written receipt therefor.

Such instruments, papers and documents, shall be properly indorsed
so as to indicate their general nature and the names of the parties
thereto, shall be filed by the officer receiving the same, stating the time
when received, and shall be deposited and kept by him and his succes-
sors in office, with his official papers, in some place separate and dis-
tinct from such papers.

The instruments, papers and documents so received and deposited,
134 COUNTY OFFICERS.
County Law, § 168.

shall not be withdrawn from such office, except on the order of some
court of record, for the purpose of being read in evidence in such court,
and then to be returned to such office ; nor shall they be delivered with-
out such order, to any person, unless upon the written order of the
person or persons who deposited the same, or their executors or ad-
ministrators.

Such instruments, papers and documents so deposited shall be open
to the examination of any person desiring the same, upon payment of
the fees allowed by law. [County Law, § 167. Part relating to regis-
ter of New York county repealed by L. 1921, ch. 227.]

§ 10. CCUNTY CLERK SHALL MAINTAIN REGISTER OF MONEYS
PAID OR CRPERED PAID INTO COURT; PENALTY FOR
FAILURE THEREOF.

The county clerk in each of the counties of this state shall maintain and keep
in his office a book to be known as a court and trust fund register to be used svlely
as a record of moneys and sccurities paid or transferred, or ordered or required
to be so paid or transferred into court. Immediately upon the filing in his office
of any judgment, order or decree of any court directing the payment or transfer
of money or securitics, the amount thereof being stated, or determinable upon the
happening of the contingency expressed in said judgment, order or dcerece, to the
treasurer of his or any other county of the state, or in the counties of Bronx, New
York, Kings, Queens and Richmond to the Chamberlain of the city of New York,
or upon the filing in his office of any report of a referee or other person, or treas-
urer’s or chamberlain’s receipt, stating that a sum of money has been deposited
with such treasurer or chamberlain, in accordance with any such judgment, order or
decree or with any provision of law; or upon the filing or entry in his office of any
other paper or record from which it appears that money or securities, the amount
thereof being statcd, or determinable upon the happening of the contingency ex-
pressed in said paper or record, have been or should be paid to such treasurer or
chamberlain; or upon the receipt by any such clerk of moncys required by any
judgment, order or decree of the court, or by any provision of law, to be brought
into court, the clerk shall enter in his court and trust fund register, the title of
the action or proceeding in which such judgment, order or decree was made, or in
which moneys are required to be deposited, together with a statement of the amount
so deposited, or ordered re required to be deposited, if said judgment, order or decree
contains the amount of the same, or, otherwise, of the amount to be deposited as shown
by the report of the referee or other person, or of the amount received by such clerk,
or shown by the records of his office, if the said amount has been determined, or
if not determined, a statement of the contingency upon the happening of which
the amount is determinable, and the name of the person or persons, if any, for whom
such money or securities are ordered to be deposited, and the date of filing the
same, or of such report or receipt as herein mentioned. For failure to comply with
any provision of this section a county clerk shall be liable to a penalty of two hun-
dred and fifty dollars, to be recovered by the comptroller of the state in an action
brought in his name as such comptroller and all money recovered in any such action
or actions shall be paid to the people of the state of New York. [County Law,
§ 168, as ae by L. 1910, ch. 160, and L. 1917, ch. 366; B. C. & G. Cons.
L., p. 796.

§ 10a. RECORDS TO BE KEPT BY THE COUNTY CLERK.

The county clerk of each county except the counties included within the city of
New York shall keep a copy and index in a book kept in his office for that purpose
of each statement, affidavit, consent and license, together with a copy of the certificate
thereto attached showing the performance of the marriage ceremony, filed in his
office. During the first twenty days of the months of January, April, July and
COUNTY CLERKS. 155

Dom. Rel. Law, § 20; County Law, § 171; Dec. Est. Law, § 43;
Penal Law, §§ 1860-1862.

October of each year the county clerk shall transmit to the state department
of health at Albany, New York, all original affidavits, statements, consents
and licenses with certificates attached filed in his office during the three
months preceding the date of such report, also all original contracts of
marriage made and recorded in his office during such period entered into in
accordance with subdivision four of section eleven of this chapter, which
record and certificate shall be kept on file and properly indexed by the state
department of health. Whenever it is claimed that a mistake has been
made through inadvertence in any of the statements, affidavits or other
papers required by this section to be filed with the state department of
health, the state commissioner of health may file with the same, affidavits
upon the part of the person claiming to be aggrieved by such mistake, show-
ing the true facts and the reason for the mistake and may make a note upon
such original paper, statement or affidavit showing that a mistake is claimed
to have been made and the nature thereof. The services rendered by the
county clerk in carrying out the provisions of this section shall be a part
of the duties of his office. [Domestic Relations Law, § 20, as added by L.
1917, ch. 245, and amended by L. 1921, ch. 317.]

Clerk to keep judgment docket book. Each county clerk shall keep one
or more books, ruled in columns, convenient for making entries prescribed
in section five hundred and one of the civil practice law; in which he must
docket in its regular order, and according to its priority, each judgment
which he is required to docket. The expense of procuring new books when
necessary is a county charge.7 [County Law, § 171, as transferred from
Code Civ. Proc., § 1245, first two sentences, by L. 1920, ch. 921.]

County clerk’s index of recorded wills. Upon recording a will or exempli-
fication, as prescribed in the last section,6a the clerk or register must index
it in the same books, and substantially in the same manner, as if it was a
deed recorded in his office. [Decedent Estate Law, § 43.]

§ 11. FALSE CERTIFICATES BY CLERK, ETC.; PENALTY FOR RECORDING
INSTRUMENT WITHOUT ACKNOWLEDGMENT ATTACHED.

An officer authorized by law to record a conveyance of real property, or of any
other instrument, which by law may be recorded, who knowingly and falsely certi-
fies that such a conveyance or instrument has been recorded, is guilty of a felony.
[Penal Law, § 1860; B. C. & G. Cons. L., p. 4050.]

A publie officer who, being authorized by law to make or give a certificate or other
writing, knowingly makes and delivers as true such a certificate or writing, con-
taining any statement which he knows to be false, in a case where the punishment
thereof is not expressly provided by law, is guilty of a misdemeanor. [Idem, §
1861; B. C. & G. Cons. L., p. 4050.]

A public officer authorized to file or record any instrument or conveyance of, or
affecting property which is duly proved or acknowledged, who knowingly files or
records any such instrument or conveyance which is not accompanied by a certi-
ficate according to law, of the proof or acknowledgment, is guilty of a misdemeanor.
[Idem, § 1862; B. C. & G. Cons. L., p. 4050.]

§ 12, COUNTY CLERK OMITTING TO PUBLISH STATEMENT REQUIRED BY
LAW.

A county clerk who ‘wilfully omits to publish any statement required by law,
within the time prescribed, is guilty of a misdemeanor, punishable by a fine of one
hundred dollars, or imprisonment for six months, or both. [Penal Law, § 1869;
B. C. & G. Cons. L., p. 4052.]

6a. Decedent Estate Law, § 42. as to record of wills in county clerk’s office.

7. As to judgment docket and card index in New York county, see County Law,
§ 172, as added by L. 1920, ch. 921, in effect April 15, 1921; formerly part of Code
Civ. Proe., § 1245.

As to enrrent docket books and filing for New York and Bronx counties, see County
Law, § 173, as added hv L. 1920, ch. 921, in effect April 15, 1921; formerly part
of Code Civ. Proe., § 1245a.

 
136 COUNTY OFFICERS; JAILS.

Explanatory note.

CHAPTER X.

DISTRICT ATTORNEYS, COUNTY ATTORNEYS, COUNTY JUDGES AND
SURROGATES.

EXPLANATORY NOTE.

Office of District Attorney ; Duties.

The office of district attorney is a constitutional office. The eonstitu-
tion provides for the election of a district attorney in each county for a
term of three years. The term being so fixed the legislature may not
prescribe a different term. The board of supervisors may fix the salary
of the district attorney, and prescribe the number, mode of appointment
and pay of the clerks and employes in his office.

The district attorney is the prosecuting attorney of the county. It is
his duty to prosecute all crimes cognizable by the courts of his county.
He has charge of indictments by the grand jury of persons charged
with the commission of crime in the county, and he must conduct the
trial of indictments so found. It is not the purpose of this chapter to
treat of the duties of district attorneys in the prosecution of crimes.

He is required to report and account for all moneys received by him
by virtue of his office. Such report and account must be filed in the
office of the county treasurer. Ile must pay over to the county treasurer
all moneys received by him as fines, penalties‘and forfeitures.

In the case of a murder or other important crime he may employ
counsel, with the approval of the county judge, to assist him in the
trial of the indictment, and the cost is chargeable against the county.

If the district attorney is incapacitated by sickness or other cause the
court may designate an attorney to act as special district attorney for a
term of court, and the board of supervisors must pay a reasonable com-
pensation to such attorney.

County Attorneys.

Prior to L. 1907, ch. 280, the district attorney or some other attorney
designated by the board of supervisors acted as attorney for such board.
By that act, as consolidated in § 210 of the County Law, a board of
supervisors is authorized to appoint a county attorney to advise the board:
DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. 137

County Law, § 200.

and county and town officers. The board may prescribe the duties of
auch officer, and fix his salary.

County Judges and Surrogates.

The constitution (Art. VI, §§ 14-16) provides for the election of a
county judge and surrogate for terms of six years. In counties of
40,000 or less, the two offices are to be held by the same person. In other
counties the legislature may provide for separate offices. The com-

pensation of such officers is fixed by the County Law, § 232, post. The
constitution provides that such compensation shall not be changed dur
ing the terms of office of such officers. The county judge presides over
the county court, and has the jurisdiction and performs the duties pre
scribed by law. The surrogate has to do with the estates of decedents
and of infants, and the jurisdiction of his court is controlled by the
Code of Civil Procedure and other statutes,

Section 1. Election, appointment, term of office and undertaking of district
attorney.

2. Report of district attorneys of moneys received.

3. Board of supervisors may authorize district attorneys to appoint

assistant; powers of assistant.

4. Appointment of assistants in Erie, Monroe, Onondaga and Rens-
selaer counties; district attorneys in Erie and Monroe entitled
to costs; payment of expenses of district attorneys in Albany,
Rensselaer and Monroe counties.

Employment of counsel by district attorney.

Special district attorney.

Expense of transfered trial of an indictment.

Expense of transferred trial of an indictment.

Appointment, term of office and duties of county attorneys:

10. Election, appointment and term of office of county judge, surro-
gate, special county judge and special surrogate.

11. Board of supervisors to create office of surrogate in certain counties;
undertaking of surrogate.

12. Compensation of county judges and surrogates.

13. Salaries of surrogates and county judges, how paid; compensa-
tion of county judge serving in another county.

$0 OU

§ 1. ELECTION, APPOINTMENT, TERM OF OFFICE AND UNDER-
TAKING OF DISTRICT ATTORNEY.

There shall continue,

1. To be elected in each of the counties, a district attorney, who shall
hold his office for three years from and including the first day of Janu-
ary succeeding his election ;

2. To be appointed by the governor, a district attorney, when a va-
eancy shall occur in such office, and the person so appointed shall hold
138 COUNTY OFFICERS; JAILS,

County Law, § 200.

the office until and including the last day of December succeeding the
first annual election thereafter at which such vacancy can be lawfully
filled.

8. Except in the county of Kings, every person elected or appointed
to the office of district attorney, shall, before he enters upon the duties
of his office, and if appointed, within fifteen days after notice thereof,
execute and deliver, to the county clerk of his county, a joint and several
undertaking to the county, approved by the county judge, with two or
more sufficient sureties, being resident freeholders, and in such sum as
the board of supervisors of the county shall direct, to the effect that he
will faithfully account for and pay over according to law, or as the
court may direct, all moneys that may come into his hands as such dis-
trict attorney.

4. It shall be the duty of every district attorney to conduct all prose-
entions for crimes and offenses cognizable by the courts of the county
for which he shall have been elected or appointed ; except when the place
of trial of an indictment is changed from one county to another, it shall
be the duty of the district attorney of the county where the indictment
is found to conduct the trial of the indictment so removed, and it shall
be the duty of the district attorney of the county to which such trial is

 

1. References. Reference mcy also be made to the following provisions
of law, relating directly or indirectly to the office of district attorney. (See
Schedule of Laws, after the table of Contents for the places in this Manual
where the sections referred to may be ferrd.)

Term of office of district attorney is fixed by the constitution at three
years. Constitution, art. X, sec. 1.

Removal. The district attorney is removable by the governor. Consti-
tution, art. X, sec. 1. Proceedings for his removal are prescribed by Public
Officers Law, secs. 33-35, post. The expense thereof are a county charge. County
Law, sec. 240, sub. 16, ante.

Undertaking, further provisions respecting. County Law, sec. 247, post.
Public Officers Law, sec. 11, post. Effect of failure to execute. Public Officers
Law, sec. 13, post. Validation of official acts before executing. Public Officers
Law, sec. 15, post. Vacancy in office created by failure to execute. Public
Officers Law, sec. 30, sub. 7, post. :

Vacancies, how created. Public Officers Law, sec. 30, post.

Resignation of district attorneys to be made to the governor. Public Officers
Law, sec. 31.

Official oath to be taken. County Law, sec. 246, post. Effect of failure to take.
Public Officers Law, sec. 13, post. Vacancy created by failure to take. Public
Officers Law, sec. 30, post.

Bribery, failure to prosecute for, a ground for removal. Constitution, art,
13, sec. 6.

_ Displaced temporarily by attorney-general, when ordered by the governor. Execu-
tive Law, sec. 62, sub. 2, as amended by L. 1911, ch. 14.

Salary of district attorney fixed by board of supervisors. County Law, sec. 12,
subd. 5, ante.
DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. 139
County Law, § 201,

changed to assist in such trial upon the request of the district attorney of
the county where the indictment was found.? [County Law, § 200, aa
amended by L. 1914, ch. 62; B. C. & G. Cons. L., p. 807.]

§ 2. REPORT OF DISTRICT ATTORNEYS OF MONEYS RECEIVED.

1, Every district attorney shall, on or before the first Tuesday in October,
annually file in the office of the county treasurer a written account verified
by his oath to be true, of all moneys received by him by virtue of his office
during the preceding year and shall, at the same time, pay over any bal-
ances thereof to the county treasurer. If he shall refuse or neglect to ac-
count for and pay over such moneys as so required of him, the county treas-
urer shall prosecute him and his sureties for the same, in the name of and
for the benefit of his county.

2. Within thirty days after a district attorney receives or collects money
upon a recognizance or for a penalty or forfeiture, belonging to the county,
he must pay it to the county treasurer of his county, deducting only his.
necessary disbursements ; except that, where he does not receive, as his com-
pensation, a salary fixed pursuant to law, the county court may, by an order
entered in its minutes, allow him to retain also a sum, specified in the order,
for his reasonable costs and expenses, and a reasonable counsel fee.

3. Each district attorney must render to the first term of the county
court of his county, held in each calendar year, a written account, verified
by his affidavit, of all actions brought by him upon recognizances, or for
penalties or forfeitures belonging to the county, or to the state; of all his
proceedings therein ; of all judgments recovered by him therein; and of all
money, collected by him from any person, belonging to the county or to the
state. This subdivision applies to a district attorney who has gone out of
office, during the preceding calendar year.’

 

2. Duties as to prosecutions. The duty of the district attorney to conduct prose-
cutions embraces whatever is essential to bring a criminal to trial as well as the
proceedings of the trial; so he may cause the arrest of a fugitive in a foreign juris-
diction, and the expense thereof is a proper county charge. People ex rel. Gardenier
v. Supervisors, 134 N. Y. 1.

Institution of proceedings to compel rescinding of parole. It is a part of the
prosecution for crime, within the statutory duty of the district attorney, to institute
anu enforce in the courts any proceeding or means authorized by law for the
restoration and enforcement of a judgment of conviction obtained by him. Where
the board of parole paroled a prisoner contrary to the provisions of the statute the
law imposes upon the district attorney the duty to preserve and defend the integrity
and effect of the judgment. Matter of Lewis v. Carter, 220 N. Y. 8, revg. 175 App.
Div. 501, 160 N. Y. Supp. 1136.

8. For form of report of moneys received by district attorney see Form No. 9,
post.

4, Action for breach of an unaertaking given upon conviction of « husband for
abandonment of his wife may be prosecuted in the name of the overseer of the poor.
Lutes v. Shelley, 24 Wk. Dig. 117.

After forfeiture the recognizance will not be discharged on giving new bail until
there has been a trial, but proceedings on the forfeiture will be stayed. People v.
Coman, 5 Daly, 527; People v. Abrahams, 6 Daly, 120.

Where the recognizance is for appearance on a day named “and from time to
time as directed by the justice,” and the proceedings are adjourned when the defend-
ant is not present, there cannot be a forfiture at a subsequent adjourned day. Peo-
ple v. Scott, 67 N. Y. 535. :
140 COUNTY OFFICERS; JAILS.
County Law, §§ 202, 203.

4, Where a recognizance to the people is forfeited, the district attorney of
the county in which it was taken, must, unless the court otherwise directs,
forthwith bring an action to recover the penalty thereof.+

5. Subdivisions two, three, and four of this section shall also apply to the
county of New York. [County Law, § 201; B. C. & G. Cons. L., 2d ed.,
p. 1530.]

§ 3. BOARD OF SUPERVISORS MAY AUTHORIZE DISTRICT ATTORNEYS
TO APPOINT ASSISTANT; POWERS OF ASSISTANT,

In any county having, according to the last preceding state enumer-
ation, more than forty-five thousand inhabitants, the district attorney
may, when authorized by the board of supervisors, appoint a suitable person,
who must be a counselor-at-law, in this state, and a citizen and resident of
the county, to be his assistant. Every appointment of an assistant district
attorney shall be in writing, under the hand and seal of the district attorney,
and filed in the office of the county clerk; and the person so appointed, shall
take and file with the clerk the constitutional oath of office, before entering
upon his duties as such assistant district attorney. Every such appoint-
ment may be revoked by the district attorney making the same, which revo-
cation shall be in writing and filed in the clerk’s office. Such assistant
district attorney may attend all criminal courts, and discharge any duties
Imposed by law upon, or required of the district attorney by whom he was
appointed. And in any such county the district attorney may in like man-
ner appoint any additional assistant district attorneys or detectives or sten-
ographers or interpreters for his office whenever he is authorized so to do
by the board of supervisors of any such county. The qualifications, regula-
tions and powers of any such additional assistant district attorneys shall
be the same as prescribed in this section in relation to an assistant district
attorney. The salaries of any such officers so authorized to be appointed
by the district attorney shall be fixed by such board of supervisors. [County
Law, § 202, as amended by L. 1921, ch. 34.]

§ 4. APPOINTMENT OF ASSISTANTS IN ERIE, MONROE, ONONDAGA,
RENSSELAER, NIAGARA, ALBANY, COLUMBIA, AND WESTCHESTER
COUNTIES; DISTRICT ATTORNEYS IN ERIE AND MONROE ENTI-
TLED TO COSTS; PAYMENT OF EXPENSES OF DISTRICT ATTOR-
NEYS IN ALBANY, RENSSELAER AND MONROE COUNTIES.

The district attorney of Erie county and the district attorney of Mon-
roe county may each appoint in and for his county in the manner pro-
vided in the last section, and with like powers, such number of as-
sistants as shall be fixed and determined by resolution of the board of
supervisors. All of the persons so appointed shall be called assistant
district attorneys. Each of said assistant district attorneys shall re
ceive such salary as shall be fixed and determined by said board of
supervisors. The district attorney shall designate in the order ap-
pointing such assistants the salary which each of such assistants shall
receive, subject however to the limitaions prescribed by such resolu-
tion of the board of supervisors. The three assistant district attorneys
and the two deputy assistant district attorneys now in office shall con-
tinue to receive the same salaries that are now paid them until the
board of supervisors shall by resolution fix and determine the salaries
DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. 141
County Law, § 203.

which such assistants and deputies shall receive pursuant to the pro-
visions of this section. Said assistants shall severally take the consti-
tutional oath of office before entering upon the duties thereof; and the
district attorney shall be responsible for their acts. Said district attor-
ney may designate, in writing to be filed in the office of the clerk of
said county, one of his said assistants to be the acting district attorney
in the absence from said county or other inability of said district attar-
ney ; and the assistant so designated shall during such absence or inabil-
ity of said district attorney perform the duties of the office. Such
designation may be revoked by said district attorney in writing, to be
filed in said county clerk’s office.

The district attorney of Monroe county and his assistants shall con-
duct, on the part of the people, all preliminary examinations in the
police court of the city of Rochester, and, subject to the right of a
claimant to appear personally or by attorney, all other prosecutions for
crime therein; and may conduct prosecutions therein for violations of
the penal ordinances of the said city, and appeals therefrom, and in
such event one-half of the salary of such first assistant shall be a charge
upon the city of Rochester and assessed back upon said city by the board
of supervisors of Monroe county ; but the corporation counsel of the said
city shall have the power to prosecute any person for the violation of an
ordinance and to conduct proceedings therefor or an appeal therefrom.
The district attorney of Onondaga county may appoint in and for said
county, in the manner provided in the last section, and with like powers,
two assistants, to be called respectively the first and second assistant
district attorneys, each of whom shall take the constitutional oath of
office before entering upon the duties thereof; and the district attorney
of said county shall be responsible for their acts. The district attorney
of Westchester county may appoint in and for the county of West-
chester, in the manner provided in the last section, and with like powers,
two assistants, to be called respectively the first and second assistant dis-
trict attorney, who shall severally take the constitutional oath of office
before entering upon the duties thereof; and the district attorney shall
be responsible for-their acts; and the salary of each shall be fixed by the
board of supervisors. The district attorneys of the counties of Erie and
Onondaga may also appoint a person to act as interpreter at all sessions
of the grand juries of such counties and of the city of Buffalo, whose
compensation shall be fixed by the court in and for which such grand
jury may be empaneled. The district attorney of the county of Monroe,
whenever he is authorized so to do by the board of supervisors of such
142 COUNTY OFFICERS; JAILS.

County Law, § 203.

county, may appoint necessary interpreters who shall act as interpre-
ters at all sessions of the grand jury in such county and for all county
departments except the courts. The district attorneys of the counties of
Erie and Monroe shall each be entitled to receive, in addition to their
salary, all costs collected by them in actions and proceedings prosecuted
and defended by them. The county judge, or the special county judge,
of the county of Monroe, or any supreme court judge, shall have power,
on the application of the district attorney of Monroe county, to order
and direct the county treasurer of Monroe county to pay to the district
attorney any sum of money expended or incurred by him in the per-
formance of his duties in his office, and the county judge of the county
of Rensselaer, or any supreme court judge, shall have power, on the
application of the district attorney of Rensselaer county, to order and
direct the county treasurer of Rensselaer county to pay to the district
attorney any sum of money expended or incurred by him in the per-
formance of his duties in his office, and the county judge of the county
of Albany, or any supreme court judge, shall have power, on the appli-
cation of the district attorney of Albany county, to order and direct
the county treasurer of Albany county to pay to the district attorney of
such county any sum of money expended or incurred by him in the
performance of his duties in his office, and the county judge of Columbia
county, or any judge of the supreme court, shal] have power, on the ap-
plication of the district attorney of Columbia county, to order and direct
tke county treasurer of Columbia county to pay to the district attorney
of such county any sum of money expended or incurred by him in the
performance of his duties in office. The district attorney of Niagara
county shall have charge of and conduct on the part of the people all
preliminary examinations in the police courts of the cities of Lock-
port, North Tonawanda and Niagara Falls, either in person or by his
assistant. In lieu of the necessary traveling expenses and other dis-
bursements incurred in the performance of these additional duties,
either by himself or his assistant or stenographer, the district attorney
of Niagara county shall receive an amount to be fixed by the board of
supervisors of Niagara county at not less than one thousand two hun-
dred dollars per annum, payable monthly by the county treasurer of
Niagara county, and the assistant district attorney shall receive an
amount to be fixed by the board of supervisors of Niagara county, at not
less than five hundred dollars per annum, payable monthly by the county
treasurer of Niagara county, and the district attorney’s stenographer
shall receive an amount to be fixed by’ the board of supervisors of Ni-
DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. 143
County Law, §§ 204, 205, 244.

agara county at not less than four hundred dollars per annum, payable
monthly by the county treasurer of Niagara county. Until such amount
is so fixed by the board of supervisors it shall be as above stated.
[County Law, § 203, as amended by L. 1911, ch. 95, L. 1912, ch.544,
L. 1915, ch. 140, and L. 1920, chs. 183, 593. ]

§ 5. EMPLOYMENT OF COUNSEL BY DISTRICT ATTORNEY;
TRANSFER OF TRIAL.

The district attorney of any county in which an indictment has been
found for a capital or other important crime, with the approval in
writing of the county judge of such county, which shall be filed in the
office of the county clerk, may employ counsel to assist him on the trial
of such indictment; and the costs and expenses thereof, to be certified
by the judge presiding at the trial, shall be a charge upon the county.’
[County Law, § 204; B. C. & G. Cons. L., p. 812.]

§ 6. SPECIAL DISTRICT ATTORNEY.

Whenever there is a vacancy or the district attorney of any county and
his assistant, if he has one, shall not be in attendance at a term of any
court of record, which he is by law required to attend, or shall be unable
by sickness, or by being disqualified from acting in a particular case, to
discharge his duties at any such term, the court may, by an order entered
in its minutes, appoint some attorney at law residing in the county, to
act as special district attorney during the absence, inability or disquali-
fication of the district attorney and his assistant; but such appointment
shall not be made for a period beyond the adjournment of the term at
which made. The special district attorney so appointed shall possess the
powers and discharge the duties of the district attorney during the period
for which he shall be appointed. The board of supervisors of the county
shall pay the necessary disbursements of, and a reasonable compensation
for the services of the person so appointed and acting."* [County Law,
§ 205; B. C. & G. Cons. L., p. 812]

§ 7. RECOVERY AND DISPOSITION OF MONEYS.
The district attorney shall sue for and recover, in behalf of, and in

 

5. Must be employed by district attorney of county where case tried.
This section is the only source of authority for any district attorney to employ
counsel, and a compliance with its terms is necessary’ in order to confer juris-
diction upon the court to make an order fixing the compensation of such counsel;
and where such special counsel was employed by the district attorney in the
county where the indictment was found, and the prosecution was subsequently
removed to another county, such counsel is not entitled to have an application for
compensation granted unless he be likewise employed by the district attorney of
the county where the action was tried. Matter of Knight, 191 N. Y. 286, affg. People
v. Neff, 121 App. Div. 44, 106 N. Y. Supp. 559.

Certificate of judge authorizing the employment of counsel on a second trial
of a criminal case does not authorize payment of services in the same case prior
to such trial. People ex rel. Peck v. Supervisors of Genesee, 61 App. Div. 545, 70
N. Y. Supp. 578.

Governor may designate denuty attorney-general as special district attorney.
‘Executive L., see. 62, as amended by L. 1911, ch. 14, and L. 1917, ch. 595, and sec. 67.

5-a. The governor may require the attorney-general to designate « special deputy
attorney-general to prosecute special criminal offenses, and the expense thereof is
a county charge. The board of supervisors may not be compelled to pay the com-
pensation of such special deputy until the compensation has been fixed by the
attorney-general. See People ex rel. Osborne v. Westchester County, 168 App. Div.
765, 154 N. Y. Supp. 266.
144 COUNTY OFFICERS; JAILS.

County Law, §§ 210, 248.

the name of, his county, the money received by any officer for, or on ac-
count of, his county, or any town or city therein, and not paid to the
county treasurer, as herein required. All moneys belonging to any town
or city in such county, which shall be received by the county treasurer,
shall be distributed to the several towns or cities entitled to the same, by
resolution of the board of supervisors, which shall be entered in the
minutes of its proceedings. [County Law, § 244; B. C. & G. Cons. L,
p. 831.]

§ 8. EXPENSE OF TRANSFERRED TRIAL OF AN INDICTMENT.

1. Whenever the trial of an indictment has been transferred from the
county in which such indictment was found to some other county the cost
and expense of such trial shal] be a charge upon the county in which such
indictment is found.

2. Whenever, under the order of any court of competent jurisdiction,
the pleadings and issue in any prosecution for any crime or misdemeanor,
other than indictment, shall have been sent down to any county in this
state for trial therein, ‘n consequence of any inability to obtain an unpreju-
diced or impartial jury in the county in which the venue was originally
laid, the expenses of the trial of said prosecution shall be a charge upon
the county from which the same was transferred.

3. In case the expenses of the trial of said indictment or prosecution
shall have been assessed on any county in which any such issue shall have
been determined, the same, with interest thereon, shall be reimbursed to
the treasury of such county by the county treasurer in the county from
which such proceedings have been sent down, and the board of supervisors
of the county liable to pay such expenses as aforesaid are hereby authorized
to include the same in their annual levy of taxes.

4. This section also applies to the county of New York. [County Law,
§ 248; B. G. & G. Cons. L., p. 832.]

§ 9. APPOINTMENT, TERM OF OFFICE AND DUTIES OF COUNTY
ATTORNEYS.

_ The board of supervisors in any county may appoint a county attorney
who shall be removable at its pleasure. The term of office of a county at-
torney so appcinted shall be two years, unless sooner removed, and his
saiary shall be fixed by the board of supervisors and be a county charge.
The board of supervisors may, by local law, prescribe the duties of the
county attorney, which duties may include the services to town boards and
tuwn officials when not in conflict with the interests of the county. [Coun-
tv Law, § 210; B. C. & G. Cons. L., p. 814.]
DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. 145
County Law, § 230.

§ 10. ELECTION APPOINTMENT AND TERM OF OFFICE OF
' COUNTY JUDGE, SURROGATE, SPECIAL COUNTY JUDGE
AND SPECIAL SURROGATE.

There shall continue to be elected in each of the counties now having
such offices,

1. A county judge and a surrogate, who shall severally hold the office
for six years from and including the first day of January succeeding his
election.

2. A special county judge and a special surrogate, pursuant to the
several acts of the legislature creating and respectively defining the terms
and duties thereof.

3. There shall continue to be appointed by the governor, by and with
the consent of the senate, if in session, a county judge, surrogate, special
county judge®» or special surrogate, when a vacancy shall occur in
either of such offices, and the person so appointed shall hold the office
until and including the last day of December succeeding the first an-
nual election thereafter at which such vacancy can be lawfully filled.®
[County Law, § 230; B. C. & G. Cons. L., 2d ed., p. 1541.]

 

5-b. Special county judge; vacancy. The governor may appoint a special
county judge to fill a vacancy in such office caused by the death of such judge
one month and ten days before the general election, until January 1, and
his successor may also be nominated by the party committee for election
at the general election to take office on January 1. Opinion of Atty. Gen.
(1919), 21 St. Dept. Rep. 278.

6. Constitutional provisions. By section 14 of art. 6 of the constitution
the existing county courts are continued. The successors of the several
county judges in office when the constitution was adopted are to be chosen
by the electors of the counties for the term of six years. Each county judge
is required to perform such duties as may be required by law. His salary
is established by law, payable out of the county treasury. The county judge
of any county may hold county courts in any other county when requested
by the judge of such other county.

By section 15 of art. 6 of the constitution existing surrogates’ courts are
continued and the successors of the surrogates in office at that time are to be
chosen by the electors of the respective counties, and their terms of office
shall be six years. Such section also provides that: ‘‘The county judge
shall be surrogate of his county, except when a separate surrogate has been
or shall be elected. In counties having a population exceeding 40,000,
wherein there is no separate surrogate, the legislature may provide for the
election of a separate officer to be surrogate, whose term of office shall be six
years. When the surrogate shall be elected as a separate officer his salary
shall be established by law, payable out of the county treasury. No county
judge or surrogate shall hold office longer than until and including the last
day of December next after he shall be seventy years of age. Vacancies
occurring in the office of county judge or surrogate shall be filled in the
same manner as like vacancies occurring in the supreme court. The com-
pensation of any county judge or surrogate shall not be increased or dimin-
ished during his term of office. For the relief of surrogates’ courts the
legislature may confer upon the supreme court, in any county having a
population exceeding 400,000, the powers and jurisdiction of surrogates,
with authority to try issues of fact by jury in probate cases.”
146 COUNTY OFFICERS; JAILS.

County Law, § 231.

§ 11. BOARD OF SUPERVISORS TO CREATE OFFICE OF SURRO-
GATE IN CERTAIN COUNTIES; UNDERTAKING OF SURRO-

GATE.
The board of supervisors of any county, except Kings, having a popula-
tion exceeding forty thousand, may, by resolution at a meeting thereof,

 

It is also provided by section 16 of art. 6 of the Constitution, “The legislature
may, on application of the board of supervisors, provide for the election of local
officers, not to exceed two in any county, to discharge the duties of county judge
and of surrogate, in cases of their inability or of a vacancy, and in such other cases
as may be provided by law, and to exercise such other powers in special cases as are
or may be provided by law.”

Surrogate’s clerk. Board of supervisors may authorize surrogate to appoint addi-
tional clerks, their compensation and that of the clerks to be fixed by the board.
Code Civ. Proc., § 2491, as amended by L. 1914, ch. 443, L. 1917, ch. 47, and L.
1918, ch, 310; transferred to Surrogate Court Act as § 21, by L. 1920, ch. 928, in
effect April 15, 1921. The powers of the clerk of the surrogate are prescribed by
Code Civ. Proc., § 2502, as amended by L. 1914, ch. 443, and L. 1917, ch. 10;
transferred to Surrogate Court Act, as § 32, by L. 1920, ch. 928, in effect April 15,
1921, and § 2503, as amended by L. 1914, ch. 443; transferred to Surrogate Court
Act, as § 33, by L. 1920, ch. 928, in effect April 15, 1921.

Temporary surrogate. Where, in any county, except New York, the office
of surrogate is vacant; or the surrogate is disabled by reason of sickness, ab-
sence or lunacy, or is disqualified in a particular matter, and special provision
is not made by law for the discharge of the duties of his office in that con-
tingency; the duties of his office must be discharged, until the vacancy is filled
or the disability ceases, as follows:

1. By the special surrogate.

2. If there is no special surrogate, or he is in like manner disabled, or is
precluded or disqualified, by the special county judge.

3. If there is no special county judge, or he is in like manner disabled, or
is precluded or disqualified, by the county judge.

4. If there is no county judge, or he is in like manner disabled, or is pre-
cluded or disqualified, by the district attorney.

But before an officer is entitled to act as prescribed in this section, proof
of his authority to act as prescribed in section 2481 of this chapter must be
made.

In any proceeding in the Surrogate’s Court of the county of Kings, before
either of the officers authorized in this section to discharge the duties of the
office of surrogate of such county for the time being, if an issue is joined or a
contest arises either on the facts or the law, such officer, in his discretion,
may, by order, transfer such case to the Supreme Court to be heard arid decided
at a special term thereof, held in such county, which order shall be recorded
in the surrogate’s office. A certified copy of such order, together with the
appropriate certificate or certificates of the authority of the officer to act as
surrogate, shall be sufficient and conclusive evidence of the jurisdiction and
authority of the Supreme Court in such matter or cause. After a final order
or decree is made in the matter or cause so transferred to the Supreme Court,
the court shall direct the papers to be returned and filed, and transcripts of
all orders and decrees made therein to be recorded in the surrogate’s office
of such county; and when so filed and recorded, they shall have the same effect
as if they were filed and recorded in uw case pending in the Surrogate’s Court of
such county. (Code Civ. Proc., § 2478, as amended by L. 1893, ch. 686, and L.
1914, ch. 443; transferred to» Surrogate Court Act, as § 8, by L. 1920, ch. 928, in
effect April 15, 1921.)
DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. 14%

County Law, § 232.

determine that the office of surrogate therein shall be a separate office,
and provide for the election of such officer therein. The clerk of the board
shall immediately deliver the resolution to the county clerk, who shall file
the same in his office and, within ten days thereafter, transmit a certified
copy thereof to the secretary of state; and thereafter a surrogate shall be
elected for such county. Every person elected or appointed to the office
of surrogate or county judge, where there is no separate office of surrogate,
shall, before he enters upon the duties of his office, and if appointed,
within fifteen days after notice thereof, execute and deliver to the county
clerk of his county a joint and several undertaking, with two or more
sureties being resident freeholders, to be approved by such clerk, -to the
effect that he will faithfully perform his duties as such surrogate, .and
apply and pay over all moneys and effects that may come into his hands
as such surrogate in the execution of his office; which undertaking shall
be immediately filed in the office of such county clerk. [County Law, §
231; B. C. & G. Cons. L., p. 817]

§ 12. COMPENSATION OF COUNTY JUDGES AND SURROGATES.

The annual salaries of county judges and surrogates in the several
counties are fixed at the sums respectively set opposite the names of each
county in the following schedule, to wit:

 

Where the surrogate of any county, except New York, 1s precluded or dis-
qualified from acting with respect to any particular matter, his powers with
respect to that matter, or if he be temporarily absent, his powers with respet
to all metters, shall be discharged by the several officers designated in the I«rt
section in the order therein provided. If there is no such officer qualified to
act therein, the surrogate may file in his office a certificate, stating that fact;
specifying the reason why he is disqualified or precluded; and designating the
surrogate of any county, other than New York, to act in his place in the par-
ticular matter or during his absence. The surrogate so designated has, with
respect to that matter, or generally when the designation is made on account
of absence of the surrogate, all the powers of the surrogate making the designa-
tion, and may exercise the same in either county. (Code Civ. Proc., 2479, as
amended by L. 1914, ch. 443; transferred to Surrogate Court Act, as § 9, by L. 1920,
ch, 928, in effect April 15, 1921.)

Board of supervisors may appoint person to act as surrogate. In any county,
except New York, if the surrogate is disabled, by reason of sickness, and there
is no special surrogate, or special county judge of the county, the board of
supervisors, or in the counties embraced within the city of New York, the board
of aldermen, may, in its discretion, appoint a suitable person to act as surrogate
until the surrogate’s disability ceases, or until a special surrogate or a special
county judge is elected or appointed. A person so appointed must, before enter-
ing on the execution of the duties of his office, take and file an oath of office and
give an official bond as prescribed by law with respect to a person elected to the
148 COUNTY OFFICERS; JAILS.

County Law, § 232.
Salary of Salary of

Sub. Name or County. county judge. surrogate.
1 el DH ar ord. eines eee He5 $7,000.00 $6,500.00
2 Allegany ............. : 2,750.00
3 Broome 5468 wave eens 5,000.00
4 Cattaraugus.......... : 1,500.00 1,500.00
5 ayuee eee ve ees eames 2,000.00 3,000.00?
6 Chautauqua... ....... 2,500.00 2,500.00"
7 Chemang pwxs any res Wess 5,000.00
8 CheNgigDy oxy seuss ie eee 4,000.00"?

Qs THM pay cganccucnass 1,200.00 1,800.00
10 ‘Columbia os ci oases 2,000.00 2,500.00
11 Cortland. so. wen ge nds : 3,500.007°
12 Delaware.............. 3,000.00
13 Dutehess, « ¢ « sasveueues 3,000.00 3,000.00
14 TICs syne Aube emis, geo 7,500.008 7,500.00
15 HSSeN 84 6 ose weHoeR anes 4,000.00%

 

office of surrogate. (Code Civ. Proe., § 2484, as amended by L. 1893, ch. 686, and
L. 1914, ch. 443; transferred to Surrogate Court Act, as § 14, by L. 1920, ch. 928,
in effect April 15, 1921.)

Compensation of temporary surrogate. An officer, or person appointed by the
board of supervisors, or board of aldermen, who acts as surrogate of any county
during a vacancy in the office, or in consequence of disability, as prescribed in this
title must be paid for the time during which he so acts, a compensation equal pro
rata to the salary of the surrogate; or, in a county where the county judge is also
a surrogate, to the salary of the county judge. The amount of his compensation
must be audited and paid in like manner as the salary of the surrogate, or of the
county judge, as the case may be. Where an officer of the county performs the
duties of the surrogate, with respect to « particular matter wherein the surrogate
is disqualified or precluded from acting. the supervisors of the county, or board of
aldermen, must allow him a compensation equal pro rata to the salary of the sur-
rogate to be audited and collected in the same manner. (Code Civ. Proc., § 2485,
as amended by L. 1914, ch. 443; transferred to Surrogate Court Act, as § 15, by
L. 1920, ch. 928, in effect April 15, 1921.)

Fees received by clerk of surrogate’s court. The board of supervisors may fix the
rate of fees and may require the clerk to keep an account of all such fees and make
a report thereof whenever requested by such board. See Code Civ. Proc., § 2499,
as amended by L. 1914, ch. 443; transferred to Surrogate Court Act, as § 29, by
L. 1920, ch. 928, in effect April 15, 1921.

6a. By L. 1912, ch. 549, the salaries of the county judge and surrogate of Albany
county were fixed at $7,000 and $6,500, respectively.

7. Amended by L. 1919, ch. 29

7a. Amended by L. 1918, ch. 234.

7b. Amended by L. 1918, ch. 234.

7c, Amended by L. 1917, ch. 34,

8. Amended by L. 1912, ch. 37.

8a. Amended by L. 1919, ch. 285,
DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. 449
County Law, § 232.
Salary of — Salary of
Sub. Name or County. county judge. surrogate.
16 Framklivie sc eee eed tec $4,000.00°
17 Fulton 364 sscanesinaws 2,000.00 $2,200.00°
18 Genesee... . 12... eee 4,000.00
19 Greene.... 4,000.00
20 Hamilton: 4c ackeiatekars 1,200.00°
21 Herkimer... .......... 38,000.00
22 JefersOn.. ic ca cew wale se 3,000.00 3,000.00”
23 FRING SS o5. a wees nus wasage 10,000.00 10,000.004
OA? Tews oaweekeewes 3,600.0018
25 Livingston... ......0.. 3,000.00
26 Madison......... site 4,000.00"
27 Monroe... .........0- 7,000.00% 7,000.00
28 Montgomery... ... 1,400.00 1,600.00
29 IN ABSA 2.5. 6 een bieue,ies 10,000.00% 10,000.00
30 Niagara... 7,500.004* 1,500.00
31 GHeidii.e esse eae ees 5,000.00 5,000.00
32 Onondaga. 2+ 2cseseeexs 7,500.004*  — 7,500.004#
33 OMtATIO ys) gene suas ee © 3,000.00%  — 2,000.00%#¢
34 OPEN G6 oie ais ees yes 3,000.00 3,500.00
35 Orleans... ...- ee eee 2,000.00
36 OuWEPO 2. Fg vee erg weno 2,500.00 2,000.0014¢
BT Olsete ¢ <sa0t tan eewacn 1,800.00 9,500.0044
38 Prati sg gare ginre eeee oe 2,000.00
39 Queens... 11... eee eee 10,000.00 10,000.00
40 Rensselaer... .......... 5,000.00 5,000.00
41 Richmond... .......... 5,000.00%°

 

9. Amended by L.
9a. Amended by L.
9b. Amended by L.
. Amended by L.
. Amended by L.
Amended by L.
Amended by L.
Amended by L.
Amended by L.
Amended by L.
Amended by L.
Amended by L.
Amended by L.
Amended by L.
Amended by L.
Amended by L.
Amended by L.

L.

L.

11
tia.
11b.
12,
13.
13a.
14.
14a,
14b.
14¢c.
14c.
14d.
* te,

Amended by
Amended by

1913, ch. 436, and L. 1919, ch. 285.
1918, ch. 216.

1919, ch. 285.

1918, ch, 234.

1918, ch. 234.

1910, ch. 281, and L, 1918, ch. 224.
1911, ch, 413.

1921, ch. 33.

1918, ch. 234.

1912, ch. 549.

1910, ch. 300, L. 1916, ch. 382, and L. 1920, ch. 229.
1919, ch. 496.

1911, ch. 203, and L, 1916, ch. 86.
1920, ch. 23.

1922, ch. 88.

1916, ch. 252.

1918, ch. 219.

1920, ch. 194.

1911. ch, 413,
150

Sub.
42
43
44

45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60

County Law, § 232.

Name or County.

Rockland... ......--6-

St. Lawrence. .

Saratoga...

Schenectady...

Schoharie. .
Schuyler...
SONECA i os Geeta ds
Steuben... .

Suttolkt = 5 a/<: eieaieees

Sullivan .

Tioga) aes ge was eee Set

Tompkins .

WIStEE sca oe Sone eees

Washington . .
Wayne... .
Westchester... ...
Wyoming .... we... eee
Yates. ... ..0eee cis coast

COUNTY OFFICERS.

Salary of Salary of
county judge. surrogate.
$4,500.0014f
2,400.00% = $1,750.00
2,000.00 2,500 & 500

for clerk hire.

4,000.00 4,000.00
2,500.00

1,500.00

2,500,001
2,500.00% 2,500.00”

3,500.00%* 4,000,004
2,500.00%4
2,500.00
3,500.00
3,000.00 3,000.00

5,000.00

2,000.0077 2,500.00”

3,000.00
10,000.00 10,000.00

3,500.00
2,000.00

61. The salaries provided in the preceding subdivision of this sec-
tion for the county judge and surrogate of each of the counties of Onon-
daga, Queens, Rensselaer and Tompkins shall take effect upon the
expiration of the terms of the incumbents in office on February seven-
teenth, nineteen hundred and nine, respectively, and until the expira-
tion of said terms such officers shall receive the salaries authorized by

law on January first, nineteen hundred and nine.

The salaries pro-

vided in subdivision twenty-nine of this section for the county judge
and surrogate of the county of Nassau shall take effect upon and after
January first, nineteen hundred and seventeen, and until that date the

 

14f.
15.
15a.
15b.
15c.
15d.
16.
17.
18.
19.
20.

Amended by L.

1919, ch. 285.

Amended by L.

Amended by L.
Amended by L.
Amended by L.

Amended by L.

Amended by L.
Amended by L.

Amended by L.

Amended by L.

Amended by L.

1922, ch. 223.
1918, ch. 136.
1915, ch. 255.

1918, ch. 234.

1920, ch. 77.

1916, ch, 132,
1917, ch. 192.
1912, ch. 549.
1918, ch. 30.
1918, ch. 234.
DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. 151

County Law, § 232.

county judge of the county of Nassau shall receive the salary authorized
by law on January first, nineteen hundred and sixteen, [Subd.
amended by L. 1910, ch. 300, and L. 1916, ch. 382.]

62. The salary provided in subdivision twenty-three of this section
for the surrogate of the county of Kings shall take effect upon the ex-
piration of the term of the present incumbent, and until the expiration
of said term such surrogate shall receive the salary authorized by law
on January first, nineteen hundred and eleven. [Subd. added by L.
1911, ch. 413.]

63. The salary provided in subdivision forty-one of this section for
the county judge of the county of Richmond shall take effect upon the
expiration of the term of said office, expiring December thirty-first,
nineteen hundred and eleven. [Subd. added by L. 1911, ch. 413.]

64. The salaries provided in subdivision fourteen of this section for
the county judge and surrogate of the county of Erie shall take effect
upon the expiration of the term of the present incumbents, respectively,
and until the expiration of said terms such officers shall receive the sal-
aries authorized by law on January first, nineteen hundred and nine.
[Subd. added by L. 1912, ch. 37, in effect March 13, 1912.]

64. In addition to the salary herein provided to be paid to the surro-
gate of Chautauqua county, he shall be entitled to receive his necessary
expenses while holding court in said county at places other than the
county seat at Mayville. Such expense account shall be audited by the
board of supervisors of said county and shall not exceed the sum of five
hundred dollars per annum. [Subd. added by L. 1912, ch. 92, in effect
April 3, 1912.]

65. The salaries provided in subdivisions one, twenty-seven and fifty-
eight for the county judge and surrogate of the county of Albany, for
the county judge and surrogate of the county of Monroe, and for the
surrogate of the county of Westchester, shall take effect upon the expira-
tion of the terms of the present incumbents respectively, and until the
expiration of such terms such county judges and surrogates shall re-
ceive the salaries authorized by law on January first, nineteen hundred
and twelve. [Subd. added by L. 1912, ch. 549.]

66. The salary provided in subdivision sixteen of this section for the
county judge of the county of Franklin shall take effect upon the ex-
piration of the term of the present incumbent and until the expiration
of said term such officer shall receive the salary authorized by law on
January first, nineteen hundred and thirteen. [Subd. added by L.
1913, ch. 436.]
15la COUNTY OFFICERS.
County Law, § 232.

67. The salary provided in subdivision fifty-five of this section for
the county judge and surrogate of the county of Warren shall take effect
upon the expiration of the term of the present incumbent, and until the
expiration of such term such officer shall receive the salary authorized
by law on January first, nineteen hundred and eleven. [Subd. added
by L. 1916, ch. 132. County Law, § 222; B. C. & G. Cons. L., p. 819.]

68. The salary provided in subdivision eleven of this section for the
county judge and surrogate of the county of Cortland shall take effect
upon the expiration of the term of the present incumbent, and until
the expiration of such term such officer shall receive the salary author-
ized by law on January first, nineteen hundred and fourteen. [Subd.
added by L. 1917, ch. 34.]

69. The salaries provided for in subdivision fifty-six of this section
for the county judge and the surrogate of the county of Washington
shall take effect upon the expiration of the terms of the present in-
cumbents, respectively, and until the expiration of such terms such
officers shall receive the salaries authorized by law on January first,
nineteen hundred and seventeen. [Subd. added by L. 1917, ch. 192,
as subd. 68, and renumbered subd. 69 by L. 1918, ch. 30.]

70. The salary provided in subdivision fifty-nine of this section for
the county judge and surrogate of the county of Wyoming shall take
effect upon the expiration of the term of the present incumbent, and
until the expiration of such term such officer shall receive the salary
authorized by law on January first, nineteen hundred and eighteen.
[Subd. added by L. 1918, ch. 30.]

71. The salary provided in subdivision forty-eight of this section for
the county judge and surrogate of the county of Seneca shall take effect
upon the expiration of the term of the present incumbent, and until the
expiration of such term such officer shall receive the salary authorized
by law on January first, nineteen hundred and eighteen. [Subd.
71, added by L. 1918, ch. 136.]

71. The salary provided in subdivision thirty-six of this section for
the county judge and for the surrogate of the county of Oswego shall
take effect upon the expiration of the term of the present incumbents
and until the expiration of said term such officers shall receive the
salary authoribed by law on the first day of January, nineteen hundred
and fourteen. [Subd. 71, added by L. 1918, ch. 216.]
DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. ]51b
County Law, § 233.

72. The salaries provided in subdivision twenty-nine of this section
for the county judge and surrogate of the county of Nassau shall take
effect upon the expiration of the terms of the present incumbents and
thereafter neither the county judge nor surrogate of such county
shall practice as an attorney or counselor in any court of record of
this state or act as referee. [Subd. 72, added by L. 1920, ch. 229.]

§ 13. SALARIES OF SURROGATES AND COUNTY JUDGES, HOW PAID;
COMPENSATION OF COUNTY JUDGE SERVING IN ANOTHER
COUNTY.

Such salaries, except in the counties of Kings, Broome and West-
chester, shall be paid quarterly, by the county treasurer of the respec-
tive counties. In the counties of Broome and Westchester, such salaries
shall be paid monthly by the county treasurer. When a county judge
of one county shall hold a county court, or preside at a court of ses-
sions, in any other county, he shall be paid the sum of twenty dollars
per day, for his expenses in going to, and from, and holding or presid-
ing at such court, which shall be paid by the county treasurer of such
other county, on the presentation by the clerk of such court, of the
number of days. [County Law, § 233, as amended by L. 1909, chs. 122,
228, L. 1914, ch. 70, and L. 1921, ch. 141.]
152 COUNTY OFFICERS; JAILS.

Explanatory note.

CHAPTER XI.

SHERIFF AND CORONERS; POWERS AND DUTIES.

EXPLANATORY NOTE.

Office of Sheriff.

The office of sheriff is created by the constitution. The term is three
years and a sheriff is ineligible for the term following that for which he
was elected. The constitution also provides that a county shall not be
liable for the acts of a sheriff.

The office of sheriff is perhaps the most important in the county. He
has many administrative duties to perform, and is also clothed with
the power of preserving order and enforcing the law in his county. It
is his duty to execute processes and mandates issuing from the courts.
He or one of his deputies must attend trial terms of the Supreme Court
and terms of the Appellate division. He has certain other duties to per-
form as an officer of the courts held in his county. He is the custodian
of county buildings, unless otherwise specified by statute, and must see
that court rooms and other parts of the court-house are kept in proper
condition. He is responsible for the safe keeping of prisoners in jails,
and has many duties relative to the apprehension, custody and trial of
criminals. It would be impossible, within the scope of this work to
give the law relating to all the powers and duties of a sheriff. It will
only be attempted to set forth the law relating to his administration of
county affairs,

The sheriff was formerly paid by fees allowed for the service of proc-
esses, both civil and criminal, the boarding of prisoners, and for services
rendered in respect to criminals. In nearly all the counties, at the
present time, the sheriff is paid a salary and the fees are all turned into
the county treasury.

Office of Coroner.

The office of coroner is not a constitutional office. The statute pro-
vides that there shall be four coroners in counties of over 100,000 popu-
lation, and in other counties such number not exceeding four as may
be determined by the board of supervisors.
SHERIFF AND CORONERS. 153

Explanatory note.

One of the coroners, designated by the county judge acts as sheriff
when that office is vacant or the sheriff is incapacitated, and there is
no under-sheriff, pending an appointment to fill the vacancy. The usual
duties of coroner pertain to the ascertainment of the cause of death of
any person who has died under circumstances leading to the belief that
his death was the result of a crime, or that he has committed suicide. In
all such cases the coroner is required to summon a jury and conduct
an inquest. If it appears that a crime has been committed the coroner
may issue a warrant for the arrest of the person chargeable therewith.
See Code of Criminal Procedure, §§ 773-787.

Section 1. Election, appointment and term of office of sheriffs!and coroners,
and the undertakings of sheriffs.
2. Sheriffs to appoint under sheriffs; duties of under-sheriffs; mal-
feasance of under-sherifts.
3. Deputy-sheriffs to be appointed by sheriffs; appointment to be
in writing.
4. Sheriff’s office; notice of place to be filed; when to be kept open;
papers served on sheriff.
4a. Fees of sheriff.
4b. Fees of deputy sheriffs attending courts.
5. Fees for services for the state; accounts, how audited.
6. Sheriff to be removed for non-payment of moneys.
7. When coroner to act as sheriff, county judge to designate coroner;
undertaking.
va. Duties of coroner when sheriff is a party.
7b. Any one of the coroners may execute a mandate.
7c, Arrest of sheriff by coroner.
7d. Confinement of sheriff under arrest by coroner.
ve. Place of confinement to be deemed a jail.
7f. Sheriff how admitted to jail liberties; liability of coroner for escape.
7g. Rights of coroner to prosecute, upon undertaking for jail liberties.
vh, Confinement of person arrested by coroner when sheriff is plaintiff.
7i. Jail liberties, undertaking and discharge of person arrested by coroner.
7j. Liability of coroner for escape of such prisoner.
8. When other coroner to be designated; when coroner to execute duties
of office of sheriff.
9. County judge may appoint a person other than a coroner in certain
cases. es
10. Coroners to execute duties of office until vacancy is filled; duties and
liabilities of incumbent.
11. Board of supervisors may fix salary of coroner.
12. Fees allowed coroners for services on inquests, etc.
13. Employment of stenographer and surgeons.
14. Duties of sheriff in respect to services of mandates in civil actions;
copy of process to be delivered; return of sheriff.
15. Liability of sheriff for neglect in serving process in special proceeding.
154 COUNTY OFFICERS; JAILS.
County Law, § 180.

SECTION 16.. Powers of sheriff in case of resistance to the service of mandate; names
of resisters to be certified to court; sheriff may ask assistance;
governor may order out militia.

17. Attendance of sheriff and deputies upon terms of court; duties in re-
spect to appellate division.

18. Trial by sheriff of claim of title to property seized by him; jurors,
how summoned; examination of witnesses; payment of fees.

19. Proceedings on new sheriff assuming office.

20. Injury to records and misappropriation by ministerial officers.

21. Sheriffs and others permitting escapes or refusing to receive prisoners,

22. To assist commissioner of agriculture to enforce provision of any no-
tice, ete., pursuant to Art. V of the Agricultural Law relating to
diseases of domestic animals; expenses, how paid.

§ 1. ELECTION, APPOINTMENT AND TERM OF OFFICE OF SHERIFFS AND
CORONERS, AND THE UNDERTAKINGS OF SHERIFFS; ETC.

There shall continue,

1. To be elected in eack of the counties a sheriff, and in each of the
counties containing a population of one hundred thousand and over, ex-
cept Westchester and Nassau counties, four coroners, and in all other
courties such number of coroners, not more than four, as shall be fixed
by the board of supervisors, who shall respective'y hold their offices for
three years from and including the first day of January succeeding their
election. The board of supervisors of a county containing a population
of one hundred thousand and over, may, by resolution duly adopted,
subdivide such county into districts of not more than one district for
each coroner to be elected, and on general election day in the next calen-
dar year and every third year thereafter, there shall be elected one
coroner from each of such districts, each of whom shall have jurisdiction
to perform the duties of the office anywhere within the territorial limits
of such county. The terms of office of all coroners elected prior to the
adoption of such resolution shall expire on the thirty-first day of
December in the next calendar year. The board of supervisors of a
county containing a population of less than one hundred thousand, and
having more than one coroner, may, by resolution, determine that after
the first day of January of a year to be specified in such resolution, the
number of coroners in such county shall be reduced to a specified num-
ber not less than one, and may by such resolution fix the terms of
coroners to be thereafter elected in such county so that the terms of all

the coroners therein will expire on the first day of January of the vear
specified in the resolution. [Subd. amended by L. 1912, ch. 91, L.

1916, ch, 87, and L. 1920, chs. 450, 594.]
SHERIFFS AND CORONERS. 155
County Law, § 180.

9. To be appointed by the governor, a sheriff, or a coroner, when a
vacancy shall occur in either of such offices, and the person so appointed
shall hold the office until and including the last day of December suc-
ceeding the first annual election thereafter, at which such vacancy can
be lawfully filled.t

Every person elected or appointed to the office of sheriff shall, before.
he enters upon the duties of his office, and if appointed, within fifteen
days after notice thereof, execute and deliver to the county clerk of his
county, a joint and several undertaking to the county, approved by such
clerk, to the effect that such sheriff will, in all things, perform and
execute the office of sheriff of his county during his continuance therein,
without fraud or deceit. Such undertaking shall be filed in the office
of the county clerk; and the clerk shall, at the time of his approval
thereof, examine each surety thereto under oath; and he shall not ap- '
prove of such undertakings, unless it shall appear on such examina-
tion that such sureties are jointly worth at least fifteen thousand dol-
lars over and above all debts whatever; which examination, subscribed
by the sureties, shall be indorsed on or attached to the undertaking;
but the clerk shall determine the sufficiency of each surety. In the same
manner the security shall be renewed within twenty days after the first
Monday of January in each year subsequent to that in which he shall
have entered upon the duties of his office.

 

1. A sheriff appointed by the Governor to fill a vacancy holds office only to the
commencement of the political year next succeeding the first annual election after
the happening of the vacancy. Rept. of Atty. Genl. (1911), vol. 2, p. 594.

Special election. Where a vacancy occurs in the office of sheriff between the
fifteenth of October and the general election day in November following, it cannot
be filled at that election, but a special election should be called for that purpose, of
which not less than thirty or more than forty days’ notice must be given. Matter
of Mitchell v. Boyle (1916), 219 N. Y. 242, 114 N. E. 382, revg. (1916), 175 App.
Div. 905, 161 N. Y. Supp. 1135.

A person elected to fill a vacancy in the office of coroner is entitled to hold the
office for a full term of three years. Rept. of Atty. Genl. (1911), vol. 2, p. 578.

Term of office of sheriffs is fixed by the constitution at three years; and sheriffs
shall hold no other office and be ineligible for the next term after the termination of
their offices. Constitution, art. X, sec. 1. Where a sheriff is chosen at a special elec-
tion to fill a vacancy, his term commences from the date of his election, notwith-
standing this section which provides that there shall continue ‘‘To be elected in
each of the counties a sheriff, * * * four coroners, * * * who shall respectively
hold-their offices for three years from and including the first day of January, suc-
ceeding their election.’’? This provision does not refer to an officer chosen to fill a
vacancy, whether at a special or general election, but to the term of an officer
chosen in regular course at a general election in November. It contemplates the
beginning of the political year as prescribed by section 6 of article 10 of the Con-
stitution. Matter of Mitchell v. Prendergast (1917), 178 Appf"Div. 690, 165 N. Y,
Supp. 972, affd. 222 N. Y. 543, 118 N. E. 1068.
156 COUNTY OFFICERS; JAILS.
County Law, § 180.

3. To be elected in the county of Westchester but two coroners. The
two coroners whose terms of office expire December thirty-first, nine-
teen hundred and twenty, shall continue in office until the expiration of
their terms, but successors to such coroners shall not be elected. The
The two coroners whose terms of office expire subsequent to nineteen
hundred and twenty-one shall continue to hold office until the expiration
of their respective terms, and the coroners elected to succeed them shall
hold office for a period of three years each at a salary to be fixed by the
board of supervisors at not to exceed three thousand dollars per annum.
[Subd. 3, as added by L. 1920, ch. 450.] _

3. To be elected in the county of Westchester but two coroners from
and after January first, nineteen hundred and twenty-one. The two
coroners whose terms of office expire subsequent to nineteen hundred
and twenty-one shall continue to hold office until the expiration of their
respective terms, and the coroners elected to succeed them shall hold
office for a period of three years each at a salary to be fixed by the
board of supervisors at not to exceed three thousand dollars per annum.
[Subd. 3, as added by L. 1920, ch. 594. County Law, § 180, as
amended by L. 1920, chs. 450, 594.]

References. Refcrence may be made to the following provisions of law relating
directly or indirectly to the offices of sheriffs and coroners:

Term of person appointed to fill vacancy. Subdivision 2 of this section is con-
trary to the constitutional provision (State Const., art X, § 5) that no person ap-
pointed to fill a vacancy in an elective office shall hold his office ‘‘longer than the
commencement of the political year next succeeding the first annual election after
the happening of the vacancy,’’ and the governor cannot appoint a sheriff to fill a
vacancy caused by death after October fifteenth preceding a general election to hold
for term beyond the first of next January. People ex rel. Conklin v. Boyle (1917),
98 Misc. 364, 163 N. Y. Supp. 72.

Acts of sheriff, county not responsible for. Constitution, art. X, sec. 1.

Undertaking. Sheriffs may be required by law to renew their security, and in
default of giving such new security their offices shall be deemed vacant. Constitu-
tion, art. X, sec. 1. Further provisions respecting undertaking. County Law, sec.
247, post. Public Officers Law, sec. 11, post. Effect of failure to execute under-
taking. Public Officers Law, sec. 13, post. Validation of official acts before execut-
ing undertaking. Public Officers Law, sec. 15, post. Vacancy in office created by
failure to execute undertaking. Public Officers Law, sec. 30, subd. 7, post.

Removal of sheriffs. The sheriff is removable by the governor. Constitutior,
art. X, sec. 1. The procedure for removal is prescribed by Public Officers Law, secs.
83-35, post. The expenses of such removal are a county charge. County Law, sec.
240, sub. 16, ante.

Official oaths of sheriffs and coroners, to be taken and filed. County Law, sec..
246, post. Effect of failure to take oath. Publie Officers Law, sec. 30, post.

Vacancies in offices of sheriff and coroners. Public Officers’? Law, sec. 30, post.

Resignations of sheriffs and coroners are to be made to the governor. Public
Officers Law, sec. 31.

Forms of official oaths and undertakings. See Forms Nos. 20, 21, 22.

Fees of sheriff and coroner. See chapter on “Fees,” post.

 
SHERIFFS AND CORONERS. 156a
County Law, § 154.

When county treasurer of Hrie county to act as coroner.—In the
county of Erie the powers imposed and the duties conferred upon cor-
oners by sections one hundred and ninety-six to one hundred and
ninety-nine-f of this chapter shall be exercised and performed by the
county treasurer of such county, and such county treasurer shall, in
the exercise and performance thereof, be subject to the same liabilities
and responsibilities as are prescribed in such séctions in the case of cor-
oners. [County Law, § 154, as transferred from the Code Civ. Proc.,
§ 181-a, without change of substance, by L. 1920, ch. 921.]

Collection of taxes, duties of sheriff relating to. Tax Law, secs. 76, 77,
87, post.

Undertaking. . Sheriff does not forfeit office by failing to execute bond
within time specified; the statute is directory merely and does not impose an
absolute limitation upon him. People v. Holley, 12 Wend. 481. A sheriff’s
bond is broken if he be guilty of any default or misconduct in his office.
People v. Brush, 6 Wend. 454.

The condition of a sheriff’s bond does not extend beyond nonfeasance or
misfeasance in respect to his official acts; and the plaintiff must show same
affirmatively. Ex parte Reed, 41 Hill 572. :

Special acts making office of sheriff salaried in the several counties. In
a great many of the counties the office of sheriff is made salaried by special
act of the legislature. These acts vary in their nature, and it would be im-
practicable in a work of this character to attempt to include such acts in full.
The following list is made from a careful examination of the statutes. It
will be noticed that during recent years the tendency has been to declare
such offices salaried, and ultimately all the counties will probably be put
upon the same basis in this respect:

Albany county, L. 1884, ch. 218, as amd. by L. 1886, ch. 598, L. 1897, ch.

.20, L. 1901, ch, 344, L. 1904, ch. 336, L. 1905, ch. 41, L. 1909, ch. 530,
L. 1909, ch. 519, L. 1919, ch. 21, and L. 1920, ch. 21.

Allegany county, L. 1897, ch. 539.

Broome county, L. 1902, ch. 51, as amended by L. 1910, ch. 132.

Bronx county, L. 1912, ch. 548, as amended by L. 1913, ch. 266.

Cattaraugus county, L. 1900, ch. 142, as amended by L. 1909, ch. 512,
and L. 1920, ch. 22. ;

Cayuga county, L. 1906, ch. 24, as amended by L. 1908, ch. 26, and L.
1922, ch. 89.

Chautauqua county, L. 1901, ch. 255, superseded by County Law, § 12,
sub. 17. *

Chemung county, L. 1900, ch. 249.

Chenango county, L. 1898, ch. 288.

Clinton county, L. 1903, ch. 36.

Columbia county, L. 1891, ch. 268, as amended by L. 1911, ch. 44.

Cortland county, L. 1906, ch. 42.

Delaware county, L. 1901, ch. 461, as amended by L. 1904, ch. 154, and
L. 1910, ch. 167.

Dutchess county, L. 19038, ch. 82.

Erie county, L. 1891, ch. 108, as amended by L. 1896, ch. 104, and L.
1902, ch. 345.

Essex county, L. 1903, ch. 26.

Franklin county, L. 1902, ch. 29, as amended by L. 1907, ch. 12, L. 1908,
ch. 317, L. 1910, ch. 29, 689, and L. 1922, ch. 24.

Fulton county, L. 1904, ch. 154.

Genesee county, L. 1911, ch. 94.

Greene county, L. 1900, ch. 84, as amended by L. 1910, ch. 354.

Hamilton county, L. 1915, ch. 200, as amended by L. 1922, ch. 94.

Herkimer county, L. 1903, ch. 319, as amended by L. 1904, ch. 681, L.
1907, ch. 376, L. 1915, ch. 409, and L. 1920, ch. 18.

Kings county, L. 1901, ch. 705, as amended by L. 19038, ch. 464, L. 1908,
ch. 484, and L. 1917, ch.271.

Livingston county, L. 1903, ch. 260, as amended by L. 1905, ch. 177.

Madison county, L. 1891, ch. 29.

 

1
156b COUNTY OFFICERS; JAILS.
County Law, § 181.

§ 2. SHERIFFS TO APPOINT UNDER-SHERIFFS; DUTIES OF UNDER-SHER-
IFF; MALFEASANCE OF UNDER-SHERIFFS.

Each sheriff shall, within ten days after he enters on the duties of his
office, appoint some proper person under-sheriff of his county, to hold
during his pleasure. When a vacancy shall occur in the office of sheriff,
the under-sheriff shall, in all things, execute the duties of the office of
sheriff, until a sheriff shall be elected or appointed and duly qualified;
and any default or misfeasance in the office of such under-sheriff in the
meantime, as well as before shall be deemed to be a breach of the under-
taking given by the sheriff who appointed him and also a breach of the

 

Monroe county, L. 1902, ch. 490, as amended by L. 1903, ch. 100; L. 1906, ch. 500;
L. 1907, ch. 35, and L. 1916, ch. 67.

Montgomery county, L. 1898, ch. 42, as amended by L. 1901, ch. 341.

Nassau county, L. 1898, ch. 588, as amended by L. 1899, ch. 658, L. 1900, chs.
38, 178, and L. 1901, ch. 337.

Niagara county, L. 1894, ch. 160.

New York county, L. 1890, ch. 523, as amended by L. 1891, ch. 315, L. 1892,
ch. 418, L, 1894, ch. 477, L. 1897, ch. 636, L. 1911, ch. 761, L. 1912, ch. 500, L. 1913,
ch. 373, L. 1916, ch. 525, and L. 1919, ch. 558. See also L. 1920, ch. 181.

Oneida county, L. 1898, ch. 321, as amended by L. 1901, ch. 666, L. 1907, chs.
39, 702, and L. 1913, ch. 298.

Onondaga county, L. 1909, ch. 216.

Ontario county, L. 1902, ch. 380.

Orange county, L. 1904, ch. 214, as amended by L. 1909, ch. 577, and L.
1922, ch. 103.

Orleans county, L. 1904, ch. 294, as amended by L. 1907, ch. 348.

Oswego county, L. 1909, ch. 242, as amended by L. 1911, ch. 61.

Putnam county, L.1903, ch. 280.

Queens county, L. 1909, ch. 502.

Rensselaer county, L. 1903, ch. 9, as amended by L. 1904, ch. 4, and L.
1910, ch. 243.

Richmond county, L. 1896, ch. 392, as amended by L. 1911, ch. 701, L.
1916, ch. 83, and L. 1917, ch. 473.

Rockland county, L. 1905, ch. 265, as amended by L. 1913, ch. 396, and L.
1920, ch. 224.

St. Lawrence county, L. 1900, ch. 324, as amended by L. 1910, ch. 686, and
L. 1913, ch. 383.

Saratoga county, L. 1898, ch. 44, as amended by L. 1901, ch. 582, and L.
1904, ch. 103.

Schenectady county, L. 1905, ch. 153, as amended by L. 1911, ch. 168.

Schuyler county, L. 1902, ch. 8.

Seneca county, L. 1899, ch. 547, as amended by L. 1915, ch. 143.

Steuben county, L. 1898, ch. 445.

Suffolk county, L. 1902, ch. 131, as amended by L. 1910, ch. 687, L. 1916,
eh. 583, L. 1917, ch. 338, and L. 1920, ch. 176.

Sullivan county, L. 1897, ch. 505, as amended by L. 1898, ch. 323, L. 1902,
ech. 215, L. 1904, ch. 434, and L. 1906, ch. 399.

Tioga county, L. 1898, ch. 9.

Tompkins county, L. 1909, ch.297.

Ulster county, L. 1906, ch. 65, as amended by L. 1910, ch. 688, and L.
1917, ch. 21.

Warren county, L. 1906, ch. 66, as amended by L. 1907, ch. 443.

Washington county, L. 1897, ch. 117, as amended by L. 1899, ch. 229, L.
1907, ch. 79, and L. 1922, ch. 123.

Wayne county, L. 1891, ch. 30.

Westchestor county, L. 1894, ch. 687, as amended by L. 1895, ch. 420, L.
1899, ch. 310, L. 1901, ch. 537, L. 1903, ch. 550, L. 1905, ch. 88, and L.
‘1909, ch. 500.

Yates county, L. 1897, ch. 362, as amended by L. 1906, ch. 245, L. 1909,
ch. 86, and L. 1915, ch. 67.
SHERIFF AND CORONERS. 157

County Law, § 182.

undertaking executed by such under-sheriff, to the sheriff by whom he
was appointed.? [County Law, § 181; B. C. & G. Cons. L., p. 798.]

§ 3. DEPUTY SHERIFFS TO BE APPOINTED BY SHERIFF; AP-
POINTMENT TO BE IN WRITING.

Such sheriff may appoint such and so many deputies as he may deem
proper, not exceeding one for every three thousand inhabitants of the
county; any person may also be deputed by any sheriff or under-sheriff by
written instrument, to do particular acts. Every appointment of.an
under-sheriff or of a deputy sheriff shall be in writing under the hand and
seal of the sheriff and filed and recorded in the office of the clerk of the
county; and every such under-sheriff or deputy sheriff shall, before he
enters upon the execution of the duties of his office, take the constitutional
oath of office; but this last provision shall not extend to any person who
may be deputed by any sheriff or under-sheriff to do a particular act only.?
[County Law, § 182; B. C. & G. Cons. L., p. 799.j

 

2. Under-sheriffs. An action will not lie against an under-sheriff for breach
of duty. Paddock v. Cameron, 8 Cow. 212. See also Tuttle v. Love, 7 Johns.
470. Though at common law the powers of the under-sheriff cease upon the
death of the sheriff, yet by statute his power is continued for the benefit of all
the parties interested. Ward v. Storey, 18 Johns. 120.

The under-sheriff has no right to keep the money for which sheriff is liable
until he is assured that the sheriff will pay it over to party entitled thereto.
Stegman v. Hollingsworth, 39 N. Y. St. Rep. 18, 14 N. Y. Supp. 465.

Death or resignation of sheriff. A person while acting as sheriff is
responsible for the acts of one acting as his late under-sheriff; but on the death
of the principal the under-sheriff becomes substituted in his place and assumes
all his duties and liabilities in respect to process not fully executed and is
personally responsible for his acts, the sureties of the deceased late sheriff being
sureties for the acts of the late under-sheriff. Newman v. Beckwith, 61 N. Y.
205, revg. 5 Lans. 80. The status of an under-sheriff upon the death of the sheriff
continues only until the vacancy is supplied by election or appointment. Matter
of Mitchell v. Prendergast (1917), 178 App. Div. 690, 165 N. Y. Supp. 972, affd. 222
N. Y. 543, 118 N. E. 1068.

8. Vacancy in office of sheriff; appointment of deputies. In case of a vacancy in
the office of sheriff, the duties of his office devolve upon his under-sheriff, but the
deputies do not continue in office. A new appointment as deputy of the under-
sheriff is necessary; nevertheless, if the deputy continues to act under the under-
sheriff with his assent, without a formal appointment, he may be regarded as his
deputy de facto. Boardman v. Halliday, 10 Paige 223.

A promise by a sheriff to appoint a certain person a deputy sheviff, even though
for a valuable consideration, is void as against public policy. Ilager v. Catlin, 18
Hun 448. The only way the appointment of a deputy sheriff can be proved is by
production of the original appointment in writing under the hand and sea! of the
sheriff, and due proof of its execution. Von Beil v. Reilly. 14 Wk. Dig. 443. See
also Crowley v. Conner, 1 Robt. C. C. 162.

Number of deputies. The statute authorizes the sher’™ to appoint as many
deputies as he may deem proper, provided he does not exceed the statutory
158 COUNTY OFFICERS; JAILS.
County Law, § 184.

§ 4. SHERIFF’S OFFICE; NOTICE OF PLACE TO RE FILED; WHEN
TO BE KEPT OPEN; PAPERS SERVED ON SHERIFF.

Every sheriff shall keep an office in some proper place in the city or
village in which the county courts of his county are held, of which he

 

limit. People ex rel. Andrus v. Town Auditors, 33 App. Div. 277; 53 N. Y. Supp.
739. :

Compensation of under sheriffs and deputies not to be included as part of dis-
bursements of sheriff. Matter of Beck, 31 App. Div. 361, 364, 53 N. Y. Supp. 156,
note.

Power of deputy. A deputy sheriff has full power and authority to perform
all necessary ministerial acts required in the service and execution of legal
process addressed to the sheriff. Gibson v. National Park Bank, 98 N. Y. 87.
And where the sheriff is directed to summon jurors they may be lawfully
summoned by his deputy, under his direction. People v. McGeery, 6 Park Cr. R.
653.

The authority of the deputy continues as long as that of his principal,
provided he have a continuance of authority derived from the, principal.
Ferguson v. Lee, 9 Wend. 258.

A sheriff who has goods in his custody under a process, has a special
property therein which gives him an insurable interest, and his deputy, as
such, without special power, is authorized to insure in the name and behalf
of his principal. White v. Madison, 26 N. Y. 117.

The duty of the sheriff is to execute process according to command of the
writ in pursuance of the established rvles of law; and if he deviates therefrom
by direction of the plaintiff in the suit, he ceases to be the sheriff's agent and
becomes that of such plaintiff. Acker v. Ledyard, 8 Barb. 514.

An execution in a sheriff’s hands when he goes out of office may be exe-
cuted by him thereafter personally or by deputy. Jackson v. Collins, 3
Cow. 89.

A sheriff may lawfully arrest without showing the warrant, but a deputy
must show authority if required; this is on the presumption that within his
county the sheriff is a known public officer. Sheldon v. Van Buskirk, 2 N.
Y. 478.

A deputy sheriff selling land on execution, may authorize another person
to compute amount necessary to be paid to redeem and may direct that
redemption money be deposited with such person as his agent. Hall v.
Fisher, 9 Barb. 17.

Undertaking of deputy. The deputy’s undertaking is for the benefit of the
sheriff. He himself is responsible for the acts of his deputy and may prop-
erly require an undertaking to be given by each deputy appointed by him,
conditioned for the faithful performance of the deputy’s duties. Reiley v.
Dodge, 38 N. Y. St. Rep. 352; 14 N. Y. Supp. 129; affd. 131 N. Y. 153.

There is no requirement that deputy shall give official bond or undertak-
ing. Opinion of Atty. Gen. (1919), 19 St. Dept. Rep. 310.

Expenses incurred by deputy sheriff in procuring surety company bond in
connection with his appointment are not a charge against the county. Opin-
ion of Atty. Gen. (1919), 19 St. Dept. Rep. 310.

It is a breach of the deputy’s bond if he fail to pay over to the sheriff
money collected by him, even if the sheriff should never be sued or made to
pay the amount. The deputy’s liability depends solely upon his own omis-
sion to pay the sheriff and not in any manner upon what becomes of the
money after the sheriff receives it, or who is entitled to it. Willet v. Stuart,
43 Barb. 98.

Where a deputy’s bond was conditioned to indemnify the sheriff from all
costs, damages, ete., concerning the return and execution of process and con-
cerning the not executing or wrongful execution, etc., of process, it was held
that it did not embrace costs in suits wrongfully instituted; but that some
SHERIFF AND CORONERS. 159

County Law, § 184.

shall file a notice in the office of the county clerk. If there be more
than one place of holding such courts, the notice shall specify in which

 

act or omission of the deputy must be shown, of such a character that the
sheriff would legally be bound to answer for it in damages. The language
of the bond should be explicit in order to render the deputy liable for costs
in an unfounded suit against him. Franklin v. Hunt, 2 Hill, 671.

To give the sheriff a cause of action on the bond of his deputy there must not
only be a technical breach of duty, but pecuniary damage resulting therefrom to
the sheriff. Rowe v. Richardson, 5 Barb. 385. The sureties on the bond of a
deputy sheriff are only responsible for his official acts as a general deputy; and
the deputy is not accountable to his principal in that character when acting
under his special direction and authority in a given case. Tuttle v. Cook, 15
Wend. 274.

A sheriff may recover by action upon his deputy’s official bond conditioned
to indemnify him against liability to third parties because of acts or omis-
sions of the deputy, the amount for which he has been rendered liable to the
plaintiff in an attachment suit by reason of the deputy’s falsely informing
him that a check received by the deputy from the claimant of the attached
property, on releasing the property under a written stipulation between the
attachment plaintiff's attorney and the claimant, that the proceeds of the
check were to be held by the sheriff until the final judgment as security after
the plaintiff's demand in the attachment suit, was received simply in lieu of
the property released. Flack v. Brassel, 153 N. Y. 621; 47 N. E. 807.

A deputy sheriff is an officer within the meaning of the statute and may
resign his office; upon his resignation his sureties are not responsible for any
acts done thereafter. Gilbert v. Luce, 11 Barb. 91.

_ Revocation of authority. The authority of a deputy ceases upon ser-
vice on him of a written revocation of his appointment, signed by the sheriff.

The formality of a seal is not indispensable. The common law, that an
instrument under seal cannot be discharged except by a similar instrument
under seal, does not apply to the case. This is an administrative arrange-
ment, and is to be regulated by the statute. Edmunds v. Barton, 31 N. Y.
495.

Sheriff must notify constables and deputies to attend terms. The Sheriff
of each county, except New York and Kings, must within a reasonable time
before the sitting, in his county, of any term of court, notify, in writing or
personally, as many constables or deputy sheriff’s of his county, as he deems
necessary, to appear and attend upon the term during its sitting. Judiciary Law,
§ 403.

Number. In any county where the compensation of such attendants is
now fixed by statute at the sum of three dollars per day and mileage, the
number of attendants to be appointed for any one term of court, pursuant
to the last preceding section, shall not exceed eighteen. Judiciary Law, § 343.

Penalty for neglect of officer to attend court. Each constable or deputy
sheriff, seasonably notified, as prescribed in the last two sections, must attend
the term accordingly; and for each day’s neglect he may be fined by the court,
at the term which he was notified to attend, a sum not exceeding five dollars.
Judiciary Law, § 407.
160 COUNTY OFFICERS; JAILS.
County Law, § 185a.

place his office shall be kept, or it may be specified that an office will be
kept in all such places. Every sheriff’s office, except in the counties of
Kings and New York, as hereinafter provided, shall be kept open,
except Sundays and other days and half days declared by law to be
holidays or half holidays, from nine o’clock in the morning until five
o’clock in the afternoon, during the months of November, December,
January, February and March of each year, and from eight o’clock in
the morning until six o’clock in the afternoon during the other months
in each year.*

Every notice or other paper required to be served on any sheriff may
be served by leaving the same at the office designated by him in such
notice during the days and hours for which he is required to keep such
office open, but if there be any person belonging to such office therein,
such notice or paper shall be delivered to such person, and every such
service shall be deemed equivalent to a personal service on such
sheriff.®5 In the counties of Kings and New York said offices shall re-
main open during the entire year from nine o’clock in the forenoon to
four o’clock in the afternoon, except Sundays and other days and half
days declared by law to be holidays or half holidays. [County Law, §
184, B. C. & G. Cons. L., 2d ed., p. 1521.]

§ 4. FEES OF SHERIFF.

A sheriff is entitled for the services specified in this section to the
following fees:
1. For executing a warrant to remove any person from lands belong-

 

4. Office hours of sheriff. Holidays and half-holidays are specified in the
General Construction Law, sec. 24, as amended by L. 1909, ch. 112. See
note to County Law, sec. 165, ante, p. 132.

By section 62 of the Public Officers Law it is provied that ‘“‘holidays and
half-holidays shall be considered as Sunday for all purposes relating to the
transaction of business in the public offices of the state, and of each county.”

Business with sheriffs, unlike that with county clerks, may be transacted
at other places besides their offices, and outside of office hours. France v.
Hamilton, 26 How. Pr. 180. The sheriff’s office not being required to be kept
open on Sunday, when the last day for redemption falls on that day, it may
be made on Monday. Porter v. Pierce, 120 N. Y. 217.

5. Service of papers. The papers and notices which may be served upon
the sheriff by leaving the same at his office, with his clerk or deputy, refer
to the large class of papers and notices which are required by law to be
served on the sheriff as such, by virtue of his office, and which do not con-
cern him personally. A summons in a civil action against the sheriff cannot
SHERIFF AND CORONERS. 161
County Law, § 185b.

ing to the people of the state or to Indians, such a sum as the comp-
troller audits and certifies to be a reasonable compensation.

2. For notifying constables to attend a court, fifty cents for each
constable notified.

3. For attending a term of a court which he is required by law to
attend, for each day, three dollars. [County Law, § 185-a, as trans-
ferred from Code Civ. Proe., § 3307, subds. 18, 20, 21, by L. 1920,
ch. 921.]

§ 4-b. FEES OF DEPUTY SHERIFFS ATTENDING COURTS.

A deputy sheriff is entitled, for attending a sitting of a court of
record pursuant to a notice from the sheriff, to a fee for each day’s
actual attendance in any county in the state, to be fixed by the board
of supervisors thereof, and mileage as allowed by law to trial jurors
in courts of record ;** and in any county where the court or grand jury
holds evening or night sessions, the board of supervisors may provide
for additional compensation to be allowed to each deputy sheriff for
each evening or night session actually attended by him. Such fees
must be paid by the county treasurer upon the production of the cer-
tificate of the clerk showing the number of days and evenings that the
deputy sheriff attended. If a deputy sheriff attending a sitting of a
court of record pursuant to a notice from the sheriff is unable to reach
his home upon the day he is excused from attendance, he shall be en-
titled to compensation for an additional day, and the clerk shall certify
accordingly upon satisfactory proof of such fact by affidavit. The
provisions of this section shall not be applicable to the counties of
Kings, New York and Erie.*» [County Law, § 185b, as transferred
from Code Civ. Proc., § 3312, by L. 1920, ch. 921.]

 

be served upon him by leaving the same at his office, or otherwise than by
delivering the same to him personally. Sherman v. Conner, 16 Abb. N.S. 396.

Notice by surety on bond of deputy of his withdrawal is not a paper that
can be so served. Reilly v. Dodge, 131 N. Y. 153.

While a delivery of an execution to a deputy in person is a delivery to the
sheriff, yet leaving it in some undescribed place in the meat market of the
deputy is not a good delivery. Burrell v. Hollands, 78 Hun 583, 29 N. Y.
Supp. 515.

5a. Mileage. Deputy sheriffs designated pursuant to a special act and
receiving an annual salary thereunder by virtue of a resolution of the board
of supervisors, are not entitled to the mileage specified in this section. Peo-
ple ex rel. Hewitt v. Hoyland (1911), 145 App. Div. 11, 129 N. Y. Supp. 500.

5b. In general. See Day v. Mayor (1876), 66 N. Y. 592.
162 COUNTY OFFICERS; JAILS.
County Law, §§ 185, 186, 187.

§ 5. FEES FOR SERVICES FOR THE STATE; ACCOUNTS, HOW AUDITED.

When a sheriff shall be required by any statute to perform any ser-
vice in behalf of the people of this state, and for their benefit, which
shall not be made chargeable by law to his county, or to some officer,
body or person, his account for such services shall be audited by the
comptroller and paid out of the state treasury. [County Law, § 185;
B.C. & G. Cons. L., 2d ed., p. 1522.]

§ 6. SHERIFF TO BE REMOVED FOR NON-PAYMENT OF MONEYS.

When a sheriff shall be committed to the custody of any other sher-
iff, or to any coroner by virtue of an execution or attachment for the
non-payment of moneys received by him by virtue of his office, and
shall remain so committed for the space of thirty days successively,
such facts shall be presented to the governor by the officer in whose
custody such sheriff may be, to the end that such sheriff may be re-

moved from office.? [County Law, § 186; B. C. & G. Cons. L., 2d ed.,
p. 1522.]

§ 7. WHEN CORONER TO ACT AS SHERIFF; COUNTY JUDGE TO DES-
IGNATE CORONER; UNDERTAKING.

When a vacancy shall occur in the office of sheriff, and there shall be
no under-sheriff of the county then in office, or the office of such under-
sheriff shall become vacant, or he become incapable of executing the
duties of the same before another sheriff of the same county shall be
elected or appointed and qualified, and there shall be more than one
coroner of such county then in office, the county judge of such county
shall forthwith designate one of such coroners to execute the duties of
the office of sheriff of the county until a sheriff thereof shall be elected
or appointed and qualified. Such designation shall be by a written
instrument, signed by the judge, and filed in the office of the clerk of
the county, and the clerk shall immediately give notice thereof to such
coroner. Within six days after receiving such notice, such coroner
shall execute a joint and several undertaking, with the same number

 

6. Fees of sheriffs generally. See note 1, in this chapter, for list of coun-
ties in which the office of sheriff is salaried.

7. Duties of coroner as to arrest and confinement of sheriff. When a man-
date, requiring the arrest of a sheriff, is directed to the coroner he must exe-
SHERIFF AND CORONERS. 162a
County Law, §§ 196, 197.

of sureties, to be approved in the same manner and be subject in all
respects to the same regulations as the security required by law from
the sheriff of such county. After the execution and filing of such
undertaking in the clerk’s office, such coroner shall execute the duties
of the office of sheriff of the same county until a sheriff shall be duly
elected or appointed and qualified. [County Law, § 187; B. C. & G.
Cons. L., 2d ed., p. 1522.]

§ 7a. DUTIES OF CORONER WHEN SHERIFF IS A PARTY.

In an action or special proceeding, to which the sheriff of a county
is a party, a coroner of the same county has all the power, and is sub-
ject to all the duties of a sheriff, in a cause to which the sheriff is not
a party; except as otherwise specially prescribed by law. [County
Law, § 196, as added by L. 1920, ch. 921; formerly Code Civ. Proc.,
§ 172.]

§ 7b. ANY ONE OF THE CORONERS MAY EXECUTE A MANDATE.

A mandate in a civil action or special proceeding which must or may
be executed by the coroners, or by a coroner of a county, must be di-
rected either to a particular coroner, or generally to the coroners of
that county. Where such a mandate is directed generally to the cor-
oners of a county, or requires them to do any act, it may be executed,
and a return thereto may be made and signed, by one of them; but

 

cute the same in the same manner as a similar mandate directed to the
sheriff. His duties in respect to the confinement of the sheriff are the same
as those of the sheriff in respect to the confinement of any other civil
prisoner. County Law, see §§ 196-199f.

Removal of sheriff. For procedure for the removal of county officers by
the governor, see Public Officers Law, secs. 33-35, post.

7a. A coroner to whom a requisition, in proceedings for the claim and de-
livery of personal property, in an action to recover its possession has been
issued, stands in a like position as a sheriff and is protected by his process in
taking the property specified from the possession of the defendant named.
Manning v. Keenan (1878), 73 N. Y. 45, affg. 9 Hun 686.

Office of coroner in New York city abolished. Matter of Seinor (1917),
179 App. Div. 746, 167 N. Y. Supp. 140.
162b COUNTY OFFICERS; JAILS.
County Law, §§ 198-199b

such an act or return does not affect the others. [County Law, § 197,
as added by L. 1920, ch. 921; formerly Code Civ. Proe., § 173.]

§ 7c. ARREST OF SHERIFF BY CORONER.

Where a mandate, requiring the arrest of the sheriff of the county,
is directed to a coroner, he must execute the same in the manner pre-
scribed by law, with respect to the execution of a similar mandate by
a sheriff; and he is authorized to take an undertaking on the arrest,
or an undertaking for the jail liberties, in a like case, and in like man-
ner, and with like effect, as where such an undertaking may be taken
by a sheriff. [County Law, § 198, as added by L. 1920, ch. 921; for-
merly Code Civ. Proc., § 174.]

§ Td. CONFINEMENT OF SHERIFF UNDER ARREST BY CORONER.

Where the actual confinement of a sheriff by a coroner, on a man-
date, is required or authorized by law, he must be confined by the
coroner, in a house situated within the liberties of the jail of the county
other than the sheriff’s house, or the jail, in the same manner as a
sheriff is required by law to confine a prisoner in the jail. [County
Law, § 199, as added by L. 1920, ch. 921; formerly Code Civ. Proc.,,
§ 175.]

§ Ze. PLACE OF CONFINEMENT TO BE DEEMED A JAIL.

That house thereupon becomes the jail of the county, for the use of
the coroner and each provision of law relating to the jail, or to an

escape from the jail, applies thereto, while the sheriff is confined
therein. [County Law, § 199-a, as added by L. 1920, ch. 921; formerly
Code Civ. Proc., § 176.]

§ 7f. SHERIFF, HOW ADMITTED TO JAIL LIBERTIES; LIABILITY OF
CORONER FOR ESCAPE.

A sheriff so arrested must be admitted to the liberties of the jail of
the county, in a like case, and upon executing a like undertaking to
the coroner, as prescribed by law for a prisoner in the sheriff’s custody.
For an escape of the sheriff from the liberties, the coroner is liable, in
the same manner, and to the same extent, as a sheriff for a similar
SHERIFFS AND CORONERS. 162¢e

County Law, §§ 199c-199f.

escape; and he may make the same defense as a sheriff. [County Law,
§ 199-b, as added by L. 1920, ch. 921; formerly Code Civ. Proe., § 177.]

§ 7g. RIGHTS OF CORONER TO PROSECUTE, UPON UNDERTAKING
FOR JAIL LIBERTIES.

The coroner may prosecute an undertaking for the liberties taken by
him, and is entitled to all the rights, and subject to all the liabilities
prescribed by law in respect to a similar undertaking taken by a sher-
iff. The undertaking may be assigned by him, to the party at whose
instance the sheriff was arrested; and the same proceedings may be
had thereupon, as upon an undertaking taken and assigned by a sheriff
in a similar ease. [County Law, § 199-c, as added by L. 1920, ch. 921;
formerly Code Civ. Proc., § 178.]

§ 7h. CONFINEMENT OF PERSON ARRESTED BY CORONER WHEN
SHERIFF IS PLAINTIFF.

A person arrested by a coroner, in an action or special proceeding, in
which the sheriff of the county is plaintiff, must be confined in the jail
of the county, in a case where such a confinement is required or au-
thorized by law; but the coroner is not liable for an escape of the
prisoner from the jail, after he has been confined therein. A person
so confined must be kept and treated, in all respects, like a prisoner
confined by the sheriff. [County Law, § 199-d, as added by L. 1920,
ch. 921; formerly Code Civ. Proe., § 179.]

§ 7i. JAIL LIBERTIES; UNDERTAKING AND DISCHARGE OF PERSON
ARRESTED BY CORONER.

A person so arrested by a coroner is entitled to be discharged, or to
the liberties of the jail, as the case requires, upon giving an undertak-
ing to the coroner in like manner, and in like case, in which a person
arrested by a sheriff would be entitled to be discharged, or to the liber-
ties. The undertaking so given must be in all respects similar to that
required to be given to a sheriff; and it has the like effect, and may be
assigned and proceeded upon in like manner. [County Law, § 199-e,
as added by L. 1920, ch. 921; formerly Code Civ. Proce., § 180.] °

§ 7j. LIABILITY OF CORONER FOR ESCAPE OF SUCH PRISONER.

A coroner is answerable for an escape of a prisoner, admitted by
him to the liberties of the jail, in the same manner and to the same
162d COUNTY OFFICERS; JAILS.
County Law, §§ 188, 189.

extent as a sheriff and may interpose a like defense. [County Law,
§ 199-f, as added by L. 1920, ch. 921; formerly Code Civ. Proc., § 181.]

§ 8. WHEN OTHER CORONER TO BE DESIGNATED; WHEN CORONER
TO EXECUTE DUTIES OF OFFICE OF SHERIFF.

When the coroner so designated shall not, within the time specified,

give the security required by him, the county judge shall, in like man-
ner, designate another coroner of the county to assume the office of
sheriff, and, if necessary, he shall make successive designation until all
the coroners of the county shall have been designated to assume such
office; and all the provisions contained in the last preceding section
shall apply to every such designation and to the coroner named there-
in. If such vacancy shall occur when there shall be but one coroner of
the county then in office, he shall be entitled to execute the duties of
the office of sheriff therein until a sheriff shall be duly elected or ap-
pointed and qualified; but before he enters upon the duties of such
office, and within ten days after the happening of the last vacancy in
the office of sheriff and under-sheriff, he shall execute with sureties a
joint and several undertaking, the same as is required by law from a
sheriff; and such undertaking shall be subject in all respects to the
same regulations as the security required from the sheriff. [County
Law, § 188; B. C. & G. Cons. L., 2d ed., p. 1522.]

§ 9. COUNTY JUDGE MAY APPOINT A PERSON OTHER THAN A COR-
ONER IN CERTAIN CASES.

If such coroner so in office on the happening of such vacancies shall
neglect or refuse to execute such undertaking within the time required,
or if all the coroners, where there are more than one in office in such
event, shall successively neglect or refuse to execute the undertaking
within the time required, the county judge shall appoint some suitable
person to execute the duties of the office of sheriff in his county until
a sheriff therein shall be duly elected or appointed and qualified. Such
appointment shall be made and filed in the same manner as the
above designations are made and filed, and the clerk shall forth-
with give notice thereof to the person so appointed, who shall,
within six days thereafter, and before he enters upon the duties
of his office, give such security as is required by law of sheriffs,
and subject to the same regulations; and thereupon such person
SHERIFF AND CORONERS. 163

County Law, §$ 190, 191, 192.

shall execute the duties of the office of sheriff of the county until a sheriff
shall be duly elected or appointed, and qualified. [County Law, § 189; B.
C. & G. Cons. L., p. 803.]

§ 10. CORONERS TO EXECUTE DUTIES OF OFFICE UNTIL VAC-
ANCY IS FILLED; DUTIES AND LIABILITIES OF INCUM-
BENT.

Until some coroner designated or some person appointed by the judge
shall have executed the security above required, or until a sheriff of the
county shall have been duly elected or appointed, and qualified, the cor-
oner or coroners of the county in which such vacancies shall exist shall
execute the duties of the office of sheriff therein; and when any under-
sheriff, coroner, coroners or other person shall execute the duties of the
office of sheriff, pursuant to either of the foregoing provisions, the persom
so executing the same shall be subject to all the duties, liabilities and pen-
alties imposed by law upon the sheriff duly elected and qualified, and he
shall be entitled to the same compensation. [County Law, § 190; B. C.
& G. Cons. L., p. 803.]

§ 11. BOARD OF SUPERVISORS MAY FIX SALARY OF CORONER.

The board of supervisors of any county shall have power to prescribe
that coroners in said county shall receive a salary, instead of fees, and
to fix the amount of such salary; and thereafter coroners in said county
shall receive for their services only the salary so fixed and shall not be
entitled to any fees whatever, except when performing the duties of a
sheriff, in which last named case the coroner so acting, shall have the
same compensation as the sheriff, whose duties he performs, would have
had. [County Law, § 191; B. C. & G. Cons. L., p. 803.]

§ 12. FEES ALLOWED CORONERS FOR SERVICES ON INQUESTS,
ETC.

Coroners in and for the state of New York, except in the county of
Kings and except in such other counties as have prescribed or shall here-
after prescribe, different compensation, shall be entitled to receive the
following compensation for services performed: Mileage to the place of
irquest and return, ten cents per mile. Viewing bodies, five dollars. Ser-
vice of subpoena, ten cents per mile traveled. Swearing each witness,
fifteen cents. Drawing decision, one dollar. Copying decision for record,
per folio, twenty-five cents, but such officers shall receive pay for one
copy only. For making and transmitting statements to the board of super-
visors, each decision fifty cents. For warrants of commitment, one dollar.
For arrest and examination of offenders, fees shall be the same as justices
164 COUNTY OFFICERS; JAILS.
County Law, §§ 193, 194; Civil Practice Act, § 102.

of the peace in like cases. When required to perform the duties of
sheriff, shall be entitled to and receive the same fees as sheriffs for the
performance of like duties. Shall be reimbursed for all moneys paid
out actually and necessarily by him in the discharge of official duties
as shall be allowed by the board of supervisors. Shall receive for each
and every day and fractional parts thereof spent in taking an inquisi-
tion, three dollars. For performing the requirements of law in regard
to wrecked vessels, shall receive three dollars per day and fractional
parts thereof, and a measureable compensation for all official acts per-
formed, and mileage to and from such wrecked vessels, ten cents per
mile. For taking ante-mortem statement shall be entitled to the same
rates of mileage as before mentioned, and three dollars per day and
fractional parts thereof, and for taking deposition of injured person in
extremis, one dollar.” County Law, § 192; B. C. & G. Cons. Law,
2d ed., p. 1524.]

Whenever, in consequence of the performance of his official duties, a
coroncr becomes a witness in a criminal proceeding, he shall be entitled
to receive mileage to and from his place of residence, ten cents per
mile, and three dollars per day for each day, or fractional parts
thereof, actually detained as such withess. This section also applies
to the county of New York. [County Law, § 193; B. C. & G. Cons. L.,

_ 2d ed., p. 1525.]
Nerang

§ 13. EMPLOYMENT OF STENOGRAPHER AND SURGEONS.

; A coroner shall have power, when necessary, to empioy not more
than two competent surgeons to make post-mortem examinations and
dissections and to testify to the same, and in counties where coroners
are paid in fees, to employ a stenographer to take and reduce to
writing the testimony of witnesses examined before the coroner, the
compensation therefor to be a county charge. This section also applies
to the county of New York.7* [County Law, § 194, as amended by L.
1910, ch. 158; B. C. & G. Cons. L., 2d ed., p. 1525.]

§§ 14-15. DUTIES OF SHERIFF IN RESPECT TO SERVICES OF MAN-
DATE IN CIVIL ACTIONS; COPY OF PROCESS TO BE DELIV-
ERED; RETURN OF SHERIFF; LIABILITY FOR NEGLECT IN
SERVING PROCESS IN SPECIAL PROCEEDING.

A sheriff or other officer to whom a mandate of any description is
delivered to be executed

Must give without compensation, to the person delivering the same,
if required, a written receipt describing the mandate and specifying
the day and hour of receiving the same. [Civil Practice Act, § 102,

 

7-b. Fees and compensation of coroner. A coroner is entitled to fees where
an inquest is held, but is not entitled to disbursements in addition thereto.
Where no inquest is held he is entitled to actual and necessary disburse-
ments, but no fee. Rept. of Atty. Genl., March 3, 1911.

Expenses. Coroner, whose salary is fixed, is not entitled to compensation
for his expenses. Rent. of Atty. Genl. (1901), 186. But it has been ruled
that a coroner receiving a salary instead of fees is entitled to reimbursement
for expenses actually and necessarily incurred by him in the discharge of his
duties. Opinion of State Comptroller (1916), 10 State Dept. Rep. 550.

7-c. The appointment of a coroner’s physician is personal to each coroner
and the term of office of each physician is coterminous with that of the
coroner who appoints him unless he has been sooner removed. Matter of
Naumack, 145 App. Div. 289.
SHERIFF AND CORONERS. 165
Civil Practice Act, § 102.

subd. 1, being L. 1920, ch. 925, as amended by L. 1921, ch. 199, in effect
October 1, 1921.]

Must deliver without compensation, a copy of the mandate to the
person served, upon his request. [Civil Practice Act, § 102, subd. 3,
being L. 1920, ch. 925, as amended by L. 1921, ch. 199, in effect October
1, 1921.

Must ae the same according to the command thereof, and make
return thereon of his proceedings. For a violation of this provision he
is liable to the party aggrieved for the damages sustained by him, in
addition to any fine or other punishment or proceeding authorized by
law.

May return a mandate directed to himself by depositing in the post-
office properly inclosed in a postpaid wrapper, addressed to the clerk,
at the place where his office is situated, unless the officer making the
return in the name of the sheriff resides in the place where the clerk’s
office is situated.8 [Civil Practice Act, § 102, subds. 2 and 4, being L.
1920, ch. 925, as amended by L. 1921, ch. 199, in effect October 1, 1921.]

8. LTuty as to service and return. It is the duty of the sheriff to use
reasonable efforts to execute process, and ke cannot rely upon mere casual
information. Hirman v. Borden, 10 Wend. 367.

A party in whose favor process is issued may give such directions to the
sheriff as will not only excuse the sheriff from his gereral duty but bind him
to the performance of what is required of him. Gregg v. Murphy, 73 Hun,
389; 28 N. Y. Supp. 556. He is subject at all times to the direction of the
party in whose favor process is issued. Root v. V/agoner, 30 N. Y. 19. See,
also, Douglas v. Haberstro, 88 N. Y. 611; Crouse v. Bailey, 2 N. Y. St. Rep.
395; Corning v. Southerland, 3 Hill, £02.

Liability of sheriff; damages. Prima facie where a sheriff fails to return
an execution within the required time he is liable for the amount of the debt, but
he may show in mitigation of damages that the defendant therein had no
property on which the execution could be levied. Pach v. Gilbert, 17 Civ.
Proc. R. 39; 7 N. Y. Supp 336; affd. 124 N. Y. 612.

On the failure to return an execution the sheriff is only liable for the
damages sustained, and if it appears that there was only a small amount of
leviable property, it is error to direct a verdict for the fu’! amount ot the
execution. The sneriff is not bound to levy on property pointed out by the
plaintiff though an indemnity is offered him, provided he acts in good faith
and shows that the property did not belong to the defendant. Dolson v. Sax-
ton, 11 Hun, 565.

In an action against a sheriff, for neglecting to collect and return an exe-
cution against the property, the plaintiff must show a valid judgment; but
the sheriff cannot take advantage of a mere irregularity making the judgment
only voidable. Forsyth v. Campbell, 15 Hun, 235; Dunford v. Weaver, 84 N.
Y. 445. A sheriff cannot, in an action for ‘damages, attack the form of the
mandate given him for enforcement unless it is absolutely void. McDonald
v. Kieferdorf, 22 Civ. Proc. R. 105; 18 N. Y. Supp. 763.

An officer to whom an execution is delivered who extends the judgment
debtor’s time for payment of the judgment debt beyond the time fixed for

 
166 COUNTY OFFICERS; JAILS.
Civil Practice Act, § 102; Judiciary Law, §§ 400, 401.

Who wilfully neglects to execute a mandate, authorized by law to be
issued by a judge or other officer, in a special proceeding, may be fined
by the judge, in a sum not exceeding twenty-five dollars, and is liable
to the party aggrieved for his damages sustained thereby. [Civil
Practice Act, § 102, subd. 5, being L. 1920, ch. 925, as amended by L.
1921, ch. 199, in effect October 1, 1921.]

§ 16. POWERS OF SHERIFF IN CASE OF RESISTANCE TO THE
SERVICE OF MANDATE; NAMES OF RESISTERS TO BSE
CERTIFIED TO COURT; SHERIFF MAY ASK ASSISTANCE;
GOVERNOR MAY ORDER OUT MILITIA.

If a sheriff, to whom a mandate is directed and delivered, finds, or has
reason to apprehend, that resistance will be made to the execution thereof,
he may command all the male persons in his county, or as many as he
thinks proper, and with such arms as he directs, including any military
organization armed and equipped, to assist him in overcoming the resis-
tance, and, if necessary, in arresting and confining the resisters, their
aiders and abettors, to be dealt with according to law.® [Judiciary Law,
§ 400; B. C. & G. Cons. L., p. 2804.]

The sheriff must certify to the court, from which or by whose authority
the mandate was issued, the names of the resisters, their aiders and
-abettors, as far as he can ascertain the same, to the end that they may
be punished for their contempt of the court. [Idem, § 401; B. C. & G.
Cons. L., p. 2805.]

 

the return of the execution, and, without consultation with the judgment
ereditor or her attorney, procures the renewal of the execution, is liable for
damages sustained by the subsequent disappearance of the judgment debtor.

9. Sheriff may call for assistance. The fact that an officer had not, at
the time of summoning the power of the county, a sufficient cause for sum-
moning them, does not affect the duty of the persons summoned, if, when
they come together, resistance is offered to his executing the process; nor
does it affect the liability of those who make or cause resistance except as to
damages. Slater v. Wood, 9 Bosw. 15. The sheriff may call on others to
assist him and leave them to watch while he goes for further assistance. He
is deemed constructively presenc so as to justify the others making an arrest.
Coyles v. Hurtin, 10 Johns. 85.

One who, being called upon by an officer to assist him, does so, acts at his
own peril; if the officer has authority to do the act in which the person is
called upon to assist, such person is bound to obey, and if he neglects or re-
fuses, he is guilty of a misdemeanor; but if the officer is not so authorized,
the person who obeys him is a trespasser. Elder v. Morrison, 10 Wend.
128.

Liability of sheriff. Where property is attached by the sheriff and afterward
is wrongfully taken from his possession, it is his duty to retake it by force
from any person who has so removed it. He is guilty of neglect if he does not
use the power conferred by this section in retaking such property. Matter of
Wood v. Bodine, 32 Hun, 354. See also Delancy v. Piepgrass, 141 N. Y. 88, 96.
SHERIFF AND CORONERS. 167

Penal Law, § 1848; Military Law, § 115; Judiciary Law, §§ 402-405,

A person, who, after having been lawfully commanded to aid an officer
in arresting any person, or in re-taking any person who has escaped from
legal custody, or in executing any legal process, wilfully neglects or refuses
to aid such officer is guilty of a misdemeanor. [Penal Law, § 1848; B. C.
& G. Cons. L., p. 4047.]

If it appear to the governor that the power of the county be not sufficient
to enable the sheriff to preserve the peace and protect the lives and prop-
erty of the peaceful residents of this county, or to overcome the resistance
to process of this state, the governor must, on the application of the
sheriff, order out such military force from any other county or counties,
as is necessary. [Military Law, § 115, in part; as amended by L. 1916, ch.
355; B. C. & G. Cons. L., p. 3526.]

§ 17. ATTENDANCE OF SHERIFF AND DEPUTIES UPON TERMS OF
COURT; DUTIES IN RESPECT TO APPELLATE DIVISION.

A term of theappellate division of the supreme court must be attended
by the sheriff of the county in which it is held, his under-sheriff, or one of
his deputies, each of whom must act under the direction of the court or
of the presiding justice. The sheriff of the county must cause the room
in which a term of the appellate division is held to be properly heated,
ventilated, lighted, and kept comfortably clean and in order. The sheriff
must also provide the court with all necessary stationery and minute books,
upon the written requisition of the court or of the justice presiding at
the term, and shall defray the necessary expense of telegraphing the day
calendar to such county clerks as the court shall direct: also the necessary
expense of transmitting printed cases and papers to the reporter; to the
various libraries and to the justices of the appellate division. The fees
of the sheriff for attending a term of the appellate division and all ex-
penses incurred by a sheriff in obedience to this section must be audited
by the comptroller and paid out of the treasury of the state. [Judiciary
Law, § 402; B. C. & G. Cons. L., p. 2805.]

The sheriff of each county, except New York and Kings, must within a
reasonable time before the sitting, in his county, of any term of court,
notify, in writing or personally, as many constables or deputy sheriffs of
his county, as he deems necessary, to appear and attend upon the term
during its sitting. [Idem, § 403; B. C. & G. Cons. L., p. 2806.]

Where a special term of the supreme court is adjourned to the cham-
bers of a justice of the court, pursuant to section one hundred and forty-
eight of this chapter, the attendance of the sheriff or a constable is not
required unless the justice directs them to attend. [Idem, § 404; B. C.
*& G. Cons. L., p. 2806.]

The sheriff of the county of Erie shall not be required to attend or
designate any officer to attend at justices’ chambers or at special terms of
168 COUNTY OFFICERS; JAILS.
Judiciary Law, §§ 406-409; Civil Practice Act, § 103.

the supreme court, or at any term of the county court and surrogate’s
court held in said county of Erie unless requested so to do by the justice,
judge or surrogate presiding thereat. [Idem, § 405; B. C. & G. Cons. L.,
p. 2807.]

A sheriff, deputy sheriff, or constable, attending a term of a court of
record, must, whcn required by the court, act as crier therein; and he
is not entitled to any additional compensation for that service. [Idem,
§ 106; B. C. & G. Cons. L., p. 2807.]

Each constable or deputy sheriff, seasonably notified, as prescribed in
section four hundred and three of this chapter, must attend the term ac-
cordingly ; and for each day’s neglect he may be fined by the court, at the
term at which he was notified to attend, a sum not exceeding five dollars.
[Idem, § 407; B. C. & G. Cons. L., p. 2807. ]

The sheriff of Queens county shall not notify, or designate any deputy
sheriffs to attend at a term of court in said county held with or without
a jury except by an order of the justice, or judge, presiding thereat, to
be entered upon the minutes. [Idem, § 408; B. C. & G. Cons. L., p. 2807.]

The sheriff of the county of Monroe is hereby authorized by and with
the consent and approval of the justices of the supreme court of the seventh
judicial district, residing in the county of Monroe, and the county judge
and special county judge of Monroe county, respectively, to appoint and
with the consent of said justices and judges at pleasure, to remove, such
attendants from the supreme court and the county court, respectively, held
in and for the county of Monroe, as such justices and judges shall deem
necessary. [Idem, $ 409; B. C. & G. Cons. L., p. 2808.]

§ 28. TRIAL BY SHERIFF OF CLAIM OF TITLE TO PROPERTY
SEIZED BY HIM; JURORS, HOW SUMMONED; EXAMINA-
TION OF WITNESSES; PAYMENT OF FEES.

Where it is specially prescribed by law, that a sheriff must or may,
in his discretion, impancl a jury to try the validity of a claim of title to
or of the right of possession of goods or effects seized by him by virtue
of a mandate in an action, interposed by a person not a party to the
action, the trial must be conducted in the following manner, except as
otherwise specially prescribed by law:

1. The sheriff from time to time must notify as many persons to
attend as may be necessary to form a jury of twelve persons qualified
to serve as trial jurors in the county court of the county, or in the city
and county of New York, in the supreme court, to try the validity of*
the claim.

2. Upon the trial, witnesses may be examined, in behalf of the claim-
ant and of the party at whose instance the property claimed was taken
by the sheriff. For the purpose of compelling a witness to attend and
testify, the sheriff, upon the application of either party to the inquisi-
tion, must issue a subpoena, as prescribed in section four hundred and
SHERIFF AND CORONERS. 169
Civil Practice Act, §§ 103, 104; County Law, § 195.

six of this act, and with like effect except that a warrant to apprehend
or commit a witness in a case specified in such section may be issued
by a judge of the court in which the action is brought or by the county
judge.

3. The sheriff or under-sheriff must preside upon the trial. A wit-
ness produced by either party, must be sworn by the presiding officer
and examined orally in the presence of the jury. A witness who testi-
fies falsely upon such an examination is guilty of perjury in a like case
and is punishable in like manner as upon the trial of a civil action.
[Civil Practice Act, § 103, being L. 1920, ch. 925, as amended by L.
1921, ch. 199, in effect October 1, 1921.]

Upon such a trial there are no costs; but the fees of the sheriff,

jurors and witnesses must be taxed by a judge of the court or the
county judge of the county and must be paid as follows:

1. If the jury by their verdict find the title or the right of possession
to the property claimed to be in the claimant, by the party at whose
instance the property was taken by the sheriff.

2. If they find adversely to the claimant with respect to all the
property claimed, by the claimant.

3. If they find the title or the right of possession to only a part of
the property claimed to be in the claimant, each party must pay his
own witnesses’ fees, and the sheriff’s and jurors’ fees must be paid,
one-half by each party to the inquisition.

Before notifying the jurors, the sheriff in his discretion, may require
each of the parties to the controversy to deposit with him such reason-
able sum as may be necessary to cover his legal fees and the jurors’
fees. The sheriff must return to each party the balance of the sum so
deposited by him, after deducting his fees lawfully chargeable to that
party, as prescribed in this section. [Civil Practice Act, § 104, being
L. 1920, ch. 925, as amended by L. 1921, ch. 199, in effect October 1,
1921.]

§ 19. PROCEEDINGS ON NEW SHERIFF ASSUMING OFFICE.

1. Where a new sheriff has been elected or appointed, and has quali-
fied and given the security required by law, the clerk of the county
must furnish to the new sheriff a certificate, under his hand and official
seal, stating that the person so appointed or elected, has so qualified
and given security.

2. Upon the commencement of the new sheriff’s term of office and the
service of the certificate on the former sheriff, the latter’s powers as

sheriff cease, except as otherwise expressly prescribed by law.!

 

10. Meaning of section. Section 182 of the Code from which subd. 1 was
derived, was interpreted by the old supreme court to mean that until the
170 COUNTY OFFICERS; JAILS.

County Law, § 195.

3. Within ten days after the service of the certificate, upon the former
sheriff, he must deliver to his successor:

(1.) The jail, or if there are two or more, the jails of the county, with
all their appurtenances, and the property of the county therein. :

(2.) All the prisoners then confined in the jail or jails.**

(8.) All process, orders, commitments, and all other papers and docu-
ments, authorizing, or relating to the confinement or custody of a prisoner,
or, if such a process, order, or commitment has been returned, a statement
in writing of the contents thereof, and when and where it was returned.

 

certificate of the clerk was served upon the old sheriff, he had authority to
execute process placed in his hands as sheriff, and that the powers of the old
sheriff did not cease until the powers of the new sheriff became complete.
Curtis v. Kimball, 12 Wend. 275.

The outgoing sheriff, while retaining possession of the office awa‘ting advent
of the new sheriff, is to be considered as his agent in receiving such process as
comes into his hands, until the transfer of the office is complete. Littlejohn
v. Leffingwell, 34 App. Div. 185, 54 N. Y. Supp. 536. ,

Qualifying. A sheriff does not lose his office by neglecting to give his bond
within twenty days after receiving notice of his election, if he execute and file it
within fifteen days after the commencement of his term. People v. Holley, 12
Wend. 481. “ Qualified’? means taken the oath of office. Curtis v. Kimball,
12 Wend. 275.

11. Delivery of prisoner. The power of the outgoing sheriff ceases after ten
days and the new one has no power unless the prisoner is assigned to him.
Matter of Irving, 3 How. Pr. (N. S.) 236; Hinds v. Doubleday, 21 Wend. 223.

The power of the outgoing sheriff as to prisoners is unchanged until the certifi-
cate is served upon him by the incoming sheriff. Feerick v. Conner, 12 Wk. Dig.
43.

A prisoner on his jail limits not assigned to the incoming sheriff by the out-
going sheriff cannot be deemed to be imprisoned. Matter of Irving, 3 How. Pr.
(N. 8.) 236.

An outgoing sheriff neglecting to deliver a prisoner to his successor is liable to
plaintiff in the execution. French v. Willet, 10 Abb. Pr. 99.

If a new sheriff regularly receives a prisoner he is answerable, though there
had been a previous voluntary escape; but plaintiff may elect which sheriff he
will hold, but he cannot hold both. Radson v. Turner, 4 Johns. 469.

A new sheriff is not liable for the escape of a prisoner who is on the limits on
bond and has not been assigned to him by his predecessor. Partridge v. Wester-
vélt, 18 Wend. 500. So where the sheriff dies and the under-sheriff neglects
to assign such prisoner to the new sheriff. Ridgway v. Barnard, 28 Barb. 613.

Where outgoing sheriff assigned to the incoming one a prisoner under mesne
process, but himself returned the writ, and the new sheriff subsequently took bail,
and after judgment the prisoner escaped, the new sheriff was held not liable
therefor because of the irregularity of the assignment in that he never had the
writ. Richard v. Porter, 7 Johns. 137.

As to information necessary to be given with a prisoner delivered to sheriff's

successor, see Tallmadge v. Richmond, 9 Johns. 85, revd. on another point,
16 Jokns. 307.
SHERIFFS AND CORONERS. 171
County Law, § 195.

(4.) All mandates, then in his hands, except such as he has fully
executed, or has begun to execute, by the collection of money thereon, or
by a seizure or of levy on money or other property, in pursuance thereof,
and in New York county all mandates. At the time of the delivery,
ihe former sheriff must execute an instrument, reciting the property,
documents, and prisoners delivered, specifying particularly the process
or other authority, by which each prisoner was committed and is de-
tained, and whether the same has been returned or is delivered to the new
sheriff. The instrument must be delivered to the new sheriff, who must
acknowledge, in writing, upon a duplicate thereof, the receipt of the
property, documents and prisoners, therein specified; and deliver such
duplicate and acknowledgment to the former sheriff. [Subd. 3, par. 4,
amended by L. 1920, ch. 212.]

4, Notwithstanding the election or appointment of a new sheriff, the
former sheriff must, except in New York county, return, in his own
name, each mandate which he has fully executed, and, except in New
York county, must proceed with and complete the execution of each
mandate which he has begun to execute, in the manner specified in para-
graph fourth of subdivision three of this section, except that all man-
dates issued against the wages, debts, earnings, salary, income from
trust funds or profits of a judgment debtor, shall be delivered over to
the new sheriff, who shall proceed with and complete the execution of
the same.” [Subd. 4, amended by L. 1910, ch. 418 and L. 1920, ch.
912. ]

5. When a person, arrested by virtue of an order of arrest, is confined,
either in jail, or to the liberties thereof, at the time of assigning and de-
livering the jail to the new sheriff, the order, if it is not then returnable,
must be delivered to the new sheriff, and be returned by him at the return

 

12. Authority of former sheriff. Where a sheriff prior to the expiration of
his term of office under a judgment of foreclosure advertised the premises for
sale upon a day after his term had expired, he had authority and was bound to
proceed with and complete the sale. Union Dime Savings Inst’n ‘vy. Andariese, 23
N.Y. 174.

A sheriff may complete the execution of a fieri facias after he has gone out of
effice. Wood v. Colvin, 5 Hill, 228. So he may sell and convey. Averill v.
Wilson, 2 Barb. 180. As to return, see Richards v. Porter, 7 Johns. 137.

Deczee, Where sheriff appointed to sell property in foreclosure has advertised
the same for sale before receiving his successor’s certificate, he is not required to
deliver the decree to his successor, since by the advertisement the seizure be-
came complete and rendered the property subject to the decree. Union Dime
Savings Inst’n v. Andariese, 83 N. Y. 174.

Executions not levied should be turned over, and where the new sheriff has
received such an execution an order will issue requiring him to make return
thereon or that attachment will issue against him. Holmes B. & H. v. Rogers, 50
Hun 600, 2 N. Y. Supp. 501, 18 N. Y. St. Rep. 652, 2 N. Y. Supp. 501.

Property seized. A sheriff cannot be compelled to deliver to his successor
nronerty seized by him by virtue of an attachment. McKay v. Harrower, 27
172 COUNTY OFFICERS; JAILS.
Penal Law, §§ 1838, 1839.

day thereof, with the proceedings of the former sheriff and of the new
sheriff thereon.

6. If the former sheriff neglects or refuses to deliver to his successor.
the jail, or any of the property, documents or prisoners in his charge, as
prescribed in this section, his successor must, notwithstanding, take posses-
sion of the jail, and of the property of the county therein, and the custody
of the prisoners therein confined, and proceed to compel the delivery of the
documents withheld, as prescribed by law.

%. If, at the time when a new sheriff qualifies, and gives the security
required by law, the office of the former sheriff is executed by his under-
sheriff, or by a coroner of the county, or a person specially authorized for
that purpose, he must comply with the provisions of this section, and per-
form the duties thereby required of the former sheriff.1*

_8. 'The provisions of this section shall also apply to the county of
New York. [County Law, § 195; B. C. & G. Cons. L., p. 805.]

§ 20. INJURY TO RECORDS AND MISAPPROPRIATION BY MINIS-
TERIAL OFFICERS.

A sheriff, coroner, clerk of a court, constable or other ministerial officer,
and every deputy or subordinate of any ministerial officer, who:

1. Mutilates, destroys, conceals, erases, obliterates or falsifies any record
or paper appertaining to his office; or,

2. Fraudulently appropiiates to his own use or to the use of another
person, or secretes with intent to appropriate to such use, any money,
evidence of debt or other property intrusted to him in virtue of his office,
is guilty of felony. [Penal Law, § 1838; B. C. & G. Cons. L., p. £044.]

§ 21. SHERIFFS AND OTHERS PERMITTING ESCAPES OR RE-
FUSING TO RECEIVE PRISONERS.
A sheriff, coroner, clerk of a court, constable or other ministerial officer
and every deputy or subordinate of any ministerial officer, who:
J. Receives any gratuity or reward, or any security or promise of one,

 

13. Liability of under-sheriff. Where a sheriff dies, who, at the expiration
of his term, has process not fully executed, his late under-sheriff is substituted
for him, assumes all his duties and liabilities, and is personally liable, although
the sureties of the late sheriff may be also liable) Newman v. Beckwith, 61
N. Y. 205.

A bond given by an under-sheriff to the sheriff covers moneys received by the
former after the latter’s final term has expired; he is bound to pay over to the ex-
sheriff. Stegman v. Hollingsworth, 39 N. Y. St. Rep. 18, 14 N. Y. Supp. 465.

Appointment of special person to execute a deed where sheriff died and there
was no under-sheriff. Sickles v. Hogeboom, 10 Wend. 562.
SHERIFFS AND CORONERS. 173

Penal Law, §§ 1839, 1840.

to procure, assist, connive at, or permit any prisoner in his custody to
escape, whether such escape is attempted or not; or,

2. Commits any unlawful act tending to hinder justice, is guilty of
a misdemeanor.

A conviction of a sheriff. or other officer also operates as a forfeiture of
his office, and disqualifies him forever thereafter from holding the same.

The governor shall, upon application, grant a hearing to a person convicted
under this section and if he be satisfied that the facts warrant it, he may,
by order, relieve such person from such disqualification. [Penal Law,
§ 1839, as amended by L. 1917, ch. 226; B. C. & G. Cons. L., p. 4045.]

An officer who, in violation of a duty imposed upon him by law to receive
a person into his official custody, or into a prison under his charge, wilfully
neglects or refuses so to do, is guilty of a misdemeanor. [Idem, § 1840.]

§ 22. TO ASSIST COMMISSIONER OF AGRICULTURE TO ENFORCE PROVI-
SIONS OF ANY NOTICE, ETC., PURSUANT TO ART. V OF THE AGRI-
CULTURAL LAW RELATING TO DISEASES OF DOMESTIC ANIMALS;
EXPENSES, HOW PAID.

The commissioner may call upon the sheriff, under-sheriff or deputy
sheriff in a county to carry out and enforce the provisions of any notice,
order or regulation which it may make pursuant to this article, and
every such officer shall obey every order and instruction received from
him in the premises. The expense incurred by any such officer in
carrying out and enforcing the provisions of such notice, order or reg-
ulation shall be a state charge, to be audited by the commissioner of agri-
culture and paid by the state treasurer on the warrant of the comp-
troller in the same manner as other state charges are paid, notwith-
standing the provisions of any local or special act fixing or limiting
the compensation or expenses payable by the county to its sheriff, un-
der-sheriff or a deputy sheriff. [Agricultural Law, § 112, in part, as
added by L. 1917, ch. 660, and amended by L. 1919, ch. 311.]
174 COUNTY OFFICERS; JAILS.

County Law, § 183.

CHAPTER XII

COUNTY JAILS.

Section 1. Sheriffs to have custody of jails.
2. Use of county jails.
3. Either of several jails may be used.
4. Number of rooms in county jail.
5. Custody and control of prisoners; civil prisoners to be kept

separate; women not to be kept in same room with men; com-
munication with counsel, etc.

6. Prisoners to be furnished with wholesome food; employment of
prisoners.

7. Prisoners to be furnished with reading matter; divine service.

8. Record of commitments and discharges, what to state.

9. United States prisoners to be received.

10. Calendars of names of prisoners, etc., to be presented to court.

11. Prisoners to be discharged if not indicted.

12. Suspension of habeas corpus during term of court.

13. Prisoner to be discharged if unable to pay fine.

14. Houses of detention for women, children and witnesses.

15. Boards of supervisors may establish and maintain county work-

houses.

16. Who may vis:t jails and workhouses.

17. Board of supe. visors to appoint jail physican.

18. Sale of liquors in jails; permit for use of liquors; penalties.

19. Service of papers in civil action to be made on prisoner in jail.

20. Removal of prisoner in case of an emergency.

21. Designation of jail of other ‘county or other place in same county
as a county jail; modification or revocation of designation;
copy of designation to be served.

22, Jail liberties, when designation is made.

23. Revocation of designation.

§ 1. SHERIFFS TO HAVE CUSTODY OF JAILS.

Each sheriff shall have the custody of the jails of his county and the
prisoners therein and such jails shall be kept by him, or by keepers ap-
pointed by him, for whose acts he shall be responsible.1 [County Law, §
183; B. C. & G. Cons. L., p. 800.]

 

1. Duties of state commissioners of prisons as to jails. The state commis-
sion of prisons was created by L. 1895, ch. 1026, pursuant to the authority cor-
COUNTY JAILS. 175
County Law, § 90.

§ 2. USE OF COUNTY JAILS.

Each county jail shall be used,

1. For the detention of persons duly committed to secure their attendance as
witnesses in any criminal ease;

2. For the detention of persons charged with crime, and committed for trial
or examination;

 

ferred upon the legislature by section 11 of art. 8 of the Constitution, which
authorizes the legislature to provide for a ‘‘ state commission of prisons, which
shall visit and inspect all institutions used for the detention of sane adults charged
with or convicted of crime, or detained as witnesses or debtors. This act was
repealed by L. 1907, ch. 381, and both acts were repealed by the Prison Law, which
continues the state commission of prisons. Sections 46-53 (sec. 46, as amended by
L. 1914, ch. 379; sec. 50, as amended by L. 1916, ch. 118; sec. 52, as amended by
L. 1918, ch. 364), of the Prison Law have reference to the duties of such commission
in connection with county jails and are here inserted in full.

General powers and duties of commission of prisons. The state commission of
prisons shall visit and inspect all institutions used for the detention of sane adults
charged with or convicted of crime, or detained as witnesses or debtors, excepting
such reformatories as are subject to the visitation and inspection of the state
board of charities; and shall; :

1. Aid in securing the just, humane and economic administration of all institutions
subject to its supervision. ;

2. Advise the officers of such institutions or in control thereof in the performance
of their official duties.

3. Aid in securing the erection of suitable buildings for the accommodation of
the inmates of such insttiutions, and approve or reject plans for their construction
or improvement. ‘

4. Investigate the management of all institutions made subject to the visitation
of the commission, and the conduct and efficiency of the officers or persons charged
with their management.

5. Secure the best sanitary conditions of the buildings and grounds of all such
institutions, and protect and preserve the health of the inmates.

6. Collect statistical information in respect to the property, receipts and expendi-
‘tures of said institutions and of any department of the state or any subdivision
thereof in charge of the same, and the number and condition of the inmates thereof.

7. Ascertain and recommend such system of employing said inmates as may, in
the opinion of said commission, be for the best interest of the public and of said
inmates and not in conflict with the provisions of the constitution relating to the
employment of prisoners. :

8. Close any city jail or police station, town or village jail or lockup which
is unsanitary or inadequate to provide for the separation and classification of
prisoners required by law. The powers and duties of the commission under
this subdivision shall be exercised in the following manner: The commission
shall cause a citation to be mailed to the mayor and the city clerk, in the case
of a city jail or police station; to the supervisor and town clerk: in the case of
a town jail or lockup, and to a trustee and village clerk, in the case of a village
jail or lockup, at least twenty days before the return day thereof, directing the
authorities of the city, town or village designated to appesr before such com-
mission at the time and place set forth in the citation, and show cause why
such city jail or police station, or town jail or lockup, or village jail or lockup,
shall not be closed. After a hearing thereon or upon the faiure to appear, such
commission is empowered to order the city jail or police station, town jail or
leckup, village jail or lockup designated in the citation closed within ninety
cays, during which time the city, town or village may review such order by
writ of certiorari, in the supreme court. Ninety days after the order to close
has been served by registered letter upon the mayor and city clerk, in case of
@ city jail or police station, upon the supervisor and town clerk, in case of a
town jail or lockup, and upon a village trustee and clerk in case of a village
jail or lockup, if no court review has been taken, and ninety days after the
order of such commission has been confirmed by the court, in case of court
review, the city jail or police station, town jail or lockup and village jail or
lockup designated in the order shall be closed, and it shall be unlawful to
confine or detain any person therein and any officer confining or detaining any
person ae shall be guilty of a misdemeanor. [Sub. 8, added by L. 1914,
ch. 379.
ch. 379; Prison Law, § 46, as amended by L. 1914, ch. 379.]

Visitation and inspection v1 iusuiuuvns. The institutions subject to the
176 COUNTY OFFICERS; JAILS,
County Law, § 90.

3. For the confinement of persons duly committed for any contempt, or upon
civil process;

4. or the confinement of persons convicted of any offense, other than a
felony, and sentenced to imprisonment therein, or awaiting transportation
under sentence to imprisonment in another county.

visitations of said commission may be visited and inspected by it or by any
member thereof or by its secretary, when authorized, or by any officer or
inspector duly appointed by it for that purpose at any and all times. Such
commission or any nember thereof may take proof and hear testimony relating
to any matter betore it, or before such member, upon any such visit or inspec-
tion. Any member or the secretary of such commission, when authorized, or any
officer or inspector duly appointed by it, shall have full access to the grounds,
buildings, books and papers relating to any such institution, and may require
from the officers and persons in' charge or control thereof any information he
may deem necessary in the discharge of his duties. Said commission may
prepare regulations according to which, and provide blanks and forms upon
which, such information shall be furnished, in a clear, uniform and prompt
manner, tor the use of the commission. Any superintendent, commissioner,
officer, or employee of such irstitution, or in charge or control thereof,
who shall refuse or cause admission to be refused to any member, officer or
inspector of the commission, for the purpose of visitation and inspection, or
who shall refuse or neglect to furnish, or to cause to be furnished, the
information required by the commission or by any of its members, officers or
inspectors, shall be guilty of a misdemeanor. Idem, sec. 47.

Orders of the commission directed to institutions or officers in charge
thereof. If it shall appear, after any such investigation, that the laws relating
to the constrnetion, management and affairs of any such institution and the
care, treatment and discipline of its inmates, are being violated, or that
inmates of any such institution are cruelly, negligently or improperly treated,
or inadequate provision is made for their sustenance, clothing, care, supervision,
or other condition necessary to their suitable and proper well being, said
board may apply for an order of the supreme court, directed to the proper
superintendent, commissioner, agent and warden, manager, keeper or other
officer of such institution or in control thereof, requiring him to modify such
treatment or apply such remedy, or both, as shall therein be specified. The
application for such order shall be made as prescribed in section fifty-two of this
chapter, and the court may thereupon make such order as may be just; a failure
to comply with the terms of such order shall be a contempt of court and
punishable as such. Any person to whom such an order is directed who shall
wilfully refuse to obey the same, shall likewise, upon conviction, be adjudged
guilty of a misdemeanor. Idem, sec. 48.

Reports of commission. The state commission of prisons shall annually
report to the legislature, in January of each year, its acts and proceedings
for the preceding year, with results and recommendations, which report shall
include the information obtained in its enquiries and investigations, and such
other matters relating to the institutions subject to its visitations as it may
deem necessary or proper. It may, in its discretion, and shall, when required
by the governor, or either house of the legislature, make other and special
reports. Idem, sec. 49.

Reports of wardens, et cetera. The agent and warden of every prison, the
superintendent or manager of every penitentiary, the keeper of every jail or
other institution used for the detention of sane adults charged with or con-
victed of crime or detained as witnesses or debtors, subject to the visitation
of the commission, shall, besides such information as may from time to time
he required of him by the state commission of prisons pursuant to the powers
hereinbefore conferred, on or before the first day of August in each and
COUNTY JAILS. 177

County Law, § 90.

5. The buildings, now used as the jails of the counties of the state,
shall continue to be the jails of those counties respectively, until other
buildings have been designated or erected for that purpose, according to
law. [County Law, § 90; B. C. & G. Cons. L., p. 762.]

 

every year, report to said commission the number of male and female persons
charged with crime and awaiting trial, the number convicted of crime, the number
detained ‘as witnesses and as debtors in his custody on the first day of July last
past, together with a statistical exhibit of the number of admissions, discharges
and deaths which have occurred within the past year, the nature of the charge,
the period of detention or sentence, and such other facts and information as the
commission may require. Idem, sec. 50, as amended by L. 1916, ch. 118.

Estimates to be furnished by certain officers. The said commission shall
have the further duty and authority to require the proper officials of the state
ard ihe political divisions thereof, and of all public institutions of the state, and
pclitical divisions thereof, supported wholly or in part by the state, or any
political division thereof, to furnish to said commission, annually, estimates
for each ensuing year of the articles which may be manufactured in penal
institutions, required for the use of the state or such political divisions, or
said institutions in their charge or under their management. Idem, sec. 51.

Enforcement of rights and powers of commission. Duties of the attorney-general
and district attorneys. The rights and powers conferred by this article upon tue
state commission of prisons, its members, officers and inspectors and each of them,
may be enforced by an order of the supreme court, or by indictment by the grand
jury of the county, or both. The application of such order shall be to a special
term or to the appellate division of the supreme court of the judicial district
or department, respectively, in which the institution complained of is situated
after at least twenty days notice to the offcer or board having charge of
such institution, of the time and place of making such application. A
copy of all the papers upon which the application is based shall be served
with the notice of such application. On such hearing the court may make such
order as may be just, and a failure’ to comply with the terms thercof shail be a
contempt of court and punishable as such. During the pendency of such an applica-
tion and prior to the hearing thereof before the appellate division, such commis-
sion may, by order to show cause, obtain a stay upon application to a special term
or to a justice of the supreme court in chambers restraining any municipal officers
from proceeding contrary to the determinations of the commission. Such stay
may be, in the discretion of the appellate division, continued penc:ng the determina-
tion of the original application. If, in the opinion of the commission, any matter
in regard to the management or affairs of any such institution, or any inmate or
person in any way connected therewith, require legal investigation or action of
any kind, notice thereof may be given by the commission, to the attorney-general,
or to the district attorney of the county, or both, and he or they shall thereupon
make inquiry and take such proceeding in the premises as he or they may deem
necesasry and proper. It shall be the duty of the attorney-general and of every
district attorney when so required to furnish such legal assistance, counsel or
advice as the commission may require in the discharge of its duties. Idem, sec. 52,
as amended by L. 1918, ch. 364. .

Misdemeanor. Except as in this article otherwise expressly provided, any person
who wilfully violates any of the provisions of this article shall be guilty of a mis-
demeanor. Idem, sec. 53.

Erection of jails. The board of supervisors may borrow money for the
erection of county buildings and for the purchase of sites therefor, and may
acquire, by purchase or otherwise, necessary real property for ocunty jails,
and may erect on such real property necessary buildings for the use of a jail.
See County Law, sec. 12, subds. 6, 13, ante, pp. 46, 49. If the county owns a
178 COUNTY OFFICERS; JAILS.
Prison Law, § 347; County Law, §§ 91, 92.

§ 3. EITHER OF SEVERAL JAILS MAY BE USED.

The sheriff of a county, in which there is more than one jail, may
confine a civil * and criminal prisoner in either; and may remove him
from one jail to another, within the county, whenever he deems it neces-
sary for his safe-keeping, or for his appearance at court."* [Prison Law,
§ 347; B. C. & G. Cons. L., p. 4370.]

§ 4. NUMBER OF ROOMS IN COUNTY JAIL.

Each county jail shall contain,

1. A sufficient number of rooms for the confinement of persons com-
mited on criminal process, or detained for trial, or examination as witnesses
in a criminal case, separately from prisoners under sentence ;

2. A sufficient number of rooms for the separate confinement of persons
committed on civil process, or for contempt ;

3. A sufficient number of rooms for the solitary confinement of pris-
oners under sentence. [County Law, § 91; B. C. & G. Cons. L., p. 763.]

§ 5. CUSTODY AND CONTROL OF PRISONERS; CIVIL PRISONERS
TO BE KEPT SEPARATE; WOMEN NOT TO BE KEPT IN
SAME ROOM WITH MEN; COMMUNICATION WITH COUNSEL,
ETC.

Each sheriff shall receive and safely keep, in the county jails of his
county, every person lawfully committed to his custody for safe-keeping,
examination or trial, or as a witness, or committed or sentenced to
imprisonment therein, or committed for contempt. THe shall not, without
lawful authority, Jet any such person out of jail. Persons in custody on
civil process, or committed for contempt, or detained as witnesses, shall
not be put or kept in the same room with persons detained for trial or
examination upon a criminal charge, or with convicts under sentence, Per-
sons detained for trial or examination upon a criminal charge shall not
be put or kept in the same room with convicts under sentence. Minors
shall not be put or kept in the same room with adult prisoners. A woman
detained in any county jail or penitentiary upon a criminal charge, or as
a convict under sentence, shall not be kept in the same room with a man;

 

site with a building thereon, it may appropriate a part of such buiia.xg as a
jail. Roach v. O’Dell, 33 Hun 320; affd. 99 N. Y. 635. The board of super-
visors has authority to direct the purchase of such articles of furniture a3
are necessary to properly equip and furnish the county jail, and an account
for articles so purchased is a proper county charge. Schenck v. Mayor, ete.,
of New York, 67 N. Y. 44.

1-a, Section cited. People ex rel. Murphy v. Holcomb (1920), 111 Mise.
460, 181 N. Y. Supp. 750.

* So in original.

 
COUNTY JAILS. 179

County Law, § 92.

and if detained on civil process, or for contempt, or as a witness, she
shall not be put or kept in the same room with a man, except with her
husband, in a room in which there are no other prisoners. If a woman
committed to any county jail or penitentiary is then the mother of a
nursing child in her care, under one year of age, or if a child be born to
such woman after her said commitment, such child may accompany its
mother to and remain in such institution until it is two years of age or until
the mother’s discharge from custody before the child reaches that age. The
sheriff, superintendent or other officer in charge of any county jail or
penitentiary shall cause such child, when it attains the age of.two years,
while its mother is still in custody, or at the expiration of the extension
of such time hereinafter mentioned, to be placed in an asylum for children
in this state, or may commit such child to the care and custody of some
relative or proper person willing to assume such care; provided, however,
that the said child shall continue to remain with its said mother in such
jail or pentitentiary after it becomes two years of age for such a period as the
physician employed to treat and visit prisoners in said jail or penitentiary
certifies in writing to be necessary or advisable. If such woman at the
time of such commitment shall be. the mother of, and have in her
exclusive care, a child more than one year of age which might otherwise
be left without care or guardianship, the justice or magistrate commiting
such woman shall cause such child to be committed to such an asylum as may
be provided for such purposes, or to the care and custody of some relative
or proper person willing to assume such care. All persons confined in a
county jail or penitentiary shall, as far as practicable, be kept separate
from each other, and shall be allowed to converse with their counsel or
religious adviser, under such reasonable regulations and restrictions as
the keeper of the jail may fix.2 Convicts under sentence shall. not be
allowed to converse with any other person, except in the presence of a
keeper. The keeper may prevent all other conversation by any other pris-
oner in the jail when he shall deem it necessary and proper. [County Law,
§ 92; B. C. & G. Cons. L., p. 763.]

 

2. Separation of prisoners. Section 345 of the Prison Law, provides that:
“A prisoner, arrested in a civil cause, must not be kept in a room in which
any prisoner, detained on a criminal charge or conviction is confined.” Section
346 provides that: ‘Male and female prisoners must not be put in the same
room; except that a husband and his wife may be put or kept together, in a
room wherein there are no other prisoners.” And in section 1875 of the Penal
Law it is provided that: “A sheriff or other officer, who wilfully violates any
of the foregoing provisions of sections one hundred and ten and one hundred
and eleven of the code of Civil Procedure; or sections three hundred and forty,
three hundred and forty-one, three hundred and forty-two, three hundred and
forty-three, three hundred and forty-four, three hundred and forty-five, and
180 COUNTY OFFICERS; JAILS.
County Law, § 93.

§ 6. PRISONERS TO BE FURNISHED WITH WHOLESOME FOOD;
EMPLOYMENT OF PRISONERS.

Prisoners detained for trial, and those under sentence, shall be provided
with a sufficient quantity of plain but wholesome food, at the expense of the
county ;? such food shall be purchased in the manner and subject to the regu-
lations provided in section two hundred and thirty-eight of this chapter;
but prisoners detained for trial may, at their own expense, and under the
direction of the keeper, be supplied with any other proper articles of food.
Such keeper shall cause each prisoner committed to his jail for imprison-
ment under sentence, to be constantly employed at hard labor when prac-
ticable, during every day, except Sunday, and the board of supervisors of
the county, or judge of the county, may prescribe the kind of labor at
which such prisoner shall be employed; and the keeper shall account, at
least annually, with the board of supervisors of the county, for the proceeds
of such labor. Such keeper may, with the consent of the board of super-
visors of the county, or the county judge, from time to time, cause such of
the convicts under his charge as are capable of hard labor, to be employed
outside of the jail in the same, or in an adjoining county, upon such terms
as may be agreed upon between the keepers and the officers, or persons,
under whose directions such convicts shall be placed subject to such regula-
tions as the board or judge may prescribe; and the board of supervisors
of the several counties are authorized to employ convicts under sentence
to confinement in the county jails, in building and repairing penal institu-
tions of the county and in building and repairing the highways in their re-
spective counties or in preparing the materials for such highways for sale
to and for the use of such counties or towns, villages and cities therein; and
to make rules and regulations for their employment; and the said board
of supervisors are hereby authoirzed to cause money to be raised by taxa-
tion for the purpose of furnishing materials and carrying this provision

 

three hundred and forty-six of the prison law, forfeits to the person aggrieved,
treble damages. He is also guilty of a misdemeanor, and shall be punished
accordingly. A conviction also operates as a forfeiture of his office.”

Liability of steriff for injuries to prisoner. The case of Gunther v. Johnson,
86 App. Div. 437; 55 N. Y. Supp. 869, was where a prisoner, while confined in the
county jail to await the action of the grand jury under a charge of grand larceny,
and, while in the custody of the sheriff of the county, had an altercation with a
prisoner who had been committed to the jail as a vagrant; on the following
morning when the prisoners were allowed the liberty of the corridor of the
jail, no keeper being present, the quarrel was resumed, and the plaintiff's
intestate struck the prisoner who ran after and stabbed him with a pocket
knife which such prisoner owned and used in shaving. It was held, in the
absence of evidence that the sheriff knew of any trouble in the jail, negligence
could not be predicated upon his failure to anticipate the attack of the
plaintiff's intestate upon the prisoner, or the subsequent felonious assault by
such prisoner.

3. Board of prisoners. Boards of supervisors are authorized to contract at
COUNTY JAILS. 181
County Law, §§ 94, 94a, 95.

into effect; and the courts of this state are hereby authorized to sen-
tence convicts committed to detention in the county jails to such
hard labor as may be provided for them by the board of supervisors.
This section as amended shall not affect a county wholly included with-
in a city. [County Law, § 93, as amended by L. 1917, ch, 352; B. C.
& G. Cons. L., 2d ed., p. 1484.]

§ 7. PRISONERS TO BE FURNISHED WITH READING MATTER; DIVINE
SERVICE.

Each keeper shall provide a bible to be kept in each room of the jail
in his charge, and he shall permit the persons therein confined, to be
supplied with other suitable and proper books and papers, and if prac-
ticable, he shall cause divine service to be conducted for the benefit of
the prisoners, at least once each Sunday, if there shall be room in the
prison that may be safely used for that purpose. [County Law, § 94;,
B. C. & G. Cons. L., 2d ed., p. 1485.]

Chaplains in Nassau county. The board of supervisors of the county
of Nassau is hereby authorized and empowered from time to time to
designate as chaplains to the county jail in such county not to exceed
two persons and to provide for the payment of their expenses. Such
expenses shall not exceed the annual sum of two hundred and fifty
dollars for each chaplain. [County Law, § 94a, as added by L. 1922,
ch. 222.]

§ 8. RECORD OF COMMITMENTS AND DISCHARGES, WHAT TO STATE.

Each keeper shall keep in a book, to be provided at the expense of
the county, a daily record of the commitments and discharges of all
prisoners delivered to his charge, which shall contain the date of en-
trance, name, offense, term of sentence, fine, age, sex, place of birth,
color, social relations, education, secular and religious, for what and
by whom committed, how and when discharged, trade or occupation,
whether so employed when arrested, number of previous convictions.*

The book containing such record shall be a public record, and shall
be delivered by each sheriff to his successor, and kept on file in the
office of the sheriff or keeper. [County Law, § 95; B. C. & G. Cons.
L., 2d ed., p. 1485.]

such times and on such terms as the board may by resolution determine,
with the sheriff of the county, when he is not by law in receipt of a salary
as such sheriff, for the board, maintenance and care and custody of prisoners
committed to the county jail. See County Law, sec. 12, sub. 5, ante. As to
contracts for the support of civil prisoners, see County Law, sec. 12, subd.
22, ante, p. 63.

4, Commitments to county jail. It is provided in section 2181 of the
Penal Law that: ‘‘Where a person is convicted of a crime, for which the pun-
ishment inflicted is imprisonment for a term of less than one year, the impris-
onment must be inflicted by confinement in the county jail or place of confine-
ment designated by law to be used as the jail of the county, except when.
otherwise specially prescribed by statute.”” Where a minor under the age of
sixteen is convicted of a crime he may, instead of being sentenced to fine
or imprisonment, be placed in charge of any suitable person or institu-
tion willing to receive him. A child under the age of sixteen years who is
committed for misdemeanor must be committed to some reformatory, char-

 
182 COUNTY OFFICERS; JAILS.
County Law, §§ 96, 97; Code Crim. Proc., §§ 25, 222-d.

§ 9. UNITED STATES PRISONERS TO BE RECEIVED.

Such keeper shall receive and keep in his jail every person duly com-
mitted thereto, for any offense against the United States, by any court or
officer of the United States, until he shall be duly discharged; the United
States supporting such person during his confinement; and the provisions
of this article, relative to the mode of confining prisoners and convicts,
shall apply to all persons so committed by any court or officer of the United
States. [County Law, § 96; B. C. & G. Cons. L., p. 766.]

§ 10. CALENDARS OF NAMES OF PRISONERS, ETC., TO BE PRE-
SENTED TO COURT.

Such keeper shall present to the court at the opening of every term of
the supreme court, and at every term of the county court, having a grand
jury, to be held in his county, a calendar stating:

1. The name of every prisoner then detained in such jail.

2. The time when he was committed, and by virtue of what precept.

3. The cause of his detention. [County Law, § 97; B. C. & G. Cons.
L., p. 766.]

§ 11. PRISONERS TO BE DISCHARGED IF NOT INDICTED.

Within twenty-four hours after the discharge of any grand jury by
any supreme or county court, the court shall cause every person con-
fined in jail on a criminal charge, who shall not have been indicted, to
be discharged without bail, unless satisfactory cause shall be shown for
his further detention, or if the case may require, upon bail until
the meeting of the next grand jury in the county. [Code Crim. Proe.,
sec. 222d. ]

§ 12. SUSPENSION OF HABEAS CORPUS DURING TERM OF COURT.
During the session of the supreme court in any county, no person de-

 

itable or other institution authorized by law to receive and take charge of
minors. See Penal Law, sec. 2194.

Sentences to penitentiaries. Where a board of supervisors has contracted
with another county for the custody of prisoners in a penitentiary, it is the
duty of a committing magistrate to sentence prisoners for terms of sixty days
or more to such penitentiary. If the term imposed is less than sixty days,
the sentence should be to the county jail. See Prison Law, sec. 320.

6. Disorderly persons. It is provided in section 908 of the Code of Crim-
inal Procedure that: ‘‘The keeper of every prison to which disorderly per-
sons may be committed must return to the County Court of the county on
the first day of each term, a list of the persons so committed and then in his’
custody with the nature of the offense of each, the name of the magistrate
COUNTY JAILS. 183

County Law, §§ 98, 99.

tained in a county jail of such county, upon a criminal charge, shall be
removed therefrom by writ of habeas corpus, unless such writ shall have
been issued by or shall be made returnable before such court.? [Code
Crim. Proc., sec. 25.]

§ 13. PRISONER TO BE DISCHARGED IF UNABLE TO PAY FINE.
When any person shall be confined in a jail for the nonpayment of a
fine, not exceeding two hundred and fifty dollars, imposed for any criminal
offense, and against whom no other cause of detention shall. exist, on
satisfactory proof being made to the County Court of the county in which
such prisoner may be confined, that he is-‘unable, and has been ever since
his conviction, to pay such fine, the court may, in its discretion, order his
‘discharge.* [County Law, § 98; B. C. & G. Cons. L., p. 766.]

§ 14. HOUSES OF DETENTION FOR WOMEN, CHILDREN AND WIT-
NESSES.

The board of supervisors of any county, except the county of Kings,
may procure, by lease or purchase, a suitable place or places, other than
the jail, for the safe and proper keeping and care of women and children
charged with crime not punishable by death or imprisonment in state
prison for a term exceeding five years or with second offense, and persons
detained as witnesses, to be termed houses of detention; and when so
provided, any magistrate in the county shall commit women and girls, and
boys under sixteen years of age, and all persons held as witnesses thereto
instead of the jail. The sheriff shall have the same charge and control
of such house, and shall be entitled to the same compensation for the care
and keeping of prisoners therein, as in the county jail. [County Law,
§ 99; B. C. & G. Cons. L., p. 766.]

 

by whom he was committed, and the term of his imprisonment.” The persons
here referred to are persons committed as disorderly persons on failure to give
security as provided in sec. 997 of the Code of Criminal Procedure.

For form of calendar to be presented to criminal courts as required in the
above section, see Form No. 10, post.

7. Suspension of writ of habeas corpus. The session of a court con-
tinues for the purpose of a suspension of habeas corpus until the grand jury
‘is actually discharged from its work; the absence of the judge and the trial
of the jury is not a termination of the court within the meaning of the statute.
See Matter of Taylor, 8 Misc. 159; People v. Sullivan, 115 N. Y. 185; 21 N. EB.
1089; People v. Barrett, 56 Hun, 351, 9 N. Y. Supp. 321.

8. Remission of fines. It is provided in sec. 484 of the Code of Criminal
Procedure that: “Any court of record, except an inferior court of local
jurisdiction, which has imposed a fine for any criminal offense, or the pre-
184 COUNTY OFFICERS; JAILS.
County Law, §§ 100, 101.

§ 15. BOARDS OF SUPERVISORS MAY ESTABLISH AND MAINTAIN
COUNTY WORKHOUSES.

The board of supervisors of any county may establish and maintain a
workhouse for the confinement of persons convicted within the county of
crimes and criminal offenses, the punishment for which is imprison-
ment in the county jail, and may provide for the imprisonment
and employment therein of all persons sentenced thereto, and any court
or judicial officer may sentence such person to such workhouse instead
of to the county jail.° [County Law, § 100; B. C. & G. Cons. L., p. 707.]

§ 16. WHO MAY VISIT JAILS AND WORKHOUSES.

The following persons may visit at pleasure all county jails and work-
houses: The governor and lieutenant-governor, secretary of state, comp-
troller and attorney-general, members of the legislature, judges of the court
of appeals, justices of the supreme court and county judges, district at-
torneys and every minister of the gospel having charge of a congregation
in the town in which such jail or workhouse is located. No other person not
otherwise authorized by law shall be permitted to enter the rooms of a
county jail or workhouse in which convicts are confined, unless under such
regulations as the sheriff of the county shall prescribe.° [County Law,
§ 101; B. C. & G. Cons. L., p. 767.]

 

siding judge thereof, or any judge authorized to preside therein, shall have
power in his discretion, on five days’ notice to the district attorney of the
county in which such fine was imposed, to remit such fine, or any portion
thereof. In case of a fine imposed by a court not of record or by any in-
ferior court of local jurisdiction, for any criminal offense whatever, the
county judge of the county in which the fine was imposed, and in case of a
fine imposed by such a court in the city of New York the Court of General
Sessions, or any judge thereof, upon five days’ notice to the district attorney
of the county in which such fine was imposed, shall have the same power.”

9. Penitentiaries are of the same nature as workhouses, and it is proba-
ble that under the above section boards of supervisors may establish and
maintain penitentiaries.

10. Visitation of jails ard workhouses. Any member of the state com-
mission of prisons or its secretary or other authorized agent shall be admitted
into the jails for the purpose of visitation or inspection. Prison Law, § 47,
ante, p 171. Members of the execvtive committee of the prison association
of New York or such committees as they shall from time to time appoint,
have the power of visitation of county jails upon an order granted by one
of the judges of the Supreme Court. See L. 1846, ch. 163, sec. 6. Members
of the grand jury are entitled to free access at all reasonable times to county
jails. See Code Crim. Proc., sec. 261.

™enal provisions as to communications with prisioners. Section 1691 of the
Penal Law, is as follows:
COUNTY JAILS. 185
Prison Law, §§ 348, 349; Penal Law, § 1791.

§ 17. BOARD OF SUPERVISORS TO APPOINT JAIL PHYSICIAN.

The board of supervisors of each county, except New York, must
appoint some reputable physician, duly authorized to practice medicine,
as the physician to the jail of the county. If there is more than one jail
they must appoint a physician to each. The physician to a jail holds his
office at the pleasure of the board which appointed him, except in the county
of Kings. In that county, the term of his office is three years. [Prison
Law, sec. 348; B. C. & G. Cons. L., p. 4370.]

§ 18. SALE OF LIQUORS IN JAILS; PERMIT FOR USE OF LIQUORS;
PENALTIES.

Strong, spirituous, or fermented liquor, or wine, shall not, on any
pretence, be sold within a building used and established as a jail. Spirit-
uous, fermented or other liquors, except cider, and that quality of beer
called table-beer, shall not be brought into a jail for the use of a person
confined therein, without a written permit by the physician to the jail,
which must be delivered to and kept by the keeper thereof, specifying the
quantity and kind of liquor which may be furnished, the name of the
civil prisoner for whom, and the time during which the same may be
furnished: [Prison Law, § 349; B. C. & G. Cons. L., p. 4370.]

A permit by a jail physician as specified in the last section shall not be
granted, unless the physician is satisfied, that the liquor allowed to be
furnished, is necessary for the health of the civil prisoner, for whose use
it is permitted ; and that fact must be stated in the permit. [Idem, § 350.]

A person who brings into or sells in a jail, strong, spirituous, fermented,
or other liquor, or wine, contrary to the provisions of sections three hundred
and forty-nine or three hundred and fifty of the prison law; or a sheriff,
keeper of a jail, assistant keeper, or officer, or person employed in or
about a jail, who knowingly suffers liquor or wine to be sold or used
therein, contrary to either of said sections, is guilty of a misdemeanor,
and shall be punished accordingly. A conviction also operates as a for-
feiture of his office. [Penal Law, § 1791; B. C. & G. Cons. L., p. 4039.]

 

“A person who: #

“1. Not being authorized by law visits any state prison, reformatory, peni-
tentiary, county jail or other place for the detention of persons convicted of
crime or communicates with any prisoner therein without the consent of the
agent or warden, superintendent, keeper, sheriff or other person having charge
thereof or without such consent brings into or conveys out of a state prison,
reformatory, penitentiary, county jail or other place for the detention of
persons convicted of crime, any letter, information or writing to or from any
prisoner; or,

“2. Conveys in or takes from such prison, reformatory, penitentiary, eounty
jail or other place for the detention of persons convicted of crime, or whe
186 COUNTY OFFICERS; JAILS.
Civil Practice Act, §§ 165, 166; Prison Law, §§ 351, 354.
§ 19. SERVICE OF PAPERS TO BE MADE ON PRISONER IN JAIL.

A sheriff or jailor upon whom a paper, in an action or special pro-
ceeding, directed to a prisoner in his custody, is lawfully served, or to
whom such a paper is delivered for a prisoner, must deliver the same
to the prisoner within two days thereafter, with a note thereon of the
time of the service thereof upon or the receipt thereof by him."

For a neglect or violation of this section, the sheriff or jailor guilty
thereof is liable to the prisoner for all damages occasioned thereby.
[Civil Practice Act, § 166, as transferred from Code Civ. Proc., § 131,
by L. 1920, ch. 925.]

Subject to reasonable regulations, which the sheriff may establish
for that purpose, a sheriff, jailor or other officer who has the custody of
a prisoner must permit such access to him as is necessary, for the per-
sonal service of a paper in an action or special proceeding to which the
prisoner is a party and which must be personally served. [Civil Prac-
nee 095) § 165, as transferred from Code Civil Proc., § 132, by L. 1920,
ch. ,

§ 20. REMOVAL OF PRISONERS IN CASE OF AN EMERGENCY.

If, by reason of a jail, or a building near a jail, being on fire, there
is reason to apprehend that some or all of the prisoners confined in the jail,
may be injured, or may escape, the sheriff or keeper of the jail may, in
his discretion, remove them to some safe and convenient place, and there
confine them, until they can be safely returned to the jail; or, if the jail
is destroyed, or so injured, that it is unfit or unsafe for the confinement of
the prisoners, until a designation is made, as prescribed in section three,
hundred and fifty-one of this article. [Prison Law, § 354; B. C. & G.
Cons. L., p. 4371.]

§ 21. DESIGNATION OF JAIL OF OTHER COUNTY OR OTHER
PLACE IN SAME COUNTY AS A COUNTY JAIL; MODIFICA-
TION OR REVOCATION OF DESIGNATION; COPY OF DESIG-
NATION TO BE SERVED.

If there is no jail in a county; or the jail becomes unfit or unsafe for
the confinement of some or all of the prisoners, civil or criminal, or is
destroyed by fire or otherwise; or if a pestilential disease breaks out in
the jail, or in the vicinity of the jail, and the physician to the jail

 

personally or through any other person or persons gives, sells, furnishes or
otherwise delivers to any prisoner or prisoners in custody any drug, liquor
or any article prohibited by law or by the rules of the superintendent, keeper,
sheriff, board of managers or other person, or official having charge or control
thereof; is guilty of a misdemeanor.”

11. An execution against a person is not a paper within the meaning of
this section. See Matter of Johnson, 21 Abb. N. C. 172.
COUNTY JAILS. 18”
Prison Law, §§ 352, 358, 356, 363, 367.

certifies that it is likely to endanger the health of any or all of the prisoners
in the jail; the county judge, or, in the city and county of New York,
the presiding justice of the Appellate Division of the Supreme Court of
the first department, must, by an instrument in writing, filed with the
clerk of the county, designate another suitable place within the county,
or the jail of a contiguous county, for the confinement of some or all of the
prisoners, as the case requires. The place so designated thereupon becomes,
to all intents and purposes, except as otherwise prescribed in this article,
the jail of the county for which it has been so designated, and for the
purposes expressed in the instrument designating the same. [Prison Law,
§351; B. C. & G. Cons. L., p. 4370.]

The designation may be modified or revoked, by the judge making
the same, by a like instrument in writing, filed with the clerk of the
county. [Idem, § 352.]

The county clerk must serve a copy of the designation, duly certified
by him, under his official seal, on the sheriff and keeper of the jail of
a contiguous county so designated. The sheriff of that county must,
upon the delivery of the sheriff of the county for which the designation
is made, receive into his jail, and there safely keep, all persons who may
be lawfully confined therein, pursuant to this article; and he is responsible
for their safe keeping, as if he was the sheriff of the county for which the
designation is made. [Idem, § 353.]

If the county judge, or the presiding judge of the appellate division
of the supreme court of the first department, is absent or unable to act,
or his office is vacant, a designation, or the revocation or modification there-
of, as prescribed in this article, may be made, in any county, except New
York, by the special county judge or the district attorney, or, in the city -
and county of New York, by any justice of the appellate division. [Idem,
§ 356.]

§ 22. JAIL LIBERTIES, WHEN DESIGNATION IS MADE.

If a prisoner has been admitted to the liberties of the jail of the
county, for which the designation is made, pursuant to section three
hundred and fifty-one of this chapter, he must, notwithstanding, re-
main within those liberties; but he may be removed by the sheriff, to
whom he has given bond for the liberties, to the jail or other place so
designated, and confined therein, in a case where the sheriff might con-
fine him in the jail of his own county. [Prison Law, § 363, as transfer-
red, without change of substance, from Code Civ. Proc., § 138, by L.
1920, ch. 933.]

If a person, who is arrested, before or after the designation of another
jail or place of confinement by the sheriff of the county for which the
designation is made, becomes entitled after the designation, and be-
188 COUNTY OFFICERS; JAILS.
Prison Law, §§ 368, 369, 369-a.

fore his removal, to the liberties of the jail, he must be admitted to the
liberties of the jail of that county, as if the designation had not been
made; but he may be removed by the sheriff to the jail, or other place,
so designated, and confined therein, in a case where the sheriff might
confine him in the jail of his own county. [Prison Law, § 367, as
transferred, without change of substance, from Code Civ. Proe., § 139,
by L. 1920, ch. 933.

If a person confined in or removed to the jail of a contiguous county,
designated as prescribed in article thirteen of this chapter, becomes en-
titled to the liberties of the jail, the sheriff of that county must admit
him to the jail liberties, as if he had been originally arrested by that
sheriff, on a mandate directed to him. [Prison Law, § 368, as transfer-
red, without change, from Code Civil Proe., § 140, by L. 1920, ch. 933.]

§ 23. REVOCATION OF DESIGNATION.

When a jail is erected for the county, for whose use the designation
pursuant to section three hundred and fifty-one of this chapter was
made, or its jail is rendered fit and safe for the confinement of pris-
oners, or the reason for the designation of another jail or place has
otherwise ceased to be operative, the designation must be revoked, as
prescribed in this article, and section three hundred and fifty-two of
this chapter. [Prison Law, § 369, as transferred, without change, from
Code Civ. Proe., § 141, by L. 1920, ch. 933.]

The county clerk must immediately serve a copy of the revocation,
duly certified by him under his official seal, upon the sheriff of the
same county; who must remove the civil and criminal prisoners belong-
‘ing to his custody, and confined without his county, to his proper jail.
If a prisoner has been admitted to the jail liberties in the other county,
he must also be removed; and he is entitled to the liberties of the jail
of the county, to which he is removed, without a new bond, as if he
had been originally admitted to the jail liberties in that county; and
the bond given by him applies accordingly to those liberties. [Prison
Law, § 369-a, as transferred, without change of substance, from Code
Civ. Proc., § 142, by L. 1920, ch. 933.]
~

CIVIL PRISONERS; JAIL LIBERTIES. 189

Prison Law, § 24; Civil Rights Law, § 72.

CHAPTER XIIL
CIVIL PRISONERS; JAIL LIBERTIES.

Section 1. Civil prisoners, when arrested; how long imprisoned.

2. Support of civil prisoners; sheriff not to charge for food nor
keeping prisoners out of jail; support of civil prisoners out
of jail; sheriff not to receive room rent.

3. Frisorer conveyed through other counties.

4. Civil prisoners by virtue of process of United States courts; sheriff
or jailer may receive compensation for services.

5. Civil prisorer, wren sick may be removed.

6. Jail limits, how established; copy cf resolution of board of super-
visors to be served on jailer.

7. Boundaries of jail limits, how designated.

8. Civil prisoner, when entitled to jail liberties; undertaking, how
executed; effect of undertaking.

9. Surrender of civil prisoner upon jail limits.

10. Escape of civil prisoner, what constitutes.

11. Liability of sheriff for escape.

12. When sheriff to produce civil prisoner who has been indicted.

13. Confinement of prisoner committed for contempt.

§ 1. CIVIL PRISONERS, WHEN ARRESTED; HOW LONG IMPRIS-
ONED.

A person arrested, by virtue of an order of arrest, in an action or
special proceeding brought in a court of record; or of an execution
issued upon a judgment rendered in a court of record; or surrendered
in exoneration of his bail; must be safely kept in custody, in the man-
ner prescribed by law, and except as otherwise prescribed by law,
at his own expense, until he satisfies the judgment rendered against
him, or is discharged according to law. [Prison Law, § 24, as transfer-
red, without change of substance, from Code Civ. Proc., § 110, by L.
1920, ch. 933.]

No person shall be imprisoned within the prison walls of any jail for
a longer period than three months under an execution or any other
mandate against the person to enforce the recovery of a sum of money
less than five hundred dollars in amount or under a commitment wnon
a fine for contempt of court in the nonpayment of alimony or counsel
fees in a divorce case where the amount so to be paid is less than the
190 COUNTY OFFICERS; COUNTY JAILS.
Civil Rights Law, § 72.

sum of five hundred dollars; and where the amount in either of said
cases is five hundred dollars or over, such imprisonment shall not con-
tinue for a longer period than six months. It shall be the duty of the
sheriff in whose custody any such person is held to discharge such per-
son at the expiration of said respective periods without any formal ap-
plication being made therefor. No person shall be imprisoned within
the jail liberties of any jail for a longer period than six months upon
any execution or other mandate against the person, and no action shall
be commenced against the sheriff upon a bond given for the jail liber-
ties by such person. Notwithstanding such a discharge in either of the
above cases, the judgment creditor in the execution, or the person at
whose instance the said mandate was issued, has the same remedy
against the property of the person imprisoned which he had before
such execution or mandate was issued; but the prisoner shall not be
again imprisoned upon a like process issued in the same action or
arrested in any action upon any judgment under which the same
may have been granted. Except in a case hereinbefore specified noth-
ing in this section shall effect a commitment for contempt of court.
[Civil Rights Law, § 72, as transferred, without change of substance,
from Code Civil Proe., § 111, by L. 1920, ch. 924.]

 

1. The common law rule that the imprisonment of the defendant satisfies
the judgment so as to prevent further process no longer obtains, being ex-
pressly changed by section 111 of the Code of Civil Proc., which expressly
provides that notwithstanding the discharge of the judgment debtor the
creditor has the same remedy against the property of the person imprisoned
that he had before the execution was issued. Hurlburt v. Reid, 190 App.
Div. 176, 179 N. Y. Supp. 421.

Application of section. This section refers only to a final process or
mandate after an adjudication fixing the amount due; it does not include
orders of arrest issued at the time of the commencement of an action or be-
fore any recovery. Levy v. Salomon, 105 N. Y. 529; 12 N. B. 53, 19 Abb.
N. C. 52; In re Coyne, 18 Civ. Proc. R. 397; 13 N. Y. Supp. 797. It has
reference to that class of defendants who are actually confined in jail or
within the jail liberties. Wright v. Grant, 11 Civ. Proc. R. 407; 18 Abb. N,
C. 451. See, also, People ex rel. Frost v. Grant, 10 Civ. Proc. R. 158, revd.
on other grounds. But an imprisonment of the defendant for contempt on
an interlocutory order before judgment will not prevent his subsequent
imprisonment for disobedience to a final judgment in the same action.
Reese v. Reese, 46 App. Div. 156, 61 N. Y. Supp. 760. See, also, Chadwick
v. Chadwick, 170 App. Div. 328, 156 N. Y. Supp. 190; People ex rel. Wolfe
v. Johnson, 194 App. Div. 451, 185 N. Y. Supp. 452.

The object of the section is to limit the period of imprisonment to three
months in case of actual confinement, and to six months in case of imprison-
ment within the jail liberties. In computing the term to which the im-
prisonment is limited, for contempt of court in the non-payment of alimony,
the time during which the person against whom the process runs is out of
jail, in the custody of his counsel pending habeas corpus proceedings, is not
to be included. People ex rel. Clark v. Grant, 111 N. Y. 584; 19 N. E. 281.

Not to be again imprisoned upon a like process in same action. Where
a defendant has been arrested and imprisoned for the non-payment of alimony
previously directed to be paid by the judgment, and remains in prison under
the commitment, because of such default of payment, for the full term for
which he could be imprisoned, he is not thereafter liable to arrest and im-
prisonment because of the non-payment of alimony subsequently becoming
payable, as the above section prohibits the imprisonment of the party upon a
like process, not for the non-payment of the same sum of money, but under
a like process issued in the same action. Winton v. Winton, 53 Hun 4, 5. N.
Y. Supp. 537, affd. 117 N. Y. 623.
CIVIL PRISONERS; JAIL LIBERTIES. 191
Prison Law, §§ 340-344.

§ 2. SUPPORT OF CIVIL PRISONERS; SHERIFF NOT TO CHARGE
FOR FOOD NOR KEEPING PRISONERS OUT OF JAIL; SUP-
PORT OF CIVIL PRISONERS OUT OF JAIL; SHERIFF NOT TO
RECEIVE ROOM RENT.

In any county, if a prisoner, actually confined in jail, makes oath before
the sheriff, jailer, or deputy jailer, that he is unable to support himself
during his imprisonment, his support is a county charge. This subdivision
shall also apply to the county of New York. [County Law, § 240, sub. 19;
B. C. & G. Cons. L., p. 827.]

A sheriff or other officer shall not charge a civil prisoner, with any
sum of money, or demand, or receive from him money, or any valuable
thing, for any drink, victuals or other thing, furnished or provided
for the officer, or for the prisoner, at any tavern, alehouse, or public
victualing or drinking house. [Prison Law, § 340; B. C. & G. Cons.
L., p. 4368.]

A sheriff or other officer shall not demand or receive from a civil pris-
oner, while in his custody, a gratuity or reward, upon any pretence, for
keeping the prisoner out of jail; for going with him or waiting for him
to find bail, or to agree with his adversary; or for any other purpose.
[Idem, § 341.]

If a person arrested in a civil cause is kept in a house, other than the
jail of the county, the officer arresting him, or the person in whose
custody he is, shall not demand or receive from him any greater sum,
for lodging, drink, victuals, or any other thing, than has been thereto-
fore prescribed by the court of sessions or.county court of the county;
or, if no rate has been prescribed by the court of sessions or county
court, than is allowed by a justice of the peace of the same town or
city, upon proof that the lodging or other thing was actually furnished,
at the request of the prisoner. And such an officer or person shall not,
in any case or upon any pretext, demand or receive compensation for
strong, spirituous, or fermented liquor, or wine, sold or delivered to
the prisoner. [Idem, § 342.]

A civil prisoner arrested and kept in a house, other than the jail of
the county, may send for and have beer, ale, cider, tea, coffee, milk,
and necessary food and such bedding, linen and other necessary things,
as he thinks fit, from whom he pleases, without detention of the same
or any part thereof by, or paying for the same, or any part thereof to,
ca arresting him, or the person in whose custody he is. [Idem,

3438.

A sheriff, jailor, or other officer, shall not demand or receive money,
or any valuable thing, for chamber rent in a jail; or any fee, compen-

 

A maximum of imprisonment only is fixed. Matter of Locke, 174 App.
Div. 287, 160 N. Y. Supp. 431.

Bond; discharge of by operation of law. Rosenzwirz v. U. S. F. & G. Co.,
151 N. Y. Supp. 237.

Secticn cited. Stewart v. Smith, 186 App. Div. 755, 175 N. Y. Supp. 468.

2. As to contracts with sheriff made by the board of supervisors for the sup-
port and maintenance of civil prisoners, see County Law, § 12, subd. 22, ante.
192 COUNTY OFFICERS; COUNTY JAILS.
Prison Law, §§ 22, 23, 355; Civ. Rights Law, § 22.

sation or reward, for the commitment, detaining in custody, release, or
discharge of a civil prisoner, other than the fees expressly allowed
therefor by law. [Idem, § 344.]

§ 3. PRISONER CONVEYED THROUGH OTHER COUNTIES.

A sheriff or other officer, who has lawfully arrested a civil prisoner,
may convey his prisoner through one or more other counties, in the
ordinary route of travel, from the place where the prisoner was ar-
rested, to the place where he is to be delivered or confined. [Prison
Law, § 23, as transferred, without change of substance, from Code Civ.
Proe., § 118, by L. 1920, ch. 933.]

A prisoner conveyed to jail through another county by a sheriff or
other officer pursuant to law, or the officer having him in custody, is
not liable to arrest in any civil action or special proceeding, while pass-
ing through another county. [Civil Rights Law, § 22, as amended by
L. 1920, ch. 924.]

§ 4. CIVIL PRISONERS BY VIRTUE OF PROCESS OF UNITED STATES
COURTS; SHERIFF OR JAILOR MAY RECEIVE COMPENSATION
FOR SERVICES.

A sheriff must receive into his jail and keep a prisoner, committed to
the same, by virtue of civil process issued by a court of record, insti-
tuted under the authority of the United States, until he is discharged
by the due course of the laws of the United States, in the same manner
as if he was committed by virtue of a mandate in a civil action, issued
from a court of the state. The sheriff may receive, to his own use,
the money payable by the United States for the use of the jail. A
sheriff, or jailor, to whose jail a civil prisoner is committed, as pre-
scribed herein, is answerable for his safe keeping, in the courts of the
United States, according to the laws thereof. [Prison Law, § 22, as
transferred, without change of substance, from Code Civ. Proe., §§ 133,
134, by L. 1920, ch. 933.]

§ 5. CIVIL PRISONER, WHEN SICK MAY BE REMOVED.

If the physician to a jail, or, in case of a vacancy, a physician acting
as such, and the warden or jailor, certifying in writing, that a prisoner,
confined in the jail in a civil cause, is in such a state of bodily health,
that his life will be endangered, unless he is removed to a hosnital for
treatment, the county judge, or, in the city and county of New York,
one of the justices of the supreme court, must, uwnon anniication, make
an order, directing the remoyal of the prisoner to a hospital within the
county, designated by the judge; or, if there is none, to such nearest
hospital as the judge directs; that the prisoner be kept in the custody
of the chief officer of the hospital, until he has sufficiently recovered
from his illness, to be safely returned to the jail: that the chief officer
of the hospital then notify the warden or jailor, and that the latter
thereupon resume custody of the prisoner. [Prison Law, § 355; B. ©.
& G. Cons. L., 2d ed., p. 6461.]

Ifa prisoner in custody by virtue of an execution actually escapes
while going to, remaining at or returning from a hosnital to which he
has been ordered removed pursuant to section three hundred and
CIVIL PRISONERS; JAIL LIBERTIES. 193

Prison Law, §§ 357, 358, 360; Civil Practice Act, §§ 769, subd.
2, 832; L. 1899, ch. 443.

fifty-five of the prison law, a new execution may be issued against his per-
son. [Civil Practice Act, § 769, subd. 2.]

If a prisoner be in custody by virtue of an order of arrest, actually
escapes, while going to, remaining at, or returning from a hospital to which
he has been ordered removed pursuant to section three hundred and fifty-
five of the prison law, a new order of arrest may be granted, upon proof by
affidavit of the facts specified in this section, without. other proof, and
without an undertaking. [Civil Practice Act, § 832.]

§ 6. JAIL LIMITS, HOW ESTABLISHED; COPY OF RESOLUTION OF
BOARD OF SUPERVISORS TO BE SERVED ON JAILOR.

The following are the liberties of the jail for each of the counties
specified, to wit:

For the county of New York, the whole of said county;

For the county of the Bronx, the whole of said county ;%

For the county of Onondaga, the whole of the city of Syracuse;

For the county of Monroe, the whole of the city of Rochester;

For the county of Erie, the whole of the city of Buffalo;

For the county of Westchester the whole of the city of White Plains;

For the county of Dutchess, the whole of the city of Poughkeepsie;

For the county of Kings, the whole of that county;

For the county of Albany, the whole of the city of Albany;

For the county of Schenectady, the whole of the city of Schenectady ;

For the county of Jefferson, the whole of the city of Watertown;

For the county of Herkimer, the whole of the village of Herkimer;

For the county of Rensselaer, the whole of the city of Troy;

For the county of Niagara, the whole of the city of Lockport;

For the county of Steuben, the whole of the village of Bath;

For the county of Nassau, the whole of the town of Hempstead;

For the county of Broome, the whole of the city of Binghamton;

For the county of Genesee, the whole of the village of Batavia.
[Prison Law, § 357, as amended by L. 1911, ch. 174, L. 1915, ch. 62, L.
1917, ch. 122, and L. 1921, ch. 296.]

The liberties of the jail in each of the other counties of the state, as
heretofore established, shall continue to be the liberties thereof, until
they are altered, or new liberties are established, as prescribed by
law [Idem, § 358.]

The liberties of the jail in and, for the county of Queens shall, and
the same are hereby declared to be the whole of the county of Queens.
[L. 1899, ch. 4438, in effect April 26, 1899.]

The county clerk must. within one week after a resolution of the board
of supervisors, establishing or altering jail liberties, has been filed in

 

2a. Prior to the amendment of 1915, it was held that the jail liberties
of the county of Bronx consisted of the whole of New York county. See
Rosenzwig v. U. S. Fidelity & G. Co., 151 N. Y. Supp. 237.

8. The jail liberties for the county of Cayuga are the city limits of the city
of Auburn. See L. 1882, ch. 12. The jail liberties of the county of Ulster
are the whole of the city of Kingston. See L. 1881, ch. 299.
194 COUNTY OFFICERS; COUNTY JAILS.

Prison Law, §§ 359, 362.

his office, deliver an exemplified copy thereof to the keeper of the jail,
who must keep the same exposed to public view, in an open and public part
of the jail, and exhibit it to each person admitted to the liberties of the
jail, at the time of his executing a bond for that purpose.* [Prison Law,
§ 360, B. C. & G. Cons. L., p. 4373.]

§ 7. BOUNDARIES OF JAIL LIMITS, HOW DESIGNATED.

Where the liberties of a jail are altered or established, by resolution
of the board of supervisors, as prescribed by law, a space of ground, adjacent
to the jail, and not exceeding five hundred acres in quantity, must be laid
out as the jail liberties, in a square or rectangle as nearly as may be; but
a stream of water, canal, street or highway, may be adopted as an exterior
line, notwithstanding it is not in a straight line, or is not at right angles
with the other exterior lines of the liberties. A resolution establishing
or altering jail liberties, must contain a particular description of their
boundaries; and as soon as may be after its adoption, the boundaries must
be designated by monuments, inclosures, posts or other visible and per-

-manent marks, at the expense of the county.> [Prison Law, § 359;
B. C. & G. Cons. L., p. 4373.]

§ 8. CIVIL PRISONER, WHEN ENTITLED TO JAIL LIBERTIES; UN-
DERTAKING, HOW EXECUTED; EFFECT OF UNDERTAKING.

A person in the custody of a sheriff by virtue of an order of arrest;
or of an execution iu a civil action; or in consequence of a surrender in
exoneration of his bail; is entitled to be admitted to the liberties of the
jail, upon delivering to the sheriff an approved undertaking as pre-
scribed in section three hundred and sixty-four of this chapter.®
[Prison Law, § 362, as transferred, without change, from Code Civ.
Proc., § 149, by L. 1920, ch. 933.]

 

4, Powers of boards of supervisors, The above section would seem to im-
ply that the board of supervisors had power to adopt a resolution altering
and establishing jail liberties. L. 1875, ch. 484, sec. 1, sub. 18, which was
repealed by the County Law and not re-enaced, gave to boards of supervi-
sors the power of adopting such a resolution, on the recommendation of the
county court. The repeal of such provision without the enactment of a sub-
stitute therefor has perhaps deprived the board of supervisors of such power.

5. A board of supervisors in exercising its powers under this section is
subject to the limitations contained therein. Roach v. O’Dell, 33 Hun 320.
In this case it was held that under ch. 482, Laws of 1875, boards of super-
visors could establish jail liberties of 500 acres in extent, as provided in the
above section. The act of 1875, ch. 482, was repealed in toto by the County
Law (L. 1892, ch. 686), and the powers of boards of supervisors as to jail
liberties are now only conferred by the above section.

6. Who entitled to jail liberties. This section extends the liberties of
CIVIL PRISONERS; JAIL LIBERTIES. 195
Prison Law, § 304.

The undertaking must be executed by the prisoner and one or more
sufficient sureties, residents and householders or freeholders of the county,
in a penalty at least twice the sum in which the sheriff was required to
hold the defendant to bail, if he is in custody under an order of arrest,
or has been surrendered in exoneration of his bail before judgment; or
directed to be collected by the execution, if he is in custody under an
execution; or remaining uncollected upon a judgment against him if
he has been surrendered after judgment; conditioned that the person so
in custody shall remain a prisoner, and shall not, at any time or in any
manner, escape or go without the liberties of the jail, until discharged
by due course of law.

Upon the giving and the approval by a court or a judge thereof, or a
county judge, of such an undertaking, the prisoner shall be released from.
the custody of the sheriff and the sheriff shall thereupon be exonerated from
liability. But after the allowance of the undertaking as hereinafter pre-
scribed, the same must be delivered by the clerk, on request, to the party at
whose instance the prisoner was in custody. Within two days after the ap-
proval by the court, judge, or county judge, the undertaking must be filed by
the sheriff with the clerk, and a copy delivered to the party at whose
instance the prisoner was in custody, or to his attorney, who shall within
three days thereafter serve upon the surety or sureties, or the attorney
for the prisoner, a notice that he does not accept him, or them, as bail;
otherwise he is deemed to have accepted them. Within three days after
the receipt of such notice, the surety or sureties, or the attorney for the
prisoner, may serve upon the party, or attorney for the party, at whose
instance the prisoner was in custody, notice of justification of the same
or other bail before the court or a judge thereof, or a county judge, at a
specified time and place; the time’ to be not less than five days nor more
than ten days thereafter, and the place to be within the county where one
of the bail resides or where the defendant was arrested. Excet as other-
wise expressly prescribed the provisions of law regulating the substi-
tution of new sureties or a new undertaking, and the examination and
qualification of the new sureties, and the allowance of the undertaking
after justification, upon an order of arrest in a civil action in a court of
record, shall govern. If the bail shall not be allowed, the court, judge or

county judge shall remand the prisoner to the custody of the sheriff.
This section applies to a civil prisoner only. [Prison Law, § 364, as

transferred, without change of substance, from Code Civil Proc., § 150,
by: L. 1920, ch. 933.]

 

the jail to defendants in custody under orders of arrest as well as under final
process. See Levy v. Kaim, 55 How. Pr. 136; Horowitz v. Olenick, 62 App.
Div. 283; 70 N. Y. Supp. 1116. A defendant arrested in an action brought
to recover chattels wrongfully concealed and disposed of may be admitted to
the liberties of the jail upon the ordinary limit bond. Dougan v. Cohen, 13
196 COUNTY OFFICERS; COUNTY JAILS.
Prison Law, §§ 365, 366, 369-b.

An undertaking of a civil prisoner for jail liberties is held for the
indemnity of the party at whose instance the prisoner executing it is
confined. If the party at whose instance the prisoner is in custody
discovers that a surety therein is insufficient, he may, upon proof of
the fact, by affidavit or otherwise, apply to the court or to a judge
thereof, on whose process or mandate such prisoner is in custody, or
to the county judge of the county where such prisoner is confined, and
the court or a judge thereof, or such county judge may make an order
committing such prisoner to close confinement in the jail until another
undertaking; with good and sufficient sureties, is offered.” [Prison
Law, § 365, as transferred, without change of substance, from Code Civ.
Proe., §§ 151, 152, by L. 1920, ch. 933.]

§ 9. SURRENDER OF CIVIL PRISONERS UPON JAIL LIMITS.

One or more of the sureties, in an undertaking given for the liberties
of a jail, may surrender the principal, at any time before judgment is
rendered against them in an action on the undertaking, but they are
not exonerated thereby from a liability ineurred before making the
surrender. The surrender must be made as follows: The surety or
sureties making it must take the principal to the keeper of the jail,
who must, upon his or their written requisition to that effect. take the
principal into his custody, and indorse upon the undertaking given
for the liberties, an acknowledgment of the surrender, and also, if re-
quired, give the surety or sureties a certificate, acknowledging the sur--
render. [Prison Law, § 366, as transferred, without change, from Code
Civ. Proe., §§ 153, 154, by L. 1920, ch. 933.]

§ 10. ESCAPE OF CIVIL PRISONER, WHAT CONSTITUTES.

The going at large, within the liberties of the jail in which he is in
custody, of a civil prisoner who has executed such an undertaking, or of
a prisoner who would be entitled to the liberties upon executing such
an undertaking, is not an escape. But the going at large, beyond the
liberties, by such a prisoner, without the assent of the party at whose
instance he is in eustody, is an escape; and the sheriff in whose custody
he was, or his sureties, has the same authority to pursue and retake him,
as if he had escaped from the jail. Such an escape forfeits the under-
taking for the liberties, if any; subject to the provisions of article

 

Civ. Proc. R. 295. But in a divorce case, where the defendant has been com-
mitted to jail for non-payment of counsel fees and alimony pendente lite, he is
not entitled to the liberties of the jail. Allen v. Allen, 58 How. Pr. 381.

%. When bond is insufficient. If the sheriff who has taken a bond for
the limits discovers that the sureties are insufficient, he may commit the prisoner
who executed it to close confinement until another bond with good and sufficfent
sureties is offered, and the prisoner may give a new bond in lieu of the one
on which the sureties failed to justify. Dougan v. Cohen, 13 Civ. Proc. R. 295.
CIVIL PRISONERS; JAIL LIBERTIES. 197

Prison Law, § 369-c.

thirteen-a of this chapter. [Prison Law, § 369-b, as transferred, with-
out change of substance, from Code Civ. Proc., § 155, by L. 1920,
ch. 933.]

§ 11. LIABILITY OF SHERIFF FOR ESCAPE.

Where a civil prisoner, in a sherlff’s custody, goes or is at large be-
yond the liberties of the jail, without the assent of the party at whose
instance he is in custody, the sheriff is answerable therefor, until an
undertaking provided for in section three hundred and sixty-four of
this chapter has been given and approved, as follows:

1, If the prisoner was in custody by virtue of an order of arrest, or
in consequence of a surrender in exoneration of his bail, before judg-
ment, the sheriff is answerable to the extent of the damages sustained
by the plaintiff.

2. If the prisoner was in custody by virtue of any other mandate,
or in consequence of a surrender, in exoneration of his bail, after judg-
ment, the sheriff is answerable for the debt, damages, or sum of money,
for which the prisoner was committed.

3. Upon the giving and approval of the undertaking in this article
mentioned, no action for an escape shall be maintained against the
sheriff. [Prison Law, § 369-c, as transferred, without change of sub-
stance, from Code Civ. Proc., § 158, by L. 1920, ch. 933.]

 

8. What constitutes an escape. It is an escape for a sheriff to permit
a defendant held in execution to be taken from his custody upon the warrant
of a police justice. Eads v. Wynne, 79 Hun, 463; 29 N. Y. Supp. 983. The
suffering of a prisoner to go at large is in any event an escape. Loosey v.
Orser, 4 Bosw. 391.

Where, after a voluntary escape, the prisoner is arrested on criminal pro-
cess so that the officer cannot re-take him, he is liable for the escape.
Olmstead v. Raymond, 6 Johns. 62. So where a prisoner allowed the liberties
of the jail under a final process, was arrested and taken to another county,
it was held to be an escape. It was the officer’s duty to prevent a rescue from
the limits as much as it would have been from the jail, if he had been in close
confinement. Brown y. Tracy, 9 How. Pr. 23.

The overstepping of undefined limits is a voluntary escape. Dole v. Moul-
ten, 20 Johns. Cas. 205. So going beyond the liberties without necessity is
an escape, though it is inadvertent and arises from the boundaries being
badly defined. Bissell v. Kip, 5 Johns. 89.

Actions for escape. The plaintiff in an action for an escape must show
that the judgment debtor was taken into custody before the alleged escape.
Jackson v. Comisky, 30 Misc. 622; 62 N. Y. Supp. 705. If, after a negligent
escape, the prisoner returns or is retaken so as to be in custody before the
suit is begun by actual service of process against the sheriff, it is a defense.
Middle District Bank v. Deyo, 6 Coll. 732.

In an action for escape the sheriff may set up as a defense that the execu-
tion under which the prisoner was held was illegally issued, and that the ar-
rest was unauthorized and void. Goodwin v. Griffis, 88 N. Y. 630; Carpentier
198 COUNTY OFFICERS; COUNTY JAILS.
Code Crim. Proc.., § 312-a; Penal Law, § 1839; Prison Law, § 361.

A sheriff, coroner, clerk of a court, constable, or other ministerial
officer, and every deputy or subordinate of any ministerial officer who:

1. Receives any gratuity or reward, or any security or promise of
one, to procure, assist, connive or permit any prisoner in his custody
to escape, whether such escape is attempted or not; or

2. Commits any unlawful act tending to hinder justice, is guilty of a
misdemeanor.

A conviction of a sheriff or other officer also operates as a forfeiture
of his office and disqualifies him forever thereafter from holding the
same. The governor shall, upon application, grant a hearing to a per-
son convicted under this section, and if he be satisfied that the facts
warrant it, he may, by order, relieve such person from such disquali-
fication. [Penal Law, § 1839, as amended by L. 1917, ch. 226, B. C.&
G. Cons. L., 2d ed., p. 5994.]

§ 12. WHEN SHERIFF TO PRODUCE CIVIL PRISONER WHO HAS BEEN
INDICTED.

Where a person, who has been indicted for a criminal offense, is held
by a sheriff, by virtue of a mandate in a civil action or special proceed-
ing, the court, in which the indictment is pending, may make an order,
requiring the sheriff to bring him before the court; whereupon the
court may make such disposition of the prisoner, as to it seems proper.
The sheriff’s fees and expenses, in so doing are a county charge of the
county wherein the court is sitting. [Code Crim. Proc., § 312-a, as
oo without change, from Code Civ. Proc., § 156, by L. 1920,
ch, 920.

§ 13. CONFINEMENT OF PRISONER COMMITTED FOR CONTEMPT.

A civil prisoner, committed to jail upon process for contempt, or
committed for misconduct in a case prescribed by law, must be actually
confined and detained within the jail, until he is discharged by due
course of law, or is removed to another jail or place of confinement, in
a case prescribed by law. A sheriff or keeper of a jail, who suffers
such a prisoner to go or be at large out of his jail; except by virtue of
a writ of habeas corpus, or by the special direction of the court com-
mitting him, or in a ease specially prescribed by law: is liable to the
party aggrieved, for his damages sustained thereby, and is guilty of a
misdemeanor. If the commitment was for the non-payment of a sum
of money, the amount thereof, with interest, is the measure of damages.
[Prison Law, § 361, as transferred, withort change of substance, from
Code Civ. Proe., § 157, by L. 1920, ch. 933.]

 

v. Willett, 1 Abb. Ct. App. Dec. 312; 1 Keyes 510. But if the process is
merely voidable, it is no defense. Dunford v. Weaver, 84 N, Y. 445. Nor
is a mere irregularity in the process.or judgment a defense to the sheriff.
Wesson v. Chamberlain, 3 N. Y. 331; Hutchinson v. Brand, 9 N. Y. 208;
Lathan v. Westervelt, 16 Barb. 421.

Liability of surety on judgment debtor’s bond may be enforced although
the debtor was insolvent. Flyn v. Union Surety Co., 61 App. Div. 170, 70'N.
Y. Supp. 4038, affd. 170 N. Y. 145.
CORONER'S INQUEST. 199

Code Crim. Proc., § 773.

CHAPTER XIV.

CORONER’S INQUEST.

Section 1. In what cases coroner to summon a jury; number of jurors to be
summoned; coroner, when disqualified.

2. Witnesses to be subpceenaed; compelling attendance.

. Verdict of jury, what to contain.

4. Testimony to be in writing and filed; when defendant is afrested
before inquisition, testimony to be delivered to magistrate.

5. Warrant for arrest of party charged by verdict; form of warrant.

6. Execution of warrant.

7. Proceedings of magistrate or coroner on defendants being brought
before him.

8. Disposition of money or property found on deceased.

9. Coroner to give statement to board of supervisors before his ac-
counts are audited; compensation.

10. Witnesses and jurors; report of coroner.

11. Justices of the peace, when to act as coroners.

oo

§ 1. IN WHAT CASES CORONER TO SUMMON A JURY; NUMBER OF
JURORS TO BE SUMMONED; CORONER, WHEN DISQUALI-
FIED.

Whenever a coroner is informed that a person has been killed or dan-
gerously wounded by another, or has suddenly died under such circum-
stances as to afford a reasonable ground to suspect that his death has been
occasioned by the act of another by criminal means, or has committed
suicide, he must go to the place where the person .is and forthwith inquire
into the cause of the death, or wounding, and in case such death, or wound-
ing, occurred in a county in which is situated in whole, or in part, a city
having a population of more than five hundred thousand as appears by
the last state enumeration, but not otherwise, summon not less than nine,
nor more than fifteen persons, qualified by law to serve as jurors, to appear
before him forthwith, at a specified place, to inquire into the cause of the
death or wound, and if it shall appear from the sworn examination of the
informant, or complainant, or if it shall appear from the evidence taken
on, or during, the inquisition, or hearing, that any person, or persons, are
chargeable with the killing or wounding, or that there is probable cause
to believe that any person or persons are chargeable therewith, and if such
person or persons be not in custody he must forthwith issue a warrant for
200 COUNTY OFFICERS; JAILS.

Code Crim. Proc., §§ 775-777.

the arrest of the person or persons charged with such killing or wounding;
and upon the arrest of any person, or persons, chargeable therewith, he
must be arraigned before the coroner for examination, and the said coroner
shall have power to commit the person or persons so arrested to await the
result of the inquisition or decision.

Any coroner shall be disqualified from acting as such in any case
where the person killed, or dangerously wounded, or dying suddenly, as
aforesaid, is a co-employe with said coroner, of any person, or persons,
association, or corporation, or where it appears that the killing or wound-
ing has been occasioned, directly or indirectly, by the employer of said
coroner. [Code Crim. Proc., § 773.]

§ 2. WITNESSES TO BE SUBPOENAED; COMPELLING ATTENDANCE.

The coroner may issue subpcenas for witnesses, returnable forthwith, or
at such time and place as he may appoint. He must summon and ex-
amine as witnesses, every person who, in his opinion, or that of any of
the jury, has any knowledge of the facts; and he must summon as a
witness a surgeon or physician, who must, in the presence of the jury,
inspect the body, and give a professional opinion as to the cause of the
death or wounding.2 [Code Crim. Proe., § 775.]

A witness served with a subpcena may be compelled to attend and testify,
or punished by the coroner for disobedience, as upon a subpeena issued by
a magistrate, as provided in this code. [Idem, § 776.]

e

§ 3. VERDICT OF JURY, WHAT TO CONTAIN.

After inspecting the body and hearing the testimony, the coroner must
render his decision, or if in a county where a jury is summoned as pro-
vided in section seven hundred and seventy-three, the jury must render
their verdict, and certify it by an inquisition or decision in writing, signed
by him or them as the case may be, and setting forth who the person killed
or wounded is, and when, where and by what means he came to his death,
or was wounded; and if he were killed, or wounded, or his death were
occasioned by the act of another, by criminal means, who is guilty thereof,

 

1. Publicity of proceedings. A coroner’s inquest is a judicial proceeding
within the statute declaring that the sittings of any court shall be public and
every citizen may freely attend the same; a post mortem examination con-
ducted by surgeons employed by the coroner is not a part of the inquest, which,
like sittings of any court of the state, any citizen has a right to attend.
Crisfield v. Perine, 15 Hun, 200; affd. 81 N. Y. 622.

2. Examination of witnesses. A prisoner has no right to cross-examine
witnesses before the coroner or to produce witnesses in his own behalf. People
v. Collins, 20 How. Pr. 111; 11 Abb. Pr. 406.
CORONER’S INQUEST. 201
Code Crim. Proc., §§ 778-781.

in so far as by such inquisition he or such jury has been able to ascertain.
[Code Crim. Proc., § 777.]

§ 4. TESTIMONY TO BE IN WRITING AND FILED; WHEN DEFEND-
ANT IS ARRESTED BEFORE INQUISITION, TESTIMONY TO
BE DELIVERED TO MAGISTRATE.

‘the testimony of the witnesses examined before the coroner or the
jury must be reduced to writing by the coroner or under his direction and
must forthwith by him, with the inquisition or decision filed in the office
of the clerk of the county court of the county or of a city court having
power to inquire into the offense by the intervention of a grand jury.
[Code Crim. Proc., § 778.]

If, however, the defendant be arrested before the inquisition can be
filed, the coroner must deliver it with the testimony, to the magistrate
before whom the defendant is brought, as provided in section 781, who
must return it with the depositions and statement taken before him, in the
manner prescribed in section 221. [Idem, § 779.]

If the coroner or jury, where a jury is summoned finds that the person
was killed or wounded by another, under circumstances not excusable,
or justifiable, by law, or that his death was occasioned by the act of another,
by criminal means, and the party committing the act be ascertained by
the inquisition or decision, and be not in custody, the coroner must issue
a warrant, signed by him with his name of office, into one or more counties,
as may be necessary, for the arrest of the person charged. [Idem, § 780.]

§ 5. WARRANT FOR ARREST OF PARTY CHARGED BY VERDICT;
FORM OF WARRANT.

The coroner’s warrant must be in substantially the following form:
County of Albany (or as the case may be). In the name of the people
of the state of New York, to any sheriff, constable, marshal or policeman
in this county: An inquisition having been this day found by a coroner’s
jury before me, (or a decision having been made by me stating that A B
has come to his death by the act of C D by criminal means (or as the
case may be), as found by the inquisition (or decision) ; or information
having been this day laid before me that A B has been killed or dangerously
wounded by C D by criminal means (or as the case may be), you are
hereby commanded forthwith to arrest the above named C D and bring
him before me, or in the case of my absence or inability to act, before
the nearest or most acessible coroner in this county.

Dated at the city of Albany (or as the case may be), this.......... ea
Gay Of ss ciesusvesumietkaimee setae

E. F.

Coroner of the county of Albany (or as the case may be). [Code Crim.

Proc., § 781.]
202 COUNTY OFFICERS; JAILS.
Code Crim. Proc., §§ 782-787.

§ 6. EXECUTION OF WARRANT.

The coroner’s warrant may be served in any county; and the officer
serving it must proceed thereon, in all respects, as upon a warrant of
arrest on an information; except, that when served in another county, it
need not be indorsed by a magistrate of that county.* [Code Crim. Proc.,
§ 782.]

§ 7. PROCEEDINGS OF MAGISTRATE OR CORONER ON DEFEND-
ANTS BEING BROUGHT BEFORE HIM.

The magistrate or coroner, when the defendant is brought before him,
must proceed to examine the charge contained in the inquisition or infor-
mation, and hold the defendant to answer or discharge him therefrom in
the same manner, in all respects, as upon a warrant of arrest on an in-
formation. [Code Crim. Proc., § 783.]

Upon the arrest of the defendant, the clerk with whom the inquisition
is filed, must, without delay, furnish to fhe magistrate or coroner before
whom the defendant is brought, a certified copy of the inquisition and of
the testimony returned therewth. [Idem, § 784.]

§ 8. DISPOSITION OF MONEY OR PROPERTY FOUND ON DE-
CEASED.

The coroner must, within thirty days after an inquest upon a dead
body, deliver to the county treasurer any money or other property which
may be found upon the body, unless claimed in the mean time by the
legal representatives of the deceased. If he fail to do so, the treasurer
may proceed against him for its recovery, by a civil action in the name of
the county. [Code Crim. Proc., § 785.]

Upon the delivery of money to the treasurer he must place it to the
credit of the county. If it be other property, he must, within 30 days,
sell it at public auction, upon reasonable public notice; and must, in like
manner, place the proceeds to the credit of the county. [Idem, § 786.]

If the money in the treasury be demanded within six years, by the
legal representatives of the deceased, the treasurer must pay it to them,
after deducting the fees and expenses of the coroner and of the county,
in relation to the matter, or it may be so paid at any time thereafter, upon
the order of the board of supervisors. [Idem, § 787.]

 

3. Hearing on arrest. A prisoner against whom an inquisition has been
found by a coroner’s jury, whether arrested before, on or after the filing of
such inquisition, is entitled to a hearing before a magistrate, in the same
CORONER’S INQUEST. 203
Code Crim. Proc., §§ 788-789-a; County Law, § 192.

§ 9. CORONER TO GIVE STATEMENT TO BOARD OF SUPERVISORS
BEFORE HIS ACCOUNTS ARE AUDITED; COMPENSATION.

Before auditing and allowing the account of the coroner, the board of
supervisors must require from him a statement in writing, of any money
or other property found upon persons on whom inquests have been held
by him, verified by his oath, to the effect that the statement is true, and that
the money or property mentioned in it has been delivered to the legal repre-
sentatives of the deceased, or to the county treasurer. [Code Crim. Proc.,
§ 788.

The coroner is entitled, for his services in holding inquests and per-
forming any other duty incidental thereto, to such compensation as
defined by special statutes. [Idem, § 790.]

§ 10. FEES OF WITNESSES AND JURORS; REPORT OF CORONER.

Whenever, in consequence of the performance of his official duties, a
coroner becomes a witness in a criminal proceeding, he shall be entitled
‘to receive mileage to and from his place of residence, ten cents per mile,
and three dollars per day for each day, or fractional parts thereof, actually
detained as such witness. [See County Law, § 192; B. C. & G. Cons. L.,
p. 804.]

The fees of jurors necessarily summoned upon any coroner’s inquest
shall be not to exceed one dollar for each day’s service, shall be a county
charge and shall be audited and allowed by the board of supervisors in
the same manner as other fees and charges mentioned in this title. But
the coroner holding such inquest and summoning said jurors, shall make
report to the next succeeding board of supervisors after every such inquest
of the names of such jurors and the term of service of each, and upon what
inquest rendered, on or before the third day of the annual session in each
year. [Code Crim. Proc., § 774.]

§ 11. JUSTICES OF THE PEACE, WHEN TO ACT AS CORONERS.

Any justice of the peace, in each of the several towns and cities of
this state, is hereby authorized and empowered, in case the attendance of
a coroner cannot be procured within twelve hours after the discovery of a
dead body, upon which an inquest is now by law required to be held, to hold
an inquest thereon in the same manner and with the like force and effect
as coroners.

 

manner as if hé had been arrested upon an ordinary information, as defined
by sec. 145 of the Code of Criminal Procedure. Matter of Ramscar, 10 Abb.
N. C. 442; 63 How. Pr. 255.
204 COUNTY OFFICERS; JAILS.

Code Crim. Proc. § 789a.

Post-mortem examinations. In all cases in which the cause of death is
not apparent, it shall be the duty of the justice to associate with himself
a regularly licensed physician, to make a suitable examination for the dis-
covery of said cause.

Fees. Each justice of the peace who shall hold inquests by virtue of this
act, shall receive the same fees as are now allowed by law to coroners.
[Code Crim, Proc., § 789-a.]
UNITED STATES DEPOSIT FUND. - 905

Explanatory note.

CHAPTER XV.

UNITED STATES DEPOSIT FUND; LOAN COMMISSIONERS.

EXPLANATORY NOTE.

United States Deposit Fund. ,

This fund was derived from proceeds of the sale of public lands be-
longing to the United States, which were apportioned among the States
by Act of Congress, passed June 23, 1836. This act declared that the
income of such proceeds should be used by the states for educational
purposes. In pursuance of this act the legislature enacted L. 1837, ch.
150 which provided a scheme for loaning the money belonging to the
fund on mortgages throughout the state, and created the office of loan
commissioner in the several counties.

The revision of the State Finance law in 1897 materially changed
the law relating to the care and disposition of the United States deposit
fund. Loan commissioners were by the revision deprived of their power
to loan the money belonging to this fund. They retained the power
to enforce the collection of loans, but upon receipt of the money by them
they were required to return it to the comptroller who was then author-
ized to re-invest it in the same manner as other funds of the state. This
arrangement was evidently not satisfactory, as the legislature at its suc-
ceeding session amended the law by the enactment of L. 1898, ch. 360,
and the power to loan money belonging to the United States deposit
fund was again conferred upon the loan commissioners. Many of the
provisions of the original United States Loan Deposit Act of 1837, ch.
150, were re-enacted and incorporated in the State Finance Law. These
provisions were retained in the State Finance Law as consolidatd in
1909. The law was again amended by L. 1911, ch. 634, which deprived
the loan commissioners of the power to loan moneys belonging to the
fund and vested the same in the state comptroller. We have inserted in
this chapter the sections of the State Finance Law relating to the

United States deposit fund and the powers and duties of United States
loan commissioners and boards of supervisors in respect thereto.
406 COUNTY OFFICERS; JAILS.

State Finance Law, § 82.

SECTION 1. The United States deposit fund.

. Discharge and cancellation of mortgages.

. Books and records.

. Supervision of existing United States deposit fund mortgages.
. Investments.

. Release of part of mortgage of premises.

. Power of comptroller to maintain actions.

. Foreclosure of United States deposit fund mortgages.

oon non ff w hw

. Disposition of surplus moneys, principal to be deposited.

Hn
o

. Supervision of lands.

ary

. Audit of loan commissioners’ accounts.

_
bw

. Certified copy of original mortgage.
. Duties of loan commissioners; office abolished.

_
ew

§ 1, THE UNITED STATES DEPOSIT FUND.

The part of the United States deposit fund received out of the sur-
plus money of the treasury of the United States, under the thirteenth
section of the act of congress, entitled ‘An act to regulate the deposits
of the public money,” passed June twenty-third, eighteen hundred and
thirty-six, is held by the state on the terms, conditions and provisions
specitied in such act of congress, and the faith of the state is inviolably
pledged for the safe keeping and repayment of all monevs thus received
from time to time, whenever the same shall be required by the secretary
of the treasury of the United States, under the provisions of such act.
The comptroller and the treasurer of the state shall keep the accounts of
the moneys belonging to the United States deposit fund in the books of
their respective offices, separate and distinct from the state funds, and
in such manner as to show the amount of principal, of the fund, the
amount received from the interest, the amount paid from the annual rev-
-enue and the objects to which the same have been applied. If there shall
be anv loss in the loans of the moneys belonging to the United States de-
posit fund, it shall be a charge on the interest derived from the loan of
such moneys, and none of the interest moneys shall be paid out for any
purpose until such loss has been made good thereon. The comptroller
shall have full charge and control over the United States deposit fund,
including that part of such fund now invested in mortgages in the dif-
ferent counties of the state. [State Finance Law, § 82, as amended by
L. 1911, ch. 634, in effect Aug. 10, 1911; B. C. & G. Cons. L., p. 5516.]
UNITED STATES DEPOSIT FUND. 207

State Finance Law, 8$ 83, 84, 85.

§ 2, DISCHARGE AND CANCELLATION OF MORTGAGES,

The comptroller may cancel and discharge any mortgage, on satis-
factory proof that the moneys loaned and secured by such mortgage
have been fully paid to the officers authorized by law to receive the same
if the mortgage remains uncanceled and undischarged of record. [State
Finance Law, § 83, as amended by L. 1911, ch. 634; B. C. & G. Cons.
L., p. 5517.]

§ 3. BOOKS AND RECORDS.

The book or books of mortgages executed to the loan commissioners
shall remain in the clerk’s office of the county, and in the city and
county of New York in the office of the register. During office hours
any person may search and examine any book required to be kept by
this article. [State Finance Law, § 84, as amended by L. 1911, ch.
634; B. C. & G. Cons. L., p. 5517.]

§ 4. SUPERVISION OF EXISTING UNITED STATES DEPOSIT FUND
MORTGAGES,

The comptroller shall have charge of the mortgages heretofore exe-
cuted to the commissioners for loaning certain moneys of the United
States on lands in the several counties of the state, which. mortgages
shall continue with the same force and effect as if this chapter were not
enacted. The rate of interest on such mortgages shall be five per centum
per annum, and shall be due annually on the first Tuesday of October.
The comptroller shall collect and receive the interest arising on every
such mortgage. In case of failure to pay such interest before the first
day of November next following the date when the same became due,
the comptroller shall report such failure to the attorney-general within
fifteen days after the said first day of November. The comptroller
shall receive payment of the principal or any part thereof of any such
mortgage on lands when tendered and immediately pay the same into
the state treasury, and shall satisfy and discharge the same by the exe-
cution and acknowledgment of a satisfaction piece in the usual form,
which shall be recorded by the county clerk, who shall thereupon write
upon the margin of such mortgage, in the book containing the same in
his office, a statement to the effect that the same has been discharged and
satisfied by the comptroller, giving the date thereof. Such mortgages
208 COUNTY OFFICERS; JAILS.

State Finance Law, §§ 81, 86.

may be assigned by the said comptroller on such terms and on such con-
ditions as may be satisfactory to the comptroller. [State Finance Law,
§ 85, as amended by L. 1910, ch. 201, and L. 1911, ch. 634; B.C. &G.
Cons. L., p. 5518.]

§ 5. INVESTMENTS.

The comptroller shall invest and keep invested all moneys belonging
to the common school, literature and United States deposit funds in the
stocks and bonds of the United States and of this state, or for the pay-
ment of which the faith and credit of the United States or of this state
are pledged, or in the judgments or awards of the court of claims of the
state, or in the stocks or bonds of any county, town, city, village or schoo
district of the state authorized to be issued by law. The comptroller,
whenever he deems it for the best interest of such funds, or either of
them, may dispose of any of the securities therein or investments there-
for, in making other investments authorized by law, and he may ex-
change any such securities for those held in any other of such funds, and
the comptroller may draw his-warrant upon the treasurer for the amount
required for such investments and exchanges. The care and disposition
of all lands belonging to the literature fund and the common school fund
shall be vested in the commissioners of the land office. [State Finance
Law, § 81, as amended by L. 1910, ch. 201, and L. 1911, ch. 634; B.
C. & G. Cons. L., p. 5515.]

§ 6. RELEASE OF PART OF MORTGAGED PREMISES.

If the owner of mortgaged premises sell a part thereof, the comp-
troller, on application and with the consent of the mortgagor or such
owner may release the part of the mortgaged premises sold from the lien
of the mortgage. Such release, however, shall not be given unless a sum
approved by the comptroller shall be first paid upon the mortgage and
unless the part of the mortgagcd premises remaining unsold, exclusive
of buildings and prior liens, is worth double the residue of the mort-
gage debt. The comptroller shall execute such release in the usual form,
which, when acknowledged, shall be recorded by the county clerk and a
minute thereof made upon a margin of the mortgage. [State Finance
Law, 86, as amended by L. 1911, ch. 634; B. C. & G. Cons. L., p.
5519.
UNITED STATES DEPOSIT FUND. 209

State Finance Law, §§ 87, 80, 89.

§ '7, POWER OF COMPTROLLER TO MAINTAIN ACTIONS.

The comptroller may, at any time before the sale of the mortgaged
premises, bring an action to restrain the commission of waste by any
person upon the mortgaged premises, or to correct any mistake or omis-
sion in the description thereof, or to recover the amount due on a mort-
gage. At any time before payment and discharge of mortgage or before
sale, if any persor cuts or removes or injures the timber, fences, build-
ings or other fixtures belonging to such mortgaged premises, or threatens
so to do, the comptroller may maintain a like action for damages or an
injunction. [State Finance Law, § 87, as amended by L. 1911, ch.
634; B. C. & G. Cons. L., p. 5519. ]

§ 8, FORECLOSURE OF UNITED STATES DEPOSIT FUND MORT-

GAGES. FI

If the interest due on any such mortgage shall not be paid on the first
Tuesday of October of any year, or before the first day of November next
following, or the principal or any part thereof shall not be paid when due,
the comptroller shall cause all such mortgages upon which default is made
in the payment of principal or interest to be foreclosed, whenever, in his
judgment, it may be necessary or best for the protection of the interest
of the state. All actions or proceedings for that purpose shall be prose-
cuted or conducted by the attorney-general, in the supreme court or in
the county court of the county where the mortgaged premises are located,
and in conformity with the practice in such case made and provided. Pro-
vided, however, that whenever in the judgment of the comptroller it may
be necessary or best for the protection of the interests of the state he may
accept a deed from the owner or owners of the mortgaged premises in
satisfaction thereof. [State Finance Law, § 88, as amended by L. 1910,
ch. 201, L. 1911, ch. 634, and L. 1922, ch. 192.]

§ 9, DISPOSITION OF SURPLUS MONEYS; PRINCIPAL TO BE DE-
POSITED.

The comptroller shall, within twenty days after receiving the money.
arising from the sale of the mortgaged premises as provided in the pre-
ceding section, pay into the county treasury the surplus exceeding the
sum due and to become due on the mortgage and the costs and expenses
of the foreclosure, and shall, within such time, pay over the residue of
the sum arising from the sale of such mortgaged premises, less the
amount which he is entitled to retain for his costs, disbursements and
expenses, to the state treasury. The provisions of the Code of Civil Pro-
210 COUNTY OFFICERS; JAILS.

State Finance Law, §§ 90, 91.

cedure relating to the disposition of the surplus money arising from the
foreclosure of mortgages are hereby made applicable to the surplus
arising from the sale of mortgaged premises as prescribed in the pre-
ceding section.’ [State Finance Law, § 89, as amended by L. 1910, ch.
201, and L. 1911, ch. 634; B. C. & G. Cons, L., p. 5522.]

§ 10. SUPERVISION OF LAND®

The comptroller shaii exercise supervision and care over property
acquired by the state through the foreclosure of United States deposit
fund mortgages and may lease such property until it is disposed of ac-
cording to law. The comptroller shall not be directly or indirectly in-
terested in the purchase of any mortgaged premises; if so interested
such sale shall be void. [State Finance Law, § 90, as amended by L.
1909, ch. 520, and L. 1911, ch. 634; B. C. & G. Cons. L., p. 5523.]

§ 11, AUDIT OF LOAN COMMISSIONERS’ ACCOUNTS,

At any time within one year from the rendition of any loan com-
misisoner’s report, the comptroller shall audit and adjust the account of
any such commissioner for the moneys received, paid out or retained by
him under this article, and fix and determine the amount due the state
on account thereof, and make a certificate to that effect, which shall be
presumptive evidence of the amount due the state in any action or pro-
ceeding against such commissioner or the sureties on his undertaking.
[State Finance Law, § 91, as amended by L. 1911, ch. 634; B. C. & G.
Cons. L., p. 5524. ]

 

1, Loan commissioners to pay into the state treasury all moneys now in
their hands. The loan commissioners of the several counties of the state of
New York are hereby directed to pay into the state treasury, within thirty
days after the passage of this act, all moneys in their hands belonging to tbe
United States deposit fund. L. 1910, ch. 201, § 2.
UNITED STATES DEPOSIT FUND. 211-215

State Finance Law, § 92.

§ 12, CERTIFIED COPY OF ORIGINAL MORTGAGE,

On the application of any person interested, the comptroller shall fur-
nish a certified copy of any original mortgage which has been delivered
to him pursuant to law, and the same may be recorded in the office of
the clerk of the county where the mortgaged premises are situated.
[State Finance Law, § 92, as amended by L. 1911, ch. 634; B.C. & G.
Cons. L., p. 5525. ]

§ 13, DUTIES OF LOAN COMMISSIONERS; OFFICE ABOLISHED.

The loan commissioners shall within thirty davs after the passage
of this act make a special report to the comptroller showing all their
transactions under this title from December thirty-first, nineteen hun-
dred and ten, to the date of such report and of all moneys collected by
them as principal, interest or rent during such period; and they shall
immediately after making such report transmit to the state treasurer all
moneys in their possession collécted as principal, interest or rent; and
thereafter they shall not accept or receive any moneys belonging to such
fund; and they shall within thirty davs after the passage of this act
eliver to the comptroller all books, papers, records and documents in
their possession or custody relating to the United States deposit fund.
Upon making and filing such report with the comptroller, and delivery
to the comptroller of all of said records, the comptroller may allow and
pay, to the loan commissioners, from the revenue of said fund, such
sum as he shall deem equitable in full pavment for their services under
article five of the state finance law to the thirtieth day after the passage
of this act. [L. 1911, ch. 634, § 2, in effect July 10, 1911.]

The terms of office of all the present loan commissioners shall cease
and terminate and the office of all “ commissioners for loaning certain
moneys of the United States of the county of” shall be abolished on
the thirtieth day after the passage of this act. [Idem, § 3.]
216 COUNTY OFFICERS; JAILS

County Law, § 45.

CHAPTER XVL

COUNTY HOSPITAL FOR TUBERCULOSIS.

Section 1. Establishment of county hospital for tuberculosis.

. Appointment and terms of office of managers.

. General powers and duties of managers.

. General powers and duties of superintendent.

Admission of patients for county in which hospital is situated.

. Maintenance of patients in the county in which hospital is situated.
. Admission of patients for counties not having a hospital.

. Maintenance of patients for counties not having a hospital.

Comat nape vw

. Visitation and inspection.

_
o

. Hospitals at almshouses.

§ 1. ESTABLISHMENT OF COUNTY HOSPITAL FOR TUBERCULOSIS.

The board of supervisors of every county in the state containing a
population of thirty-five thousand or more, as determined by the latest
state census, shall establish, as hereinafter provided, a county hospital
for the care and treatment of persons suffering from the disease known
as tuberculosis, unless there already exists in such county a hospital or
institution provided by the county or other authority and caring for
persons suffering from tuberculosis, which is approved by the state
commissioner of health, or the board of supervisors of such county ex-
cept in a county wherein a site for such hospital has been approved by
the state commissioner of health prior to the taking effect of this act,
shall have entered into a contract prior to November first, nineteen hun-
dred and twenty, for the care of its tuberculosis patients with an ad-
joining county having such county hospital or with a private sanatorium
within its county or shall join prior to November first, nineteen hun-
dred and twenty, with one or more other counties in the establishment
and maintenance of such county hospital as hereinafter provided. Such
county hospital except a hospital established and maintained by two or
more counties, shall be available for patients on or before the first day
of July, nineteen hundred and eighteen. If the board of supervisors of
COUNTY HOSPITAL FOR TUBERCULOSIS. O17
County Law, § 45.

any such county shall have failed to secure a site for a county tubercu-
losis hospital, and to have awarded contracts for the erection of suitable
buildings thereon by the first day of January, nineteen hundred and
eighteen, it shall be the duty of the state commissioner of health forth-
with to proceed to locate, construct and place in operation a tuberculosis
hospital in and for such county, the capacity of which shall not exceed
the average number of deaths per annum from tuberculosis in such
county during the past five years. For such purposes the state com-
missioner of health shall possess, and it shall be his duty to exercise all
the powers which would have been possessed by the board of super-
visors of such county, had such hospital been established and placed in
operation by the board of supervisors thereof. All expenditures in-
curred by the state commissioner of health for and in connection with
the location, construction and operation of such hospital, shall be a
charge upon the county, and provision shall be made for the payment
therefor by the board of supervisors of such county in the same manner
as in the case of other charges against the county. At any time after
such hospital has been in operation, the board of supervisors in such
county may appoint a board of managers for such hospital, pursuant
to the provisions of this act and thirty days after the appointment of
such board of managers by such board of supervisors, such hospital shall
be transferred to such board of managers, and such board of managers
shall thereafter possess and exercise all the powers of the board of man-
agers of a county hospital for tuberculosis under this act, and the state
commissioner of health shall be relieved from any responsibility ther-
for except such responsibility as he exercises in regard to all county
tuberculosis hospitals under the provisions of this act. [Par. amended
by L. 1920, ch. 834.]

When deemed advisable by the board of supervisors and approved by the
state commissioner of health, any such county may maintain more than one
county hospital for the care and treatment of persons suffering from tuber-
culosis. The board of supervisors of any other county shall have power by
a majority vote to establish a county hospital for the care and treatment of
persons suffering from the disease known as tuberculosis; or it may submit
the question of establishing such a hospital to the voters of the county at
any general election, and in any county in which town meetings at which all
the voters of the county may vote are held in the spring of the year, the
board of supervisors of such a county shall have authority also to submit
the question of establishing such a hospital at said town meetings to the
electors of the county who are qualified to vote at a general election. The
board of supervisors shall fix the sum of money deemed necessary for the
establishment of said hospital. The form of the proposition submitted shall
read as follows: “Shall the county of ................ appropriate the
218 COUNTY OFFICERS; JAILS.

County Law, § 45.

GUD Of sieese dessa on wee dollars for the establishment of a tuberculosis
hospital?” The clerk of the board of supervisors, immediately upon the
adoption of such resolution, shall forward to the duly constituted election
authorities of the county a certified copy of said resolution providing for
the submission of the proposition. The election notices shall state that the
proposition will be voted upon and in the form set forth above. Such
proposition shall be submitted on a distinct and separate ballot without any
other question being printed thereon, any general or special law to the con-
trary notwithstanding. Provision for taking such vote and for the can-
vassing and returning of the result shall be made by the duly constituted
election authorities.

If a majority of the voters voting on such proposition shall vote in favor
thereof then such hospital shall be established hereunder and the sum of
money named in the said proposition shall be deemed appropriated, and it
shall be the duty of the board of supervisors to proceed forthwith to exer-
cise the powers and authority conferred upon it in this section.

When the board of supervisors of any county shall have voted to estab-
lish such hospital, or when a referendum on the proposition of establishing
such a hospital in a county, as authorized above, shall have been carried,
the board of supervisors shall:

1. Purchase or lease real property therefor, or acquire such real property,
and easements therein, by condemnation proceedings, in the manner pre-
scribed by the condemnation law, in any town, city or village in the county.
After the presentation of the petition in such proceeding prescribed in sec-
tion three thousand three hundred and sixty of the code of civil procedure
and the filing of the notice of pendency of action prescribed in section three
thousand three hundred and eighty-one thereof, said board of supervisors
shall be and become seized of the whole or such part of the real property
described in said petition to be so acquired for carrying into effect the pro-
visions of this act, as such board may, by resolution adopted at a regular or
special session, determine to be necessary for the immediate use, and such
board for and in the name of such county may enter upon, occupy and use
such real property so described and required for such purposes. Such reso-
lution shall contain a description of the real property of which possession
is to be taken and the day upon which possession will be taken. Said board
of supervisors shall cause a copy of such resolution to be filed in the county
clerk’s office of the county in which such property is situate, and notice of
the adoption thereof, with a copy of the resolution and of its intention to
take possession of the premises therein described on a day certain, also
therein named, to be served, either personally or by mail, upon the owner or
COUNTY HOSPITAL FOR TUBERCULOSIS. 218a

County Law, § 45.

owners of, and persons interested in such real property, at least five days
prior to the day fixed in such resolution for taking possession. From the
time of the service of such notice, the entry upon and appropriation by the
county of the real property therein described for the purposes provided for
by this act, shall be deemed complete, and such notice so served shall be
conclusive evidence of such entry and appropriation and of the quantity and
boundaries of the lands appropriated. The board of supervisors may cause
a duplicate copy of such papers so served, with an affidavit of due service
thereof on such owner or person interested, to be recorded in the books used
for recording deeds in the office of the county clerk of its county, and the
record of such notice and such proof of service shall be prima facie evi-
dence of the due service thereof. Compensation for property thus acquired
shall be made in such condemnation proceedings.

2. Erect all necessary buildings and alter any buildings on the property
when acquired for the use of said hospital, provided that the location of the
buildings and the plans amd such part of the specifications as shall be
required by the state commissioner of health for such erection or alteration
together with the initial equipment shall first be approved by the state com-
missioner of health, Any changes in such location or plans shall also be
first approved by the state commissioner of health and the state commis-
sioner of health and his duly authorized representatives shall have the
power to inspect such county hospitals during the course of their construc-
tion for the purpose of seeing that such plans are complied with. Plans for
water supply, sewerage and sewage. disposal shall be submitted to and
approved by the state engineer. [Subd. 2, as amended by L. 1921, ch. 510.]

3. Cause to be assessed, levied and collected such sums of money as it
shall deem necessary for suitable lands, buildings and improvements for
said hospital, and for the maintenance thereof, and for all other necessary
expenditures therefor; and to borrow money for the erection of such hos-
pital and for the purchase of a site therefor on the credit of the county,
and issue county obligations therefor, in such manner as it may do for
other county purposes.?

4. Appoint a board of managers for said hospital as hereinafter provided.

5. Accept and hold in trust for the county, any grant or devise of land,
or any gift or bequest of money or other personal property, or any douation
to be applied, principal or income, or both, for the benefit of said hospital,
and apply the same in accordance with the terms of the gift.

6. Whenever it shall deem it in the public interest so to do, and notwith-
standing the provisions of any other general or special act, change the loca-
tion of such hospital and acquire a new site by purchase, lease or condemna-
tion, as provided in this section, and establish the hospital thereon. The
board of supervisors of any county of the state, including a county in which

 

1. A board of supervisors has no inherent implied power to borrow money or to
issue negotiable paper in any manner except in strict compliance with the statute.
E ople ex rel. Moody Engineering Co, v. Hamilton (1919), 108 Misc. 585, 178 N. Y.

upp. 702,
218b COUNTY OFFICERS; JAILS.
County Law, § 45.

the provisions of this chapter are not mandatory, subject to the approval
of the state commissioner of health, may enter into a contract prior to
November first, nineteen hundred and twenty for the care of its tuber-
culosis patients with the board of supervisors of an adjoining county
having such county hospital or with a private sanatorium within its
county, or may, subject to like approval, jointly with the boards of
supervisors of one or more other adjoining counties, establish prior to
November first, nineteen hundred and twenty, and thereafter maintain
such county hospital. In the establishment and maintenance of such
joint county hospital, the boards of supervisors so uniting, in accordance
with such rules and regulations as may be prescribed by the state com-
missioner of health, shall have jointly, except as provided in this sec-
tion, all the power and authority conferred and obligations imposed
upon boards of supervisors by this chapter for the establishment and
maintenance of such county hospital in a single county and, for that
purpose, each board of supervisors in such county shall appoint severally
three of its members, who collectively shall be a commission, to select
a site for such joint county hospital in any town, city or village in one of
such counties and, when the necessary, real property so selected by such
commission shall have been acquired, purchased or leased as herein
provided, to erect all necessary buildings, and alter any buildings, on
such property for the use of such joint hospital. Such commission shall
have all the powers and duties conferred or imposed upon boards of
supervisors by sections forty-five to forty-nine inclusive of this chapter,
except as in this section expressly otherwise provided. Every such joint
county hospital shall be completed and ready for oceupancy prior to
November first, nineteen hundred and twenty-one. When completed,
each board of supervisors in such counties shall appoint severally three
citizens of its county of whom at least one shall be a practicing phy-
sician, who collectively shall constitute a board of managers of such
joint county hospital and shall exercise the functions and powers
granted and be subject, so far as practicable, to the provisions of this
chapter applicable to boards of managers of a county hospital established
under this chapter in a single county and said board of managers shall
appoint at least one nurse in each county for the discovery, visitation
and care of persons affected with tuberculosis and may appoint such
additional nurse or nurses as it may deem necessary. The representation
and voting power of each manager in such joint board shall be upon the
basis and at the rate of one vote for each one thousand and major frac-
tion of the population of the county from which such manager shall be
chosen as determined by the latest state census. The superintendent
appointed by such board shall have the powers and perform the duties
which are prescribed in this chapter for superintendents of hospitals
(
COUNTY HOSPITAL FOR TUBERCULOSIS. 219

County Law, § 45

in a single county and the other employees of such board shall per-
form such duties as the board shall prescribe. The expense of the
establishment and maintenance of a joint county hospital as herein
provided shall be paid by such counties in proportion to the assessed
value of the taxable property of each such county as it appears by the as-
sessment rolls of such counties on the last assessment for state or county
taxes prior to the incurring of such expense and the board of supervisors
of each county so combining, is hereby authorized to borrow money to
defray its share, estimated as herein provided, for the erection of such
hospital and for the purchase of a site therefor on the credit of the
county and issue county obligations therefor in such manner as it may
do for other county purposes. All provisions of sections forty-five to
forty-nine inclusive of this chapter not in conflict with the provisions of
this section shall apply to such joint hospital, its establishment, main-
tenance and operation, except that for the purpose of the admission of
patients to such hospital each of the counties so combining shall be

considered the county in which the hospital is situated.1* [County Law,
§ 45, as added by L. 1909, ch. 341, and amended by L. 1913, chs. 166, 379,
L. 1914, ch. 323, L. 1915, ch. 132, L. 1917, ch. 469, L. 1918, ch. 268, L.
1919, ch. 57 and L. 1920, ch. 834; Subd. 6, added by L. 1915, ch. 427
and amended by L. 1920, ch. 834.]

§ 2. APPOINTMENT AND TERMS OF OFFICE OF MANAGERS.

When the board of supervisors shall have determined to establish a hospi-
tal for the care and treatment of persons suffering from tuberculosis, and
shall have acquired a site therefor, and shall have awarded contracts for the
necessary buildings and improvements thereon, it shall appoint five citizens
of the county, of whom at least two shall be practicing physicians, who
shall constitute a board of managers of the said hospital. The term of
office of each member of said board shall be five years, and the term of one
of such managers shall expire annually; the first appointments. shall be
made for the respective terms of five, four, three, two and one years. Ap-
pointments of successors shall be for the full term of five years, except that
appointment of persons to fill vacancies occurring by death, resignation or
other cause shall be made for the unexpired term. Failure of any manager
to attend three consecutive meetings of the board shall cause a vacancy in
his office, unless said absence is excused by formal action of the board of
managers. ‘The managers shall receive no compensation for their services,

 

' da, The amendments made by this act shall not apply to counties in which a site
for a tuberculosis hospital has been selected by any county and a petition for the
approval of such site has been presented to the state board of health pursuant to
the provisions of this chapter. L, 1918, ch. 268, § 2.
219a COUNTY OFFICERS; JAILS.

County Law, § 46.

but shall be allowed their actual and necessary traveling and other expenses,
to be audited and paid, in the same manner as the other expenses of the hos-
pital, by the board of supervisors. Any manager may at any time be
removed from office by the board of supervisors of the county, for cause
after an opportunity to be heard. [County Law, § 46, as added by L. 1909,
ch. 341; B. C. & G. Cons. L., p. 743.]

§ 3. GENERAL POWERS AND DUTIES OF MANAGERS.

The board of managers.

1. Shall elect from among its members, a president and one or more
vice-presidents. It shall appoint a superintendent of the hospital who
shall be also the treasurer and secretary of the board, and it may remove
him for cause stated in writing and after an opportunity to be heard thereon
after due notice; and may suspend him from duty pending the disposition
of such charges. Said superintendent shall not be a member of the board
of managers, and, except in the county of Monroe, shall be a graduate of
an incorporated medical college, with an experience of at least three years
in the actual practice of his profession, [Subd. amended by L. 1915, ch.
132, and by L. 1917, ch. 701.]

2. Shall fix the salaries of the superintendent and all other officers and
employees within the limits of the appropriation made therefor by the
board of supervisors, and such salaries shall be compensation in full for all
services rendered. The board of managers shall determine the amount of
time required to be spent at the hospital by said superintendent in the dis-
charge of his duties.

3. Shall have the general superintendence, management and control of
the said hospital, of the grounds, buildings, officers and employees thereof ;
of the inmates therein, and of all matters relating to the government,
discipline, contracts, and fiscal concerns thereof; and make such rules and
regulations as may seem to them necessary for carrying out the purposes of

.. such hospital.

4, Shall maintain an effective inspection of said hospital, and keep itself
informed of the affairs and management thereof; shall meet at the hospital
at least once in every month, and at such other times as may be prescribed
by the by-laws; and shall hold its annual meeting at least three weeks prior
to the meeting of the board of supervisors at which appropriations for the
ensuing year are to be considered.

5. Shall keep in a book provided for that purpose, a proper record of its
proceedings which shall be open at all times to the inspection of its mem-
COUNTY HOSPITAL FOR TUBERCULOSIS. 219b

County Law, § 46.

bers, to the members of the board of supervisors of the county, and to duly
authorized representatives of the state board of charities.

6. Shall certify all bills and accounts including salaries and wages and
transmit them to the board of supervisors of the county, who shall provide
for their payment in the same manner as other charges against the county
are paid.? The board of supervisors of a county not having a purchasing
agent or auditing commission may make an appropriation for the mainten-
ance of such hospital and direct the county treasurer to pay all bills,
accounts, salaries and wages, which are approved by the board of managers,
within the amount of such appropriation, subject to such regulations as to
the payment. and audit thereof as the board of supervisors may deem
proper. [Subd. amended by L. 1913, ch. 40.]

7. Shall make to the board of supervisors of the county annually, at such
time as said supervisors shall direct, a detailed report of the operations of
the hospital during the year, the number of patients received, the methods
and results of their treatment, together with suitable recommendations and
such other matter as may be required of them, and full and detailed esti-
mates of the appropriations required during the ensuing year for all pur-
poses including maintenance, the erection of buildings, repairs, renewals,
extensions, improvements, betterments or other necessary purposes.

8. Shall notwithstanding any other general or special law erect all addi-
tional buildings found necessary after the hospital has been placed in opera-
tion and make all necessary improvements and repairs within the limits of
the appropriations made therefor by the board of supervisors, provided that
the location of the buildings and the plans and such part of the specifica-
tions as shall be required by the state commissioner of health for such addi-
tional buildings, improvements or repairs shall first be approved by the
state commissioner of health. Any change in such location or plans shall
also be first approved by the state commissioner of health and the state
commissioner of health and his duly authorized representatives shall have
the power to inspect such county hospitals during the course of the con-
struction of such additional building for the purpose of seeing that such
plans are complied with. [Subd. added by L. 1913, ch. 379, and amended
by L. 1917, ch. 469.]

9. Shall employ a county nurse or an additional nurse or nurses if it
deems necessary, for the discovery of tuberculosis cases and for the visitation

 

2. Bills for equipment of a county tuberculosis hospital audited by the super-
intendent and board of managers should also be audited by the board of supervisors
or the county auditor before they may be legally paid by the treasurer. Opinion
of State Comptroller (1916), 10 State Dept. Rep. 532.
219¢ COUNTY OFFICERS; JAILS.
County Law, § 47.

of such cases and of patients discharged from the hospital and for such
other duties as may seem appropriate; and shall cause to be examined by
the superintendent or one of his medical staff suspected cases of tubercu-
losis reported to it by the county nurse, or nurses, or by physicians,
teachers, employers, heads of families or others; and it may take such
other steps for the care, treatment and prevention of tuberculosis as it
may from time to time deem wise. In cases, however, where it is not
‘osis reported to it by the county nurse, or nurses, or by physicians,
teachers, employers, heads of families or others; and it may take such
other steps for the care, treatment and prevention of tuberculosis as it may
from time to time deem wise. [Subd. added by L. 1914, ch. 323, amended
by L. 1917, ch. 469, by L. 1918, ch. 284, and L. 1921, ch. 130. County
Law, § 47, as added by L. 1909, ch. 341; B. C. & G. Cons. L., 2d Ed., p.
1459.]

§ 4. GENERAL POWERS AND DUTIES OF SUPERINTENDENT.

The superintendent shall be the chief executive officer of the hospital
and subject to the by-laws, rules and regulations thereof, and to the
powers of the board of managers:

1. Shall equip the hospital with all necessary furniture, appliances,
fixtures and other needed facilities for the care and treatment of patients
and for the use of officers and employees thereof, and shall in counties
where there is no purchasing agent purchase all necessary supplies.

2. Shall have general supervision and control of the records, accounts,
and buildings of the hospital and all internal affairs, and maintain dis-
cipline therein, and enforce compliance with, and obedience to all rules,
by-laws and regulations adopted by the board of managers for the gov-
ernment, discipline and management of said hospital, and the employees
and inmates thereof. He shall make such further rules, regulations and
orders as he may deem necessary, not inconsistent with law, or with the
rules, regulations and directions of the board of managers.

3. Shall appoint such resident officers and such employees as he may
think proper and necessary for the efficient performance of the business
of the hospital, and prescribe their duties; and for cause stated in
writing, after an opportunity to be heard, discharge any such officer or
employee at his discretion.

+. Shall cause proper accounts and records of the business and operations
of the hospital to be kept regularly from day to day, in books and on records
provided for that purpose; and see that such accounts and records are cor-
rectly made up for the annual report to the board of supervisors, as required
by subdivision seven of section forty-seven of this chapter, and present the
COUNTY HOSPITAL £OR TUBERCULOSIS. 219d

County Law, § 48.

same to the board of managers, who shall incorporate them in their report.
to the said supervisors.

5. Shall receive into the hospital in the order of application any person
found to be suffering from tuberculosis in any form who is entitled to admis-
sion thereto under the provisions of this chapter, excepting that if at any
time there be more applications for admission to said hospital than there are
vacant beds therein, said superintendent shall give preference in the admis-
sion of patients to those who in his judgment, after an inquiry as to the
facts and circumstances, are more likely to infect members of their house-
holds and others, in each instance signing and placing among the permanent
records of the hospital a statement of the facts and circumstances upon
which he bases his judgment as to the likelihood of transmitting infection,
and reporting each instance at the next meeting of the board of managers;
and shall also receive persons from other counties as hereinafter provided.
Said superintendent shall cause to be kept proper accounts and records of
the admission of all patients, their name, age, sex, color, marital condition,
residence, occupation and place of last employment. [Subd. amended by
L. 1912, chs. 149 and 239, L, 1913, ch. 379, and L. 1915, ch. 132.]

6. Shall cause a careful examination to be made of the physical condition
of all persons admitted to the hospital and provide for the treatment of
each such patient according to his need; and shall cause a record to be kept
of the condition of each patient when admitted, and from time to time
thereafter.

7. Shall discharge from said hospital any patient who shall wilfully or
habitually violate the rules thereof; or who is found not to have tubercu-
losis; or who is found to have recovered therefrom; or who for any other
reason is no longer a suitable patient for treatment therein; and shall
make a full report thereof at the next meeting of the board of managers.

8. Shall collect and receive all moneys due the hospital, keep an accurate
account of the same, report the same at the monthly meeting of the board
of managers, and transmit the same to the treasurer of the county within
ten days after such meeting.

9. Shall before entering upon the discharge of his duties, give a bond
in such sum as the board of managers may determine, to secure the faithful
performance of such duties.

10. May attend such courses in the diagnosis and treatment of tubercu-
losis and in hospital administration at the state hospital for the treatment
of incipient pulmonary tuberculosis at Raybrook as may be established and
which he may be authorized to attend by the board of managers of his hos-
pital. The necessary expenses in traveling to and from the said state hospi-
tal for the treatment of incipient pumonary tuberculosis at Raybrook for
220 COUNTY OFFICERS; JAILS.

County Law, §§ 49, 49a.

the purpose of taking such courses shall be a county charge. [Subd. 10
added by L. 1917, ch. 469. County Law, § 48, as added by L. 1909, ch.
341; B. C. & G. Cons. L., p. 744.]

§ 5. ADMISSION OF PATIENTS FROM COUNTY IN WHICH HOS-
PITAL IS SITUATED.

Any resident of the county in which the hospital is situated desiring
treatment in such hospital, may apply in person to the superintendent or to
any reputable physician for examination, and such physician, if he find
that said person is suffering from tuberculosis in any form, may apply
to the superintendent of the hospital for his admission. Blank forms for
such applications shall be provided by the hospital, and shall be for-
warded by the superintendent thereof gratuitously to any reputable phy-
sician in the county, upon request. So far as practicable, applications for
admission to the hospital shall be made upon such forms. The superin-
tendent of the hospital, upon the receipt of such application, if it appears
therefrom that the patient is suffering from tuberculosis, and if there be
a vacancy in the said hospital, shall notify the person named in such appli-
cation to appear in person at the hospital. If, upon personal examination
of such patient, or of any patient applying in person for admission, the
superintendent is satisfied that such person is suffering from tuberculosis,
he shall admit him to the hospital as a patient. All such applications shall
state whether, in the judgment of the physician, the person is able to pay
in whole or in part for his care and treatment while at the hospital; and
every application shall be filed and recorded in a book kept for that purpose
in the order of their receipt. When said hospital is completed and ready
for the treatment of patients, or whenever thereafter there are vacancies
therein, admissions to said hospital shall be made in the order in which
the names of applicants shall appear upon the application book to be kept
as above provided, in so far as such applicants are certified to by the
superintendent to be suffering from tuberculosis. No discrimination shall
be made in the accommodation, care or treatment of any patient because of
the fact that the patient or his relatives contribute to the cost of his
maintenance in whole or in part, and no patient shall be permitted to pay
for his maintenance in such hospital a greater sum than the average per
capita cost of maintenance therein, including a reasonable allowance for
the interest on the cost of the hospital; and no officer or employee of such
hospital shall accept from any patient thereof any fee, payment or gratuity
whatsoever for his services. [County Law, § 49, as added by L. 1909, ch.
341, B. C. & G. Cons. L., p. 746.]

§ 6. MAINTENANCE OF PATIENTS IN THE COUNTY IN WHICH
HOSPITAL IS SITUATED.

Wherever a patient has been admitted to said hospital from the county
COUNTY HOSPITAL FOR TUBERCULOSIS. 991
County Law, §§ 49-b, 49-c.

in which the hospital is situated, the superintendent shall cause such
inquiry to be made as he may deem necessary, as to his circumstances,
and of the relatives of such patient legally liable for his support. If
he find that such patient, or said relatives are able to pay for his care
and treatment in whole or in part, an order shall be made directing such
patient, or said relatives to pay to the treasurer of such hospital for the
support of such patient a specified sum per week, in proportion to their
financial ability, but such sum shall not exceed the actual per capita cost
of maintenance. The superintendent shall have the same power and
authority to collect such sum from the estate of the patient, or his rela-
tives legally liable for his support, as is possessed by an overseer of the
poor in like circumstances. If the superintendent find that such patient,
or said relatives are not able to pay, either in whole or in part, for his
care and treatment in such hospital, the same shall become a charge
upon the county. When any indigent patient shall have been admitted
to any such hospital as a resident of the county in which the hospital
is located, and it shall be found that such patient has not acquired a
settlement within such county under the provisions of the poor law,
the superintendent of such hospital shall collect from the county in
which such patient has a settlement the cost of his maintenance in such
hospital, or may in his discretion return such patient to the locality in
which he has a settlement. [County Law, § 49-a, as added L. 1909,
ch. 841, and amended by L. 1912, chs. 149 and 239, and L, 1913, ch.
379; B. C. & G. Cons. L., p. 746. ]

§ 7. ADMISSION OF PATIENTS FROM COUNTIES NOT HAVING A

HOSPITAL,

In any county not having a county hospital for the care and treatment of
persons suffering from tuberculosis, a county superintendent of the poor, upon
the receipt of the application and certificate hereinafter provided for, shall apply
to the superintendent of any such hospital established by any other county, for the
admission of such patient. Any person residing in a county in which there is no
such hospital, who desires to receive treatment in such a hospital, may apply
therefor in writing to the superintendent of the poor of the county in which he
resides on a blank to be provided by said superintendent tor that purpose, sub-
mitting with such application a written certificate signed by a reputable physician
on a blank to be provided by the superintendent of the poor for such purpose,
stating that such physician has, within the ten days then next preceding, examined
such person, and that, in his judgment, such person is suffering from tuberculosis.
The superintendent of the poor, on receipt of such application and certificate, shall
forward the same to the superintendent of any hospital for the care and treatment
of tuberculosis. If such patient be accepted by such hospital, the superintendent of
the poor shall provide for his transportation thereto, and for his maintenance therein
at a rate to be fixed as hereinafter provided. [County Law, § 49-b, as added by L.
1909, ch. 341, and amended by L. 1917, ch.469; C. B. & G. Cons. L., p. 747.]

§ 8. MAINTENANCE OF PATIENTS FROM COUNTIES NOT HAVING

HOSPITAL.
Whenever the superintendent of such a county hospital, shall receive

from a superintendent of the poor of any other county an application for
222 COUNTY OFFICERS; JAILS.

County Law, §§ 49-d, 49-e.

the admission of a patient, if it appear from such application that the per-
son therein referred to is suffering from tuberculosis, the superintendent
shall notify said person to appear in person at the hospital, provided
there be a vacancy in such hospital and there be no pending application
from a patient residing in the county in which the hospital is located.
If, upon personal examination of the patient, the superintendent is sat-
isfied that such patient is suffering from tuberculosis, he shall admit him
to the hospital. Every patient so admitted shall be a charge against the
county sending such patient, at a rate to be fixed by the board of man-
agers, which shall not exceed the per capita cost of maintenance therein,
including a reasonable allowance for interest on the costs of the hospital;
and the bill therefor shall, when verified by the superintendent of the
poor of the county from which said patient was sent, be audited and paid
by the board of supervisors of the said county. The said superintendent of
the poor shall cause an investigation to be made into the circumstances of
such patient, and of his relatives legally liable for his support, and shall
have the same authority as an overseer of the poor in like circumstances to
collect therefrom, in whole or in part, according to their financial ability,
the cost of the maintenance of such person in said hospital. [County
Law, § 49-c, as added by L. 1909, ch. 341; B. C. & G. Cons. L. p. 747.]

§ 9. VISITATION AND INSPECTION.

The resident officer of the hospital shall admit the managers into every
vart of the hospital and the premises and give them access on demand to
all books, papers, accounts and records pertaining to the hospital and shall
furnish copies, abstracts and reports whenever required by them. All
hospitals established or maintained under the provisions of sections forty-
five to forty-nine-e, inclusive, of this chapter, shall be subject to inspection
by any duly authorized representative of the state board of charities, of the
state department of health. of the state charities aid association and of the
board of supervisors of the county; and the resident officers shall admit
such representatives into every part of the hospital and its buildings, and
give them access on demand to all records, reports, books, papers and
accounts pertaining to the hospital. [County Law, § 49-d, as added by L.
1909, ch. 8341; B. C. & ©. Cons. L.. p. 748.]

§ 10. HOSPITALS AT ALMSHOUSES.

Wherever a hospital for the care and treatment of persons suffering
from tuberculosis exists in connection with, or on the grounds of a county
alms-house, the board of supervisors may, after sections forty-five to forty-
nine-e of this chapter take effect, appoint a board of managers for such
COUNTY HOSPITAL FOR TUBERCULOSIS. 923

County Law, § 49-c.

hospital and such hospital, and its board of managers, shall thereafter
be subject to all the provisions of this act, in like manner as if it had
been originally established hereunder. Any hospital for the care and
treatment of tuberculosis which may hereafter be established by any
board of supervisors shall be subject to all the provisions of said sec-
tions. No hospital authorized under the provisions of this chapter shall
hereafter be located on the grounds of an alms-house. [County Law,
§ 49-e, as added by L. 1909, ch. 341, and amended by L, 1918, ch. 379;
B. C. & G. Cons. L., p. 7-48.]
223a COUNTY OFFICERS; JAILS.

CHAPTER NVI-A

LOCAL BOARDS OF CHILD WELFARE.

Section 1. Local boards of child welfare established.

. Appointment of boards in counties.

. Appointment of boards in cities.

. Members to serve without compensation. Expenses only to be paid.

. General powers and duties of board. State board of charities may

oO Pf oF WD

revoke allowances.

far}

. Regulations governing allowances.
7. Appropriations and limitations for purposes of article.
8. Penalties.

§ 1. LOCAL BOARDS OF CHILD WELFARE ESTABLISHED.

There shall be a local board of child welfare in each county of the
state not wholly within a city, and in each city wholly including one or
more counties, which, pursuant to this article, may grant allowances to
widowed mothers with one or more children under the age of sixteen
years, in order that such children may be suitably cared for in their
homes by such mothers. [General Munic. Law, § 148, added by L.
1915, ch. 228, in effect July 1, 1915.]

§ 2. APPOINTMENT OF BOARDS IN COUNTIES.

The board of child welfare of a county shall consist of seven members of
which the county superintendent of the poor shall be ex-officio member.
If any county have more than one superintendent of the poor, the
county judge shall designate, by writing, filed with the county clerk, the
superintendent who shall serve as a member of such board. The other
six members of the board shall be appointed by the county judge for such
terms that the term of one appointive member of the board shall expire
each year thereafter. Upon the expiration of the term of office of a
member of the board, his successor shall be appointed by the county
judge for a full term of six years. In case of the failure of any ap-
pointive member to attend meetings of the board during a period of three
consecutive months, it shall be the duty of the secretary of the board at
once to certify such fact to the county judge. Unless the county judge

 

1. See, also, chapter XVI-B, post.
2. This section does not create the office of superintendent of the poor in a
county where no such office existed. 6 State Dept. Repts. 441.
LOCAL BOARDS OF CHILD WELFARE. 923b
General Municipal Law, §§ 150-152.

excuse such absence in writing for illness or other good and sufficient
reason, the term of office of such member shall at once cease and de
termine. Such excuse shall be filed with and made a part of the records .
of the board. If a vacancy occur, otherwise than by expiration of
term in the office of an appointive member of the board, it shall be filled
for the unexpired term. It shall be the duty of the county judge to fill
every vacancy within thirty days after such vacancy occurs. At least two
members of the board shall be women. Appointments shall be made in
writing and filed with the county clerk. [General Munic. Law, § 149,
added by L. 1915, ch. 228, and amended by L. 1920, ch. 700. ]

§ 3. APPOINTMENT OF BOARDS IN CITIES.

The board of child welfare of a city wholly including one or mors
counties shall consist of ten members. The members of the board shall
be appointed by the mayor for such terms that the term of one member
of the board shall expire each year thereafter. Upon the expiration of
the term of office of a member of the board, his successor shall be ap-
pointed by the mayor for a full term of nine years. In case of the
failure of any appointive member to attend meetings of the board during
a period of three consecutive months, it shall be the duty of the secretary
of the board at once to certify such fact to the mayor. Unless the
mayor excuse such absentee in writing for illness or other good and
sufficient reason, the term of office of such member shall at once cease
and determine. Such excuse shall be filed with and made a part of the
records of the board. If a vacancy occur, otherwise than by expiration
of term in the office of a member of the board, it shall be filled for the
unexpired term. It shall be the duty of the mayor to fill every vacancy
within thirty days after such vacancy occurs. At least three mem-
bers of the board shall be women. [General Munic. Law, § 150,
added by L. 1915, ch. 228, and amended by L. 1920, ch. 700.]

§ 4. MEMBERS TO SERVE WITHOUT COMPENSATION, EXPENSES, ET
CETERA.

The members of the board of child welfare, as herein provided, shall
receive no compensation for their services ay members of such board,
but, after appropriations have been duly made as herein provided, they
shall be entitled to the actual and necessary expenses incurred by them
in properly discharging their official duties, whether while making in-
vestigations or otherwise. [General Munic. Law, § 151, added by L.
1915, ch. 228, in effect July 1, 1915.]

§ 5. GENERAL POWERS AND DUTIES OF BOARD. STATE BOARD OF CHARI-
TIES MAY REVOKE ALLOWANCES.

A board of child welfare shall:
1. Meet and organize within ten days after appointment, and fix the
dates for its meetings, which shall be held at least monthly.
923e COUNTY OFFICERS ; JAILS.
General Municipal Law, § 152.

2. Elect a chairman, and appoint a secretary of the board, who shall
hold office subject to the pleasure of the board.

3. Establish an office and, when specific appropriations have been
made for such purposes, employ such officers and employees as may bo
provided for by the board of supervisors of a county or by the board of
estimate and apportionment and the board of aldermen of a city.

4, Establish rules and regulations for the conduct of its business,
which shall provide for the careful investigation of all applicants for
allowances and the adequate supervision of all persons receiving allow-
ances; such investigations and supervisions, when consistently possible,
to be made by the board or by the authorities now entrusted with similar
work and without incurring any unnecessary expense. Reports must
be filed at least quarterly by the agents, visitors or representatives of the
board, with respect to the families receiving allowances granted by the
board.

5. Render to the board of supervisors, if in counties, and to the mayor, if
in cities, a verified account of all moneys received and expended by them, or
under their direction, and of all their proceedings in such manner and form
as may be required by the board or the mayor, as the case may be; if re-
quired by the board of supervisors or mayor more frequent reports must be
given covering fractional parts of a year. [Subd. amended by L. 1917, ch.
551.]

6. Submit annually to the proper fiscal authorities of the county or city
an estimate of the funds required to carry out the purposes of this article;
in a county such estimate shall be furnished before the annual meeting of
the board of supervisors for appropriating moneys and levying taxes; in a
city, it shall be submitted at the time provided by law for the submission of
other departmental estimates.

%. Be subject to the general supervision of the stdte board of charities,
and make such reports as the state board of charities may require. Any
person who has knowledge that relief is being granted in violation of the
requirements of this act, may file a verified complaint, in writing, with
the state board of charities, setting forth the particulars of such violation,
and said state board of charities shall have power, after proper investi-
gation, to revoke allowances or to make such order as it may deem just
and equitable and such order shall be complied with by the local board of
LOCAL BOARDS OF CHILD WELFARE. 223d

General Municipal Law, § 153.

child welfare. [General Munic. Law, § 152, added by L. 1915, ch.
298, in effect July 1, 1915.]

§ 6. REGULATIONS GOVERNING ALLOWANCES.
The following provisions shall govern the granting of allowances pur-

é

suant to this article:

1. A board of child welfare may, in its discretion, when funds have
been appropriated therefor, grant an allowance to any dependent widow or
to any mother whose husband is an inmate of a state institution for the
insane or confined under a sentence of five years or more to a state
prison; provided such widow or mother reside in the county or city
wherein she applies for an allowance, and is deemed by the local board
of child welfare to be a proper person mentally, morally and physically
to care for and bring up such child or children, provided further such
widow or mother has been a resident of the county or of the city wherein
the application for an allowance is made for a period of two years immedi-
ately preceding the application and is a citizen of the United States or
whose husband was a resident of the state for a period of two years
immediately preceding his decease or commitment or whose child or child-
ren were born in the United States and who declared his intention to
become a citizen of the United States within a period of five years imme-
diately preceding his decease or commitment. [Subd. 1, amended by L.
1919, ch. 373.]

2. Such allowance shall be made by a majority vote of the members of
the board present at any regular or special meeting duly entered upon
the minutes of such meeting, and may be increased, diminished or totally
withdrawn in the discretion of the local board of child welfare.” [Subd. 2,
as amended by L. 1920, chs. 700, 759.]

3. Before granting an allowance the board shall not only determine that
the mother is a suitable person to bring up her own children and that aid

 

2a, Residence. Although a widowed mother may have a poor settlement in a
municipality, still she may not necessarily have the two years’ residence required
for relief by a Board of Child Welfare. Where a husband and wife both moved
to another county where they lived nine months until the father died, and then
the mother and children returned to the first county bringing with them the
household furniture, the Board of Child Welfare of said county may not grant
relief to the widow and children. Opinion of Atty. Gen. (1920), 23 St. Dept. Rep. 44.

Word “or” inadvertenty substituted in amendment of 1920. The amendment of
1920 (L. 1920, ch. 700), inadvertently substituted the word “ or” and was clearly
a typographical error for the word “and” in that part of the subdivision which
reads “whose husband: was a resident of the state for a period of two years
immediately preceding his decease or commitment or whose child or children
were born in the United States,’ and is to be disregarded, and the word “and”
which appeared in the original law is to be read into the sentence instead, Opinion
of Atty. Gen. (1920), 24 St. Dept. Rep, 185.

Sen.ence oi husband ror minimum ot five years. The family of a convict sentenced
for a minimum of five years may be allowed funds in the discretion of the
boards under this section as amended although under the prison system of com-
pexsation, commutation or parole, such convict may be confined for a much shorter
period. Opinion of Atty. Gen. (1920), 24 St. Dept, Rep. 135.

2b. Action by majority of quorum necessary. An allowance by a board of
child welfare must, under section 41 of the General Construction Law and this
subdivision, be made by a majority of a quorum present at a regular or special
meeting. Opinion of Atty. Gen, (1920), 24 St. Dept. Rep. 135.
228e COUNTY OFFICERS; JAILS.
General Municipal Law, § 154.

is necessary to enable her to do so, but further that if such aid is not
granted: the child or children must be cared for in an institutional home.

4. Such an allowance or allowances shall not exceed the amount or
amounts which it would be necessary to pay to an institutional home for
the care of such widow’s child or children.

5. An allowance granted by the board shall be paid out of moneys
appropriated by the local authorities for such purposes, or otherwise avail-
able by the board for such purpose; such local authorities shall appropriate
and make available for the board of child welfare and include in the tax
levy for such county or city, such sum or sums, as in their judgment,
may be necessary to carry out the provisions of this article; such moneys to
be kept in a separate fund and to be disbursed by the proper county or
city fiscal authorities on orders of the local board of child welfare and
upon proper vouchers therefor.

6. An application for allowance may be made directly to the local board
of child welfare or to any member of the board.

%. A full and complete record shall be kept in every case coming either
directly or indirectly within the jurisdiction of the board; such record to
be available to the proper authorities of county or city interested therein.

8. An allowance made by the board shall not be for a longer continuous
period than six months without renewal, which allowance may be con-
tinued from time to time at same or different amounts, for similar periods
or less, either successively or intermittently or may be revoked at the
pleasure of the local board of child welfare.2° [General Munic. Law, § 153,
added by L. 1915, ch. 228 and amended by L. 1919, ch. 373, and L. 1920,
cha. 700, 759.]

§ 7, APPROPRIATIONS AND LIMITATIONS FOR PURPOSES OF ARTICLE.
The board of supervisors of a county, and the board of estimate and
apportionment and the board of aldermen of a city to which this article
is applicable, shall annually appropriate and make available for the board
of child welfare and include in the tax levy for such county or city such
a sum as, in their discretion and judgment, may be needed to carry out
the provisions of this article, including expenses for administration and
relief but should the sum so appropriated be expended or income exhausted,
during the year and for the purposes for which it was appropriated, by
reason of extraordinary and unanticipated emergencies or conditions, addi-
tional sums may be appropriated by such boards as occasion demands to
carry out the provisions of this article, which, in cities, shall be paid from
unexpended balances or contingent funds where such exist, but, where
such do not exist, shall be raised by temporary loans on notes, certificates
of indebtedness or other obligations and the amount necessary to pay such
obligations shall be included in the next annual tax levy, and, in counties,
such additional appropriations shall be paid from funds in the county
treasury, but, should there be no such funds available therefor, the county
treasurer shall borrow a sufficient sum to pay such appropriations in antic-
ipation of taxes to be collected therefor: it is further provided thet no

 

2c. Section does not authorize boards of child welfare to audit claims for
salaries and expenses or to draw on the county treasurer therefor, and in the
county of Suffolk, such claims must be presented to and filed with the county
auditor prescribed by L. 1916, ch. 107. Opinion of Comptro!ler (1917), 11 State
Dept. Rep. 589.
LOCAL BOARDS OF CHILD WELFARE. 923f
General Municipal Law, § 155.

board of child welfare shall expend or contract to expend under the pro-
visions of this article or otherwise, any public moneys not specifically
appropriated as herein provided; the board of supervisors of any county
may determine as provided, in section one hundred and _ thirty-eight
of the poor law, whether or not the actual expense for the relief of widowed
mothers and their children under this article shall be a charge upon the
county or upon the respective towns thereof. Each such board of child
welfare shall, from time to time, audit and cause to be paid all expenses
for administration and the wages and salaries of its employees. [General
Munic. Law, § 154, added by L. 1915, ch. 228, and amended by L. 1920,
ch. 700.]

§ 8. PENALTIES.

1. A person wno shall procure or attempt to procure, directly or in-
directly, any allowance for relief under this article, for or cn account
of a person not entitled thereto, or shall knowingly or wilfully pay or
permit to be paid any allowance to a person not entitled thereto, shall
be guilty of a misdemeanor.

2. The members of a board of child welfare, established by this act,
shall be appointed within sixty days after this act takes effect. [Gen-
eral Munic. Law, § 155, added by L. 1915, ch. 228, in effect Julv 1
1915.]

.
223f-1 COUNTY OFFICERS; JAILS.

General.Municipal Law, § 156.

CHAPTER XVI-B?

BOARDS OF CHILD WELFARE IN (ERTAIN COUNTIES,?

Section Establishment; appointment; definitions.

1

2 The board; powers and duties; penalties.
3. Appropriations and limitations ; penalties.
4 Appeals,

5 Eteect of decision as to validity of article.

§ 1. Boards of child welfare.

(1.) Establishment. The existing boards of child welfare as provided for
in article seven-a of this chapter are hereby continued with all the jurisdic-
tion, powers and duties vested in such boards by such article. A board of
supervisors of a county outside of the city of New York, other than
Dutchess and Suffolk counties, may, by resolution adopted by a majority
vote of its members, determine that the board of child welfare existing in
such county at the time of the adoption of such resolution on and after a
date specified in such resolution when organized as provided in this article,
shall have the jurisdiction, powers and duties prescribed by article seven-a
and the additional jurisdiction, powers and duties prescribed by and as set
forth in this article. The clerk of the board of supervisors shall cause a
certified copy of such resolution to be filed and recorded in the office of
the county clerk, and thereupon the existing board of child welfare in such
county shall be deemed established under this article as of the date specified
in such resolution of the board of supervisors.

A board of child welfare, when so established, shall be responsible for
the relief and care of dependent children received by it as public charges
and of such children as may be committed to it by the courts and it shall
administer public aid for dependent children generally. It may administer
such relief and care either directly or through a duly authorized nssociation,
agency, society or institution.

(2) Appointment. The board shall consist of seven members of which
the county official charged with the relief of the poor and either the chair-
man of the board of supervisors or other member as may be designated by
the board of supervisors shall be ex-officio members, except that the
membership of the board of child welfare existing on the date of its
establishment under this article shall continue as then constituted until a
vacancy shall occur in the office of an appointive member, whereupon his
place on the board shall be taken by such chairman or other member of the
board of supervisors as an ex-officio member, and thereafter the board
shall be constituted as provided in this article. If any county have more

1. See, also, Chapter XVI-A, ante.
2. L. 1922, ch. 546, § 2, provides: “All existing boards of child welfare including

those established by special acts in the counties of Dutchess and Suffolk are
hereby continued.”

 
BOARDS OF CHILD WELFARE IN CERTAIN COUNTIES. 223f-2

General Municipal Law, § 156.

than one superintendent of the poor, the board of supervisors shall
designate, by writing, filed with the county clerk, the superintendent who
shall serve as a member of such board. The other five members of the
board shall be appointed by the county judge for such terms that the term
of one appointive member of the board shall expire each year thereafter.
Upon the expiration of the term of office of a member of the board, his
successor shall be appointed by the county judge for a full term of five
years. In case of the failure of any appointive member to attend meetings
of the board during a period of three consecutive months, it shall be the
duty of the secretary of the board at once to certify such fact to the county
judge. Unless the county judge excuse such absence in writing for illness
or other good and sufficient reason, the term of office of such member shall
at once cease and determine. Such excuse shall be filed with and made a
part of the records of the board. If a vacancy occur, otherwise than by
expiration of term in the office of an appointive member of the board, it
shall be filled for the unexpired term. It shall be the duty of the county
judge to fill every vacancy within thirty days after such vacancy occurs.
The protestant, catholic and Jewish faith shall, as far as practicable, be
represented in the board, and at least two members of the board shall be
women. Appointments shall be made in writing and filed with the county
clerk. The members of the board shall receive no compensation for their
services as members thereof but shall be entitled to reimbursement for the
actual and necessary expense incurred by them in discharging their duties
under this article. Members of the board shall be subject to removal by
the county judge for reasons stated in writing and after having been given
an opportunity to be heard.

(3) Definitions. The terms used in this article shall in its interpreta-
tion be defined as follows: The words a “dependant child” shall mean a
child actually or apparently under the age of sixteen years who, through
no neglect on the part of its parent or custodian, is destitute or homeless,
or in a state of want or suffering due to lack of sufficient food, clothing,
shelter; medical or surgical care.

The words “the board” shall mean the county board of child welfare
whose establishment is hereby authorized.

The words “child” or “children” unless otherwise indicated shall
mean respectively a person or persons under the age of sixteen years.

The words “custodian” or “custody” means lawful custody and
lawful custodian.

The words a “duly authorized association, agency, society or insti-
tion” shall mean a humane society or a society for the prevention of
eruelty to children, duly incorporated under the laws of the state or and an
association, agency, society or institution which meet the following require-
ments: (1) incorporated under the laws of this state; (2) actually have
its place of business or home within the state; (3) approved, visited
inspected and supervised by the state board of charities; or (4) which
shall submit and consent to approval, visitation, inspection and supervision
of the state board of charities as to any authority, power, act or acts per-
formed or to be performed under this article. [General Munic. Law,
§ 166, added by L. 1922, ch. 546.]
223f-3 COUNTY OFFICERS; JAILS.

General Municipal Law, § 157.

§ 2. (1.) The Board.

A board of child welfare when established under this article shall:

a. Meet and reorganize within ten days after its establishment by
resolution of the board of supervisors and fix the dates for its future
meetings, which shall be held at least monthly.

b. Elect a chairman, and a vice-chairman, and appoint a secretary of
the board, who shall hold office subject to the pleasure of the board.

c. Establish an office and, when specific appropriations have been made
for such purposes, employ such officers and employees as msy be provided
for by the board of supervisors of a county.

d. Establish rules and regulations for the conduct of its business which
shall provide for the careful investigation of all applicants for relief or
allowances and the adequate supervision of all persons receiving relief or
allowances. Reports must be filed at least quarterly by the agents, visitors
or representatives of the board, with respect to relief or allowances granted
by the board.

e. Render annually to the board of supervisors, a verified account of all
moneys received and expended by them, or under their direction, and of
all their proceedings in such manner and form as may be required by the
board ; if required by the board of supervisors more frequent reports must
be given covering fractional parts of a year.

f. Submit annually to the proper fiscal authorities of the county an
estimate of the funds required to carrv out the purposes of this article;
such estimate shall be furnished before the annual meeting of the board of
supervisors for appropriating moneys and Jevying taxes.

g. Be subject to the supervision, inspection and visitation of the state
board of charities, and make such reports as the state board of charities
may require. Any person who has knowledge that relief is being granted
in violation of the requirements of this article, may file a verified com-
plaint, in writing, with the state board of charities, setting forth the
particulars of such violation, and said state board of charities shall have
power, after proper investigation, to make such orders as it may deem just
and equitable and such order shall be complied with by the board.

The state board of charities may visit children for whose care and pro-
tection the board is responsible, and may order the return of children to
the board if found to be unsuitably cared for.

h. Each allowance or grant of relief shall be made by the affirmative vote
of at least three members of the board present at any meeting, and may be
increased, diminished or totally withdrawn in the discretion of the board?

j. An application for allowance or grant of relief may be made directly
to the board or to any member.

k. A full and complete record shall be kept in every case coming either
directly or indirectly within the jurisdiction of the board; such record tc
be available to the proper authorities of county interested therein.

2. Power and duties. The board may

a. Grant an allowance to any dependent widow or to any mother wnose
husband is an inmate of a state institution for the insane or confined under
a senéence of two years or more of actual confinement in a state prison, or
to ary mother whose husband is totally incapacitated by physical disability

 

3. No paragraph “i” in original act,
BOARDS OF CHILD WELFARE IN CERTAIN COUNTIES. 223f-4

General Municipal Law, § 157.

or ailment. No such allowance shall be made to any person unless the.
board of child welfare deems such person to be a proper person mentally,
morally and physically to care for and bring up the child or children for
whose benefit such allowance is made. No such allowance shall be made to
any person unless such person shall have been for at least one year prior to
application therefor a resident of the county wherein she applies for an
allowance and is either a citizen of the United States or the mother of a
child or children born in the United States whose father has been a resident
of the state for at least two years and has declared his intention to become
a citizen of the United States within a period of five years immediately
preceding his decease or commitment.

An allowance made by the board shall not be for a longer continuous
period than six months without renewal, which allowance may be continued
from time to time at the same or different amounts, for similar periods or
less, either successively or intermittently or may be revoked at the pleasure
of the local board of child welfare.

Before granting an allowance the board shall not only determine that the
mother is a suitable person to bring up her own children and that aid is
necessary to enable her to do so, but further that if such aid is not granted
the child or children must be cared for in an institutional home.

Such an allowance or allowances shall not exceed the amount or amounts
which it would be necessary to pay to an institutional home for the care of
such child or children.

b. Receive as public charges upon the county, city or town all dependent
children who require and are legally entitled to public support in said
county, city or town outside their own homes.

c. Receive as public charges upon the county any children committed to.
it by a court or magistrate of competent jurisdiction.

d. Provide for the mental or physical examination and, if required, the
necessary medical or surgical care of any child who may come under the
care or supervision of the board and whom the board has reason to suspect
of mental or physical defect or disease, such examination to be made by
physicians or and surgeons designated by the board.

e. Place children received as public charges in a home or an institution
of the same religious faith as that of the child, when practicable, either
directly or through a duly authorized association, agency, society or
institution. :

The provision herein as to the religious faith of the child shall be inter-
preted literally, so that in the care, custody, protection and religious wel-
se of the child his religious faith shall be preserved and protected by the

oard.

*f. Ascertain the financial ability of the parents or custodians of the
children who become public charges and collect toward the expense of such
children’s care such sum as the parent or custodian are able to pay.

g. Collect from parent or custodian whose children have been committed
to the board by any court or magistrate such sums as they are ordered by
such court or magistrate to pay for the maintenance of such children. The
board shall also report wilful failure to comply with such order to said
court or magistrate for action against such parent or custodian.
923f-5 COUNTY OFFICERS; JAILS.

General Municipal Law, § 157.

h. Upon receipt of an application for relief or an allowance immediately
notify the supervisor of the town or the commissioner of charities, welfare
or other like officer in the city, where the applicant for allowance or subject
of relief is stated to reside.

i. Enter into contracts with duly authorized associations, agencies,
societies or and institutions to receive and care for children entrusted to
them by the board.

j. All the powers and duties of the superintendent of the poor and the
overseers of the poor and of the commissioners of charities, welfare, and
all other officers exercising like functions in relation to dependent children,
are hereby vested solely in the board. As soon as the said board shall
officially inform the county superintendent of the poor, the overseers of the
poor, and the city commissioners of charities, welfare, and all other
officers exercising like functions that it is organized and prepared to
carry out its duties as herein prescribed, all such officers and departments
shall thereupon deliver to said board all the records of the children under
their care.

3. General. (a) Upon public announcement by the board that it has
begun to exercise the authority and duties vested in it by this article, all
children then in an institution other than a public controlled one, or and
all children in a home through commitment or placement by any poor law
official, court or magistrate shall, ipso facto, come under the jurisdiction of
this board, and have the status of children committed by the board to such
respective institution or home. And no such child or any child subject to
the provisions of this article and who is in a home or an institution shall be
discharged, transferred or changed therefrom hy anv association, agency,
society or institution having to do with children in this state, whether or
not such association, agency, society or institution is approved and now vis-
ited, inspected and supervised hy the state board of charities, except upon
notice to and order of the board.

(b) Commitment of a child other than to a public controlled institution,
or the placement of a child in custody other than its parents, must be made
to a duly authorized association, agency, society, institution, or in a home,
or with a person, of the same religious faith as that cf the child, when
practicable.

This provision as to religious faith shall he interpreted literally so that
in the custody, care and protection of the child, his religious faith shall be
preserved and protected by the board.

An association, agency, society or institution authorized and empowered
to act herein shall be “a duly authorized association, agency, society or
any institution” as defined in this article.

The home in which a child is placed by the board shall be subject to
visitation, inspection and supervision as the state board of charities may
provide.

No person shall place or accept for placement any child except upon
notice and order of the board of the county or city wherein the child is
then domiciled.

No corporation, association, agency, society or institution unless duly
authorized, as defined in this article, shall place or accept for placement any
child, except upon notice and order of the hoard of the county or city
wherein the child is then domiciled.
BOARDS OF CHILD WELFARE IN CERTAIN COUNTIES, 223f-6

General Municipal Law, §§ 157, 158.

‘The power and authority given to corporations, associations, agencies,
societies and institutions under general laws and to corporations, associa~-
tions, agencies, societies and institutions in special charters shall not be
abrogated or nullified, except as provided in this article. _ bee cin met

(c) Every person, corporation, association, agency, society or institution
who shall release or place out a child within or without this state shall keep
and preserve a record of the full name, and the actual or apparent age of
such child, the names and actual residence of its parents or lawful custodians
so far as known and the name and address of the person, corporation,
association, agency, society or institution with whom such child is released
or placed. If such person, corporation, association, agency, society, or
institution shall subsequently remove such child from the custody of the
person, corporation, association, agency, society or institution with whom
it was released or placed, the fact of such removal and the disposition made:
of such child shall be entered upon such record. A duplicate copy of the
record in the first instance and the subsequent removal or removals of such
child shall be filed within ten days therefrom, with the state board of
charities. Failure to comply with this section shall be a misdemeanor:
[General Munic. Law, § 157, added by L. 1922. ch. 546.]

§ 3. (1) Appropriations and limitations for purposes of article;
Penalties.

The board of supervisors of a county, to which this article is applicable,
shall annually appropriate and make ayailable for the board of child wel-
fare and include in the tax levy of such county such a sum as, in their dis-
cretion and judgment, may be needed to carry out the provisions of this
article, but should the sum so appropriated be expended or become
exhausted, during the year and for the purposes for which it was appropri-
ated, by reason of extraordinary and unanticipated emergencies or condi-
tions, additional sums may be appropriated by such boards as occasion
demands to carry out the provisions of this article, which, in counties, such
additional appropriations shall be paid from funds in the county treasury,
but, should there be no such funds available therefor, the county treasurer
shall borrow a sufficient sum to pay such appropriations in anticipation of
taxes to be collected therefor; it is further provided that no board of child
welfare shall expend or contract to expend under the provisions of this
‘article or otherwise, any public moneys not specifically appropriated as
herein provided; the board of supervisors of any county may determine, as
provided in section one hundred and thirty-eight of the poor law, whether
or not the actual expense for the relief of widowed mothers and their
children and of dependent children under this article shall be a charge
upon the county or upon the respective city or and towns thereof. Each
such board of child welfare shall, from time to time, audit and cause to be
paid all expenses for administration and the wages and salaries of its
employees from moneys appropriated for the purpose.

(2) Penalties. A person who shall procure or attempt to procure,
directly or indirectly, any allowance for relief or other benefit under this
article, for or on account of a person not entitled thereto, or member,
223f-7 COUNTY OFFICERS; JAILS.
General Municipal Law, § § 159, 159-a,

officer or employee of the board, or shall knowingly or willfully pay or
permit to be paid any allowance or other benefit to a person not entitled
thereto, shall be guilty of a misdemeanor. [General Munic. Law, § 158,
added by L. 1922, ch. 546.]

§ 4. Appeals.

Any person aggrieved by any order of the board under the provisions of
this article, may, within twenty days after the date and entry of such order
appeal from any order of the board to the supreme court in the county, in
which the “board” is located. Such appeal may be heard by a justice at
chambers or at special term.

Upon such appeal the justice shall make such order of notice to those
interested as he shall deem necessary. Copies of such notices shall be
served upon such persons, associations, corporations, agencies, societies or
and institutions as the court may direct and upon the board of child wel-
fare. [General Munic. Law, § 159, added by L. 1922, ch. 546.]

§5. EFFECT OF DECISIONS AS TO VALIDITY OF ARTICLE.

If any provision of this article be held unconstitutional or otherwise in-
valid, such holding shall be deemed in no wise to affect the validity or
impair any provision of article seven-a of this chapter. [General Munic.
Law. § 159-a, added by L. 1922. ch. 546.]
LOCAL HISTORIAN. 223g
Education Law, §§ 1198, 1199.
: CHAPTER XVI-C.

LOCAL HISTORIAN.

sEcTIoN 1, Local historian; appointment
2. Duties of local historian.

§ 1. LOCAL HISTORIAN; APPOINTMENT.

A local historian shall be appointed, as provided in this section, for each
city, town or village, except a city of over one million inhabitants. Such
local historian shall be appointed as follows: For a city, by the mayor; for
a town, by the supervisor; for a village, by the president of the board of
trustees. Such historian shall serve without compensation, unless the
governing board of the city, town or village for which he or she was
appointed, shall otherwise provide. In a city having a board of estimate
and apportionment, a resolution or ordinance establishing compensation
or salary for such historian shall not take effect without the concurrence
of such board. The local authorities of the city, town or village for which
such historian is appointed, may provide the historian with sufficient space
in a safe, vault or other fireproof structure for the preservation of materials
collected. Such local authorities and also the board of supervisors of each
of the counties of the state are hereby authorized and empowered to appro-
priate, raise by tax and expend moneys for historical purposes within their
several jurisdictions, including the placing of memorial tablets, in the
collection of war mementos, and either or alone or in co-operation with
patriotic organizations, prepare and publish local histories and records
relating to the world war and print and issue other historical publications
in aid of the work of the local historian. [Education Law, § 1198, added
by L. 1919, ch. 181, and amended by L. 1921, chs. 381, 634.]

§ 2. DUTIES OF LOCAL HISTORIAN.

It shall be the duty of each local historian, appointed as provided in
the last section, in co-operation with the state historian, to collect and
preserve material relating to the history of the political subdivision for _
which he or she is appointed, and to file such material in fireproof safes
or vaults in the city, town or village offices. Such historian shall examine
into the condition, classification and safety from fire of the public records
of the public offices of such city, town or village, and shall call fo the
_attention of the local authorities and the state historian any material of

local historic value which should be acquired for preservation. He or she
shall make an annual report, in the month of January, to the local appoint-

ing officer or officers and to the state historian of the work which has been
accomplished during the preceding year. He or she shall, upon retire-
ment or removal from office, turn over to the local city, town or village
authorities, or to his successor in office, if one has been then appointed, all
materials gathered during his or her incumbency and all correspondence
relating thereto. The state historian, at regular intervals, not less than
once a year, shall indicate to the local historians the general lines along
which local history material is to be collected. [Education Law, § 1199,
added by L, 1919, ch. 181.]
224 COUNTY OFFICERS; JAILS.

County Law, § 243,

CHAPTER XVIL

PROVISIONS GENERALLY APPLICABLE TO COUNTY OFFICERS.

EXPLANATORY NOTE.

General Provisions.

Those provisions of law which apply generally to county officers are
included in this chapter. They are found for the most part in Article
XV of the County Law. It is provided by the constitution that a
sheriff, county clerk, district attorney, and county register may be re-
moved by the governor after an opporunity to be heard in defense of
charges preferred. The Public Officers Law, § 33, also provides that
a county treasurer, county superintendent of the poor and coroner may
be so removed. The procedure is also prescribed by law.

SEcTION 1. County officers to report to boards of supervisors.
2. District attorney to sue for and recover moneys in hands of county
officers.
3. Official seals of counties, boards of supervisors, county treasurers and
registers.
. Official oaths of county officers.
. Gereral provisiors relating to official bonds and undertakings.
Certain county offcers may be remove’ hv governor.
. Evidence in proceedings for removal by governor.
. Order of removal of officer, how made and where filed.
- Removal for treasonable or seditious acts or utterances.

SEO

o oo

§ 1. COUNTY OFFICERS TO F_ EPORT TO BOARDS OF SUPERVISORS.

Each county officer who shall receive, or is authorized by law to receive,
any money on account of fines or penalties or other matter in which his
county, or any town or city therein, shall have an interest, shall annually
make a written report to the board of supervisors of his county, verified to
be true, bearing date the first day of November, stating the time when,
and the name of every person from whom such money has been received,
the amount thereof, on what account received, and the sums remaining due
PROVISIONS GENERALLY APPLICAPLE. 925
County Law, §§ 244, 245.

and unpaid; and if no such money has been received, his report shall so
state.t Such report shall be filed with the clerk of the board, on or before
the fifth day of November; and no officer shall be entitled to receive pay-
ment for his services, unless he shall file with the supervisors, or other offi-
cers performing their duties, his affidavit that he has made such report, and
paid over all moneys which he is required to pay over, within ninety days
after receiving any such money. Such officers shall pay the same without
any deduction to the treasurer of his county, who shall execute duplicate
receipts therefor, one of which he shall deliver to the person paying the
money, and attach the other to his annual report herein required; but
nothing herein shall be construed to apply to moneys received by any town
or city officer in his official capacity, as such, specially appropriated for any
town or city purpose.? [County Law, § 243; B. C. & G. Cons. L., p. 830.]

§ 2. DISTRICT ATTORNEY TO SUE FOR AND RECOVER MONEYS
IN HANDS OF COUNTY OFFICERS.

The district attorney shall sue for and recover, in behalf of, and in the
name of, his county, the money received by any officer for, or on account of,
his county, or any town or city therein, and not paid to the county
treasurer, as herein required. All moneys belonging to any town or city
in such county, which shall be received by the county treasurer, shall be
distributed to the several towns or cities entitled to the same, by resolution
of the board of supervisors, which shall be entered in the minutes of its
proceedings. [County Law, § 244; B. C. & G. Cons. L., p. 831.]

§ 3. OFFICIAL SEALS OF COUNTIES, BOARDS OF SUPERVISORS,
COUNTY TREASURERS AND REGISTERS.

The official seals of boards of supervisors of the several counties, county
seal, county treasurer’s seal, surrogate’s seal, and the seal of the register

 

1. Penal provision. Section 1842 of the Penal Law provides that: “A
county officer or an officer whose salary is paid by the county, who neglects
or refuses to make a report under oath to the board of supervisors of such
county on any subjects or matters connected with the duties of his office, when-
ever required by resolution of such board, is guilty of a misdemeanor.”

As to money received by district attorney in actions brought by him for the
recovery of penalties, see County Law, § 201, p. 139. :

2. The effect of this section is to supersede the provisions of the Buffalo city
charter (L. 1891, ch. 105, sec. 385), directing the keeper of the Erie county
penitentiary to pay over such fines as he should collect to the city treasurer of
Buffalo. The keeper of the Erie county pentitiary is a county officer, and the
provisions of the above section of the County Law are applicable to him. See
City of Buffalo v. Neal, 86 Hun, 76; 33 N. Y. Supp. 346,
226 COUNTY OFFICERS; JAILS.

County Law, § 246.

of deeds, shall continue to be the official seals, respectively, of such
boards, county treasurer, surrogate, and register of deeds, and used as
such, respectively, when authorized by law. When any such seal shall
be lost, destroyed, or become unfit for use, the board of supervisors of
the county interested therein or not having such seal, shall cause a new
seal or seals to be made at the expense of the county. A description of
each of such seals, together with impressions therefrom, shall be filed
in the office of the county clerk and the office of the secretary of state,
unless it has already been done. In counties having two county seats,
a duplicate of the county seal shall be procured and kept at the county
seat where the county clerk’s office is not situated, at some place to be
designated by the county clerk, and may be used by him the same as at
his office.* In counties having but one court house and which is located
more than five miles from the county clerk’s office, a duplicate of the
county seal shall be procured and kept at such court house and the
county clerk may use the same at such court house. The seal kept by
the county clerk in each county, including New York county, as pre
scribed in the judiciary law, shall-continue to be the seal of the county,
and must be used by him where he is required to use an official seal.
[County Law, § 245, as amended by L. 1914, ch. 29; B. C. & G. Cons.
Ig Dx 831.)

Section 194 of the Judiciary Law provides that, “ the seal kept by
the county clerk of each county except in the county of New York, shall
continue to be the seal of the county court in that county.”

§ 4. OFFICIAL OATHS OF COUNTY OFFICERS.

Elective ofticers shall be chosen at general elections. A person in of-
fice, when this chapter takes effect. shall continue to hold the same until
the expiration of the term for which he was elected or appointed; and a
person thereafter elected to any such office on or before entering upon
the duties thereof, and a person thereafter appointed to any such office
within ten days after notice thereof, and before entering upon the duties
of his office, shall take and subscribe before the county clerk, or county
judge of the county, the constitutional oath of office; and the same, with
his certificate of election or appointment, shall be immediately filed in
the office of the county clerk.* [County Law, § 246; B. C. & G. Cons.
La, $81.]

8. The expense of a new seal for the county clerk or a surrogate’s court, must
be paid as a part of the contingent expenses for the county. See Jud. Law, §
29.

How seal impressed on instruments. A seal of a court, public officer or
corporation, may be impressed directly upon the instrument or writing to be
sealed, or upon a wafer, wax or other adhesive substance affixed thereto, or
upon paper or other similar substance affixed thereto by mucilage or othet
adhesive substance. See General Construction Law, sec. 43.

4. Official oaths. All elective or appointive county officers are required to
take the constitutional oath of office. The Constitution (art. 13, sec. 1), provides
that: “All officers, executive and judicial, except such inferior officers as shall

 
PROVISIONS GENERALLY APPLICABLE. 227
County Law, § 247.

§ 5. GENERAL PROVISIONS RELATING TO OFFICIAL BONDS AND
UNDERTAKINGS.

Every undertaking required by this chapter must be executed by the
officer or person in whose behalf it is given, and his sureties, and duly
acknowledged or proven and certified, and the approval indorsed thereon.
The parties executing the same shall be jointly and severally liable, regard-
less of its form in that respect, for the damages sustained by reason of a

 

be by law exempted, shall, before they enter on the duties of their respective
offices, take and subscribe the following oath or affirmation: I do solemnly
swear (or affirm) that I will support the Constitution of the United States,
and the Constitution of the State of New York, and that I will faithfully dis-
charge the duties of the office according to the best of my ability; and all such
officers who shall have been chosen at any election shall, before they enter
on the duties of their respective offices, take and subscribe the oath or affirma-'
tion above prescribed, together with the following addition thereto, as part
thereof:

“ And I do further solemnly swear (or affirm) that I have not directly or in-
directly paid, offered or promised to pay, contributed, or offered or ‘promised
to contribute any money, or other valuable thing as a consideration or re-
ward for the giving or withholding a vote at the election at which I was
elected to said office, and have not made any promise to influence the giving
or withholding any such vote,” and no other oath, declaration or test shall
be required as a qualification for any office of public trust.

The Public Officers Law, sec. 10, as amended by L. 1918, ch. 59, provides that
cn off~ivl oath “may be administered by a judge of the court of eppeals or by
anv officer authorized to take, within the state, the acknowledgment of the
execution of a deed of real property.” This provision applies generally to all
e™cers where no other provision is made by law. The above section requires
the oath to be taken and subscribed before the county clerk or county judge
of ‘he county, which undoubtedly controls the taking of the official oath by a
county officer.

Failure to take oath. The county clerk is required to give notice to the
governor of all county officers who have failed to file their oath of office or
official undertaking. See County Law, sec. 161, sub. 4, ante, p. 128; see, also,
Fublic Officers Law, sec. 13.

It is provided in section 30 of the Public Officers Law that every office shall
be vacant upon the refusal or neglect of an officer to file his official oath upon
or within fifteen days after the commencement of the term of office for which
he is chosen, if an elective office, or if an appointive office, within fifteen days
after notice of his appointment, or within fifteen days after the commencement
of his term. ,

Notwithstanding the provisions of the statute that upon a refusal or neg-
lect of a public officer to file his oath the office becomes vacant, it has been
held repeatedly that the omission of the oath within the required time did
not, ipso facto, vacate the office, but at most made the officer’s title to the
office defeasible, and afforded cause for forfeiture. See Cronin v. Stoddard,
97 N. Y. 271, 274; People ex rel. Woods v. Crissey, 91 N. Y. 616, 635; People
ex rel. Brooks v. Watts, 73 Hun, 404, 407; 26 N. Y. Supp. 280: Matter of Taylor,
228 COUNTY OFFICERS; JAILS.

County Law, § 247.

breach thereof. Every officer or board required to approve an undertak-
ing may examine each surety thereto under oath, and shall not approve the
same unless the sureties are freehol:lers of the state and jointly worth over
and above their debts and liabilities at least double a sum which such
officer or board may fix upon and insert in the undertaking as reasonably
sufficient to indemnify the county, and every person who may be or become
interested therein, or in any breach thereof. Official bonds and under-

 

25 Abb. N. C. 148; see, also, Matter of Drury, 39 Misc. 288; 79 N. Y. Supp.
498,

5. Effect of official undertaking. Every official undertaking must be to the
effect that the officer will faithfully discharge the duties of his office and
promptly account for and pay over moneys or property received by him as such
officer in accordance with law, or in default thereof, that the parties executing
such undertaking will pay all damages, costs and expenses resulting from such
default, not exceeding a sum, if any, specified in such undertaking. See Public
Officers Law, sec. 11, as amended by L. 1911, ch. 424, L. 1912, ch. 481, L. 1913,
ch. 325, and L. 1914, ch. 48.

Approval of undertaking. Such section of the Public Officers Law provides
that: ‘The undertaking of a municipal officer shall, if not otherwise provided
by law, be approved as to its form and the sufficiency of the sureties by the
chief executive officer or by the governing body of the municipality and be
filed with the clerk thereof. The approval by such governing body may be
by 1esolution, a certified copy of which shall be attached to the undertaking.
‘lhe governing body of a county is the board of supervisors.” It would seem,
thereiore, that where.no provision is made by law for the approval of an official
undertaking by a county officer that the board of supervisors may, by resolution,
appro-e such undertaking.

6. Sureties. Section 11 of the Public Officers Law, as amended by L. 1911,
ch. 424, L. 1912, ch. 481, L. 1913, ch. 325, L. 1914, ch. 48, and L. 1915, ch. 628, also
provides that: “Every official undertaking shall be executed and duly acknowl
edged by at least two sureties, each of whom shall add thereto his affidavit that
he is a freeholder or householder within the state, stating his occupation and resi-
dence and the street number of his residence and place of business if in a city, and
a sum which he is worth over and above his just debts and liabilities and property
exempt from execution. The aggregate of the sums so stated in such affidavits
must be at least double the amount specified in the undertaking. If the surety on
an official undertaking of a state or local officer, clerk or employee of the state or
political subdivision thereof or of a municipal corporation be a fidelity or surety
corporation, the reasonable expense of procuring such surety, not exceeding one per
centum per annum upon the sum for which such undertaking shall be required by
or in pursuance of law to be given, ‘shall be a charge against the state or political
subdivision or municipal corporation respectively in and for which he is elected or
appointed, except that the expense of procuring such surety as aforesaid, on an
official undertaking of any officer, clerk or employee in any city department of the
city of New York, or of any office, board or body of said city, or of a borough or
county within said city, including officers, clerks and employees of every court
within said city, shall not be a charge upon said city or upon any of the counties
contained within said city, unless the comptroiler of the said city, shall first have
approved the necessity of requiring such official undertaking to be given, and shall
have approved of or fixed the amount of any such official undertaking; but this
exception shall not apply to an official undertaking specifically required by statute
to be given, and the amount of which is specifically fixed by statute. The failure
to execute an official undertaking in the form or by the number of sureties
required by or in pursuance of law, or of a surety thereto to make an affidavit
required by or in pursuance of law, or in the form so required, or the omission
PROVISIONS GENERALLY APPLICABLE. 999

Public Officers Law, §§ 33, 34.

takings, including the bonds of executors, administrators, guardians and
trustees, required by law to be filed in the office of the county clerk or
surrogate, shall also be recorded in such offices respectively, in a book to
be provided and kept in each of such offices, to be designated “‘ book of
official bonds and undertakings.” The county clerk and surrogate’s
clerk shall respectively be entitled to the same fees for such recording,
as are allowed to county clerks for recording conveyances, except that
in counties where the surrogate’s clerk receives a salary as full com-
pensation for his services, he shall not be entitled to any fee for such
services. [County Law, § 247; B. C. & G. Cons. L., p. 832.]

§ 6. Sagar COUNTY OFFICERS MAY BE REMOVED BY GOVER-
R.

An officer appointed by the governor for a full term ortosfill a vacancy,
any county treasurer, any county superintendent of the poor, any register
of a county, any coroner or any notary public, may be removed by the
governor within the term for which such officer shall have been chosen,
after giving to such officer a copy of the charges against him and an
opportunity to be heard in his defense.’ [Public Officers Law, § 33;
B. C. & G. Cons. L., p. 4633.]

§ 7. EVIDENCE IN PROCEEDINGS FOR REMOVAL BY GOVERNOR.

The governor may take the evidence in any proceeding for the removal
by him of a public officer or may direct that the evidence be taken before
a justice of the supreme court of the district, or the county judge of the

 

from such an undertaking of the approval required by or in pursuance of law,
shall not affect the liability of the sureties therein.”

Justification by sureties. Sureties are required to justify in the aggregate in at
least double the amount of the liability as specified in the undertaking. Opinion
of Atty General (1916), 9 State Dept. Reports, 453.

Force and effect of official undertaking. Section 12 of the Public Officers
Law provides that: “An officer of whom an official undertaking is required,
shall not receive any money or property as such officer, or do any act affecting
the disposition of any money or property which such officer is entitled to receive
or have the custody of, before he shall have filed such undertaking; and any
person having the custody or control of any such money or property shall not
deliver the same to any officer of whom an undertaking is required until such
undertaking shall have been given. If a public officer required to give an
official undertaking, enters upon the discharge of any of his official duties before
giving such undertaking, the sureties unon his undertaking subsequently given
for or during his official term shall be liable for all his acts and defaults done or
suffered and for all moneys and property received during such term prior to the
execution of such undertaking, or if a new undertaking is given, from the time
notice to give such new undertaking is served upon Him. Every official undertaking
shall be obligatory and in force so long as the officer shall continue to act as such
and until his successor shall be appointed and duly, qualified, and until the con-
ditions of the undertaking shall have been fully performed. When .an official
undertaking is renewed pursuant to law the sureties upon the former undertaking
shall not be liable for any official act done or moneys received after the due
execution, approval and filing of the new undertaking.”

7. The constitution authorizes the governor to remove a sheriff, county
clerk, district attorney and register in a county having a register, within the term
for which he shall have been elected. giving to such officer a copv of the charges
against him, and an opportunity of being heard in his defense. See Constitution,
art. 10, see. 1.
230 COUNTY OFFICERS; JAILS,

Public Officers Law, § 35.

county, in which the officer proceeded against shall reside, or before a com-
missioner appointed by the governor for that purpose by an appointment
in writing, and in the office of the secretary of state. The governor may
direct such judge or commissioner to report to him the evidence taken in
such proceeding, or the evidence and the findings by the judge or com-
missioner of the material facts deemed by such judge or commissioner to be
established. The commissioner or judge directed to take such evidence
may require witnesses to attend before him, and shall issue subpcenas for
such witnesses as may be requested by the officer proceeded against.

The governor may direct ‘he attorney-general, or the district attorney of
the county in which the oificer proceeded against shal] reside to conduct
the examination into the truth of the charges alleged as ground for such
removal. If the examination shall be before a commissioner or judge, it
shall be held at such place in the county in which the officer proceeded
against shall reside as the commissioner or judge shall appoint, and at least
eight days after written notice of the time and place of such examination
shall have been given to the officer proceeded against.

All sheriits, coroners, constables and marshals to whom process shall
be directed and delivered under this section shall execute the same with-
out unnecessary delay.’ [Public Officers Law, § 34; B. OC. & G. Cons.
L., p. 4633. ]

§ 8 ORDER OF REMOVAL OF OFFICER, HOW MADE AND WHERE FILED.

Every removal of an officer by one or more state officers, shall be in
written duplicate orders, signed by the officer, or by all or a majority
of the officers, making the removal, or if made by a body or board of
state officers may be evidenced by duplicate certified copies of the reso-
lution or order cf removal, signed either by all or by a majority of the
officers making the removal, or by the president and clerk of such body
or board. Both such duplicate orders or certified copies shall be de-

 

Power of removal by governor. Governor under the statute has the sole and
exclusive power of removal during the recess of the senate. Matter of Bartlett,
9 How. Pr. 414. Municipal officers, removal by the governor. Ex parte Bren-
nan, 19 Abb. 376-n. a

The governor may remove a sheriff appointed by him to fill a vacancy caused
by the removal of a sheriff elected by the people, although no charges are
preferred against the sheriff so appointed and afterwards removed by him.
See People «> tel Fortean v Prcker. & Hill. 49.

8. The expenses of proceedings brought before the governor for the removal of o
county officer are a county charge. See County Law, sec. 240, sub. 16, ante, p. 45.

See Matter of Equitable Trust Co. v. Hamilton (1919), 226 N. Y. 241, affg. 177
App. Div. 390, 164 N. Y. Supp. 58.
PROVISIONS GENERALLY APPLICABLE, 931
Public Officers Law, § 35.

livered to the secretary of state, who shall record in his office one of such
duplicates, and shall, if the officer removed is a state officer, deliver the
other to such officer by messenger, if required by the governor and other-
wise by mail or as the secretary of state shall deem advisable, and shall,
if directed by the governor, cause a copy thereof to be published in the
state papers. If the officer removed be a local officer, he shall send the
other of such duplicates to the county clerk of the county in which’ the
officer removed shall have resided at the time he was chosen to the office,
and such clerk shall file the same in his office, and forthwith notify the
officer removed of his removal. [Public Officers Law, § 35; B. O. &
G. Cons. L., p. 4634.]

g 9. REMOVAL FOR TREASONABLE OR SEDITIOUS ACTS OR UT-
TERANCES.

A person holding any public office shall be removable therefrom, in the
manner provided by law, for the utterance of any treasonable or seditious
word or words or the doing of any treasonable or seditious act or acts during
his term. [Public Officers Law, § 35-a, as added by L. 1917, ch. 416.]
PART III.

TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

CHAPTER XVIII.

TOWNS: ERECTION AND ALTERATION.

EXPLANATORY NOTE.
Towns.

The statutes of this state have always recognized the division of the
territory of the state into counties and towns. At the outset towns were
political subdivisions created or organized for the convenient exercise
of political authority, and as a means of governmental administration.
As political subdivisions, they exist for the purpose, largely, of providing
locally for (1) the administration of civil and criminal justice, through
justices of the peace; (2) the preservation of public health, through local
boards of health and health officers: (3) the construction and mainte-
nance of highways and bridges, through town boards and highway
officers; (+) the relief of the poor, through overseers of the poor; (5)
the assessment and collection of taxes, through assessors and collectors.
There are many othcr administrative functions conferred upon towns,
but those referred to are the most importart.

As towns exist in this state, they were unknown to the common law,
and ae all of statutory ercation. They were erectel and organized
Ly statute, and all their duties a: d obligations are prescribed by statute,
and they derive their capacity and powers from the same source. Town
officers have certain powers to exercise and duties to perform, all of
which depend upon statutory enactment.

Towns as Corporations.

Under the revised Statutes (R. S. pt. 1, ch. 11, tit. 1, § 1) the powers
of a town were specifically stated, and included the power to sue and
be sued; to purchase and hold lands for town purposes; to make con-
tracts: and to regulate the disposition and use of its corporate prop- .

erty. These powers are retained under the present town law. A town
TOWNS; ERECTION AND ALTERATION. 233

Explanatory note.

thus is clothed with corporate powers, and for many purposes is a
municipal corporation. These powers are limited to those specifically or
impliedly granted by statute. As stated in § 2 of the Town Law, a
town is a municipal corporation with such powers and duties of local
government and administration of public affairs as may be conferred
upon it by law. If there is no statute authorizing the making of a con-
tract or the performance of an act by a town officer, the town may not
be held liable therefor, on the theory that the town has been benefitted
thereby. Those dealing with town officers must bear in mind this
limitation.

Erection of Towns, and Alteration of Boundaries.

In the first instance towns were created by statute. Section 35 of
the County Law authorizes boards of supervisors to erect new towns,
and divide or alter the boundaries of towns already existing. Since
this power has existed, it has been usual to erect new towns and alter
boundaries of old towns by resolution of the board of supervisors. Such
resolutions are required to be published by the secretary of state as a
part of the Session laws.

Section 1. Town, a municipal corporation.
2. Alteration and erection of towns by boards of supervisors; appli-
cation therefor; notice to be posted and published; name of
new town.

2-a. Division of a town into two towns in certain counties not containing
a city of over ten thousand inhabitants.

2-b. Submission to town electors of proposition for a division under the
preceding section.

3. Time and place of holding first election in new town; term of office of
town officer not to be abridged.

4, Establishment of disputed lines; application therefor; notice to be pub-
lished and served upon town officers; resolution to be filed in office
of secretary of state.

5. Disposition of town property, upon alteration of town boundaries; when
property to be sold; duties of town boards respecting sale; cemetery
not to be sold or divided.

6. Debts to be apportioned according to amount of taxable property; cal-
lection of unpaid taxes in such towns.

7. Meetings of town boards for disposition of property and apportionment
of debts to be called by supervisors; action to enforce settlement.

§ 1. TOWN, A MUNICIPAL CORPORATION.
A town is a municipal corporation comprising the inhabitants within its
boundaries, and formed for the purpose of exercising such powers and dis-
234 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 2.

charging such duties of local government and administration of public
affairs as have been, or may be conferred or imposed upon it by faw.t
[Town Law, § 2; B. C. & G. Cons. L., p. 6132.]

 

1. Towns as corporations. The tendency of legislation during the past
few years has been to change the character and capacity of the simple town-
ship of former days. Judge Denio, in the case of Lorillard v. Town of Mon-
roe, 11 N. Y. 392, said: “ The several towns in this state are corporations
for certain special and very limited purposes, or, to speak more accurately,
they have a certain limited corporate capacity. They may purchase and hold
lands within their own limits for the use of their inhabitants. They may as
a corporation make such contracts and hold such personal property as may
be necessary to the exercise of their corporate or administrative powers, and
they may regulate and manage their corporate property, and as a necessary
incident may sue and be sued where the assertion of their corporate rights
or the enforcement against them of their corporate liabilities shall require
such proceedings. In all other respects—for instance, in everything which
concerns the administration of civil or criminal justice, the preservation of
the public health and morals, the conservation of highways, roads and bridges,
the relief of the poor, and the assessment and collection of taxes, the several
towns are political divisions, organized for the convenient exercise of portions
of the political power of the state, and are no more corporations than the
judicial, or the senate and assembly districts.’ See, also, Town of Gallatin
v. Loucks, 21 Barb. 578; Godfrey v. Queens County, 89 Hun, 18; 34 N. Y. Supp.
1052.

But the legislature in imposing liabilities and obligations, and correspond-
ing duties upon a town, have made it something different from a mere politi-
cal division of the state and brought it in character and capacity nearer to a
municipal corporation. Horn v. Town of New Lots, 83 N. Y. 100, 107.

Prior to the enactment of this section which was derived from L. 1890, ch. 569
(Gen. Laws, ch. 20), towns were not called municipal corporations. Brothers v.
Leon (1920), 198 App. Div. 144, 189 N. Y. Supp. 590.

Powers of towns as corporations, Towns as municipal corporation are materially
different in their powers from business corporations. Business corporations,
unless restrained by their charter, possess the power to borrow money and issue
securities therefor. Generally they could not carry on their authorized and
legitimate business without such a power, and hence it must be presumed that the
legislature intended that they should possess it; but towns and other municipal
corporations are organized for governmental purposes, and their powers are limited
and defined by the statutes under which they are constituted. They possess only
such powers as are expressly conferred or necessarily implied. Wells v. Town of
Salina, 119 N. Y. 280, 287; 23 N. E. 870. See, also, Morey v. Town of Newfane, 8
Barb. 645; Town of Lyons vy. Cole, 3 T. & C. 431; Sweet v. Hulbert, 51 Barb, 312;
People ex rel. Hess v. Clark, 53 Barb, 171; People ex rel. Read v, Town of
Smithville, 85 Hun, 114; 32 N. Y. Supp. 668; Dorn v. Town of Oyster Bay, 84 Hun,
510: 32 N, Y. Supp. 841; Morson v. Town of Gravesend, 89 Hun, 52; 35 N. Y. Supp.
94.

The corporate existence of towns and their capacity to hold property, to
protect the possession thereof, and to enforce their quasi corporate rights by
appropriate action, are recognized by statute, Bridges v. Supervisors of Sulli-
van county, 92 N. Y. 570, 575; Town of Verona v. Peckham, 66 Barb, 103;
Furey v. Town of Gravesend, 38 Hun, 319. In the absence of a statute a
town has no power to act as a trustee for charitable purposes. Fosdick v.
TOWNS; ERECTION AND ALTERATION, 235
County Law, § 35.

§ 2. ALTERATION AND ERECTION OF TOWNS BY BOARDS OF
SUPERVISORS; APPLICATION THEREFOR; NOTICE TO BE
POSTED AND PUBLISHED; NAME OF NEW TOWN.

Any such board [of supervisors] may, at any meeting thereof, by

a vote of two-thirds of all the members elected thereto, on the application

of at least twelve freeholders of each of the towns to be affected, divide

 

Town of Hempstead, 125 N. Y. 581; 26 N. E. 801. A town in its corporate
capacity is authorized to acquire land for a legitimate town purpose. People
ex rel. Averill v. Works, 7 Wend. 486. It may take lands for highway pur-
poses by conveyance, voluntary or otherwise; and this implies the power to
take such interest as the necessity of the case or the public good may re-
quire. Hughes v. Bingham, 135 N. Y. 347; 32 N. E. 78; Bail v. Long Island
R. R. Co., 106 N. Y. 283; 12 N. E. 607.

A town may take personal property by bequest for the support of its poor.
Fosdick v. Town of Hempstead, 8 N. Y. Supp. 773.

Effect of statute upon powers of towns as corporations. Under the revised
statutes (R. S., pt. 1, ch. 11, tit. 1, sec. 1), the powers of a town as a corporate
body were specifically stated. These powers included the power to sue and be
sted; to purchase and hold lands within its own limits and for the use of its
inhabitants; to make contracts; and to regulate the disposition and use of its
corporate property. The above section of the Town Law is a substitute for
such provision of the revised statutes. By declaring a town to be a municipal
corporation it was evidently intended to continue in the town the powers
formerly expressly conferred. The present law provides for the exercise by the
town of such powers pertaining to the administration of town affairs as may be
conferred or imposed upon it by law. Lythe v. Town of Evans, 33 Misc. 221; 68
N. Y. Supp. 356. This section of the Town Law has not enlarged the town’s
corporate capacity. Morson v. Town of Gravesend, 89 Hun, 52; 35 N. Y. Supp.
94.

In case of Dorn v. Town of Oyster Bay, 84 Hun, 510; 32 N. Y. Supp. 341, Dyke-
man, J., says: “The towns of this state are the primary political divisions. As
they exist here they were unknown to the common law, and are all of statutory
creation. They were erected and organized by statute, and all their duties and
obligations are prescribed by statute, and they derive their capacity and powers
from the same source. In the earlier history of the state their capacity ‘was
limited, and their duties and liabilities were but few. By the revised statutes,
each town as a body corporate had capacity to purchase and hold property for cer-
tain purposes, to sue and be sued, and to make certain contracts in relation to cor-
porate property and affairs. Modern legislation has, however, enlarged their eapa-
city and endued them with powers and imposed upon them obligations similar to
those possessed by municipal corporations.”

Power to sue. A town is a municipal corporation and as such may sue in all
courts in like case as a natural person. That is to say, where there is an existing
liability at law, or an existing right which it may enforce, the method of. its en-
forcement must be the same as if it were a natural person. Town of Hempstead v.
Lawrence, 138 App. Div. 473, 122 N. Y. Supp. 10387.

Power to contract. Towns have no general power to enter into con-
tracts or to incur obligations the payment of which can be enforced against
them. Persons dealing with town officers are charged with notice of the
limited corporate capacity of the town, and it is, therefore, incumbent upon
one who asserts the fact of an indebtedness to him from the town to point
out tke act of the legislature which authorized and empowered the town to
236 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
County Law, § 35.

or alter the bounds of any town in the county, or erect a new town therein.
Notice of such application, signed by such freeholders, shall be posted in
five conspicuous public places in each of such towns for four weeks next pre-
ceding a presentation of such application to the board; and a copy of such
notice shall be published for at least six consecutive weeks next preceding the
meeting of the board to which the application is to be made, in three news-
papers published in the county, if there be so many, otherwise in all the
newspapers published in the county as often as once a week. Such ap-
plicants shall present to the board with such application and notice, due
proof of the posting and publishing of such notice, and furnish the board
with a map and survey of such towns, showing the proposed alteration. The
board shall designate the name of any new town so erected. If the
application be granted, a copy of such map, with a certified statement of
the action of the board thereto annexed, shall be filed in the office of the
secretary of state, who shall cause such statement to be printed and pub-
lished with the laws of the next legislature. Except as otherwise provided
in section thirty-five-b, the provisions of this section shall not apply to the
division of a town into two towns wholly within the boundaries of and to-
gether comprising the entire territory of the town so divided, in a county
which does not then contain a city of over ten thousand inhabitants and
which adjoins a county having a city containing a population of not less
than twe hundred thousand and not more than four hundred thousand,
according to the preceding federal or state census or enumeration.’ [County
Law, § 35, as amended by L. 1911, ch. 250, and L. 1917, ch. 233; B.C. &
G. Cons. L., p. 733.]

incur the debt. Morson v. Town of Gravesend, 89 Ilun, 52; 35 N. Y. Supp. 94. It
is a general rule that all parties dealing with public officers are chargeable with
notice of the limitation of their powers, and a contract by a public officer in excess
of the powers conferred upon him imposes no liabilities upon the municipal corpora-
tion, even though the benefits of the contract have been received and applied for
the benefit of the public. Van Dolson v. Bd. of Education, 28 App. Div. 501; 51 N. Y.
Supp. 720; Walton v. City of N. Y., 26 App. Div. 76; 49 N. Y. Supp. 615. Where a
statute prescribes the purpose and the manner in which a contract shall be made
by a town officer, the provisions of such statute must be strictly followed, other-
wise the contract will be invalid. Suburban Electric Light Co. v. Town of Hemp-
stead, 38 App. Div. 355; 56 N. Y. Supp. 443. See, also, Parfitt v. Ferguson, 159
N.Y. 111; 53 N. E. 707; Lawrence v. Smith, 24 Misc. 233; 52 N. Y. Supp. 724.

Bridges and highways. Towns, in their corporate capacity, have no duties to per-
form in respect to the care, superintendence or regulation of highways within their
limits. People ex rel. Van Keuren v. Town Auditors, 74 N. Y. 310. And see People
ex rel. Everett v. Supervisors, 93 N. Y. 397; Robinson v. Town of Fowler, 80 Hun,
101, 30 N. Y. Supp. 25; People ex rel. Loomis v. Town Auditors, 75 N. Y. 316.

When Town need not keep ditch open. Where a town builds a ditch without
any power having been conferred upon it or any duty imposed upon it by statute,
it is not liable for its failure to keep such ditch clear. Brothers v. Leon (1921),.
198 App. Div, 144, 189 N. Y. Supp. 590. .

Liability for acts of agents and officers, Town assessors and collectors are not
officers or agents of town in its corporate capacity, and the town is not liable for
their mistakes. Lorillard v. Town of Monroe, 11 N. Y. 392; Town of Gallatin v.
Loucks, 21 Barb. 578.

Towns are not liable for the negligent acts of their officers in the absence of
statutory provisions, The rule of respondeat superior does not exist between a
town and its officers. The officers of a town are liable for their negligence in the
performance of their official duties. Short v. Town of Orange (1916), 175 App.
Div. 260. 161 N. Y Supp. 466.

2. Fcr forrrs of application, notice and resolution of board of supervisors provid-
ing for the erection of new towns, see Forms Nos, 11 and 12, post.

 
TOWNS; ERECTION AND ALTERATION, 236a
County Law, § 35a.

§ 2a. DIVISION OF A TOWN INTO TWO TOWNS IN CERTAIN COUN-
TIES NOT CONTAINING A CITY OF OVER TEN THOUSAND
INHABITANTS.

In-any county which does not then contain a city of over ten thousand
inhabitants, and which adjoins a county having a city containing a popu-
lation of not less than two hundred thousand and not more than four hun-
dred thousand, according to the preceding federal or state census or enumer-
ation, a town of such county may be divided, in the manner provided in this
section and section thirty-five-b, into two towns wholly within the boundar-
ies of and together comprising the entire territory of the town so divided.
The board of supervisors of such county, at any meeting thereof, by vote of
two-thirds of all the members elected thereto, on the written application of
qualified electors of the town affected, signed and acknowledged by them, to
the number of twenty-five per centum of the votes cast in such town at the
preceding general election, may make such application, subject to the action °
of the electors of such town by vote thereafer taken as herein provided.
The acknowledgments to such application shall be taken and certified in
manner and form as provided by law for the acknowledgment of a deed to
he recorded. The application must describe with common certainty the
boundaries of each of the proposed new towns. Such written application
shall be filed with the clerk of such board, who, with the chairman of the
board, shall fix a day, not less than five nor more than six weeks after the
filing of the application, when the application shall be presented to the
board for a hearing thereon. Such clerk shall prepare a notice of such
hearing, which shall contain a brief description of the proposed division and.
recite the filing of the petition. He shall transmit such notice to the town
clerk of the town affected, who shall cause copies thereof to be posted in five
conspicuous public places in the town at least four weeks before such hear-
ing and shall cause the notice to be published once each week for at least
four weeks next preceding such hearing in a newspaper published in the
county, which shall be a newspaper published in the town if there be one.
Due proof of such posting and publication shall be filed with the clerk of
the board of supervisors at or before the hearing. If the board is not to be
otherwise in session at the time so fixed, the clerk shall call a special meet-
ing for the purpose of this section. The applicants shall furnish the board
with a map and survey of the proposed division. If the board shall grant
the application, it shall make such determination by resolution, which shall
provide for the submission of the following question to the qualified electors
of such town: “ Shall the town of (here insert name of the original town)
be divided pursuant to a resolution of the board of supervisors of this
county heretofore adopted, into two towns having the following boundaries:
(here insert description as appearing in the map and application of each of
such proposed towns)?” After the board of supervisors shall have granted
and such application, no other application for a different division of the
same town shall be presented or acted upon until after the determination of
the proposition submitted as provided in the next section, nor unless such
proposition shall have been decided in the negative. [County Law, § 35-a,
as added by L. 1917, ch. 233.]

Proceedings for division of towns. The question whether a town has been
legally erected may be decided in an action in the nature of quo warranto against
one claiming to exercise the office of supervisor of such town. Where the act
ef the board, dividing a town and forming a new one from a portion thereof,

 
236b TOWNS. TOWN MEETINGS AND TOWN OFFICERS.
County Law, § 35b.

§ 2b. SUBMISSION TO TOWN ELECTORS OF PROPOSITION FOR A
DIVISION UNDER THE PRECEDING SECTION.

The question provided for in section thirty-five-a shall be submitted at
the next biennial town meeting occuring* not less than thirty nor more
than sixty days after the receipt of such resolution by the town clerk; and
if a biennial town meeting is not to occur within such times, then the town
clerk shall call a special town meeting for the submission of such proposi-
tion. The clerk shall give notice of the fact that such proposition is to be
submitted by posting the same in at least ten public places in the town and
publishing such notice at least ten days before the meeting in a newspaper
published in the county, which shall be a newspaper published in the town
if there be one. If a special town meeting is called for such purpose, a
statement of that fact shall be included in the notice together with a state-
ment of the time and place of holding the same. The vote upon such ques-
tion shall be taken by ballot, in the form prescribed in the election law. The
ballots shall be provided by the authorities charged by law with the duty of
furnishing official ballots for other town proposition. Any elector qualified
to vote for town officers, if such officers were then to be chosen, shall be
entitled to vote upon such proposition. A canvass and return of the votes,
and canvass of the results, shall be made as provided by law. If the major-
ity of votes cast on the proposition shall be in the affirmative, the town
shall be thereby divided and two towns created in place thereof, to consist
of the territory described in the proposition; but such division and such
creation of new towns shall not go into operation for the purpose of affect-
ing the organization of the existing town and the powers and duties of
such town and its officers until the election and qualification of officers for
_ the new towns. A certified copy of a statement of the result of the vote
shall be immediately filed with the clerk of the board of supervisors and
another certified copy in the office of the county clerk. The board of super-
visors shall designate the name of each new town so created and shall cause
a copy of the map, provided for in the preceding section, to be filed in the
office of the secretary of state, together with a certificate that such new
towns have been created in conformity with the provisions of this and the
preceding section. Such certificate shall be published with the laws of the
next legislature. It shall be the duty of the board of supervisors, within
sixty days after such town meeting, if such proposition shall have been
decided in the affirmative, to provide by resolution for the first election in
each of such new towns in the manner provided in section thirty-six of this
chapter. Such election shall be held not later than three months after such
town meeting. A certified copy of the resolution fixing the date of such
election shall also be filed in the office of the secretary of state. No incor-
porated village shall be divided in the formation of new towns under the
provisions of section thirty-five-a and of this section. If the majority of
votes cast on such proposition be in the negative or be equal, the town shall
not be so divided. The provisions of this and the preceding section shall
not affect an application for the division of any town heretofore presented
to any board of supervisors and now pending, but the same shall be deter-
mined as provided in section thirty-five. [County Law, § 35-b, as added
by L. 1917, ch. 233.]

 

* So in original.
TOWNS; ERECTION AND ALTERATION. 237
County Law, §§ 36, 37.

$ 3. TIME AND PLACE OF HOLDING FIRST ELECTION IN NEW
TOWN; TERM OF OFFICE OF TOWN OFFICER NOT TO BE
ABRIDGED.

The board [of supervisors] shall designate the time and place of holding
the first town meeting in a new town so erected, and appoint three electors
thereof, who shall: post notice of such town meeting, signed by the chair-
man or clerk of the board of supervisors, in four conspicuous public places
in such town, at least fourteen days before holding the same. Such
electors shall preside at such town meeting, appoint a clerk, open and keep
the polls, and exercise the same powers as justices of the peace when
presiding at town meetings; but if such electors shall refuse or neglect
to serve, the electors of the town present shall substitute one of their
number for each one so neglecting or refusing to serve; and the posting
of the notice of such meeting shall be valid if done by any elector of the
town. Nothing herein shall affect the rights, or abridge the term of office
of any town officer in any town, but they shall hold and exercise the offices
in the town in which they shall respectively reside after the change or
alteration. [County Law, § 36; B. C. & G. Cons. L., p. 734.]

§ 4. ESTABLISHMENT OF DISPUTED LINES; APPLICATION THERE.
FOR; NOTICE TO BE PUBLISHED AND SERVED UPON TOWN
OFFICERS; RESOLUTION TO BE FILED IN OFFICE OF SEC-
RETARY OF STATE.

Such board may establish and define boundary lines between the several
towns of the county. A notice of intention to apply to the board to
establish and define such boundary line, particularly describing the same,
and the line as proposed to be acted upon by such board, signed by a
majority of the members of the town board of some one of the towns to
be affected thereby, shall be published for four consecutive weeks next
preceding the meeting of the board at which the application is to be
presented, in three newspapers published in the county in, or nearest to
such towns, if so many, otherwise in all the newspapers published in the
county as often as once a week. A copy of such notice shall also be served
personally, at least fifteen days before the meeting of such board, on the
supervisors and town clerk of each of the other towns to be affected thereby.

 

only described the dividing line, it has’ been held that the indefiniteness was
cured by reference contained in the act to the application: upon which it was
founded and from which it appeared that the new town was to lie south of the
line of division. People v. Carpenter, 24 N. Y. 86. In this case the court ruled
that the act of the supervisors being one of a legislative character, in favor
of the regularity of which all presumptions are to be indulged; those who would
impeach the act must show by affirmative proof a non-compliance with the
conditions imposed by law as a prerequisite to the exercise of power.

Expeuases of publication, preparation of maps, etc., upon the application of
freeholders for the division of a town, cannot be legally charged either against
the old or the new town, or against the old town as it existed prior to the division.
Opinion of Atty, Gen. (1919), 19 St. Dept. Rep. 363.
238 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 30.

A copy of the resolution, as adopted by the board, which shall contain the
courses, distances and fixed monuments specified in such boundary line or
lines, together with a map of the survey thereof, with the courses, distances
and fixed monuments referred to therein, plainly and distinctly marked
and indicated thereon, shall be filed in the office of the secretary of state
within thirty days after the adoption of such resolution, who shall cause
the same to be printed and published with the laws of the next state
legislature after the adoption thereof. [County Law, § 37; B. C. & G.
Cons. L., p. 734.]

§ 5. DISPOSITION OF TOWN PROPERTY, UPON ALTERATION OF
TOWN BOUNDARIES; WHEN PROPERTY TO BE SOLD DU-
TIES OF TOWN BOARDS RESPECTING SALE; CEMETERY
NOT TO BE SOLD OR DIVIDED.

When the boundaries of a town owning real or personal property shall
be altered, either by a division of a town into two or more towns or by the
annexation of a part of its territory to another town or towns, the town
boards of the several towns affected by such alterations shall meet as soon
as may be after the first town meetings subsequently held in such towns,
and shall make such agreement concerning the disposition to be made of
such real and personal property, and the apportionment of the proceeds,
as they shall deem equitable and take all measures, and execute all con-
veyances necessary to carry such agreement into effect. If no such agree-

 

3. For form of resolution of board of supervisors establishing and defining
boundary lines between towns, see Form No. 13, post.

Failure to acquire jurisdiction. If the board of supervisors attempts to
establish disputed boundary lines without having acquired jurisdiction by the
necessary application and the publication of the notice to make such applica-
tion, an injunction will lie against such board to restrain further action by it.
People ex rel. Town of Knox v. Supervisors, 63 How. Pr. 411.

Effect of statute establishing boundary line between towns. A board of
supervisors may, under this section, ascertain and locate a disputed boundary
line between two towns within the county which was established and settled
by an early statute in accordance with an ancient designated map. The
authorized action of a board of supervisors in determining such a boundary
line cannot, in the absence of fraud, collusion or bad faith on the part of the
board, be attacked in a taxpayer’s action. Govers v. Board of Supervisors, 171
N. Y. 403, affg. 55 App. Div. 40, 67 N. Y. Supp. 27.

Town boundaries; islands intersected by town lines. Whenever two towns
are separated from each other by a river, creek or lake, the middle of the
channel of such river, creek or lake, shall be the division line between them,
unless hereinbefore otherwise provided. R. S. pt. 1, ch. 2, tit. 4, sec. 58.

Whenever the boundary line between two towns crosses an island, the
whole of such island shall be deemed to be within the town in which the
greater part of it lies, unless hereinbefore otherwise provided. Idem, sec. 59-
TOWNS; ERECTION AND ALTERATION. 239

Town Law, § 381.

ment shall be made within six months after such town meetings, the
town board of each town in which any portion of such real property, or in
whose possession any of such personal property shall be, shall, as soon
as may be, sell and convey such part of the real property as shall be
included within the limits of the town as fixed by such alteration, and
such of the personal property as may be in its possession ; and the proceeds
arising from the sale shall be apportioned between the several towns in-
terested therein, by the town boards of all the towns, according to the
amount of the taxable property of the town divided or altered, as the same
existed immediately before such division or alteration, to be ascertained by
the last assessment-roll of such town. But no town cemetery or burial
ground shall be sold or divided, but the same shall belong to the town with-
in which it may be situated after a division of the town shall have been
made, and no lots heretofore granted by the people of this state to any town
for the support of the gospel and of schools, commonly called the gospel
and schools lots, shall be sold or apportioned.* [Town Law, § 30; B.C. & G.
Cons. L., p. 6138.]

§ 6. DEBTS TO BE APPORTIONED ACCORDING TO AMOUNT OF
TAXABLE PROPERTY; COLLECTION OF UNPAID TAXES IN
SUCH TOWNS.

Debts owed by a town so divided or altered shall be apportioned in the
same manner as the personal property of a town, and each town shall be
charged with its share of the debts, according to the apportionment, and
the amount of the unpaid taxes levied and assessed upon the taxable
property of the town, divided or altered, before the division or alteration
thereof, shall be apportioned between the several towns interested therein,
according to the amount of taxable property in each town as the same ex-
isted before such division or alteration, to be ascertained by the last assess-
ment-roll of the town.®

 

4. Title of property. Without express provision of statute the erection
of a new town does not take away the rights of the old town as to the com-
mon property not located within the limits of the new town. Denton v. Jack-
son, 2 Johns. Ch. 320. But in the case of Town of North Hempstead v. Town
of Hempstead, 2 Wend. 109, it was held that the division of the town of
Hempstead effected a division of the common lands.

Under an act passed by the legislature to divide the town of Kingston it
was held the legal title in the property belonging to the freeholders and in-
habitants of the town, continued in their trustees until conveyed by them to
officers of the towns into which the old town was divided. Jackson v. Louw,
12 Johns. 252.

As to constitutionality of chapter 975 of the laws of 1895, dividing the town
of Watervliet, see Fort v. Cummings, 90 Hun, 481.

5. Apportionment of debts. By this section debts owed by a town which
240 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, § 32.

In making such division, there shall be set off to each town interested
the unpaid taxes assessed and levied upon the real property within its
borders and such as were assessed and levied upon personal property
against persons or corporations who resided within its borders at the time
of the assessment; and each town, to which the same are apportioned, shal]
have the same power, right and methods of collecting the same by war-
rant, action, sale or otherwise, as the town so divided or altered had, or
would have had if such town had not been so divided or altered. Any
such town having apportioned to it more than its proportion of unpaid
taxes, according to the aforesaid taxable property, to be ascertained by the
last assessment-roll of such town, shall pay to the other town or towns in-
terested, such sum or sums as shall be necessary to make such apportion-
ment correspond with the said taxable property, as ascertained by the said
last assessment-roll of said town, before the said division or alteration.®
[Town Law, § 31; B. C. & G. Cons. L., 2d Fi., p. 8151.]

§ 7. MEETINGS OF TOWN BOARDS FOR DISPOSITION OF PROP-
ERTY AND APPORTIONMENT OF DEBTS TO BE CALLED BY
SUPERVISOR; ACTION TO ENFORCE SETTLEMENT.

Whenever a meeting of the town boards of two or more towns shall be
required, in order to carry into effect the provisions of this article, such
meeting may be called by either of the supervisors of such towns, by giv-
ing at least three days’ written notice to all the other members of such town
boards of the time and place of such meeting. [Town Law, § 32; B.C. &
G. Cons. L., p. 6139.]

Whenever said town boards shall fail to carry into effect the provisions of
this article and agree upon the amount of assets to which each town is
entitled, and the amount of indebtedness for which each town is liable and
complete the full settlement thereof, within eighteen months after the

 

has been divided or whose boundaries have been altered must be apportioned
by the town boards of the several towns affected by the division or alteration
in the manner prescribed in the preceding section for the apportionment of the
personal property of the several towns; that is by an agreement to be made
by the town boards. _

Proceedings by mandamus cannot be instituted against a board of super-
visors to levy and assess the amount due upon a judgment against the town
upon the territory formerly included in the town. The statute requires the
town boards to apportion the debts of the towns upon the property of the
several towns, and if the town boards refuse to act the remedy is by mandamus
against them to compel a compliance with the terms of the statute. People
ex rel. McKenzie v. Board of Supervisors of Ulster County, 94 N. Y. 263. In
this case the court said: “But for the statute, or some other provision of
law, upon a division of the old town of Kingston, all the liabilities of that
TOWNS; ERECTION AND ALTERATION. 24;

Town Law, §§ 38, 34.

division or alteration mentioned in section thirty of this article, any of
such towns may begin and maintain an action against the other town or
towns to make and enforce such settlement. [Idem, § 33.]

The provisions of this article shall apply to towns heretofore and here-
after divided or‘altered. [Idem, § 34.]

 

town would have remained against the present town of Kingston; and it
would have been entitled to all the property of the old town within its limits,
and would have been obliged to discharge all its debts and obligations. Lara-
mie County v. Albany County, 92 U. S. 307; Mount Pleasant v. Beckwith,
100 U. S. 514. Within the latter authority, if the old town of Kingston had
been entirely blotted out, and its territory annexed to other towns; or if
other towns had been carved out of it, and new municipalities had thus been
formed, in the absence of any legislation providing for the payment of the
debts of the old town, they would have devolved upon the new towns to be
paid by them in equitable proportions. But here express provision of law is
made as to the manner of discharging the obligations of the old town; and
those provisions are, at least in the first instance, executive and must be pur-
sued. “Under them all the debts of the old town of Kingston are to be ap-
portioned by, the officers named, between the three towns of Ulster, Wood-
stock and Kingston, according to taxable property as the same existed im-
mediately before the division, to be ascertained by the last assessment list
of the town, which was the assessment list of 1879. The relator, therefore,
has a plain remedy, which is by mandamus, to compel a meeting of the present
officers of the three towns and a discharge by them of the duties devolved
upon them by the statute.”

6. Expenses of publication, preparation of maps, etc., upon the application of
freeholders for the division of a town, cannot be legally charged either against
the old or the new town, or against the old town as it existed prior to the
division, Opinion of Atty. Gen, (1919), 19 St. Dept. Rep. 363,
242 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Explanatory note.

CHAPTER NIX.

TOWN MEETINGS.
EXPLANATORY NOTE.

Town Meetings Generally.

The present law has materially modified that ancient institution
known as “the town meeting.” In former days it was, as its name
indicates, a meeting of the inhabitants of a town to consider town affairs
and elect town officers. It was not then subject to the same formalities
as at the present time. The persons present at such meeting frequently
discussed town enterprises, and passed by resolution, adopted without
a ballot, upon many important questions. This power of voting viva
voce upon town questions still remains, but it is infrequently exercised.
Town meetings are now most commonly held at the time of general elec-
tions, in the same election districts and subject to the same general
conditions as such elections. Where town meetings are so held the
provisions of the Election Law, relative to nominations, ballots and
canvassing are generally applicable.

Time and Place of Holding Town Meetings.

Town meetings were formerly held annually. But since 1897
(L. 1897, ch. 481) they have been held biennially, in most counties in
each odd-numbered year. Unless otherwise provided by boards of super-
visors such meetings are held on the second Tuesday of February. Such
boards may fix a different time for holding such meetings; at any time
between February 1 and May 1, or on general election day. It is also
provided that a town may change the time of holding town meetings to
general election day by adopting a proposition therefor at a regular
town meeting.

The place of holding town meeting not held at the time of general
elections may be determined by vote of a biennial town meeting. Such
town meetings may be held in election districts, when so voted by the
electors of the town at a biennial or special town meeting. Unless it
has been so voted, town meetings are to be held in one place. Where
town meetings are held in election districts, the votes cast are to be
canvassed by the justices of the peace and the town clerk on the day
following the town meeting. (See Town Law, § 65.)
TOWN MEETINGS. 243
Explanatory Note.
SPECIAL TOWN MEETINGS.

Special town meetings are held for purposes authorized by law, on the
call’ of the town clerk. Applications therefor must be in writing
addressed to the town clerk. Such applications must be signed by at least
twenty-five taxpayers, or must be presented by a supervisor, superintend-
ent of highways, or overseer of the poor. Notice of such town meeting
must be given by the town clerk, by posting the same at least twenty
days before the day of the meeting in at least four conspicuous places in
the town, and by publication in at least two newspapers in the town; if
only one is published in the town, publication must be made therein. If
none are published in the town, the notices must be published in at least
two newspapers in the county.

ADOPTING PROPOSITIONS.

If a proposition requiring a vote by ballot is to be submitted at a town
meeting, either biennial or special, application must be presented to the
town clerk, either by taxpayers or town officers, stating the proposition
proposed. The town clerk must give the notice required by law that such
proposition is to be submitted. Ballots and ballot boxes must be provided
by him for use in voting upon such proposition. The provisions of § 48
of the Town Law, as amended by L. 1916, ch. 79, apply to propositions
voted upon at town meetings held at other times than on general election
day. If the town meeting is held on general election day, the provi-
sions of the Election Law, (L. 1922, ch. 588,)4 in effect April 12, 1922,
§ 85, and § 106, relative to questions submitted at a general election, apply
to such town meeting.

CONDUCT OF TOWN MEETINGS.

If town meetings are held on general election day the regularly elected
or appointed election officers conduct such meetings. If held on other
days, the justices of the peace of the town must preside and see that such
meetings are conducted according to law. The town clerk acts as clerk of
such meeting and must keep minutes of the proceedings. A town meet-
ing held at a time other than general election day is to continue open
from the rising to the setting of the sun. Such meeting may be continued
during the following day, and may be adjourned to a different place upon
a vote of the meeting in favor thereof.
TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

eo
i
Ges
eo

Explanatory Note.
QUALIFICATIONS OF ELECTORS.

Any person qualified to vote at a general election may vote for town
officers. But he cannot vote upon a proposition for the raising of money,

 

1. Savings clause and miscellaneous provisions. 1. Notwithstanding the foregoing
repeal, the registers heretofore provided shall be used at elections, for which voters
are required to be registered, held in the year nineteen hundred and twenty-two
prior to the general election, and at the fall primary in such year, for the purposes
indicated by the several columns thereof, and in the manner provided by the
election law before the taking effect of this chapter. At an election in such year
other than a primary election, held before such general election, and at the fall
primary in the city of New York in such year, poll-books shall be provided in the
form, and shall be used for the purposes indicated by the several columns, and in
the manner, as prescribed by the election law before the taking effect of this chapter.
Party nominations for city, town and village elections held in the year nineteen
hundred and twenty-two before the general election may be made in the manner,
and certificates of party and independent nominations and declinations thereof for
such an election may be in the form and may be authenticated, and shall be filed
within the times, provided by the election law before the taking effect of this
chapter; and this chapter shall not impair nor affect any notice of such an election
heretofore given or pending or any certificate of nomination or declination hereto-
fore made or heretofore filed. Except as otherwise provided in subdivision two
of this section, commissioners of election in office when this chapter takes effect
shall continue in office for the term for which they were appointed, unless sooner
removed. Where, by this chapter, the salaries of commissioners of elections are to
be fixed by the board of supervisors, such commissioners shall receive their present
salaries until otherwise provided by such board, but such salaries shall not be
changed to take effect during the terms of the present incumbents. The positions
or subordinates in the offices of boards or commissioners of elections and their
compensation shall continue until changed pursuant to law except in a county in
which the powers and duties of the board of elections are devolved by this chapter
upon the county clerk. General clerks, for election districts, heretofore appointed,
shall be the “clerks” for such districts, within the meaning of this chapter, until
the expiration of their present terms, unless sooner removed, Inspectors of clection
now in office, and poll clerks and ballot clerks in the city of New York, shall con-
tinue in office for the terms for which they were appointed, unless sooner removed.
Election districts, as now constituted, shall continue until changed pursuant to
this chapter.

2. The terms of office of commissioners of election in any county in which, by
the provisions of this chapter, the powers and duties of the board of elections are
devolved upon the county clerk shall expire, and the offices of such commissioners
and the offices and positions under such board are abolished, when this chapter
takes effect, and each such clerk, in his respective county, shall have the custody
of the books, records and papers of such board, [Election law, § 341 (L. 1922, ch.
588), in effect April 12, 1922.]
TOWN MEETINGS. 243)
Explanatory Note.

unless he or his wife is the owner of taxable property in the town. A
woman, who is a resident of the town and of the required age, and is the
owner of property assessed upon the last preceding assessment roll of the
town, may vote upon a proposition to raise money by tax or assessment.

POWERS OF TOWN MEETINGS.

The general powers of a biennial town meeting are prescribed by § 43,
as amended by L. 1909, ch. 422, and L. 1917, ch. 44, of the Town Law.
Other powers are conferred by other laws to which reference is made in
the proper place.

*

SECTION 1. Time and place of biennial town meetings; board of supervisors may fix
time; town meeting on general election day.

2. Town may change date of holding town meeting; submission of proposi-
tion therefor; certificate to be filed with town clerk and clerk of board

of supervisors; terms of office.

3. Changing place of holding town meetings; not to apply to towns in
counties where town meetings are held at time of general election.

4, General powers of biennial town meetings.
5. Power of town meeting to make appropriation for public monuments.

6. Special town meeting; for what purpose called; application therefor,
made by whom,

7. Notices of town meetings; notice of special town meeting.

8. Notice of propositions to ke determined by batlot; ballot boxes; form cf
ballot.

9. Presiding officers of town meetings; if no justice be present, person
may be elected by electors.

10. Clerk of meetings.

11. Duration of towm meetings.

12, Proclamation of opening and closing polls,
24+

TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 40.

13. Qualification of voter at town meeting held at time of general election.
14, Qualification of elector at town meeting.
15-16. Qualification of elector to vote for site for town house.

17. Votes to expend over five hundred dollars to be by ballot, if less, by

viva voce,

18. Ballots; electors in incorporated village, when not to vote on highway

questions.

19. Transactions of business not requiring a ballot; when questions are to

be submitted; how determined,

20. Challenges; provisions of election law applied.
21. Minutes of proceedings,
22. Canvass of votes; notification of officers elected.

23. Town meetings in election districts; may be held if regular election

districts, or town board may divide town; application therefor.

24. Vote upon propositions not requiring a ballot; vote to be by division of

electors present; inspectors to enter statement of results; notice of
submission of proposition,

25. Town meetings held at the time of general election; canvass of votes.
26, Ballots at town meeting held at time of general election,

27. The use and purchase of voting machines,

§ 1. TIME AND PLACE OF BIENNIAL TOWN MEETINGS; BOARD OF

SUPERVISORS MAY FIX TIME; TOWN MEETING ON GENERAL
ELECTION DAY.

The electors of a town shall, biennially," on the second Tuesday of

 

la. Biennial town meetings. Previous to the passage of chapter four
TOWN MEETINGS. 945

Town Law, § 40.

February, assemble and hold meetings at such place in the town as the
electors thereof at their biennial town meeting shall, from time to time,
appoint. If no place shall have been fixed for such meeting, the same
shall be held at the place of the last town meeting in the town or election
district, when town meetings of a town are held in election districts. The
board of supervisors of any county may, by resolution, fix a time when the
biennial town meetings in such county shall be held, which shall be either
on some day between the first day of February and the first day of May,
inclusive, or on the first Tuesday after the first Monday in November of
an odd numbered year.2- [Town Law, § 40; B. C. & G. Cons. L., p. 6140. ]

 

v

hundred and eighty-one of the laws of 1897, town meetings were held an-
nually. By that act a town meeting was to be held in each town in the spring
of 1898, at which town officers were to be elected for terms of one year; and
it was also provided that town meetings should be held in the year 1899 and
biennially thereafter.

Place of holding town meetings. The place of holding a town meeting
should be determined by motion or resolution, put in the usual form, upon
fair notice to the electors. The result should be declared by the proper officer
and entered on the minutes. Attorney-General’s Opinion (1870), p. 450. The
voting upon a question of where the town meeting shall be held may be by
ballot, viva voce, or by ayes and nays. If by ballot no previous notice that the
vote is to be taken is required. Attorney-General’s Opinion (1855), p. 236.

Under a statute similar in all respects to this the Court of Appeals held that
the qualified electors of a town at their town meeting, have power, after the
regular organization of the meeting, to determine by vote that the meeting
shall be continued at the place of such organization through a part of the
day and then adjourned to some other place in the town, and there continued
through the residue of the day. People ex rel. Simonson v. Martin, 5 N. Y.
22. This case was decided at the time when town meetings were much less
formal in their character than at present, and it may well be doubted whether
under the existing system a town meeting may be held at more than one
place on the same day. See, also, People ex rel. Kniffin v. Tabor, 21 How.
Pr. 42. But see Town Law, § 51, post. ‘

Conduct of town meeting. Vote of electors is not invalid or irregular be-
cause the resolution was put to vote and adopted from the piazza of a hotel,
to the voters outside, while the meeting and balloting was held inside the hotel;
nor because the clerk of the board, under directions of presiding officers put
the vote, and declared it carried. People ex rel. Kniffin v. Talor, 21 How. Pr. 42.

2. Town meetings on general election day. By chapter 363 of the laws of
1898, amending § 10 of the former Town Law, boards of supervisors were au-
thorized to adopt a resolution fixing the time of holding biennial town meetings
on the first Tuesday after the first Monday in November, that is, on generai
election day. A large number of counties have adopted such a resolution.

By chapter 30 of the laws of 1899, it was provided that: “The acts, resolu-
tions and proceedings of boards of supervisors under the authority conferred
by chapter 363 of the laws of 1898, changing the time of holding town meetines
in their respective counties to the first Tuesday after the first Monday in

‘
946 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, § 41.

§ 2. TOWN MAY CHANGE DATE OF HOLDNG TOWN MEETING; SUBMIS.
SLON oF FROFOSITION THEREFOR; CERTIFICATE TQ BE FILED
WITH COUNTY CLERK AND CLERK OF BOARD OF SUPERVISORS;
TERMS OF OFFICE,

A town may change the date of its town meeting to the first Tuesday after
the first Monday in November, known as general election day, by adopting a
Pioposiuon therefor at a regular town meeting. Such a proposition may be
submitted by the town board on its own motion, and shall be submitted by such
board on the written application of twenty-five taxable voters of the town. The
proposiuon must be submitted, voted on, and the result canvassed as prescribed
by section forty-eight. If it be adopted a certificate to that effect shall be filed
by tne town cierk within ten days thereafter in the office of the county clerk
and also with the clerk of the board of supervisors. If the proposition be
adopted the first town meeting shall be held on general election day in the next
calendar year, and the terms of all officers, except justices of the peace and
assessors, elected on the day of the adoption of the proposition shall expire on
the last day of December in the next calendar year. Thereafter town meetings in
sch town shall be held biennially on general election day in the manner prescribed
by this chapter, except that after five years from the first meeting, the town meeting
may in like manner change from such general election day to anv other day authorized
by law. The term of office of ail officers, except iust*ces of the neace, in a town
which under this section changes its town meeting to reneral election dav, shall be
two years beginning the first day of January succeeding their election, except that

 

November, «re hereby legalized, ratified and confirmed, and in such counties
town meetings shall be held in the year 1899 only on that day.” A similar act
was passed in 1901, See L. 1901, ch. 32.

in the czse of People ex rel Smith v. Schillein, 95 N. Y. 124, the question con-
sidered wes whether a jus:ice of the peace required by the constitution (art. 6,
sec. 18), to be elected at “an annual town meeting,” could, by an act of the
legislature be elected at any other time thin at a regular town meeting. The
court held, without deciding the question us to whether the legisla‘ure could
ch.nge the time of hoiding a town meewng to gener:] election cay, that it a
reguiar town meeting wes held in the spring, that the justices of the peace
could not be elected at a general election.

Resoluticn of bears of superviscrs changing town meetings to general election
day. A resolution of a board of supervisors which attempts to extend the terms
of town officers elected at a town meeting is uncuthorized. People ex rel. Smith
v. Weeks, 176 N. Y. 194, affg. 87 N. Y. App. Div. 610, 84 N. Y. Supp. 16. Buta
resolution changing the time of holding the biennial town meeting from spring
to fall is constitutional. People ex rel. Fluchiger v. Huftalen, 158 App. Div. 44.
Where the time of the biennial meeting is changed from March to the general
election day, town officers may not be elected at a town meeting in March, and
such officers had no right to the offices, as against those who were in office at
the time. The town officers then in office may hold until the vacancies caused
by the expiration of their terms are filled by the town board, or by those elected
at the biennial town meeting in November. People ex rel. Peckins v. Pelcher,
81 Misc. 423. The time of holding town meetings cannot be changed by the
board of supervisors so as to extend the terms of the supervisors in office at the
time of the adoption of the resolution. Rept. of Atty. Genl., Feb. 15, 1912. Board
of supervisors has no power to fix the year in which biennial town meetings
shall be held. Rept. of Atty. Genl. (1900), 269. But in the case of Smith v.
Farley, 155 App. Div. 813, 140 N. Y. Supp. 990; it was held that under the provision
of this section that “The board of supervisors of any county may, by resolution,
fix a time when the biennial town meetings in such county shall be held, which
shall be either on some day between the first day of February and the first day of
May, inclusive, or on the first Tuesday after the first Monday in November of an
odd numbered year,” the board of supervisors of a county where town meetings
have been held on the first Tuesday after the first Monday in November of the
odd-numbered years may pass a resolution providing that thereafter the biennial
town meetings of said county shall be held on the first Tuesday after the first
Monday in March of an even-numbered year, and of the even-numbered ye.rs
thereafter.

See, People ex rel. Cotti v Gilbert (1919), 226 N. Y. 103, 123 N. E, 79, revg.
187 App. Div. 23, 175 N. Y. Supp. ive.
TOWN MEETINGS. Q47
Town Law, § 42.

the term of an assessor elected on such day shall be for two or four years, as the
ease may be, beginning the first day of January succeeding their election. [Town
Law, § 41, as amended by L., 1910, ch. 271, and L. 1920, ch. 14.]

§ 3. CHANGING PLACE OF HOLDING TOWN MEETINGS; NOT TO
APPLY TO TOWNS IN COUNTIES WHERE TOWN MEETINGS
ARE HELD AT TIME OF GENERAL ELECTION,

The electors of a town may, upon the application of fifteen electors
therein, to be filed with the town clerk twenty days before a biennial town
meeting is to be held, determine at such meeting, by ballot, where future
town meetings shall be held. Where town meetings in any town are held
in separate election districts, the electors of each district may, at a biennial
town meeting, determine by resolution where its future town meetings shall
be held. If any place so designated shall thereafter, and before the close
of the next biennial town meeting, be destroyed, or for any reason become
unfit for use, or cannot for any reason be used for such purpose, the town
board shall forthwith designate some other suitable place for holding such
town meeting in said town or election district, as the case may be. The
provisions of this section shall not apply to towns in counties where the
town meetings are held at the same time as general elections.* ['Town
Law, § 42; B. C. & G. Cons. L., p. 6142.]

§ 4. GENERAL POWERS OF BIENNIAL TOWN MEETINGS.
The electors of each town may, at their biennial town meeting:

 

Provisions of town law relative to holding town meetings on general election
day. Article 31 of the Town Law provides for the holding of annual town meet-
ings and elections in the towns in the counties of Rockland, Orange and
Sullivan.

Article 26 of the Town Law provides for holding of town meetings and elec-
tions in a county of the state having a population of over 150,000 and less
than 160,000 inhabitants. This article only applies to the county of Onondaga.

Article 27 provides for the holding of town meetings and elections in a
county of the state having a population of over 130,000 and less than 150,000
inhabitants. This article only applies to the county of Oneida.

Article .28 provides for the holding of town meetings in a county having a
population of more than 120,000 and less than 130,000 inhabitants. This article
applies only to the county of Rensselaer.

Article 25 provides for the holding of town meetings and elections in a
county having a population of over 400,000 and less than 600,000 inhabitants.
This article only applies to the county of Erie.

Article 29 provides for the holding of town meetings and elections in a county
of the state having a population of over 71,000 and less then 75,000 inhabitants.
This article applies only to the county of Niagara.

Article 30 provides for holding town meetings and elections in counties
having a population of over 50,000 and less than 54,000 inhabitants. This article
would seem to apply only to the county of Herkimer.

Article 31-a, as added by L. 1917, ch. 126 and amended by L. 1918, ch. 372, pro-
vides for holding town meetings and election of town officers in Nassau county.

Article 31-b, as added by L. 1918, ch. 319, provides for town meetings and terms
of town offcers in Suffolk county.

8. See, also, Note 1, ante, under section 40 of Town Law. This section applies
to determining by electors of the town where future town meetings shall be held,
248 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 43.

1. Determine what number of constables, not exceeding five, and pound-
masters shall be chosen in their town for the then ensuing two years, ex-
cept that in a town of a county containing two hundred thousand inhabi-
tants or less, according to the last federal census or state enumeration, ad-
joining a city of the first class containing a population of over one million,
the number of constables to be so determined shall not exceed four ;* [Subd.
amended by L. 1917, ch. 44.]

2. Elect such town officers as may be required to be chosen ;*#

3. Direct the prosecution or defense of all actions and proceedings in
which their town is interested, and the raising of such sum therefor as they
may deem necessary ;°

+, Take measures and give directions for the exercise of their corporate
powers ;

 

4, Number of constables. If a town meeting has duly fixed the number of con-
stables, votes cast for more candidates than the number limited are wholly void.
People v. Loomis, 8 Wend. 396.

The determination of the number must be by formal resolution (People v, Adams,
9 Wend. 333), although, of course, such resolution is not required to be voted on
by ballot. See, also, People ex rel. Planter v. Jones, 17 Wend. 81.

4a. Justices of the peace may only be elected at the biennial town meetings pre-
scribed by statute. People ex rel. Lyon v. Wallin, 141 App. Div. 34, 125 N. Y. Supp.
613.

5. Prosecution of actions and proceedings. Where cause of action exists in behalf
of a town, and no oflicer is by statute authorized to prosecute for such cause of
action, the town meeting may direct such an action to be brought, and may appoint
an agent to prosecute it; but such suit must be brought in the name of the town.
Cornell v. Town of Guilford, r Den. 510. In this case the electors of a town at a
town meeting directed the commissioners of highways to prosecute a turnpike com-
pany for entering upon and taking possession of a public highway and bridge in
that town, and the commissioners accordingly brought suit for that cause of action
in their own name, and failing to succeed, judgment was rendered against them.
It was held that such commissioners could not sustain an action against the town
for reimbursement for their costs and expenses, and for costs recovered against them
in the suit. The resolution in this case would have been valid if it had authorized
the commissioners to prosecute a suit against the turnpike company in the name of
the town.

A resolution directing the prosecution of actions and proceedings should be
formally drawn up and submitted to the electors of the town and be duly entered
upon the minutes kept by the clerk of the town meeting. Town of Lyons v.
Cole, 3 T. & C. 431; Denton v. Jackson, 2 Johns. Ch. 336. In the former case it
appeared that a town resolution was adopted authorizing the supervisors to bring
an action to restrain commissioners appointed for the issue of town bonds, from
disposing of the bonds until the rights of the town were protected; the supervisor
employed attorneys who, with his consent, brought an action in the name of the
town against the commissioners, attacking their authority to issue the bonds, and
asking judgment that the issue be declared void. It was held void; that the action
was unauthorized by the resolution and that the defendant’s motion to dismiss
the complaint and stay the proceedings should be granted.

In the case of Town of Delhi v. Graham, 3 Hun, 407; 6 T. & C, 49, the fact that
an action had been brought in behalf of the town was announced at a town meeting
and received without objection; it was held that a motion by the defendant for a
stay of proceedings on the ground that the use of the name of the town was unau-
thorized should be denied, since there had been no fraudulent use of the name
although the action was not formally brought.
TOWN MEETINGS. 249
Town Law, § 43.

3. Make provisions and allow rewards for the destruction of noxious
weeds and animals, as they may deem necessary, and raise money therefor ; °

 

It is not necessary, in an action brought pursuant to the authority granted
by a town meeting, to aver in the complaint and prove on the trial that action
had been taken by a town meeting authorizing the prosecution of the suit,
in order to entitle a town to recover upon a cause of action shown to exist
in its favor. Town of Fort Covington v. U. S. & Canada R. R. Co., 1 App.
Div. 228; 40 N. Y. Supp. 313; affd. 156 N. Y. 702. The court remarked in
this case that: “If the defendants had any advantage, arising from such an
omission, and wished to secure it, they should have moved to dismiss the
action on that ground. It is not in my judgment one of the issues to be tried
in the action. Whether plaintiffs have legal authority to sue can only be pre-
sented on motion.”

Power of town to borrow money to pay expenses of actions. An actiomr
having been commenced by certain taxpayers to restrain the enforcement of
certain town bonds and to have the law under which they were issued adjudged
unconstitutional, a resolution was adopted at an ennual town meeting author-
izing the supervisor of the town, on consent of the plaintiffs in said action,
to assume control thereof, prosecute it to a final determination and pay all the
expenses; and for that purpose to borrow on the credit of the town all needed
sums of money. A supervisor acting in accordance with the resolution, bor-
rowed money on the credit of the town, giving its notes therefor, which
money was used for the purpose specified. In an action upon the notes it was
held that, assuming the electors of the town had power to authorize its super-
visor to take control of the pending action; also, that it might be treated as
if commenced in the name of the town or its supervisor, and that such electors
had power to direct money to be raised for prosecuting that action, still the
action upon the notes was not maintainable. Wells v. Town of Salina, 119 N. Y.
280; 23 N. H. 870. This case was decided entirely upon the question of the
authority of a town to borrow money upon credit to meet town charges. Judge
Earl said in his opinion in this case: ‘It is the policy of the laws that town
eharges shail be met by annually recurring taxation, and thus extravagance
and improvidence are in some degree checked, as those who create town charges
or are the taxpayers when they arise, must bear the burden of taxation to
meet them. It is quite easy for the taxpayers of to-day to create a debt which
they are not to feel and which the taxpayers of the future are to discharge. The
system of laws relating to towns requires that all bills for moneys expended
or materials furnished or services rendered to the town shall be verified and
presented to the board of town auditors and audited by them, and then enforced
by warrants of the boards of supervisors against the taxpayers of the town.
This whole system would be subverted if towns could borrow money upon credit
to meet town charges. Then the money would have to be repaid whether the
town had had the benefit thereof or not, and the wise provisions of the
statutes to secure economy and safety by the audit of accounts would be
entirely frustrated.”

6. Noxious weeds. Under sec. 12, sub. 7, of the County Law, ante.
boards of supervisors are authorized to make such laws and regulations as
they may deem necessary for the destruction of wild and noxious animals and
weeds within the county. It is the duty of the superintendent of highways to
250 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 43.

6. Establish and maintain pounds at such places within their town as
may be convenient ; 7

%. Direct public nuisances in their town, affecting the security of life
and health, to be changed, abated or removed and raise a sum of money
sufficient to pay the expense thereof ; *

8. Make from time to time such prudential rules and regulations as they
may think proper, for the better improving of all lands owned by their
town, in its corporate capacity, whether common or otherwise; for main-
taining and amending partition or other fences around or within the same,
and directing the time and manner of using such land; °

 

cause noxious weeds within the bounds of the highways to be cut down or
destroyed twice in each year. See Highway Law, sec. 47, sub. 7, post. It
is made the duty of owners or occupants of lands adjoining highways to cut
noxious weeds, brier and brush growing upon the lands within the bounds of
the highway twice in each year. See Highway Law, secs. 54, 55, post.

%. Pounds. As to the erection of pounds and the appointment or election of
pound masters, see Town Law, secs. 410, 411, post.

8. Public nuisances. A public nuisance as a crime is defined ty section 1592
of the Penal Law. Public nuisances which are detrimental to the public health
are within the jurisdiction of the local board of health and are abated or
removed subject to the provisions of the Public Health Law, secs. 31-37,
post. See Boyce’s Health Officers’ Manual, pp. 28-29. The whole subject of
abatement of public nuisances affecting public health is included within the
provisions of these sections of the Public Health Law, and the jurisdiction of the
town board of health is sufficiently extensive to provide for all cases which may
arise. It is therefore seldom that a town meeting will be called upon to direct
the abatement of public nuisances.

9. Town lands. It is a settled rule of the common law that a community not
incorporated cannot purchase and take lands in succession. Hornbeck v.
Westbrook, 9 Johns. 73; but in the case of Vail v. L. I. R. R. Co., 106 N. Y. 283;
12 N. E. 607, holding that the acquisition by a town of a fee in land for
highway purposes by voluntary grant is within the powers conferred upon it
by statute. It is possible that the provisions of section 2 of the Town Law
(ante), to the effect that a town is a municipal corporation, would modify the
common law rule and authorize an acquisition of lands by towns for legitimate
town purposes.

Questions have arisen in certain towns, especially those erected on Long
Island as to the rights of towns in respect to lands deeded to them under
colonial grants. The title to common lands held by a town under colonial grants
is in the town as a corporation and is subject only to the trust for public use.
People v. N. Y. & Manhattan Beach Ry. Co., 84 N. Y. 565. In the case of Law-
rence v. Town of Hempstead, 155 N. Y. 297; 49 N. E. 868, this whole question
was thoroughly considered and :t was held that the colonial patents to the town
of Hempstead vested the ownership in that town in its corporate capacity, and
not in the patentee’s name in the grant nor in the inhabitants of the town. It
is stated in this case that the early mode of dividing such lands among the
patentees, or their associates or successors was by the “ fencing order.” This
TOWN MEETINGS. 251

Town Law, § 43.

9. Make like rules and regulations for ascertaining the sufficiency of all
fences in such town and for impounding animals; impose such penalties
on persons offending against any rule or regulation established by their own
town, excepting such as relate to the keeping and maintaining of fences,
as they may think proper, not exceeding ten dollars for each offense, and
apply the same, when recovered, in such manner as they may think most
conducive to the interests of their town; *°

 

division when duly made at a town meeting was held to operate as a valid
source of title and the court intimated that it is too late after the lapse of two
hundred and fifty years to criticise, on account of the absence of legal forms,
transfers on which the titles of great communities are based.

In the case of People ex rel. Averill v. Works, 7 Wend. 486, it was held that
electors could at a town meeting adopt regulations for the improvement of
town lands. As to trespass on town lands, see Foster v. Rhoades, 19 Johns. 191;
Emans v. Turnbull, 2 Johns. 313.

10. Sufficiency of fences, The electors of each town have, under the above
section of the Town Law, the power at their biennial town meeting to make
rules and regulations for ascertaining the sufficiency of all fences in the town.
When the sufficiency of a fence shall come in question in any suit, it shall be
presumed to have been sufficient until the contrary is established. Railroad
‘orporations are required under the Railroad Law to erect and maintain fences
on the sides of their road of the height and strength sufficient to prevent cattle,
horses, ete., from going upon the road from the adjacent lands. Railroad Law,
sec. 52, as amended by L. 1915, ch. 281.

In the case of Leyden v. N. Y¥. C. & H.R. R. R. Co., 55 Hun, 114, it was held
that in the absence of action by a town meeting establishing the height and
strength of division fences it was competent to show in a town what the height
rd strength of such fences generally were, and the court, also, in this case,
held that although the fence erected by the railroad corporation was in the
fi-st instance higher and stronger than was necessary, that if it permits a
portion of such a fence to be broken down and cattle escape through the same
upon the railway lands, the company is liable for damages done to such cattle.
As to the erection and maintenance of division fences of owners of lands, see
Town Law, secs. 360-369, post. Section 367 of the Town Law provides
that: ‘‘ Whenever the electors of any town shall have made any rule or regula-
tion prescribing what shall be deemed a sufficient division fence in such town,
any person who shall thereafter neglect to keep a fence according to such
rule or regulation, shall be precluded from recovering compensation for damages
done by any beast lawfully kept upon the adjoining lands that may enter there-
from on any lands of such person, not fenced in conformity to the said rule or
regulation, through any such defective fence.”

Where the electors of the town at a regular town meeting, prescrihe or de-
termine what shall be a sufficient lawful fence in their town, no person can
maintain an action for the trespass committed by cattle which enter the
plaintiff's land through a fence which is not sufficient according to the rule
prescribed at such town meeting. Griffin v. Martin, 7 Barb. 297; Hardenburgh
v. Lockwood, 25 Barb. 9. :

Town meeting cannot regulate running of animals on lands of owner. Shep-
252 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 48, 45.

‘10. In towns bound to support their own poor, direct such sums to be
raised, as they may deem necessary for such purpose, and to defray any
charges that may exist against the overseers of the poor in their town; ?!

11. Determine any other question lawfully submitted to them;

12. Direct the sale and conveyance by the supervisor in the name of the
town of property owned by it.4#

13. Make provisions for recopying, binding and indexing, or either
thereof, the public records of the town from and to such dates as may be
determined, and the raising of such sums therefor as may be deemed nec-
essary. [Subd. added by L. 1999, ch. 42%, in effect May 21, 1909.]

Every order or direction, and all rules and regulations made by any town
meeting, shall remain in force until the same shall be altered or repealed
at some subsequent town meeting. [Town law, § 43; B. C. & G. Cons. L.,
p. 6142.]

§ 5. POWER OF TOWN MEETING TO MAKE APPROPRIATION FOR
PUBLIC MONUMENTS.

It shall be competent for electors of any town, at any regular town
meeting at any regular election to vote any sum of moncy, to be desig:
nated by a majority of all the electors voting at such town meeting or
election, for the purposes of erecting a public monument within such
town in memory of the soldiers of such town or in commemoration of
any public person or event; but no debt shail be created nor shall any
tax be imposed on any town for such purpose unless the same shall
have been voted for by a majority of the legal voters of the town af-
feetcd, voting at such election. The board of supervisors may legalize
the vote of any town for such purpose, and after such vote they may
raise or authorize the specified sum or sums of money to be raised for
such purpose in any of the modes provided for by law for raising
money for towns. All moneys expended by any town for the purposes
authorized by this section shall be expended under the direction of the
supervisor, town clerk and justices of the peace of such town or a ma-
jority of them or by a commissioner or commisisoners for that pur-
pose appointed by such town officers or by a majority of them. But noth-
ing in this section shall affect the right of the electors to vote on a propo-
sition heretofore directed to be submitted by a board of supervisors,
herd v. Hees, 12 Johns, 433; Holliday v. Marsh, 3 Wend. 142; Wells v. Howell, 19
Johns. 385.

11. Support of poor. If the proposition to raise money for the support of the
poor calls for an amount exceeding #500 it must be voted upon by ballot, (Town
Law, sec. 57, ante.) The expenditure of money for the relief of the poor is treated
in a subsequent chapter. See clis. 38, 39, post.

lla. A proposition to direct a sale and conveyance of town property may be
passed upon at a special town meeting, provided it was not acted upon at the last
preceding biennial town meeting. When, however, such a proposition is once sub-
mitted and passed upon at a town meeting. it may not be again submitted until
tke succeeding biennial meeting. Rept. of Atty. Genl., Jan. 31, 1912.

 
TOWN MEETINGS. 953
Town Law, § 46.

or the power of a board of supervisors to carry into effect the vote upon
such proposition. [Town Law, § 45; B. C. & G. Cons. L., p. 6145.]

§ 6. SPECIAL TOWN MEETING; FOR WHAT PURPOSE CALLED;
APPLICATION THEREFOR, MADE BY WHOM.

Except as herein set forth special town meetings shall also be held
whenever twenty-five taxpayers upon the last town assessment-roll shall,
by written application addressed to the town clerk, require a special town
meeting to be called, for the purpose of raising money for the support of
the poor; or to vote upon the question of raising and appropriating
money for the construction and maintenance of any bridges which the
town may be authorized by law to erect or maintain; or for the purpose
of determining in regard to the prosecution or defense of actions, or the
raising of money therefor; or to vote upon any proposition which might
have been determined by the electors of the town at the last biennial
town meeting, but was not acted upon thereat; or to vote upon or deter-
mine any question, proposition or resolution which may lawfully be
voted upon or determined at a special town meeting,”® except that in

 

12. Purpose for which special town meetings may be called. Only
such questions or propositions can be voted upon at a special town meeting as are
specified in the statute. People v. Works, 7 Wend. 486. In the case of Berlin
Iron Bridge Company v. Wagner, 57 Hun, 346; 10 N. Y. Supp. 840, it appeared
that a special town meeting was duly called for the purpose of voting upon a
resolution to raise and appropriate money for the construction and maintenance
of an iron bridge. This resolution was voted upon by the electors of the town
by ballot and adopted by a majority vote. A resolution was further submitted to
the electors of the town and voted upon by viva voce vote authorizing an appli-
cation to the board of supervisors for the appointment of a commission to build
such bridge. It was held that the special town meeting had no authority to
authorize the appointment of such commissioners, and that an act of the board of
supervisors providing for such appointment was invalid. The special town meet-
ing was called under the provisions of the statute as it existed prior to the passage
of the Town Law, and such statute did not authorize the calling of a special town
meeting to secure the appointment of commissioners to construct a bridge. Such
statute only authorizes a vote upon the question of raising and appropriating
money for the construction and maintenance of a bridge.

The provisions of the above section permitting special town meetings to vote
on the question of raising and appropriating moneys for the construction and
maintenance of bridges does not abolish the limitation as to the amount to be
raised by immediate taxation; it simply authorizes necessary sums to be raised
which, prior to the passage of the act of 1886, chapter 259, from which the above
section was derived, could only have been authorized at a regular town meeting.
The provision contained in such section, limiting the authority to the special
meeting “called for the purpose,” simply requires a meeting called for the purpose
of considering and deciding the question of erecting or repairing the bridge, and so
it is not necessary that the call should state that it is for the purpose of borrow-
ing money. Berge v. Berlin Bridge Company, 133 N. Y. 477; 31 N. E. 609.

In the case of Town of Kirkwood v. Newburg, 45 Hun 323, a similar resolution
adopted by a special town meeting was under consideration. The resolution was
not challenged on the ground of the want of authority of the special town meeting,
and it would seem that the town meeting was in that-case called under a different
statute. If it is desired to provide for the appointment of commissioners to super-
intend the construction of a bridge, it is possible that an application may be made
to the board of supervisors for the passage of an act therefor under the provisions
of section 69 of the County Law. In case the board of supervisors has authority
to act in a given case, it is presumed that they would be authorized to appoint
commissioners to superintend the construction of a bridge. Berlin Iron Bridge
Company v. Wagner, supra,
954 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, § 47.

towns having an assessed valuation of ten million dollars or more,
located within a county adjoining a city of the first class, propositions
above specified shall be submitted on an application of taxpayers of such
town, at a regular or special town meeting, only upon the application of
at least one hundred taxpayers for the first ten million dollars of assessed
valuation and by at least one hundred taxpayers for each additional ten
million dollars of assessed valuation or major fraction thereof. Special
town meetings may also be held upon the like application of the super-
visor, commissioners of highways or overseers of the poor, to determine
questions pertaining to their respective duties as such officers, and which
the electors of a town have a right to determine. An application and
notice heretofore made and given for a special town meeting to be here-
after held for a purpose not heretofore authorized by law, but now
authorized by law, shall be as valid and of the same force and effect as
if such purpose had been authorized by law at the time of such applica-
tion and notice. All special town meetings in towns in which the regu-
lar biennial town meetings are held at the time of the general election
may be held in any such town at one polling place therein, as near to the
geographical center of the town as practicable, to be fixed by the town
board, and shall be conducted by the justices of the peace and town clerk,
the latter to act as clerk of such meeting. A resolution fixing such place
shall remain in force in respect to subsequent special town meetings
until abrogated by a like resolution changing such polling place. [Town
Law, § 46, as amended by L. 1910, ch. 188, and L. 1916, ch. 341; B. C.
& G. Cons. L., p. 6145.]

§ 7 NOTICES OF TOWN MEETINGS; NOTICE OF SPECIAL TOWN
MEETINGS.

No previous notice need be given of the biennial town meetings; but
the town clerk shall, at least twenty days before the holding of any special
town meeting cause notice thereof, under his hand, to be posted con-
spicuously in at least four of the most public places in the town and to be
published once in each week for two consecutive weeks immediately prior
to such special town meeting in two newspapers published in such town;
if there be but one newspaper published in such town then in such news-

 

When the proceedings of the special town meeting called to consider the propriety
of instituting and defining certain statutes and to raise money therefor mera
regular and authorized the relator to begin certain actions, the expenses incurred
by him therefor are a valid claim against the town, and if the town board neglect
or refuse to audit, the proper remedy is by mandamus to compel such audit.
People ex rel. Wells v. Board of Audit, 4 Hun, 94. A town meeting has no power
to discontinue a highway once established. That can be done only by the inter-
vention of the authorities and according to the procedure pointed out in the
statute, and a town meeting is no part thereof. Hughes v. Bingham, 135 N. Y.
347; 32 N. E. 78.

Prosecution or defense ef actions. The provision that special town meet-
ings may be held “for the purpose of determining in regard to the prosecution or
defense of actions” is permissive, and the town board has implied authority to
authorize the prosecution of an action by the town. Town of Hempstead v. Law-
rence, 138 App. Div. 473, 122 N. Y. Supp. 1037.
TOWN MELTINGS 25

or

Town Law, § 48.

paper and in a newspaper, published in the county, having circulation
in such town or if there be no newspaper pubiished in such town
then in two newspapers published in the county, having circulation
in- such town; which notices shall specify the time, place and purposes of
the meeting. [Town Law, § 47, as amended by L. 1922, ch. 105.]

§ 8. NOTICE OF PROPOSITIONS TO BE DETERMINED BY BALLOT;
BALLOT-BOXES; FORM OF BALLOTS.

No proposition or other matter than the election of officers shall be
voted upon by ballot at any town meeting, unless the town officers or at
least twenty-five taxpayers upon the last preceding town assessment roll
whose signatures shall be acknowledged in the same manner as a deed
to be recorded, and in towns with a population of more than ten thousand
inhabitants as appears by the last federal census, at least fifty taxpayers
upon the last preceding town assessment roll whose signatures shall be
acknowledged in like manner, shall, at least twenty.days before the town
meeting, file with the town clerk a written application, plainly stating
the question they desire to have voted upon, and requesting a vote
thereon at such town meeting; provided, however, that in a town having
less than fifteen hundred inhabitants, such application shall be sufficient
if so signed and acknowledged by ten per centum of such taxpayers, but
nothing herein contained shall require the signatures of over twenty-five
taxpayers in such town. When town officers, as such, make the applica-
tion for a vote to raise money for purposes pertaining to their duties,
they shall file with their application a statement of their account to date,
with the facts and circumstances which, in their opinion, make the appro-
priation applied for necessary, and their estimation of the sum necessary
for the purpose stated, which statement may be examined by any elector
of the town, and shall be publicly read by the town clerk at the meeting
when and where the vote is taken, at the request of any elector. The

 

Submission of propositions under Liquor Tax Law. A special town
meeting is not in any sense “a town election” at which propositions can be sub-
mitted to the electors of the town to determine the question whether liquors shall be
sold therein. In the case of People ex rel. Thomas v. Sackett, 15 App. Div. 290,
293; 44 N. Y. Supp. 593, the court said: “Under section 16 of the Liquor Tax Law
the meeting therein referred to is the one at which a town election for officers may
be held; one at which official ballots are required to be used, and for which it is
made the duty of the town clerk to prepare such ballots at a fixed and stated time.
The annual town meeting is the only one to which these provisions are applicable.

Legalizing acts of town meetings. It is provided in the County Law, sec. 15,
ante, that the board of supervisors may “by two-thirds vote of all its members,
legalize the informal acts of any town meeting or village election within such
eounty, etc.”

Application. The application under this section for a special town meeting
must be addressed to the town clerk and should be subscribed by at least twenty-five
taxpayers whose names appear upon the last preceding town assessment-roll; or such
application may be made by either of the town officers mentioned in the above
section. For the form of such application, see Form No. 14, post.

13. For form of notice of special town meeting, see Form No. 15, post.
om
rt
o>

TOWNS. TOWN MEETINGS AND TOWN OFFICERS

Town Law, § 48.

town clerk shall, at the expense of his town, give at least ten days’ notice,
posted conspicuously in at least four of the most public places in the
town, of any such proposed question, and that a vote will be taken by
ballot at the town meeting mentioned.1* He shall also, at the expense

 

14. For forms of application for vote by ballot upon propositions and of
notice that a vote upon such proposition will be taken by ballot, see Forms Nos.
16 and 17, post.

References. Publication of propositions, Election Law, § 81, ballot boxes for
questions submitted, Id. § 85.

Forms of ballot; ballot boxes. The form of ballots for questions: submitted
is prescribed by section 106 of the Election Law, post. See Jewett’s Election
Manual, 1921. By the provisions of this section town propositions for raising
or appropriating money for town purposes are to be separate from all other
ballots for the submission of other propositions or questions to the electors of the
town to be voted upon at the same town meeting or election. This provision
applies to town meetings held at the same time as general elections.

In the ease of Matter of Larkin, 163 N. Y. 201; 57 N. E. 404, it was held in
effect that the provisions of the Election Law do not apply to town meetings
held at a time other than at the time of a general election, unless the Town Law
in express terms applies such provisions. See, also, People ex rel. Guernsey v.
Pierson, 35 Misc. 406. In view of this decision it may be that the above section
of the Town Law would control the form of a ballot for the submission of a proposi-
tion, and that, therefore, a written ballot submitting a question at such a town
meeting would be valid; but it would be the safer and better method, in preparing
ballots for questions submitted, to conform to the requirements of the Election
Law. Section 316 of the Election Law, post (see Jewett’s Election Manual, 1918),
provides for the furnishing of a separate ballot box for the reception of votes upén
propositions, to be indorsed “ Box for questions submitted.”

Under the provision that boards of election shall provide ballots for all elec-
tions except those at town meetings held at times other than a general election,
the exception has no application to a town meeting held at the same time as a
general election, and ballots furnished for a local option election thereat are valid.
Matter of Town of Bath (1916), 93 Misc. 575, 157 N. Y. Supp. 205.

Compliance with statute. It is very rarely that at a town meeting all of the
requirements of the Election Law, Town Law, Liquor Tax Law, and other statutes
relating to such election, are strictly complied with. These requirements are too
numerous and intricate to expect exact compliance with every detail on the part
of town officers. If an election could be set aside for every oversight, omission
and mistake of the officers in charge, but few would stand. Unless it is shown
that such mistake affected the result or tended to deprive someone of his legal
rights, such election should not be disturbed. Matter of Town of Groton (1909),
63 Mise. 370, 118 N. Y. Supp. 417, affd. 134 App. Div. 991.

Submission of propositions under the Liquor Tax Law. This section of
the Town Law is general and sweeping in its provisions, and was intended not
only to apply to all propositions and questions which could be lawfully submitted
to a town meeting at the time of the passage of such law, but also to other proposi-
tions that could thereafter be submitted by reason of subsequent enactments.
People ex rel. Hovey v. Town Clerk, 26 Misc. 220, 222; 56 N. Y. Supp. 64. In this
case the provisions of the above section were held to apply to a petition of town
electors to request, under section 13 of the Liquor Tax Law, a resubmission to the
electors at a town meeting of the question of local option, and that, therefore, unless
the petition is filed with the town clerk at least twenty days before the town meet-
ing, his refusal to print the ballots required for such resubmission is jusified, and
action upon his part will not be compelled by mandamus.

In the case of Matter of Eggleston, 51 App. Div. 38; 64 N. Y. Supp. 471, it was
TOWN MEETINGS. 257

Town Law, § 48.

of his town, provide a ballot box, properly labeled, briefly indicating;
the question to be voted upon, into which all ballots voted upon the ques-

 

held that a petition for the submission of a question under the locai option
provisions contained in section 13 of the Liquor Tax Law should be filed with
the town clerk, notwithstanding the fact that such section of the Liquor Tax
Law required such petition to be “ filed twenty days before such town meeting
with the officer charged with the duty of furnishing ballots fo> the election.”
The question in this case seems to have arisen because of the confusion which
existed in the Election Law at that time as to the proper officer to provide
ballots where town meetings were held at the time of general elections. This
confusion has been removed by the provisions of former § 342 of the Election
Law (Jewett’s Election Manual, 1918), to the effect that if a town meeting
is held on general election day ballots for town propositions shall be pro-
vided by the town clerk in the same form as at a town meeting held at any other
time. The case last cited also holds that it is a duty of the town clerk to give
notice of the submission of the questions relating to local option in the manner
prescribed by the above section of the Town Law. :

Effect of insufficient notice. The question of the effect of an insufficient
notice upon the validity of the vote upon a proposition submitted at a town
meeting has arisen in cases under the Liquor Tax Law. In the case of People
ex rel. Crane v. Chandler, 41 App. Div. 178; 58 N. Y. Supp. 794, the notice was
published but four days prior to the town meeting. It was contended that such
notice ought to have been filed twenty days before the town meeting. The court
held that a resubmission of the proposition was not necessary since it appeared
that the electors of the town had notice of the intention to submit the questions
and that they acted upon such notice and expressed their will in the mode
prescribed by statute; and the court declared that there were no informalities
sufficient to warrant it in saying that the conclusion reached by the electors was
not sufficient. The court cited the case of People ex rel. Hirsh v. Wood, 148 N. Y.
142; 42 N. E. 536, in which the court said: “ We can conceive of no principle
which permits the disfranchisement of innocent voters for the mistake or even
wilful misconduct of election officers in performing the duty cast upon them.
The object of elections is to ascertain the popular will, and not to thwart it.
The object of election laws is to secure the rights of duly qualified electors and
not to defeat them. Statutory regulations are enacted to secure freedom of
choice, and to prevent fraud.” See, also, Matter of Clement, 29 Misc. 29; 60.
N. Y. Supp. 328.

Sufficiency of application. The provisions of the above section of the
Town Law were not complied with where it appears that a sufficient number of
qualified persons signed a paper denominated a “ resolution,” which recited that
a certain sum should be raised on the faith and credit of the town by an issue
and sale of its bonds, and that the money raised and its interest should be
charged upon the property of the town taxable therefor, for the purpose of grad-
ing and paving certain roads described in the resolution. The paper was not ad-
dressed to any person, body or officer, and did not state any question which the
signers desired should be voted upon, nor did it request that any vote be taken
thereon at a town meeting, and the signers, although taxpayers, were not de-
scribed as such in the paper, all of which are necessary requirements under the
statute. Town of Oyster Bay v. Harris, 21 App. Div. 227; 47 N. Y. Supp. 510.
258 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 49.

tion indicated shall be deposited. He shall also prepare and have at
the town meeting a sufficient number of written or printed ballots, both
for and against the question to be voted upon, for the use of the electors.
Tke vote shall be canvassed, the result determined and entered upon the
minutes of the meeting, the same as votes given for town officers. [Town
Law, § 48, as amended by L. 1916, ch. 79; B. C. & G. Cons. L., p. 6146.]

§ 9. PRESIDING OFFICERS OF TOWN MEETINGS; IF NO JUSTICE
BE PRESENT, PERSON MAY BE ELECTED BY ELECTORS.

The justices of the peace of each town shall attend every town meeting
held therein, except where such town meetings are held at the time of the
general elections, and such of them as shall be present shall preside at
such meeting, and see that the same is orderly and regularly conducted,
and shall have the like authority to preserve order, to enforce obedience
and to commit for disorderly conduct, as is possessed by the board of
inspectors at a general election.**

 

15. Constitutional provisions. The constitution provides that registration
or election boards shall be bi-partisan, but this provisions does not apply to town
meetings. (Constitution, art. 2, sec. 6.) .

Maintenance of order. Under the provisions of this section the justices
presiding at a town meeting have the same power to preserve order as_in-
spectors of election at a general election. Section 160 of the Election Law
(Jewett’s Election Manual, 1921), provides that: “Such board and each in-
dividual member thereof shall have full authority to preserve peace and good:
order at such meetings, and around the polls of elections, and to keep the
access thereto unobstructed, and to enforce obedience to their lawful com-
mands. The said board may appoirt one or more voters to communicate their
orders and directions, and to assist in the performance of their duties in this
section enjoined. If any person shall refuse to obey the lawful commands of
the inspectors, or by disorderly conduct in their presence or hearing shall in-
terrupt or disturb their proceedings, they shall make an order directing the
sheriff or any constable of the county, or any peace or police officer to take the
person so offending into custody and retain him until the registration of
voters, or the canvass of the votes shall be completed, but such order shall
not prohibit the person taken into custody from voting. Such order shall be
executed by any sheriff, constable, peace or police officer, to whom the same
shall be delivered, but if none shall be present, then by any other person
deputed by such board in writing. The said board or any member thereof
may order the arrest of any person, other than an election officer, violating or
attempting to violate, any of the provisions of this chapter.”

Any wilful disobedience of a lawful command of the board of inspectors or
any member thereof, is a misdemeanor (Penal Law, § 764, sub. 17), and this
provision, of course, applies to presiding officers at town meetings.

Inspectors have a right to keep order during the canvass of the votes, but
they cannot under such a pretense turn out a peaceful and quiet citizen whose
TOWN -MEETINGS. 259

‘Town Law, § 49.

If there be no justice of the peace at such meeting, then such person
as shall be chosen for that purpose by the electors present shall preside
and possess the like powers as justices; such person appointed shall take
the constitutional oath of office before entering upon his duties as such
presiding officer. [Town Law, § 49; B. C. & G. Cons. L., p. 6147.]

presence does not interfere with the discharge of their duties. Horton v. Whistler,
4-N. Y. St. Rep. 810.

Delegation of authority, Justices of the peace cannot delegate their authority
to other persons to act in their stead as presiding officers of town meetings. Rept.
of Atty. Genl., March 27, 1911.

Acts of justices of the peace are ministerial and cannot be reviewed by
certiorari. Justices of the peace while acting in the position of inspectors of
election, are merely ministerial officers, and, although they may have allowed
an assistant of the town clerk, who was not himself sworn as a clerk to keep
the tally sheet and declare the result of the canvass, and have permitted other
unauthorized persons to aid, under their direction and supervision in the dis-
tribution of tickets, and in the taking and counting of votes, the conduct of the
justices in permitting such irregularities is not judicial action within the
ordinary meaning of that term and cannot be reviewed by a writ of certiorari.
People ex rel. Brooks v. Bush, 23 App. Div. 363; 48 N. Y. Supp. 13; citing Matter
of Many, 10 App. Div. 451; 41 N. Y. Supp. 993. See, also, People ex rel. Van
Sickle v. Austin, 20 App. Div. 1, 46 N. Y. Supp. 526, where it was held that an
objection to the action of a town election board in not opening the polls at the
proper time, could not be raised by a writ of certiorari to review the proceed-
ings of such board.

In the case of People ex rel. Stapleton v. Bell, 119 N. Y. 175; 23 N. E. 533,
the court in considering the question of the powers and duties of election boards
said: “I think we cannot hold otherwise as to inspectors of election than that
they are, under the provisions of the Election Law, made ministerial officers
wholly, for their duties are pointed out by the law definitely. They are only
officers to execute the law in a prescribed and definite way, and to whom no
latitude is allowed when the proposed elector satisfies the statutory demands
upon him for oaths and answers to certain questions. They are bound to an
exact obedience of the particular commands which the law has laid upon them
as its officers, and they may not act on their own opinions or knowledge. The
duty of an inspector is discharged when he has required the challenged voter
to submit to the tests prescribed. In support of the view that inspectors of
election act ministerially and not judicially in holding elections and making
returns, we have ample authority.

Town meetings in election districts or at a time of general elections. If
the town meetings are held in election districts, elections are to be conducted
by the inspectors of election thereof instead of the justices of the peace of the
tewn (see Town Law, sec. 65, post), and it is also provided that if a
biennial town meeting is held at the same time as a general election it shall
be held in the election districts of the town, and be conducted by the inspectors
of election thereof. See Town Law, sec. 67, post.

When town meetings governed by Election Law. Local elections at town
meetings, not held at the same time as a general election, are governed by the
Town Law, and the Election Law is not applicable to such elections except
where it has been expressly made so by provisions of the Town Law. Matter
of Larkin, 163 N. Y. 201; 57 N. E. 404.
260 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, §§ 50, 51.

§ 10.CLERK OF MEETINGS.

The town clerk last before elected or appointed, or, if he be absent,
such persou as shall be chosen by the electors present, shall be the clerk
of such town meting, except when held at the time of a general election,
and shall keep faithful minutes of its proceedings, in which he shall enter
at length every order or direction, and all rules and regulations made by
such meeting; such person chosen by the electors present shall take the
constitutional oath of office before entering upon his duties as such clerk."
[Town Law, § 50; B. C. & G. Cons. L., p. 6148.]

§ 11. DURATION OF TOWN MEETINGS.

Town meetings shall be kept open for the purposes of voting in the
daytime only, between the rising and setting of the sun,” and, if neces-
ary, may be continued by a vote of the meeting during the vext day,
and no longer,” and be adjourned to another place not more than one-
fourth of a mile from the place where it was appointed."* [Town Law,
§ 51; B.C. & G. Cons. L., p. 6148. ]

 

16. Duties of towa clerk, Tue duties above imposed upon town clerks are
similar in many respects to those of ballot and town clerks at general elections.
If town meetings are held in election districts or at the time of a gencral election
the duties of town clerks are to be performed by the regular election officers of the
several districts.

16a. As to closing poles prior to time fixed by statute because of a misconception
of the ‘‘Daylight Saving Law,’’ see Matter of Gumaer v. Sisson (1919), 186 App.
Div. 561, 174 N. Y. Supp. 737.

17. Hours during which town meetings are to be kept open. The language
of the provision of the present statute as to the time that town meetings shall
be kept open for purposes of voting, is substantially no different than it was
been for upwards of eighty years. It has never been construed so as to require
polls of town meetings to be opened at sunrise or continuously kept open until
sunset; but, on the contrary, it has been held that it is not necessary that a
town meeting should be kept open through the whole time from sunrise to
sunset. People ex rel. Simonson v. Martin, 5 N. Y. 22; Goodel v. Baker, 8 Cow.
386. It is sufficient if they are open from 9 to 12 A. M. and from 1 P. M. to
sunset. People ex rel. Van Sickle v. Austin, 20 App. Div. 1, 46 N. Y. Supp. 526.
In the case of People ex rel. Van Sickle v. Austin, 28 App. Div. 1; 46 N. Y.
Supp. 526, it was held that a town meeting was not rendered illegal by the
fact that the polls were not opened until nine o’clock in the forenoon, they
continuing oper, except for the noon hour, until sunset. In the case of People
ex rel. Fisher v. Hasbrouck, 21 Misc. 188; 47 N. Y. Supp. 109, it was held that
the fact that polls at the annual town meeting to which was submitted a prop-
osition whether traffic in liquor should be permitted in the town were closed
about an hour before sunset did not invalidate the votes cast at such town
meeting upon such proposition.

18. Adjournment. Under the provisions of the revised laws of 1813 to the
effect that no town meeting should be held longer than two days and should
only be held open between sunrise and sunset, and should be held at such
places in each town as the freeholders at their town meeting should from time
TOWN MEETINGS. 261
Town Law, §§ 52, 69, 53, 54.

§ 12. PROCLAMATION OF OPENING AND CLOSING POLLS.

Before the electors shall proceed to elect any town officer, proclamation
shall be made of the opening of the polls, and proclamation shall in the like
manner be made at each adjournment and of the opening and closing of
the polls until the election be ended. [Town Law, § 52, B. C. & G. Cons.
L., p. 6148.]

§ 13. QUALIFICATION OF VOTER AT TOWN MLETING HELD AT
TIME OF GENERAL ELECTION.

At a town meeting held at the time of a general election no person shall
be allowed to vote for candidates for town officers who is not registered and
entitled to vote at such general election.’® [Town Law, § 69; B. C. & G.
Cons. L., 6156.]

§ 14. QUALIFICATION OF ELECTOR AT TOWN MEETING.

An elector of a town shall not be entitled to vote by ballot upon any
proposition for the raising or appropriation of money, or the incurring
of any town liability, unless he or she is the owner of property in the
town, assessed to him or her upon the last preceding assessment-roll
thereof.%* [Town Law, § 53, as amended by L. 1913, ch. 124, and L.
1920, ch. 59.]

 

to time appoint, it was held that the electors of the town on the town meeting being
opened had a right to adjourn the meeting to the next day to be held at another
piace; and that the electors were the exclusive judges of the necessity of the adjourn-
ment, Goodel v. Baker, 8 Cow. 286. See, also, People ex rel. Simonson y. Martin, 5
N. Y¥. 22, where it was held that the qualified electors of a town meeting may de-
termine by vote,—after the regular organization of the meeting,—that the town
meeting be continued at the place of such organization through a part of the day and
then adjourn to some other place in the town and there continued through the
residue of the day. The last clause of the above section expressly authorizes an
adjournment of a town meeting.

19. This section was formerly part of § 12 of the Town Law. Under amendment
of Constitution, Art. IT, § 1 (1917), extending right of suffrage to women, all
women have same qualification as men to vote at town meetings. They are quali-
fied electors and entitled to hold town offices.

19a. Ownership of stock in a national bank, located in the town and assessed upon
the last preceding assessment roll, is a sufficient property qualification. Rept. of
Atty. Genl., May 31, 1911. But ownership of stock in a corporation, assessed upon
the assessment-roll, does not qualify the stockholder to vote upon a proposition to
raise money. Rept. of Atty. Genl., March 9, 1911.

The votes cast by unqualified electors on a proposition for the issuance of bonds
will not affect the validity of the election unless it be established that sufficient
number of such votes were cast and counted to change the result. Rept. of Atty.
Genl. (1909) 905, :

A proposition for the sale and conveyance of town property can only be voted
upon by taxpayers or the husbands of taxpayers. Rept. of Atty. Genl., Jan. 31, 1912.

20. This section was formerly part of Town Law, § 190, which relates to the
erection of town houses. The remainder of such section is now § 340 of the Town
Law, post.
262 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, §§ 54, 55, 57, 58.
§§ 15-16. QUALIFICATION OF ELECTOR TO VOTE FOR SITE FOR TOWN
HOUSE.

An elector shall not be entitled to vote upon a proposition submitted
for the purposes of section three hundred and forty of this chapter, un-
less he or she is the owner of property in the town assessed to him or
her upon the last preceding assessment-roll thereof.” [Town Law, §
54, as amended by L. 1913, ch. 124, and L. 1920, ch. 59.]

§ 17. VOTES TO EXPEND OVER FIVE HUNDRED DOLLARS TO BE
BY BALLOT, IF LESS, BY VIVA VOCE.

All votes in town meetings upon any proposition to raise or appropriate
money or incur any town liability exceeding five hundred dollars. shall be
by ballot; if five hundred dollars or less, may be viva voco, unless ballot
is required by the law authorizing the expenditure.** [Town Law, § 57;
B.C. & G. Cons. L., p. 6149.]

§ 18. BALLOTS; ELECTORS IN INCORPORATED VILLAGE WHEN
NOT TO VOTE ON HIGHWAY QUESTIONS.

When the electors vote by ballot, except in towns where the biennial town
mectings are held at the time of general elections, all the officers voted for
shall be named in one ballot, which shall contain written or printed, or
partly written or partly printed, the names of the persons voted for, and
the offices to which such persons are intending to be elected, and shall be
delivered to the presiding officer so folded as to conceal the contents, and
shall be deposited by such officers in a box to be constructed, kept and
disposed of, as near as may be, in the manner prescribed in the election
law.’ [Town Law, § 58; B. C. & G. Cons. L., p. 6150.]

 

21. Votes incurring liability exceeding five hundred dollars. A resolution
authorizing the issuing of new bonds in place of those which have matured is a
proposition to incur a town liability, and if the amount of such bonds exceeds
the sum of $500, a resolution authorizing such issue is invalid unless voted upon
by ballot. People ex rel. Read v. Town Auditors, 85 Hun, 114; 32 N. Y. Supp.
668.

A resolution submitted at a special town meeting requesting authority of
the board of supervisors to borrow moncy for the construction of a bridge if
ircurring a liability exceeding $500 must be voted upon by ballot. Berlin Iron
™-tdge Co. v. Wagner, 57 Hun, 346; 10 N. Y. Supp.. 840.

22, Ballots for town meetings under the Election Law. The provisions of
this section relating to, ballots containing the names of town offcers to be vote |
for at town meetings not held at the same time as a general election, are proh-
ably superseded by the provisions of section-105 of the Election Law. Jewctt’s
Election Manual 1921. Under section 93 of the Election Law it is provided tliat
ballots to be used at town meetings, not held on general election day, shall be
furnished by the town clerk of the town.
TOWN MEETINGS. 263

Town Law, § 59.

When any town shall have within its limits an incorporated village,
constituting a separate road district, exempt from the supervision and
control of the commissioners of highways of the town, and from payment
of any tax for the salary or fees of said commissioners, and from payment
of any tax for the opening, erection, maintenance and repair of any high-
way or bridge of said town, without the limits of said village, no residents
of such village shall vote at any biennial or special election in such town
for any commissioner of highways for said town, nor for or against any
appropriation for the opening, laying out, maintenance, erection or repair
of any highway or bridge in said town, without the limits of said village. At
the biennial elections in such towns, the names of candidates for the office of
highway commissioner shall be printed on a different ballot from the one
containing the names of candidates for other town offices. Such ballots
shall be indorsed “commissioner of highways,” and shall be deposited,
when voted, in a separate ballot box, which also shall be marked “com-
missioner of highways.” Such ballots and ballot box shall be furnished
by the officers now charged by law with that duty at town elections.”*
[Town Law, § 59; B. C. & G. Cons. L., p. 6150.]

§ 19. TRANSACTION OF BUSINESS NOT REQUIRING A BALLOT;
WHEN QUESTIONS ARE TO BE SUBMITTED; HOW DETER-

MINED.
The business of the towns which requires a vote of the people otherwise
than by ballot shall be commenced at twelve o’clock noon of the day of the

 

Baliots are to be prepared from certificates of nominations, filed with the town
clerk, as provided in sections 102 and 103 of the Election Law, Jewett’s Election
Manual, 1921,

Nominations for town pede are to be made under the provisions of section 131
of the Election Law. Jewett’s Election Manual. The number of ballots is to be
determined by section 101 of the Election Law (Jewett’s Election Manual), and
they are to be distributed as provided by section 90 of that law, A town clerk
in the performance of his duties respecting the furnishing of official and sample
ballots, instruction cards and stationery, must conform in all respects to the
provisions of article 4 of the Election Law.

23. Separate ballots for highway commissioners and for propositions relating
to highways and bridges in certain towns. The provisions of this section, relating
to the separate ballots for the election of highway commissioners and for proposi-
tions for the appropriation of money for the construction and maintenance
of highways and bridges, only apply to towns containing an incorporated
village, which is, by the provisions of its charter or any other special
law, exempted from taxation for all highway and bridge purposes within
the town outside of the limits of such village. This provision was inserted in
the above section to take care of some one or more villages which are so
situated under the general law, The highways and bridges of a ‘town are to be
264 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 60.

biennial town meeting and completed without adjournment. No question
involving the expenditure of money shall be introduced after two o'clock
in the afternoon of the same day. All questions upon motion made at
town meetings shall be determined by the majority of the electors voting,
and the officers presiding at such meeting shall ascertain and declare the
result of the votes upon each question.** [Town Law, § 60; B. C. & G.
Cons. L., p. 6151.]

§ 20. CHALLENGES; PROVISIONS OF ELECTION LAW APPLIED.
If any person offering to vote at any town meeting or upon any question

 

constructed and maintained by the whole town, and the property within an
incorporated village is not exempted from taxation therefor. It is provided in
the Village Law, section 141 (Cumming and Gilbert’s Village Law, p. 113), that
the village constitutes a separate highway district. This provision is for the
purpose of conferring authority upon the village authorities to construct and
maintain streets and highways within the village, and was not for the purpose
of relieving the village from the construction and maintenance of town high-
ways. It is probable that in a town containing a particular village, to which
the provision of the above section referred to applies, that ballots for highway
commissioners should be separate from the general town ballot. This is so
because of the amendment to such section by ch. 363 of L. 1897 continuing such
provision in force ard superseding former section 81 of the Election Law as
enacted by ch. 909 of t™> T. 1896.

Effect of provision of Highway Law exempting certain villages from taxation.
Under section 99 of the Highway Law (post), providing for the raising of money
by taxation for highway purposes, villages are exempt from any taxes imposed for
the maintenance and repair of the highways lying outside of the villages. In the case
of Matter of Shapter v. Carroll, 18 App. Div. 390, 392; 46 N, Y. Supp. 202, the
above ssction was construed in connection with such section 99 of the Highway Law.
The court said: “Such section 53 of the Highway Law (now § 99) does not re-
lieve villages from assessments made for damages and charges for laying out or
altering any road or creating or repairing a bridge in the town. Section 53 is
general, and applies to every case where an incorporated village within a town
may be a separate road district. Thus, from a certain class of public charges or
expenses connected with the highways the villages are exempt, while to another
class they are subject. A proper interpretation of ch, 262 of the Laws of 1895
(amending the above section of the Town Law) I think is required. It provides that
when the village is exempt from the supervision and control of the commissioners
of the highways of the town and from payment of any tax for the opening, erection,
maintenance and wepair of any highway or bridge of said town without the limits
of said village, no residents of such village shall vote . . . for or against any
appropriation, etc. The meaning of this is that no resident of the village shall vote
on the subject of an appropriation when the village is exempt from liability for
such appropriation, but it is only in case the village is so exempt that the resi-
dents of a village are not to vote.”

Residents of an incorporated village are entitled to vote for superintendent
of highways unless the village is incorporated under a special charter exempting
property within its limits from all taxation for highway purposes. Rept. of Atty.
Genl., Feb. 21, 1911. Electors of villages are entitled to vote on a proposition
submitted at a special town meeting for the reconstruction and permanent im-
provement of highways without the boundaries of the villages but within the
town in which they are situated. Opinion of Atty. Genl., Jan. 17, 1913.

24. Submission of resolution. In the case of People ex rel. Kniffin v. fabor,
TOWN MEETINGS. 265

Town Law, §§ 61, 63.

arising at such town meeting shall be challenged as unqualified, the pre-
siding officers shall proceed thereupon in the manner prescribed in the
election law when challenges are made, which law, with its penalties, is
made applicable thereto, and no person whose vote shall have been received
upon such challenge shall be again challenged upon any other question
arising at the same town meeting.*> [Town Law, § 61; B. C. & G. Cons.
L., p. 6151.]

§ 21. MINUTES OF PROCEEDINGS.

The poll list and minutes of the proceedings of every town meeting,
subscribed by the clerk of such meeting, and by the officers presiding, shall
be filed in the office of the town clerk within two days after such meeting
and there preserved. [Town Law, § 62; B. C. & G. Cons. L., p. 6151.]

A poll-list shall be kept by the clerk of the town meeting referred to in
sections fifty-eight and fifty-nine on which shall be entered the name of
each person voting by ballot. [Town Law, § 63; B. C. & G. Cons. L.,
p. 6151.]

§ 22. CANVASS OF VOTES; NOTIFICATION OF OFFICERS ELECTED.
At the close of the polls at any town meeting, the canvassers shall pro-

 

21 How. Pr. 42, it appeared that at a town meeting where the balloting. was
carried on in a room within a house and a resolution being proposed and drawn
up in the presence of the presiding officers, by their direction the clerk proceeded
outside of the building where most of the persons attending the town meeting
were and, in the presence of one of the presiding officers, there put the motion,
and it was by him or the presiding officer declared carried and no one made
objection. It was held that the resolution was duly passed.

25. Provisions of Election Law to control challenges. The manner of chal-
lenging and the oath to be administered in such cases are prescribed by sections
204-205 of the Election Law (Jewett’s Election Manual, 1921), and the provisions
of such sections are by the above section of the Town Law made applicable to
challenges at town meetings.

Voters taking oath entitled to vote. Voters answering the questions put to
them and taking the oath prescribed by law are entitled to vote, and under
such circumstances election boards cannot refuse to accept the vote of an elector.
See People v. Pease, 27 N. Y. 45; Goetcheus v. Matheson, 61 N. Y. 420; People ex
rel. Sherwood v. Board of Canvassers, 129 N. Y. 372; 29 N. E. 345; Matter of
Hamilton, 80 Hun, 511; 30 N. Y. Supp. 499.

In the case of People ex rel. Stapleton v. Bell, 119 N, Y. 175; 23 N. E. 533,
it was held that a board of inspectors of election has no discretionary power
to reject the vote of a person who, upon the application of the statutory test,
has shown himself to be a qualified voter; and that the lawfulness of the vote
cannot be determined until it has been received; and that the elector’s right
cannot be annuled without a trial.
266 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 64.

ceed to canvass the votes publicly at the place where the meeting was held.
Before the ballots are opened they shall be counted and compared with the
poll-list, and the like proceedings shall be had as to ballots folded together,
and difference in number, as are prescribed in the election law. The void
and protested ballots, and the voted ballots other than void and protested,
shall be preserved and disposed of by the inspectors in the manner pro-
vided by sections three hundred and seventy-three and three hundred and
seventy-four of the election law.?® The result of the canvass shall be read
by the clerk to the persons there assembled, which shall be notice of the
election to all voters upon the poll-list. The clerk shall also enter the re-
sult at Jength in the minutes of the proceedings of the meeting kept by
him, and shall, within ten days thereafter, transmit to any person elected
to a town office, whose name is not on the poll-list as a voter, a notice of his
election.2”. [Town Law, § 64, as amended by L. 1909, ch. 240; B. C. &
G. Cons. L., p. 6152.]

§ 23. TOWN MEETINGS IN ELECTION DISTRICTS; MAY BE HELD
IN REGULAR ELECTION DISTRICTS, OR TOWN BOARD

MAY DIVIDE THE TOWN; APPLICATION THEREFOR.
The electors of a town may determine by ballot at a biennial or special
‘town meeting on the written application of twenty-five electors, that town

 

26. Dispositien of rejected ballots. The provisions of this section require
inspectors or the officers presiding at a town meeting to preserve and dispose
of the void and protested ballots in the manner provided by section 373, as
amended by L, 1913, ch. 821, of the Election Law.

In the case of People ex rel. Maxim v. Ward, 62 App. Div. 531, 71 N. Y. Supp.
76, it was held that canvessers of the ballots cast at a town meeting could
be compelled by mandamus to indorse upon each rejected ballot the reason for
such rejection, and to place such baiiots in a separate sealed package, and to
indorse the package with their names and the number of ballots contained
therein, as directed by section 373 of the wlection Law.

27. Application of provisions of Election Law to canvass. In the case of
Matter of Larkin, 163 N. Y. 201, 57 N. E. 404, it was in effect held that the pro-
visions of this section were to control inspectors at tewn meetings not held
at the same time as a general election in the performance of their duties, and
that in making a canvass of the votes cast the provisions of the Election Law
did not apply except as expressly provided in the section.

In the case of People ex rel. Guernsey v. Pierson, 35 Misc. 406, 71 N. Y. Supp.
993, it was held that town elections are governed generally by the Town Law
and not by the Election Law.

The provisions of this section, that “The void and protested ballots, and the
voted ballots other than void and protested, shall be preserved and disposed of
by the inspectors, in the manner provided by section one hundred and eleven
of the Election Law,” does not operate to give the right of review under the
provisions of section 381 of the Election Law, save where the town election is
held at the same time as the general election in the fall of the year. Matter of
Baldwin (1913), 80 Misc. 263.

Statement of result. It is intended by the statute that the statement read by
the clerk of the result of the canvass shall be a sufficient certificate and evidence
of the election. Matter of Baker, 11 How. Pr. 418; Matter of Case v. Campbel,
16 Abb. N. C. 270.

Statement of the result of the canvass, under the Election Law, must be
TOWN MEETINGS. 267

Town Law, § 65.

meetings shall thereafter be held in the several election districts of their
town, to be therein conducted by the inspectors of election thereof, instead
of the justices of the peace of the town; or may authorize the town board
to divide such town into two or more joint election districts, as provided
in this section.2® The town board of any town which has been authorized
may divide such town into two or more joint election districts, for the
purpose of holding town meetings therein, but such districts shall be con-
stituted by combining the election districts in such town. If the town
board of any town shall divide such town into joint election districts in
pursuance of this section, such board shall select from the inspectors of
election for such town four inspectors residing therein, not more than two of
whom shall belong to the same political party, for each of such election dis-
tricts as so constituted. Ifa town shall hold its town meeting in more than
one district, the inspectors of each of such districts shall appoint one poll
clerk, and in the conduct of such meetings they shall have the same powers
and duties as the justices of the peace and town clerk have at the biennial -
town meetings presided over by them. No town officer shall be required to
make or render any report, statement or abstract at a town meeting when
held in separate or joint election districts. At the close of the polls, the
inspectors shall forthwith publicly canvass the ballots cast, and, without
postponement or adjournment, make a full and true statement of the
whole number so cast for each and every candidate for an office balloted
for, and of the whole number of votes for and against every question
or proposition voted upon at such town meeting. The void and pro-
tested ballots, and the voted ballots other than void and protested, shall
be preserved and disposed of by the inspectors in the manner provided by
section three hundred and fifty-three of the election law. Such statement

 

signed by the four justices, they certifying at the end that “the foregoing
statement is correct.” People ex rel. Leonard v. Hamilton, 27 Misc. 308, 312, 58
N. Y. Supp. 584, affd. in 42 App. Div. 212, 59 N. Y. Supp. 943.

Count and canvass may be compelled. When inspectors of election fail to
count and canvass the ballots and the town clerk has not entered the result upon
his minutes, the inspectors and clerks may be compelled by mandamus to con-
vene and discharge their statutory duties. People ex rel. Sturtevant v. Arm-
strong, 116 App. Div. 103, 101 N. Y. Supp. 712.

28. Application and submission of proposition. The application for the
submission of a proposition under this section must be written and signed by
at least twenty-five electors of the town. Such application must be filed with
the town clerk at least twenty days before the town meeting, and must plainly
and definitely state the question to be voted upon and must request that a vote
be taken at a specified town meeting. See section 48 of the Town Law, ante.
The proposition is to be submitted in the same manner as other town
propositions. For form of application for holding town meeting in election
districts, see Form No. 18, post.
258 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 65.

shail be made in the same form as statements by such inspectors of the
votes cast at general elections, and shall be signed by the inspectors and
delivered by one of their unmber, selected by them, for that purpose, to
the justices of the peace and town clerk of the town, who shall convene
and receive the same at the office of the town clerk, on the day next fol-
lowing the town meeting, at ten o’clock in the forenoon. Such justices
and clerk shall then and there recanvass such votes from the statements of
the inspectors of the several separate or joint election districts so delivered
to them, and thereupon appoint in writing the inspectors of election, and
read and enter the results in the same manner as required of them at the
close of the canvass of a town meeting presided over by them.?° When
the electors of a town have determined to hold their town meetings in
separate or joint districts, they may again, upon the written application
of twenty-five electors. at a biennial town meeting, determine by ballot
to return to the former system of holding but one poll at their town meet-
ings, and thereupon their town meetings shall be held at but one polling
place in said town, but such changes shall not be made oftener than once
in five years. [Town Law, § 65; B. C. & G. Cons, L., p. 6153.]

§ 24, VOTE UPON PROPOSITIONS NOT REQUIRING A BALLOT;
VOTE TO BE BY DIVISION OF ELECTORS PRESENT; IN-
SPECTORS TO ENTER STATEMENT OF RESULT; NOTICE OF
SUBMISSION OF PROPOSITION.

Any proposition to be submitted to and voted upon by the electors of a
town at any town meeting, which is not required to be voted upon by ballot,

 

29. Canvass of votes by justices of the peace and town clerk. Where town
meetings are held in election districts, under the provisions of this section, the
justices of the peace and town clerk are required to meet on the day following
the town meeting, at the office of the town clerk, at 10 o’clock in the forenoon,
and recanvass the votes on the statements returned by the inspectors of the
several districts. Such justices and town clerk are required to read and enter
the results in the manner required when town meetings are not held in election
districts. In the case of People ex rel. Guernsey v. Pierson, 35 Misc. 406; 75
N. Y. Supp. 993, aff'd. 64 App. Div. 624, 72 N. Y. Supp. 1123, it was held that
a town canvassing board cannot be directed to recanvass the votes cast at a
town meeting held in election districts and reject for irregularity certain re-
turns unless such returns are wholly void. The following defects were held
as not necessarily fatal:—That the inspectors in certain districts selected one of
their number as poll clerk; that in some districts the poll lists were not sub-
scribed as required by the statute; that in one district the inspectors did not
return the number of ballots which were void, but inclosed them in a sealed
package which they filed with a statement of the canvass; that the supervisor
of the town who took no part in the canvass was present and signed the
statement. ‘
TOWN MEETINGS. 269

Town Law, §§ 66, 67.

may be submitted to the electors of the town voting in separate or joint
election districts of the town meeting, but the vote upon any proposition
shall be taken by the division of the electors present and voting thereon;
and the inspectors shall count the number of electors so voting in favor
of such proposition, and the number so voting against the same, and shall
enter in the statement of the result of the town meeting held in such
district a statement of the proposition so voted upon, and the number
of votes so cast in favor of and against the same and certify with the state-
ment that they are required to certify and return to the justices of the
peace and town clerk of the town. No such proposition shall be so voted
upon unless notice that such vote will be taken has been published by
the town clerk at least one week before the town meeting, in-a newspaper
published in the town, if any such is published therein, and such notice shall
also be posted for the same length of time at the place where the poll
of the town meeting is to be held, in each separate or joint election district,
and shall be publicly read by the inspectors to the voters present before
any such vote is taken.*? Any elector of the town may, by a written
application filed with the town clerk at least ten days before the town
mecting is to be held, require such notice to be given by the town clerk.
Every such proposition shall be submitted to a vote, commencing at the
hour of twelve, noon, and continuing until all such propositions have been
voted upon, and every such proposition shall be submitted to the vote
of the electors of the town at the poll of every separate or joint election
district in the town. [Town Law, § 66; B. C. & G. Cons. L., p. 6154.]

§ 25. TOWN MEETINGS HELD AT THE TIME OF GENERAL ELEC-
TION; CANVASS OF VOTES.

If, in any town, the biennial town meeting is held at the same time
as the general election, such town meeting shall be held in the election
districts of such town, and be conducted by the inspectors of election
thereof. At the close of the polls at any such town meeting, the inspectors
shall proceed to canvass the votes for the candidates for the several town
offices in the election districts where such town meeting was held, in the
-same manner as the votes for other candidates cast at the general election
are canvassed. They shall make a statement of the whole number of
votes cast for each candidate for a town office, deliver the same to one

 

80. Notice of a proposition not requiring a ballot to be voted upon at a town
meeting held in election districts must be given as prescribed in the above sec-
tion. It would seem that where town meetings are not held in election districts
such propositions may be submited without prior notice. See Town Law,
sec. 60, ante.
270 TOWNS, TOWN MEETINGS AMD TOWN OFFICERS.

Town Law, § 68.

of the justices of the peace of the town, and, on the Thursday succeeding
such town meeting, such votes shall be recanvassed, the additional inspector
of election in each district shall be appointed, and the result of the election
declared as provided by section sixty-five of this chapter.**

In case of a contest or other proceeding in which the validity of the
election of a town officer in any such town, is in controversy, the ballots
cast at any town meeting and election may be examined and recounted, as
provided by law, in case of other officers elected at general elections.
[Town Law, § 67; B. C. & G. Cons. L., p. 6155.]

§ 26. BALLOTS AT TOWN MEETING HELD AT TIME OF GENERAL
ELECTION.

At town meetings in towns held at the same time as general elections,
the names of all candidates for town offices shall be voted for in the same
manner and on the same ballot as candidates for other offices voted for
thereat.22. [Town Law, § 68; B. C. & G. Cons. L., p. 6156.]

 

31. Canvass of votes by justices of the peace and town clerk. Where town
meetings are held at the time of general elections the returns of the inspectors
of election of the several election districts are to be made and the votes are to
be recanvassed in the manner provided by section 65 of the Town Law, ante.

Provisions of this section relating to the recanvass, when read in connection
with section 65 of the Town Law, do not permit the justices of the peace and
town clerk who made the recanvass to recount the vote; they must declare
the result as it appears from the statements made by the inspectors of election,
who, under the statute, make the canvass itself. Matter of Park, 37 Misc. 133;
74 N. Y. Supp. 915.

Examination of ballots. The provisions of this section relating to an examination
and recount of ballots in case of contests provide a wholly distinct and different
remedy from section 374 of the Election Law which is broad enough in its terms to
entitle any candidate voted for at the time of a general election to an examination
as of right in a proper case of any ballots upon which his name lawfully appears
as that of a candidate whether the validity of the election is in controversy or not.
Matter of Quinn (1917), 220 N. Y. 624, 115 N. E. 422, affg. (1916), 175 App. Div.
681, 160 N. Y. Supp. 867.

A candidate for the office of town clerk who was defeated at the biennial town
election is entitled to an examination of the ballots under section 374 of the Election
Law, if his moving affidavits disclose facts which entitle him to such examination.

aiatter of Quinn (1916), 175 App. Div. 681, 160 N. Y. Supp. 867, affd. (1917), 220
N. Y. 624, 115 N. E. 442,

82. This section was formerly part of § 12 of the Town Law.

Separate ballots for town offices. At a general election in an odd-numbered :e =
there need not be a separate ballot for candidates for town offices, Pe-~'2
ex rel. Shea v. Gilbert (1919), 189 App. Div. 122, 178 N. Y. Supp. 327. ,

Ballots at town meetings. Under this section the election of town officers is by
ballot. The provisions of the election Law relating to the nomination of town offi-
cers (Election Law, secs. 130-144; Jewett’s Election Manual, 1921), and to the cer-
tificates of nominations (Election Law, secs. 140, 141; Jewett’s Election Manual)

apply to town meetings. :
TOWN MEETINGS. 2u1

Election Law, § 85.

Equipment of registration and polling places by board or body desig-
nating such places. The board or body authorized to designate registra-
tion and polling places shall provide for use upon a day of registration
or election, or on a primary day, in each such place, as may be required,
the following articles:

1. For election day, a guard rail with a place for entrance and exit.

2. For election day, separate ballot boxes as occasion shall require, for
ballots for presidential electors, for ballots for general officers, for ballots
upon constitutional amendments and questions submitted, for ballots upon
town questions, for ballots of each party at a primary election, for bal-
lots defective in printing or spoiled and mutilated, and for stubs detached
from ballots, each of sufficient capacity to hold the ballots to be deposited
therein, having an opening in the top large enough to allow a single folded
ballot to be passed easily through the opening, but no larger, and sup- |
plied with a sufficient lock and key. :

3. For election day, a sufficient number of voting booths, and supplies
therein, not less than one such booth for each seventy-five voters of the
district, each booth to be at least three feet square, with four sides
enclosed, each side at least six feet high and extending within two feet
of the floor, the side in front opening and shutting as a door swinging
outward, and to contain a shelf having a smooth surface and at least one
foot wide extending across one side at a convenient height for writing
and to be furnished with a pencil having black lead only.

4, For each day of registration two such booths for the use of voters
marking enrollment blanks.

5. Necessary furniture.

The boxes for each polling place, with the keys thereo:, shall be
delivered to the inspectors of each election district at least one half hour
before the opening of the polls at the election or primary. [Election Law,
§ 85 (L. 1922, ch. 588), in effect April 12, 1922.]

Payment of election expenses. 1. The expenses of providing polling
places, guard rails, voting booths, supplies therefor, ballot boxes and other
furniture of the polling place, for a primary or other election, and the
compensation of the election officers in each election district shall be a
charge upon the town or city in which such election district is situated,
except that such expenses incurred for the purpose of conducting a vil-
lage election not held at the same time as a general election shall be a
charge upon the village.

2. All expenses relating to a town meeting or city or village election
held at a different time from a general election shall be a charge upon the
town, city or village.

3. All expenses incurred under this chapter by the board of elections
outside of the city of New York shall be a charge against the county,
except that if a town meeting, city or village election be held at the same
time as a general election, the expenses of printing and delivering the
official ballots, sample ballots and tally sheet and return blanks shall be
apportioned by the board of elections between such town, city or village
and the county, in the proportion of the number of candidates for town,
city or village offices on such ballots, respectively, to the whole number of
candidates thereon, and the amount of such expenses so apportioned to each
such municipality shall be a charge thereon. Whenever voting machines
ane TOWNS, TOWN MEETINGS AND TOWN OFFICERS
Election Law, §§ 49, 94.

are used in any election by any town, city or village, only such expenses
as are caused by the use of such machines and such as are necessary for
the proper conduct of the election shall be charged to such town, city or
village.

4, All expenses of the board of elections of the city of New York shall
be a charge on such city. [Election Law, $93 (L. 1922, ch. 588), in
effect April 12, 1922.]

Apportionment of expenses of board of elections outside of New York
City. The board of elections in each county, outside of the city of New
York, on or before the fifteenth day of December, and not earlier than the
first day of October, in each year, shall certify to the clerk of the board
of supervisors the total amount of the expenses of such board of elections,
including salaries, for the preceding year, and, if the board of supervisors
of any county shall so direct, shall certify to such clerk the portions of
such expenses which under provisions of law are to be borne by any city or
cities in said county and the portion thereof which is to be borne by the
rest of such county, and such clerk shall thereupon notify the proper local
official or officials, who, in spreading upon the assessment-rolls the taxes
to be levied upon the taxable property in the city, or any such cities, and
in the rest of the county, shall include in the amount spread upon the
assessment-rolls of the taxable property in the several towns or other
political subdivisions of the rest of the county the amount so certified
by said board of elections to be borne by such towns or political subdivi-
sions respectively. [Election Law, § 94 (L. 1922, ch. 588), in effect
April 12, 1922.]

Fees of election officers and others. 1. The town clerk of each town
shall be paid by such town a reasonable compensation for his services in
carrying out the provisions of this chapter. to be fixed by the other mem-
bers of the town board. Except in the City of New York, election officers
shall be paid, for their services on days of registration, election and prim-
ary elections, by the towns or cities in which they serve, a compensation
to be fixed by the town board or common council, subject to the limitations
prescribed by statute. An inspector of election required to file papers in
a county clerk’s office, or office of the’ board of elections, shall, unless he
resides in the city or village in which such office is situated, be entitled
to receive as additional compensation five dollars, and also four cents a

 

Ballots to be voted at town meetings are to be prepared in conformity with section
104, of the Election Law, Jewett’s Election Manual. The above section of the Town
Law provides that when town meetings in towns are held at the same time as general
elections, the names of candidates for town offices shall be on the same ballot as
candidates for other offices voted for thereat. This provision is now in comformity
with a similar provision contained in section 99, of the Election Law.

Registration. No registration of voters shall be required for town or village
elections, except as provided in the Village Law, and except that when a town or
village election is held at the same time with a general election all voters in such
town or village to be entitled to vote at such town or village election must be
registered as provided by law for the registration of voters for any general election
in such town or village [Election Law, § 157 (L. 1922, ch. 588), in effect, April 12,
1922.)

Town superintendents of highways are elected or appointed for terms of two
years, under the Highway Law of 1909, secs. 40-42. By sec. 43 of such Highway
Law the office of highway commissioner is abolished on and after November 1, 1909.
TOWN MEETINGS. Qn3

Election Law, § § 140, 141.

mile for every mile actually and necessarily traveled between his residence
and such office in going to and returning from such office.34 [Election
Law, § 49, (L. 1922, ch. 588), in effect April 12, 1922.]

Places for filing petitions and certificates ; records; notices to candidates.
The places for filing the petitions and certificates specified in this article
shall be respectively as follows: For an office or position to be voted for
wholly within the city of New York in the office of the board of elections
of that city; elsewhere, for an office or position to be voted for in a
district greater than a county, in the office of the secretary of state; for
the office of member of assembly for Fulton and Hamilton counties, in
the office of the board of elections of Fulton county, and a certified copy
thereof in the office of the board of elections of Hamilton county; for a
city, town or village office to be filled at an election held at a time other
than that of a general election in the office of the city, town or village
clerk; in all other cases in the office of the board of elections of the
county. All such petitions and certificates shall at the time of the filing
thereof be endorsed by such officer or board with the day, hour and minute
of such filing. Such officer or board shall keep a book, which shall be
open to public inspection, in which shall be entered the times of filing
all such petitions and certificates; the names and residences of all candi-
dates named therein; the names and residences of all candidates
certified to such board or officer; the title of the office or party
position, the name of the party or independent body to which the peti-
tion or certificate relates and a memorandum of any objections to such
petition or certificate. Forthwith upon the filing of a petition designat-
ing a person or persons for nomination to public office, such officer or
board shall mail notice thereof to each such person. [Election Law, § 141
(L. 1922, ch. 588), in effect April 12, 1922.]

Times for filing petitions and certificates and for holding conventions.
1. A designating petition shall be filed not earlier than the fifth Tues-
day and not later than the fourth Tuesday preceding the primary election.

2. A declination of a designation shall be filed not later than the third
day after the fourth Tuesday preceding the primary election.

3. A certificate to fill a vacancy in a designation caused by declination
shall be filed not later than the third Tuesday preceding the primary
election.

4. A state convention for nominating candidates for public office or a
judicial district convention shall be held not earlier than the day following
the sixth Tuesday preceding the general election.

5. A certificate of party nomination for an office to be filled at the
time of a general election shall be filed not later than the fifth Tuesday
preceding such election, and for an office to be filled at an election at a
time other than that of a general election shall be filed not later than
twenty-one davs preceding such election.

6. A certificate of declination of a party nomination for an office to be

 

34. Provision omitted as to compensation of election officers in the city of New
York,
Q74 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Election Law, § 106.

filled at the time of a general election shall be filed not later than the
third day after the fifth Tuesday preceding such election, and for an
office to be filled at an election at a time other than that of a general elec-
tion shall be filed not later than eighteen days preceding such election.

7. A certificate to fill a vacancy caused by declination of a party nom-
ination for an office to be filled at the time of a general election shall be
filed not later than the fourth Tuesday preceding such election, and for an
office to be filled at an election at a time other than that of a general
election shall be filed not later than fourteen days preceding such election.

8. A petition for an independent nomination for an office to be filled at
the time of a general election shall be filed not earlier than the fifth Tues-
cay and not later than the fourth Tuesday preceding such election, and for
an office to be filled at an election at a time other than that of a general
election shall be filed not later than fourteen days preceding such election.

9. A certificate of declination of an independent nomination for an office
to be filled at the time of a general election shall be filed not later than
the third day after the fourth Tuesday preceding such election, and for
an office to be filled at an election at a time other than that of a
general election shall be filed not later than eleven days preceding such
election.

10. A certificate to fill a vacancy caused by declination of an independ-
ent nomination for an office ta be filled at a time other than that of a
general election shall be filed not later than the sixth day after the fourth
Tuesday preceding such election, and for an office to be filled at an election
at a time other than that of a general election shall be filed not later than
eight days preceding such election.

If a vacancy described in subdivision seven of section one hundred and
thirty-one occur too late to comply with the provisions of this section,
the certificates of nomination, declination and to fill a vacancy in such
nomination shall be filed as soon as practicable.° [Election Law, § 140
(L. 1922, ch. 588), in effect April 12, 1922.]

Ballots for questions submitted. The reading form of each proposed
constitutional amendment or other question submitted shall be printed in
a separate section. At the left of each question shall appear two voting
squares, one above the other, each at least one-half inch square. At the
left of the upper square shall be printed the word “Yes,” and at the left
of the lower square shall be printed the word “No.” On the stub at the
top of the ballot shall be printed in heavy black type the following
instructions:

 

35. Time of filing. Statute is mandatory. Matter of Cuddeback, 3 App. Div.
103, 39 N. Y. Supp. 388. But certificate may be filed at any hour of last day. Need
not be filed within hours during which clerk’s office is open. Matter of Norton,
34 App. Div. 79, 53 N. Y. Supp. 1033; appeal dismissed, 158 N. Y. 130.
TOWN MEETINGS. oy

cH

Election Law, § 106.
INSTRUCTIONS.

1. Mark only with a pencil having black lead.

. 2. To vote “Yes” make a cross X mark in the square opposite the word
“Yes.”

3. To vote “No,” make a cross X mark in the square opposite the word
“No.”

4, Any other mark than the cross X mark used for the purpose of vot-
ing or any erasure made on this ballot is unlawful.

5. If you tear, or deface, or wrongly mark this ballot, return it and
obtain another. ;

The questions shall be numbered consecutively on the face of the ballot.

So far as possible the ballots upon town propositions shall conform to
the directions herein contained respecting ballots on constitutional amend-
ments and questions submitted.

All ballots for the submission of town propositions for raising or appro-
priating money for town purposes, or for incurring a town liability, to be
voted at any town meeting in any town, shall be separate from all other
ballots for the submission of other. propositions or questions to the voters
of such town to be voted at the same town meeting or election. Such
ballots shall be endorsed “ballot upon town appropriations.’%" [Election
Law, §106 (L. 1922, ch. 588), in effect April 12, 1922.]

When the last day for filing the certificate falls on Sunday it must be filed on
the day preceding. Rept. of Atty. Genl. (1902) 318.

An official ballot is not invalid because it contains the name of a candidate
whose certificate of nomination was not filed until after the fixed date. Rept. of
Atty. Genl. (1895) 298.

When court may give relief. The statutory requirement as to the time when
certificates of nomination should be filed is mandatory, yet there may occur acci-
dents and mistakes. causing delay in such filing, and from the effects of which the
supreme court may give relief, provided it finds that the delay was not due to the
negligence of the convention making the nomination, but to the party to whom the
filing of the certificate was intrusted; but the question in each case, as to whether
there has been excusable default. or misfortune depends upon the particular facts,
and the determination of the question rests in the supreme court. Matter of Dar-
ling, 189 N. Y. 570, affg. 121 App. Div. 656, 106 N. Y. Supp. 480.

Default in filing nominations may be remedied by the Supreme Court, where
it appears that the certificates were mailed by the proper officers so that in the
ordinary course of mail they would reach the office of the secretary of state in
time, but for some unaccountable reason they did not reach such office until the
following day. Matter of Bayne, 69 Misc, 579, 127 N. Y. Supp. 915.

Mandamus will not issue to compel the acceptance and filing of a certificate of
nomination, if it was not tendered for filing twenty days before the election, as
required by this section. People ex rel. Steinert v. Britt, 146 App. Div.
684. So, where an original certificate of nomination has been held to be valid
notwithstanding the fact that the person designated to,call the convention to
order was not present owing to illness, the court will compel the board of elec-
tions to accept a second certificate made at a subsequent convention where the time
for filing the certificate of the original nomination has expired, Matter of People
ex rel. McGrath v. Dooling, 141 App. Div. 29, 127 N. Y. Supp. 748.

37. Additional matter improperly placed upon a ballot for the submission of
a proposition, does not necessarily render the ballot void. People ex rel. Williams
v. Board of Canvassers, 105 App. Div. 197, 94 N. Y. Supp. 996. ;

A proposition to change the site of a county building is not a town proposition,
within the meaning of this section, but is a county proposition and must be sub-
mitted to the voters upon the same ballet with the cons*!t-t'onal amendments avl
other questions submitted. Opinion of Atty. General (1916), 9 State Dept. Reports,
427,

 
276 TOWNS, TOWN MEETINGS AND TOWN OFFICERS,

Election Law, §§ 90, 101.

Number of official and sample ballots. The number of official ballots
of each kind to be provided for each polling place, except for a primary
election, shall be one and one-tenth times the number of voters entitled
to vote at the polling place, as nearly as can be estimated by the board or
officer providing such ballots. The number of official ballots for each
party to be provided for each polling place at a primary election shall
be not less than sixty nor more than one hundred and five per centum of
the total number of enrolled voters of the party in the election of
such polling place. If the official ballots required to be furnished
by any board or officer shall not be delivered to such board or
officer at the time required, or if after delivery shall be lost, destroyed
or stolen, such board or officer shall cause other ballots to be pre-
pared as nearly in the form of the official ballots as practicable, but
without the indorsement, and to be delivered to the inspectors of election.
Such ballots shall be known as unofficial ballots. Sample ballots of each
kind equal in number to ten per centum of the number of official ballots,
printed on paper of a different color from any of the official ballots and
without numbers on the stubs, but in all other respects precisely sim-
ilar to the official ballots, shall be provided for each polling place. Upon
printing the sample ballots for a primary election, the board of elections
shall send to the secretary of state one such ballot for one of the election
districts in each assembly district. [Election Law, § 101 (L. 1922, ch.
588), in effect April 12, 1922.] |

Distribution of ballots and supplies. The board of elections of each
county, except those counties which are wholly within the city of New
York, shall deliver at its office to each town or city clerk in such county,
except in the cities of New York and Buffalo, on the Saturday before the
election or primary for which they are required, the official and sample
ballots, and other supplies required to be provided hy the board of elections,
envelopes containing absentee voters’ ballots received for a general elec-
tion received not later than noon of the Friday before election day, and,
for a primary election, two registers containing party enrollments, for
each polling place in such town or city. The town or city clerk shall call
at the office of such board of elections at such time and receive such bal-
lots, supplies and articles. In the cities of New York and Buffalo the
board of elections shall cause such ballots, supplies and articles to be
delivered to the board of inspectors of each election district at least one-
half hour before the opening of the polls on each day of election or prim-
ary. For a district where registration is not required to be personal, card
slips for literacy tests shall be delivered with the other supplies for a
general election.

Each kind of official ballots shall be arranged in a package in the con-
secutive order of the numbers printed on the stubs thereof, beginning
with number one. All official and sample ballots for each election district
shall be in separate sealed packages, clearly marked on the outside thereof
with the number and kind of ballots contained therein and indorsed with
the designation of the election district for which they were prepared. The
other supplies provided for each election district also shall be inclosed
in a sealed package or packages, with a label on the outside thereof show-
ing the contents of each packeee. Each town and city clerk receiving
TOWN MEETINGS. ate

Election Law, §§ 109, 243.

such packages shall cause all such packages so received’ and marked for
any election district to be delivered unopened and with the seals thereof
unbroken to the inspectors of election of such election district one-half
hour before the opening of the polls of such election therein, and shall
take a receipt therefor specifying the number and kind of packages
delivered.

Town, city and village clerks required to provide official and sample
ballots and supplies for town meetings, city and village elections held at
different times from a general election, shall in like manner, deliver them
to the inspectors or presiding officers of the election at each polling place
at which such meetings and elections are held, respectively, in like sealed
packages marked on, the outside in like manner, and shall take receipts
therefor in like manner.®® [Election Law, §90 (L. 1922, ch. 588), in
effect April 12, 1922.]

Public inspection of ballots. Each officer or board charged with the
duty of providing official ballots for an election or primary election shall
have sample ballots open to public inspection five days before the election
for which they were prepared and the official ballots open to such inspec-
tion four days before such election, except that the sample ballots for a
village election or town meeting held at a different time from a general
election shall be so open to public inspection at least two days before
such election or meeting and the official ballots at least one day before
such election or meeting. During the times within which the ballots are
open for inspection such officer or board shall deliver to each voter apply-
ing therefor a sample of the ballot which he is entitled to vote. [Election
Law, §109 (L. 1922, ch. 588), in effect April 12, 1922.]

Adoption of voting machine. The board of elections of the city of New
York and the common council or other legislative governing body of each
other city of the first class shall, and the common council or other legis-
lative governing body of any other city, the town board of any town, or
the board of trustee of any village may adopt for use at elections any
kind of voting machine approved by the state board of voting machine
commissioners, or the use of which has been specifically authorized by law;
and thereupon such voting machine may be used at any or-all elections,
other than primary elections, held in such city, town or village, or in any
part thereof, for voting, registering and counting votes cast at such elec-
tions. Voting machines of different kinds may be adopted for different

 

38. The exception as to furnishing ballots at town meetings other than those held
at the time of a general election, has no application to a town meeting held at the
same time as a general] election, and ballots furnished for a local option election
thereat are valid, Matter of Town of Bath, (1916) 93 Mise. 575, 157 N. Y. Sunp.
205.
278 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Election Law, § § 244, 245, 247.

districts in the same city, town or village. If, on or before the first day
of April, nineteen hundred and twenty-two, such board of elections, com-
mon council or legislative governing body, as the case may be, of a city
of the first class, shall have failed to agree thereon, the secretary of state
within ten days thereafter, shall adopt a kind or kinds of voting machine
for use at elections in such cities. A sufficient number of voting machines
shall thereafter be provided in the manner prescribed in section two
hundred and forty-six so that at the general election in nineteen hundred
and twenty-two polling places in such cities to the extent of at least
fifteen per centum shall be equipped therewith. At least an additional
forty per centum of the polling places in such cities shall be so equipped
with voting machines for use at the general election in nineteen hundred
and twenty-three. All the remaining polling places in such cities shall be so
equipped with voting machines for use at the general election in nineteen
hundred and twenty-four. [Election Law, § 243 (L. 1922, ch. 588), in
effect April 12, 1922.]

Experimental use of voting machine. The authorities of a city, town or
village authorized to adopt a voting machine may provide for the experi-
mental use, at an election in one or more districts, of a machine which it
might lawfully adopt, without a formal adoption thereof; and its use at
such election shall be as valid for all purposes as if it had been lawfully
adopted. [Election Law, § 244 (L. 1922, ch. 588), in effect April 12,
1922.]

Providing machines, generally. Except as otherwise provided in the
next section with respect to cities of the first class, the local authorities
adopting a voting machine shall, as soon as practicable thereafter, provide
for each polling place one or more voting machines in complete working
order, and shall thereafter preserve and keep them in repair. If it shall be
impracticable to supply each election district with a voting machine or
voting machines at any election following such adoption, as many shall be
supplied as it is practicable to procure and the same may be used in such
election district or districts within the city, town or village as the officers
adopting the same may direct. [Election Law, § 245 (L. 1922, ch. 588),
in effect April 12, 1922.]

Payment for machine-—The local authorities, on the adoption and
purchase of a voting machine, shall provide for the payment therefor in
such manner as they may deem for the best interest of the locality and
may for that purpose issue bonds, certificates of indebtedness or other
obligations which shall be a charge on the city, town or village. Such
bonds, certificates or other obligations may be issued with or without in-
terest, payable at such time or times as the authorities may determine,
but shall not be issued or sold at less than par. [Election Law, § 247
(L. 1922, ch. 588), in effect April 12, 1922.]
TOWN MEETINGS. a79

Election Law, § 64.

Creation and alteration of election districts. In the cities of New York
and Buffalo and cities and towns of the counties of Monroe and Niagara,
respectively, the creation or the consolidation, division or other alteration
of election districts shall be done by the board of elections, and in any
other city or town by the common council or town board. Every town or
ward, not subdivided into election districts, shall be an election district.
Each assembly district in the city of New York, and elsewhere, if paper
ballots are to be used, each town having more than five hundted voters and
each ward having more than six hundred voters, or, if the voting is to be
by machine, each town or ward having more than seven hundred voters,
shall be divided into election districts in any year when necessary; pro-
vided that if two machines are to be used at the polling place, a town or
ward having not more than one thousand voters need not be divided. Any
other town or ward may be so divided when the convenience of voters will
be promoted thereby. Any creation, consolidation, division or alteration
of election districts in any year shall be made on or before July first, to take
effect on the ensuing first day of October, except that when required by the
creation or alteration of a political subdivision in which candidates are
to be voted for at the fall primary, it shall take effect immediately. In the
city of New York, in the case of excessive registration in any year, an
election district may be divided to take effect before the general election.
Each election district shall be compact in form. It shall not contain
portions wards, towns, counties, assembly or congressional districts.
Except as otherwise provided in a local or special act, it shall not be
partly within and partly without a village having five thousand or more
inhabitants except with the written approval of the board of elections,
filed with the town clerk. As nearly as may be, except as above provided,
an election district shall contain’ four hundred and fifty voters where
paper ballots are used, six hundred voters where one voting machine is
used and nine hundred voters where two voting machines are used, but it
may contain a less number where the convenience of the voters will be
promoted thereby, or where that is necessary to enable all the voters to
vote for the same offices. When necessary, in order to comply with this
section, the election districts into which a town, ward or assembly district
is or may be divided may be consolidated, divided or otherwise altered, or
new districts may be created, or a town or ward so divided may be made one
election district, but the election districts of a town, ward or assembly
district shall not be altered or new election districts created hecause- of
excessive number of voters in any such election district until such number
shall exceed by at least fifty the number above specified. [Election Law,
§ 64 (L. 1922, ch. 588), in effect April 12, 1922.]
280 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

uxplanatory note.

CHAPTER XX.

TOWN OFFICERS; ELECTION AND TERMS.
EXPLANATORY NOTE.

Election of Town Officers.

Town officers consist of supervisor, town clerk, four justices of the
peace, three assessors, collector, one or two overseers of the poor, not
more than five constables, and one superintendent of highways. Other
town officers exist in some towns, as where town auditors are elected or
provision is made for the election of pound keepers. Elective town
officers are to be elected by ballot at biennial town meetings. In case of
a failure to elect, the town officer in office continues in office until the
vacancy is filled by appointment.

The Highway Law, § 41, as amended by L. 1916, ch. 47, provides
for the adoption of a proposition at a town meeting to appoint a town
superintendent of highways. Where such a proposition is adopted, the
town board is to appoint such superintendent for the term prescribed by
law.

Terms of Office.

The terms of town officers, except justices of the peace, are fixed by
law at two years. Justices of the peace are required by the constitution
to be elected for terms of four years. If town meetings are held at
times other than general election day they take office immediately upon
taking the required oath. If such meetings are held on general election
day, the terms of town officers begin on the first day of January follow-
ing their election. If a town superintendent of highways is elected
at a town meeting held on election day, his term begins on the Thursday
succeeding his election; if elected at a town meeting held at any other
time, his term begins on November first, following his election.
TOWN OFFICERS; ELECTION AND TERMS. 281
Town Law, § 80.

Section 1. Election of town officers.
2. Power of town meeting to fill vacancy in office of justice of the peace.
8. Term of office of town officers; when town meetings are held at
. time of general election, term to begin on January 1, following;
collector to complete duties of office.
Terms of supervisors in certain counties.
. Holding over after expiration of term.
Number and terms of justices of the peace.
. Justices of the peace; ballots. for full term and vacancies; officers
in new towns.
8. Justices in new towns; upon erection of new town, or annexation,
justices of the peace, how to hold office.
8-a. Reduction of number of justices in towns of Monroe county to one;
election and powers of town trustees,
9. Certificates of election of justice of the peace.
10. Town superintendents of highways, election and term of office; vacan-
cies; office of highway commissioner abolished; deputies,
11. Overseers of poor; determination of number; resolution to be voted for;
appointment of overseer by town board.
°12, Special ocnstables; appointment and powers,
13. Election officers; kind, number and qualifictions.

14. Appointment of inspectors of election in towns; clerks.
15. Erection or discontinuance of pounds; election of poundmasters,

oo

a ie

§ 1. ELECTION OF TOWN OFFICERS. :

Except as otherwise provided in this section, there shall be elected at the
biennial town meeting in each town, by ballot, one supervisor, one town
clerk, two justices of the peace, two assessors, one collector, one or two over-
seers of rg poor, not more than five constables and one superintendent

 

Election cf town officers. This section applies to town and not to city super-
visors. People ex rel. Clancy v. Supervisors, 139 N. Y. 524; 34 N. E. 1106.

Town clerks can only be elected at town meetings. Matter of Foley, 8 Misc. 196;
28 N. Y. Supp. 611.

Additional supervisors in certain counties, see §§ 450-456, Town Law, as added by
L. 1918, ch. 289.

Election of justices of the peace. The constitution provides that electors
of the several towns shall, at their annual town meetings, or at such other time
and in such manner as the legislature may direct, elect justices of the peace, whose
term of office shall be four years. Consti‘ution, art. 6, sec. 17. The designation con-
tained in such constitutional provision of the “annual town meeting” as the time
when justices of the peace are to be elected, is equivalent to a prohibition against
electing them at any other time, and while the legislature may fix the day upon
which town meetings may be held, it cannot prohibit the election of justices of the
peace at such meeting, or provide for their election ab any other time or place. Peo-
ple ex rel. Smith v. Schiellein, 95 N. ¥. 124. See, also, Ex parte Quackenbush, 2
Hill, 369; People v. Keeler, 17 N. Y. 370. :

Where a vacancy exists in the office of justice of the peac
would have expired December 31, 1913, ee in August, M512 ne Gane ne
filled, the town being one in which its biennial town meetings are held in the spring
the person appointed to fill the vacancy holds his o.fice until the biennial town
meeting in 1913, at which time the vacancy is filled by election for the balance of
the unexpired term. Opinion of Atty. Genl., Mch. 11, 1913.

Election of constables. Under section 43 of the Town Law, post, a town
meeting may determine the number of constables—a number not exceeding
five. Where a town meeting fixes the number of constables at three, but
282 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, §§ 44, 82.

of highways, excepting that in towns which shall have adopted a resolution
that thereafter such town superintendent shall be appointed by the town
board, pursuant to the provisions of section forty-one of the highway law,
he shall be appointed as therein prescribed. Provided, however, that in
towns in a county containing two hundred thousand or less inhabitants,
according to the last federal census or state enumeration, adjoining a city
of the first class containing a population of over one million, the town
superintendent of highways hereafter elected or appointed shall hold office
for the term of four years; and provided further that in a town of any such
county not more than four constables shall be hereafter elected at the
biennial town meeting. At the first biennial town meeting in each town,
after this section as hereby amended takes effect, two assessors shall be
elected to hold office for two years and one assessor to hold office for four
years. Of the two assessors chosen at any subsequent biennial town meeting
in each town, one shall be elected to hold office for two years and one to hold
office for four years. [Town Law, § 80, as amended by L. 1909, ch. 491, L.
1910, ch. 271, L. 1916, ch. 346, and L. 1917, ch. 44; B. C. & G. Cons. L,
p. 6157.]

e
§ 2. POWER OF TOWN MEETING TO FILL VACANCY IN OFFICE OF

JUSTICE OF THE PEACE.

Tf there shall be any vacancies in the office of justice of the peace of
any town at the time of holding its biennial town meeting, persons shall
then also be chosen to fill such vacancies, who shall hold their offices for
the residue of the unexpired term for which they are respectively
elected.” [Town Law, § 44; B. C. & G. Cons. L., p. 6144.]

§ 3. TERM OF OFFICE OF TOWN OFFICERS; WHEN TOWN MEET.

INGS ARE HELD AT TIME OF GENERAL ELECTION, TERM

TO BEGIN ON JANUARY 1 FOLLOWING; COLLECTOR TO
COMPLETE DUTIES OF OFFICE.

Supervisors, town clerks, town superintendents of highways, collectors,

overseers of the poor, inspectors of election and constables, when elected,

shall hold their respective offices for two years. The terms of office of

 

only elects two, the two elected oust all those in office at the time of such
election. People ex rel. Platner v. Jones, 17 Wend. 81; People v. Loomis, 8
Wend. 396; People v. Adams, 9 Wend. 333.

Effect of tie vote. When an election for a town officer results in a tie, the
person then holding office holds over until his successor shall be elected. Rept.
of Atty. Genl. (1895) 93; Rept. of Atty. Genl. (1897) 340.

2. Election to fill vacancies. Since the amendment of the former Town Law
by ch. 481 of the L. of 1897, providing for biennial in place of annual town
meetings, which also made the terms of office of all town officers, except
justices of the peace, two years, the only town office in which a vacancy can
be filled by election at a town meeting is that of justice of the peace. If
the office of justice of the peace is vacant at the time of holding town meet-
ings, it may be filled by the electors voting at such town meeting, and the
person elected shall hold his office for the residue of the unexpired term.
Upon the election and qualification of such a justice to fill a vacancy, the
term of office of the person appointed to fill such vacancy expires. People
ex rel. Lovett v. Randall, 151 N. Y. 497; 45 N. B. 841.
TOWN OFFICERS; ELECTION AND TERMS, 283

Town Law, § 82.

assessors shall be two years for one assessor and four years each for two
assessors. But whenever there is or shall be a change in the time of hold-
ing town meetings in any town, persons elected to such offices at the next
biennial town meeting after such change has been authorized as provided
by law, shall enter upon the discharge of their duties at the expiration of
the term of their predecessors and serve until the next biennial town meet-
ing thereafter or until their successors are elected and have qualified, except
that the assessor elected for four years shall serve until the second biennial
town meeting thereafter, or until his successor is elected and has qualified.
Whenever the time of holding town meetings in any town is changed to the
first Tuesday after the first Monday in November, except when changed as
provided in section forty-one of this chapter,* the town officer selected thereat
shall take office on the first day of January succeeding their election. Ex-
cept that the collector elected at such town meeting shall take office imme-
diately upon his election and qualification as prescribed by law. Except as
otherwise provided in this section, in case the time of the holding of
town meetings in any county is changed by resolution of the board of
supervisors of the county to the first Tuesday after the first Monday

 

8. Extension of term. It is a general rule that the term of office of a town
officer cannot be extended by an act of the legislature. In the case of People ex rel.
Le Roy v. Foley, 148 N. Y. 679, 682; 43 N. E. 171, the court said: “ The legislature
cannot extend the term of a town officer after his election, since that wou d virtually
be an appointment to ‘he office during the period of extension. The legislature van-
not appoint town officers. They must either be elected by the people of the town «or
appointed by such town authorities as the legislature may designate for that pur-
pose. Constitution, art. 10, sec. 2. The power of appointment in such cases can-
not be directly exercised by the legislature nor indirectly by extending the term
of a town officer after his election. It can, of course, enlarge the official term of
town officers, but such action can operate only upon officers thereafter elected. Whicre
the office is to be filled by one authority and the duration of the term is to be de-
termined by another, the declaration of such duration must go before the filling,
so that each authority may have its legitimate exercis:.” See, also, People ex sel.
Williamson v. McKinney, 52 N. Y. 374; People ex rel. Lord v. Crook, 53 N. Y. 643.
When the duration of the term of office is once declared by law the legislature can-
not ex‘end such term so as to affect the term of the incumbent at the time of the
passage of the act. People ex rel. Fowler v. Bull, 46 N. Y. 57. See also, People
ex r J. Lovett v. Randall, 151 N. Y. 497; 45 N. E. 841.

A board of supervisors has no authority to so change the time of town meetings
as to ext:nd the terms of the supervisors in office at the time of the adop'icn of
the resolution. Rept. of Atty. Genl, Feb, 15, 1912. But see People ex rel. Fluckiger
v. Huftalen, 158 App. Div. 44, and People ex rel. Perkins v. Pelcher, 81 Misc. 423,
in which case it was in effect held that town officers in office at the time the election”
would have been held if the time had not been changed continue in office until the
vacanci~s caused by expiration of term are filled either by appointment or election.

Election and qualification of successor. Supervisor to serve until successor
is elected and has filed t've constitu‘ional oath. Matter of Bradley, 49 N. Y. St, Rep.
530, 21 N. ¥. Supp. 107.
284 TOWNS, TOWN MEETINGS AND TOWN OFFICERS,

Town Law, §§ 82, 102.

in November, all town officers in any town of such county elected at the
first biennial town meeting held after the adoption of such resolution
shall hold oftice until the first day of January succeeding the biennial
town meeting first held pursuant to such resolution. No resolution
changing the time of holding town meetings to the first Tuesday after
the first Monday in November shall be effectual, to dispense with the
holding of the first biennial town meeting after ‘the adoption of such
resolution at the time fixed when such resolution was adopted. But the
collector in each.town shall complete the duties of his ottice in respect
to the collection of taxes, and the payment and return thereof, upon any
warrant received by him during his term of office, notwithstanding the

fact that his successor has entered upon the duties of his office. [Town
Law, § 82, as amended by L. 1909, ch. 491, L. 1910, ch. 271, L, 1913, ch.
231, and by L. 1918, ch. 372; B. C. & G. Cons. L., p. 6159.]

§ 4. TERMS OF SUPERVISORS IN CERTAIN COUNTIES.

In each of the counties of this state containing over three hundred thou-
sand inhabitants and less than six hundred thousand inhabitants as now
appears or as may hereafter appear by the latest federal or state enumera-
tion of inhabitants, and within which is, or may be, a city divided into
wards from which supervisors are elected for a longer term than one year,
the term of office of supervisors of the respective towns shall be as long as
the term of office of the city supervisors. The terms of office of all such
supervisors shall begin on the first day of January next succeeding their
election.© [Town Law, § 102; B. C. & G. Cons. L., p. 6170.]

§ 5. HOLDING OVER AFTER EXPIRATION OF TERM.

Every officer except a judicial officer, a notary public, a commissioner
of deeds and an officer whose term is fixed by the constitution, having duly
entered on the duties of his office, shall, unless the office shall terminate or
be abolished, hold over and continue to discharge the duties of his office,
after the expiration of the term for which he shall have been chosen, until
his successor shall be chosen and qualified; but after the expiration of such
term, the office shall be deemed vacant for the purpose of choosing his
successor. An officer so holding over for one or more entire terms,.shall,
for the purpose of choosing his successor, be regarded as having been newly

 

4. Section 41 of the Town Law (ante, p. 246), referred to in the above
section authorizes a town to adopt a proposition at a regular town meeting
changing the date of its town meeting to the first Tuesday after the first
Monday in November, known as general election day. If such a proposition
is so adopted, the term of office of all officers, except justices of the peace,
is two years from the date of their e<ection.

5. This section was derived from L. 1893, ch. 180, § 1, as amended by L. 1895,
ch. 266, and only applies to Erie Co.
TOWN OFFICERS; ELECTION AND TERMS. 285

Public Officers Law, § 5.

chosen for such terms. An appointment for a term shortened by reason
of a predecessor holding over, shall be for the residue of the term only.*
{Public Officers Law, § 5; B. C. & G. Cons. L., p. 4621.]

 

6. Application of section. Unless expressly authorized by statute an officer
is not permitted to hold over after the expiration of his term. People v.
Tiernan, 30 Barb. 193; 8 Abb. 359. In the case of Pecple ex rel. Woods v.
Crissell, 91 N. Y. 616, it appeared that at a general election two persons were
candidates for office of alderman. Two of the four inspectors signed a state-
ment certifying that one of them had received a majority of the votes cast.
The other two inspectors refused to sign the statement. It was held that until
the rights of the parties were decided in the courts and the result settled the
election was to be treated as a failure so far as either of such candidates were
concerned, and neither could claim any benefit therefrom; and that since, at
such election, no successor was elected to the alderman in office, that he held
over u~til the official determination of the result of the election and until his
successor duly qualified. In the case of People ex rel. Kehoe v. Fitchie, 76
Hun, 80; 28 N. Y. Supp. 600, it was held that the failure to elect a successor of
an officer does not render the office vacant, and when a supervisor of a city ward
is elected he continues to hold office until his successor is elected either at a
general or at a special election ordered as provided by law. In the case of
Peopie ex rel. Williamson v. McKinney, 52 N. Y. 374, it was held that until a
town collector shall take and subscribe an oath of office he is not qualified
within the meaning of this section, and the incumbent of the office is entitled
to hold over. See, also, Montgomery, v. O’Dell, 67 Hun, 169, 178; 22 N. Y. Supp.
412. The term “ qualified,” as used in this section and in section 82 of the Town
Law, means to take an oath of office and to file an official undertaking as
required by law. People ex rel. Williamson v. McKinney, 52 N. Y. 374, 380.

Application of this section does not extend to constitutional officers or to the
terms of the members of the Legislature. Opinion of Atty. Gen. (1919), 19 St.
Dept. Rep, 343.

Where a town officer is lawfully holding over after the expiration of his
term the office is to be deemed vacant for the purpose of electing a successor,
from and after the expiration of the term for which the incumbent was chosen,
although the term of the office, as distinguished from the term for which he
was chosen, way have been in the meantime enlarged. People ex rel. Lovett
v. Randall, 151 N. Y. 497; 45 N. E, 841. The town officer holding over after
the expiration of his term is a de facto officer. People v. Cooper, 57 How.
Pr. 416; People ex rel, Rumph v. Supervisors, 89 Hun, 38, 41; 34 N.Y. Supp. 1,
128.

Officer holding over is entitled to salary. DeLacy v. City of Brooklyn, 12 N,
Y. Supp. 540, 36 N. Y. St. Rep. 95.- °

Where an election held to fill the office of trustee in a village. whose term
expired on the day of election, results in a tie vote, the trustee whose term
has expired will hold over by virtue of the above section until his successor is
duly elected, as provided by the village charter, at a special election held therefor.
Matter of Travis, 87 App. Div. 554, 84 N. Y. Supp. 534.

Justices of the peace are not within the provisions of this section. Rept. of
Atty. Genl. (1903) 298. :

A. supervisor holding over cannot vote as a member of the town board to fill a
vacancy in the office. Matter of Smith, 116 App. Div. 665, 101 N. Y. Supp. 992,
affd. 188 N. Y. 549.

A town assessor holds over until his successor elected. Rept. of Atty. Genl.,
May 25, 1911,
286 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, § 103.

§ 6. NUMBER AND TERMS OF JUSTICES OF THE PEACE.

There shall be four justices of the peace in each town, divided into two
classes, two of whom shall be elected biennially. Such justices shall hold
office for a term of four years commencing on the first day of January
succeeding their election. In each county in the state having within its
boundaries a city having a population of not less than three hundred thou-
sand and not more than four hundred thousand, according to the last federal
enumeration, the justices of the peace heretofore elected shall hold their
offices for the terms for which they were respectively elected, but, except
as hereinafter provided, no successors to them shall be elected. In each of
said counties there shall be elected at the biennial town meeting in nine-
teen hundred and three, two justices of the peace whose terms of office shall
begin on the first day of January succeeding their election, and who shall
hold office for the term of four years. At the biennial town meeting in
each of said counties held in nineteen hundred and five, there shall be
elected two justices of the peace whose terms ot office shall begin January
first, succeeding their election, and who shall hold office for four years.
At each biennial town meeting thereafter, there shall be elected two justices
of the peace for the full terms of four years, commencing on the first day of
January succeeding the town meeting.* [Town Law, § 103; B. C. & G.
Cons. L., p. 6170.]

Inspectors of election hold over the same as other town officers. Rept. of Atty.

Genl. (1903) 357.
As to right of district superintendent of ‘schools to continue in office until the

election of a successor, see Opinion by Commissioner of Education (1918), 16 State

Dept. Rep. 336.
Expiration of term. Notwithstanding the determination at an annual town

meeting that the number of constables of the town shall be three, the election
of only two ousts the three elected the preceding year. People ex rel. Platner v.
Jones, 17 Wend. 81.

Authority of a deputy clerk, who discharges duties of county clerk in con-
sequence of the death of his principal, ceases on the appointment by the governor
of another ‘county clerk. People ex rel..Smith v. Fisher, 24 Wend. 215.

Successor duly qualified. Before a successor can be duly qualified to take an
office, there must be united an appointment by competent authority, and such
other proceedings as the law requires. People v. Woodruff, 32 N. Y. 355, 361;
Pell v. Ulmar, 21 Barb. 500; Tappan v. Gray, 9 Paige, 507; People v. Van Horne,
18 Wend. 515, 518.

7. Constitutional provision as to justice of the peace. The constitution
provides (art. 6, sec. 17), as follows: “The electors of the several towns, shall,
at their annual town meetings, or at such other time and’ in such manner as
the legislature may direct, elect justices of the peace, whose term of office shall
be four years. In case of the election to fill a vacancy occurring before the
expiration of the full term, they shall hold for the residue-of the unexpired
term. Their number and classification may be regulated by law. Justices of
the peace and judges or justices of inferior courts not of record, and their
clerks may be removed for cause, after due notice and an opportunity of being
heard, by such courts as are or may be prescribed by law.”

Power of legislature as to office of justice of the peace. The office of justice
of the peace in towns is a constitutional office and cannot be abolished by the
TOWN OFFICERS; ELECTION AND TERMS. 287
Town Law, § 56.

§ %. JUSTICES OF THE PEACE; BALLOTS FOR FULL TERM AND
VACANCIES; OFFICERS IN NEW TOWNS.

When the electors of any town are entitled to vote for a justice of the
peace, to fill a vacancy caused otherwise than by expiration of term, each
elector may designate upon his ballot the person intended for a full term
and for a vacancy, and if there are two vacancies, they may be designated
as the longer and the shorter vacancy; and if three vacancies, the longer,
shorter and shortest vacancy; and each person having the greatest number
of votes with reference to each designation shall be deemed duly elected
for the term or vacancy designated. If ballots are voted without designa-
tion, the first name on the ballot shall be deemed as intended for the full
term of the office voted for, the second name for the longer vacancy, the
third name for the shorter vacancy and the fourth name for the shortest

 

legislature either directly or indirectly, so long as the town exists. Not only is
the office itself placed beyond the reach of hostile legislation, but also the term
thereof, the method of filling it, and, by implication, the method of removing the
incumbent. People ex rel. Burby v. Howland, 155 N. Y. 270; 49 N. EB. 775.
In this case chapter 22 of the Laws of 1896, entitled ‘“‘ An act to provide for the
better administration of justice in the town of Fort Edward, in the county of
Washington,” was under consideration. This act created the office of police
justice in the town of Fort Edward and by depriving the justices of the peace in
that town of fees, and by providing that such justices should not be compelled
to take cognizance of criminal proceedings therein it indirectly deprived such
justices of their jurisdiction, and it was held to constitute a pro tanto abolition
of the office of justice of the peace, and it was to that extent unconstitutional.
The court, in effect, decided that it is not in the power of the legislature to
enact that justices of the peace jn the state at large shall have certain powers
and duties, except in one certain town, and that there only they shall not have
those duties, and if they voluntarily attempt to discharge them, they shall have
no power to enforce their judgment.

TI: the case of Matter of Gertum, 109 N. Y. 170; 16 N. E. 28, the court said:
“Tt is undoubtedly beyond the power of the legislature by direct, legislation,
to abolish the office of justice of the peace in towns, or shorten their term of
office so long as the town exists, but they have an unquestioned right to alter
and change the limits of their jurisdiction or abolish the town organization
altogether, provided it be done in good faith and for proper constitutional
objects. The whole force and effect of the provision in relation to justices
is satisfied by enforcing it, so long as there is a town organization in ex-
istence authorized under the constitution to elect justices of the peace and
requiring the performance of their functions in the government of the
town.”

In the case of People ex rel. Clark v. Treacy, 46 App. Div. 216; 61 N. Y.
Supp. 288, which arose under chapter 439 of the Laws of 1897, providing for
the holding of town meetings in the towns in the counties of Orange, Rock-
land and Sullivan, it was held that the provisions of that act for the election
of a justice of the peace to take office before the expiration of the full term
of his predecessor was unconstitutional. This act also contained a provision
for the election of a justice of the peace at a town meeting to be held in the
288 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, §§ 104, 105.

vacancy.* The provisions of this section shall apply to new towns erected;
and officers to be elected in such towns, except for a full term, shall be
deemed elected to fill vacancies. [Town Law, § 56; B. C. & G. Cons. L.,
p- 6149.]

§ 8. JUSTICES IN NEW TOWNS; UPON ERECTION OF NEW TOWNS,
OR ANNEXATIONS, JUSTICES OF THE PEACE, HOW TO HOLD
OFFICE.

If there be one or more justices of the peace residing in a new town, when
erected, they shall be deemed justices of the peace thereof, and shall hold
their offices according to their respective classes; and only so many shall be
elected as shall be necessary to complete the number of four for the town.
[Town Law, § 104; B. C. & G. Cons. L., p. 6171.]

If by the election of a new town or the annexation of a part of one town
to another, there shall at any time be more than four justices of the peace
residing in any town, they shall hold and exercise their offices in the town
in which they reside, according to their classes respectively; but on the
expiration of the term of office of two or more justices, being in the same
class, only one person shall be elected to fill the vacancy in that class.
Whenever by the erection of a new town, or the annexation of a part of one
town to another, any town shall be deprived of one or more justices of the
peace, by their residence being within the part set off, the inhabitants of
such town shall, at its next annual town meeting, supply the vacancy so
produced in the classes to which such justices belong. [Town Law, § 105;
B. C. & G. Cons. L., p. 6171.]

 

year 1897, to take office on the first of January, 1899, instead of at a town meeting
held immediately preceding such first day of January, 1899. The court intimated
that the legislature could not direct the election of a constitutional officer at a date
earlier than that of the election which next precedes the expiration of the term of
the existing incumbent, and that, therefore, such provision of the statute was in-
valid. m

7. Removal of justice of the peace. Section 18, art. 6, of the constitution provides
that justices of the peace may be removed from office by such courts as may be
prescribed by law, and the legislature by law prescribed the Appellate Division of
the Supreme Court as the court to be vested with such power (see sec. 132 of the
Code of Criminal Procedure), and it is the only court that the legislature has vested
with such power. Matter of Prescott, 77 Hun, 518; 28 N. Y. Supp. 928.

8. Ballots for full term and vacancies. The provisions of the above section
of the Town Law relating to ballots containing the names of candidates for
TOWN OFFICERS; ELECTION AND TERMS, 289
Town Law, § 105a.

§ 8a. REDUCTION OF NUMBER OF JUSTICES IN TOWNS OF MON-
ROE COUNTY TO ONE; ELECTION AND POWERS OF TOWN
TRUSTEES.

Registered voters of a town in Monroe county, constituting at least five
per centum of the total number registered, may, by written application
addressed to the town clerk, and filed with him at least thirty days prior
to a biennial town meeting or general election, require the submission in
such town to such biennial town meeting or general election of the follow-
ing proposition: “Shall the number of justices of the peace in the town
Ob iewewadgeun ma tedls (naming the town) be reduced to one and town
trustees elected therein?” Notice of the submission of such proposition
shall be given in the manner provided by law for the submission of proposi-
tions at biennial town meetings or general elections, as the case may be. If
a majority of the votes cast on such proposition be in the affirmative, no
justice of the peace shall thereafter be elected in such town except as pro-
vided in this section, but justices of the peace of such town shall continue in
office until the expiration of their terms, respectively. At the biennial
town meeting held next preceding the expiration of the term or terms of a
justice or justices having the shortest term or terms to serve, there shall
be elected one justice of the peace to hold office for a term of four years
from the expiration of such term or terms. A successor to such justice
shall in like manner and for a like term be elected at the biennial town
meeting next preceding the expiration of his term of office. A justice of
the peace elected in such town pursuant to this section, or theretofore
elected, shall be a member of the town board of such town and shall other-
‘wise have all the powers and duties conferred or imposed by law on justices
of the peace in towns. When the number of justices of the peace in such
town shall be reduced to one, as provided by this section, such justice shall
in addition have power to act in bastardy proceedings without associating
with himsélf another magistrate of the same county, as required by statute.
When the number of the justices of the peace in such town shall have been
reduced to one, pursuant to this section, the town board of such town may,
by resolution, determine that the justice of the peace thereof shall receive
an annual salary and may fix such salary, and thereupon all fees to which
such justice may be entitled shall be collected by him and paid to the super-
visor of the town, and be applicable to general town purposes. There shall
be elected in such town at the biennial town meeting first held after the

 

vacancies in the office of justice of the peace is to be construed in connection with
sec. 107 of the Election Law.
290 TOWNS, TOWN MEETINGS AND TOWN OFFICERS,

Town Law, § 94; Highway Law, § 40.

adoption of such proposition two town trustees to hold office for terms of
four years from the expiration of the term or terms of the justices of the
peace of such town having on the date of such town meeting the shortest
term or terms to serve. There shall also be elected in such town at the
second biennial town meeting after the adoption of such proposition two
town trustees to hold office for terms of four years from the expiration of
the term or terms of the justices of the peace of such town having on the
date of such town meeting the shortest term or terms to serve. Successors
of such town trustees shall be elected for full terms of four years at the-
biennial town meeting next preceding the expiration of the terms of their
predecessors’ in office. Town trustees shall be members of the town board
of such town, and as such members shall have all the powers and duties and
receive the same compensation as the town clerk of such town is entitled to
receive as a member of the town board. Such a town trustee shall also,
within the town, have all the powers of a justice of the peace to administer
oaths and affidavits and take acknowledgments, upon filing his autograph
signature with the county clerk of the county in which such town is located,
and also with the register of such county, if there be one. [Town Law,
§ 105a, as added by L. 1918, ch. 302.]

§ 9. CERTIFICATE OF ELECTION OF JUSTICE OF THE PEACE.

The town clerk of each town shall, within ten days after the election
of a justice of the peace has been declared, transmit to the clerk of his
eounty a certificate showing the result of such election under his hand,
which shall be presumptive evidence of the fact therein certified.® [Town
Law, § 94; B. C. & G. Cons. L., p. 6166.]

§ 10. TOWN SUPERINTENDENTS OF HIGHWAYS, ELECTION AND
TERM OF OFFICE, VACANCIES; OFFICE OF HIGHWAY
COMMISSIONER ABOLISHED; DEPUTIES.

Election of town superintendent of highways. At the biennial town
meeting held next after the taking effect of this chapter, there shall be
elected in each town a town superintendent of highways. A successor to
the town superintendent, so elected, shall be elected at each biennial town
meeting held thereafter in such town, unless the town shall have adopted
as provided in section forty-one a resolution that thereafter the town super-

 

9. For form of certificate of election of justices, see Form No. 19, post.

Duties of county clerk. The clerk of each county is required by section 14
of the Town Law, post, to report to the district attorney of the county an omission
of a town clerk to transmit a certificate of the election of a justice of the peace as
required by the above section.
TOWN OFFICERS; ELECTION AND TERMS, 290a
Highway Law, §§ 41, 41a, 41b, 42:

intendent shall be appointed by the town board. [Highway Law, § 40; B.C. & G.,
Cons., L., 2d Ed., p. 3384.]

Submission of proposition for appointment of town superintendent. Upon the
written request of twenty-five taxpayers of any town, made and filed as provided
in the town law, the electors thereof may, at a special or biennial town meeting,
vote by ballot upon a proposition providing for the appointment .of a town super-
intendent in such town. Such proposition shall be submitted in the manner pro-
vided by law for the submission of questions or propositions at a town meeting.
If such proposition be adopted, the town board of the town shall, upon the expira-
tion of the term of office of the elected town superintendent, appoint a town
superintendent therefor, who shall take and hold office for the term hereinafter
prescribed. Upon like request the electors of any town in which the office of
superintendent of highways is appointed may, in like manner, determine that the
superintendent of highways for such town shall thereafter be elected, as provided
in section forty of the highway law.9 [Highway Law, § 41, as amended by L.
1916, ch. 47; B. C. & G. Cons, L., 2d Ed., p. 3385.]

Submission of proposition for division of town into highway districts and
election of two town superintendents in the town of Hector. Upon the written
petition of twenty-five tax-payers of the town of Hector, made and filed as
provided in the town law, the electors thereof may, at a special or biennial town
meeting, vote by ballot upon a proposition providing for the division of such town
into two highway districts and the election of one town superintendent for each
district. Such proposition shall be submitted in the manner provided by law for
the submission of questions or propositions at a town meeting. If such proposition
shall be adopted, the town board of the town shall divide such town into’ two
highway districts as nearly equal in highway mileage as possible. The present
town superintendent of highways of such town shall have charge of the district
within which he resides and the town board of such town shall appoint a town
superintendent for the other district who shall hold office until the next biennial
town meeting following his appointment. At the next biennial town meeting follow-
ing the adoption of such proposition, and biennially thereafter, there shall be
elected in said town of Hector one town superintendent from each of such districts
who shall hold office for the term of two years as hereafter prescribed Upon like
petition the electors of such town may determine that such town be consolidated
into one district and provide for the election of one town superintendent of high-
ways as provided in section forty of the highway law. [Highway Law, § 41-a, as
added by L. 1920, ch. 374.]

Appointment of town superintendents of highways in certain counties. In any
town in a county having a population of more than three hundred thousand accord-
ing to the last federal or state census or enumeration, adjoining a city of the first
class, having a population of one million and upwards, the town board may by
unanimous vote determine by resolution that, after the expiration of the term of
office of the elected town superintendent of highways, such office shall be filled by
appointment by the town board. If such resolution be adopted the town board of
such town shall not more than thirty days before the expiration of the term of
the elected town superintendent of highways appoint a town superintendent of
highways who shall serve at the pleasure of such town board, [Highway Law,
§ 41b, added by L. 1921, ch, 281.]

Term of office of town superintendent. The term of office of a town
superintendent elected or appointed, as provided in this article, shall be
two years. If such town superintendent be elected at «a town meeting
held at the time of a general election, his term shall begin on the first

 

Sa. Effect of vote. This section does not have the effect of making the office of
town superintendent of highways permanently appointive when such proposition has
been approved by the electors, A subsequent election may again make the _posi-
tion elective. People ex rel. Dare v. Howell (1916), 174 App. Div. 118, 160 N. Y.
Supp. 959.
290b TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Highway Law, §§ 43, 44; Town Law, § 112.

day of January succeeding his election. If such town superintendent
shall have been elected at a town meeting held at any other time, his
term of office shall begin on the first Monday succeeding his election.
If such town superintendent shall have been appointed pursuant tc a
proposition adopted, as provided in the preceding section, his term shall
begin on the first day of January succeeding his appointment, and the
town board shall meet prior to that day, for the appointment of such
town superintendent. [Highway Law, § 42, as amended by L. 1917,
ch. 562; and L. 1918, ch. 372; B. C. & G. Cons. L., p. 2189.]

Vacancies; office of highway commissioner abolished. Vacancies in
the office of town superintendent shall be filled for the balance of the un-
expired term. The office of highway commissioner in each town is
hereby abolished, to take effect on and after November first, nineteen
hundred and nine. Where the office of highway commissioner shall
become vacant by expiration of tcrm or otherwise, after the taking
effect of this chapter, and prior to the said first day of November, nine-
teen hundred and nine, such vacancies shall be filled for a term to expire
on such date. Highway commissioners in office when this chapter or any
section hereof takes effect shall exercise the powers and perform the
duties hereby conferred and imposed upon town superintendents until
the said first day of November, nineteen hundred and nine, and until
their successors shall have duly qualified, whereupon such powers and
duties shall cease and determine. [Highway Law, § 43; B. C. & G.
Cons. L., p. 2183. ]

‘Deputy town superintendent. The town board of a town may, in its
discretion, upon the written recommendation of the town superintendent,
appoint a deputy town superintendent, to be nominated by such town
superintendent, to assist him in the performance of his duties. Such
deputy superintendent shall act as such during the pleasure of the
town superintendent.” [Highway Law, § 44; B. C. & G. Cons. L., p.
2184.]

§ 11. OVERSEERS OF POOR; DETERMINATION OF NUMBER; RESOLUTION
TO BE VOTED FOR; APPOINTMENT OF OVERSEER BY TOWN BOARD.

The electors of each town may, at their biennial town meeting, de-
termine by resolution whether they will elect one or two overseers of
the poor, and the number so determined upon shall be thereafter bien-
nially elected for a term of two years.

Whenever any town shall have determined upon having two
overseers of the poor, the electors thereof may determine by a
resolution at a biennial town meeting, to thereafter have but one,
and if they so determine thereafter no other overseer shall be
elected or appointed, until the term of the overseer continuing
in office at the time of adopting the resolution shall expire or
become vacant, and the overseer in office may continue to act until his
term shall expire or become vacant.“ The electors of any town

 

10. Superintendent of highways mav not appoint a deputy. He must be ap-
pointed, if at all, in the manner nreserihed in this section. Tf appointed otherwise
his acts mav not be imputed to the srnerintendent, nor is the town liable therefor.
Lynch v. Town of Rhinebeck (1913), 210 N. Y. 101, 103 N. FE. 888.

11. A resolution for the determination of the question as to whether one or
TOWN OFFICERS; ELECTION AND TERMS. 291

Town Law, § 112.

may, at any biennial or regularly called special town meeting on the ap-
plication of at least twenty-five resident taxpayers whose names appear
upon the then last preceding town assessment-roll, adopt by ballot a reso-
lution that there shall be appointed in and for such town one overseer of
the poor.” If a majority of the ballots so cast shall be in favor of ap-
pointing an overseer of the poor, no overseer of the poor shall thereafter
be elected in such town except as hereinafter provided, and the overseers
of the poor of such town elected at the town meeting at which such reso-
lution is adopted or who shall then be in office shall continue to hold
office for the terms for which they were respectively chosen; and within
thirty days before the expiration of the term of office of such elected
overseer whose term expires latest, the town board of such town shall
meet and appoint one overseer of the poor for such town, who shall hold
office for one vear from the first day of May next after his appointment;
and annually in the month of April in each year thereafter an overseer
of the poor shall be appointed by the town board of such town for the
term of one vear from the first day of May next following such month.
of April. Each overseer of the poor so appointed shall execute and file
with the town clerk an official undertaking in such form and for such
sum as the town board may by resolution require and approve.”

by resoiution require and approve."*

An overseer of the poor, so appointed, shall not hold any other town
office during the term for which he is so appointed, and if he shall accept
an elcction or appointment to any other town office he shall immediately
ecase to be an overseer of the poor. If a vacancy shall occur in the office of
an overseer of the poor, so appointed, such vacancy shall be filled by
the town board, by appointment, for the balance of the unexpired term.
The compensation of an overseer of the poor so appointed, shall be fixed
by the town board of such town, but shall not exceed, in any one year, the

 

two overseers of the poor shall be elected in the town may be submitted to the
electors upon motion without a ballot under sec. 60 of the Town Law, ante.

12. The question of the appointment of an overseer of the poor must be
be submitted on a written application of at least twenty-five resident taxpayers
and must be voted upon by ballot. The provisions of section 48 of the Town
Law, ante, relating to the submission of propositions to be voted upon by ballot
at a town meeting are applicable to the submission of such question.

18. Undertaking of overseer. The above section requires an undertaking
of an overseer of the poor appointed as provided therein, which must be in such
form ard for such sum as the town board may by resolution require and
approve. A provision for the approval of the undertaking of an overseer so
appointed by the town board would, therefore, seem to supersede the provisions
of section 113 of the Town Law (see post, p. 307), to the effect that an under-
taking of an elected or appointed overseer must be approved by the supervisor.
The undertaking of an overseer elected under the above section of the Town
Law would be subject in every respect to the provisions of such section 113. The
992 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, § 117.

sum of one thousand dollars and shall be a town charge.* At any sub-
sequent town meeting after the expiration of three years from the adop-
tion of a resolution by any town to appoint an overseer of the poor, the
electors of the town may determine by ballot to thereafter elect one or
more overseers of the poor, and if they determine so to elect, then at the
next biennial town meeting thereafter one or more overseers of the poor
shall be elected in pursuance of the laws regulating the election of over-
seers of the poor, and the term or terms of the overseer or overseers first
so elected shall commence upon the expiration of the term of office of
the overseer of the poor last theretofore appointed in pursuance of law,
and shall expire as though each such term commenced at the time of
election ; and their successors shall thereafter be elected in pursuance of
law.

In each town having a population of twenty thousand or over, the
town board may fix the compensation of overseers of the poor at not to
exceed twelve hundred dollars per year, and which shall be a town
charge.

The compensation so fixed shall be taken and accepted by such over-
seer of the poor in lieu of any per diem or fees from the town from the
time such salary shall go into effect. [Town Law, § 112, as amended
by L. 1912, ch. 203; B. C. &G. Cons. L., p. 6174.]

§ 12. SPECIAL CONSTABLES; APPOINTMENT AND POWERS.

The supervisor and two justices of the peace of any town may, when
in their judgment necessary for the preservation of the public peace
during any period of ninety days or less, appoint five or less special con-
stables of such town for such period. Duplicate certificates of the ap-
pointment, signed by such supervisor and such justices of the peace as
such, shall be delivered to each of such special constables, specifying
the days for which he is so appointed, and one of such duplicates shall
be by such special constables filed with the town clerk of said town. The
supervisor of such town shall cause to be provided and furnished to each
of such special constables a badge on which shall be plainly printed the
words “ special constable,” which shall be worn conspicuously by each of
such special constables while serving as such, and be delivered by him
on the completion of his service to the supervisor of such town, who
shall preserve the same for future use and deliver the same to his suc-
cessor in office who shall preserve the same when not in use. The town
board in any town where the assessed valuation of property exceeds eight
million dollars may by resolution appoint such number of special con-
stables of such town as there shall be election districts therein to pre
serve the public peace at the polls in such election districts throughout
the holding of any general election, one such constable to serve at each
said polling place, whose compensation shall be five dollars for such ser-

 

provisions of section 113 of the Town Law, post, apply to the undertaking of an
overseer of the poor, whether elected or appointed.

14, Compensation of overseer. The compensation of an overseer appointed
under the above section may be fixed by the town board. The compensation of
elected overseers is fixed by section 85, as amended by L. 1909, clr. 491, L. 1915,
chs. 73, 452, L. 1916, chs. 93, 554, and L. 1918, chs. 117, 123, 359, 360, 387, of the
Town Law at $2.00 per day. :
TOWN OFFICERS; ELECTION AND TOWNS. 293

Town Law, §§ 118, 118a; Election Law, § 40.

vice. The town clerk shall issue a certificate of appointment to each of
such special constables specify the time for which he is so appointed and
there shall be provided to each of such special constables, a badge on
which shall be plainly printed the words “special constable,” which shall
be worn conspicuously by each of such special constables-while serving as
such and delivered by him on the completion of his service to the town
clerk who shall preserve the same for future use. Such compensation and
the cost of such badges are hereby declared to be town charges. [Town
Law, § 117, as amended by L. 1913, ch. 148, and L. 1915, ch. 23; B.C,
& G. Cons. L., 2d Ed., p. 8803.]

Each of the special constables, appointed pursuant to section one hun-
dred and seventeen of this chapter, while in office as such, shall be a
peace officer, and have all the powers and be subject to all the duties and
liabilities of a constable of such town in all criminal actions and proceed-
ings and special proceedings of a criminal nature, and shall be entitled to
receive compensation from the town at the rate of wages previously estab-
lished by the town board for such services. [Town Law, § 118, as amended
by L. 1913, ch. 148; B. C. & G. Cons. L., 2d Ed., p 8804.]

Special constables may be appointed by the town board of any town
in a county having a population of more than three hundred thousand
according to the last federal or state census or enumerations, adjoining a
city of the first class having a population of one million and upwards,
whenever in the judgment of such town board it is necessary to regulate
traffic or perform such other services as may be specified by such board.
Such special constable shall serve on such day or days as such town board
may designate and shall have the same rights, powers, duties and liabilities
as are provided in the two preceding sections of this chapter, except that
the compensation for such special constables shall be at the rate of not to
exceed four dollars per day. [Town Law, § 118-a, added by L. 1919, ch.
448.]

§ 13. Election officers; kind, number and qualifications.

1. Elsewhere than in the city of New York, there shall be in every
election district of the state four inspectors of election, and, except in an

 

15, Who may serve as election officer. An elector, resident of a city, who is
otherwise qualified, may serve as an inspector, poll clerk or ballot clerk in a district
of the city other than that in which he resides. Rept. of Atty. Genl. (1896), 229.

Ballot clerks and poll clerks are election officers, Rept. of Atty. Genl. (1896), 230.

Candidates for office cannot serve as election officers. Rent. of Atty. Genl. (1908),
463: Rent. of Atty. Genl. (1905), 533; Rept. of Atty. Genl. (1901), 296.
294 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Election Law, § 40.

election district in which one voting machine is used, two clerks. Their
terms of office, except as hereinafter prescribed shall be one year from the
date of their appointment. The term of office of inspectors of election in
towns shall be two years. Such officers shall serve at every general, special
or other election,.including a primary election, held within their districts
during such term, except that clerks, if any, shall not serve at primary
elections.

2. In the city of New York there shall be in every election district four
inspectors of election, Their terms of office shall be for one year from the
first day of September. The inspectors of election shall serve at every
election, including a primary election, during the year. In such city there
shall also be two clerks in every election district in which a voting machine
is not used, who shall serve only at general elections, and only from the
close of the polls to the completion of the canvass.

3. No person shall be appointed an inspector of election or clerk who
is not a qualified voter of the county, if within the city of New York, or
of the city, if in any other city, or of the town, in which he is to serve, of
good character, able to speak and read the English language understand-
ingly, and to write it legibly, and who does not possess a general knowledge
of the duties of the office to which he is elected or appointed, or who is a
candidate for any office to be voted for by the voters of the district in which
he is to serve, or who has been convicted of a felony and not restored to

 

This section does not apply to a person who is employed by a public officer in a
private capacity, clerk in store, coachman, gardener, ete. Rept of Atty. Genl.
(1896), 221.

Inspector, employe of public officer ineligible. Rept. of Atty, Genl. (1899), 323.

An inspector of election in a town or village may accept the office of village clerk.
Rept. of Atty. Genl. (1898), 261.

A deputy sheriff is a public officer within the meaning of this section. Rept. of
Atty. Genl. (1897), 246.

A person appointed to the office of inspector of election, who is later chosen to
and serves in the office of village treasurer, may perform the duties of inspector
of election while holding the other office. Rept. of Atty, Genl., May 6, 1911.

A postmaster is a public officer. Rept. of Atty. Genl. (1897), 247.

This provision extends to persons holding office under the laws of the United
States, as a postmaster. It is not retroactive, Rept. of Atty. Genl. (1896), 226.
TOWN OFFICERS; ELECTION AND TERMS. 295

Election Law, § 48.

citizenship, or who holds any public office except that of notary public or
commissioner of deeds, town or village assessor, justice of the peace,
police justice of a village, village trustee, water commissioner, officer of a
school district, employee of a state hospital, or overseer of highways,
whether elected or appointed, or who is employed in any public office or by
any public officer whose services are paid for out of the public money other
than is excepted herein; provided, however, that a public school teacher,
otherwise qualified, shall be eligible to such an appointment, unless the
authorities of the school shall file a written objection to such appointment
with the appointing board or officer.

4, Each class of such officers shall be equally divided between the two
political parties which at the general election next preceding that for which
such officers are to serve, cast the highest and the next highest number of
votes.16 [Election Law, § 40 (L. 1922, ch, 588), in effect April 12, 1922.]

§ 14. Appointments of inspectors of elections in towns; clerks.

Inspectors of election in towns shall be appointed by the town board in
each year in which a town meeting is held for the election of town officers,
and within thirty days thereafter. They shall also be appointed for a new
-or altered election district before September first, in any year when
necessary, such appointment to take effect when the creation or alteration
of such district takes effect. Appointments under this section shall be
made from lists to be prepared, certified and filed in the manner hereinafter
provided, by the two political parties entitled to representation on a board
of election officers. The town caucus held by each such political party for
the purpose of nominating town officers shall prepare a list containing the
names of at least two persons, qualified to serve as inspectors of election,
for each election district in such town, which lists shall be certified by the
presiding officer and a secretary of such caucus, and filed with the town
clerk on or before the last day for filing a party certificate of nomination

 

16. This provision as to “the highest and the next highest number of votes”
Ae to the votes in the state. Matter of Knollin, 59 Misc. 378, 112 N. Y. Supp.
296 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Election Law, § 48.

made by such caucus. If the nominations by any such party for town
officers be made at the fall primary, the list for such party shall be made
by the members of the county committee residing in the town and shall
be certified by the presiding officer of the meeting of such members at which
the list was prepared, and such certificate shall be filed with the town clerk
on or before the day of the fall primary. From each of the two lists so
filed, the town board shall appoint two persons who possess the qualifica-
tions prescribed by law for election officers. If in any town more than one
such list be submitted on behalf or in the name of the same political party,
only that list can be accepted which is certified by the proper officer or
officers of the faction of such party which was recognized as regular by the
last preceding state convention of such party; or if no such convention was
held during the year, by the proper officer or officers of the faction of such
party, which at the time of the filing of such list is recognized as regular by
the state committee of such party.

Such appointment shall be made in writing and filed with the town clerk,
who shall forthwith notify each person so appointed of his appointment
to such office, in the manner in which he is now by law required to give
notice to a person of his election to a town office when his name does not
appear upon the poll list at the town meeting at which he was elected to
such office. From the additional names, if any, contained on the lists so
filed of persons qualified to serve as such, the town board shall appoint:
inspectors of election in case of the resignation, declination or other
incapacity of persons appointed to such office. If such lists contain no
additional names of such persons, the town board shall fill vacancies caused
by such resignation, declination or other incapacity by appointing persons
known, or proved to the satisfaction of a majority of the members of such
board to be members of the same political party in which such vacancy
occurred. All appointments to fill vacancies shall be made in writing and
filed with the town clerk, and notices thereof given by him as hereinbefore
provided in the case of an original appointment.

 

Acts of election officers not reviewable by certiorari. Inspectors of elections
are simply ministerial officers, their acts and conduct cannot be reviewed by
certiorari. People ex rel. Brooks v. Bush, 22 App. Div. 363; 48 N. Y. Supp. 13,
and cases there cited. See also People ex rel. Stapleton v. Bell, 119 N. Y. 175.

An irregularity in the appointment of inspectors will not invalidate the election
at which they officiate. Rept. of Atty. Genl. (1895), 253.
TOWN OFFICERS; ELECTION AND TERMS. 296a

Election Law, §§ 159, 160.

Clerks in towns, for election districts in which the appointment of clerks
is authorized by section forty, shall be appointed in the manner provided
in section one hundred and sixty. |Election Law, § 48 (L. 1922, ch.
588), in effect April 12, 1922.]

Supplying vacancies or absences of inspectors. 1. If at the time of any
meeting of the inspectors for registration there shall be a vacancy, or if any
inspectors shall be absent, the inspector present who is a member of the
same party as the absent inspector shall appoint a qualified voter of the
district who is a member of the same party to act in place of the absent
inspector for the whole of that day.

2. If at any such meeting two inspectors who are members of the same
party shall be absent, the inspector or inspectors present shall appoint
qualified voters of the district, who are members of the same party as the
absent inspectors, to act until such absent inspectors, or their successors
duly appointed by the original appointing authority, shall appear.

3. If at any such meeting there shall be vacancies in all the offices of
inspectors, or if no inspectors shall appear within one hour after the time
fixed by law for the opening of such meeting, the qualified voters of the
district present, not less than ten, may name four qualified voters of the

district, equally divided between the two parties entitled to representation,
to act until such absent inspectors or their successors duly appointed by the

original appointing authority, shall appear.

4, Every person so appointed or named shall take the oath of office. A
person appointed or named for temporary service shall receive no pay unless
he shall serve for the whole or the remainder of the day. [Election Law,
§ 159 (L. 1922, ch. 588), in effect April 12, 1922.]

General provisions as to conduct of meetings. No part of a day fixed for
the registration of voters shall be deemed a holiday so as to affect any meet-
ing or proceeding of the board of inspectors for registration. All meetings
of the board of inspectors for registration shall be public. An American
flag, approximately three feet by five feet in size, shall be displayed in each
place of registration during the hours of registration, The place of
registration and the enrollment booths shall be kept clearly lighted. Before
entering on their duties the inspectors of each district shall appoint one of
their number chairman, to serve as such during his term of office, or if a
majority shall not agree upon such an appointment, they shall draw lots
£96b TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Election Law, § 160; Town Law, §§ 410, 411.

for that position. The inspectors shall act as a board and a majority
thereof shall decide questions. In each election district in a town, where
paper ballots or two voting machines are to be used, the two inspectors of
each party, at the first meeting for registration following the appointment
of inspectors for such a district, shall appoint a clerk who shall be a voter
and a member of such party, to represent such party, to serve on election
day during the term of the inspectors appointing him. There shall be no
smoking in any place of registration in any church or school. The map or
maps furnished showing the election district shall in cities be posted in the
place of registration and shall remain posted until the close of the general
election. No political banner, poster or placard shall be allowed in or upon
the place of registration during any day of registration. Where an oath is
required or permitted by this article at any meeting for registration any in-
spector may administer it. The inspectors, and each of them, shall pre-
serve good order within and around the place of registration and keep acceas
thereto unobstructed. The board or any member thereof by order in writ-
ing may direct the arrest of any person refusing to obey the lawful com-
mands of the inspectors, or guilty of disorderly conduct disturbing their
proceedings, or violating, or attempting to violate, any of the provisions
of this chapter or of the article of the penal law specifying crimes con-
cerning the elective franchise. Any peace officer or any person designated
by the board shall execute the order. [Election Law, § 160 (L. 1922, ch.
588), in effect April 12, 1922.

§ 15. ERECTION OR DISCONTINUANCE OF POUNDS; ELECTION OF POUND-
MASTERS.

Whenever the electors of any town shall determine at a biennial town
meeting, to erect one or more pounds 7 therein, and whenever a pound shall
now be erected in any town, the same shall be kept under the care and
direction of a pound-master, to be elected or appointed for that purpose.
The electors of any town may, at a biennial town meeting, discontinue
any pounds therein. [Town Law, § 410; B. C. & G. Cons. L., 2d Ed,
p. 8915.]

Pound-masters may be elected either (1) by ballot; (2) by ayes and
noes, or (3) by the rising or dividing of the electors, as the electors may
determine. [Town Law, § 411; B. C. & G. Cons. L., 2d Ed., p. 8915.]

 

17. Definition of “pound.” Chenango County Humane Soc, v. Polmatier (1919),
188 App. Div. 419, 177 N. Y. Supp. 101.
ELIGIBILITY, ETC., OF TOWN OFFICERS. 297

Explanatory note.

CHAPTER XXI,.

TOWN OFFICERS; ELIGIBILITY, OATHS OF OFFICE, UNDERTAKINGS,
VACANCIES, RESIGNATIONS.

EXPLANATORY NOTE.

Persons Eligible to Town Office.
Every elector of the town is eligible to any town office. Inspectors
of election must be able to read and write.

A county treasurer, superintendent of the poor, school commissioner
trustee of a school district, or a United States loan commissioner is not
eligible to the office of supervisor. The courts have held that a school
trustee who seeks election as supervisor must resign prior to election.
It will not do for him to wait until after election upon the assumption
that he may not be elected as supervisor.

There are certain general provisions as to the qualification to hold
public office which apply to town offices as well as all other public
offices. For instance the person elected to a town office must be of
full age, a citizen of the United States, a resident of the state and town
for which he is chosen.

Oaths of Office. :

Every person elected or appointed to town office must take and
subscribe the constitutional oath of office, within ten days after receiving
notice of his election. Such oath must be filed in the town clerk’s
office within eight days after the taking thereof. A failure to so
take and file the oath of office will be deemed a refusal to serve and
the office may be filled by appointment by the town board. It has been
held by the courts that if a town officer takes and files his oath before
his term begins there is no vacancy which the town board can appoint.

The form of the oath is prescribed by Constitution Art. XIII, § 1.
No other test or oath may be required.
8 TOWNS, TOWN MEETINCS £4.55 TOWN OFFICERS.
Explanatory note.

Official Undertakings.

Supervisors, justices of the peace, town superintendents of highways,
overseers of the poor, collectors and constables are required within a
prescribed time after entering upon the duties of their offices to make
and deliver to the town clerk, official undertakings in such amounts,
with such sureties and upon such conditions as are prescribed by statute.
All of these officers are under certain circumstances the custodians of,
or are responsible for, monevs belonging to the town or its inhabitants;
the town is therefore protected by means of undertakings.

A supervisor is required to give three separate undertakings: one
a general undertaking securing generaliv the faithful discharge of his
official duties, and the payment of moneys in his hands belonging to the
town (Town Law, § 100); one Yor the ‘ faithful disbursement, safe
keeping and accounting ” of highwav moneys (Highway Law, § 104);
and one for the disbursement and accounting of school moneys
(Education Law, § 363). The form and effect of the undertakings
of other town officers are prescribed by the several sections of the
town law applicable thereto.

Resignations ; Removal.

Ktesignations of town ofticers should be made to the justices of the
peace of the town. Such resignations take effect when accepted by
three of the justices, when so accepted notices are to be filed with the
town clerk. The resignations should be in writing addressed to the
justices or the town clerk. There.is an apparent discrepancy between
§ St of the Town Law and § 31 of the Public officers Law as to how a
town *officer should resign. The latter section indicates that a
resignation takes effect upon ‘ts delivery to the town clerk, while the
Town Law seems to require acceptance hy the justices before a resigna-
tion takes effect. The safer procedure would be to deliver the resigna-
tion to the town clerk, and then request an acceptance by the justices.

\ town officer may be removed by proceedings brought in the
Supreme Court, as provided in § 36 of the Public Officers Law. Justices
of the Peace are removable by the Appellate Division of the Supreme
Court as provided in § 132 of the Code of Criminal Procedure.
Town superintendents of highways are removable by the town board
as provided in § 46 of the Highway Law, as amended by Li, 12%, ch, 201.
ELIGIBILITY, ETC., OF TOWN OFFICERS. 299

Town Law, § 81.

Vacancies.

Vacancies are created by death, resignation, removal from office,
removal from the town, conviction of a crime involving a violation of
an oath of office, or refusal or neglect to file an official oath or under-
takigg. Such vacancies are filed by appointment of the town board.

 

Section 1. Eligibility of town offices; supervisors.

2. Qualifications for holding office; general provisions.

3. Oaths of office of town officers; how administered; filed in town
clerk’s office; effect of failure to execute and file oath and
undertaking.

Town officers to administer oaths.
Supervisor’s undertaking.
Bonds to indemnify supervisor against loss of deposits.
Justice's undertaking; oath of office to be taken before county
clerk; certificate that he has filed undertaking.
8. Official acts legalized when justice of the peace fails to take official

“oath or give undertaking.

8a. Town clerk’s undertaking.

9. Undertaking of town superintendent of highways.

10. Undertaking of overseer of the poor.

11. Collector’s undertaking.

12. Filing of collector’s undertaking; lien on property of collector
and sureties.

13. Constable’s undertaking.

, 14. Form of undertaking and liability thereon.

15. Conditions, generally, of official undertakings; form and manner
of executing; justification.

16. Officer not to perform duties until undertaking is given; property
or money not to be delivered; liability of sureties if officer
enters on duties before giving undertaking; duration of un-
dertaking.

17. Validation of official acts before filing oath or undertaking.

18. Resignation of town officers; notice.

19. Removal of town officers; application to appellate division; notice.

20. Vacancies, how created.

21. Vacancies, appointment to fill, how made and when filled.

22. County clerk to report omissions of town officers to district at-
torney. ;

nm ts

§ 1. ELIGIBILITY OF TOWN OFFICERS; SUPERVISORS.

Every elector of the town shall be eligible to any town office, except that
. inspectors of election shall also be able to read and write.

 

1. Constitutional provision. Article 13, sec. 1, of the constitution prescribes
the constitutional oath of office and declares that “no other oath, declaration or
test shall be required as a qualification for any office of public trust.”

‘
300 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law § 81.

But no county treasurer, superintendent of the poor, school commis-
sioner, trustee of a school district, or United States loan commissioner,
shall be eligible to the office of supervisor of any town or ward in this
state? [Town Law, § 81; B. C. & G. Cons. L., 2d Ed., p. 8775.]

Inspectors of election. Qualifications of inspectors of election are prescribed by
the Election Law, § 40, (Jewett’s Election Manual, 1921), which provides as
follows: “No person shall be appointed an inspector of election, or
clerk who is not a qualified voter of the county if within the city of
New York, or of the city if in any other city, or of the town in which
he is to serve, of good character, able to speak and read the English
language understandingly, and to write it legibly, and who does not possess a
general knowledge of the duties of the office to which he is elected or appointed, or
who is a candidate for any office to be voted for by the voters of the district in
which he is to serve, or who has been convicted of a felony and not restored to
citizenship, or who holds any public office except that of notary public or com-
missioner of deeds, town or village assessor, justice of the peace, police justice of
a village, village trustee, water commissioner, officer of a school district, employee
of a state hospital, or overseer of highways, whether elected or appointed, or who
is employed in any public office or by any public officer whose services are paid
for out of public money other than is excepted herein; provided, however, that a
public school teacher, otherwise qualified, shall be eligible to such an appointment,
unless the authorities of the school shall file a written objection to such appointment
with the appointing board or officer.”

Assessor need not be a taxpayer. Rept. of Atty. Genl. (1894) 150.

Justice of the peace. Offices of a justice of the peace and of a deputy sheriff
are incompatible. Rept. of Atty. Genl. (1895) 106.

. ‘Town auditor need not be a taxpayer. Rept. of Atty. Genl. (1894) 261.

Town clerk. A deputy postmaster is eligible to hold the office of town clerk.
Rept. of Atty. Genl. (1892) 110.

Town superintendent of highways. A resident of an incorporated village
within the boundary of a town is eligible to the office of town superintendent of
highways. Rept. of Atty. Genl., March 14, 1911.

2. Eligibility of supervisor. The disqualification imposed by the above sec-
tion that “no trustee of a school district shall be eligible to the office of supervisor
of any town or ward in this state,” applies to the capacity of a candidate for elec-
tion, as well as for holding the office. The intention of the statute is that the
electors, in making the choice of a person for the office of supervisor, must be con-
fined to the selection of such person only as it is not then under any legal disquali-
fication to exercise its powers and perform its duties. As a trustee of a school dis-
trict is incapable of being elected supervisor of a town as well as of holding the
office of supervisor, no right to that office is acquired by resigning the office of trus:
tee after having received a majority of the votes cast for the office of supervisor
at a town meeting, and before qualifying as supervisor. People v. Purdy, 154 N. Y.
439; 48 N. E. 821. It follows from this decision that a school trustee who has
been nominated for the office of supervisor should resign such office before the town
meeting. The court in discussing this question says: “The statute, we think, does
not contemplate that a person who is disqualified to hold the office may, neverthe
less, be lawfully elected.upon the chance that subsequently he may, by his own act,
or by the happening of some event, remove the disqualification, and thus become
entitled to fill it. The general rule is that the electors, in making the choice, must
be confined to the selection of such persons only as are not then under any legal
disqualification to exercise its powers and perform its duties. The electors can
then know that when the choice is made and legally declared the object for which
the election was held has been accomplished, and that there is no legal obstruction
in the way to prevent their will, as thus expressed, from becoming effective.”

In respect to the eligibility of a school trustee to hold the office of supervisor
reference must be made to section 222 of the Education Law, as amended by
L. 1910, ch. 140, which provides that no supervisor is “eligible to the office of
trustee or member of a board of education.” It has been held that since this pro
vision as amended is a later enactment than the Town Law, it supersedes such law,
and that therefore the law-is complied with if the supervisor resigns his office a8
trustee prior to taking his office as supervisor. People ex rel. Martin v. Kenyon,
152 App. Div. 898.
ELIGIBILITY, ETC., OF TOWN OFFICERS.. 301

Public Officers Law, §3; Town Law, § 83.

§2. QUALIFICATION FOR HOLDING OFFICE; GENERAL PROVISIONS,

No person shall be capable of holding a civil office who shall not, at the
time he shall be chosen thereto, be of full age, a citizen of the United States,
a resident of the state, and if it be a local office, a resident of the political
subdivision or municipal corporation of the state for which he shall be
chosen, or within which the electors electing him reside, or within which
his official functions are required to be exercised, or who shall have been or
shall be convicted of a violation of the selective draft act of the United
States, enacted May eighteenth, nineteen hundred and seventeen, or the acts
amendatory and supplemental thereto. [Public Officers Law, § 3, as
amended by L. 1922, ch. 180.]

§3. OATHS OF OFFICE OF TOWN OFFICERS; HOW ADMINISTERED; FILED
IN TOWN CLERK’S OFFICE; EFFECT OF FAILURE TO EXECUTE

AND FILE OATH AND UNDERTAKING.

Every person elected or appointed to any town office, except justice of
the peace, shall before he enters on the duties of his office, and within ten
days after he shall be notified of his election or appointment, take and

 

The provision that no trustee of a school district shall be eligible to the office of
supervisor of any town or ward in this state applies to the qualifications of the
candidate to be voted for, as well as to his qualifications to fill the office. Rept.
of Atty. Genl. (1911), vol. 2, p. 6738. But see People ex rel. Martin v. Kenyon. 152
App. a 898; Purdy v. Purdy, 154 N. Y. 430, and Atty. Genl. Opinion, 1916, 7 Dept.

epts. 80.
gene eupereaon must reside in the town he represents. Bacon v. Hanna, 43 N. Y.
St._ Rep. i

Supervisor who has been elected county treasurer is made eligible to the latter
office by resigning his supervisorship, prior to entering upon the discharge of his
duties as treasurer. Rept. of Atty. Genl. (1898) 356; Rept. of Atty. Genl. (1894) 239.

Section 106, of the Town Law, recognizes the right of a justice of the peace to hold
the office of supervisor (dissenting opinion). People ex rel. Earwicker vy. Dillin,
38 App. Div. 539, 543, 56 N. Y. Supp. 416.

Coroner cannot hold the office of supervisor. Rept. of Atty. Genl. (1903) 460.

8. Citizen of state, public officer must be. Lambert v. People, 76 N. Y. 220, 230.
Attornevs must be citizens. Matter of O’Neil, 90 N. Y. 584, affg. 27 Hun 599. :

Residents. Residence is equivalent to domicile for the purpose of determining
whether a public officer is a resident of the political subdivision which he serves.
-People v. Platt, 117 N. Y. 159.

Supervisor must reside in town in which he is elected. Bacon v. Hanna, 17 N. Y.
Supp. 431, 43 N. Y. St. Rep. 906.

Notary public by moving his residence to another state forfeits his office. Rept.
of Atty. Genl, Feb. 20, 1911, And where he changes his residente to another county
from the one in which he resided at the time of his appointment, he becomes dis-
qualified. Opinion of Atty. Genl. (1918), 18 State Dept. Rep. 454.

A county sealer of weights and measures should be a resident of that part of the
county not included within a city. Opinion of Atty. Gen. (1919), 20 St. Dept. Rep. 220.

Appointees of Legislative Body. When a resolution of the Legista‘ture provides for
the appointment of members of the legis!ative body, appointees ceasing to be sv-h
members also cease to be appointees. Opinion of Atty. Genl. (1919), 19 St. Dept. Rep. 343.

Forfeiture of office. AJl candidates for town offices elected at a town meeting ave
raqvinnd ta filo a statement of their elect‘on expenses with the town clerk withn
ten days after the town meeting. If the person has been elected to a town office and
fails to file such statement, he is guilty of a misdemeanor, and forfeits his office.
Penal Law, § 776, as amended by L. 1910, ch. 489. (Jewett’s Election Manual, 1921.)

A person who asks or receives any gratuity or reward for appointing or pro-
curing the appointment of another person to a_ piublic office, or to a sub-
ordinate position in such an office is guilty of a misdemeanor, and if _such person
is a public officer, upon conviction he also forfeits his office. Penal Law, § 1832.
A public officer, who, for any gratuity or reward grants to another the right to
discharge any function of his office, or permits another to make appointments
302 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, § 83.

subscribe before some officer authorized by law to administer oaths in his
county, the constitutional oath of office, and such other oath as may be
required by law, which shall be administered and certified by the officer
taking the same without reward, and shall within eight days be filed in
the office of the town clerk, which shall be deemed an acceptance of the
office: and a neglect or omission to take and file such oath, or a neglect to
execute and file, within the time required by law, any official bond or under-
taking, shall be deemed a refusal to serve. and the office may be filled as in
case of vacancy. [Town Law. § 83; B. C. & G. Cons. L., p. 6160.]

 

or perform any of its duties, is guilty of a misdemeanor, and upon conviction
forfeits his office. Penal Law, § 1833. The acceptance of bribes by the executive
officer is punishable by imprisonment in the state prison not exceeding ten
years, or by a fine not exceeding $5,000, or by both; and in addition thereto,
the officer if convicted forfeits his office and is forever disqualified from holding
any public office in this state. Penal Law, §§ 1828, 382. If a public officer is con-
victed of a felony his office is forfeited. Penal Law, §§ 510, 511.

Acting as public officer without having qualified. A person who executes
any of the functions of a public office without having taken and duly filed the
required oath of office, or without having executed and duly filed the required
security, is guilty of a misdemeanor. Penal Law, § 1820. But this section
of the Penal Law is not construed to affect the validity of acts done by a person
exercising the functions of a public office in effect where other persons than
himself are interested in maintainging the validity of such acts.

4. Constitutional oath. The form of an official oath as prescribed by the
constitution, art. 13, sec. 1, is as follows: “TI do solemnly swear (or affirm)
that I will support the constitution of the United States, and the constitution
of the state of New York, and that I will faithfully discharge the duties of the
office of —---—_, according to the best of my ability.” And the constitu-
tion also provides in this section that all such officers who shall have been
chosen at any election shall, before they enter on the duties of their respective
offices, take and subscribe the oath or affirmation above prescribed, together
with the following addition thereto: ‘And I do further solemnly swear (or
affirm) that I have not directly or indirectly paid, offered or promised to pay,
contributed, or offered or promised to contribute any money or other valuable
thing as a consideration or reward for the giving or withholding a vote at
the election at which I was elected to said office, and have not made any
promise to influence the giving or withholding any such vote.”

Filing oath of office. The provisions of the above section as to the time
within which a town clerk must take and file his constitutional oath of office
are directory merely. If he takes and files such oath before his term begins,
and before his office is declared forfeited by judicial action no vacancy exists,
and the town board cannot appoint. Matter of Drury, 39 Misc. 288, 79 N. Y.
Supp. 498.

Oath of justice of the peace. A justice of the peace is required to take his
oath o* o'fce hefore the county clerk after filing a certificate of the town c'erk
that he has file? > required undertaking. See Town Law, sec. 106. povt

“General previsien os to oath of office, Public Officers Law, § 10 as 2mended
ELIGIBILITY, ETC., OF TOWN OFFICERS. 803
Town Law, § 88.

§ 4. TOWN OFFICERS TO ADMINISTER OATHS.
Any town officer may administer any necessary oath in any matter or

 

by L. 1513, ch. 59, is in effect the same as the above section of the Town Law.
Unler section 13 of the Public Officers Law it is made the duty of the officer
with whom an oath of office is to be filed, in the case of cown officers the town
clerk, to give notice to the town board of the failure of a town officer to take
and file an official oath within the time required by law. The failure to file
the official oath creates a vacancy which the town board may fill. (See Town

Law, sec. 120, post; Public Officers Law, sec. 30, sub. 7, post.)

Effect of failure to file an oath. The failure of a town officer to take
and fie his oath as required in the above section does not affect his powers and
rigits as such officer. See Horton v. Parson, 37 Hun 42, 45, where the court
says: “It may not appear entirely clear that a person elected to the office of
overseer of the poor, who has failed to take the oath of office, and for that reason
is charged with refusal to serve, which permits an election to fill the vacancy
thereby occasioned, is an officer de jure in the strict sense of that term, since
by the terms of the statute his right to perform the duties of the office seems
dependent on his taking the oath. But it has been held in effect that the statute
is not self-executing, and does not work a forfeiture for the cause it affords, but
that it must come from some act, judicial or otherwise, which effectual’y ousts
him and severs his relation to the office and that until then he is practically an
officer de jure, having defeasible title to the office.” This proposition seems to have
been sustained in the case of Foot v. Stiles, 57 N. Y. 399, where it wis held that
a failure to file an official bond did not ipso faoto affect the office, and the rule was
laid down that in such a case the officer holds by defeasible title and until the for-
feiture is judicially declared, he is rightfully in office, at least so far as the rights
of third persons are concerned, and the question cannot be raised collatera‘ly. See,
also, People v. Crissey, 91 N. Y. 635; In re Kendall, 85 N. Y. 305; People ex rel.
Conlin v. Martin, 23 N. Y. Supp. 730; Adams v. Tator. 42 Hun, 384.

It was expressly held in the case of People ex rel. Brooks v. Watts, 73 Hun
404; 26 N. Y. Supp. 280, that the rule, as it existed under the revised statutes,
with reference to vacancies in office by reason of the neglect or omission of a
person elected to a town office to take and file an oath of office was not changed
by the provisions of the above section of the Town Law. It therefore follows that
the cases above cited are still controlling, and the rule now is that the defect
or omission, if any, in regard either to an official bond or an official oath makes
the officer’s title defeasible and affords a cause for forfeiture, but does not create
a vacancy. A vacancy in such case can only be effected by a direct proceeding for
that purpose.

Failure to file oath deemed a refusal to serve and authorizes the filling of the
vacancy. People ex rel. Williamson v. McKinney, 52 N. Y. 874. See, also, Rept.
of Atty. Gen!. (1896) 120. .

It has been held that the failure of the oath .of office, filed by one duly elected
to a town office, to state that he did not buy any votes as required by section 1
of article 13 of the Constitution, precludes him from entering upon the duties of
his office, and he is not therefore entitted to maintain an action to oust one duly
appointed to fill the vacancy. People ex rel. Ketor 1. Preston, 169 App. Div. 368,
154 N. ¥. Supp. 1007.

Acceptance of office. Under the above section of the Town Law the filing
of an official oath, as required therein, is to be deemed an acceptance of the
office, and an omission to take and file such oath within the time required by
law is a refusal to serve. and the office may be filled as in case of vaeaney. In
construing such provisions with the provisions of section 100 of the Town Law,
304 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 100.

proceeding lawfully before him, or to any paper to be filed with him as
such officer. [Town Law, § 88; B. C. & G. Cons. L., p. 6163.]

§ 5. SUPERVISOR'S UNDERTAKING.

Every supervisor hereafter elected or appointed shall, within thirty
days after entering upon his office, make and deliver to the town clerk of
the town his undertaking, with such sureties as the town board shall
prescribe, to the effect that he will well and faithfully discharge his official
duties as such supervisor, and that he will well and truly keep, pay over
and account for all moneys and property, including the local school fund,
if any, belonging to his town and coming into his hands as such supervisor ;
and such undertaking shall, after its execution, be presented to the town
board for their approval as to its form, and the sufficiency of the sureties
therein, and until the same shall be so approved, none of the moneys, books,
documents, papers or property of the town shall be turned over or delivered
to such supervisor elect.6 [Town Law, § 100; B. C. & G. Cons. L., p.
6169.]°

 

providing that every supervisor shall within thirty days after entering upon
his office, deliver his undertaking to the town clerk, which shall be presented
to the town board for approva:, and until approved none of the moneys, etc.,
of the town shall be delivered over to the supervisor elect, the Court of
Appeals, in the case of Matter of Bradley, 141 N. Y. 527; 36 N. E. 598, said:
“It is very clear that the law contemplates two steps by the candidate elected
to office, the first to be taken on his filing of his oath of office. When that
has been done, the office is deemed to have been accepted and that is equivalent
to saying that the officer elect has entered upon its duties. It is after so enter-
ing upon his office, and within a specified time thereafter, that he is required to
execute and submit his undertaking. That he is regarded as in office when he
has filed his oath, is perfectly clear from the provision that neglect to file the
oath within the prescribed time causes a vacancy. When he has evidenced in
the required manner his acceptance of the office to which elected, his predecessor
is out and has no further standing as a member of the town board.”

5. A constitutional oath of office may be taken “ before some officer author-
ized by law to administer oaths;” it is probable that a constitutional oath of
office may be taken before a town clerk.

6. Official bond of supervisor. A supervisor upon receiving the school commis-
sioner’s certificate of appointment and before receiving the school moneys so appor-
tioned to his town, must give a bond to the county treasurer conditioned for the
‘faithful disbursement, safe keeping and accounting of such moneys. Education
Law, § 373.

A supervisor, before receiving or disbursing any funds on account of the bonded
railroad debt of a town, is required to give a bond, with sureties, who may justify
in a sum double the amount received. to be approved by the town clerk.

Sureties on the general bond of a supervisor will not be held liable for defaults
covered by a special bond which was not given. Town of Whitestown v. Title
Guaranty & Surety Co., 72 Misc. 498.
ELIGIBILITY, ETC., OF TOWN OFFICERS. 305
Town Law, §§ 101, 106.

§ 6. BONDS TO INDEMNIFY SUPERVISOR AGAINST LOSS OF DE-
POSITS.

The supervisor of any town may purchase a surety bond of some solvent
surety company, authorized to do business in the state of New York, secur-
ing to such supervisor the safety of town funds deposited by him in any
bank or banking institution in this state, and indemnifying him against
the loss thereof through the failure or insolvency of such bank or banking
institution, and the cost of such bond shall be a town charge and shall be
audited and paid in the same manner as other town charges. [Town Law,
§ 101; B. C. & G. Cons. L., p. 6170.]

§ 7. JUSTICE’S UNDERTAKIKNG; CATH CF OFFICE TO BE TAKEN
BEFORE COUNTY CLERK; CERTIFICATE THAT HE HAS
FILED UNDERTAKING. '

Every justice of the peace elected or appointed in any of the towns
or cities of this state, except the city of New York and any city whose

 

e

Form of undertaking. The form and contents of an undertaking, the force
and effect thereof, and the validation of the official acts of the officer before
filing his oath of office and making an undertaking are prescribed in the
Public Officers Law, secs. 11, 12, 15, post. See, also, Town Law, sec. 138, post,
p. 311. For form of undertaking of a supervisor, see Form No. 20, post.

Sufficiency and approval of undertaking. In the case of Sutherland v. Carr,
85 N. Y. 105, a bond was given by a supervisor to a person holding the office of
town clerk who was named therein as obligee, and was described as “town
clerk,” and the penal sum of the undertaking was made payable ‘to the said
town clerk or his successor in office.” In an action upon the undertaking it
was held that the bond was not to the individual, but to the officer; and so
was in compliance with the requirements of the statute and was valid. As to
the interpretation of an official undertaking of a supervisor, see People ex rel.
Johnson v. Martin, 62 Barb. 570; 43 How. 52.

A supervisor is deemed to have accepted his office upon the filing of his oath,
and at such time he has in legal effect entered upon the performance of the
duties of his office. The execution and filing of an undertaking is not necessarily
a condition precedent to the entering upon his duties. Upon filing his oath he
becomes.a member of the town board. The undertaking executed by him must
be presented to the town board for its approval, but he should not act with
the town board in the approval of his own bond. Such approval should be
given by the other members of the board. Matter of Bradley, 141 N. Y. 527; 36
N. BE. 598; affg. 21 N. Y. Supp. 167.

The execution of an undertaking by a supervisor and its approval by the
town board is a condition precedent to the right of the supervisor to take over
the town moneys, books, etc., into his custody.

An action on an official undertaking of the supervisor for a failure to pay over
moneys for the local school fund must be maintained by a county treasurer.
Palmer v. Roods, 116 App. Div. 66, 101 N. Y. Supp. 186.
306 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 15.

charter requires such officer to give a bond or undertaking, shall, before
he enters upon the duties of his office, execute an undertaking with two
sureties to be approved by the supervisor of the town, or the town clerk
thereof, where the justice of the peace is also supervisor of the town,’
or the common council of the city in which the justice shall reside, to the
cfect that he will pay over on demand, to the wificer, person or persons
catitled to the same. all moneys received by him bv virtue of his office, and
file the undertaking in the office of the clerk of the city or town in which he
resides.®

Every justice shall also, on or before the fifteenth dav of January next
succeeding his election, file with the county clerk a certificate of the clerk
of the city or town in which he resides, that he has filed such undertaking.
Such justice of the peace shall take and subscribe before some officer
authorized by law to administer oaths in his county. the constitutional oath
of office, upon blanks to be furnished by the county clerk. Such oath shall
be in duplicate, one of which shall be filed in the office of the county clerk
and one in the office of the town clerk. If elected or appointed to fill
a vacancy, at the time existing or in any new town, he shall filé such under-
taking and certificate and take the oath of office, and ‘enter upon the
duties thereof, within fifteen days after notice of his election or appoint-
ment. No justice of the peace shall take his oath of office until he shall
have filed such certificate with the county clerk. [Town Law, § 106; B.
C. & G. Cons. L., p. 6172.]

§ 8. OFFICIAL ACTS LEGALIZED WHEN JUSTICE OF THI PEACE
FAILS TO TAKE OFFICIAL OATH OR GIVE UNDERTAKING,

The official acts heretofore done of every justice of the peace, duly
elected or appointed to the office, so far as such official acts may be af-
fected, impaired or questioned, by reason of the failure of any such
justice to take and subscribe the official oath, or give an official bond as
required by law, are hereby legalized, ratified and confirmed.’ [Town
Law, § 15; B.C. & G. Cons. L., p. 6137. ]

@. Justice oi the peace may be supervisor. This section recognizes the right
of a justice of t!e peace to hold tle office of supervisor ‘dissenting opinion). Peo-
ple ex rel. Kaswicker v. Dillon, 38 App. Div. 539, 543. 56 N. Y. Supp. 416.

8. Undertaking of justice of the peace. As to general provisions relating to
official cat! s and undertakings. sve Publie Officers Law, sees. 19-15, post. For form
of.undertaking of justice of the peace. see Form No. 21 post.

While failure of a justice of the peace to file his oath of office may be 4
ground for declaring tlhe forfeiture cf lis office, it does not render the office vacant
nor prevent such person from acting as justice of the peace. Rept. of Atty. Genl.
(1911), vol. 2. p. 596.

The county clerk should file papers executed or certified by a person duly elected
justice of the peace, even though such person has not filed his bond. It is also tie
duty of the county clerk to certify that such person is a justice of the peace, but he
need not certify that he is “* duly qualified.” Rept. of Atty. Genl., Feb. 8, 1912.

9. Official acts legalized. It is also provided in section 15 of the Public Officers

Law. post, that the official acts of a public officer performed prior tv
the execution or filing of an official undertaking‘ as required by law, are a*

 

 

 
ELIGIBILITY, ETC., OF TOWN OFFICERS. 307
Town Law, §§ 92a, 111, 113, 114.

§ 8a. TOWN CLERKS’ UNDERTAKINGS.

Every town clerk hereaticr clected or appointed shall, within thirty
days after entering upon the duties of his office, make and deliver to
the supervisor of the town his undertaking, with such sureties as the
town board shall prescribe, in a penal sum not exceeding one thousand
dollars, to be determined by the town board, to the effect that he will
well and faithfully discharge his official duties as such town clerk, and
that he will well and truly keep, pay over and account to the proper
board, officer or commissioner of the town, state or county, and ac-
count for, all moneys and property going into his hands in his official
capacity; and such undertaking shall, after its execution, be presented
by the supervisor to the town board for their approval as to its form and
and the sufficiency of the sureties thereon. Until such undertaking
shall have been approved, none of the moneys, books, documents, papers
or property of the town, county or state shall be turned over or delivered
to such town clerk elect. After the approval of such undertaking, the
supervisor shall file the same in the office of the county clerk. [Town
Law, § 92-a, added by L. 1912, ch. 136.]

§ 9. UNDERTAKING OF TOWN SUPERINTENDENT OF HIGHWAYS.

Every own superintendent of highways shall, within ten days after
notice of his election or appointment, execute an undertaking with two
or more sureties, to be approved by the supervisor of his town, to the
effect that he will faithfully discharge his duties as such commissioner,
which undertaking shall be delivered to the supervisor, and filed by
him in the office of the town clerk within ten days thereafter? [Town °
Law, § 111, as amended by L. 1909, ch. 491; B. C. & G. Cons. L., p.
6174.]

§ 10. UNDERTAKING OF OVERSEER OF THE POOR.

Every person elected or appointed overseer of the poor in any town
shall, within ten days after being notified of his election or appointment,
execute an undertaking with one or more sureties, to be approved by-
the supervisor of his town, to the effect that he will faithfully dis-
charge the duties of his office, and will pay according to law all moneys
which shall come into his hands as such overseer, which undertaking
shall be delivered to the supervisor and filed by him in the office of the
town clerk within ten days thereafter." [Town Law, § 113; B.C. & G.
Cons. L., p. 6175.]

§ 11. COLLECTOR'S UNDERTAKING.

Every person elected or appointed to the office of collector, before he

enters upon the duties of his office, and within eight days after he receives

 

valid and of as full force and effect as if such undertaking had been executed and
filed within the time prescribed by law.

10. Town superintendent of higkways. The undertaking of a town superintend-
ent of highways is to be approved hy the supervisor. See, generally, the provisions
of sections 11, 12, 15 of the Publie Officers Law, post. For form of undertaking of
town superintendent of highways, see Form No. 22, post.

Action on undertaking; pleading. Where the undertaking states that a person
ef a certain town had been elected commissioner [town superintendent now] of
308 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 115.

notice of the amount of taxes to be collected by him, shall execute an under-
taking with two or more sureties, to be approved by the supervisor, to the
effect that he will well and faithfully execute his duties as collector, pay
over all moneys received by him, and account in the manner and within
the time provided by law for all taxes upon the assessment-roll of his town
delivered to him for the ensuing year, and shall deliver such undertaking
to the supervisor of the town.4? [Town Law, § 114; B. C. & G. Cons. L,
p. 6176.]

§ 12. FILING OF COLLECTOR’S UNDERTAKING; LIEN ON PROP-
ERTY OF COLLECTOR AND SURETIES.

The supervisor shall, within six days thereafter, file the undertaking,
with his approval indorsed thereon, in the office of the county clerk, who
shall make an entry thereof, in a book to be provided for the purpose, in the
same manner as judgments are entered: of record; and every such under-
taking shall be a lien on ali the real estate held jointly or severally by the
collector or his sureties within the county at the time of the filing thereof,
and shall continue to be such lien, until its condition, together with all costs
and charges which may accrue by the prosecution thereof, shall be fully
satisfied.7* Upon a settlement in full between the county treasurer and

 

highways, without specitying the town for which he was élvcivd, uw cumpla.ut setting
out such undertaking does not fail to state a cause of action on tlic theory that
no special obligee is named. In such an action it is not necessary to join the com-
missioner as a party defendant. Town of Hadley v. Karner, 116 App. Div. 68,
101 N. Y. Supp. 777.

11, The overseer of the poor. The undertaking of a person elected or appointed
as overseer of the poor is subject to the approval of the supervisor. As to approval
of undertaking of overseer appointed by the town board, see Town Law, sec. 112,
ante. The provisions of sections 11, 12, 15 of the Public Officers Law also apply
to such an undertaking. For form of official undertaking of overseer of the poor,
see Form No. 23, post.

Liability of sureties. In an action upon the bond of an overseer of the poor
it is essential to show as against the sureties, not merely that their principal was
indebted to the town, but that such indebtedness arose by reason of not accounting
for money actually received by him during the term for which the sureties stood
bound. Kellum v. Clark, 97 N. Y. 390. See, also, Bissell v. Saxton, 66 N. Y. 55.

12. Official undertaking of collector. The official undertaking of a collector is
to be approved by the supervisor. The provisions of sections 11, 12, 15 of the
Public Officers Law also apply to such an undertaking. For form of collector’s
undertaking, see Form No. 24, post.

Effect of failure of collector to execute official undertaking. If the collector
shall neglect or refuse to execute an official undertaking, or the supervisor shall
refuse to approve it, and a new collector has not been appointed as provided by law,
the board of supervisors is authorized to deliver the tax roll, with a warrant an-
nexed, to the sheriff, who shall proceed with the collection of the taxes levied
therein in the same manner as collectors are authorized to do by law. Tax Law,
sec. 87.

Default of collector for not executing bond. Actual notice of the amount of
taxes to be collected must be given to the collector, before he is put in default for
not executing the bond. People ex rel. Williamson v. McKinney, 52 N. Y. 374, 382.

13. Lien of collector’s undertaking. Under the provisions of the above section,
providing for the filing of a collector’s bond and the entry thereof by
the county clerk ‘‘in the same manner in which judgments are entered of
record,’’ and declaring that every such bond ‘‘shall be a lien on all the real
ELIGIBILITY, ETC., OF TOWN OFFICERS. 309

Town Law, § 115.

collector, a certificate of payment shall be executed in duplicate by the
county treasurer, one copy to be delivered to the collector and one copy to
be filed by the county treasurer in the office of the county clerk, and said
county clerk shall then enter a satisfaction thereof in the book in which
the filing of said bond is entered and opposite said entry of filing.
[Town Law, § 115; B. C. & G. Cons. L., p. 6176.]

 

estate held jointly or severally by the collector or his sureties,” the lien so
created is a general one, having no greater force than the lien of a judgment.
and a prior unrecorded mortgage, is entitled to priority over the bond. Cris-
field v. Murdock, 127 N. Y. 315; 27 N. E. 1,046. ‘

The filing and entry of a bond, as required by the statute, is notice to all
subsequent purchasers of the existence of a lien on the real estate of each surety,
enforceable for the full amount of any default on the part of the principal,
and while one surety has a right of action against his co-surety for contribution,
he is liable to be defeated if, by reason of his neglect or misconduct, fhe co-
surety would be injured by a judgment compelling contribution. The filing and
entry is, therefore, not simply notice to a subsequent purchaser of land charged
with the lien thereof, that it is liable only to a proportion of any liability
accruing thereon, but he is put upon inquiry to ascertain as to the equities be-
tween the co-sureties. Idem.

The lien created by the filing of a collector’s bond is analogous to that of
a judgment creditor and not to that of a mortgagee; and the owner of the
property has a right to redeem and a right to the possession, and to receive the
rents and profits after a sale thereunder, the same as after a sale under an
ordinary judgment. Upham v. Paddock, 13 Hun, 571; see, also, Upham v. Pad-
dock, 23 Hun, 377.

An unrecorded mortgage has precedence over the lien of a collector’s bond.
Wilder v. Butterfield, 50 How. Pr. 385.

Redemption. The right to redeem lands from sale exists only when given
by statute, and while a lien created by the filing and entry of the collector’s bond
is a general one with no greater effect as against prior unrecorded conveyances
than a judgment, it is not a judgment lien, or enforceable by sale under exe-
cution, and the provisions of section 1446 of the Code of Civil Procedure au-
thorizing redemption from sales under executions do not apply. Crisfield v.
Murdock, supra.

Effect of extension of time of collection. A surety on a collector’s bond is
not released by an extension of the time for collection by the legislature. See
U. S. v. Kirkpatrick, 9 Wheat. (U. S.) 184; U. S. v. Nicholl, 12 Wheat. (U. S.)
509. The ground of these decisions is that the regulations contained in the
statute, concerning the time of collection, are merely directory to the officer,
and form no part of the contract with the surety. As to the effect of extension
of time to collect on liability of sureties, see 29 Albany L. J. 124.

Continuation of lien. The bond of a collector exists as a lien on all the real
estate held jointly and severally by the collector or his sureties within the
county, at the time of the filing thereof, and continues to be such lien until
its conditions, together with all costs and charges which may accrue by the
ole TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, § 116.

§ 13. CONSTABLE’S UNDERTAKING.

Every person elected or appointed to the office of constable shall, before
he enters on the duties of his office, and within ten days after he shall
be notified of his election or appointment, execute in the presence of the
supervisor or town clerk of the town, with at least two sufficient sureties, to
be approved by such supervisor or town clerk, an undertaking to the effect
that such constable and his sureties will pay to each and every person.
who may be entitled thereto, all such sums of money as the constable may
become liable to pay on account of any execution which shall be delivered
to him for collection; and also pay each and every person for any damages
which he may sustain from or by any act or thing done by such constable
by virtue of his office. The supervisor or town clerk shall indorse on the
undertaking his approval of the sureties therein named, and shall cause
the same to be filed in the office of the town clerk within ten days there-
after.* [Town Law, § 116; B. C. & G. Cons. L., p. 6177.]

 

prosecution thereof, shall be fully satisfied. Muzzy v. Shattuck, 1 Denio, 233;
affd., 7 Hill, 584, note.

Enforcement of lien. The statute provides no special mode of enforcing the
lien. The only mode, therefore, is by a suit on the bond to recover the amount
due from the collector, and judgment being obtained, the real estate may be
sold by the sheriff upon execution. Upham v. Paddock, 13 Hun, 571. In the
case of Chatfield v. Campbell, 35 Misc. 355, Judge Andrews, at special term,
dissented from the holding of the general term in the case of Upham v. Pad-
dock, supra, and held that the statutory lien imposed upon the real estate of a
town collector and that of his sureties, by the due filing of his undertaking of
office may, upon his default in failing to pay over the taxes which he has col-
lected, be foreclosed in equity by the town supervisor, as the remedy at law is
not adequate. Proceedings for enforcing the payment by the collector of taxes
collected by him are provided for in §§ 303-305 of the Tax Law, post.

14. Bond of constable. The provisions of the Public Officers Law, sections
11, 12, 15 (see post), relating generally to special undertakings apply to an
undertaking of a constable. For form of undertaking, see Form No. 25, post.

Sufficiency. The requirements of the above section as to the sufficiency and
form of the undertaking of a constable should be complied with. But in de-
termining the liability of the principal and sureties on a constable’s bond the
courts are liberal in the construction of the above section. In the case of Jones
vy. Neuman, 36 Hun, 634, a bond was given conditioned for the faithful discharge
by the constable of his duties and for the faithful accounting and the payment
over of all moneys received by him as such constable. Such bond was ap-
proved by the supervisor and filed with the town clerk. The point was urged by
the defendants that the bond did not comply with the requirements of the
statute, but the court refused to relieve the surties of their liability, because
of the failure to comply with the conditions required by the statute, and said:
“It was the constable’s duty to cause a proper bond, with sureties, to be exe-
cuted, approved and filed. He and his sureties were the persons to see that
-it was in the right form. It would be highly unreasonable that the sureties
ELIGIBILITY, ETC., OF TOWN OFFICERS. 311
Town Law, § 13.

§ 14. FORM OF UNDERTAKING AND LIABILITY THEREON

Every undertaking of a town officer, as provided by this chapter or other-
wise, must be executed by such officer and his sureties and acknowledged
or proven and certified in like manner as deeds to be recorded, and thé
approval indorsed thereon.* The parties executing such undertaking shall

 

should now escape liability and thus be permitted to practice a fraud on all
who might be injured by the constable’s neglect. The act of the sureties in exe-
cuting the bond first enabled the constable to act as such and by his negligent
act in that capacity the plaintiffs have been injured. The cases cited (Gerould
vy. Wilson, 81 N. Y. 573; Village of Warren v. Phillips, 30 Barb. 646) are suffic-
ient authority to hold the defendants liable on this bond.” As to the effect
of an insufficient bond upon the eligibility of a constable, see Adams v. Tator,
42 Hun, 384. .

The statute prescribes the substance of the bond, but is silent as to its form.
It may be in the form of an ordinary bond to the people, although it seems
preferable that it should be in the form of a simple agreement without penalty.
People v. Holmes, 5 Wend. 191.

It is not absolutely necessary that the bond of a constable should be executed
to the people. See Warren v. Racey, 20 Johns. 74; Lawton v. Erwin, 9 Wend.
233. The substance of the instrument required by the statute is that the con-
stable and his sureties shall be responsible for all such sums as the constable
shall become liable to pay by reason of any execution delivered to him for
collection. Where the instrument contains unnecessary recitals, they do no
harm and are mere surplusage. Schellenger v. Yenders, 12 Wend. 306. Neither
the constable nor his sureties can object that the instrument is not under seal;
nor that it is not in the form prescribed by the statute; nor that the sureties
had not been bound by the clerk or supervisor of the town for which the con-
stable was elected. Idem.

Effect of bond. In the case of People ex rel. Comstock v. Lucas, 93 N. Y. 585,
the court said: “It is to be observed that the bond has a specific and limited
purpose. It does not cover the whole range of the constable’s official duties,.
nor is it an indemnity against all his possible official delinquencies. There are
many official duties which a constable may be called upon to discharge, affecting
the rights of litigants, as, for example, duties respecting the service of original
process or the execution of attachments which by no possible construction can
be covered by the condition of the bond. The law designates a constable as the
official agent for the collection of executions issued at the justice’s courts, and it
at the same time gives to parties to the execution, who have been injured
by his misfeasance or non-feasance in respect thereto, a recourse, by exacting
a bond from the constable, with sureties, to whom they may resort for in-
demnity.”

Liability for breach of bond. Sureties do not become liable for every act of
the constable, as where he wrongfully commits a trespass by seizing the prop-
erty of a stranger to the execution. People ex rel. Comstock v. Lucas, 93 N. Y.
585; see also, Berry v. Shadd, 28 Misc. 389; 59 N. Y. Supp. 551; affd. 50 App,
Div. 182, 63 N. Y. Supp. 349.

15. In addition to the provision contained in this section relating to the ex-

.
312 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Public Officers Law, § 11.

be jointly and severally liable, regardless of its form in that respect, fur
the damages to any person or party by reason of a breach of its terms."
[Town Law, § 13; B. OC. & G. Cons. L., p. 6137.]

§ 15. CONDITIONS, GENERALLY, OF OFFICAL UNDERTAKING; FORM
AND MANNER OF EXECUTING; JUSTIFICATION,

Every official undertaking, when required by or in pursuance of law to be here
after executed or filed by any officer, shall be to the effect that he will faithfully
discharge the duties of his office and promptly account for and pay over all moneys
or property received by him as such officer, in accordance with law, or in default
thereof, that the parties executing such undertaking will pay all damages, costs
and expenses resulting from such default, not exceeding a sum, if any, specified in
such undertaking. The undertaking of a state officer shall be approved by the
comptroller both as to its form and as to the suflicicncy of the sureties, and ve
filed in the comptroller’s office. “he undertaking of a municipal officer shall, if not
otherwise provided by law, be approved as to its form and the sufficiency of the
sureties by the chief executive officer or by the governing body of the municipality
and be filed with the clerk ther.of. The approval by such governing body may be
py resolution, a certified copy of which shall be attached to the undertaking, The
undertaking of a county officer shall, if not utherwise provided by law, be approvea
as to its form and the sufficiency of the sureties by the clerk of the county, and
filed in his office, except that the undertakings of a county clerk shall be filed in
the office of the state comptroller. The undertaking of a town officer shall, if not
o' herwise provided by law, be approved as to its form and the sufficiency of the
sureties by the clerk of the county and filed in his office. The sum specified in an
official undertaking shall be the sum for which such undertaking shall be required
by or in pursuance of law to be given. If no sum, or a different sum from that
required by or in pursuance of law, be specified in the undertaking, it shall be
deemed to be an undertaking for the amount so required. If no sum be required
by or in pursuance of law to be so specified, the officer or board authorized to aye
prove the undertaking shall fix the sum to be specified therein. Every official un-
dertaking shall be executed and duly acknowledged by at least two sureties, each
of whom shall add thereto his affidavit that he is a freeholder or householder within
the s‘ate, stating his occupation and residence and the street number of his regi-
dence and place of business if in a city, and a sum which he is worth over and above
his just debts and liabilities and property exempt from execution. The aggregate
of the sums so stated in such affidavits must be at least double the amount specified
in the undertaking, If the surety on an official undertaking of a state or Ica!

 

ecution of the official undertaking reference should be made to sections 11, 12, 15
of the Public Officers Law, post, containing provisions generally applicable to
official undertakings.

16. Liability of sureties on official bonds. The sureties upon a bond of a
public officer are liable thereon, only for the default of their principal com-
mitted after the commencement of the term of office, for which they became
his sureties. Although their principal held the office during a preceding term,
they are not liable for a defalcation which then occurred. In such a case those
who were sureties for the officer for the prior term must be looked to. Bissell
v. Saxton, 66 N. Y. 55. The sureties on a supervisor’s bond, with the usual con-
dition that he will ‘‘ account for all moneys belonging to the town coming into
his hands as such supervisor,” are only liable for moneys which their principal
is authorized and bound by law to receive in his official capacity, not for moneys
ordered by the town board, without authority of law, to be paid to him.
ELIGIBILITY, ETC., OF TOWN OFFICERS. 313

Public Officers Law, § 12.

officer, clerk, or employee of the state or political subdivision thereof or of a muni-
cipal corporation be a fidelity or surety corporation, the reasonable expense of pro-
curing such surety, not exceeding one per centum per annum upon the sum for
which such undertaking shall be required by or in pursuance of law to be given,
shall be a charge against the state or political subdivision or municipal corporation
respectively in and for which he is elected or appointed, except that the expense of
procuring such surety as aforesaid, on an. official undertaking of any officer, clerk
or employee in any city department of the city of New York, or of any office,
board or body of said city, or of a borough or county within said city, including
officers, clerks and employees of every court within said city, shall not be a
charge upon said city or upon any of the counties contained within said city,
unless the comptroller of the said city, shall first have approved the necessity of
requiring such official undertaking to be given, and shall have approved of or
fixed the amount of any such official undertaking; but this exception shall not
apply to an official undertaking specifically required by statute to be given, and
the amount of which is specifically fixed by statute. The failure to execute an
official undertaking in the form or by the number of sureties required by or in
pursuance of law, or of a surety thereto to make an affidavit required by or in pur-
suance of law, or in the form so required, or the omission from such an undertak.
ing of the approval required by or pursuance of law, shall not affect the liability
of the sureties therein.17 [Public Officers Law, § 11, as amended by L. 1911, ch.
424, L. 1912, ch. 481, L. 1913, ch. 325, L. 1914, ch. 48, and L. 1915, ch. 628; B. C.
& G. Cons. L., p. 4625.]

§ 16. OFFICER NOT TO PERFORM DUTIES UNTIL UNDERTAKING
Is GIVEN; PROPERTY OR MONEY NOT TO BE DELIVERED;
LIABILITY OF SURETIES IF OFFICER ENTERS ON DUTIES
BEFCRE GIVING UNDERTAKING; DURATION OF UNDER-
TAKING.

An officer of whom an official undertaking is required, shall not receive
any money or property as such officer, or do any act affecting the disposi-
tion of any money or property which such officer is entitled to receive or

 

17. Application. This section simply makes a bond that is defective in form
or date, or method of execution, valid as the personal obligation of the sureties,
but it goes no farther. It does not make an invalid bond a lien on real estate
even after it is validated, and the rule of strict construction does not permit the
courts to extend the statute by implication beyond. the letter of its command.
City of Mount Vernon v. Brett, 193 N. Y. 276, 287, revg. 115 App. Div. 882, 100 N. Y.
Supp. 1110.

Cadertakings given by Deputy Sheriffs are not official undertakings within the
meaning of this section and hence the county is not liable for the expenses incurred
by a deputy sheriff for procuring the surety.company bond in connection with his
appointment. Opinion of Atty. Gen. (1919), 19 St. Dept. Rep. 310.

Form, «Bond is good though not in the form prescribed by statute. Supervisors
of Allegany Co. v. Van Campen, 3 Wend. 48. Bonds of United States Loan Com-
missioner, sureties thereon cannot limit their liability. Rept. of Atty. Genl. (1896)
148.

Time of filing. Statute fixing the time is directory. McRoberts v. Winant, 15
Abb. N. S. 210, County treasurer may file his bond at any time before enter-
ing upon the duties of his office. McRoberts v, Winant, 15 Abb. N. 8. 210.

Effect of failure to file undertaking. Officer who has failed to file his bond
holds by a defeasible title, and is rightfully in office until forefeiture is declared
by a direct judical proceeding. Foot v. Stiles, 37 N. Y. 399; People ex rel. Wood
v. Crissey, 91 N. Y. 616, 636; Horton v. Parsons, 37 Hun 42, 45; Matter of
petition of Kendall, 85 N. Y. 302.
314 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Public Officers Law, § 15.

have the custody of, before he shall have filed such undertaking; and any
person having the custody or control of any such money or property shall
not deliver the same to any officer of whom an undertaking is required
until such undertaking shall have been given. If a public officer required
to give an official undertaking, enters upon the discharge of any of his
official duties before giving such undertaking, the sureties upon his
undertaking subsequently given for or during his official term shall be
liable for all his acts and defaults done or suffered and for all moneys
and property received during such term prior to the execution of such
undertaking, or if a new undertaking is given, from the time notice tu
give such new undertaking is served upon him. Every official undertak-
ing shall be obligatory and in-force so long as the officer shall continue t»
act as such and until his successor shall be appointed and duly qualified,
and until the conditions of the undertaking shall have been fully per-
formed. When an official undertaking is renewed pursuant.to law the
sureties upon the former undertaking shall not be liable for any official
act done or monevs received after the due execution, approval and filing
of the new undertaking.** [Public Officers Law, § 12; B. C. & G. Cons.
L., p. 4627.]

8 17. VALIDATION OF OFFICIAL ACTS BEFORE FILING OATH OR
UNDERTAKING.

If a public officer, duly chosen, has heretofore entered, or shall here-
after enter on the performance of the duties of his office, without taking
or filing an official oath, or executing or filing an official undertaking, as
required by the constitution, or by any general or special law, his acts as

such officer, so performed, shall be as valid and of as full force and effect ,
as if such oath had been duly taken and filed, and as if such undertakinz" '

had been duly executed and filed, notwithstanding the provisions of any
general or special law declaring any such office vacant, or authorizing it
to be declared vacant. or to be filled as in case of vacancy, or imposing
any other forfeiture or penalty for omission to take or file any such oath,
or to execute or file any such undertaking; but this section shall not other-
wise affect any provision of any general or special law, declaring any such
office vacant, or authorizing it to be declared vacant, or to be filled as in
case of vacancy, or imposing any other forfeiture or penalty, by reason of

 

18. The design and effect of §§ 11, 12 and 15 of the Publie Officers Law is to
measure the liability of the sureties, not by the language of the obligation assumed
by them, but by the requirements of the statutes under which the obligation may be
required and in conformity with which it purports to have been given; in other
words, the obligation is to be regarded as tl.at of the statute and not of the ccem-
mon law. City of Mt. Vernon v. Kenlon, 97 App. Div. 191, 59 N. Y. Supp. 817.

The sureties gupon the bond of a county treasurer are liable tor nis acts ‘2
tle interval between tle time when the bond was required by resolution of the
board cf supervisors and the time when it was actually delivered. Waydell v.
Hutchinson, 146 App. Div. 448.

aye?
ELIGIBILITY, ETC., OF TOWN OFFICERS. 315

Town Law, § 84; Public Officers Law, § 36.

the failure to take or file any such oath or to execute or file any such under-
taking; and this section shall not relieve any such officer from the criminal
liability imposed by section eighteen hundred and twenty of the Penal Law,
for entering on the discharge of his official duties without taking or filing
such oath or executing or filing such undertaking.*® [Public Officers Law,
§ 15, B. C. & G. Cons. L., p. £628.]

§ 18. RESIGNATION OF TOWN OFFICERS; NOTICE.

Any three justices of the peace of a town may, for sufficient cause shown
to them, accept the resignation of any town officer of their town; and
whenever they shall accept any such resignation, they shall forthwith give
notice thereof to the town clerk of the town.”° [Town Law, § 84; B, C. & G.
Com. L., p. 6161.]

§ 19. REMOVAL OF TOWN OFFICERS; APPLICATION TO APPEL-
LATE DIVISION; NOTICE.

Any town or village officer, except a justice of the peace,2!_ may be re-
moved from office by the Supreme Court for any misconduct, maladmin-
istration, malfeasance or malversion in office. An application for such re-
moval may be made by any citizen resident of such town or village and
shall be made to the Appellate Division of the Supreme Court held within
the judicial department embracing such town or village. Such application
shall be made upon notice to such town officer of not less than eight days,

 

19. Official acts performed before fiting cath or undertaking are valid. See
Matter of Kendall, 85 N. ¥. 302; Horton v. Pars ns, 37 Hun, 42; Foot v. Stiles,
57 N. Y. 399; People v. Crissey, 91 N. Y. 616, 635. Official acts by justice of the
peace before filing oath are valid. Rept. of Atty. Genl. (1903) 487.

While it is the duty of a justice of the peace to comply with the law requiring
tke filing of an undertaking and cath of office, and while he is liable to be punished
ior failure to so comply, he is not prevented from acting as such officer and his
-<fficial acts are valid. Rept. of Atty. Genl. (1911), vol. 2, p. 598.

20. Resignation of public officers generally. The Public Officers Law, sec. 31,
provides that every town cffeer may resizn kis effice to the town clerk. Every
resignation shall be in writing addressed to the officer or body to whom it is made.
if addressed to the officer, it shall take efiect upon delivery to him at his place of
business, or when it shall be filed in lis cifice. A delivery at the offige or place of
residence or business of tlie persen to whom any such resignation may be delivered,
shall be a sufficient delivery there~f.

Resignations of town officers are goverved by section 31 of the Public Officers Law
-rather than by section 84 of the Town Law. which is ineffective becausc of repug-
nancy. Rept. of Atty. Genl., May 17,1911. Fer form of resignation of town officers,
see Form No. 26.

21, Removal of public oficers. Where a public officer is guilty of an illegal act

or omission with respect to his office he mav be removed whether or no the act was
done maliciously or corruptly. Matter of Moran. 145 App. Div. 642.

Removal of justice of the peace. The constitution provides that justices of the
peace may be removed for cause, after due notice and an opportunity of
being heard, by such courts as are or may be prescribed by law. Constitution,
316 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Public Officers Law, § 30.

and a copy of the charges upon which the application will be made must be
served with such notice. [Public Officers Law, § 36; B. C. & G. Cons. L.,
p. 4635. ]

§ 20. VACANCIES, HOW CREATED.

Every office shall be vacant?? upon the happening of either of the follow-
ing events before the expiration of the term thereof:

1. The death of the incumbent;

2. His resignation 274;

3. ‘His removal from office;

4. His ceasing to be an inhabitant of the state, or if he be a local officer,
of the political subdivision, or municipal corporation of which he is re-
quired to be a resident when chosen ;78

 

art. 6, sec. 17. Section 132 of the Code of Criminal Procedure provides that
justices of the peace are removable by the Appellate Division of the Supreme
Court.

Removal of town superintendent of highways, by the town board is provided
for by Highway Lew, sec. 46, post.

2%. Vacancies; how created. The words, “before the expiration of the term of
such office,’ though they are but words of caution still make more clear the
meaning and intent. It is plain that no vacancy can be wrought in an office by
the act or fault of an incumbent after the expiration of the term for which he
was at first entitled to hold it; and that by no act or fault of his, while holding
the office and before the expiration of his term thereof, can there be created a
vacancy in the office during the term of a successor rgularly chosen. People
ex rel. Jackson v. Potter, 47 N. Y. 375, 385. See People ex rel. Mitchell v. Sohmer
(1913), 209 N. Y. 151, 102 N. E. 593; Matter of Troustine v. Britt (1914), 212
N. Y. 421, 431, 106 N. E. 129.

Failure to elect a successor in office does not render the office vacant. People
ex rel. Kehoe v. Fitchie, 76 Hun 80, 28 N. Y. Supp. 600; People ex rel. Gray v.
Scott, 31 Mise. 131, 64 N. Y. Supp. 970. A tie vote in a town election does not
create a vacancy. Rept. of Atty. Genl. (1895) 93. The election of an ineligible
person does not vacate an office; the former incumbent holds over. Rept. of
Atty. Genl. (1898) 78.

An office occupied by an officer holding over after the expiration of his term is
deemed vacant for the purpose of appointing to fill the vacancy. People ex rel.
Lovett v. Randall, 151 N. Y. 497; People ex rel. Jackson y. Potter, 47 N. Y. 375;
People ex rel. Brown v. Woodruff, 32 N. Y. 355, 362.

The expiration of a term necessarily creates a vacancy therein, particularly in an
office where the encumbent does not hold over after the expiration of his term. People
ex rel. Bast v. Voorhis (1919), 227 N. Y. 167, 125 N. E. 86, revg. 178 N, Y. Supp. 910.

Where residence of county officer is unknown, and he has for a long time been
absent from the county and does not attempt to exercise any of the powers of his
office, a vacancy exists which may be filled by the appointing power, without re-
course to an action at law to determine his status. Rept. of Atty. Genl. (1914), 132,

Acceptance of second office creates a vacancy in the first, if the two offices are
incompatible. Offices of justice of the eo" and town clerk are incompatible. People
ex rel, Earwicker v. Dillon, 38 App. Div. 589, 56 N. Y. Supp. 416.

Appointment of a person to a second office, incompatible with the first, is not
absolutely void, but on his subsequently accepting the apointment and qualifying,
the first office is ipso facto vacated. People ex rel. Whiting v. Carrique, 2 Hill, 93.

22a. For form of resignation, see Form No. 26, post.

28. Ceasing to be inhabitant. The word “inhabitant” is used as synonymous
with “resident.” People v. Platt, 50 Hun 454, 458, 3 N. Y. Supp. 367, affd.
ELIGIBILITY, ETC., OF TOWN OFFICERS. ; 317
Public Officers Law, § 30.

5. His conviction of a felony, or a crime involving a violation of his
oath of office;

6. The entry of a judgment or order of a court of competent juris-
diction declaring him to be insane or incompetent ;

7. The judgment of a court, declaring void his election or appoint-
ment, or that his office is forfeited * or vacant ; 248

8. His refusal or neglect to file his official oath or undertaking,” if one
is required, before or within fifteen days after the commencement of
the term of office for which he is chosen, if an elective office, or if an ap-
pointive office, within fifteen days after notice of his appointment, or
within fifteen days after the commencement of such term; or to file a
renewal undertaking within the time required by law, or if no time be
so specified, within fifteen days after notice to him in pursuance of law,

 

117 N. Y. 159. Office becomes vacant upon the officer ceasing to be a resident of
the state, municipality, or district for which he was elected or appointed. Peo-
ple v. Board of Education, 1 Den. 647.

The office of a town clerk who removes into another town thereby becomes
vacant. But, if he continues to act as such town clerk and maintains his office
within the town at the same place where it was located prior to his removal,
without objection and with the acquiescence of the other town officers, he is a
de facto town clerk, and his acts are valid. Matter of Collins, 75 App. Div. 87, 77

N. Y. Supp. 702.

Supervisor must reside in the ward which he represents. People v. Hull, 47 N.
Y. St. Rep. 94, 19 N. Y. Supp. 536. When a supervisor ceases to be a resident of
the town for which he is elected there is a vacancy. Rept. of Atty. Genl. (1895) 92.

When an inspector of election, outside of a city, removes from the district for
which he was elected, his office becomes vacant. Rept. of Atty. Genl. (1896) 231.

Change of residence to another county by a notary nubl’c vacates his office and
he cannot legally act officially, although his certificate has been filed in the county
to which he removed. Rept. of Atty. Genl., March 27, 1911. See also Opinion of
Atty. Genl. (1918), 18 St. Dept. Rep. 454.

24, Forfeitures. An officer asking or receiving bribes upon conviction forfeits
his office and is disqualified from holding any other office. (Penal Law, § 1823) ;
as also an officer who grants to another for pay or any reward, consideration or
gratuity the right to discharge any of the functions of his office (Penal Law, § 1864) 3
also a constable who allows a person to escape from his lawful custody (Penal Law,
§ 1697); also a person convicted of paying money for votes at an election at which
_ke was elected (Penal Law, § 751).

24-a. Application of subd. 7—Subd. 7 of this section extends to Public Health Law,
§ 373. Opinion of Atty. Gen. (1920), 22 St. Dept. Rept. 588.

25. Failure to file oath or undertaking. The following cases are to the effect that the
om.ssion in regard to an officer’s bond or oath afforded cause of forfeiture, but did not
create a vacancy, which could ony be effected by a direct proceeding for that purpose.
People ex rel. Brooks v. Watts, 73 Hun, 404, 407, 26 N. Y. Supp. 280; Cronin vy. Stod-
dard, 97 N. Y¥, 271, 274; Horton v. Parsons, 37 Hun, 42, 45; People ex rel. Willson v.
Board, ete., 59 Hun, 204, 206, 13 N. Y. Supp. 447, affd. 123 N. Y. 657; People ex rel. Woods
v. Crissey 91 N. Y. 616, 635; People ex rel. Williamson vy. McKinney, 52 N. Y. 874; Matter
of Taylor, 25 Abb. N. C. 143; Adams v. Tator, 42 Hun, 384,

Failure to file official oath by health officer of a village vacates his office Rept. ‘of
Atty. Genl. Sept. 9, 1910.

26. Where town is divided and a new town is erected therefrom, there is a vacancy
in the offices of supervisor and town clerk in the new town until the first meeting.
Matter of Collins, 16 Misc, 598, 40 N. Y. Supp. 517,
318 TOWNS, TOWN MEETINGS AND TOWN OFFICERS,

Town Law, §§ 14, 130.

that such renewal undertaking is required. When a new office 2* or an
additional imcumbent of an existing office, shall be created, such office
shall for the purposes of an appointment or election, be vacant from the
date of its creation, until it shall be filled by election or appointment.
[Public Officers Law, § 30, as amended by L. 1920, ch. 259.]

§ 21. VACANCIES, APPOINTMENT TO FILL, HOW MADE AND WHEN FILLED.

When a vacancy shall occur or exist in any town office, the town board
or a majority of them may, by an instrument under their hands and seals,
appoint a suitable person to fill the vacancy, and the person appointed,
except justices of the peace, shall hold the office until the next biennial
town meeting. In a county having a population of less than two hundred
and fifty thousand adjoining a city of the first class having a population of
one million or more, all persons appointed to the office of assessor shall hold
the office for the balance of, and until the expiration of, the term for which
the assessor who held such office in which such vacancy is thus filled, was
elected. A person so appointed to the office of justice of the peace shall hold
the office until the next biennial town meeting, unless the appointment shall
be made to fill the vacancy of an officer whose term will expire on the
thirty-first day of December next thereafter, in which case the term of office
of the person so appointed, shall expire on the thirty-first day of December
next succeeding his appointment. The board making the appointment shall
cause the same to be forthwith filed in the office of the town clerk, who shall
forthwith give notice to the person appointed. A copv of the appointment of
a justice of the peace shall also be filed in the office of the county clerk
before the person appointed shall he authorized to act.” [Town Law, § 130,
amended by L. 1921, ch. 448.]

§ 22. COUNTY CLERK TO REPORT OMISSIONS OF TOWN OFFICERS TO
DISTRICT ATTORNEY.

The clerk of each county shall make a report to the district attorney of
the county, of all ommissions by any town officer to make and transmit any
retnrns or certificates, which by law they are required to make to such

 

27. Appointment to fill vacancies. In case of tie at an annual town meeting
and adjournment, it is competent for the town board of the town to appeint 2
suitable person to fill the vacancy. People ex rel. Simpson v. Van Horne, 18 Wend.
515. Vacancies not to be filled upon justices declaring town meeting to be irregular.
Matter of Baker, 11 How. Pr. 418.

The provisions of this section, authorizing the town board to fill a vacancy, apply
where there is a failure to elect by reason of a tie vote. Rept. of Atty. Genl., May
25, 1911. Where there is a tie vote for the office of a supervisor at a town meet-
ing, and the incumbent of the office holds over, the supervisor should b chosen by
the town board, the supervisor holding over not voting. There is no autuority for
another election until the next town meeting. Rept. of Atty. Genl., 1)12, vol. 2,
p. 404.

Vacancy in office of supervisor. Where a vacancy occurs in the o.fice of a
town supervisor by failure of the person elected to qualify, the vavancy must be filed
by appointment by the justices of the peace of the town and the town clerk, and
not by an election held at a special town meeting. Section 130 of thy Town Law
eontrols the manner of making such an appointment. Chapter 252 of L. 1890,
amending sec. 34, tit. 3, ch. 11, pt. 1, of the Revised Statutes, which providcs for
the filling of vacancies in town offices by election, was repealed by tlie repeal of the
section of the Revised Statutes which such law amended. People ex rel. Hyde v.
Potter, 40 Misc. 485, 82 N. Y. Supp. 649.
ELIGIBILITY, ETC., OF TOWN OFFICERS.

ww
ee
&

Town Law, § 14.
clerk, and the district attorney shall enforce the penalty, by law imposed
upon the delinquent officer. [Town Law, §14; B. C. & G. Cons. L. 2d Ed.,
p. 8749.]

 

Where a superintendent of highways fails to qualify for office in that his official
oath is defective in omitting a statement that he has not directly or indirectly paid
moneys or property to electors as « consideration for giving or withholding votes
at the election, he is not entitled to hold office, and hence the town board has
authority, under this section, to fill the vacancy by reappointing the former incum-
bent. People ex rel. Preston v. Keator (1915), 169 App. Div. 368, 154 N. Y. Supp.
1007.

Vacancies in the office of school director may be filled by the Town Board, in
accordance with section 130 of the Town Law. Atty. Gen’l. Opin., 6 State Dep.
Rep. 425 (1915).

A supervisor holding over after his term has expired cannot vote as a member
of the town board to fill a vacancy in such office. Matter of Smith, 116 App. Div.
665, 101 N. Y. Supp. 992, affd., 188 N. Y. 549.

Application of this section does not extend to Publie Health Law, 3 373.
Opinion of Atty Gen. (1920), 22 St. Dept. Rep. 588.

For form of appointment to fill vacancy in a town office, see Form No. 27, post.

For notice of appointment to town office, see Form No. 28, post.
’

320 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Explanatory note.

CHAPTER XXII.

SUPERVISOR AS TOWN OFFICER; GENERAL DUTIES.

EXPLANATORY NOTE.

Supervisor as Town Officer.

The supervisor represents his town as a member of the county board
of supervisors. In such capacity he is in some respects a county officer.
But he is primarily a town officer. His most important duties pertain
to the administration of town affairs. He is in a sense the executive
officer of the town. He is the town’s chief fiscal officer, since he is
the custodian of town funds, except those raised for the support of the
poor. His powers and duties are prescribed by statute. It is proposed
in this chapter to treat of his general duties. Those duties which are
performed in connection with other officers and which pertain to special
subjects are considered in other chapters.

The supervisor is a member of the town board, and presides at its
meetings. The town board is the legislative body or governing board
of the town. Being identified with nearly all the governmental func-
tions of the town, the supervisor is the most important member of this
board and is more directly responsible for its acts than the other mem-
bers of the board.

Section 1. General duties of supervisor.
2. Town surveys.
3. Incorporation of villages; proceedings before supervisor.

§ 1. GENERAL DUTIES OF SUPERVISOR.
The supervisor of each town * shall:

 

1, Eligibility, etc., of Supervisor. In a preceding chapter we have considered
the provisions of the law relating to the eligibility, qualification, oath and under-
taking of supervisors as well as other town officers.
a

SUPERVISOR AS TOWN OFFICER. 321

Town Law, § 98.

1. Receive and pay over all moneys raised therein for defraying town

 

Other duties of supervisors.: In addition to the general duties conferred
upon town supervisors as provided in this section and in the succeeding sections
of this chapter, the following may be mentioned as other special duties. Each of
these will be hereafter considered in this work in their proper connection.
(For places in this manual where the sections referred to in this note may be
found, see Table of Laws, after the Table of Contents.)

Undertaking of supervisors. See Form No. 20, post.

Approval of undertakings of town officers. See Town Law, secs. 114, 116, 106,
118, 111, in preceding chapter.

Town board, as member of, to audit accounts, etc., see ch. XXVIII, post.

Board of health, as member of, see ch. XXXII, post.

School moneys, as to apportionment of, see ch. XXXII, post.

Support of poor, see chs. XLIV-XLVI, post.

Sale of personal property under lien, proceeds to be deposited with super-
visor. Lien Law, sec. 284.

Survey of nonresident lands, supervisor to cause to be made in certain cases.
Tax Law, sec 31, post.

Assessment-roll to be delivered to supervisor. Tax Law, sec. 39, post.

Collection of taxes, supervisor to apply to county treasurer for extention of
time for. Tax Law, sec. 85, post.

Collector, supervisor to notify county treasurer of appointment to fill vacancy
in office of. Tax Law, sec. 86, post. To sue on bond of collector, see Tax
Law, sec. 305, post.

Equalization of assessments by board of supervisors, supervisor may appeal
from. Tax Law, sec. 175, post.

Unpaid taxes, duties of supervisor in instituting supplementary proceedings
for collection of. See Tax Law, sec. 299, post.

Dogs, taxation of, in: towns, duties of supervisor as to. County Law, secs.
113, 114, post.

Temporary relief of poor persons, supervisor to give order for. Poor Law,
sec. 23, post.

Overseer of the poor, supervisor to present estimate of, if approved by the
town board, to the board of supervisors. Poor Law, sec. 27, post. Fo transmit
to board of supervisors abstract of accounts of overseer. Poor Law, sec. 141,
post.

Accounts audited by the town board to be certified and delivered to superviscr.
Town Law, sec. 133, post.

Town auditor, vacancy in office of, to be filled by supervisor. Town Law,
sec. 156, post.

Licenses for peddling. etc., to be endorsed by supervisor; fees to be paid to
him. Town Law, sec. 211, post.

Transient retail business, licenses for, to be issued by supervisor; fees to

be paid to him. General Municipal Law, § 85, post.

Lacks, shows, concerts and amusements, licenses “or, to be issued by supervisor;
fees to be paid to him; disposition of fees. Town Law, § 215, post.

Highways and bridges, supervisor to sell vonds of town for construction or
822 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 98.

charges, except those raised for the support uf the poor,’ in towns where
the poor is not a town charge; in counties where each town maintains
the poor thereof, the town board of said town may by resolution direct
that the money raised by said town for the outdoor relief of said town
be held and retained by the supervisor and disbursed by him upon the
orders of the respective overseers of the poor of such town, and the
oversecrs of the poor of such town shall not give, allow or grant order
fur a sum exceeding the an. unt set aside for their respective districts
during any year except that the town board or supervisor thereof mav
cousvut where necessity demands that other and further orders be given,
in which event the town shall provide for the payment of such further
orders.

repair of, when authorized by board of supervisors. Highway Law, sec. 98, pust.

Highway moneys are to be placed in the custody of the supervisor and are to ve
exvenied by him upon order of the town superintend.nt of highways, as provided
in sees. 104-106 of the Highway Law of 1908. The supervisor is required to iport
as to liighway moneys received and expended. Highway Law, sec. 107, post.

Ratlicad commissioners, to perform duties of, when office is abolished. Genera:
Municipal Law, see, 16, post.

Town indebledncss, supervisor co report amount of, to board of supervisors. Jwn
Law,’ secs. 190, 191, post.

Npecial tawn mecting, supervisor may make application for. Town Law, sx. - 6,
ante,

Jurors, trial, duties of supervisors as to selection. See Judiciary Law, sec. 5°%.
pos!.

chvol funds, ete., duties, Education Law. sec. 360, pest. School distrie’s, Lear
irg of alteracion of boundarivs. Idem, sec. 125, post.

2. The supervisor of a town is in a g-neral sense its treasurer, He is entitlec wu
receive all moneys raised for town purp: ses, exe pt those which are expressly direct-.
to be paid to the ‘own officers having cuaige of the support of the poor. He is als»
directed to pay all judgments recovered against the town from any moneys in his
Lands which are not ctherwise svecia'ly appropriated. The statute thus assum:a
tiiat he is the legal custodian of tl.e moneys of the town and charg able with tle
dui’ nit only of receiving and keeping them, but also of guarding their disbursement,
ant also recognizes, to a certain extent, the corporate .xistence of towns anid tieir
capacity to hold property, to protect their possession. and to enforce their qucsi
corporate rights by appropriate action, Bridges v. Board of Supervisors, 02 N.Y,
57. The supervisor has no authority, under the law, to receive moneys, éven in
transit raised by tax for the support of the poor. Moneys raised for such purposes
are expressly excluded from ‘those which he is authorized to receive or pay «ver.
A disregard of this provision of the law by a board of supervisors, and a direction
by them in violation of law, in a tax warrant, to pay t!e moneys raised for high-
wavs to the supervisor does not abrogate or change the law, or in any way exiend
or en'arge the powers, duties or responsibilities of the supervisor. People v. Pen-
nock. 60 N. Y. 421. This case is not now directly applicable since the superviz-r
is also made the custodian of highway and bridge funds by Highway Law, secs. ]v4-
106, post.

The supervisor is the lawful custodian of the moneys of the town and charga-
able with the duty not only of receiving and keeping them. but also of guarding
their disbursement. Annis v. McNulty, 51 Mise. 121, 100 N. Y. Supp. 951.

A supervisor of a town has no authority to retain a percentage of the public
moneys passing through his hands as compensation for receiving and disbursing
such moneys, and a resolution of the board of supervisors authorizing such action
by one of their number is void. Ma'ter of Town of Hempstead, 36 App. Div. 32°;
5a N, Y. Supp. 345; affd., 160 N.Y. 685.

 

 
SUPERVISOR AS TOWN OFFICER 323

Town Law, § 98.

2. Prosecute, in the name of his town, for all penalties given by law to
such town for its use, and for which no other otticer is specially directed to
prosecute.?

3. Receive and deposit in his name as supervisor in or with one or
more banks, private bankers or trust companies of this state, to be desig-
nated by him, all moneys coming into his hands by virtue of his office
within ten days after its receipt and shall pay out such moneys only by
checks payable to the person entitled thereto, and shall keep a just and
true account of all such receipts and expenditures in a book to be provided
for that purpose at the expense of the town, and to be delivered to his
successor in office. Such designation and deposit of the moneys shall not
release the supervisor nor his sureties from any liability in relation to such
moneys, nor in any manner affect such liability; but any default by any
such depositary shall be deemed a default of the supervisor, and he and
his sureties shall be liable therefore. [Subd. 3, amended by L. 1921, ch.
452]

4. On the Tuesday preceding the biennial town meeting and on the
corresponding date in each alternate year, account with the justices of
the peace and town clerk of the town for the disbursement of all moneys
recelved by him, including highway moneys received and disbursed by
him as provided in the highway law, and a copy of such account shall

 

A town supervisor is merely the custodian of town moneys raised in a regular
form for a particular purpose. He may not question the propriety or legality of
the expenditures underlying the levy and collection of the taxes. Attorney-General
v. Taubenheimer (1917), 178 App. Div. 321, 164 N. Y. Supp. 904. .

3. Actions for penalties. As a general rule the town board of a town is the gov-
erning board thereof, and so far as official action can go the internal affairs
of a town are under the control of this board. The town board has exclusive
authority to prosecute and defend litigation which concerns the town. An
exception is, however, created to this rule by the above section of the Town
Law, where it is provided that the supervisor of the town shall prosecute in the
name of the town for all penalties given by law to such town for its use and for
which no other officer shall be directed to prosecute. No authority is bestowed
upon the supervisor to prosecute or defend any other action, Adee v. Arnow,
91° Hun, 329; 36+N. Y. Supp. 1020.

Action to compel railroad commissioners of a'town-to account for and pay
over moneys received by them on a sale of railroad stock of the town, to re-
cover the.balance due to the town, in their hands, is properly brought by the
supervisor of the town, in his own name as such, Griggs v. Griggs, 66 Barb.
287, affd. in 56 N. Y. 504,

The cases of Hathaway v. Town of Cincinnatus, 62 N. Y. 434; Sutherland v.
Carr, 85 N. Y. 111; Bridges v. Board of Supervisors, 92 N. Y. 577; Cornell v.
Town of Guilford, 19 Denio, 510; Town of Lyons v. Cole, 3 T. & C. 431; Mitchell
v. Strough, 85 Hun, 83, and other cases of a similar nature, holding that a town
supervisor is the proper officer to bring an action in the name of the town,
were decided under section 1926 of the Code of Civil Procedure, and the section
of the revised statutes from which that section was derived as existing prior
to the amendment of such section of the code by ch. 302 of the L. of 1897. By
that amendment the authority of the supervisor to maintain an action in behalf
of the town upon a contract, to enforce a liability, to recover a penalty, or to
recover damages for an injury to the property or rights of the town was eliminated,

An action brought by a supervisor to recover a penalty should be brought
in the name of the town. Mitchell v. Strough, 35 N. Y. 83.

It is the duty of the supervisor to sue for the recovery of penalties incurred
by persons illegally voting at school meetings. Education Law. § 205. It is
also made his duty tb sue for and recover in his name of office all penalties and
forfeitures imposed by the Education Law Education Law, § 360, subd. 8.
324. TOWNS, TOWN MEETINGS AND TOWN OFFICERS,
Town Law, § 98.

thereupon be filed in the office of the town clerk, and attached thereto
and made a part thereof shall be a certificate or certificates of the bank
where the moneys of such town are deposited showing the amount
of such moneys on deposit with said bank. The town board shall cause
a certified copy of the report to be published in a newspaper published
in the town or if there be none published therein, then in a newspaper
published within the county having the greatest circulation within the
town.** If the biennial town meeting in any town is held at the time of
a general election, such account shall be rendered on the twenty-eighth
day of December in each year, or on the day preceding when such ‘day
falls on Sunday.* [Subd. amended by L. 1916, ch. 347.]

8a, Annual report of supervisor cennot be pub‘ishcd in more than one newspaper.
Opinion of Comptroller (1917), 13 State Dept. Rep. 481.

4. Supervisor’s accounts. The justices of the peace and town clerk are constituted
by subd. 4 of this section as a special board of audit to examine the accounts of
supervisors. The statute fixes the day of their meeting for this purpose, and the
board cannot lawfully meet and perform its duties on any other day than the day
prescribed. People ex rel. Johnson v. Martin, 62 Barb. 570; People v. Town of
Westford, 53 Barb. 555. The accounting consists not in paying over any money
or delivering property to the auditing board or to other officers; for the supervisor’s
term, at that time, is not ended; but he is to show the condition of the town funds
and property in his hands, the disbursement of moneys received, and the state of his
official accounts. People ex rel. Johnson v. Martin, supra.

Accounting of supervisor may be enforced by action. Town of Guilford v. Cooley,
58 N. Y. 116.

A supervisor should account for all interest received on deposits of town funds.
The town board cannot lawfully permit the supervisor to retain interest on de-
posits as a part of his salary or compensation. Opinion of Comptroller (1916), 8
State Dept. Rep. 590.

5. Claims against town to be submitted to supervisor. The purpose of subd.
5 of the above section is to require all claims against the town to be submitted
in due form to the supervisor, to be by him presented to the town board for audit,
or to the board of supervisors as the case may be. The auditing of town accounts
by the town board is made the subject of a subsequent chapter of this work. See
ch. XXVII, post.

Obtaining town moneys through conspiracy. A town supervisor who is the
custodian of sewer funds may be convicted of grand larceny for signing a warrant
for the payment of a fraudulent claim made by the contractors and for conspiring
to defraud the town. Where such acts constitute larceny at common law and
embezzlement under the statute, the offender may be prosecuted on either charge
at the option of the people. People v. Lein (1912), 152 App. Div. 376, 136 N. Y.
Supp. 995, affd. (1912), 207 N. Y. 667, 100 N. E. 1132.

Payment of town claims by check or script. A supervisor in paying town claims
may issue his check as supervisor payable at the bank where the deposit of town
funds is made, or he may issue script payable at a date after taxes have been col-
lected. When the latter plan is followed, the board of supervisors may, by appro-
priate resolutions, authorize the various collectors to accept such script and app!y
the same to the payment of taxes. Opinion of State Comptroller (1916), 10 State
Dept. Rep. 525.

Supervisor may attack audit upon proceedings to enforce payment, A supervisor
who refuses payment of an audit claim may, if proceedings to compel payment are
instituted, attack the audit and show that the town board was without jurisdiction
to allow all or a part of the charges therein contained. Opinion of State Comp-
troller (1916), 8 State Dept. Rep. 578.

6. Supervisor as member of board of supervisors. The duties of supervisor in re-
spect to the submission of town accounts, which have been audited by the town
board, is prescribed by section 133 of the Town Law, post, p. 377. The general
powers and duties of boards of supervisors are considered in a preceding chapter.
See ch. 4, ante.

 
SUPERVISOR AS TOWN OFFICER. 395
Town Law, § 98.

5. Receive all accounts against the town, which shall be presented to
him, and present the same to the town board for audit, except such ac-
counts as he may be required by law to present to the board of super-
visors.°

6. Attend the annual meeting of the board of supervisors of the
county, and every adjourned or special meeting of which he shall have
notice, and present to such board the town audits, and such other ac-
counts and demands against the town, and such reports and statements
as he may be required by law to present to such board.®

7. Sell and convey in the name of the town, property owned by it,
when directed by a town meeting.”

8. In towns other than those mentioned in subdivision ten of section _
sixty-two of the conservation law, the supervisor shall, by virtue of his
office, be superintendent of fires of his town and charged with the duty
of preventing and extinguishing forest fires. He shall have power to
employ persons to act as forest rangers in preventing and fighting fires
and to employ necessary assistants therefor, and shall possess all the
power and authority conferred upon the conservation commission, dis-
trict forest ranger, forest ranger and fire warden under subdivisions six-
teen, seventeen, nineteen, twenty and twenty-seven of section fifty
and subdivisions fourteen and sixteen of section fifty-one of the con-
servation law. Any person summoned to fight forest fires who is phy-
sically able and refuses to assist shall be liable to a penalty of twenty
dollars. The town board of each town shall at its first annual meeting
designate one of its members to act as such superintendent of fires for
the ensuing year in case of absence of the supervisor. The town board
shall fix the compensation of all forest rangers and assistants employed
under the provisions of this section and all expenses incurred under the
provisions of this section shall be a charge upon and paid by the town.

[Town Law, § 98, as amended by L. 1909, ch. 491, L. 1910, ch. 630,

L. 1912, ch. 371, L. 1913, ch. 606, L. 1914, ch. 153, L. 1916, ch. 347, L.
1920, ch. 652, and L. 1921, ch. 452.]

 

7%. Conveyance of town property. Under sub. 12 of sec. 43 of the Town Law,
ante, the electors of a town at a biennial town meeting may direct the sale and
conveyance by the supervisor in the name of the town of property owned by it.
Sub. 7 of the above section authorizes the supervisors to convey property when so
directed by a town meeting.
326-330 TOWNS, TOWN ‘MEETINGS AND TOWN OFFICERS.
Town Law, § 98.

§ 2, TOWN SURVEYS.

Whenever the supervisor of any town shall be required by the state
engineer and survevor to cause 2 survey to be made of the bounds of his
town, such supervisor, within sixty days thereafter, shall cause such
survey to be made. wid transmit, by mail or otherwise, a map and de-
sciption thereof to the state enginecr and surveyor. The expense of
such survey and inap shall be defrayed by the several towis whose
hounds, either wholly or in part. ¢:a:l be described thereby; sueh ex-
pense to be apportioned by the board of supervisors of the county. If
any supervisor shall refuse or neglect to cause such survey to be made.
he shall forfeit the sum of fifty dollars to the people of the state. [Town
Law, § 99; B. C. & G. Cons. L., p. 6169. ]
SUPERVISOR AS TOWN OFFICER. 331
Village Law, §§ 2, 3.

§ 3. INCORPORATION OF VILLAGES; PROCEEDING BEFORE
SUPERVISOR.

Requisite population—A territory not exceeding one square mile, or
conforming to the boundaries of a water district, lighting, fire or school
district, or an entire town, or two school districts, containing in each case
a population of not less than two hundred, and not including a part of a
city or village, may be incorporated as a village under this chapter. {[ Vil-
lage Law, § 2, as amended by L. 1909, ch. 555, L. 1915, ch. 31, and L.
1917, ch. 65; B. C. & G. Cons. L., p. 6365.]

Proposition for incorporation and consent of property owners.—
Twenty-five adult freeholders residing in such territory may institute
a proceeding for the incorporation thereof as a village, by making and
delivering to the supervisor of the town in which such territory is
situated, or if situated in two or more towns, to the supervisors of each
of such towns, a proposition in substantially the following form:

Proposition for the incorporation of the village of..............4.

The undersigned adult resident freeholders of the territory herein-
after described propose the incorporation thereof by the name of the
Willa Oe Of 6c sdiésacd wiser Busine as bse

The territory proposed to be incorporated does not exceed one square
mile and is bounded and described as follows: (or, the territory pro-
posed to be incorporated is the entire town of ................ or an
entire school, lighting, fire or ‘water district, suitably describing such
district with common certainty).

Such territory contains a population of .............. » aS appears
from the enumeration hereto attached.

Dated, «..-.s.e0ceec ees Guyane earners (Signatures and residences.)

The proposition shall be signed by the persons proposing such incorporation,
with the addition of the town in which they respectively reside. There shall
be attached to said proposition and delivered to said supervisor or supervisors
concurrently therewith, a written consent to the proposed incorporation in sub-
stantially the following form:

Consent to the proposed incorporation of the village of .............-.0000-

The undersigned, owners of one-third in value of the real property within
the territory described in the propositi n hereto attached, as assessed upon the
last preceding town assessment-roll, or (being one-half or more of the resident
free-holders), hereby consent to the incorporation thereof as in said proposition
set forth.

Dated, sstccovecivaceiaeess

Signatures. Residences. Assessments,

The said consent shall be signed by owners of real property, situated within
such territory constituting one-third in value thereof, as assessed upon the last
preceding town assessment-roll, excepting that in any such territory having a
population of two thousand or more, such consent may be signed either by
the owners of one-third of such assessed valuation or by one-half or more
of the resident freeholders. The persons so executing such consent shall attach
thereto their places of residence together with the assessed valuation of their
teal property. A list of the names of the inhabitants of such territory shall
332 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Village Law, §§ 4-6.

be attached to and accompany the proposition. At the time of the delivery
of the proposition the sum of fifty dollars shall be deposited with one of
the supervisors for the purpose specified in this article.® [Village Law, § 3,
as amended by L. 1909, ch. 555, L. 1915, ch. 31, and L, 1921, ch. 453.]

Notice of hearing —Within ten days after the receipt of such proposition
the supervisor or supervisors shall cause to be posted in five public places
in such territory and also published at least twice in each newspaper pub-
lished therein, a notice, that a proposition for the incorporation of the
village of (naming it) has been received by him or them, that at a place
in such territory and on a day not less than ten nor more than twenty
days after the date of posting of such notice, which place and date shall be
specified therein, a hearing will be had upon such proposition; and that
such proposition will be open for public inspection at a specified place in
such territory until the date of such hearing. [Village Law, § +, B.C. & G.
Cons. L., 2d Ed., p. 9052.]

Proceeding on hearing.—The supervisor or supervisors shall meet at the
time and place specified in such notice, and shall hear any objections which
may be presented against such incorporation upon either of the following
grounds:

1. That a person signing such a proposition is not qualified therefor, or

2. That the persons signing such consent are not owners of one-third in value
of the real property within such territory, as assessed upon the last preceding town
assessment-roll, or i

3. That, if the consent purports to be signed by one-half or more of the resi-
dent freeholders in a territory having a population of two thousand or more, that
the population of the territory is less than two thousand or that the persons
signing such consent are not one-half of the resident freeholders thereof, or [Subd.
8, added by L. 1921, ch. 453.] :

4. That, if the territory is less than an entire town, it contains more than one
square mile and does not conform to the boundaries of an entire lighting, fire,
water or school district, or

5. That the population of the territory is less than two hundred.

All objections must be in writing and signed by one or more resident taxpayers
of a town in which some part of the proposed village is situated. Testimony may
be taken on such hearing, which shall be reduced to writing, and subscribed by
the witnesses. The hearing may be adjourned, but must be concluded within ten
days from the date fixed in the notice. [Village Law, § 5, as amended by L. 1909,
ch. 555, L, 1915, ch. 31, and L. 1921, ch. 453.]

Decision cf supervisor—Within ten days after such hearing is concluded the
supervisor or supervisors shall determine whether the proposition, consent
and papers filed therewith comply with this chapter, and shall within such
time make and sign a written decision accordingly, and file it or a duplicate thereof
in the office of the town clerk of each town in which any part of
such proposed village is situated. The proposition for incorporation,

 

8. Petition or consent must definitely describe boundaries. Where the description
leaves the exact boundaries doubtful and uncertain, the petition is defective and
the proceedings will fail. People ex rel. Underwood v. Village of Patchogue, 217
N. Y. 466.
SUPERVISOR AS TOWN OFFICER. 333
Village Law, §§ 7, 8, 9.

consent and papers attached thereto, a copy of the notice, the objections,
testimony and minutes of proceedings taken and kept on the hearing; shall
also be filed with such decision in one of such town clerk’s offices. If the
decision be adverse to the proposition, it shall contain a brief statement of
the reasons upon which it is based. If no appeal be taken from such decis-
ion within ten days from the filing thereof, it shall be final and conclusive.
[Village Law, § 6, B. C. and G. Cons. L., p. 6367.]

Notice of appeal from decision of supervisor—tIf the decision sustains
the proposition for incorporation, a resident taxpayer of a town in which any
part of such proposed village is situated may appeal therefrom by serving a
notice of appeal upon each town clerk with whom the decision was filed,
and on at least three of the persons who signed the proposition. If the
decision be adverse, five of the persons who signed the proposition may join
in an appeal therefrom, by serving a notice of appeal upon each town clerk
with whom the decision was filed, and on each person who signed objections
to the proposition. All appeals shall be taken to the county court of the
county in which the proposition, notice, objections and testimony are filed,
and the notice of appeal must be served within ten days after the filing of
the decision.

The town clerk with whom the proposition and other papers are filed
must, within five days after service upon him of the notice of appeal, trans-
mit all such papers to the county judge. [Village Law, § 7; B. C. and G.
Cons. L., p. 6367. ]

Hearing and decision of appeal_—A person, except a town clerk, by or
upon whom the notice of appeal is served, may bring on the appeal for
argument before the county court, upon a notice of not less than ten nor
more than twenty days. Such notice must be served upon all parties to the
appeal, except a town clerk.

The county court shall hear such appeal, and, within ten days after the
date fixed in the notice of argument, shall make and file an order affirming
or reversing the decision. The county judge shall file such order, together
with the papers upon which the appeal was heard, with.the town clerk by
whom the papers were transmitted to him. Such order shall be final and
conclusive. No costs of the appeal shall be allowed to any party. [Village
Law, § 8; B. C. and G. Cons. L., p. 6368. ]

When election may be held.—An election to determine the question of
incorporation upon such proposition shall be held in either of the following
cases :

1. Where a decision has been made sustaining the proposition, and an
appeal has not been taken therefrom.

2. Where an appeal has been taken from a decision sustaining the propo-
sition, and such decision has been affirmed by the county court.

3. Where an appeal has been taken from an adverse decision, and the
334 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Village Law, § 23.

decision has been reversed by the county court. [Village Law, § 9; B. C.
and G, Cons. L., p. 6368. ]

Compensation for services under this article—The following compensa-
tion is payable for services under this article:

1. To supervisors for services in connection with the proposition for in-
corporation, two dollars for each day actually and necessarily spent by
them.

2. To town clerks, the compensation allowed by law for other similar
services, and for services the compensation for which is not fixed by law,
two uollars for each day actually and necessarily spent by them.

3. To electors acting as inspectors of election, two dollars for each day
actually and necessarily spent in such service. [Village Law, § 23; B. C.
and G. Cons. L., p. 6372.]
DUTIES OF TOWN CLERK, GENERALLY, 335

Explanatory note.

. CHAPTER XXIII.

DUTIES OF TOWN CLERK, GENERALLY.
EXPLANATORY NOTE.

Duties of Town Clerks.

Town clerks have the custody and control of town records. They
are responsible for their safe keeping. All papers required by law
to be filed or recorded in the town clerk’s office must be received by him
and filed or entered so as to be readily accessible to the public. He
must transcribe the minutes of the proceedings of town meetings in books
provided for the purpose.

Chattel mortgages, marriage licenses, birth and death certificates are
to be filed in town clerks’ offices, unless provision is otherwise made
for filing them in the office of a city clerk.

The town clerk has many important duties to perform as a member
of the town board. These duties will be hereafter considered in con-
nection with the powers and duties of that board. It is only intended
to include in this chapter those matters which pertain to the office of
town clerk without connection with other offices, and not relating to
other subjects.

Section 1. Town clerk to have custody of books, records and papers; to deliver
certificate of vote on propositions to supervisor; return names

of constables.
la. Town clerk to transmit lists of town officers to state tax commissioner.

2. Furnitur2 and blank books for clerk’s office.

3. Sign for clerk’s office.

4, Town clerk may appoint deputy; qualification, oath of office, com-
pensation.

5. Filing and discharge of chattel mortgages in town clerk’s office; fees
of town clerks.

. Filing and entry of marriage certificate; fees.

. Town and city clerks to issue marriage licenses; form.

. Duty of town or city clerk.

. False statements or affidavits.

10. Records to be kept by town and ‘ity clerks.

11. Copies of papers filed with town clerk, evidence.

OomaN A
336 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, § 92.

§ 1. TOWN CLERK TO HAVE CUSTODY OF BOOKS, RECORDS AND
PAPERS; TO DELIVER CERTIFICATE OF VOTE ON PROPOSI-.
TIONS TO SUPERVISOR; RETURN NAMES OF CONSTABLES.

The town clerk of each town? shall have the custody of all the records,
books and papers of the town, and he shall duly file all certificates of oaths
and other papers required by law to be filed in his office.? He shall transcribe
in the books of records of his town the minutes of the proceedings of every
town meeting held therein, and shal] enter in such book every order or
direction and all rules and regulations made by any such town meeting.
He shall attend all the meetings of the town board, the town board of
health and the board of town auditors, and act as secretary thereof. In
suitable books to be provided for that purpose, he shall transcribe the min-
utes of the proceedings of every such meeting. If accounts against the
town be audited at any such meeting, he shall incorporate in such minutes
a list of all such, showing the name of the claimant, the amount claimed
and the amount allowed, with such other information as the board may re-
quired. Within twenty days after the holding of any town meeting, the
town clerk shall certify to the county clerk the names of all the persons
elected to office at the town meeting, except inspectors of election, and
the terms for which they were severally elected, and whether or not
they have qualified. Whenever a vacancy shall occur in the office of
justice of the peace, the town clerk shall immediately notify the
county clerk of the happening of such vacancy, specifying the name

1. General provisions applicable to town clerk.

(For places in this Manual where the sections here referred to may be found,
see Schedule of Laws after Table of Contents.)

Term of office. Town Law, sec, 82, ante.

Eligibility and qualification to hold office. Town Law, sec. 81, ante.

Public Officers Law, sec. 3, ante.
Oath of office. Town Law, sec. 51, ante.
notice of neglect to file. Public Officers Law, sec. 13.
effect of failure to file, validation of acts before filing. Public Officers Law,
sec. 15, ante.

Removal of town clerk. Public Officers Law, sec, 36, ante.

Resignation. Town Law, sec. 84, ante.

Vacancy, how created. Public Officers Law, sec. 30, ante.

how filed. Town Law, sec. 130, ante.

Delivery of papers by outgoing town clerk. Town Law, see. 91, as amended by
L. 1909, ch. 491.

Clerk of town meeting. Town Law, sec. 50 ante.

2. Evidence of matters required to be recorded. Minutes and records kept
by them are only competent evidence of matters which they are bound by law to
record and file, and any paper not required by law to be filed, does not become
evidence by such filing. Jackson v. Collins, 41 N. Y. St. Rep. 590, 16 N. ¥, Supp. 651.

8. Other duties of town clerk.

Town board, as member of. Chapter XXVIII, post.

Special town meetings, to give notice of. Town Law, sec. 47, ante.
DUTIES OF TOWN CLERKS, GENERALLY. 337

Town Law, § 92.

of the justice of the peace whose office has become vacant, the date
when the same became vacant and the cause of the vacancy. He
shall deliver to the supervisor, before the annual meeting of the board
of supervisors of the county in each year, certified copies of all entries
of votes for raising money, made since the last meeting of the board of
supervisors and recorded in the town book.* Immediately after the quali-
fying of any-constable elected or appointed in his town, he shall return to
the clerk of the county the name of such constable. If any town clerk
shall wilfully omit to make such return, he shall forfeit the sum of ten

 

Town meetings, to give notice of propositions to be submitted at. Town Law,
sec. 48, ante.
to prepare ballots, provide stationery, etc. Election Law, sec, 341 (Jewett’s
Election Manual, (1916), ante.
See, also, on subject of town meetings generally, ch. III, ante.
General elections, to distribute ballots at. Election Law, sec. 343, as amended
by L. 1916, ch. 537 (Jewett’s Election Manual (1916).
compensation for services performed. Election Law, sec. 319, as amended
by L. 1915, ch. 678 (Jewett’s Election Manual (1916).

Justice of the peace, town clerk to certify to election of. Town Law, sec. 94, ante.

Undertakings, approval of, by town clerk. Town Law, secs. 116, 106, ante.

Strays and beasts doing damage, duties of town clerk as to. Town Law, secs. 380,

381, post.
notice of lien on account of, to be filed with town clerk. Town Law, see. 381,
post.

Floating timber, wrecks, etc., notice of lien on account of, to be filed with town
elerk. Town Law, sec. 394, as amended by L. 1915, ch. 439.

Justice of the peace, books and papers of, to b+ deposited with town clerk, upon
his removal from town, or if removed from office. Code Civ. Proc., secs. 3144-3148.

Accounts audited by town board to be certified and filed with town clerk. Town
Law, sec. 133, post.

Town poor. Accounts of overseer of the poor to be filed with town clerk. Poor
Law, sec. 26, post. (See Cumming % Gilbert’s Poor, Insanity and State Charities
Law, p. 23.)

Jury lists, duties of town clerk, supervisor and assessors, as to. See chapter X,
ven gis clerk to furnish justices of the peace with jury lists. Justices Court

’ .

Water works corporations, town clerk, supervisor, justices of the peace and high-
oe ee to grant permits to. Transportation Corporations Law, secs.

, 81.

Highways, duties of town clerk as to. See Part VIII, post.

Schools, duties of town clerk as to, See Education Law, Art. 12.

Sidewalks, authority to expend highway tax for, to be filed with town clerk.
Highway Law, sec. 62, post.

, Highways, papers relating to laying town, altering or discontinuing, to be filed
in office of town clerk. Highway Law, sec. 239, post.

Dogs, duties in respect to, where board of supervisors has adopted provisions of
County Law relating to registration of dogs. See County Law, sec. 131, post.

_ Tax notices, Notices of place of residence of non-resident taxpayers to be filed
in office of town clerk; town clerk to deliver statement to collector; fees of town
clerk therefor, See Tax Law, sec. 70, post.
338 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, §§ 92a, 96, 97.

dollars to be recovered by the supervisor in the name of and for the use of the
town.t [Town Law, § 92, as amended by L. 1918, ch. 73; B. C. & G. Cons. L,
p- 6166.]

§ 1a. TOWN CLERK TO TRANSMIT LISTS OF TOWN OFFICERS TO
STATE COMMISSION.

“It shall be the duty of the town clerk annually, between the fifteenth day of
i November and the fifteenth day of December, to transmit to the tax commission

a list containing the names of each supervisor, town superintendent, justice of the

peace, town clerk, assessor and collector, showing his post office address, the date

of his appointment or election and the expiration of his term of office. [Town Law,

§ 92a, as added by L. 1917, ch. 582.]

§ ib. TOWN CLERKS’ UNDERTAKINGS.

Every town clerk hereafter elected or appointed shall, within thirty days after
entering upon the duties of his office, make and deliver to the supervisor of the town
his undertaking, with such sureties as the town board shall prescribe, in a penal sum
not exceeding one thousand dollars, to be determined by the town board, to the effect
that he will well and faithfully discharge his official duties as such town clerk, and
that he will well and truly keep, pay over and account to the proper board, officer
or commission of the town, state or county, and account for, all moneys and prop-
erty going into his hands in his official capacity; and such undertaking shall, after
its execution, be presented by the supervisor to the town board for their approval
as to its form and the sufliciency of the sureties thereon. Until such undertaking
shall have been approved, none of the moneys, books, documents, papers or property
of the town, county or state shall be turned over or delivered to such town clerk elect.
After the approval of such undertaking, the supervisor shall file the same in the office
of the county clerk. [Town L., § 92a, as added by L. 1912, ch. 136.]

§ 2. FURNITURE AND BLANK BOOKS FOR CLERK’S OFFICE.

The town clerk of any town may, with the consent of the town board of his town,
purchase or furnish for the town clerk’s office all necessary bound blank books for
the entering and keeping of the records of his town, and also necessary book and
office cases, tables and other furniture for the use and convenience of the office
and the safe-keeping of the books and papers of the town, and the expense thereof
shall be a town charge, to be audited and paid as other town charges. [Town Law,
§ 96; B. C. & G. Cons. L., p. 6167.]

§ 3. SIGN FOR CLERK’S OFFICE.

There shall also in like manner be furnished and kept for every town clerk’s
office a sign with the name of the town, followed by the words, “ town clerk’s office”
in plain characters thereon, with sufficient board space immediately below for post-
ing thereon the legal notices of the town which sign and board space shall be placed
and kept on or at the outside front door of every town clerk’s office, which board
shall always be one of the public places upon which any leval notice in the town
may be posted. [Town Law, § 97; B. C. & G. Cons. L., p. 667.]

4, Qualification of constable. The town clerk is required by the above section to
return to the clerk of the county the name of each constable qualifying as such.
Under section 116 of the Town Law, ante, constables are required to file with the
town clerk an undertaking to be approved by the supervisor or town clerk. Imme-
diately upon the filing of such undertaking the town clerk should return to the
county clerk the name of such constable. By section 14 of the Town Law, ante
the county clerk is required to report to the district attorney all omissions by any
town officer to make and transmit any return required by law. The penalty pre-
scribed by the above section for a failure to make such return is to be recovered by
the supervisor in oe name and for the use of the town.

The town clerk of the town of Niagara, county of Niagara, is requi
book in which abstracts of conveyances of ings athe the town aie ete ce
See Town Law, § 95. ;

5. Claim for furniture must be audited. A person selling office furniture for the
use of a town clerk must bring a proceeding under this section and require the
claim to be audited; he cannot sue the town directly without an audit. Peck v.
Town of Catskill, 119 App. Div. 752, 104 N. Y. Supp. 540. ;

 
DUTIES OF TOWN CLERK, GENERALLY. 339:

Town Law, § 93; Lien Law, §§ 232, 233.

§ 4. TOWN CLERK MAY APPOINT DEPUTY; QUALIFICATION, OATH
OF OFFICE, COMPENSATION.

Every person hereafter elected or appointed to the office of town clerk,
in any town in this state, immediately after taking the oath of office,
may appoint a deputy town clerk for such town. Such appointment
shall be in writing and shall be recorded in the record book of said
town. Such deputy must be twenty-one years of age or over, a citizen
of the United States and a resident of the town and shall take and sub-
scribe the constitutional oath of office, and in the absence or inability
to serve of the town clerk, is hereby authorized to perform any official
act devolving upon town clerks, and shall hold office during the pleasure
of the town clerk. Said deputy shall be paid for his services by the town
clerk, but no charge shall be made against the town for the services of
said deputy. Nothing contained in this section shall prevent any town
clerk from appointing his wife or daughter as such deputy.®° [Town
Law, § 98, as amended by L. 1916, ch. 340; B. C. & G. Cons. L.,
p. 6166. ]

§ 5. FILING AND DISCHARGE OF CHATTEL MORTGAGES IN TOWN
CLERK’S OFFICE; FEES OF TOWN CLERKS.

All chattel mortgages in towns are required to be filed in the office of the town
clerk, unless there is a county clerk’s office in such town, in which case they are
to be filed therein.?7 [See Lien Law, § 232 in part, as amended by L. 1910, ch 182,
and L. 1915, ch. 27; B. C. & G. Cons. L.. p. 3247.]

The town clerk shall file every such inst7ament presented to him for that pur-
pose, <nd indorse thereon its number and the time of its receipt. He shall enter
in a book, provided for that purpose in separate columns, the names of all par-
ties to cach mortgage so filed, arranged in alphabetical order, under the head of
“ mortgagors ” and “ mortgagees,” the number of such mortgage or copy and the
date of the filing thereof, except in the city of New York such officers (the town
clerk) at the time of filing of such instrument shall upon request issue to the
person filing the same a receipt in writing, which shall contain the names of the
parties to the mortgage, its date, amount and the date and time of filing thereof,
and if the mortgage be upon a craft navigating the canals, and filed in the office of

 

6. Town clerk may appoint his son as deputy. Rept. of Atty. Genl. (1895), 339.

A female, other than a wife or daughter of a town clerk, is not eligible to hold the
office of deputy town clerk. Rept. of Atty. Genl. May 9, 1911. But since a woman may
now vote for town officers she is qualified to hold any town office.

%. Place of filing chattel mortgage. A chattel mortgage must be filed in the clerk’s
office of the town in which the mortgagor resided at the time of its execution. Hicks v.
Williams, 17 Barb. 523; see, also, Baumann v. Libetta, 3 Misc. 518; 23 N. Y.' Supp. 1;
Platt v. Stuart, 101 U. S. 737.

If the county clerk’s office is in the town or-city where the mortgagor resides the
mortgage must be filed in_such office, and it is not sufficient in such case to file it in
the town or city clerk’s office. Martin v. Rothschild, 42 Hun, 410.

Records of chattel mortgages in the offices of municipal recording officers should not
be destroyed, even after the mortgages have been destroyed. Such records as are not
in general use should be transferred to the division of public records under the control
of the Regents. Rept. of Atty. Genl., Jan. 27, 1912.

It is the intention of the statute that the place of residence of the mortgagor be
stated. Matter of Steiner (1918), 249 Fed. 880.

Time of filing. A delay of six days in filing the copy of a chattel mortgage in the
county where the chattels are located is not outside of a reasonable time for filing, and
does not constitute by itself such a departure from the statute as to work a fraud on
other creditors, in the absence of some showing of injury to subseqyent lienors, or
in he absence of evidence indicating an intent to deceive by the deluy. in re Pearlmsu
(1917), 246 Fed. 874.
340 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Lien Law, § 238.

the superintendent of public works, the name of the craft shall also be
inserted.® [See Lien Law, § 233, in part, as amended by L. 1910, ch. 182;
B. C. and G. Cons. L., p. 3249.]

The officer with whom the mortgage, or a copy thereof is filed, must, on
receipt of the certificate setting forth the payment or satisfaction of such
mortgage, file the same in his office, and write the word “ discharge ” in the
book where the mortgage is entered, opposite the entry thereof, and the
mortgage is thereby discharged. [Lien Law, § 238, in part; B. C. and G.
Cons, L., p. 3256.]

 

1

8. Duties of town clerk as to chatiel mortgages. It is made the duty of the
town clerk in whose office chatel mortgages are required to be filed, to provide
proper books in which the names shall be entered in alphabetical order of the
parties to every mortgage and also to indorse thereon its number and the time
of its receipt, and enter such number in a separate column in the books in which
the mortgages shall be entered. But the failure of the clerk to do these things
does not affect the rights of the mortgagee, as he has done all he can do when
he delivers the mortgage to the clerk in the proper office to be filed, and he
ought not to be held liable for the default of the clerk, a public officer, over
whose acts he has no control. Manhattan Co. v. Laimbeer, 108 N. Y. 578; 15
N. E. 712.

Where a mortgage was written on the inside of a large account book partly
filled with accounts, and labeled “ Day Book” which book because of its bul-
kiness, was not placed in the pigeon hole where other chattel mortgages were
filed, it was held that such a filing was not sufficient. Griswold v. Sheldon, 4
N. Y. 580.

The delivery of the chattel mortgage to the clerk while absent from his office,
and an indorsement made thereon that it is then and there filed, is not a filing.
It is not filed in reality until it is deposited in the clerk’s office. Hathaway
v. Howell, 54 N. Y. 103.

Where the office of town clerk is vacant, a filing of a chattel mortgage made
by a person having charge of the office will be valid under the statute. Bishop
vy. Cook, 13 Barb. 326.

The filing by a clerk in the store of the town clerk, who is in charge of the
town clerk’s office, is a sufficient filing. Dodge v. Potter, 18 Barb. 201. To
constitute a proper filing requires the act of the clerk or some person in charge
of the office. An unsuccessful attempt to file a chattel mortgage when the office
is closed, or depositing the mortgage on the clerk’s table in the office when no
one is present, does not constitute a filing within the requirements of the
statute. Crounse v. Johnson, 65 Hun, 337; 20 N. Y. Supp. 177.

The mortgagee is not bound to do anything more than to deliver the mort-
gage at the proper office, and to the proper officer, or to any person of proper
age who has charge of the office. 2 Wait’s Actions and Defenses, p. 195.

Temporary removal of a chattel mortgage from the Town Clerk’s office
after it has been duly filed does not affect its validity as against the person causing
its removal. Rogers v. Dwight, 71 Hun 547, 25 N. Y. Supp. 39.

Refiling chattel mortgages. By section 225, as amended by L. 1915, ch. 608,
of the Lien Law it is provided that a chattel mortgage is invalid as againet credit-
DUTIES OF TOWN CLERK, GENERALLY. 341

Lien Law, § 234; Domestic Relations Law, § 13.

The several clerks and registers are entitled to receive for services here-
under, the following fees: For filing each instrument, or copy, six cents;
for issuing a receipt for the same, six cents; for entering the same as afore
said, six cents; for searching for each paper, six cents; and the like fees for
certified copies of such instruments or copies as are allowed by law to
clerks of counties for copies and certificates of records kept by them. . ... .
No officer is required to file or enter any such paper or furnish a copy
thereof, or issue a receipt therefor, until his lawful fees are paid. [Lien

 

ors of the mortgagor and subsequent purchasers or mortgagees in good faith after
the expiration of the first or any succeecing term of one year, reckoning from the
time of the first filing, unless within thirty days next preceding the expiration of
each such term, a statement containing a description of such mortgage, the names
of the parties, the time and place where filed, the interest of the mortgagee or of
any person who has succeeded to his interest in the property claimed by virtue
thereof; or a copy of such mortgage and its indorsements, together with a state-
ment attached thereto or indorsed thereon, showing the interest of the mortgagee
or of any person who has succeeded in his interest in the property claimed by
virtue thereof; or a copy of such mortgage and its indorsements, together with
a statement attached thereto or indorsed thereon, showing the interest of the
mortgagee or of any person who has succeeded in his interest in the mortgage,
is filed in the proper office in the city or town where the mortgagor then resides,
if he is then a resident of the town or city where the mortgage or copy thereof
or such statement issued was last filed; if not such resident but a resident of the
state, a true copy of such mortgage together with such statement shall be filed
in the proper office of the town or city where he then resides, and if not a resident
of the state, then in the proper office of the city or town where the property so
mortgaged was at the time of the execution of the mortgage.

The town clerk should perform the same duties as to such re-filed mortgages as
are prescribed by the above section 233 of the Lien Law.

Filing other liens on personal property. Contracts for the conditional
sale of personal property are to be filed in the office of the town clerk in the
same manner as chattel mortgages. Personal Property Law, § 64, as amended
by L. 1915, ch. 455.

This section provides that “the officers with whom such contracts are filed
shall enter the future contingency or event required to occur before the ownership
of such goods and chattels shall pass from the vendor to the vendee, and the
amount due upon such contract, and the time when due. The name of the con-
ditional vendor shall be entered in the column of ‘mortgagees’ and the name of
the conditional vendee in the column of ‘mortgagors.’ The officers performing
services under this article are entitled to receive the same fees as for like services
relating to chattel mortgages.” :

A notice of a lien on a mare and foal has to be filed in the office of the town
clerk in the same manner as chattel mortgages are required by law to be filed.
[Lien Law, sec. 160, as amended by L. 1916, ch. 301.]

A notice of lien for labor performed in quarrying, mining, dressing and cutting
stone must be indorsed, filed and entered by the town clerk in the same manner
as chattel mortgages and the same fee shall be charged therefor. [Lien Law,
sec. 140.]
3842 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Domestic Relations Law, §§ 13, 14.

Law, § 234, in part as amended by L. 1910, ch. 182; B. OC. & G. Cons.
L., p. 3250.)

§ 6. MARRIAGE LICENSES,

It shall be necessary for all persons intending to be married to obtain
@ marriage license from the town or city clerk of the town or city in
which the woman to be married resides and to deliver said license to
the clergyman or magistrate who is to officiate before the marriage can
be performed. If the woman or both parties to be married are non-
residents of the state such license shall be obtained from the clerk of the
town or city in which the marriage is to be performed; or, if the woman
to be married resides upon an island located not less than twenty-five miles
from the office or residence of the town clerk of the town of which such
island is a part, and such office or residence is not on such island such li-
cense may be obtained from any justice of the peace residing on such island,
and such justice, in respect to powers and duties relating to marriage li-
censes, shall be subject to the provisions of this article governing town clerks
and shall file all statements or affidavits received by him while acting under
the provisions of this section with the town clerk of such town. [Domestic
Relations Law, § 13, as amended by L. 1914, ch. 230, and by L. 1918, ch.
236; B.C. & G. Cons. L., p. 1027.]

& 7% TOWN AND CITY CLERKS TO ISSUE MARRIAGE LICENSES; FORM,

The town or city clerk of each and every town or city in this state is
hereby empowered to issue marriage licenses to any parties applying for
the same who may be entitled under the laws of this state to contract
matrimony, authorizing the marriage of such parties, which license shall
be substantially in the following form:

STATE OF NEW YORK, {
County Of i ssiincccicdccsesescass ‘
City or town Of.........ececeeee

Know all men by this certificate that any person authorized by law to per-
form marriage ceremonies within the state of New York to whom this may
come, he, not knowing any lawful impediment thereto, is hereby authorized
and empowered to solemnize the rites of matrimony between

Eto reENON Se COR Sie USS Of vere ee eee ee cesses cseeceseeeeesees in the county of
a dieue Se aaa Risect ether ace tee and state of New York and ................ Of ...c..eee
mintlc ehsaaraineseemereynieus in the county of ........................ and state of New

York and to certify the same to be said parties or either of them under

 

9. Fees for filing chattel mortgages. The fees of town clerks for filing and
entering chattel mortgages and other liens on personal property are prescribed
by the above section of the Lien Law. In a subsequent portion of this work
taere is included a table of fees allowed to town officers which may be referred
to for the purpose of ascertaining the amount of fees chargeable by town clerks
ta respect to papers filed in their offices.

Mortgagee must tender fee before the clerk can be compelled to indorse and
file a chattel mortgage. Peonle ex rel. Stevens v. Hayt, 66 N. Y. 606.
DUTIES OF TOWN CLERK, GENERALLY. 343

Domestic Relations Law, § 15.

his hand and seal in his ministerial or official capacity and thereupon he is
required to return his certificate in the form hereto annexed. The statements
endorsed hereon or annexed hereto, by me subscribed, contain a full and true
abstract of all the facts concerning such parties disclosed by their affidavits
or verified statements presented to me upon the application for this license.
In testimony whereof, I have hereunto set my hand and affixed the seal of
said town or city,of ..........+45- CHiS: i's order we apes c AY OL sacs its a nictiessid a Aaaens

nineteen.......-.-. ee eens
The form of the certificate annexed to said-license and therein referred to

shall be as follows:

Lidiuees seaetewas da Aid manatees mee eae residing at ....ccscne ess sew eie ne i.
itt (he COUDLY OT oa iwes pac cna ena es and state of New York do hereby certify
that.1 did On (HIS ss. cus evens ay Gav Of pocsssuasacees in the year A. D., 19..,
solemnize the rights of matrimony between ...........-..----- Of Seaerncoee
aires PERE es in the county of ................ and state of New York and
CAN ie OSes ee eels Of ......e.eeee eee eee. in the county, Of ... 6... eee eee eee
and state of New York in the presence of ..........+...00e BD: ascecsce as aparece, Ps
as witnesses and the license therefor is hereto annexed.

Witness my hand at ........--.. eee eee in the county of ..........+.6. serene
CIS: ss ahivnhiee's cerscares SaeeR S day of ..... sides .cyartasre actoteaste A.D, 19..

In the presence of

There shall be endorsed upon the license or annexed thereto at the end thereof,
subscribed by the clerk, an al tract of the facts concerning the parties as disclosed
in their affidavits or verified statements at the time of the application for the li-
cense made in conformity to the provisions of section fifteen of this chapter.

The license issued, including the abstract of facts, and the certificate duly signed
by the person who shall have solemnized the marriage therein authorized shall be
returned by him to the office of the town or city clerk who issued the same on or
before the tenth day of the month next succeeding the date of the solemnizing of the
marriage therein authorized and any person or persons who shall wilfully neglect
to make such return within the time above required shall be deemed guilty of a mis-
demeanor and upon conviction thereof shall be punished by a fine of not less than
twenty-five dollars or more than fifty dullars for each and every offense.10 [Domestic
Relations Law, § 14, as amended by L. 1912, ch. 216; B. C. & G. Cons. L., p. 1027.]

§ 7. DUTY OF TOWN AND CITY CLERKS.

It shall be the duty of the town or city clerk when an application for a. mar-
riage license is made to him to require each of the contracting parties to sign and
verify a statement or affidavit before such clerk or one of his deputies, containing
the following information. From the groom: Full name of husband, color, place
of residence, age, occupation, place of birth, name of father, country of
birth, maiden name of mother, country of birth; number of marriage. From
the bride: Full name of bride, place of residence, color, age, occupation, place
of birth, name of father, coun:ry of birth, maiden name of mother, country of

 

10. Marriage in another state—Where parties to a marriage contract procure
a livense in a town of this state and are married in Pennsylvania, the town clerk
should not file the license and the certificate showing the p-rformance of the mar-
riage returned by the prrson performing the ceremony. Rept. of Atty, Genl. (1912),
Vol., 2. p. 542,

Return of certificate of marriage to town or city clerk—A m‘nister or other
person performing a marriags c-remony is required ‘o return the certificate of the
marr‘age to the town or city clerk’ who issued the marriag license, and in addition
in the city of New York he is required to make a rep-rt of such marriage to the
Department of TIealth. Rept. of Atty. Genl.. Feb. 15, 1912.
344 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Domestic Relations Law, § 15.

birth, number of marriage. From each: A statement in the following words: “I
have not to my knowledge been infected with any venereal disease, or if I have
been so infected within five years I have had a laboratory test within that period
which shows that I am now free from infection from any such disease.” The said
clerk shall also embody in the statement, if either or both of the applicants have
been previously married, a statement as to whether the former husband or hus-
bands, or the former wife or wives of the respective applicants are living or dead
and as to whether either or both of said applicants are divorced persons, if so when
and where the divorce or divorces were granted and shall also embody therein a
statement that no legal impediment exists as to the right of each of the applicants
to enter into the marriage state. The town or city clerk is hereby given full power
and authority to administer oaths and may require the applicants to produce wit-
nesses to identify them or either of them and may also examine under oath or
otherwise other witnesses as to any material injury pertaining to the issuing of
the license; provided, however, that in cities of the first class the verified state-
ments and affidavits may be made before any regular clerk of the city clerk’s
office designated for that purpose by the city clerk. If it appears from the
aff.davits and statements so taken, that the persons for whose marriage the
license in question is demanded are legally competent to marry the said clerk
shall issue such license, except in the following cases. If it shall appear upon
an application of the applicants as provided in this section that the man is
under twenty-one years of age or that the women is under the age of eighteen
years, then the town or city clerk before he shall issue a license shall require
the written consent to the marriage from both parents of the minor or minors
or such as shall then be living, or if the parents of both are dead then the
written consent of the guardian or guardians of such minor or minors. If one
of the parents has been missing and has not been seen or heard from for a
period of one year preceding the time of the application for the license, al-
though diligent inquiry has been made to learn the whereabouts of such parent,
the town or city clerk may issue a license to such minor upon the sworn state-
ment and consent of the other parent. If the marriage of the parents of such
minor has been dissolved by decree of divorce or annulment, the consent of
the parent to whom the court which granted the decree has awarded the cus-
tody of such minor shall be sufficient. If there is no parent or guardian of the
minor or minors living to their knowledge then the town or city clerk shall
require the written consent to the marriage of the person under whose care
Or government the minor or minors may be before a license shall be issued.
The parents, guardians or other persons whose consents it shall be necessary
to obtain before the license shall issue, shall personally appear before the town
or city clerk cnd execute the same if they are resicents of the state of New
York and physically able so to do. If they are nonresidents of the state the re-
quired consents may be executed and duly acknowledged without the state but
the consent with a certificate attached showing the authority of the officer to
take ecknowledgments must be duly filed with the town or city clerk before
a license shall itsue. Before issuing any license herein provided for, the town
or city clerk shall be entitled to a fee of two dollars which sum shall be paid by
the applicants before or at the time the license is issued. Any town or city clerk
who shall issue a license to marry any persons one or both of whom shall not be
at the time of the marriage under such license legally competent to marry without
first requiring the parties to such marriage to make such affidavits and statements
or who shall not require the procuring of the consents provided for by this article,
which shall show that the parties authorized by said license to be mar-
DUTIES OF TOWN CLERKS. GENERALLY. 845
Domestic Relations Law, §§ 15, 16,

ried are legally competent to marry shall be guilty of a misdemeanor and
on conviction thereof shall be fined in the sum of one hundred dollars
for each and every offense. On or before the fifteenth day of each month,
each town and city clerk shall transmit to the county clerk of the county
in which such town or city is situated one dollar of the amount received
for each fee collected, who, if the office of county clerk be salaried,
shall pay the same to the treasurer of such county and otherwise may retain
the same for his own use as a fee of his office. In any city the balance of all
fees collected for the issuing of a marriage license, or for solemnizing a
marriage, so far as collected for services rendered by any officer or employee
of such city, shall be paid monthly into the city treasury and may by ordin-
ance be credited to any fund therein designated, and said ordinance, when
duly enacted, shall have the force of law in such city.11 [Domestic Relations
Law, § 15, as amended by L. 1912, ch. 241, by L. 191%, ch. 503, and L.
1921, ch. 317.]

§8. FALSE STATEMENTS OR AFFIDAVITS.

Any person who shall in any affidavit or statement required or pro-
vided for in this article wilfully and falsely swear in regard to any material
fact as to the competency of any person for whose marriage the license
in question or concerning the procuring or issuing of which such affidavit
or statement may be made shall be deemed guilty of perjury and on con
viction thereof shall be punished as provided by the statutes of this state.
[Domestic Relations Law, §16; B. C. & G. Cons. L., 2d Ed., p. 1864.]

 

11, Age of female to whom licence may be issued. This section does not place any
limitation upon the age of a female to whom a license may be issued, If the appli-
cant is a woman under eighteen years of age, the town clerk must procure the
consent specified in the statute. Rept. of Atty. (1911), Vol. 2, p. 632. See
also Bays v. Bays (1919), 105 Misc. 492, 174 N. Y. Supp. 212.

Consent of parents. The requirement of this section that the consent of parents .

must be obtained before a license can issue, if the man is under twenty-one, does
not fix the age of consent or affect the question of annulment. Padula v. Padula
(1916), 96 Misc. 597, 160 N. Y. Supp. 833.

Amendment of marriage license. A motion directing the clerk of the city of
New York to amend a marriage license so that it will correctly state the name of
the applicant, may not be granted in the absénce of statuory authority. Matter
of Bjune (1919), 109 Misc. 247, 178 N. Y. Supp. 498.
345a TOWNS, TOWN MEETINGS AND TOWN OFFICERS,

Domestic Relations Law, § 19.

§9. RECORDS TO BE KEPT BY TOWN AND CITY CLERKS.

Each town and city clerk hereby empowered to issue marriage licenses
shall keep a book in which he shall record and index all affidavits, state-
ments, consents and licenses together with the certificate attached showing
the performance of the marriage ceremony, which book shall be kept and
preserved as a part of the public records of his office. Whenever an appli-
cation is made for a search of such records the city or town clerk may make
such search and furnish a certificate of the result to the applicant upon
the payment of a fee of fifty cents for a search of one vear and a further
fee of ten cents for each additional vear, which fees shall be paid in advance
of such search. All such affidavits, statements and consents, immediately

upon the taking or receiving of the same by the town or city clerk, shall
be recorded and indexed and shall be public records and open to public

inspection. On or before the fifteenth day of each month the said town
and city clerk shall file in the office of the county clerk of the county in
which said town or city is situated the original of each affidavit, statement,
consent, license and certificate, which have been filed or made before him
during the preceding month. He shall not be required to file any of said
documents with the county clerk until the license is returned with the cer-
tificate showing that the marriage to which they refer has been actually
performed.1? [Domestic Relations Law, § 19, as amended by L. 1912, ch.
241, L. 1916, ch. 381, L. 1920, ch. 213, and L. 1921, ch. 32.]

 

12. Affidavits for marriage licenses need not be made public by the city or town
elerk until after the ceremony has been performed and the certificate filed, Rept.
of Attv, Genl., March 11, 1911,

If a minor, in order to obtain a marriage license, makes and verifies a false
statement as to his age, the license may nevertheless issue, and the parties be
married, and the marriage be valid; this is true although under this section he
may be- punished for making such false statement. Bays v. Bays (1918), 105 Misc.
492. 174 N. Y. Supp. 212.

Transcripts of marriage records. Construing this section and General Municipal
Law, §51, together, a city, town or county clerk may make regulations with
respect to the issuing of transcripts from, or the inspection of, the records in
their respective offices relating to marriages as may insure that such transcripts
be issued or inspection made for a legitimate purpose, and not merely for the
gratification of curiosity or for speculative purposes. Opinion of Atty. Gen.
(1921), 26 St. Dept. Rep. 514.
DUTIES OF TOWN CLERKS, GENERALLY. 345b
Civil Practice Act, § 383.

§11. COPIES OF PAPERS FILED WITH TOWN CLERK,
EVIDENCE.

A copy of a paper filed, pursuant to law, in the office of a town clerk, or
transcript from a record kept therein, pursuant to law, certified by the
town clerk, is evidence with like effect as the original. [Civil Practice
Act, § 383, as transferred from Code Civ. Pro., § 934, by L. 1920, ch. 925.]
346 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Constitution, Art. VI, § 17.

CHAPTER XXIV.

JUSTICES OF THE PEACE; GENERAL DUTIES AS TOWN OFFICERS:
POLICE JUSTICES IN CERTAIN TOWNS.

Section 1. Constitutional provisions relative to justices of the peace.

2. Removal of justice of the peace.

3. Justice of the peace to deposit books with town clerk, if he removes
from town or is removed from office; town clerk to demand
books.

4. Buying demands by a justice or constable, for suit before a justice;

forfeiture of office.
. Payment of fines and penalties.
. Police justices in certain towns.
. Jurisdiction and powers of police justices.
. Creation of office of police justice.

Ont DH oO

§ 1. CONSTITUTIONAL PROVISIONS RELATIVE TO JUSTICES OF
THE PEACE.
The electors of the several towns shall, at their annual town meetings, or
at such other time and in such manner as the legislature may direct, elect
justices of the peace, whose term of office shall be four years.*

 

1. Election and terms of office of justices. The election, number and terms
of office of justices of the peace, and the eligibility, qualifications, oaths of
office and undertakings of such justices have been considered in a former chap-
ter in connection with other town officers. See 3 Wait’s Law and Practice, 7th
ed. (1903), p. 1. (For places in this Manual where the sections referred to may
be found, see Table of Laws, after the Table of Contents.)

References. As to the number of justices to be elected at each biennial town
meeting, see Town Law, sec. 80, ante; as to the number and terms of justices
of the peace, see Town Law, sec. 103, ante; as to the ballots for justices elected
for a full term and to fill vacancies, see Town Law, sec. 56, ante; as to the
election or appointment of justices in new towns, see Town Law, sec 104, ante;
as to the filing of the certificate of election of a justice of the peace with the
county clerk, see Town Law, sec. 94, ante; as to the eligibility and the quali-
fications of persons to the office of justices of the peace, see Town Law, sec. 81,
ante, and Public Officers Law, sec. 3, ante; as to the undertakings of justices,
see Town Law, sec. 106, ante, Town Law, sec. 13, ante, Public Off-
cers Law, sec. 11, ante, sec. 15, ante; as to oath of a justice of
the peace, see Town Law, sec. 106, ante; as to the legalizing of official acts
JUSTICES OF THE PEACE; GENERAL DUTIES. 847

Code Criminal Procedure, § 132.

In case of an election to fill a vacancy occurring before the expiration
of a full term, they shall hold for the residue of the unexpired term.
Their number and classification may be regulated by law.? Justices of
the peace, and judges or justices of inferior courts, not of record, and
their clerks, may be removed for cause, after due notice and an oppor-
tunity of being heard, by such courts as are or may be prescribed by
law. [State Constitution, art. VI., § 17; B. C. and G. Cons. L., p.
135. ]

§ 2. REMOVAL OF JUSTICES OF THE PEACE.

How removable.—Justices of the peace, police justices, justices of
justice’s courts, and their clerks, are removable by the appellate division
of the supreme court. [Code of Crim. Pro., § 132.]

§ 3. JUSTICE OF THE PEACE TO DEPOSIT BOOKS WITH TOWN CLERK, IF
HE REMOVES FROM TOWN OR IS REMOVED FROM OFFICE; TOWN
CLERK TO DEMAND BOOKS,

If a justice of the peace, either before or after the expiration of his
term of office, removes from the town or city wherein he was elected,

 

of a justice of the peace performed before filing his oath and undertaking, see
Town Law, sec. 15, ante. Publie Officers Law, sec. 15, ante; as to the creation of
a vacancy in the office of a justice, see Public Officers Law, sec. 30, ante; as to the
filing of such vacancies by the town board, see Town Law, sec. 130, ante.

Duties of justices of the peace in common with other town officers. It is not
the purpose of this work to treat of the powers and duties of a justice of the
peace as a judicial officer. The purpose is to consider such office in its connection
with other town offices and to state the powers and duties of a justice in this con-
nection only. As to the jurisdiction of justices of the peace and as to the law and
practice in their courts reference is made to Wait’s Law and Practice, 7th ed.
(1903) ; Baileys’ Law and Practice for Justices of the Peace (1909.)

Town board. Justices of the peace as town officers act generally in connection
with the supervisors and town clerk in forming the town board of the town. The
town board is the chief governing body of the town and its powers and duties are
numerous and varied. Subsequent chapters of this work are devoted to the powers
and duties of such board. Justices have other duties in connection with other town
officers which are considered in other parts of this work in their proper connection.
Among these duties are the following:

Town meetings. Justices are the presiding officers at town meetings not held in
election districts or at the time of a general election. See Town Law, sec. 49, ante.
(As to the powers of town meetings, the manner of conducting the same, and
other provisions relating thereto, see, chapter 19, ante.)

Special Constables may be appointed by justices of the peace and the supervisor,
Town Law, sec. 117, ante.

Resignations may be accepted by any three justices of the peace of a town for
sufficient cause shown to them. Town Law, sec. 84, ante.

Fires in woods. Justices of the peace in connection with the supervisor and com-
missioner of highways of a town may order out the inhabitants of a town to assist
in extinguishing a fire in the woods in any such town. Town Law, sec. 89, ante.

Coroners. Justices of the peace to act as coroners in case of the disability of
all the coroners, or in case of an emergency, see Code Crim. Proc., § 789a, ante.

2. L. 1909, ch. 583, as amended by L. 1910. ch. 294, which authorized the several
towns in Suffolk county to establish police districts outside the limits of any in-
corporated village therein, and to elect within such districts by ballot one police
justice, three commissioners and to provide for police patrolmen within said dis-
ie : eeome none People v. Paris (1918), 181 App. Div. 499, 168 N. ¥.

upp. 836.
S48 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Justice Court Act, §§ 472-475; Penal Law, §§ 1852, 1853.

he must forthwith deposit, with the clerk of that town or city, his docket
book, and all other books and papers in his custody, relating to an action
or a special proceeding, which has been heard by him, or commenced before
him. A justice, who is removed from office, must make a like deposit,
within ten days after receiving notice of his removal, or afterwards, upon
the demand of the clerk of the town or city. But the omission of the
justice to make the deposit does not affect the validity of any book or
paper, so required to be deposited, or of any proceeding to which it relates.
[Justice Court Act, § 472, as transferred from Code Civ. Pro., § 3144, by L.
1920, ch. 937.] :

A justice of the peace must make, in each docket book deposited by him,
as prescribed in the last section, a certificate under his hand, to the effect
that each judgment or order, entered therein, was duly rendered or made
as therein stated; and that the sum, appearing by the book to be due there-
upon, has not been paid, to his knowledge. [Justice Court Act, § 473, as
transferred from Code Civ. Pro., § 3145, by L. 1920, ch. 937.]

If a justice of the peace dies, or his office becomes otherwise vacant, the
town or city clerk must demand and receive all books and papers, which
belonged to the justice in his official capacity, from any person having them
in his possession, and such clerk may make and issue a transcript of a
judgment so rendered by such a justice of the peace and appearing upon
the docket of such justice of the peace so on file in his office, and issue
an execution upon any such judgment which has not been docketed in the
office of the county clerk, upon receiving his fees for the same, which shall
be the same now allowed a justice of the peace for issuing a transcript or
transcripts, as the case may be, and such transcript or execution so issued
by such clerk shall have the same force and effect as though the same had
been issued by such justice of the peace during his term of office. [Justice
Court Act § 474, as transferred from Code Civ. Pro., § 3146, by L. 1920,
ch. 937.]

If any book or paper, required to be deposited with the town or city
clerk, as prescribed in this article, is withheld, the like proceedings may
be had, at the instance of the town or city clerk, to compel the deposit
thereof, as are prescribed by law, where an officer refuses or neglects to
deliver a book or paper in his custody as such officer, to his successor in
office. [Justice Court Act, § 475, as transferred from Code Civ. Pro.,
§ 3147, by L. 1920, ch. 937.]

§4. BUYING DEMANDS BY A JUSTICE OR CONSTABLE,
FOR SUIT BEFORE A JUSTICE; FORFEITURE
OF OFFICE,

_ A justice of the peace or a constable who, directly or indirectly, buys or
is interested in buying, anything in action, for the purpose of commencing
a suit thereon before a justice, is guilty of a misdemeanor. [Penal Law,
§ 1852; B. C. & G. Cons. L., 2d Ed., p. 5998.]

A justice of the peace or constable who, directly or indirectly, gives, or
JUSTIvnS Of THE PEACE; GENERAL DUTIES. 849

Penal Law, §§ 1854-1856; County Law, § 12, subd. 21.

promises to give, any valuable consideration to any person as an inducement
to bring, or in consideration of having brought, a suit thereon before a
justice, is guilty of a misdemeanor. [Penal Law, § 1853; B. C. and G.
Cons, L., p. 4048.]

A person convicted of a violation of either of the two preceding sections,
in addition to the punishment, by fine and imprisonment prescribed therefor
by this article, forfeits his office. [Penal Law, § 1854; B. C. and G. Cons.
L., p. 4048. ]

Nothing in the three preceding sections shall be construed to prohibit the
receiving in payment of anything in action for any estate, real or personal,
or for any services of an attorney or counselor actually rendered, or for a
debt antecedently contracted; or the buying or receiving of anything in
action for the purpose of remittance, and without any intent to violate the
three preceding sections. [Penal Law, § 1855; B. C. and G. Cons. L., p.
4048.]

The provisions of sections two hundred and seventy-four, two hundred
and seventy-five, eighteen hundred and fifty-three, and eighteen hundred
and fifty-five, relative to the buying of claims by a justice of the peace or
constable, with intent to prosecute them, apply to every case of such buying
a claim, or lending or advancing money, by any person prosecuting in
person an action or legal proceeding. [Penal Law, § 1856; B. C. and G.
Cons. L., p. 4049. ]

§ 5. PAYMENT OF FINES AND PENALTIES.

The board of supervisors shall have power to direct the payment, by
justices of the peace, of all fines and penalties imposed and received by
them, to the supervisors of their respective towns, on the first Monday in
each month, and to direct justices of the peace to make a verified report of
all fines and penalties collected by them to the board of town auditors of
their respective towns on Tuesday preceding the annual town meeting.
Upon such payment as herein prescribed to the supervisor of any town, he
shall immediately pay over such part of such fines and penalties to any
person or corporation who shall be entitled to receive the same by virtue of
any statute, special or otherwise. The residue of such amount shall be
applied to the support of the poor of such town. This subdivision shall not
apply to the county of Kings. [County Law, § 12, subd. 21; B. C. and G.
Cons. L., p. 714.]

§ 6. * POLICE JUSTICES IN CERTAIN TOWNS.

In any town of this state containing one or more incorporated villages
of the aggregate population of at least eight thousand inhabitants, the office
of police justice shall be created upon the adoption of a proposition therefor
350 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, §§ 122, 123.

at any regular town election. The term of office of said police justice shall
be four years. Such police justice shall receive no fees, but shali be paid
an annual salary to be fixed by resolution of the town board of such town,
which salary shall not be increased nor diminished during his term of office.
[Town Law, § 122, as added by L. 1909, ch. 528.]

§ 7. JURISDICTION AND POWERS OF POLICE JUSTICE.

1. Such police justice may hold a court of special sessions in said
town, outside the corporate limits of the village or villages, and shall have
in the first instance exclusive jurisdiction to hear, try and determine all
charges of misdemeanor committed within such town and without the cor-
porate limits of the village or villages therein, and triable by a court of
special sessions, subject to the right of removal, as provided by the code of
criminal procedure, to a court having authority to inquire by the interven-
tion of a grand jury into offenses committed within the county.

2. Such police justice shall have exclusive jurisdiction to take the ex-
amination of a person charged with the commission in such town, without
the corporate limits of the village or villages therein, of a crime not triable
by a court of special sessions; and also to hear, try and determine charges
against a person of being a vagrant or disorderly person within such town
without the corporate limits of the village or villages therein, or of having
committed disorderly conduct therein; and to take such proceedings in
either of such cases as may be taken by a justice of the peace, with all the
powers and subject to all the duties and liabilities of a justice of the peace
in respect thereto.

3. Such police justice shall have all the power and authority and be
subject to all the duties and liabilities of a justice of the peace in issuing
warrants for the arrest of a person charged with the commission of a crime
or disorderly conduct in a county including such town, but if the offense
is charged to have been committed outside of that portion of the town lying
without the corporate limits of the village or villages in such town, the
person arrested by such process shall be taken before a magistrate of the
town or village in which such offense is charged to have been committed and
the papers on which such process was issued shall be delivered to such
magistrate who shall proceed thereon as though such warrant had been
issued by him on such papers.

4, A person arrested on a crimina] warrant issued by a justice of the
peace or other magistrate upon a charge of committing a crime or an
offense of a criminal nature within that portion of a town wherein such
office of police justice has been or may be established lying without the
corporate limits of the village or villages therein, shall be taken before
the police justice of sucn town and the papers on which the process was
JUSTICES OF THE PEACE; GENERAL DUTIES. 351

Town Law, § 124.

issued shall be delivered to him and he shall proceed thereon as though such
warrant had been issued by him on such papers,

5. In case of the absence of the police justice or his inability to act any
justice of the peace of the town shall have jurisdiction.

6. The term “ proceeding,” as used in this section, also includes a special
proceeding of a criminal nature. [Town Law, § 123, as added by L. 1909,
ch. 528.]

§ 8. CREATION OF OFFICE OF POLICE JUSTICE.

The town board of any town specified in section one hundred and twenty-
two of this article may, and on the petition of twenty-five electors qualified
to vote on the proposition shall,cause to be submitted at any regular town
meeting or town election a proposition for the creation of such office of
police justice in such town, Should such provision be adopted, then within
ten days thereafter the town board of such town shall appoint a competent
elector of such town and a resident ot the portion thereof lying without the
corporate limits of the village or villages therein, police justice; the person
so appointed shall hold office until the thirty-first day of December next
after the regular town election next succeeding that at which such proposi-
tion shall have been adopted. At the regular town election next succeeding
that at which such proposition shall have been adopted a police justice shall
be elected. [Town Law, § 124, as added by L. 1909, ch. 528.]
862 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law; § 85.

CHAPTER XXV.

COMPENSATION OF TOWN OFFICERS; MISCELLANEOUS PROVISIONS AS
TO TOWN OFFICERS.

SECTION 1. Compensation of town officers.

2. Per diem allowances of town officers.

2a. Payment of salaries monthly.

8. Compensation of town clerks in certain towns,

4, Expenditures of surplus moneys by certain town officers,

5. Powers and duties of assessors in certain towns of Nassau County.

6. Fence viewers.

7. Peace officers in towns of counties adjoining cities of the first-class and
in towns in a county containing a city of the first-class.

8. Delivery of books and papers by outgoing supervisor, town clerk, super-
intendent of highways or overseer of poor to successor.

§. Powers of supervisors and assessors in certain towns to employ clerks.

§ 1. COMPENSATION OF TOWN OFFICERS.

Town officers shall be entitled to compensation at the following rates
for each day actually and necessarily devoted by them to the service of
the town. in the duties of their respective offices, when no fee is allowed
by law for the service, as follows:

1. a. The supervisor,’ except when attending the board of supervisors,
cown clerk, justices of the peace and overseers of the poor, each, two dollars

 

i. Per diem allowance to town officers. A supervisor of a town is not en-
titled to a percentage upon town moneys received and paid out by him, nor to any
compensation beyond the per diem allowance fixed by statute for advising and
directing overseers of the poor, for consulting with highway commissioners and town
assessors, and for services in employing counsel in proceedings taken to compel the
board of supervisors to correct the town assessment-roll. People ex rel. Keeffe v.
Town Auditors, 24 App. Div. 579; 49 N. Y. Supp. 525. A board of supervisors in a
resolution authorizing a town to borrow money and issue bonds therefor cannot give
to the supervisor for his services a commission on the proceeds of the bonds sold
under such resolution. Ghiglione v. Marsh, 23 App. Div. 61; 48 N. Y. Supp. 604.
In this case it was held that the services performed by the supervisor in respect to
bonds so sold should be paid for on the per diem basis under the provisions of the
above section and the court remarked: ‘“ Such services are performed for the town,
and no compensation is provided therefor by any provision of law. It would seem,
therefore, that the provision of the statute for per diem compensation for services
rendered the town by a supervisor has direct application and embraces the case.”

Former § 3280 of the Code of Civil Procedure (now Judiciary Law, §
252, and Public Officers Law, § 67), provides that “each public officer
upon whom a duty is expressly imposed by law must execute the same without fee
SOMPENSATION OF TOWN OFFICERS. 353

Town Law, § 85.

per day, and assessors three dollars per day, unless a different rate be fixed
by or pursuant to this section; [Subd. amended by L. 1917, ch. 572.]

b. The board of supervisors of any county may, by resolution, fix the
compensation of any of such officers in-the towns of such county at the rate
of more than two but not more than four dollars per day, notwithstanding
any provision of this section fixing or authorizing the fixing of a different
per diem. rate; [Subd. amended by L. 1917, ch. 572.]

ec. The town board of any town may, by resolution, fix the compensa-
tion of the assessors in such town at more than three but not more than

five dollars per day each;!* [Subd. amended by L. 1917, ch. 572.]

d. Assessors in the county of Monroe shall receive compensation at the
rate of not less than three dollars nor more than five dollars per day each
to be fixed by the town board ;

e. Assessors in the county of Nassau shall receive compensation at the
rate of three dollars per day each;

f. The town board of any town in which the assessed valuation of real
estate is over twenty million dollars may, by resolution, determine that the
assessors thereof shall each receive an annual salary of not more than one
thousand dollars in lieu of per diem compensation ;

 

or reward, except where a fee or other compensation therefor is expressly allowed by
law.” In the case of People ex rel. Keeffe v. Town Auditors, supra, the court held
that such section of the code applied to services performed by supervisors in re-
ceiving and paying out town moneys, and concluded that a supervisor was not en-
titied to any compensation for such services other than a per diem allowance as yiven
by the above section, and, unless that section can be made applicable it was held that
he could make no charge whatever against the town for such services. See, also,
Matter of Town of Hempstead, 36 App. Div. 321; 55 N. Y. Supp. 345.

A supervisor is entitled to commissions for paying out moneys for park pur-
poses, authorized by a statute making the supervisor one of the park commissioners
to serve without compensation, because his function as supervisor in paying out the
money is separate and distinct from his function as a park commissioner. People ex
rel. Studwell v. Archer, 142 App. Div. 71, 126 N. Y. Supp. 750.

The supervisor of a town is not entitled to a commission of one per cent. on money
raised for highway and bridge ‘purposes. Rept. of Atty. Genl., May 22, 1911.

Members of the town board are entitled to no greater compensation while audit-
ing accounts than while performing other duties as « town board, such compensa-
tion being two dollars per day. Rept. of Atty. Genl. (1911), vol. 2, p. 663.

Right of town officer to employ assistant at expense of the town. A town officer
has no right to employ an assistant at the expense of the town to do any part
of the work which devolves upon him by virtue of his office and for which he is com-
pensated as such town officer; nor has the town board a right to employ any person
at the expense of the town to do the work of any town officer. Daly v. Haight
(1914), 87 Mise. 425, 149 N. Y. Supp. 940, rev’d on other grounds, 170 App. Div. '
469, 156 N. Y. Supp. 538.
354 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, § 85.

g. The town board of any town in the county of Nassau having a
population, as appears by the last federal census, of seventeen thousand
inhabitants or more, may fix the annual compensation for assessors of
such town, at not more than twelve hundred dollars each, and provide
for the payment of such compensation in quarterly installments;

h. The town board of any town in which the assessed valuation of
taxable real and personal property is ten million dollars or more may
determine by resolution that the overseers of the poor in such town
shall receive an annual salary, to be fixed by such resolution, not exceed-
ing one thousand dollars, in lieu of the per diem compensation provided
by this section ;

i. The town board of any town in a county adjoining a city of the
first class may by resolution fix the compensation of the persons ap-
pointed and serving as inspectors of election at a sum not exceeding
twelve dollars for the hours fixed by law for each day of registration,
and of revision of registration for a special election, and six dollars
for the count and returm of the votes, said claims to be allowed and
paid in the same manner as other town charges are allowed and paid.
Ballot clerks shall receive the same compensation for their attendance

 

Justices of the peace and town clerks are entitled to a per diem compensa-
tion of two dollars. People ex rel. Earwicker v. Dillon, 38 App. Div. 539, 56 N. Y.

Supp. 416.

Town clerk is entitled to compensation for services in carrying out the provisions
of the Election Law. He is not entitled to compensation for allowing town assess-
ment rolls to be placed in his office. People ex rel. Gedney v. Sippell, 116 App. Div.
753, 102 N. Y. Supp. 69.

Compensation of town clerk as custodian of records. A town clerk is entitled
to certain fees for filing papers required to be filed with him, for registering the
same, for searching for papers; and for certified copies of instruments or records
required to be kept by him, he is entitled to the same feces as are allowed by law
to county clerks. In addition to these fees he is, by the above section, entitled to
$2 for each day actually and necessarily devoted to the service of the town in the
duties of his office when no fee is allowed by law for such service. It is qu'te evi-
dent that the above section does not contemplate an allowance of $2 per day as
custodian of papers required to he filed with him. Matter of Town of Hempstead, 36
App. Div. 319; 55 N. Y. Supp. 345.

Town assessors in Nassau county. LL. 1900, ch. 292, amending former section,
providing for the compensation of assessors in towns generally, and excepting there-
from the county of Monroe, was held to repeal the provisions of L. 1893, ch. 629,

2, relating to the compensation of assessors in Queens county, so far as the same
related to the county of Nassau, notwithstanding L. 1898, ch. 588, § 18, applying
acts relating to Queens county to the county of Nassau. People ex rel. Heyoman
y. Jones, 68 App. Div. 396, 74 N. Y. Supp. 294.

la. Town boards may increase the compensation of assessors and have the in-
crease apply from the time of action by the board, and the fact that the change
js made during the term of office of the assessors is immaterial. Opinion of Comp-
troller (1917), 13 State Dept. Rept. 484.

Fees for services rendered and expenses incurred by a town overseer of the poor
in caring for and removing an indivent veteran to the soldiers’ home, are county
and not town charges. Opinion of Comptroller (1917), 12 State Dept. Rep. 516.
COMPENSATION OF TOWN OFFICERS. "8g da

Town Law, § 85.

at an election as inspectors of election for the election and be paid in
like manner. Poll clerks shall receive the same compensation for their
attendance at an election and canvass of the votes as inspectors of elec-
tion and be paid in like manner.

The compensation of a town officer now fixed pursuant to this section
shall continue as so fixed until changed pursuant to this section as
amended. If the compensation of a town officer be fixed by or pursuant
to statute on a per diem basis, he shall not be entitled to receive more
than one day’s compensation on account of services performed on the
same calendar day.

j. The town board of any town in a county having a population of
two hundred thousand or less, according to the last federal or state
census or enumeration, adjoining a city of the first class having a pop-
ulation of one million and upwards may, by a resolution, fix the com-
pensation of the town clerk at not more than thirty-five hundred dollars
per annum, except that in any such town having a population of fifty
thcuzand or more, according to the last preceding federal or state census
or enumeration, such town board may fix the compensation of the town
clerk at not more than five thousand dollars per annum. The town
clerks in such towns may, with the approval of the town board, ap-
point a deputy town clerk at a salary to be fixed by the town board, not
exceeding the sum of fifteen hundred dollars per annum. Such town
clerk and deputy town clerk shall receive and collect the fees allowed
by law and shall keep an accurate record of the same. At the end of
cach month he shall make a verified report of such fees, giving the
date and amount of each fee and the person from whom received,
which he shall file with the supervisor of the town, and pay over to such
supervisor all the moneys so received during such month, to be paid
by the supervisor into the town fund of such town. [Subd. 1, para-
graph j, amended by L. 1920, ch. 653.]

j. The supervisor of each town shall be allowed and paid, in the
same manner as other town charges are allowed and paid, a fee of one
per centum on all moneys paid out by him as such supervisor, including
school moneys disbursed by him as provided in the education law,
moneys paid out by him for damages arising from dogs killing or in-
juring sheep as provided in article seven of the county law, moneys in
his hands paid out by him for the relief of the poor, and all other town
moneys paid out by him for defraying town charges, except moneys ex-
pended under the highway law. But no such fees shall be allowed or
paid upon moneys paid over by him to his successor in office. Such
fees shall be in full compensation for all services rendered by him in
354b : TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, § 85.

respect to moneys received and paid out by him as such supervisor as
provided by law except the compensation provided in section one hun-
dred and ten of the highway law.

k. The constables hereafter elected in any town of a county containing
two hundred thousand inhabitants or less, according to the last federal
census or state enumeration, adjoining a city of the first class containing
a population of over one million, shall receive annual salaries to be fixed
by the town board at not exceeding two thousand dollars each. The
salaries of the constables in anv such town shall be uniform. Such
salaries shall be determined before the first biennial town meeting here-
after held, but may be diminished or increased, within such limitations,
by the town board from time to time, with respect to constables to be
thereafter elected. The town board may provide for the payment of
such salary in either monthly or quarterly installments. The con-
stables hereafter elected in any such town shall not receive to their
own use any other compensation for their services, but shall be allowed
their actual and necessary expenses incurred in the performance of
their duties. The accounts for such expenses shall be audited and paid
by the town board monthly. All fees or charges payable by law to con-
stables of any such towns for any services in their official capacity shall
be collected by such constables, but shall belong to the town, and the
amount collected shall be paid over, on or before the fifth day of each
month, to the supervisor. [Subd. added by L. 1917, ch. 44, and
amended by L. 1920, ch. 328. ]

1. The town board of any town in a county containing a town having
a population of sixty thousand or over according to the last federal
census or state enumeration, adjoining a city of the first class contain-
ing a population of over one million, may by resolution fix the com-
pensation of all town officers except the compensation of the members
of such town board, notwithstanding the provisions of any other sub-
division of this section. The compensation of the members of any such
town board shall continue as now provided by law. Such compensation
may be diminished or increased by such town board from time to time,
with respect to officers elected or appointed, except that all town officers
of the same class or title shall receive the same compensation. Such
town board may provide for the payment of such compensation in either
monthly or quarterly installments. [Subd. 1, added by L. 1918, ch.
128, and amended by L. 1920, ch. 15.]

1. The town board of any town in a county having a population of
more than three hundred thousand according to the last federal or state
COMPENSATION OF TOWN OFFICERS. 355
Town Law, § 85.

census, or enumeration, adjoining a city of the first class having a popu-
lation of one million and upwards, may determine by resolution that
the overseer of the poor, or overseers of the poor, elected or appointed,
shall receive an annual salary to be fixed by such resolution; provided,
however, such annual salary of such overseer of the poor, or of each of
said overscers of the poor, shall not exceed one thousand dollars in such
a town having a population of less than seventy-five hundred, and shall
not exceed one thousand five hundred dollars in such a town having a
populaticn of seventy-five hundred or over; except, however, in such a
town having a population of twenty thousand or over and an assessed
valuation of forty million or over and having but one such overseer of
the poor such annual salary may be fixed at not to exceed three thousand
doliars, and furthcr that when such a salary has been so fixed as herein
provided, it shall be in lieu of any other or different compensation or
method of compensation notwithstanding any general or special law.
[Subd. ] added by L. 1918, ch. 359.]

1. The town board of any town having a population of twelve thou-
sand or more, in a county of less than five hundred thousand, according
to the last federal or state census or enumeration, and an assessed valu-
ation of twelve million dollars or more, may, by resolution, fix the com-
pensation of the town clerk at an annual salary, to be prescribed by the
resolution and payable in stated installments. [Subd. 1, added by L.
1918, ch. 360, and amended by L. 1920, chs. 145, 655.]

I. Town clerks in any town in Erie county shall receive compensa-
tion at the rate of three dollars per day each. [Subd. 1, added by L.
1918, ch. 387]

m. The town board of any town in a county having a population of
more than three hundred thousand according to the last; federal or state
census or enumeration, adjoining a city of the first class having a popu-
lation of one million and upwards, may determine by resolution that
the town superintendent of highways shall receive an annual salary to
be fixed by such resolution not to exceed twenty-five hundred dollars
per year. [Subd. m, added by L. 1919, ch. 152.]

m. In the town of Huntington, in the county of Suffolk, the super-
visor hereafter elected or appointed shall receive from the town, in lieu
of per diem or other compensation, fees or percentages for services
rendered to the town, an annual salary of three thousand dollars and the
town clerk hereafter elected or appointed shall receive in lieu of per
diem or other compensation, fees and percentages for any services for
the town an annual salary of two thousand five hundred dollars. The
356 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 85.

justices of the peace hereafter elected or appointed shall each receive, in
lieu of charges against the town in criminal actions, an annual salary of
one thousand dollars. In such town, the following officers hereafter elected
or appointed shall receive the following annual salaries in lieu of per diem
compensation or fees: Superintendent of highways, two thousand dollars;
deputy superintendent of highways, twelve hundred dollars; each assessor,
twelve hundred dollars; receiver of taxes, twenty-five hundred dollars and
an allowance of one thousand dollars for clerk hire; each overseer of the
poor, one thousand dollars; each auditor, six hundred dollars. The amount
of a salary fixed by this subdivision shall be a town charge, payable monthly
by the supervisor of such town out of any money in his hands applicable
thereto, and receipts therefor shall be presented by the supervisor to the
board of town auditors and shall, if found to be correct, be audited and
allowed at the amount thereof. The fees and percentages collected by a
receiver, hereafter elected or appointed, for collecting taxes, shall belong
to the town. The fees which the town clerk hereafter elected or appointed
shall charge and collect, by authority of law, from any person, persons or
corporation, for his services, shall also belong to the town; and such clerk
shall keep an account of all such fees and pay over to the supervisor on or
before the fifth day of each month all fees collected during the preceding
month; and his books of account containing a record of such fees shall be
open to public inspection. [Subd. m, added by L. 1919, ch. 451.]

n. The town board of a town having a population of twenty thousand or over,
and an assessed valuation of forty millions or over, in a county having a population
of more than three hundred thousand according to the last federal or state census,
or enumeration, adjoining a city of the first class having a population of one million
and upwards, may determine by resolution that the town superintendent of highways
shall receive an annual salary to be fixed by such resolution; provided, however,
such annual salary of the said town superintendent of highways shall not exceed
three thousand dollars. [Subd. n, as added by L. 1918, ch. 117.]

o. Notwithstanding the provisions of any other subdivision of this section, a town
board of any town in the county of Washington may, by a resolution duly adopted,
provide that the assessors and overseers of the poor of the town shall receive annual
salaries in amounts to be fixed by the town board. The annual salary of such
assessors shall not exceed the sum of two hundred and fifty dollars, and such
overseer of the poor, the sum of six hundred dollars, Each assessor shall receive
the same compensation. The amount of the salaries fixed by this subdivision shall
be a town charge and in excess of any charges for services or expenses of the assessors
and overseer of the poor which may be a county charge. [Town Law § 85, subd. 1,
paragraph o, as added by L. 1922, ch. 111; section amended by L. 1909, ch. 491, L.
1915, chs, 73 and 452, L. 1916, chs. 93 and 554, L. 1917, chs, 17, 572, L. 1918, chs.
117, 128, 359, 360, 387, L, 1920, ch. 15, and L, 1922, ch. 111.]

2. If a different rate is not otherwise established as herein provided,
each inspector of election, ballot clerk and poll clerk is entitled to three
dollars per day; but the town board may establish in its town a higher
rate, not exceeding ten dollars per day for election day and primary
days, and not exceeding six dollars per day for other services. The
term ‘election day’ includes and means the time spent in polling and
COMPENSATION OF TOWN OFFICERS. 356a
Town Law, § 87.

canvassing the vote and performing all the duties required by law in
connection with receiving and canvassing the vote and certifying the
result of the election. The term “ primary day” includes and means
the time spent in polling and canvassing the vote and performing all
the duties required by law in connection with receiving and canvassing
the primary vote and certifying the result of the primary election.?
[Subd. 2, as amended by L. 1916, ch. 93, L. 1919, ch. 449, and L.
1920, ch, 30.]

4. A constable is entitled, for attending a sitting of a court of record
pursuant to a notice from the sheriff, to a fee for each day’s actual at-
tendance in any county in the state, to be fixed by the board of super-
visors thereof, and mileage as allowed by law to trial jurors in courts
of record and in any county where the court or grand jury holds evening
or night sessions, the board of supervisors may provide for additional
compensation to be allowed to each constable for each evening or night
session actually attended by him. Such fees must be paid by the
county treasurer upon the production of the certificate of the clerk
stating the number of days and evenings that the constable attended. If
a constable attending a sitting of a court of record pursuant to a notice
from the sheriff is unable to reach his home upon the day he is ex-
cused from attendanée, he shall be entitled to compensation for an ad-
ditional day, and the clerk shall certify accordingly upon satisfactory
proof of such fact by affidavit. The provisions of this section shall not
be applicable to the counties of Kings, New York and Erie. [Town
Law, § 85, subd. 4, as added by L. 1920, ch. 927, in effect April 15,
1921; former Code Civ. Proc., § 3312, as to constables, without change

of substance. |
§ 2. PER DIEM ALLOWANCES OF TOWN OFFICERS.

No town officer shall be allowed any per diem compensation for his
services unless expressly provided by law. [Town Law, § 87; B.C. &

G. Cons. L., p. 6163. ]

 

2. Pay of election officers, Although town election officers have worked from
about half-past five in the morning until nearly midnight on the day of a general
election, they are only entitled to one day’s pay, as the statute, fixing the number
of hours which shall constitute a day‘s work, has no application to such officers.
People ex rel. Kleet v. Town Board, 27 Mise. 470; 59 N. Y. Supp. 234.

CORRECTION
For BENDER’S MANUAL, 11th Edition, 1922, (Page 356).

The following six lines were omitted from the bottom o
page 356. Kindly paste this slip in the vacant space at a
bottom of that page.
356b TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, §§ 87a, 86, 90.
§ 2a. PAYMENT OF SALARIES MONTHLY.

If, by or in pursuance of law, a town officer is entitled to receive an
annual salary, the supervisor of such town may, notwithstanding the
provisions of any such law as to the time for payment of such salary, or
the audit or allowance thereof, pay to such officer monthly the propor-
tion of such salary to which he shail be entitled out of any moneys of
the town in his hands not needed for other purposes, and receipts
therefor shall be presented by the supervisor to the board of town aud-
itors, if any, and otherwise to the town board, which receipts if found
to be correct shall be audited and allowed at the amount thereof. [Town
Law, § 87a, as added by L. 1915, ch. 12.]

§ 3. COMPENSATION OF TOWN CLERKS IN CERTAIN TOWNS.

The town clerk of each town containing a population of twenty thou-
sand or upwards, except the counties of Kings and Richmond, shall be
entitled to receive the same compensation for attending all meetings of
town boards in his town as each other member of such board in addition
to all compensation, salary and fees to which he is now entitled by law
for the performance of all the other duties of said office? [Town Law,
§ 86; B. C. & G. Cons. L., p. 6163.]

§ 4. EXPENDITURES OF SURPLUS MONEYS BY CERTAIN TOWN OFFICERS.

The supervisor, town clerk and justices of the peace, or a majority
thereof in any town in this state, may expend any surplus moneys for
which no provisions for expenditure is made, belonging to said town,
for the purposes of redemption of outstanding bonds or for improve-
ments in said town. If not so used, the town board shall apply such
surplus in reduction of taxation in the manner provided in section one
hundred and thirty-three of this act. [Town Law, § 90, as amended by
L. 1918, ch. 73; B. C. & G. Cons. L., p. 6164. ]

3. Additional compensation cannct be awarded to the town clerk for attending
meetings of the boards of assessors, auditors and highway commissioners; nor to the
supervisor for attending meetings of the town board; nor to the assessors for mak-
ing up jury lists in conjunction with the supervisor and town clerk. Wilson v.
Bleloch, 125 App. Div. 191, 109 N. Y. Supp. 340.

4, Application, Money received by a town for damages to certain highway and
water rights is surplus money witlin the meaning of this section, and may be ex-
pended for the improvement of highways. McConnell v. Allen, 193 N. Y. 318, 322,
revg. 126 App. Div. 548, 105 N. Y. Supp. 16.

Moneys received by a town from the state as refunds of state taxes on railroads
for the construction of which the town had issued so-called “railroad aid bonds,”
the indebtedness of the town incurred for the purpose of encouraging and aiding
the construction of the railroad having been entirely paid, belong to the town
and constitute a surplus in its funds and may lawfully be used in reduction of
* taxation by the town board, although there is no express statutory authority there-
for. Opinion of State Comptroller (1916), 10 State Dept. Rep. 534,

 
COMPENSATION OF TOWN OFFICERS, 357
Town Law, §§ 108, 121, 121-a.

§ 5. POWERS AND DUTIES OF ASSESSORS IN CERTAIN TOWNS OF NASSAU
AND ERIE COUNTIES.

The assessors of Nassau county in the towns having a population, as
appears by the last federal census, of seventeen thousand or more, may
in their discretion employ two clerks at salaries to be fixed by them, sub-
ject to the approval of the town clerk and supervisor, also additional
clerk hire at a sum not to exceed annually a sum approved by the town
clerk and supervisor, and the assessors of Erie county, in the town con-
tinguous to the city of Buffalo, may employ one clerk, to be approved by
the town board, at a salary to be fixed by said town board, and the
salaries of said clerks shall be paid by the supervisor of the town in
equal quarterly payments, and shall be a town charge and shall be
levied and collected in the same manner as other town charges. The as-
sessors of Nassau county in the towns having a population, as appears
by the last federal census, of seventeen thousand, or more, shall devote
all their time during business hours to their official duties. They shall
keep their office open for the convenience of the public every week day
of the year, except public holidays and Saturdays, from nine o’clock in
the morning till four o’clock in the afternoon, and on Saturdays from
nine o’clock in the morning until one o’clock in the afternoon, and shall
cause one of their number or the clerk of the board to be in attendance
during said office hours. Between the first day of September in each
year, and the first day of July in the year next following, the assessors
shall proceed to ascertain by diligent inquiry the names of all taxable
inhabitants in-their respective towns and also all the taxable property,
real or personal, within the same. [Town Law, § 108, as amended by
L. 1914, ch. 157; B. C. & G. Cons. L., p. 6173.]

§ 6 FENCE VIEWERS,

The assessors and town superintendent of highways elected in every town
shall, by virtue of their offices, be fence viewers of their town. [Town Law,
§ 121, as amended by L. 1909, ch. 491.]

§7. PEACE OFFICERS IN TOWNS OF COUNTIES ADJOIN-
ING CITIES OF THE FIRST CLASS AND IN TOWNS
IN A COUNTY CONTAINING A CITY OF THE FIRST
CLASS.

The town board of any town within a county adjoining a city of the
first class and the town board in any town in any county containing a city
of the first class may, upon the petition of twenty-five taxpayers of the
town, annually raise by taxation a sum of money not to exceed one-tenth
of one per centum of the assessed valuation of the taxable property of the
town for the purpose of defraying the expenses necessary for the pre-
servation of the public peace of the town; except that the town board of
357a TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, § 91.

any town within a county having a population of more than three hun-
dred thousand according to the last federal or state census or enumera-
tion, and adjoining a city of the first class having a population of one
million and upwards, may, upon such a petition, annually raise by tax-
ation a sum of money not to exceed one-fifth of one per centum of tha
assessed valuation of the taxable property of such town, for said pur-
poses, provided, however, that in such a county the board of super-
visors of said county may upon the application of the town board of
such a town in said county designate what part or portion of said town
shall be liable to such taxation, and the assessed valuation of said part
or portion so designated shall be used in determining the amount of
money which said town can raise for such purposes and the sum neces-
sary to be raised for such purposes shall be levied and collected in the
same manner as other town taxes or charges from said part or portion
of said town so designated. The town board of any such town may
thereafter annually appoint for a term not extending beyond the cur-
rent official year competent persons who shall be termed peace officers
for such town, and who shall have all the powers and be subject to all the
duties and liabilities of a constable of such town in all criminal ac-
tions and proceedings and special proceedings of a criminal nature. The
compensation for the services of such peace officers shall be fixcd by said
town board at a yearly salary and shall be paid by such board in equal
monthly payments, and bills for expenses and equipments of such
officers shall be audited and paid by said town board monthly. The
town board may dispense with the services of any or all persons who
may be appointed hereunder whenever said board shall deem that their
services are unnecessary. No person shall be appointed as a peace
officer under this section who is not a citizen of the United States or
who has ever been convicted of a crime or who cannot understand

English, or read and write the English language. [Town Law, § 121-a;
formerly § 122, as added by L, 1909, ch. 147; renumbered § 121-a by L.
1919, ch. 48, and amended by L. 1922,'ch. 21.]

§ 8. DELIVERY OF BOOKS AND PAPERS BY OUTGOING SUPERVISOR.
TOWN CLERK, SUPERINTENDENT OF HIGHWAYS OR OVERSEER OF

THE POOR, TO SUCCESSOR.

Whenever the term of office of any supervisor, town clerk, superin-
tendent of highways or overseer of the pcor shall expire, or when
either of such officers shall resign, and another person shall be elected
or appointed to the office, the succeeding officer shall, immediately after
he shall have entered on the duties of his office, demand of his pre-
decessor all the records, books, and papers under his control belonging to
COMPENSATION OF TOWN OFFICERS. 387b
Town Law, § 125.

such office. Every person so going out of office, whenever so required,
shall deliver upon oath to his successor all the records, books and papers
in his possession or under his control belonging to the office held by him,
which oath may be administered by the officer to whom such delivery
shall be made, and shall, at the same time pay over to his successor the
moneys belonging to the town remaining in his hands. If any such
officer shall have died, the successors or successor of such officer shall
make such demand of the executors or administrators of such deceased
officer, and such executors or administrators shall deliver, upon like
oath, all records, books and papers in their possession, or under their
control, belonging to the office held by their testator or intestate. If
any person so going out of office, or his executors or administrators, shall
refuse or neglect, when lawfully required, to deliver such records, books
or papers, he shall forfeit to the town, for every such refusal or neglect,
the sum of two hundred and fifty dollars; and officers entitled to de-
mand such records, books and papers,may compel the delivery thereof
in the manner prescribed by law. [Town Law, § 91, as amended by L.
1909, ch. 491; B. C. and G. Cons. L., p. 6164.]

§9. POWERS OF SUPERVISORS, AND ASSESSORS IN CER-
TAIN TOWNS TO EMPLOY CLERKS.

In each of the following towns, the supervisor, in his discretion, may
employ a clerk at a salary to be fixed by the town board: each town in the
county of Suffolk; each town, elsewhere, having a population, as appears
by the last federal census, of fifteen thousand or more and where the

 

5, For form of oath of town officers and delivery of books, etc., see Form No. 29.

Proceedings to compel delivery of books. The following section of the Public
Officers’ Law prescribes the procedure for compelling the delivery of books by a
public officer to his successor.

§ 80. A public officer may demand from any person in whose possession they
may be, a delivery to such officer of the books and papers belonging or apper-
taining to such office. If such demand is refused, such officer may make com-
plaint thereof to any justice of the Supreme Court of the district, or to the

county judge of the county in which the person refusing resides. If such justice
or judge be satisfied that such books or papers are withheld, he shall grant an

order directing the person refusing to show cause before him at a time specified
therein, why he should not deliver the same. At such time, or at any time to
which the matter may be adjourned, on proof of the due service of the order,
such justice or judge shall proceed to inquire into the circumstances. If the
person charged with withholding such books or papers makes affidavit before
such justice or judge that he has delivered to the officer all books and papers
in his custody which, within his knowledge, or to his belief, belong or appertain
thereto, such proceedings before such justice or judge shgll cease, and such
person be discharged. If the person complained against shall not make such
oath, and it appears that any such books or papers are withheld by him, such
justice or judge shall commit him to the county jail until he delivers such books
and papers, or is otherwise discharged according to law. On such commitment,
358 TOWXS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 127.

assessed valuation of real estate is over fifteen million dollars, except that
in the county of Wéstchester such clerks may be employed in towns where
the population, as appears by the last federal census, is ten thousand or
more or where the assessed valuation of real estate is over six million dol-
lars. The assessors of each town having a population, as appears by the
last federal census, of fifteen thousand or more and where the assessed
valuation of real estate is over fifteen million dollars, may also, in their
discretion, employ a clerk at a salary to be fixed by the town board of
such town. The assessors in each town of Suffolk county may also, in
their discretion, employ clerks, for the purpose of copying the original
assessment roll and making such copy or review copies thereof as may be
authorized by law, at a salary to be fixed by the town board of such town.
The assessors in each town in Herkimer county, having a population of
five thousand or more and adjoining a city having a population of more
than ninety thousand, as appears by the last federal census, may also, in
their discretion, employ clerks at a salary to be fixed by the town board
of such town. The salaries of said clerks shall be paid by the supervisor
of said town in equal monthly payments and shall be a town charge and
shall be levied and collected in the same manner as other town charges.
[Town Law, § 125, as added by L. 1913, ch. 163, amended by L. 1915, ch.
107. L. 1916, ch, 21, L. 1918, ch. 541, L. 1919, ch. 101, and L, 1922, ch.
893.]

In a town having a population of twelve thousand or more, in a
county of less than five hundred thousand, according to the next preced-

 

such justice or judge, if required by the complainant, shall also issue his warrant
directed to any sheriff or constable, commanding him to search in the day time, the
places designated therein, for such books and papers, and to bring them before such
justice or judge. If any such books and papers are brought before him by virtue of
such warrant, he shall determine whether they appertain to such office, and if so
shall cause them to be delivered to the complainant.

In proceedings under § 2471a of the Code (Public Officers’ Law, § 80) to compel
an officer whose term has expired to deliver to his successor the books, papers, etc.,
appertaining to the office, all that the petitioner is required to establish is his elec-
tion, and that he has duly qualified. Questions as to the validity of the election
may not be determined in such a proceeding. Matter of Bradley, 141 N. Y. 527;
Matter of Foley, 8 Misc. 196, 28 N. Y. Supp. 611, affd. in 86 Hun 621, 33 N. Y. Supp.
1134, affd. 148 N. Y. 675; Matter of Dudley, 33 App. Div. 465, 53 N. Y. Supp. 742;
Matter of Sells, 15 App. Div. 571, 44 N. Y. Supp. 570.

Proceedings to compel delivery of books and papers are applicable as against
officers de facto, only, to cases where the title of the relator to the office is clear.
Matter of Baker, 11 How. Pr. 418.

Mandamus will not lie to compel the delivery of books and papers. People v.
Martin, 62 Barb. 570, 576.

Payment of money. An outgoing commissioner (now superintendent) of high-
ways is bound to account to the town authorities and pay over to his successor in
office all moneys remaining in his hands as such commissioner. Victory v. Blood,
25 Hun 515. And it does not require a demand to convert a rightful possession
mto a wrongful holding, when a public officer, in breach of the demand which the
statute puts upon him, keeps and retains as his own the funds of a town. People
v. Hedges (1918), 184 App. Div. 901, 173 N. Y. Supp. 125.
COMPENSATION OF TOWN OFFICERS. 358a
Town Law, § 142-a.

ing federal or state census or enumeration, and in which the assessed
valuation of real estate is or shall be over twelve million dollars, the
town board may, by resolution, provide from time to time for the ap-
pointment of clerks, stenographers or other assistants for one or more
town officers, in addition to other subordinates for any such officer pro-
vided for by law, and fix their salaries or compensation. A position so
established may be abolished by the town board at any time. The
town board may designate a particular officer or officers whom any such
clerk, stenographer or assistant is to assist and may direct their trans-
fer from one officer to another. Appointments to any such position
shall be made by the town board. The salaries or compensation of any
such clerk, stenographer or assistant shall be paid by the supervisor of
the town in equal monthly payments and shall be a town charge and
levied and collected in the same manner as other town charges. [Town
Law, § 127, as added by L. 1916, ch. 157, and amended by L. 1920,
ch. 262. ]

§ 10. TOWN PHYSICIAN; APPOINTMENT BY TOWN BOARD IN TOWN IN
WHICH NO PHYSICIAN RESIDES.

The town board of any town containing a village or hamlet in which
there is not a practicing physician may at a special meeting called for
that purpose, establish the office of town physician and fix the salary of
such physician and appoint to the office so created a duly qualified phy-
sician upon condition that he shall reside in such village or hamlet, or
may combine with an adjoining town in the-employment of such phy-
sician who shall reside in either of the towns so combined. The com-
pensation of such town physician shall be a town charge and the sum
necessary to pay the same shall be levied, collected and paid at the
time and in the manner that other charges against the town are levied,
collected and paid. It shall be the duty of a town physician so appointed
to render to all poor persons within the town medical relief and attend-
ance when requested so to do by the superintendent of the poor of the
county in which the town is situated, or the supervisor of the town
or an overseer of the ‘poor of the town. If such town physician is also
a local health officer he shall receive in addition the compensation of

such officer as provided by law. [Town Law, § 141-b, added by L. 1916, ch.
413, amended by L. 1920, ch. 202, and renumbered by L. 1921, ch. 216.]
358b TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, §§ 142, 143.

CHAPTER XXV-A.

TRANSACTIONS OF TOWN BUSINESS IN CERTAIN TOWNS ADOPTING PRO-
VISIONS OF ARTICLE VI-A OF TOWN LAW.

Section 1. Application.

2. Resolution of town board.

3. Fiscal year, departmental estimates.

4, Annual estimate.

5. Public hearing.

6. Annual appropriations.

7. Tax budget.

8. Temporary loans,

9. Contracts and expenditures prohibited.

10. Penalties for violation of preceding section

11. Duties of supervisor.

12. Claims against town.

13. Saving clause.

§1. APPLICATION OF PROVISIONS OF ARTICLE VI-A OF TOWN LAW.

This article shall apply to any town having more than five thousand
inhabitants in which the assessed valuation of taxable property exceeds five
million dollars and which by resolution of the town board, hereafter
adopted, shall elect to make its provisions applicable to such town. In
Suffolk and Livingston counties any town may by resolution of the town
board elect to make the provisions of this article applicable to such town.
[Town Law, § 142, as added by L. 1916, ch.-396, and amended by L. 1920,
ch. 650, and L. 1921, ch. 216.]

§2. RESOLUTION OF TOWN BOARD.

The town board of any such town at a special meeting called for that
purpose by any of its members upon at least ten days’ written notice of
the time and place of holding the meeting and the purpose or object thereof
served personally upon the other members of the board, may, by an affirm-
ative vote of two-thirds of all the members of the board, elect to make this
article applicable to such town. There shall be filed with the town clerk
and incorporated in the minutes of meetings of the town board a copy of
such notice, with proof of service thereof, upon each member of the board,
and a copy of the resolution of the board showing the names of each mem-
ber of the board present and voting, the number of votes cast for and
against the resolution and the names of the members voting for and against
it.
TOWN BUSINESS IN CERTAIN TOWNS. 358e

Town Law, §§ 144, 145.

Upon the adoption of such resolution, the town clerk shall imme
diately make and certify copies of the resolution and of the record of its
adoption and file the same as follows: One copy in the office of the
county clerk of the county in which the town is situated; one copy with
the clerk of the board of supervisors of the county in which the town is
situated, which copy shall be reported by said clerk to the board of
supervisors and published in its proceedings; and one copy in the office
of the state comptroller. [Town Law, § 143, as added by L. 1916, ch.
396, in effect May 2, 1916.]

§ 3. FISCAL YEAR; DEPARTMENTAL ESTIMATES.

The fiscal year of each such town shall hereafter commence and end
on the days which may be now or hereafter prescribed by law for such
town. All officers, boards and commissioners of such town shall annu-
ally, at least forty days and not more than sixty days immediately pre-
ceding the date of the meeting of the board of supervisors at which taxes
are levied in the county in which the town is situated, make and file
with the town clerk of the town estimates in writing of the amount of
expenditures for the next fiscal year in their respective offices, bureaus
and departments, including a statement of their salaries and the salaries
of all their subordinates, which estimates the town clerk shall lay before
the town. board at a meeting called for that purpose by him not less
than twenty-five and not more than forty days preceding the date of
such meeting of the board of supervisors in the county. The town clerk
shall enter all such estimates in the minutes of the proceedings of the
town board. [Town Law, § 144, as added by L. 1916, ch. 396, in effect
May 2, 1916.]

§ 4. ANNUAL ESTIMATES.

The town board of the town shall, at least ten and not more than forty
days prior to the date of the meeting of the board of supervisors at
which taxes are levied in the county in which the town is situated,
make an itemized statement in writing of the estimated revenues and
expenditures of the town for the fiscal year for which estimates were
filed with the town clerk, which shall be known as its annual estimate.
The estimate of revenues shall contain an estimate of the probable
revenues which in the judgment of the town board will be received by
the town during the fiscal year, except from general taxes, less the
amount required to be deposited to the credit of the sinking fund, iZ
358d TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 146.

any; a statement of the amount of the sinking fund which in the judg-
ment of the town board is available and should be applied to pay the
principal of any bonded indebtedness of the town falling due during
the said fiscal year; and a statement of all unexpended balances or
estimated unexpended balances of the previous or current fiscal year
remaining to the credit of the town or of any office, board or depart-
ment thereof. The estimate of expenditures shall contain an estimate
of the several amounts of money which the town board deems necessary
to provide for the expenses of conducting the business of the town in
each board, department and office thereof, separately stated, and for
other purposes contemplated by this chapter and otherwise by law for
the said fiscal year; to pay the principal and interest of any bonded
or other indebtedness of the town falling due during the said fiscal
year; and the amount of any judgment recovered against the town and
payable during the said fiscal year. And there shall be included in the
first annual estimate compiled after the provisions of this article shall
be made applicable to a town, a sum or sums sufficient to pay all accounts,
claims and demands against the town audited by the town board or
board of town auditors or otherwise payable by the town for the fiscal
year in which such resolution is adopted. After said annual estimate
shall have been completed, it shall be entered in full upon the minutes

of the town board. [Town Law, § 145, as added by L. 1916, ch. 396,
in effect May 2, 1916. ]

§ 5. PUBLIC HEARING OF PROPOSED EXPENDITURES.

Immediately after the annual estimate has been completed, the town
board shall give notice of a public hearing at which any person favoring
or objecting to said estimate or any part or item thereof will be heard.
Such hearing shall be given upon ten days’ notice. The notice shall
specify the time and place where the hearing is to be held and the pur-
pose thereof and it shall be stated therein that the annual estimate has
been compiled by the town board and is on file in the office of the town
clerk where any person interested therein may examine the same.
Copies of such notice shall be posted in six conspicuous publie places
in the town, and published twice in not more than four newspapers
published, having general circulation within the town, if the town board
shall so determine, such posting and first publication to be at least ten
davs before the date of such public hearing. At the time and place in
such notice mentioned, the town board shall convene and review the
said estimate. At such hearing, taxpavers mav be heard in favor or
TOWN BUSINESS IN CERTAIN TOWNS. 3580

Town Law, § 147.

against the estimate as compiled or for or against any item therein con-
tained. After such hearing and within ten days, the town board shall
adopt such estimate as so originally compiled or shall diminish or
reject any items therein contained and adopt said estimate as so
amended. It shall have the power to diminish or reject any item con-
tained in the estimate as originally compiled except those relating to
salaries, the indebtedness of the town or the estimated revenues, but it
shall not have the power to increase any estimated appropriation for
expenditures except the estimate for highways which the board may
increase or reduce any of the items contained therein as prescribed by
section ninety-one of the highway law. Thereupon, the estimate, as
adopted shall be entered in detail in the minutes of the proceedings of
the town board. [Town Law, § 146, as added by L. 1916, ch. 396, in
effect May 2, 1916.]

§ 6. ANNUAL APPROPRIATIONS.

When the town board shall have adopted the annual estimate origin-
ally compiled by it or said estimate as amended, after public hearing,
the several sums estimated for expenditures therein shall be and become
appropriated in the amounts and for the.several departments, offices
and purposes therein specified for the said fiscal year. The several
sums therein enumerated as estimated revenues and the moneys neces-
sary to be raised by tax in addition thereto, to pay the expenses of con-
ducting the business of the town and for the purposes contemplated by
this chapter and otherwise by law, shall be and become applicable in the
amount therein named for the purpose of meeting said appropriations.
In case the revenues received by the town exceed the amount of such
estimated revenues named in said annual estimate, or in case thero
remain any unexpended balances of appropriations made for the sup-
port of the town government or for any other purpose, then such surplus
revenues or such unexpended balances, or both, shall, except as other-
wise provided by law, remain upon deposit and be included as a part
of the estimated revenues for the succeeding year, except that the town
board may by a vote of two-thirds of its members at a regular or special
meeting regularly convened, determine to apply such surplus revenues
or unexpended balances, excepting those of the highway fund, toward
and in addition to the funds appropriated as aforesaid and in such
manner as in the judgment of two-thirds of the members of the town
board may be most beneficial to the town. [Town Law, § 147, as added
by L. 1916, ch. 396, in effect May 2, 1916.]
358f TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, §§ 148-149-a.

§ 7. TAX BUDGET.

The amount of estimated expenditures contained in the annual
estimate adopted by the town board less the amount of estimated
revenues applicable to the payment thereof and the amount of all judg-
ments payable prior to the tax levy, shall constitute the tax budget.
The town clerk shall make and certify in duplicate, a transcript of the
minutes of the proceedings of the town, board upon the adoption of the
estimate, including the estimate in detail, and shall deliver one copy
thereof to the supervisor of the town to be by him laid before the board
of supervisors for the purpose of levying the annual tax and trans-
mitting the other copy thereof to the clerk of the board of supervisors
of the county, who shall cause the same to be printed in the proceedings
of the board of supervisors. The board of supervisors of the county in
which the town is situated shall levy and cause to be raised the amount
specified in said annual estimate to be levied by tax, and the amount
shall be levied, assessed and raised by tax upon the real and personal
property liable to taxation in the town at the time and in the manner
provided by law. [Town Law, § 148, as added by L. 1916, ch. 396, in
effect May 2, 1916.]

§ 8. TEMPORARY LOANS.

In the interval, after the adoption of said annual estimate and the
ccmmencement of the fiscal year but before the revenues are received,
the town board shall have the power to borrow money for any of the
purposes for which funds are appropriated within the amounts appro-
priated therefor for the fiscal year in anticipation of the receipt of the
said taxes and revenues applicable to such purposes. The town board
‘may provide for the issue of certificates of indebtedness or revenue
bonds to be signed by the supervisor and countersigned by the town
clerk for such purposes. Such certificates or bonds, together with the
interest thereon to date of maturity, shall be paid out of the moneys
received on account of taxes and revenues applicable to such purposes
and shall in no case be made to run for more than sixteen months.
[ Town Law, § 149, as added by L. 1916, ch. 396, in effect May 2, 1916.]

§ 9. CONTRACTS AND EXPENDITURES PROHIBITED; PENALTIES.
No cfficer, board or department shall during any fiscal year expend
or contract to be expended any money or incur any liability or enter
into any contract which by its terms involves the expenditure of money
for any purpose, unless provisions therefor shall have been made in
TOWN BUSINESS IN CERTAIN TOWNS. 358g

Town Law, §§ 149-b, 149-e.

the annual estimate or pursuant to section one hundred and forty-seven
of this chapter, and in no case in excess of the amounts appropriated
in said estimate as adopted by the town board or pursuant to section
one hundred and forty-seven aforesaid for such officer, board, depart-
ment or purpose for such fiscal year. Any contract, verbal or written,
made in violation of this section, shall be null and void as to the town.
and no money belonging to the town shall be paid thereon, provided,
however, that nothing herein contained shall prevent the making of
contracts for special district purposes as may now or hereafter be pro-
vided by law for periods exceeding one year, nor be held to prohibit the
proper officers of the town from expending such sums or incurring such
debts as may be actually necessary to prevent the spread of or to sup-
press any contagious or infectious diseases or any epidemic in the town,
in addition to the amount appropriated for such purpose. [Town Law,
§ 149-a, as added by L. 1916, ch. 396, in effect May 2, 1916.]

Any officer or member of any board or department of any such town
wilfully violating any of the provisions of the preceding section shall
be guilty of a misdemeanor. [Town Law, § 149-b, as added by L. 1916,
ch, 396, in effect May 2, 1916.]

§ 10. DUTIES OF SUPERVISOR.

The supervisor of any such town shall demand, collect, receive and
have the care and custody of, and shall disburse all moneys belonging to
or due the town from every source, except as otherwise provided by law.
All moneys of the town received by the supervisor shall be deposited by
him in such bank, banks or trust companies as shall be designated by the
town board for such purpose. The interest on all deposits shall be the
property of the town and sha!l be accounted for and credited to the
proper fund. No money shall be drawn from a town depositary except
on checks or drafts signed by the supervisor and made payable to the
person entitled to receive the same. In addition to the several fund
accounts required to be kept, the supervisor shall keep in his records a
separate account with every appropriation for which funds are appro-
priated or raised by tax, and in every check or draft drawn by him he
shall state particularly against which fund it is drawn and the appro-
priate amount chargeable therewith. He shall at no time permit any
fund or any appropriation account to be overdrawn nor draw upon one
fund or appropriation acesirt to pay a claim chareeab’e to another.
358h TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 149-d.

No money shall be paid out by him except upon the warrant, order or
draft of the town board, or of the board of town auditors if there be
such board in the town, except payments out of the town highway fund,
shall be made by the supervisor upon the order of the town superin-
tendent of highways, and that the supervisor may pay the principal and
interest of funded debts and temporary loans, lawfully issued, without
prior audit. The supervisor shall render to the town board at the end
of each month a detailed statement of all money received and paid out
by him for such month, and file a copy thereof in the office of the town
elerk and with the board of town auditors if the town has such a board.
[Town Law, § 149-e, as added by L. 1916, ch, 396, in effect May 2,
1916.]

g 11. CLAIMS AGAINST TOWN.

No claim against the town, except for a fixed salary, for the principal
or interest on a bonded or funded debt or other loan or for the regular
or stated compensation of officers or employees of the town, shall be paid
unless an itemized claim therefor, verified by or on behalf of the claim-
ant, in such form as the town board or board of town auditors shall pre-
scribe, and approved by the officer whose action gave rise or origin to
the claim, shall have been presented to the town board, or board of town
auditors if one exists in the town, and shall have been audited and
allowed by it except the form of claim for highway purposes shall be
prescribed by the state highway commission and paid as provided by
sections one hundred and five and one hundred and six of the highway
law. If there be a board of town auditors in such town, the town clerk
shall be and act as clerk of that board. He shall cause each claim pre-
sented to the town board or to the board of town auditors for audit to
be numbered consecutively, and the number, date of presentation, name
of claimant and a brief statement of the charaeter of each claim to be
entered in a book kept for such purpose, which shall at all times during
office hours be so placed as to be convenient for and open to public in-
spection. No claim shall be audited or paid by the town board or board
of town auditors until five days have elapsed after its presentation to the
town clerk, and the town board or board of town auditors shall not be
required to audit any claim until thirty days after the expiration of
such period of five days. The town board or board of town auditors is
authorized in considering a claim to require any person presenting the
same for audit to be sworn before it or any member thereof, relative
TOWN BUSINESS IN CERTAIN TOWNS. S5S8i

Town Law, § 149-e.

to the justness and accuracy of such claim, and to take evidence and
examine the witnesses in refererice to the claim, and for that purpose
subpoenas for the attendance of witnesses may be issued by said board,
except as otherwise provided by law. When a claim has been finally
audited by the town board the town clerk or if the audit be made by the
board of town auditors the chairman of said board or the town clerk shall
endorse thereon or attach thereto a certificate of such audit and the same
shall thereupon be filed in and remain a public record in the town clerk’s
office. Tho town clerk shall also prepare a warrant, order, draft or
certificate of audit to be signed by a majority of the members of the
town board or the board of town auditors and to be countersigned by
him stating the fact of such audit, the number of the claim, the name
of the claimant, the amount allowed and the fund and appropriation
account chargeable therewith and such other information as may be
deemed necessary or essential, directed to the supervisor of the town,
authorizing and directing him to pay to the claimant the amount al-
lowed upon his claim. No fund and no appropriation account shall be
overdrawn nor shall any warrant be drawn against one fund or appro-
priation account to pay a claim chargeable to another fund or appro-
priation account. It shall be the duty of the town clerk to keep a
separate account with each appropriation for expenditure for which
funds are appropriated or raised by tax, in such manner as the town
board or board of town auditors and the comptroller of the state of New
York may direct and determine.

For all his services rendered to or for the town, under or pursuant to
the terms of this chapter, the town clerk shall receive an annual salary
to be fixed by the town board of the town in lieu of all other compensa-
tion or fees which may now or hereafter be provided by law to be paid
by the town for such services. [Town Law, § 149-d, as added by L.
1916, ch. 396, in effect May 2, 1916.]

§ 13. SAVING CLAUSE.

Nothing contained in this article shall be construed to alter or
change the method or plan of determining the sum to be levied upon
the special water, light, sewer, fire and other special districts, if any,
nor the method of certifying such sums for the purpose of causing
amounts to be inserted in the annual tax levy. All matter pertaining
to the finances of such special districts shall be handled and trans-
aeted in the marner which may now or hereafter be provided by law.
358] TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, § 149-e.

The provisions of the state highway law shall be carried out with the
same force and effect irrespective of anything mentioned in this article.
Nothing contained in this article shall be construed to repeal any
statute of the state or lawful resolution of the board of supervisors of
the county in which the town is situated, or of the town board, or rule
or regulation of the board of health of the town, not inconsistent with
the provisions of this article, and the same shall remain in full force
and effect, when not inconsistent with the provisions of this article, to
be construed and operated in harmony with its provisions. [Town
Law, § 149-e, as added by L. 1916, ch. 396, in effect May 2, 1916.]
TOWN HOUSES, LOCK-UrS. AND TOWN CEMETERIES. 359

Town Law, § 340.

CHAPTER XXVI.

TOWN HOUSES; LOCK-UPS; TOWN CEMETERIES ; POUNDS, ETC.

SrcTion.1. Town meeting may vote sums of money for town house.

2. Purchase of site for and erection of town house.

3, Erection ‘of lock-ups; town board may select temporary lock-up; use
of lock-up.

4, Town burial grounds; trustees may be elected; powers of trustees.

5. Trustees to lay out grounds; free lots; sale of lots.

6. Burial grounds; when to belong to town.

6a. Transfer of burial grounds to cemetery corporation.

7. Burial grounds in district annexed to city, village or another town.

8. Town board may purchase soldiers’ burial plot; care of plot a town
charge; proceedings to obtain removal of soldiers’ remains to
soldier’s plot; expense to be audited by town board.

9. Erection and discontinuance of pounds.

10. Election of pound masters; fees; refusal to serve.

11, Gifts to towns.

§ 1. TOWN MEETING MAY VOTE SUMS OF MONEY FOR TOWN
HOUSE.

The electors of any town in which there shall not be a town house, at any
biennial town meeting, or a special town meeting lawfully called by the town
clerk, may vote by ballot any sum of money for the purchase of a site and
the building of a town house, or for the purpose of contributing to the erec-
tion of a building for the joint use of the town and of an incorporated
village within its limits. A special town meeting shall not be called under
this section within one year from the meeting at which a proposition for
the purposes specified herein has been submitted.*

Tf such a sum is not raised by tax in one instalment the town board of

 

1. Effect of section upon special act. in the case of Barker v. Town of
Floyd, 61 App. Div. 92; 69 N. Y. Supp. 1,109, it was held that chapter 360 of the
Laws of 1865, which was a special act authorizing the town of Floyd to erect a
town hall, and to make provision for the payment of the expense thereof, was
passed to provide for the present necessity and was superseded by the above
section of the Town Law which prescribes a uniform rule upon the subject.
The court said: ‘We think it manifest, therefore, that the Town Law was
designed to prescribe a general rule uniform throughout the state with reference
3359 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 340.

such town may borrow the sum necessary to purchase such site and build
such house by the issue of bonds to be signed by the supervisor and attested
by the town clerk. Such bonds shall become due within twenty years from
date of issue, and unless the whole amount of the indebtedness represented
thereby is to be paid within five years from their date, they shall be so
issued as to provide for the payment of the indebtedness in equal annual
installments, the first of which shall be payable not more than five years from.
their date. They shall bear interest at a rate not exceeding five per centum
per annum and shall be sold at not less than their par value. They shall be
sold on sealed proposals or at public auction upon notice published in a
paper printed in the town, if any, also in such other papers as may be
designated by the town board and posted in at least five public places in the
town, at least ten days before the sale, to the person who will take them at
the lowest rate of interest. Such bonds shall be consecutively numbered
from one to the highest number issued, and the town clerk shall keep a
record of the number of each bond, its date, amount, rate of interest, when
and where payable, and the purchaser thereof or person to whom they are
issued. The board of supervisors of the county may cause the sum so voted
or the amount of any bonds issued for such purpose to be collected with the

 

to expending money for the purchase of sites and the erection of town halls, and
that there no longer remains any necessity for the existence of the special act of
1865. 1t is now a well settled rule of statutory construction that a general s:atute
covering the same subject matter and containing new provisions and manifestly
des:gned by tie legislature to embrace the entire law upon the subject, operates to
repeil by imp.ication a former general or special statute, even though the two are
not lepignant.”

biGcuva of building for storing highway machinery must be brought about
un .cr this section, ‘Lue provisions of the Highway Law do not contemplate such an
undertaking. Rept. of Atty. Gen. (1912), Vol. 2, p. 448.

Form of propusition. ‘the above section of the Town Law permits the voting
ty the electors of the town of money for the purchase of a site and the building
ot a town house, and authorizes the voting of money for the erection of a town
house alone, where the town expects a suitable site to be donated. The proposi-
fon submitted to the electors need not include the location of the contemplated
site. People ex rel. Cromwell v. Seaman, 59 App. Div. 76; 69 N. Y. Supp. 55.

‘Special town meetings. Special town meetings for the purpose of voting
upon a proposition for the erec.ion of a town house must be called in accordance
with the provisions of section 46 of the Town Law, ante, that is upon written
application signed by twenty-five taxpayers, addressed to the town clerk.

Notice of a special town meeting must be posted ten days prior thereto in the
manner prescribed by section 47 of the Town Law, ante. A proposition for the
erection of a town hall must be voted upon-by ballot and the notice that such a
proposition is to be so voted upon at a iown meeting must be posted by the town
elerk in the manner provided by section 48 of the Town Law, ante. Such section
48 of the Town Law also requires a written application of the taxpayers demand-
ing a vote upon the proposition and plainly stating its terms,‘to be filed with the
town clerk at least twenty days before the town meeting at which it is to be voted

upen.
TOWN HOUSES, LOCK-UPS AND TOWN CEMETERIES. 361

Town Law, §§ 341, 350.

other expenses of the town.? [Town Law, § 340; B. C. and G. Cons. L.,
p. 6228.]

§ 2. PURCHASE OF SITE FOR AND ERECTION OF TOWN HOUSE.

Sites shall be purchased and houses erected by the town board in the
name of the town, and shall be controlled by the town board; and the
electors may, from time to time, vote such sum of money as may be necessary
to keep any town house in repair and insured, except where the building is
to be erected within the limits of an incorporated village and the town is to
contribute but a part of the expense of erecting the building, in which case
the town board and the board of trustees of the village shall agree upon the
terms and conditions of the use, management, control and repair of the
portion of the town-house for town and village purposes respectively.*
[Town Law, § 341; B. C. and G. Cons. L., p. 6229.]

§ 3. ERECTION OF LOCK-UPS; TOWN BOARD MAY SELECT TEM-
PORARY LOCK-UP; USE OF LOCK-UP.

The electors of each town, upon the application of ten freeholders of the
town, may, by ballot, at their biennial town meeting, direct the erection
of one or more houses of detention, or lock-ups, for the detention of persons
committed by the magistrates thereof, and direct such sums to be raised in

 

2. Issue of bonds. This section contains directions in detail] for the borrowing ci
nioney and the issue of bonds for the payment of the cost of the erection of a town
Louse. The General Municipal Law, sections 5-12, provide generally for the issue
of municipal bonds and will control bonds issued for the erection of town houses
unless the provisions thereof are in conflict with the provisions of the above section.

Qualifications of electors. An elector shall not be entitled to vote upon a propo-
sition submitted for the purposes of section three hundred and forty of this chapter,
unless he or his wife is the owner of property in the town assessed to him or her
upon the last preceding assessment-roll thereof. [Town Law, § 54, as amended
by L. 1913, ch. 124; B. C. & G. Cons. L., p. 6149.]

3. Selection of site. In the case of People ex rel. Cromwell v. Seaman, 59 App.
Div. 76; 69 N. Y. Supp. 55, the court said: “ Section 191 [341] of the statute pro-
vides that: ‘Sites shall be purchased and houses erected by the town board in the
name of the towh, and shall be controlled by the town board.’ While the law is
whclly silent on the express subject of the selection of a site, the authority here
conferred is sufficient to include the choice of a site as a necessary incident to its
purchase, just as the adoption of a plan, including the selection of material, design,
etc., must be deemed to be embraced within the authority given to build the house.”

The selection of a site cannot be delegated by the town board to others. Rept. of
Atty. Genl. (1892), 129.

Control of town house. A supervisor has no independent control or jurisdiction
over a town hall or town house, but as a member of the town board participates in
ue exercise of jurisdiction. Opinion of State Comptroller (1916), 8 State Dept.

ep. 571.

If a town hall is joint village and town property the jurisdiction of the town
board is shared with that of the board of trustees of the village. Opinion of State
Comptroller (1916), 8 State Dept. Rep. 571.
362 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, §§ 351, 352, 330.

their town by tax, for the expense of building, or of maintaining the same
as they may deem necessary.2* [Town Law, § 350; B. C. & G. Cons. L.,
2d Ed., p. 8902.]

In case any town has no house of detention or lock-up, the town board of
such town may lease a house of detention or lock-up, located either in said
town or in an adjoining town, for a term not exceeding five years at a time.
[Town Law, § 351; B, C. and G. Cons. L., p. 6230.]

Such houses of detention, or lock-ups, may be used for the purpose of
temporarily keeping and confining all persons arrested by any constable or
officer in the town prior to trial or examination, or committed by any
magistrate of the town pending trial or examination before such magistrate
or after commitment to a county jail by a magistrate, when immediate
removal to the county jail cannot be made, and only until he can be con-
veniently removed to such jail. [Town Law, § 352; B. C. and G. Cons. L.,
2d Ed., p. 8903.]

§ 4. TOWN BURIAL GROUNDS; TRUSTEES MAY BE ELECTED;
POWERS OF TRUSTEES.

The electors of any town may, at a biennial town meeting, choose three
persons to act as a board of trustees of any burial-grounds within the limits
of and belonging to the town, as such electors may designate, and direct the
supervisor of the town to convey by deed to such board of trustees, and their
successors in office, for the purposes hereinafter mentioned, the lands already
composing such grounds; and also any other lands that may be hereafter
acquired for the purpose of enlarging such grounds. Such trustees shall hold
office for a term of two years. Such boards of trustees and all boards of
trustees heretofore created, pursuant to chapter forty-six of the laws of
eighteen hundred and seventy-three,® are hereby declared to be corporate
bodies, under the name of the board of trustees of the cemetery, for which
they are chosen respectively, capable of suing and being sued as such, and
of taking and holding gifts and bequests of personal property for the care
and improvement of the cemeteries under their charge, or any lot therein.
[Town Law, § 330; B. C. and G. Cons. L., p. 6223.]

 

3a. See People ex rel. Murphy v. Holeomb (1920), 111 Mise. 460, 181 N. Y.
Supp. 780.

4. Use of lock-ups. Town lock-ups can only be used for the purpose of tem-
porarily keeping and confining persons arrested by peace officers prior to trial
or examination. No sentence of « prisoner can be made to the lock-up. As soon
as the prisoner is convicted he must be committed and taken immediately to the
county jail or other penal institution to which he is sentenced.

5. Laws of 1873, ch. 46, referred to in this section was repealed by the Town
Law of 1890, and its provisions were incorporated in the above section and the
section following.
TOWN HOUSES, LOCK-UPS AND TOWN CEMETERIES. 363
Town Law, §§ 331, 332.

§ 5. TRUSTEES TO LAY OUT GROUNDS; FREE LOTS; SALE OF
LOTS.

Such board of trustees shall lay out into burial lots any grounds so con-
veyed to them ; and within one year after the conveyance to them shall cause
to be recorded in the office of the clerk of the county in which they reside a
plot or plots of the ground so laid out by them, which shall clearly indicate
the number and location of the several lots, which plots shall be duly cer-
tified to, under the hands and seals of the chairman and secretary of the
board, and acknowledged before an officer authorized to take proof and ac-
knowledgment of deeds, They shall designate and set aside certain lots
which shall be free for the interment of the remains of indigent persons,
deceased, and shall sell and convey, by direction of a majority of the board,
under the hands and seals ‘of its chairman and secretary, burial lots, at
such terms as may be agreed upon between the parties, and expend the
moneys realized from such sale in improving and preserving the particular
burial ground from the sale of whose lots the moneys were received. All
moneys realized from the sale of burial lots shall, upon the receipt thereof,
be paid over to the supervisor of the town to be retained by him as a
separate fund and paid out only on the order of a majority of such board of
trustees. [Town Law, § 331; B. C. and G. Cons. L., p. 6224.]

§ 6. BURIAL GROUNDS; WHEN TO BELONG TO TOWN.

The title to every lot or piece of land which shall have been used by the in-
habitants of any town in this state as a cemetery or burial ground for the space
of fourteen years shall be deemed to be vested in such town, and shall be subject
in the same manner as other corporate property of towns, to the government and
direction of the electors in town meeting. In any town in which trustees of burial
grounds have not been chosen as provided in sections three hundred and thirty and
three hundred and thirty-one of this chapter, the town board may adopt regulations
for the proper care of any such cemetery and burial ground and regulating the
burial of the dead therein. It shall be the duty of the superintendent of highways
of any such town to remove the grass and weeds from any such a cemetery or burial
ground in any such town at least three times in each year, and to erect and main-
tain suitable fences around such cemetery or burial ground at a cost not to exceed
one hundred dollars unless authorized by a majority vote of such town. The town
board of any town must also provide for the removal of grass and weeds at least
twice in each year from any cemetery or burial ground, by whomsoever owned, in
such town, where such control is not rested by other provisions of law in the town
or in trustees or other corporate boy and provide for the preservation, care and
fencing of any such cemetery, all a/ « cost not to exceed one hundred dollars in any
one year, unless authorized by a 14ajority vote of such town, and such duties shall
be performed under the supervision of the superintendent of highways of the town,
or a person whom the town board may designate; provided, however, that such

 

6. Exception, All provisions of sections three hundred and thirty, three hun-
dred and thirty-one and three hundred and thirty-two which are inconsistent
364 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, §§ 332a, 334.

duties shall not be exercised in respect to any private ground or particular lot or
lots therein after the true owner or owners thereof file written objections thereto
with the town clerk. The cost and expenses of any officer or person in performing
any duties under or pursuant to the provisions of this section, shall be a town charge,
and the town board shall appropriate and provide annually the moneys necessary
for carrying out the provision of this section, and make the same available for the
proper officer or person by whom the moneys are required to be expended. [Town
Law, § 332, as amended by L. 1909, ch. 473, L. 1917, ch. 229, and L. 1920, ch. 577.]

§ 6a. TRANSFER OF BURIAL GROUNDS TO CEMETERY CORPORATION.

Any town may convey and transfer its right, title and interest in any burial
grounds within the limits of and belonging to the town, or belonging to the town
and individual lot owners, to a cemetery corporation authorized to hold and main-
tain property within the town for cemetery purposes, organized or to be organized
under the membership corporations law. In a town having trustees of burial grounds,
the deed of conveyance shall be executed by a majority of such trustees, and in
any other town by the supervisor, after the town board shall have authorized such
conveyance. [Town Law, § 332a, added by L. 1920, ch. 577.]

§ 7% BURIAL GROUNDS IN DISTRICT ANNEXED TO CITY, VILLAGE
OR ANOTHER TOWN.

Where the whole of any town has been or shall hereafter be annexed to
or consolidated with any city, village or other town, after having purchased
and maintained a burying ground or grounds as public property of such
town but which ground or grounds shall not have been conveyed to trustees
as provided in section one of chapter forty-six of the laws of eighteen hun-
dred and seventy-three, or section three hundred and thirty of this chapter,
but which ground or grounds are or were at the time of such annexation or
consolidation under the charge of the town board of said town, as public
property thereof, then the rights and powers conferred by section three
hundred and thirty of this chapter, on a meeting of the electors of such
town to elect three or five persons as trustees of said burying grounds, and
on the supervisor of such town to convey the Jand embraced in such grounds
to such trustees, shall devolve upon the mayor or other chief magistrate
of the city or village or other town with which such town shall have been
or may hereafter be consolidated or annexed; and on the petition of not
less than twenty citizens, each of whom shall have been a resident of such
town for at least two years previous to such annexation or consolidation,
the mayor or other chief magistrate of the city, village or town to which
such town shall have been annexed or with*which it shall have been con-
solidated, shall appoint three or five persons, each of whom shall have been
a citizen of such annexed or consolidated town for at least two years pre-
vious to such annexation or consolidation, as trustees of such burying ground

 

with the provisions of chapter four hundred and thirty-two of the laws of
eighteen hundred and ninety-nine or chapter seventy-six of the laws of eighteen
hundred and sixty-nine shall not apply to Greenfield cemetery in Hempstead,
Queens county, or to the trustees or management thereof. [Town Law, § 333;
formerly L. 1899, ch. 432.]
TOWN HOUSES, LOCK-UPS AND TOWN CEMETERIES. 365

Town Law, §§ 335-337.

or grounds, and shall cause the lands embraced and included in such bury-
ing ground or grounds to be conveyed to such trustees and their successors
in office as provided in section three hundred and thirty of this chapter,
and such trustees and tlicir successors shall have the same powers and per-
form the same duties as trustees elected at a town meeting as provided
in sections three hundred and thirty and three hundred and thirty-one
of this chapter. [Town Law, § 334; B. C. and G. Cons. L., p. 6225. |

Term of office of trustees—The term of office of trustees so appointed
shall be fixed by the appointing officer and he shall fill any vacancy that may
occur in said board. The trustees shall each furnish a bond satisfactory to
the appointing officer for the faithful performance of their duties, and shall
render an annual report to the financial officer of the municipality of all
receipts and disbursements of money and of all investments of surplus
funds to the credit of the burying grounds in their charge. [Town Law,
§ 335; B. C. and G, Cons. L., p. 6226.]

§ 8 TOWN BOARD MAY PURCHASE SOLDIERS’ BURIAL PLOT;
CARE OF PLOT A TOWN CHARGE; PROCEEDINGS TO OB-
TAIN REMOVAL OF SOLDIERS’ REMAINS TO SOLDIERS’
PLOT; EXPENSE TO BE AUDITED BY TOWN BOARD.

The town board in each of the towns of this state may upon the application in
writing of any veteran soldiers’ association in the town, or upon a petition in writ-
ing of five or more veteran soldiers in towns where no vetcran soldiers’ organization

‘exists, purchase or provide a soldiers’ plot in one or more cemeteries where no
burial plots are now own:d by soldiers’ organizations, in which burial plots de-
ceased soldiers may be interred, and may also provide for the annual care of soldiers’
burial plots in cemeteries, at the rate of not to exceed fifty cents for each soldier’s
grave in such burial plot or plots and the expense shall be included in the town
expenses, assessed, levied and collected in the same manner as other town expenses
are levied and collected? In the county of Broome, the board of supervisors shall
provide for the annual care of soldiers’ burial plots, either heretofore or hereafter
established, in all cemeteries in such county, at the rate aforesaid, and the expense
thereof shall be a county charge audited, assessed, levied and collected in the same
manner as are other county charges. [Town Law, § 336, as amended by L. 1914,
ch, 235; B. C. & G. Cons. L., p. 6226.]

Upon a verified petition presented to a judg: of a court of record by any
so:diers’ organization in any town or city in this state by a majority of its
offeers, or a majority of any memorial committee in any town or city -vliere
there are two or more veteran soldiers’ organizations. or in towns or cities
where there are no veteran soldiers’ organizations, upon the petition of five
or more veteran soldicrs, the judge to whom said verified petition is pre-
sented shall make an order to show cause, returnable before him at a time
and place within the county in not less than fourteen nor more than twentv
days from the date of presentation of said petition, why the remains of any
deceased soldiers buried in potter’s field, or in any neglected or abandoned

7. Application.—The provision for purchase and annual care of burial plots
for soldiers applies only to soldiers’ graves within such town plots, and not to
private plots. Rept. of Atty. Genl., Apr. 23, 1910. :
366 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 337.

cemeteries, should not be removed to and reinterred in a properly kept in-
corporated cemetery in the same town or city or in a town adjoining the
town or city in which the remains of a deceased soldier are buried, and to fix
the amount of the expenses for such removal and reinterment, and the order
to show cause shall provide for its publication in a newspaper, to be desig-
nated in the order, which is published nearest to the cemetery from which
the removal is sought to be made, once in each week for two successive weeks.
The verified petition presented to the judge shall show that the petitioners
are a majority of the officers of a veteran soldiers’ organization, or a majority
of a memorial committee in towns or cities where two or more veterap
soldier organizations exist, or that the petitioners are honorably discharged
veteran soldiers in towns or cities where no veteran soldier organization
exists, and (1) the name of the deceased soldier or soldiers whose remains
are sought to be removed, and if known the company and regiment in which
he or they served; (2) the name and location of the cemetery in which he is
interred and from which removal is asked to be made; (3) the name and
location of the incorporated cemetery to which the remains are desired to
be. removed and reinterred; (4) the facts showing the reasons for such
removal. Upon the return day of the order to show cause and at the time
and place fixed in said order, upon filing proof of publication of the order
to show cause with the judge, if no reason or objection is made thereto, he
shall make an order directing the removal of the remains of said deceased
soldier or soldiers to the cemetery designated in the petition within the
town or city or within a town adjoining the town or city in which the
remains are then buried and shall specify in the order the amount of the
expenses of such removal, which expenses of removal and reinterment,. in-
cluding the expense of the proceeding under this section, shall be a charge
upon the county in which the town or city is situated from which the
removal is made and such expenses shall be a county charge and audited
by the board of supervisors of the county and paid in the same manner as
other county charges. On and after the removal and reinterment of the
remains of the deceased soldier or soldiers in the soldiers’ plot, the expenses
for annual care of the grave in the soldiers’ burial plot to which the removal
is made shall be annually provided by the town or city in which the remains
were originally buried, at the rate of not to exceed fifty cents per grave and
shall be paid annually to the incorporated cemetery association to which
the remains of each deceased soldier may be removed and reinterred. The
petition and order shall be filed in the county clerk’s office of the county in
which the remains of the deceased soldier were originally interred, and the
service of a certified copy of the final order upon the cemetery association
shall be made prior to any removal. Any relative of the deceased soldier or
soldiers, or the officer of any cemetery in which the remains of the deceased
é
TOWN HOUSES, LOCK-UPS AND TOWN CEMETERIES. 367

Town Law, §§ 410-412.

soldier or soldiers were originally interred, or the authorities of the county
in which the soldier or soldiers were originally buried, may oppose the grant-
ing of said order and the judge shall summarily hear tae statement of the
parties and make such order as the justice and equity of the application shall
require. Any headstone or monument which marks the grave of the deceased
soldier shall be removed and reset at the grave in the cemetery in which the
removal is permitted to be made and in each case the final order shall pro-
vide the amount of the expenses of such removal and reinterment and
resetting of the headstone or monument, including the expenses of the
proceedings under this section; except that where provision is otherwise
made for the purchase or erection of a new headstone, monument or marker
at the grave in the cemetery to which such removal is permitted, such old
headstone or monument need not be so removed and reset, in which case.
such final order shall not provide for the expense of resetting. The order
shall designate the person or persons having charge of the removals and
reinterments. Upon completion of the removal, reinterment and resetting
of the headstones or monuments, the person or persons having charge of
the same shall make a verified report of the removal, reinterment and re-
setting of the headstone or monument and “ile the report in the clerk’s office
of the proper county. The word “soldier” shall be construed to mean an
honorably discharged soldier, sailor or marine who served in the army or
navy of the United States, and the words “ soldiers’ plot” shall be con-
strued to mean a plot of land in any incorporated cemetery set apart to be
exclusively used as a place for interring the remains of deceased veteran
soldiers of the United States. [Town Law, § 337, B. C. & G. Cons. L.,
p. 6226.]

§ 9. ERECTION AND DISCONTINUANCE OF POUNDS.

Whenever the electors of any town.shall determine, at a biennial town
meeting, to erect one or more pounds therein, and whenever a pound shall
now be erected in any town, the same shall be kept under the care and
direction of a pound-master, to be elected or appointed for that purpose.
The electors of any town may, at a biennial town meeting, discontinue any
pounds therein. [Town Law, § 410; B. C. & G. Cons. L., p. 6241.]

§ 10. ELECTION OF POUND-MASTERS; FEES; REFUSAL TO SERVE.
Pound-masters may be elected either (1) by ballot; (2) by ayes and
noes, or (3) by the rising or dividing of the electors, as the electors may
determine. [Idem, § 411.]
The pound-masters shall be allowed the following fees for their services,
to it: For taking into the pound and discharging therefrom every horse,
x

208 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, §§ 16, 110.

mule and head of cattle, fifteen cents; for every other beast, ten cents.
[Idem, § 412.]

If any person chosen or appointed to the office of pound-master shall
refuse to serve, he shall forfeit to the town the sum of ten dollars. [Idem,
§ 110, as amended by L. 1909, ch. 491.]

§ 11. GIFTS TO TOWNS.

Real and personal property may be given to a town by grant, convey-
ance, devise or bequest, for the construction, improvement or mainten-
ance of public highways or of town buildings or of buildings for the
use of the public, on such trusts and conditions, subject to the pro-
visions of this section, as the grantor or testator may prescribe, pro-
vided such gift be accepted and trusts and conditions agreed to by the
town board, by resolution. No such gift shall be accepted upon con-
ditions which involve administrative or other expense to the town.
If a trust for the investment of money and the collection and
payment over of income therefrom be created for any such purpose,
the county treasurer shall be the trustee unless otherwise provided
by the grantor or testator. In any ease, if there be such a trust,
the income shall be paid over to the supervisor of the town, to be
applied by him and his successors to the purposes of the trust;
and if there be a direct gift of money or securies to the town, without a
trust, the same shall be delivered or paid to the supervisor and expended
by him and his successors for the purpose of the gift. In the latter
case, the supervisor shall give security to the town, by bond or under-
taking to be approved by the town board, conditioned that he will faith-
fully account for and pay over the moneys and securities so confided to
his care, which security shall be in addition to any other official bond or
undertaking required of him by law. [Town Law, § 16, as added by L.
1920, ch. 261.]
LOCAL Iif{7ROVEMENTS. 369

Town Law, §§ 420-422.

CHAPTER XXVII.
LOCAL IMPROVEMENTS.

Section 1. Assessment for public improvements.
2. Form and notice of assessment.
. Hearing on assessment for public improvement.
. Application of article.
. Appointment of commissioners of improvements in certain towns.

oT me 0D

§ 1. ASSESSMENT FOR PUBLIC IMPROVEMENTS.

Whenever the cost of any public improvement to be made in any of the
towns in this state is required by existing laws to be raised, directly or
indirectly, by assessments to be levied upon pieces or parcels of land con-
tained within certain districts, in proportion to the benefits accruing to
said several pieces or parcels of land by reason of such improvement, it
shall be the duty of the officers who may be invested by law with the duty
of fixing and determining such districts of assessments, and of the officers
charged with the duty of apportioning and assessing the various amounts,
from time to time, upon the several pieces of land to be benefited as afore-
said, to file a certificate of the completion thereof in the office of the town
clerk, and thereupon to give notice of the same, and that they will meet
at a certain time and at some public and convenient place within the town
to hear objections to the same and to make such corrections as will, in their
judgment, be just and equitable. [Town Law, § 420; B. C. & G. Cons. L.,
p. 6242.]

§ 2. FORM AND NOTICE OF ASSESSMENT.

The said assessments shall contain the names of the owners of the
several parcels assessed,so far as known, and if not known in any instance
it shall be so stated; and no assessment shall be invalid by reason of such
name being omitted or incorrectly stated. [Town Law, § 421; B. C. & G.
Cons. L., p. 6241.]

Notice of such meetings shall be given by publication daily, for at least
ten days, in a newspaper published in such town, if any there shall be, and,
370 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, §§ 423, 424, 430.

if none, then daily in two daily newspapers, if there be two, if not, one,
published in the city nearest such town. [Idem, § 422.]

§ 3. HEARING ON ASSESSMENT FOR PUBLIC IMPROVEMENT.

At the time and place so appointed they shall meet and hear all persons
appearing before them, and after such hearing, they shall review the same
and make such corrections, if any, in such certificates as will, in their
judgment, render the same more just and equitable, and the determination
so made by them shall be conclusive. [Town Law, § 423; B. C. & G. Cons.
L., p. 6242.]

§ 4. APPLICATION OF ARTICLE.

This article shall not apply in any case where provision is already made,
or may hereafter be made, by law for reviewing assessments for improve-
nents, or for hearing persons interested, before the final determination
thereof. [Town Law, § 424; B. C. & G. Cons. L., p. 6242.]

§ 5. APPOINTMENT OF COMMISSIONERS OF IMPROVEMENTS IN
CERTAIN TOWNS.

In any town in this state having a total population of over four thousand
inhabitants, exclusive of those residing within the corporate limits of any
incorporated city or village in said town, and adjoining a city having a
population of more than one million inhabitants, the supervisor is hereby
authorized to appoint five commissioners of local improvements, by a
writing signed by him and filed in the town clerk’s office of said town.
The commissioners so appointed shall be residents, freeholders, and electors
in such town and shall hold no other office therein. The said persons so
appointed shall be a body corporate and shall be known as the “ commis-
sioners of improvements” of such town, in which name they may sue
and be sued in any court of competent jurisdiction. [Town Law, § 430; B.
C. & G. Cons. L., p. 6243.]

 

1. Local improvements in certain towns. Article XXIII of the Town Law,
(§§ 430-444) was derived from L. 1889, ch. 453 which was consolidated with
othcr laws relating to towns in the consolidated Town Law of 1909. This article
only applies to towns of over 4,000 population exclusive of incorporated cities
and villages, bordering upon the city of New York. There are only a very few
towns in Weschester County, and possibly Nassau County, which are subject
to its provisions. For this reason it has been deemed best to omit this article
of the Town Law.
PART IV.

TOWN BOARD.

CHAPTER XXVIII.

AUDITING OF TOWN ACCOUNTS; TOWN CHARGES; TOWN FINANCES.

EXPLANATORY NOTE. ‘

Town Board, how Constituted.

The town board is the town’s governing board. It has the powers
and performs the duties prescribed by law. Its functions are partly
legislative and partly administrative. It consists of the supervisor,
town clerk and justices of the peace, or any two of them.

General Powers and Duties.

As the governing board of the town, the town board has the general
control of the internal affairs of the town. An examination of statutes
relating to town affairs will show that the town board exercises impor-
tant supervisory and administrative functions in respect to nearly every
subject of town activity. The maintenance of town highways and
bridges, the construction and maintenance of sewer, water and light
systems, the protection of the public bealth and many other important
subjects are to a greater or less extent within its control. Separate
chapters will be devoted to these subjects and it will be unnecessary to
consider them in this place.

Meetings of Board.

The town board must hold at least two regular meetings each year;
one on the Tuesday preceding the biennial town meeting, or on the
corresponding date in each alternate vear, or in towns holding their

biennial town meetings on election day, on the 28th day of December
371
372 TOWN BOARD.

Explanatory note.

in each year; and the other meeting on the Thursday preceding the
annual meeting of the board of supervisors. The first meeting is to
receive and pass upon the accounts of town officers; the second meeting
is for the audit of town accounts.

Special meetings may be held from time to time as occasion demands,
on the call of either the supervisor or town clerk.

Organization of Board.

The law makes no special provision as to the organization of the
board, except that the town clerk should act as the clerk thereof and
must keep the minutes of its meetings. The supervisor should preside
at all meetings of the board. The rules of parliamentary practice
should apply. A majority of the members of the board will constitute
a quorum for the transaction of its business.

Accounts of Town Officers.

All accounts of town officers are to be presented to the town board at
its first meeting; i. e. the meeting held on the Tuesday before the
biennial town meeting, on the corresponding date in each alternate year,
or on the 28th dav of December in towns holding their biennial town
meetings on election day. Such accounts should be in proper itemized
form, showing receipts and expenditures and should be accompanied by
vouchers as evidence of disbursements made to the persons named.

Audit of Town Accounts.

All claims against the town should be presented to the town board at
its meeting held on the Thursday before the annual meeting of the
board of supervisors. The reason for this is that the board of super-
visors is required to levy a tax upon the town for the payment of the
claims audited. There is no express prohibition in the statute against
the audit of claims at special meetings of the board, but it has been
held by the courts that claims against the town cannot be audited at any
meeting other than the regular meeting held: on the Thursday before
the annual meeting of the board of supervisors, unless especially
authorized by law.

The audit of a claim includes its adjustment by allowance, disallow-
ance in part, or rejection as a whole. In considering claims the board
may conduct its examination as it sees fit, provided it acts reasonably.
AUDITING OF TOWN ACCOUNTS. 373

Explanatory note.

Its knowledge as to the merit of a claim may be acquired from any
quarter where it is obtainable without special regard to the rules of
evidence. Each item of a claim should be passed upon. Upon audit-
ing the claim the board should make a certificate signed by a majority
of its members to the effect that the claim has been allowed, disallowed
as to a part thereof, or wholly rejected, as the case may be. Such
certificate must be filed with the town clerk, and a duplicate thereof
must be delivered to the supervisor to be presented by him to the board
of supervisors. Neither the supervisor nor the board of supervisors can
modify such audit. The board of supervisors must then levy a tax
upon the town to pay the claim as audited by the town board. The
only case where the board of sunervisors can modify the action of a
town board in auditing a claim is where a taxpayer appeals from the
auditing and allowance of a claim for services rendered in criminal
proceedings by justices of the peace and constables.

TOWN CHARGES.

Town Law, § 170, as amended by L. 1909, ch. 491; L. 1914, ch. 440, L.
1916, ch. 158, and L. 1921, ch. 59, prescribes generally what are town
charges. This section is included in this chapter. Reference is also made
to other provisions of law declaring certain claims to be town charges.

Section 1. Constitution and regular meetings of the town beard; when town meet-
ings are held at times of general elections.

2. Meetings of town board for receiving accounts of town officers.

3. Meetings of town board for auditing accounts; certificates of rejection
and allowance; certificates of allowance to be filed; one to be
delivered to supervisor.

4. Appeals from town board to board of supervisors from audit of accounts
of justices of the peace and constables in criminal proceedings.

5. Accounts of justices in criminal matters, what to contain

5a. Salary of justices of the peace in lieu of fees in criminal cases.

5b. Salary of justices of the peace in lieu of all fees in certain towns.

6. Fees of officers in criminal proceedings, when town or county charge.

6a. Audit of claims against water district.

7. Form of accounts; verification by affidavit of claimant; saving clause.

8. Town charges, what are.

9-10. Traveling fees for subpoenaing witnesses, when to be allowed.

11, When town auditors are to be elected; application therefor.

12. Number of town auditors; term of office.
13. If electors of town vote to elect a board of auditors, town board to
make temporary appointment.
Eyal TOWN BOARD.

Town Law, § 131.

SEcTION 14. Town auditors to audit accounts; town auditor to hold no other town

office,

15. Meetings and compensation of town auditors,

16. Town meeting may vote to discontinue board of town auditors.

17. Actions on behalf of and against towns to be brought in name of
town; contracts in name of town,

18. Actions for trespass on town lands.

18a. Town board may borrow money for highway purposes when town meet-
ing -has voted to raise more than $500; statement of indebtedness
created to be rendered to board of supervisors,

19. Power of town board to borrow money for expenses in the sup-
pression of forest fires and for other emergencies.

19a. Appropriations for construction of conning towers.

19b. Power of town board, in certain towns, to borrow money for the
purpose of paying charges, claims or demands against the town.

19c. Appropriations by town board for control of white pine blister rust.

19d. Power of town board, in certain towns, to adopt building code.

20. Town boards may vote money for memorial day; expenditure,

21, Appropriation by town board for rooms for posts.

22. Town board may borrow money to pay judgments against towns.

23, Additional appropriations for memorial day upon the adoption of a
proposition therefor.

§ 1. CONSTITUTION AND REGULAR MEETINGS OF THE TOWN
BOARD; WHEN TOWN MEETINGS ARE HELD AT TIMES OF
GENERAL ELECTIONS.

The supervisor, town clerk and the justices of .the peace, or any two
of such justices, shall constitute the town board in each town,’ and
shall hold at least two meetings annually at the office of the town clerk,

 

1. Town board, how constituted. The town board consists of the supervisor,
town clerk and justices of the peace, or any two of such justices. People ex rel.
Hovey v. Leavenworth, 90 Hun, 48, 54; 35 N. Y. Supp. 445; People ex rel. Coon v.
Wood, 12 N. Y. Supp. 436. In the case of People ex rel. Earwicker v. Dillon, 38
App. Div. 539; 56 N. Y. Supp. 416, a question arose whether a person could hold
the office of town clerk and justice of the peace at the same time. The court held
that the duties of the two officers are incompatible, since .if a person be permitted
to hold both of these offices, he would be a member of the town board in each
capacity and would either have two votes in deciding upon his own claims before the
board, or the town board must be deprived of a full number of members provided
for by law. Assuming that this case was correctly decided, the same reasoning
would prevent a person from holding the office of supervisor and justice of the peace
at one and the same time.

Members of the town board cannot.also -be members of the board of town auditors,
Rept. of Atty. Genl. (1895) 226.

Governing board. The town board is the governing board of a town. General
Municipal Law, sec. 1. In the-case of,Adee v. Arnow, 91 Hun, 329; 36 N. Y. Supp.
1020, the court said: “The functions of the governing board of a town must be the
government of the town. All of the internal affairs of a town must be under the
control of the board of town officers, so far as official action can go. Of course,
the inherent power of the people is left undisturbed and unlimited, and there is no
restriction upon its action in a public town meeting. Each town is constituted a
municipal corporation, and the business of the town must be transacted by the
corporate officers, or as they are now called the governing board.” And the court
further says: “As a member of the town board, the supervisor has no more or
greater authority thaa any of the other officers who are members thereof, and no one
of them can legally act independently of the others, or outside of the board. It is
highly essential to the interests of the town that all questions respecting litigation
should be determined by the governing board. It may or may not be for the interests
of the town to prosecute or defend suits, and the determination of such questions
requires the exercise of judgment and discretion. The governing board is constituted
AUDITING OF TOWN ACCOUNTS. B55

Town Law, § 131.

as follows: one on the Tuesday preceding the biennial town meeting
and on the corresponding date in each alternate year, except that in
towns where biennial town meetings are held at the time of a general
election, such meeting shall be held on the twenty-eighth day of Decem-
ber in each year, unless such day is Sunday, in which case such meeting
shall be held on the preceding day; and one on the Thursday next
preceding the annual meeting of the board of supervisors. The super-
visor of the town shall when present preside at all meetings of the town
board. The supervisor or the town clerk may call a special meeting of
the town board at any time by giving at least two days’ notice in person
or in writing to the other members of such board of the time when
and place where such meeting is to be held.” At any such regular
or special meeting it shall be lawful for the town board to audit, allow
or reject any charge, claim or demand against the town for which funds
might lawfully be provided by the issuance and sale of town obligations
under the provisions of section one hundred and thirty-eight-a of this
chapter; and any charge, claim or demand so audited shall be payable
immediately from available funds thus provided, if there be any, and
otherwise as soon as the moneys are raised therefor under the provisions
of said section one hundred and thirty-eight-a, but a charge, claim or
demand of the kind authorized by this section to be audited may be paid,
in the discretion of the town board, from other town funds on hand
available for general purposes, if there be any such funds. [Town Law,
§ 131, as amended by L. 1909, ch. 140, L. 1913, ch. 571, and L. 1916,
ch. 59; B. C. and G. Cons. L., p. 6182.]

for all such purposes, and its power should not be limited or restricted by con-
struction.”

2. Number of meetings. The town board or the board of town auditors may
hold as many meetings as they may deem necessary for properly transacting their
duties. Rept. of Atty. Genl. (1895), 227,

When meetings of town board should be held in town; acts of town
board in appointing inspectors of election. The meetings of a town board
should be held within the town except in the special cases otherwise provided by
statute. The acts of a town board in appointing inspectors of election at a meeting
he'd in an adjoining town are coram non judice, and a writ of peremptory mandamus
may issue at the instance of one of the town officers who attended and participated
in the proceedings, requiring the town board to meet in their own town and revoke
such appointment and appoint other and qualified inspectors of election. People
ex rel. Shields v. Watkins (1914), 87 Misc. 411, 149 N. Y. Supp. 1006.

Special powers and duties of town boards. (For places in this Manual
where the sections referred to may be found, see Table of Laws, after the Table of
Contents.) (1) As to elections. The town board is authorized to divide a town
containing more than three hundred electors into election districts. See Election
Law, sec. 296, as amended by L. 1914, ch. 244, L, 1916, ch. 537, L. 1917, ch. 703, and
L, 1918, ch. 323. Where a town meeting has voted that town meetings in the town
shall be held in election districts the town board may divide such town into two or
more joint election districts. See Town Law, sec 65, ante. The town board of
each town is required to designate the place of registration and election in each
election district. Election Law, sec. 299, as amended by L. 1910, ch. 428, L. 1915,
ch. 678, L. 1916, ch. 537, and L, 1918, ch. 323. Inspectors of election in towns are
to be appointed by the town board in each year in which a town meeting is held
for the election of town officers, and within thirty days thereafter. See Election
Law, sec. 311. For full provisions of the law relating to the powers and duties
of town boards as to elections, see Jewett’s Election Manual, 1918.

 
376 TOWN BOARD.
Town Law, § 132.

§ 2. MEETINGS OF TOWN BOARD FOR RECEIVING ACCOUNTS OF
TOWN OFFICERS.

At the meeting of the town board held on Tuesday preceding the biennial
town meeting and on the corresponding date in each alternate year, or on
the twenty-eighth day of December in each year, or on the day preceding
when such day falls on Sunday, all town officers who receive or disburse
any moneys of the town, shall account with the board for all such moneys
received and disbursed by them by virtue of their office, and produce all
receipts, orders and vouchers which they may have respecting the same,
but no member of the board shall sit as a member of the board when any
account in which he is interested is being audited by the board.* The
board shall make a statement of such accounts, and append thereto a
certificate signed by at least a majority of them, showing the state of the
accounts of each officer at the date of the certificate, which statement,
certificate, receipts, orders and vouchers shall each be filed with the town
clerk of the town, within three days thereafter, and be open to public

 

(2) As to taxation. A vacancy in the office of a town collector of taxes is to be
filled by the town board. See Tax Law, sec. 86, ante. As to duties of town boards
as to appeals from the action of boards of supervisors in respect to equalization of
assessments, see Tax Law, sec. 175, post.

(3) As to relief of poor. The town board may make rules and regulations
respecting the temporary relief of town poor, in case of the faiiure ot tl.e voard of
supervisors so to do. See Poor Law, sec. 13, post. Overseers of the poor may be
appointed by the town board when authority has been conferred by a proposition
adopted at a town meeting. See Town Law, sec. 112, ante. The accounts of over-
seers of the poor are to be submitted to and examined by the town board. See Poor
Law, sec. 21, post. The estimates and accounts of overseers of the poor must be
approved by the town board. See Poor Law, sec. 27, post. The town board must
make a statement as to poor persons relieved and submit the same to the county
superintendents of the poor. See Poor Law, sec. 27, post.

(5) As to highways. Appointment and removal of town superintendents of
highways, Highway Law, §§ 41, 46, post; to fix compensation of superintendent;
Highway Law, § 45, post. Estimates of highway expenditures, Highway Law,
§§ 90-92; approval of extraordinary repairs of highways and bridges, Highway
Law, § 93, post. May authorize borrowing of money in anticipation of taxes, High-
way Law, § 96, post. Town board to determine places where highway funds are to
be expended, Highway Law, § 105, post. Audit of expenditures for highways and
bridges, Highway Law, § 106, post.

8. Accounts of town officers. All accounts of town officers should be sub-
mitted to the town board at the meeting specified in the above section. In the
case of Christman v. Phillips, 58 Hun, 282, 286; 12 N. Y. Supp. 338, the court said:
“No statute has been referred to, nor are we able to find any, that confers on the
town auditors authority to examine or adjudicate the accounts of overseers of the
poor at any other time or at any other meetings.” If a board of town auditors
exists in a town under the provisions of sections 150-156 of the Town Law, such
accounts are to be presented to such board. People ex rel. Bechtel v. Welbrook, 27
Hun, 598. Each item of accounts must be audited. People ex rel. Thurston v. Town
Auditors, 82 N. Y. 80.
AUDITING OF TOWN ACCOUNTS. 377

Town Law, § 133.

inspection during the office hours of such town clerk.* [Town Law, § 132;
B. C. & G. Cons. L., p. 6183.]

§ 3. MEETING OF TOWN BOARD FOR AUDITING ACCOUNTS; CER-~
TIFICATES OF REJECTION AND ALLOWANCE; CERTIFI-
CATES OF ALLOWANCE TO BE FILED; ONE TO BE DELIV-
ERED TO SUPERVISOR.

The meeting of the town board held on the Thursday preceding the an-
nual meeting of the board of supervisors, shall be for the purpose of audit-
ing accounts and allowing or rejecting all charges, claims and demands
against the town.> No member of the town board or board of town auditors
shall present a claim or demand against the town for audit which has been
assigned to him by another, or for labor, services or material rendered or
furnished by himself, or by another as his servant or agent or under con-

 

4, Effect of certification. Where a supervisor pays claims unlawfully the
subsequent certification of the supervisor’s account does not prevent the bring-
ing of a taxpayer’s action against the claimant for the money received. Annis
v. McNulty, 51 Mise. 121, 100 N. Y. Supp. 951.

5. Section to be strictly enforced. This section was passed for the benefit
of taxpayers as well as for the persons having claims against the towns. It
is a wise statute and should be strictly enforced. People ex rel. Remington v.
Manning, 37 App. Div. 141, 55 N. Y. Supp. 781.

Meeting for audit. Unless otherwise especially authorized by law the town
board can only audit claims against the town at its annual meeting, held on the
Thursday preceding the annual meeting of the board of supervisors. People
ex rel, Lowell v. Town of Westford, 53 Barb. 555; affd., 41 N. Y. 619; see, also,
People ex rel. Myers v. Barnes, 114 N. Y. 317; 20 N. EB. 609.

Power of town board of audit. The power of a board to audit includes the

* power to hear and to examine an account, and in its broader sense it includes
its adjustment by allowance, disallowance or rejection. People ex rel. Myers
v. Barnes, 114 N. Y. 317; 20 N. E. 609; People ex rel. Read v. Town Auditors, 85
Hun, 114; 32 N. Y. Supp. 668.

The town board is a tribunal created by statute to hear and to allow or
reject any claims presented against the town. The examination of the account
by the board is the trial, and its allowance or disallowance is the judgment
of this tribunal. No claim against a town is obligatory upon or is enforceable
against the town until it has been audited or examined and allowed. Its juris-
diction over a claim against the town is not only original but it is conclusive
until brought under review in another court in the manner prescribed by law.
Osterhoudt v. Rigney, 98 N. Y. 234; see, also, People ex rel. Cochrane v. Board of
Auditors, 74 Hun, 83; 26 N. Y. Supp. 211. There is no mode of procedure pre-
scribed by statute by which a board ef town auditors is to take proof or obtain
knowledge respecting the validity of any claim presented for audit. It is the
habit of such bodies to seek information from any quarter where it is obtain-
able, and presumably the practice is levitimate. Its members must acquire
knowledge to enable them to act with wisdom in subservience to establish
tules. They may act upon their own knowledge acquired by observations. Peo-
ple ex rel. Oppenheimer Pub. Co. v. People, 81 Hun, 383; 30 N. Y. Supp. 878;
378 TOWN BOARD.

Town Law, § 133.

tract with him, or any claim or demand of any name or nature wherein he
has an interest, direct or indirect, excepting his per diem compensation for
attendance upon meetings of the town board of said town and the fees al-
lowed to him by law for services rendered in his official capacity; and no
claim or demand in which a member has an interest or which is based
wholly or partly on the services or material rendered or furnished by such
member shall be audited or allowed by said board in favor of any person
or corporation. If an account is rejected wholly or partly, the board shall
indicate thereon the items or parts thereof disallowed and the reason or
reasons for such disallowance. The board shall make, verify and file in
the office of the-town clerk a list or abstract in duplicate of all accounts,
charges, claims or demands presented thereto and audited, allowed or re-
jected at any meeting of the year, showing in respect to each account or
claim the name of the claimant, the general nature of the service performed,
material furnished, or other matter on which the demand was based, the
amount claimed and the amount allowed. To the total of claims so allowed,
the town board shall (a) add sums necessary to pay the principal and in-
terest of loans negotiated pursuant to section one hundred and forty-one
of this act, and (b) deduct surplus moneys available for the payment
thereof and the total of such claims or loans, if any, paid during the year,
thereby determining the amount necessary to be raised by tax. The dupli-
cate lists or abstracts, when so completed, shall be certified by the
members of the town board, or a majority thereof, and one of the
duplicate copies retained on file in the office of the town clerk and
the other delivered to the supervisor of the town, to be by him laid
before the board of supervisors of the county at their annual meeting.®

 

People ex rel. Cochrane v. Town Auditors, 74 Hun, 83; 26 N. Y. Supp. 122. In
the case of People ex rel. McMillen v. Vanderpoel, 35 App. Div. 73; 54 N. Y.
Supp. 436, a claim had been presented to a town board for legal services
rendered by an attorney for town assessors and in the audit of the claim it was
materially reduced. It was held that a town board need not call witnesses to
determine the value of the services rendered by the attorney, but could acquire
the knowledge necessary to audit the bill by consultation with other attorneys
familiar with the value of such services, or act upon the knowledge of such
value possessed by the individual members of the board.

Where the town board has made a valid and complete allowance their au-
thority ceases end they are powerless thereafter to disallow the claim, The
members of a town board of auditors derive their power solely from the statute,
and their act in allowing a claim is quasi-judicial. Central Bank v. Shaw, 121
App. Div. 415, 106 N. ¥. Supp. 94. Board may determine legality of the claim.
Tenney v. Mautner, 24 Hun, 340.

The town board has no authority to contract for telephone service for use
of the justices of the peace and constables, and a bill therefor should not be
audited. Rept. of Atty. Genl., Apr. 20, 1911. So, the superintendent of high-
ways should not be allowed compensation for his own team or hired man on
the highway. Rept. of Atty. Genl., Apr. 14, 1911.

Mileage and expenses incurred while attending meetings of the town poard
and board of health should not be ellowed to a supervisor and justices of the
peace. Rept. of Atty. Gen!. Apr. 20, 1911.

The liability of a town arising under a proprietary lease granted by the former
trustees of a town, is not a town charge to be audited under the provisions of the
Town Law. Sammis v. Town of Huntington (1919), 186 App. Div. 463, 174 N. Y.
Supp. 610.

6. How audit should be made. An arbitrary deduction from the gross amount
of a bill for various items of services the compensation for which is regu-
lated by statute, without passing upon and disallowing any specific item is
not an audit. People ex rel. Thurston v. Town Auditors, 82 N. Y. 80. The
poard must pass upon each item of the account, and if it fails to do so a
proper audit may be directed by mandamus. People ex rel. Hamm v. Board of
Auditors, 43 App. Div. 22; 59 N. Y. Supp. 615. But where the services rendered
e

AUDITING OF TOWN ACCOUNTS. 379

Town Law, § 133.

The board of supervisors shall cause to be levied and raised upon the town

by an attorney were in a single suit and under one retainer a claim therefor,
although made out in items, is in fact a single claim, and the town board is not
compelled to pass on each item thereof. People ex rel. McMillen v. Vanderpoel,
85 App. Div. 23; 54 N. Y. Supp. 436.

Effect of verification. A board of town auditors may disregard the verifica-
tion of an assessor’s bill for services, ascertain the time necessarily spent by
him, and reduce the bill accordingly. People ex rel. Bentley v. Whalen, 5 Wk.
Dig. 410. The verification of a claim has no obligatory force and may be dis-
regarded. People ex rel. Cochrane v. Town Auditors, 74 Hun, 88; 26 N. Y. Supp.
122,

Re-examination. Same town board may re-examine an account once passed
upon, and in fact, reject it, or reduce the amount first allowed. It is the final
action of the board, which consists in making and signing a certificate, that
terminates their right to reconsider and re-examine accounts. People v.
Stocking, 50 Barb. 573; People ex rel. Smith v. Town of Delhi, 5 Hun 647.

Certificate. When at a regular meeting the town board unanimously passes
and signs the resolution allowing a claim of the town clerk for services ren-
dered, the resolution is equivalent to the certificate required. And the trans
mission of the resolution to the town clerk’s office as part of the record of the
proceeding of the auditors, open to public inspection, must he considered as
the filing of the certificate. And the making out by the town clerk, as such, of
a certificate of the claim and the countersigning by all the town auditors of
such certificate and delivery of the same to the supervisor, must be considered
as the giving of a duplicate certificate to the supervisor as required by law.
Central Bank v. Shaw, 121 App. Div. 415, 106 N. Y. Supp. 94.

Effect of certificate of audit. The certificate of town auditors allowing an
account, which is regular on its face, is a sufficient authority for the board of
supervisors to proceed and cause the amount certified to be levied on the town.
If such certificate is in due form, it precludes the supervisors from inquiring
as to the merits of the particular items allowed, and they are bound to act upon
it without modification as to its amount. Such a certificate is sufficient, although
it does not apear on its face that the board met at the proper time and place,
if in point of fact their meeting was regular in those respects. People ex rel.
Onderdonk vy. Supervisors, 1 Hill, 195; see, also, McCrea v. Chahoon, 54 Hun,
577; 8 N. Y. Supp. 88. ‘

When a claim against the town has been audited by the town board and the
amount thereof raised by levy and paid to the supervisor, the supervisor cannot
refuse payment on the ground that he believes the audit was too large. The
audit of the town board is conclusive unless reversed by a competent tribunal.
Matter of Mefford, 113 App. Div. 529, 99 N. Y. Supp. 400.

Effect of audit upon action against town. Where a town board audits at a
reduced amount a claim against the town for services rendered the board of as-
sessors by an attorney, and such audit is confirmed by the appellate division
upon a writ of certiorari, an action cannot thereafter be brought upon such
claim in the supreme court. Barber v. Town of New Scotland, 64 App. Diy. 229,
71 N. Y. Supp. 1052 (1901).

No claim can be enforced against a town unless it has been audited by board
380 TOWN BOARD.
Town Law, § 133.

the amount specified in the certificate, in the same manner as they are

 

of auditors. People ex rel. Myers v. Barnes, 114 N. Y. 317 (1889); People ex rel}.
Everett v. Supervisors, 93 N. Y. 397 (1883); Goodfriend v. Town of Lyme, 90
App. Div. 344, 86 N. Y. Supp. 422 (1904).

No action will lie upon a contract against a town until the claim of the con-
tractors has been presented to the town board and action taken thereon by it.
Colby v. Town of Day, 75 App. Div. 211, revd. 177 N. Y. 548; see also, Town
Law, sec. 11, post, and notes thereunder.

Certificate of rejection of claim. The provisions of this section, requiring a
town board in rejecting a claim to make a certificate to that effect signed by at
least a majority of them, and to file the same in the office of the town clerk, is
not complied with by making an abstract of claims presented and rejected as
required by § 155 of the Town Law. People ex rel. Canton Bridge Co. v. Board
of Auditors of Town of Horicon, 89 App. Div. 116, 85 N. Y. Supp. 1093.

A certificate stating that an account is wholly rejected must be made and
filed as required in this section. The fact that under the words “amount
allowed,” in the abstract, there is inserted on the line describing the claim the
word “ disallowed,” does not constitute a compliance with the section. People
ex rel. Boyce v. Page, 105 App. Div. 212, 94 N. Y. Supp. 660.

Auditing rejected claims. A board has no power to readjudge any part of
a claim which has been rejected by a prior board upon its merits. Osterhoudt
v. Rigney, 98 N. Y. 222; People ex rel. Myers v. Barnes, 114 N. Y. 317, in which
cases it was held that if bills had been rejected by a town board upon their
merits, such rejection bars a re-audit by a subsequent board. See, also, People
ex rel. Peck v. Town Board, 27 App. Div. 476; 50 N. Y. Supp. 533. But a presen-
tation of a claim to a board which through inadvertence is so informal or de-
fective as to justify its disallowance for that reason, is not a bar to a subse-
quent representation of the same claim in proper form. People ex rel. Andrus v.
Town Auditors, 33 App. Div. 277; 53 N. Y. Supp. 739.

Mandamus to compel issuance of certificate. Where a town board fails to
make a certificate that it has allowed claims in part and rejected them in part,
as required by the above section, a writ of mandamus will issue to compel such
action by the board. People ex rel. Ripp v. Town Board, 27 Misc. 469, 59 N. Y.
Supp. 248.

A person who has presented a claim against a town board which has been al-
lowed in part, is entitled to a writ of mandamus commanding the town board to
cause duplicate certificates of. audit to be made and delivered. People ex rel.
Remington v. Manning, 37 App. Div. 141, 55 N. Y. Supp. 781.

Compelling audit by mandamus.—Where a claim presented to a board of
town auditors is rejected after an examination, not because of any determination
as to the merits thereof, but because the claimant refused to appear before the
board, or to offer any other evidence in support of the claim than the statutory
affidavit, the action of the town board is tantamount to a refusal to audit the
claim, and the claimant is entitled to a writ of mandamus compelling audit.
People ex rel. Rhodes v. Mole, 85 App. Div. 33, 82 N. Y. Supp. 747.

Where a town board rejects a claim as not being a town charge and refuses
to consider it on its merits, and the claimant has a clear legal right to have it
audited, a mandamus will lie to compel the board to perform its duty. Matter
of Ryan, 6 Misc. 478, 27 N. Y. Supp. 169.
AUDITING OF TOWN ACCOUNTS. 381

Town Law, § 1383.

directed to levy and raise other town charges.”

 

Such determination cannot be reviewed by mandamus unless the claim is one
existing by virtue of an absolute statutory liability. People ex rel. Read v. Town
Auditors, 85 Hun 114, 32 N. Y. Supp. 668. But see People ex rel. Slater v. Smith,
83 Hun 432, 31 N. Y. Supp. 749.

Audit reviewable by certiorari only. The hearing by a board of town audi-
tors of a claim against the town, the examination and discussion of the ques-
tion involved and the rejection of the claim upon the ground of its illegality,
constitute an audit; such an audit is a quasi-judicial determination of the claim
and is reviewable by certiorari only; mandamus will not lie to compel the board
to re-examine and allow the claim. People ex rel. McCabe v. Matthies, 179 N. Y.
242, affg. 92 App. Div. 16, 87 N. Y. Supp. 196.

Where the board has acted as the statute directs, its determination can only be:
reviewed by certiorari. People ex rel. Hamm v. Town Auditors, 43 App. Div. 22,
59 N. Y. Supp. 615, citing People ex rel. Govers v. New Rochelle, 17 App. Div.
603, 45 N. Y. Supp. 836.

A writ of certiorari must be obtained before the abstract of accounts has been
delivered to the board of supervisors, as that is the last act of the board of
auditors. People ex rel. Cochrane v. Town Auditors, 74 Hun 83, 26 N. Y. Supp.
122. Certiorari will issue to review action of board in refusing to allow the
full amount of a claim. People ex rel. Groton Bridge Co. v. Town Board, 92
Hun 585, 36 N. Y. Supp. 1062.

A board of town auditors which audited a claim on a certain day reconsidered
such action and reaudited the claim, although a writ of certiorari to review the
original audit had been issued prior to the reconsideration. Such a writ does
not bring up for review the reaudit of the claim, but the fact that the original
audit was reconsidered may be considered by the court on the return of the writ.
Matter of Weeks, 106 App. Div. 45, 94 N. Y. Supp. 468.

Where a board of town auditors audited and allowed certain claims for work
done upon a town highway under the direction of the supervisor of the town,
and without authority ofthe highway commissioner, certiorari -will not lie at the
instance of the highway commissioner either individually as a taxpayer, or as
such Officer, to review such action.. His proper remedy as a taxpayer is under
§ 51 of the General Municipal Law. Such writ should also be dismissed upon
the ground that the claims allowed by the town auditors had passed beyond
their jurisdiction into that of the board of supervisors, which board was not
before the court. People ex rel. Cole v. Cross, 87 App. Div. 56, 83 N. Y. Supp.
1083.

Certiorari may be issued after four months, notwithstanding the provisions of
§ 2125 of the Code, where the action of a town board upon a claim was sought
to be reviewed by mandamus, and the. determination made was not upon the
merits. People ex rel. McCabe v. Snedeker, 106 App. Div. 89, 94 N. Y. Supp. 319,
affd. 182 N. Y. 558.

The determination of a town board will not be overruled by the court unless
error clearly appears. People ex rel. Oppenheimer Pub. Co. v. People, 81 Hun,
883; 30 N. Y. Supp. 878.

7. Concurrent jurisdiction of board of supervisors. Under the Revised
Statutes, pt. 1, ch. 12, tit. 2, sec. 4, boards of supervisors were authorized to
382 TOWN BOARD.
Town Law, §§ 133a, 177.

Immediately after final adjournment of the annual meeting of the
town board or the board of town auditors the town clerk shall prepare a
copy of such list or abstract and attach thereto a certificate subscribed
by him, to the effect that the same is a true and complete record of ac-
counts, charges, claims and demands presented to the board for audit
and of the action of said board thereon, and shall cause to be printed in
pamphlet form and kept in his office for general distribution to ap-
plicants such reasonable number of copies of said list as the town board
shall by resclution prescribe. Such resolution shall also provide for
the publication or posting, or both, in the town, in a suitable manner,
of public notice of the completion of said printed list and of the place
where copies can be obtained. It shall be the duty of the town clerk
to cause to be filed one copy of said printed list with the clerk of the
board of supervisors of the county within ten days after the giving of
the public notice of the completion thereof. The town clerk shall re-
ceive a fee of ten cents per folio for preparing said list.

|, Notwithstanding any general or special provision of law to the con-
trary, the town board or, if there be a board of town auditors, then the
board of town auditors shall have the authority to audit accounts,
claims or demands against the town at any regular or special meeting
of the board. [Town Law, § 133, as amended by L. 1910, ch. 316, L.
1918, ch. 73, and L. 1920, ch. 578.]

Duty of town clerk. When the town board or, if there be a board of:
town auditors, then that body, shall have audited an account, claim or de-
mand against the town, the town clerk shall draw a warrant on the super-
visor of the town for the amount allowed. Such warrant shall specify the
date when it is payable, the fund chargeable therewith, the appropriation
account, if any, to which it is to be charged and the purpose or object of the
expenditure. It shall be executed in the name of the town board or board of
town auditors, as the case may be, by the chairman thereof, and counter-
signed by the town clerk. [Town Law, § 133a, as added by L. 1918, ch. 73.]

§ 4. APPEALS FROM TOWN BOARD TO BOARD OF SUPERVISORS
FROM AUDIT OF ACCOUNTS OF JUSTICES OF THE PEACE
AND CONSTABLES IN CRIMINAL PROCEEDINGS.

If any account of a justice of the peace, or town constable, police justice
of a village or village policeman, for fees in criminal proceedings, is audited

 

audit the accounts of town officers and other persons against their respective
towns. This section of the Revised Statutes was repealed by the County Law,
and in sec. 12 of that act, sub. 3, boards of supervisors are authorized to audit
accounts and charges against the county only. It would seem, therefore, that
.

AUDITING OF TOWN ACCOUNTS. 383

Town Law, § 177.

by a town board of any town, any taxpayer of the town may appeal from
the auditing and allowance to-the board of supervisors of the county, and
the board of supervisors may audit and allow such account. If the account
shall be disallowed, or the amount thereof reduced, the party presenting
the same shall have the same right of appeal as above provided.§ The ap-
peal shall be taken within fifteen days after filing the certificate of allow-
ance or disallowance of an account by the town board, in whole or in part,
by the service of a notice of appeal in writing on the town clerk and the.
elerk of the board of supervisors ;? and the town clerk shall forthwith there-
after transmit the account to the board of supervisors of the county, to be
audited and allowed by them; and the town board shall have no further
jurisdiction over the account after the service of the notice of appeal. Such
part of such accounts as the board of supervisors shall allow, shall be as-
sessed and collected the same as other town charges.1° [Town Law, § 177;
as amended by L. 1910, ch. 61, B. C. & G. Cons. L., p. 6199.]

 

the power of boards of supervisors to audit town accounts no longer exists. See
under former law, McCrea v. Chahoon, 54 Hun, 577; 8 N. Y. Supp. 88. The only
duty which remains for the board of supervisors after the audit of a town account
by a town auditing board is to cause to be levied and yaised upon the town
the amounts specified in the certificates of the town boards.

- 8 Right to appeal. The right given to appeal from the action taken by a town
board in respect to accounts of justices of the peace or town constables for fees
in criminal proceedings does not affect the right to compel an audit of an account
by mandamus. People ex rel. Fraser v. Broad of Auditors, 71 Hun 461; 24 N. Y.
Supp. 974; People ex rel. Misselpaugh v. Town Auditors, 1 How. (N. 8.) 224.

9. Notice of appeal to claimant. Where an appeal is taken by taxpayers to
the board of supervisors from a determination of a board of town auditors allow-
ing 4 claim filed against the town, notice of such appeal is not required to be given
to the claimant; the section is not unconstitutional because it neglects to require
such notice. The board of supervisors is not required, upon the appeal, to sum-
mon the claimant to appear personally and explain the items of his account.
People ex rel. Rice v. Supervisors, 98 App. Div. 390, 90 N. Y. Supp. 318.

For form of notice of appeal to board of supervisors, see Form No. 30, post.

10. Audit by the board of supervisors in the first instance is not authorized.
Rept. of Atty. Genl. (1894) 361.

Waiver of judicial review. Where a town constable after audit by the town board
and by the board of supervisors, after appeal to them, accepts payment of the
amount allowed, he waives right to a judicial review of the items disallowed; and
it makes no difference that a protest was made, whether he took it as payment
in full or as part payment, or whether the payment was not accepted until after
384 : TOWN BOARD.

Town Law, §§ 107, 107a.

§ 5. ACCOUNTS OF JUSTICES IN CRIMINAL MATTERS, WHAT TO
CONTAIN.

The accounts rendered by justices of the peace for services in criminal
proceedings shall, in all cases, contain the name and residence of the
complainant, the offense charged, the action of the justice on such com-
plaint, the constable or officer to whom any warrant on such complaint
was delivered, whether the person charged was or was not arrested, and
whether an examination was waived or had, and witnesses sworn thereon;
and the account shall also show the final action of the justice in the prem-
ises.1t [Town Law, § 107; B. C. & G. Cons. L., p. 6172.]

§ Sa. SALARY OF JUSTICES OF THE PEACE IN LIEU OF FEES IN
CRIMINAL CASES.

The town board of any town containing a population of twenty thou-
sand or more according to the last preceding federal census may, in its dis-
cretion, by resolution, provide that the justices of the peace in such town
shall from the date of the adoption of such resolution receive an annual
salary as fixed therein, not exceeding the sum of fifteen hundred dollars,
for all services rendered by them in criminal actions or proceedings had
before them as such justices of the peace in which a charge would other-
wise be made against the town or county. The board of town auditors of
any town having a board of town auditors and containing a population of
more than eight thousand and less than twenty thousand in a county hav-
ing a population of more than one hundred and seventy-five thousand and
less than two hundred thousand, according to the last preceding federal
census, may, in its discretion, by resolution, provide that the justices of

 

the determination of the board of supervisors. People ex rel. Long v. Board of
Supervisors, 120 App. Div. 552, 105 N. Y. Supp. 19.

Inclusion of claim in tax-roll. The inclusion by the board of supervisors in the
tax-roll of a town, of the amount of a constable’s claim against the town, as
audited by the town board, pending an appeal to such board of supervisors by two
taxpayers of the town from such audit, pursuant to the above section when such
claim upon such appeal was rejected by the board of supervisors, does not authorize
the payment of the claim by the collector, although the amount thereof is raised by
levy. Adams v. Town of Wheatfield, 46 App. Div. 466; 61 N. Y. Supp. 738.

11. For form of justices’ accounts against a town in criminal matters, see Form
No. 31, post,
AUDITING OF TOWN ACCOUNTS. 384a

Town Law, § 107b.

the peace in such town shall from the date of the adoption of such resolu-
tion receive an annual salary as fixed therein, not exceeding tne sum of six
hundred dollars each, for all services rendered by them in criminal actions or
proceedings had before them as such justices of the peace in which a charge
would otherwise be made against the town. Such annual salary shall be
in lieu of all charges and fees under section seven hundred and forty-a of
the code of criminal procedure or any other statute, which would otherwise
be chargeable against the town or county for services in criminal actions
or proceedings. The amount of such salary shall be a town charge, pay-
able monthly by the supervisor of such town out of any moneys in his hands
applicable thereto, and receipts therefor shall be presented by the supervisor
to the board of town auditors, and shall if found to be correct be audited
and allowed at the amount thereof. [Town Law, § 107%a, as added by L.
1915, ch. 11, and amended by L. 1917, ch. 418.]

Salary of justices of the peace in lieu of fees in criminal cases. 1. The
town board of any town in a county having a population of over three hun-
dred thousand inhabitants adjoining a city of the first class having a popu-
lation of over one million inhabitants, such justice not sitting, may, in its
discretion, by resolution provide that any justice of the peace in such town
shall, from the date of the adoption of such resolution, receive an annual
salary as fixed therein not exceeding the sum or rate of fifty dollars for each
one thousand population or major fraction thereof within such town, to
be determined according to the last preceding state census, for all services
rendered by him in criminal actions or proceedings had before him as such
justice of the peace, in which a charge would otherwise be made against
the town, or county. If any such town has a population of less than
three thousand inhabitants and has an assessed valuation of at least srx
million dollars such annual salary may be fixed at the same sum or
rate for each one million dollars of assessed valuation or major fraction
thereof, instead of for each one thousand population, or major fraction
thereof within such town. Such annual salary shall be in lieu of all
charges and fees under section seven hundred and forty-a of the code of
criminal procedure or any other statute, which would otherwise be
chargeable against the town or county for services in criminal actions
or proceedings. The amount of such salary, when so fixed, shall be a
town charge payable monthly by the supervisor of such town out of any
moneys in his hands applicable thereto and receipts therefor shall be
presented by the supervisor to the board of town auditors and shall, if
found to be correct, be audited and allowed at the amount thereof, but
no annual salary as herein provided shall exceed the sum of twelve hun-
dred dollars, [Subd. 1, as amended by L. 1920, ch. 576.]

2. Each such justice of the peace shall keep an account of all criminal
business done by him which by law is now made a charge upon the
county, and the same shall be audited in like manner as other charges
and ordered paid to the supervisor of such town. [Town Law, § 107b,
as added by L. 1918, ch. 398.]
384b TOWN BOARD.

Town Law, §§ 107-c, 171.
§.5b. SALARY OF JUSTICES OF THE PEACE IN LIEU OF ALL FEES IN CER-
TAIN TOWNS.

The town board of any town containing a population of fifty thou-
sand or more according to the last preceding federal census or state
enumeration may, in its discretion, by resolution, provide that the
justices of the peace in such town shall from the date of the adoption of
such resolution receive an annual salary as fixed therein, not exceeding
the sum of three thousand dollars, for all services rendered by them in
eriminal actions or proceedings had before them as such justices of the
peace in which a charge would otherwise be made against the town or
county and for all fees for services collected by them as such justices in
civil actions or proceedings, or otherwise, and all such fees shall be
paid over by them to the supervisor or supervisors of the town and
shall be applicable to general town purposes. [Town Law, § 107-c,
added by L. 1920, ch. 653.]

§ 6 FEES OF OFFICERS IN CRIMINAL PROCEEDINGS, WHEN TOWN OR
COUNTY CHARGE.

The fees of magistrates and other officers for services in criminal pro-
ceedings, for or on account of an offense which a court of special sessions
has not jurisdiction to try, shall be a county charge, if the magistrate
had jurisdiction of the proceedings in which the services were rendered.
The fees of magistrates and other officers in other criminal proceedings,
or in criminal actions tried before a magistrate of the town where the
offense is charged to have been committed shall be a charge against such
town. The fees of a magistrate or officer in issuing or serving process
for an offense committed in a town other than that in which such magis-
trate resides, and of which a court of special sessions has jurisdiction to
try, or which a magistrate has jurisdiction to hear and determine, and
the fees of a magistrate in the trial or examination of a person brought
before him by reason of the absence or inability to act of the magistrate
before whom he is directed by the warrant to be brought, charged with
such an offense committed in a town other than that in which the magis-
trate before whom such person is brought resides, shall, in either case,
be a charge against the town in which such ‘offense was committed.”
Except as provided in this section no fees shall be allowed either as a
town or county charge to a magistrate or other officer, for services in a
criminal action or proceeding. before a magistrate of one town for or on
account of an offense charged to have been committed in another town,
and which a court of special sessions has jurisdictfon to try, or which

 

12. The purpore of the statute is primarily to make the expenses of the criminal
eases follow the jurisdiction and locality of the offense. People ex rel. McGrath
v. Supervisors, 119 N. Y. 126; 23 N. E. 489. The jurisdiction of courts of special
sessions is prescribed by section 56 of the Code of Criminal Procedure, and includes
a large part, if not all. of the several offenses classed as misdemeanors. In the trial
of all crimes mentioned in such section the fees of the magistrates and other officers
are chargeable against the town where the offense is charged to have been committed.

County charges. The fees of magistrates and other officers in proceedings for
the examination and commitment of persons charged with a felony or with
offenses not specified in snch section 56 of the Code of Criminal Procedure are
chargeable against the county. In the case of People ex rel. Post v. Supervisors
AUDITING OF TOWN ACCOUNTS. 885
Town Law, § 178.

a magistrate has jurisdiction to hear and determine, The fees of a
magistrate and the fees and mileage of a peace officer in connection
with the arrest, examination, conviction and commitment of a tramp,
or of a vagrant under subdivisions one, five or six of section eight hun-
dred and eighty-seven of the code of criminal procedure, or of a person
charged with a violation of section nineteen hundred and ninety of the
penal law, and any other criminal action or proceeding of which a
court of special sessions has jurisdiction to try, or which a magistrate
has jurisdiction to hear and determine, may be fixed by the board of
town auditors, if any, and otherwise by the town board of the town, or
the board of supervisors of the county, to which the same are chargeable,
not exceeding the amount now allowed by law; and when so fixed, shall
supersede as to such town or county any other provision of law fixing
fees or mileage in such case."* [Town Law, § 171, as amended by L.
1909, ch. 523, and L. 1918, ch. 111; B. C. and G. Cons. L., p. 8837. ]
§ 6a. AUDIT OF CLAIMS AGAINST WATER DISTRICT.

In a county adjoining a city of the first class and containing not
more than five towns, no claim the payment of which is a charge against
a sewer district except for the principal or interest on a bonded or
funded debt or other loan shall be paid unless an itemized claim there-
for, verified by or on behalf of the claimant and anproved by the sewer

 

of Ontario, 4 Denio, 260, it was held that fees of magistrates are a charre upon
the county: (1) Where the proceedings are not had in the county in which the
offense was committed; (2) whcre the proceedings are for felony; (3) where the
proceedings or trial for the offense is had in the County or Supreme Court. In
all other eases the expense is a town charge.

The expense of transporting prisoners convicted in court of special sessions in a
town is a town charge.’ People ex rel. McGrath v. Supervisors of Westchester, 119
N. Y. 126, 129. Transportation of juvenile delinquents to a house of refuge upon
their conviction and sentence by a justice of the peace is a town charge. People
ex rel. Andrus v. Town Auditors, 33 App. Div. 277, 53 N. Y. Supp. 739.

Sheriff’s fees for boarding prisoners are county charges. Ross v. Supervisors of
Cayuga, 38 Hun 20; People ex rel. Van Tassel vy. Supervisors of Columbia, 67
N. Y. 330. But the fees of a deputy sheriff acting as a peace officer are a town
charge. People ex rel. White v. Clinton, 28 App. Div. 478, 51 N. Y. Supp. 115.

Fees of a justice of the peace are a town charge. People ex rel. Fraser v. Bd.
of Auditors, 71 Hun 461, 24 N. Y. Supp. 974.

18. In general, The fees of a vil'’age police justice for services rendered in con-
nection with the trial of offenders charged with violation of Education Law, § 625,
are a charge against the town in which the village is located. Opinion of Comptroller
(1917), 11 State Dept. Rep. 580.

A justice of the peace is not entitled to fees for making returns required in cases
prosecuted by indictment. Opinion of Comptroller (1917), 11 State Dept. Rep. 589.

Where village policemen are paid salaries, the village cannot collect from the
town the statutory fees for arrests, attending court, custody of prisoners, etc. Opin-
ion of Comptroller (1917), 11 State Dept. Rep. 586. :

Vagrants d:fined. The subdivisions of section 887 of the Code of Criminal Pro-
cedure referred to in the above section are as follows: ‘‘The following persons are
vagrants: 1. A person who, not having visible means to maintain himself, lives
without employment; 5. A person wandering abroad and begging, or who goes about
from door to door, or places himself in the streets, highways, passages, or other
public places, to beg or receive alms; 6. A person wandering abroad and lodging in
taverns, groceries, ale houses, watch or station houses, outhouses, market places,
sheds, stables, barns or uninhabited buildings, or in the open air, and not giving
a good account of himself.’’

The intent of the above provision as to the arrest.of vagrants under such sub-
divisions of such section is to permit the town board, or board of supervisors of
386 TOWN BOARD.
Town Law, § 175.

commission of the district, is presented to the town board or board of
town auditors for audit in the same manner as are claims against the
town. When a claim has been finally audited by the town board or
board of town auditors, the chairman of such board shall endorse thereon
or attach thereto a certificate in duplicate of such audit one of which
certificates shall thereupon be filed in and remain a public record in
the office of the town clerk and the other shall thereupon be filed with
the treasurer of the sewer district. The town clerk shall prepare a
warrant, order, draft or certificate of audit to be signed by a majority
of the members of the town board or board of town auditors and to be
countersigned by him stating the fact of such audit, the number of the
claim, the name of the claimant, the amount allowed and such other in-
formation as may be deemed necessary or essential directed to the treas-
urer of the sewer district authorizing and directing him to pay to the
claimant the amount allowed upon his claim. [Town Law, § 178, as
added by L. 1919, ch. 129, and amended by L. 1920, ch. 651. ]

§ 7. FORM OF ACCOUNTS; VERIFICATION BY AFFIDAVIT OF CLAIMANT;

SAVING CLAUSE.

No account shall be audited by any board of town auditors or
supervisors or superintendent of the poor for any services or dis-

 

the county, to fix, in such cases, the fees and mileage of officers for duties per-
formed in connection with the arrest of such persons.

Tramp defined. By section 887a of the Code of Criminal Procedure a tramp is
defined as ‘‘any person, not blind, over sixteen years of age, and who has not
resided in the county in which he may be at any time for a period of six months
prior therto, who: 1. Not having visible means to maintain himself lives without
employment; or, 2, wanders abroad and begs or goes about from door to door,
or places himself in the streets, highways, or passages or public places to beg or
receive alms; or, 3, wanders abroad and lodges in taverns, groceries, ale houses,
watch or station houses, outhouses, market places, sheds, stables, barns or unin-
habited buildings, or in the open air, and does not give a good account of himself,”

By Penal Law, § 2370, it is provided that: ‘‘Every tramp, upon conviction as
such, shall be punished by imprisonment at hard labor in the nearest penitentiary
for not more than six months, and the expense during such imprisonment shall be
paid by the state at the rate of thirty cents per day per capita.’’

It follows, therefore, that where a person is arrested and convicted as a tramp
he must be committed to a penitentiary and is there supported at the expense of
the state. A person convicted as a vagrant under subs. 1, 5 and 6 of sec. 887 of the
Code of Criminal Procedure, if committed to a penitentiary, would be there sup-
ported at the expense of the county from which he is sent.

In the county of Ulster the fees of officers in the arrest, trial or examination
of persons charged with a criminal offense are in every case a charge against the
town in which the offense was committed, and the above section of the Town Law,
and subs. 6 and 14 of see. 240 of the County Law do not apply to such county.

Sections 172 to 174 of the Town Law control this question in the county of
Ulster. Such sections are as follows:

§ 172. Fees of Officers in Ulster County. In the county of Ulster the fees of
magistrates and other officers in criminal proceedings, or in criminal actions tried
before a magistrate of any town in such county where the offense is charged to
have been committed, shall be a charge against such town. The fees of a magistrate
or officer in issuing or serving process for an offense committed in a town in such
county other than that in which such magistrate resides, and the fees of a magis-
trate in the trial or examination of a person brought before him by reason of the
absence or inability to act of the magistrate before whom he is directed by the
warrant to be brought, charged with such an offense committed in a town in such
AUDITING OF TOWN ACCOUNTS. 387
Town Law, § 175.

bursements unless such account shall be made out in items and ac-
companied with an affidavit attached thereto, and to be filed with
such account, made by the person presenting or claiming the same,
that the items of such account are correct and that the disbursements
and services charged therein have been in fact made or rendered
or are necessary to be made or rendered at that session of the
board, and stating that no part thereof has been paid or satisfied; and
the chairman of the board or either of the superintendents may ad-
minister any oath required under this section.14 Nothing in this section

 

county other than that in which the magistrate before whom such person is brought
resides, shall, in either case, be a charge against the town in which the such offense
was committed. Except as provided in this section no fees shall be allowed to a
magistrate or other officer for services in a criminal action or proceeding before a
magistrate of one town in such county for or on account of an offense charged to
have been committed in another town therein. The fees of a magistrate and the
fees and mileage of a peace officer in connection with the arrest, examination, con-
viction and commitment of a tramp, or of a vagrant under subdivision one, five or
six of section eight hundred and eighty-seven of the code of criminal procedure, may
be fixed by the board of town auditors, if any, and otherwise by the town board
of the town in such county to which the same are chargeable, not exceeding the
amount now allowed by law; and when so fixed, shall supersede as to such town
any other provision of law fixing fccs or mileage in such case.

§ 173. Constable’s fces in Ulstcr county. In the county of Ulster, the com-
pensation allowed by law to constables and other officers, for executing process on
persons charged with a felony, for services and expenses in conveying such persons
to the jail in such county, and for othcr services in relation to criminal proceedings
and the support of prisoners in transit, for which no specific compensation is pre-
scribed by law, shall be a charge upon the town in such county where the crime was
committed. The charges and accounts for services rendered by justices of the peace
in any town in such county, in the examination of fclons, and in other proceedings
mentioned in section one hundred and seventy-one shall be a charre upon the town
wherein the crime was committed, and shall be paid inthe same manner as other
town charges.

§ 174. Exception. The provisions of section.one hundred and seventy-one of this
chapter and of subdivisions six and fourteen of section two hundred and forty of
the county law, as far as they are inconsistent with the provisions of the last two
sections, shall not apply to the county of Ulster or any of the towns therein.

14, Accounts against county. Section 24 of the County Law, ante, also pro-
vides that no account shall be audited by a board of supervisors or by superintend-
ents of the poor unless it shall be made out in items and verified.

For form of accounts of town officers and verification thereof, see Form No. 32,
post. For form of certificate of examination of town officers’ accounts, see Form
No. 33, post. For form of affidavit to be annexed to account presented to town
board for audit, see Form No. 34, post.

Defective accounts. The town board may refuse to audit an account unless it
is in the form prescribed by statute. See People ex rel. Mason v. Board of
Supervisors, 45 Hun, 62. If an account is not in proper form the board would
not be justifiéd in absolutely rejecting the claim and thus deprive the claimant
of that which might be honestly and fairly due to him. The board should permit
the claimant to withdraw his claim and present it in the form and manner
prescribed by the statute. As we have already seen a presentation of a claim
which, through inadvertence, ig so informal or defective as to justify its dis-
383 TOWN BOALD.
Town Law, § 170

shall be construed to prevent any board from disallowing any account, in whole og
in part, when so rendered and verified, nor from requiring any other or further
evidence of the truth and propriety thereof. as such board may think proper.ls
[Town Law, § 175; B. C. & G. Cons. L., p. 6198.]

§ 8. TOWN CHARGES, WHAT ARE.

The following shall be deemed town charges:

1. The compensation of town. officers for services rendered for their respective
towns.16

2. The contingent expenses necessarily incurred for the use and benefit of the
town,17 and all moneys necessarily expended by any town officer in executing the
duties of his office, in cases where no specific compensation for such service is pro-
vided by law, and including in any town having a vopulstion. as appears by the
last federal census of five thousand or more, and where the assessed valuation of
real estate in such town is over five million dollars, the actual and necessary ex-
penses of such town officers for vehicle hire and traveling expenses, or in any town
for office rent, janitor service, light, heat, telephone, postage, furniture, stationery
or supplies, which may be incurred by authority of the town board of such town.
[Subd. 2, as amended by L. 1920, ch. 414.]

 

allowance for that reason, is not a bar to a subsequent re-presentation of the
same claim in proper form. People ex rel. Andrus v. Town Auditors, 33 App.
Div. 277; 53 N. Y. Supp. 739.

Where bills against a town are presented in such a manner that the auditing
board is unable to separate the illegal from the legal charges, it is its duty to
refuse to audit any of the charges. Matter of Town of Hempstead, 36 App. Div.
321, 337, 55 N. Y. Supp. 345, affd. 160 N. Y. 685.

Verification. After audit objection cannot be made that items were not
verified. People ex rel. Sherman v. Bd. of Sup’rs, 30 How. Pr. 173.

15. See notes to section 133 of the Town Law, ante, relating to the manner
of auditing accounts by town board.

Subsequent audit of claim rejected for defect. If a claim was disallowed
because it was improper or defective in form as where it was neither verified
nor itemized as required by this section, or if the claim disallowed was pre-
sented without the authority of the claimant, the town board may pass upon it
when again presented in proper form by the claimant himself. People ex rel.
Brooklyn Cooperage Co. v. King, 116 App. Div. 89, 101 N. Y. Supp. 782.

16. Compensation of town officers generally is prescribed by section 85 of the
Town Law, post.

Claim for statutory percentages on moneys paid out by a supervisor should
be audited. People ex rel. Acheson v. Bullard, 146 App. Div. 282.

Bills of constables for certain services are town charges. Osterhout v. Hy-
land, 27 Hun, 167, 172, affd. 98 N. Y. 222. :

Compensation of superintendent of highways is a town charge. Rept. of
Atty. Genl. (1903) 263. But his expenses in excess of his annual appropriation
are not a town charge. Kept. of Atty. Genl. (1902) 258.

17. Contingent expenses. Services performed by a supervisor in advising and
directing overseers of the poor and in consulting with highway commissioners
and town essessors and in employing counsel in proceedings teken to compel
the board of supervisors to correct the town assessment-roll do not come under
the head of contingent expense necessarily incurred for the use and benefit of
the town. People ex rel. Keeffe v. Town Auditors, 24 App. Div. 579: 49 N. Y.
Supp. 523, affd. 156 N. Y. 689; People ex rel. Coon v. Wood, 35 N. Y. St. f ep.
840, 12 N. Y. Supp. 436. The contingent expenses referred to are evidently
those which town officers have incurred in the actual performance of their
AUDITING OF TOWN ACCOUNTS. 389
Town Law, § 170.

3. The moneys authorized to be raised by the vote of a town meeting for any
‘town purpose. : ys

4, Every sum directed by law to be raised for any town purpose.

5, All judgments duly recovered against a towm /

6. All damages recovered against a town officer for any act done pursuant to a
direction or resolution, duly adopted by the town board, or at a town meeting duly
held; and all damages against any such officer for any act done in good faith, in

 

duties, and which unless paid by the town would result in pecuniary loss to the
officers themselves. ee ;

Contingent expenses are thosé which the commissioners could not ascertain. Ex-
penses which were unknown, which were uncertain, and which might or might
not be incurred thereafter. People v. Yonkers, 39 Barb. 266, 272.

An amount alleged to be due under an agreement for the support of a pauper
child is a town charge, and under the above section the exclusive remedy of the
claimant is to present his claim to the town board for audit, and to review their
action by certiorari or mandamus. Goodfriend v. Town of Lyme, 90 App. Div. 344,
86 N. Y. Supp. 422. ; k

Payment of bridge tenders to operate a lift bridge over the Erie Canal is not,
a town charge. Matter of Town of Ridgeway v. Treman, 72 Misc. 452,

Employment of assistants by board of assessors, There is no authority in the
law for the employment by the board of town assessors of a clerk or other assist-
ant, nor has the town board any power to authorize the employment by the town
assessors of a clerk or other assistant, People ex. rel. Anderson v. Snedeker
(1912),:75 Mise. 194.

Traveling expenses of members of town boards. The town board of a town hav-
ing a population of more than 5,000 and in which the assessed valuation of real
property is more than $5,000,000, may not lawfully adopt a fixed or stated allow-
ance per mile to be paid to members of the town board for the use of their own
conveyances, in lieu of actual expenses incurred in traveling from their residences
to the meetings of the town board. Opinion of State Comptroller (1916), 8 State
Dept. Rep. 564.

Expenses of a justice of the peace in traveling to and from meetings are not a
town charge for “specific compensation” as provided by law. Opinion of State
Comptroller (1916), 8 State Dept. Rep. 575. Where a justice of the peace refuses
to present his criminal docket for audit, he is disqualified by reason of personal
interest from voting on a resolution introduced in a town meeting which purported
to ratify the act of a supervisor in engaging special counsel to represent the town
in mandamus proceedings brought against him to compel the submission of his
docket for audit. Opinion by Comptroller (1917), 12 State Dept. Rep. 511.

Expenses of town auditors in traveling to and from place of meeting. Opinion of
Compt. (1919), 20 St. Dept. Rep. 265.

Expenses of publication, preparation of maps, etc., upon the application of free-
holders for the division of a town, cannot be legally charged either against the old
or the new town, or against the old town as it existed prior to the division.
Opinion of Atty. Gen. (1919), 19 St. Dept. Rep. 363.

The remedy of a supervisor upon the presentation of warrant issued by the
board of town auditors for the reimbursement of a town official for the expenses of
a trip which had not been authorized by the town board, is by way of certiorari,
an eee refusal to honor the warrant, Opinion of Compt. (1919), 20 St. Dept.

ep. 263. :

18. Appropriation of town moneys. Where town moneys have been specifically
appropriated for a town purpose by the electors of the town at a meeting,
the expenses incurred in carrying out such purpose are a town charge. Berlin Iron
Bridge Co. v. Wagner, 57 Hun 346; 10 N. Y. Supp. 840.

A balance due the State for the construction of an added width of highway
through a town, under Highway Law, § 138a, is imposed by statute upon the town
for town purposes, and the sole remedy of the State to recover such money is
through the board of town auditors. People v. Town of Frankfort (1918), 182 App.
Div. 431, 169 N. Y. Supp. 633,

The liabiity of a town under a proprietary lease from the former trustees of
the town, is not a town charge to be audited under the provisions of the Town Law.
Sammis v. Town of Huntington (1919), 186 App. Div. 463, 174 N. Y. Supp. 610.

See Coyne v. Town of Greenburg (1920), 110 Mise. 598, 614,
390 TOWN BOARD.
Town Law, §§ 155, 176.

his official capacity, without any such direction or resolution, may be made a
town charge, by a vote of the town, at a .town meeting duly held.”

7. The costs and expenses lawfully incurred by any town officer in prosecuting or
defending any action or proceeding brought by or against the town or such officer for
an official act done, shall be a town charge in all cases where the officer is required by
law to so prosecute or defend, or to do such act, or is instructed to so prosecute or
defend, or do such act, by resolution duly adopted by the town board, or at a town
meeting duly held. ® All town charges specified in this section shall be presented
to the town board for audit, and all moneys necessary to defray such charges
shall be levied on the taxable property in such town by the board of supervisors.*

8. Actual expenses necessarily incurred by the supervisors of a town in the
forest preserve, when authorized by resolution of the town board, in connection
with the distribution of fish and game birds furnished by the conservation depart-
ment of the state or by the federal government, not exceeding fifty dollars in any
one year. [Subd. 8, added by L. 1916, ch. 158.]

9. The cost and expense necessarily incurred by the town board in the employ-
ment of experts or engineers to appraise the value of corporate or other property
within the town for the purpose of furnishing evidence to assist the assessors in
the assessment thereof. The town board is hereby authorized upon resolution duly
adopted to make such appraisal but the expense thereof shall not exceed one-fourth
of one per centum of the value of the property appraised.

10. In the towns of the county of Franklin, the actual and necessary expenses
of members of the town board incurred for vehicle hire, railroad fare and main-
tenance in attending any regular or special meeting of the town board, when
provision therefor shall have been made by such town board. [Town Law, § 170,
amended by Ia 1914, ch. 440; Subd. 8 repealed by L. 1909, ch. 491; new subd. 8
added by L. 1916, ch. 158; subd, 9, added by L. 1919, ch. 450; subd. 10, added
by L. 1921, ch. 59.]

 

19. Judgments against supervisor may be audited by town board as a town
charge. Hulbert v. Defendorf, 58 Hun 585, 12 N. Y. Supp. 673. And see § 1931 of
the Code of Civil Procecure, which has been held not to impose an absolute liability
against the town for all judgments recovered against a commissioner of highways in
his official capacity. People ex rel. Myers v. Barnes, 114 N. Y, 317. A town may
borrow money and issue bonds for the payment of judgments against it, See Town
Law, § 139, post.

In order to make a judgment against commissioners of highways a town charge,
it must have been recovered upon a liability incurred by them acting within the
scope of their authority, and in such case the claim therefore must be presented,
passed upon and audited by the board of town auditors. People ex rel. Everett v.
Supervisors, 93 N. Y. 397.

20. Expenses of assessors in defending certiorari proceedings, without the
direction or resolution of the town board to review a grossly excessive assess-
ment, made in bad faith and with malice, are not town charges and cannot be
legally audited. A ratification after audit will be ineffectual. The payment of
the claim may be enjoined in u taxpayer’s action. Rockefeller v. Taylor, 69 App.
Div. 176, 74 N. Y. Supp. 812. See also People ex rel, McMillen v. Vanderpoel, 35
App. Div. 73, 54 N. Y. Supp. 436.

Superintendent of highways cannot of his own motion continue an action and
recover his expenses from the town, People ex rel. Van Keuren v. Town Auditors,
74 N. Y. 310.

Overseers of the poor may employ an attorney and the expense will be a town
charge. Rept. of Atty. Gent. (1904) 271.

21, Other town charges. Among other town charges than those in the above
section the following may be mentioned:

Amounts expended for the support of town poor. See Poor Law, secs. 28-28.

Costs and damages awarded in proceedings to lay out, alter and discontinue
highways. See Highway Law, sec. 93, ante.

Damages for injuries sustained by defects in highways and bridges. See High-
way Law, sec. 18, ante.

Expense incurred in the erection of mile stones and guide boards, in the pur-
chase of road machines, stone crushers, and materials used on highways. See
Highway Law, sec. 51, ante.

Amount expended in the acquisition of gravel for use on the highways. See
Highway Law, sec. 68, ante.
AUDITING OF TOWN ACCOUNTS. 391
Town Law, §§ 176, 150, 151.
§§ 9-10. TRAVELING FEES FOR SUBPOENAING WITNESSES, WHEN TO BE
ALLOWED.

No traveling fees shall be allowed for traveling to subpoena a wit-
ness, beyond the limits of the county in which the subpoena was issued,
or of an adjoining county, unless the board auditing the account, shall
be satisfied, by proof, that such witness could not be subpoenaed with-
out additional travel; nor shall any traveling fees for subpoenaing wit-
nesses be allowed, except such as the board auditing the account, shall
be satisfied were indispensably necessary. [Town Law, § 176; B. C.
& G. Cons. L., p. 6199.]

§ 11. WHEN TOWN AUDITORS ARE TO BE ELECTED; APPLICA-
TION THEREFOR.

The electors in each of tne towns may, on the application of twenty
freeholders residing therein, at any biennial town meeting, determine by
ballot whether there shall be elected, at the next succeeding biennial town
meeting, held in the town, a board of town auditors, in and for the town
independent of the town board in the manner, and under the restrictions
hereinafter prescribed.2* [Town Law, § 150; B. C. & G. Cons. L., p.
6191.]

§ 12. NUMBER OF TOWN AUDITORS; TERM OF OFFICE.

If a majority of the ballots so cast, shall be in favor of electing a board
of town auditors there shall be elected at the next succeeding biennial town
meeting, and at every biennial town meeting held thereafter, until other-
wise determined, three town auditors, who shall form the board of town
auditors of the town whose term of office shall be two years. [Town Law,
§ 151; B. C. & G. Cons. L., p. 6192.]

 

The expenses of local boards of health. See Public Health Law, sec. 35, post.

The compensation and expenses of town clerks in relation to public schools.
See Fducation Law, § 261.

Fxperses incurred in the proper observance of memorial or decoration day.
Town Law, §§ 136, 137, post.

Compensation of fire wardens. Forest, Fish and Game Law, sec. 71.
23. Town clerk is not a member of the board of town auditors when such board
is separately elected. Rept. of Atty. Genl. (1893), 363; (1895), 285.
392 TOWN BOARD.
Town Law, §§ 152, 153.

§ 13. IF ELECTORS OF TOWN VOTE TO ELECT A BOARD OF AUDI-
TORS, TOWN BOARD TO MAKE TEMPORARY APPOINT-
MENT.
The town board of the town in which the electors shall determine to elect
a board of town auditors, or a majority of them, shall, witnin sixty
days after the town meeting where it was so determined, convene at some
suitable place in the town, at the hour of ten o’clock in the forenoon,
and appoint, in writing, under their hands and seals, three persons having
the qualifications herein prescribed, to be town auditors of the town,
and shall immediately cause such appointment to be filed with tne town
clerk.2* The person so appointed shall, within ten days after receiving
notice of their appointment, take, subscribe and file in the office of the
town clerk the oath of office; and thereupon they shall be the board of
town auditors of the town, and shall possess and exercise all the powers
and duties of town auditors, and shall hold and discharge the duties of
the office until the next biennial town meeting to be held in the town
after their appointment. [Town Law, § 152; B. C. & G. Cons. L., p.
6192.]

§ 14. TOWN AUDITORS TO AUDIT ACCOUNTS; TOWN AUDITOR TO
HOLD NO OTHER TOWN OFFICE.

Upon the election or appointment and qualification of any such board of
town auditors in any town, the powers of the town board of that town, with
respect to auditing, allowing or rejecting all accounts, charges, claims or
demands against the town, and with respect to the examination, auditing
and certification of accounts of town officers, and making provision for
preparing and publishing or posting lists of all such accounts, charges,
claims or demands after the audit or rejection thereof, shall devolve upon
and thereafter be exercised by such board of town auditors, during the
continuance of such board; and with respect to the powers so conferred,
and the duties so imposed, they shall be the town board of the town during
their continuance.?* No person so elected or appointed shall hold any

 

24. This provision is directory and the appointment, after the time pre-
scribed by law, may not be illegal. Rept. of Atty. Genl. (1895) 167.

For form of appointment of board of town auditors by town board, see
Form No. 36, post.

25. Power of town auditors to act in conjunction with commissioner (now
town superintendent) of highways. Rept. of Atty. Genl. (1903) 400. Board of
. town auditors may legally meet whenever necessary for the purpose of auditing
town accounts. Rept. of Atty. Genl. (1896) 144. Town auditor can hold no
other town office. Rept. of Atty. Genl. (1896) 135.

Employment of counsel. A town board of auditors has the same power to
AUDITING OF TOWN ACCOUNTS. 393
Town Law, §§ 154, 156, 157,

other office in the town during the term for which he is elected or appointed; and
if he shall accept an election or appointment to any other office in the town, he shal]
immediately cease to be a town auditor, and the vacancy in his office shall be supplied
in the manner hereinafter provided. [Town Law, § 153, as amended by L. 1910, ch,
316; B. C. & G. Cons. L., p. 6192.]

§ 15. MEETINGS AND COMPENSATION OF TOWN AUDITORS.

The board of town auditors, or town board where no regular town board of audit
has been chosen, may meet quarterly in each year on the first Mondays of February,
May, August and November, for the purpose of auditing, allowing or rejecting all
charges, claims and demands against the town. Each town auditor in any town
having a separate board of town auditors, shall he entitled to receive for his ser-
vices not less than three nor more than five dollars for each day to be fixed by the
town board, not exceeding in the aggregate twelve days in any one year, and in towns
having no separate board of town auditors, each auditor shall be entitled to receive
for his services three dollars for each day, not exceeding in the aggregate twelvc
days in any one year, except in towns having a population of twelve thousand and
upwards, in which towns each of such town auditors shall be entitled to receive. for
his services not less than three nor more than five dollars for each day, to be fixed by
the town board, but not to exceed thirty days in any one year and except that in
towns having a population of eighteen thousand and upwards, in which towns each
of such town auditors shall be entitled to receive for his services such compensation
as shall be fixed by the town board of such town, and not less than three nor more
than five dollars for each day, but not to exceed sixty days in any one year and ex-
cept that in towns having a population of forty thousand and upwards, in which
towns each of such town auditors shall be entitled to receive for his services not less
than three nor more than five dollars for each day, but not to exceed eighty days in
‘any one year, except that in any town in a county adjoining a city of the first
class the town board of such town may fix the compensation and number of days
of service of the town auditors at not less than three nor more than five dollars
per day, but not to exceed one hundred days in any one year; and also except in
towns with a population of sixty thousand or more, the town board shall have
authority to designate the number of days of service of the town auditors of such
town, actually and necessarily devoted by him to the service of the town, in the
duties of said office. [Town Law, § 154, as amended by L. 1910, ch. 24, L. 1912,
an 72, 258, and L. 1913, ch. 17, L. 1916, ch. 100, L. 1917, ch. 368, and L. 1920,
ch. 290.]

The supervisor of the town shall appoint some suitable and competent person to
fill any vacancy occurring in the board of town auditors until the next biennial town
meeting. [Town Law, § 156; B. C. & G. Cons. L., p. 8833.]

§ 16. TOWN MEETING MAY VOTE TO DISCONTINUE BOARD OF TOWN
AUDITORS,

At any subsequent town meeting, after the expiration of five years from the de-
termination to elect a board of town auditors, the electors of the town may deter-
mine by ballot to abolish such board in the same manner as they determine to
establish such board; and thereupon such board shall be abolished. [Town Law,
§ 157; B. C. & G. Cons. L., p. 8834.] .

§ 17. ACTIONS ON BEHALF OF AND AGAINST TOWNS TO BE BROUGHT IN
NAME OF TOWN; CONTRACTS IN NAME OF TOWN.

Any action or special proceeding for the benefit of a town, upon a con-

 

employ counsel to resist claims against the town as that possessed by the regular town
board. Matter of Comesky v. Blackledge, 114 App. Div. 834, 109 N. Y. Supp. 241.

Review of action of beard of town auditors.—After a board of town auditors has
judicially passed upon the merits of a claim and has allowed or disallowed it, the
claimant’s only remedy is by an appeal, in some cases to the board of supervisors, and in
others by certiorari to the Appellate Division of this court. The court, at Special Term,
has no power to review the action of the board of town auditors in allowing or disallow-
ing a claim. People ex rel. Anderson y. Snedeker (1912), 75 Misc. 194. 5
(1885) ae applies only to separate boards of town auditors. Rept. of Atty. Genl.

The board of town auditors is separate and distinct from the town board, and the
provision making the compensation of its members three dollars per day has no ap-
Plication to the town board, Rept. of Atty. Genl., Vol. % p. 663.
394 TOWN ECARD.
Town Law, § 11.

tract lawfully made with any of its town officers, to enforce any liability
created or duty enjoined upon those officers, or the town represented by
them, or to recover any penalty or forfeiture given to such officers, or the
town represented by them, or to recover damages for injury to tne property
or rights of such officers, or the town represented by them, shall be in the
name of the town. Any action or special proceeding to enforce the liability
of the town upon any such contract, or for any liability of the town for
any act or omission of its town officers, shall be in the name of the town.?”
[Town Law, § 11; B. C. & G. Cons. L., p. 6135.]

 

27. Effect of section. The above section modified the existing rule as to
actions by and against town officers. Under the law as it existed prior to the
enactment of this section towns had a very limited corporate power and could
only sue and be sued in respect to the exercise of such power. The purpose of
the above provision was to place the town as a party plaintiff or defendant
in the same relation to actions as town officers had before such act in respect
to like actions for causes legitimately arising out of and relating to the per-
formance of their official powers or duties. Miller v. Bush, 87 Hun, 507; 34
N. Y. Supp. 286.

The section cannot be construed to enlarge or increase the liabilities of towns
except to the extent specifically prescribed therein. Robinson v. Town of Fowler,
80 Hun, 101; 20 N. Y¥. Supp. 25.

This section creates no liability on the part of the town where it would not
have been liable except for its provisions, but simply provides that where the
town is liable proceedings must be taken against it directly. Thus, the fact
that a commissioner of highways (now town superintendent) has made a valid
contract to purchase a road machine, having sufficient funds in his hands for the
purpose, does not make the town liable therefor. Acme Road Machinery Co.
v. Town of Bridgewater, 185 N. Y. 1, revg. 104 App. Div. 597, 98 N. Y. Supp. 949.

Actions in behalf of town must be brought in the name thereof. Cornell v.
Town of Guilford, 1 Den. 510; Palmer v. Ft. Plain & Cooperstown P. R. Co., 11
N. Y. 376, 390. Bodies created by the legislature have an incidental capacity
to sue and be sued, independently of any express power. Clarissy v. Met. Fire
Department, 7 Abb. N. S. 352.

Prior to the act of 1890 the towns had a very limited corporate power. In
cases coming within such powers the town could sue and be sued except where
the town officers were authorized to sue in their names of office for the benefit
of the town. Miller v. Bush, 87 Hun 507, 34 N. Y. Supp. 286.

Where there is a liability tc the town for moneys. it can only be enforced by an
action in the name of the town. Town of Chautauqua v. Gifford, 8 Hun, 152.

Trustees of town tands do not possess legal capacity to bring a suit for the
cancellation of a lease of lands executed by their predecessors. Tuma v. Piepenbrink,
160 App. Div. 225.

Actions by and against towns. Where town has no interest in the lands in
dispute, action against commissioner of highways cannot be brought in name of the
town. Riley v. Brodie, 22 Mise. 374, 50 N. Y. Supp. 347.

This section may be construed to authorize a suit against a former supervisor to
compel him to account for moneys that came into his hands by virtue of his office.
Town of Pelham v, Shinn, 129 App. Div. 20, 113 N. Y. Supp. 98.
AUDi11NG OF TOWN ACCOUNTS. 395

Town Law, § 10.

All contracts made by town officers for and in behalf of their towns
shall be in the name of the town. When such contracts are otherwise

 

Overseer of the poor of a town cannot sue or be sued as such. Rept. of Atty.
Genl. (1894) 303.

Actions under statute prior to Town Law. See Griggs v. Griggs, 66 Barb. 287,
affd. in 56 N. Y. 504; Town of Chautauqua v. Gifford, 8 Hun 152; Hathaway
v. Town of Horner, 5 Lans. 267; Town of Lewis v. Marshall, 56 N. Y. 663; Town
of Guilford v. Lewis, 58 N. Y. 116, 121; Morey v. Town of Newfane, 8 Barb. 645.
Actions would not lie against towns for errors of assessors. Lorillard v. Town
of Monroe, 11 N. Y. 392, affg. 12 Barb. 161.

Action against town upon contract. Where a town has issued bonds in a

certain sum for the construction of a town hall and any part of the fund so
-created remains unexpended an action may be brought against the town by a
subcontractor to compel the payment of his claim for labor performed upon the
town hall, where the town board refuses to apply any of such fund to the pay-
ment of his claim. If all of the fund so created had been expended the only
remedy is a presentation of the claim to the town board for audit, and a subse-
quent review of their determination by a certiorari. Bragg v. Town of Victor,
84 App. Div. 83, 82 N. Y. Supp. 212, affd. 158 N. Y. 739.

A suit in equity, to recover the value of erections made upon lands, leased from
former trustees of a town, may be brought against the town. Sammis v. Town 0.
Huntington (1919), 186 App. Div. 463, 174 N. Y. Supp. 610.

Action upon contract legalized by legislature. An action will not lie against
a town upon a contract confessedly illegal, and afterwards legalized by an ac.
of the legislature, made by the town board for the construction of abutments fo,
a bridge. Such an action is purely upon contract notwithstanding such legaliza-
tion, and like any other contract against the town must be presented to the to~2
board for audit. Colby v. Town of Day, 75 App. Div. 211, 77 N. Y. Supp. 1022,
revd. on question of practice, 177 N. Y. 548.

Action for injuries to bridge between towns. Although it is provided by
§ 73 of the Highway Law, that town superintendents of highways may bring an
action in the name of a town against any person or corporation to sustain the
rights of the public in and to any highway of the town, the above section of the
Town Law requires an action for injuries to a bridge between towns to be
brought in the names of the towns, and not in the names of their superin-
tendents; and this is so, although by a special act such bridge is placed under the
joint control and direction of the town superintendents of the towns. Town of
Palatine v. Canajoharie Water Supply Co., 90 App. Div. 548, 86 N. Y. Supp. 412;
affd. 184 N. Y. 582.

A town has sufficient property in the highways and bridges to maintain an
action for injury thereto, and such an action is, under the above section, prop-
erly brought in the name of the town. The fact that a supervisor verifies the
complaint in such an action affords no presumption that the action was not
brought by and is not in the charge of a highway commisioner as any officer
who knows the facts is competent to verify the complaint. Town of Ft. Coving-
ton v. U. S. & Canada R. R. Co., 8 App. Div. 223: 40 N. Y. Supp. 318; affd., 156
N. Y. 702. See also Bidelman v. State of New York, 110 N. Y. 232.

Penalties for use of town to be recovered by supervisor in action brought in
name of town. Adee v. Arnow, 91 Hun 329, 36 N. Y. Supp. 1020.

Duties of supervisor to lay before town meeting statement of proceedings
only apply when action is against town in the name thereof. Hulburt v.
396 TOWN BOARD.
Town Law, §§ 12, 138.

lawfully ‘made, they shall be deemed the contracts of the town, notwith-
standing it is omitted to be stated therein that they are in the name of
the town.?* [Town Law, § 10; B. C. & G. Cons. L., p. 6134.]

§ 18. ACTIONS FOR TRESPASS ON TOWN LANDS.

Whenever an action is brought by a town to recover a penalty for a
trespass committed upon its land, and it shall appear upon the trial that
the damages from tne trespass exceed ten dollars, the town shall recover
the damages and costs in lieu of the penalty, and such recovery shall be
a bar to any subsequent civil action for the same trespass.* [Town Law,
§ 12; B.C. &G., Cons. L., p. 6137.]

§ 18-2, TOWN BOARD MAY BORROW MONEY FOR HIGHWAY PUR-
POSES WHEN TOWN MEETING HAS VOTED TO RAISE MORE THAN
$500; STATEMENT OF INDEBTEDNESS CREATED TO BE RENDERED
TO BOARD OF SUPERVISORS.

Whenever a town meeting shall vote a special appropriation of money
in the sum of five hundred dollars or more, or an appropriation for high-
way purposes or for the support of the poor during the current year, to
be levied upon the taxable property of the town, the town board shall
have power to borrow the sum so appropriated upon the faith and credit

 

Defendorf, 58 Hun, 585, 12 N. Y. Supp. 673. See People ex rel: Van Keuren v.
Town of Esopus, 74 N. Y. 310.

Other provisions relating to actions by and against towns and town offi-
cers. Actions may be brought against town officers to prevent any illegal
official act on their part, or to prevent waste or injury to, or to restore and make
good any property, funds or estate of the town, by any person or corporation
or by any number of such persons or corporations whose assessment shall
jointly equal the sum of $1,000. See General Municipal Law, § 51. As to
actions generally by or against town officers, see Code Civ. Proc., secs. 1925-1928.
Actions against towns for injuries caused by defective highways and bridges,
see Highway Law, sec. 74, post. Actions by towns against persons or corpora-
tions injuring highways or bridges, see Highway Law, sec. 73, post,

28. Effect of section. This section has not changed the old rule that a com-
missioner of highways (now town superintendent of highways) cannot create
any liability upon the part of his town to pay for materials ordered by him
for the ordinary repair of town highways. Highway commissioners are charged
with the duty of keeping town highways in repair as independent officers, and
not as agents of the town, and when they contract for such ordinary repairs
no liability is created against the town, and the commissioners tiemselves as
such officers and not the town, should be,sued for the debt. Lyth & Sons v.
Town of Evans, 33 Misc. 221; 68 N. Y. Supp. 356.

29. A town may sue to enjoin repeated trespasses upon lands owned by it,
where previously authorized by resolution of the town board. Town of Hemp-
stead v. Lawrence, 138 App. Div. 473, 122 N. Y. Supp. 1073.
AUDITING OF TOWN ACCOUNTS. 397
Town Law, § 138a.

of the town, and to issue therefor a certificate or certificates of indebted-
ness, bearing interest and payable at such date or dates as may be fixed
by said board, and the proceeds of such loan shall be placed to the
credit of the public officers charged by law with the expenditure of said
moneys. A statement of the amount maturing on such certificate of
indebtedness shall be certified by the town board at its second meeting
and delivered to the supervisor of the town, to be by him presented to
_the board of supervisors of his county at its annual meeting, and the
said board of supervisors shall cause the amount specified in such
certified statement to be levied and raised upon the taxable property
of the town in the same manner as they are directed to levy and raise
other town charges. [Town Law, § 138; B. C. & G. Cons. L., p. 6190.]
§ 19. POWER OF TOWN BOARD TO BORROW MONEY FOR EXPENSES IW

THE SUPPRESSION OF FOREST FIRES AND FOR OTHER
EMERGENCIES.

If at the timie any services are rendered for the town or expenses
incurred in the suppression of forest fires or in connection with the
performance of any other duty imposed by statute upon the town, and
requiring immediate action, there be no town funds available for the
payment therefor, or such funds be insufficient therefor, or the applica-
tion thereof to such purposes would, in the opinion of the town board,
unduly deplete the funds applicable to the payment of other town
expenses and charges, the town board may borrow on the faith and
credit of the town a sum sufficient to pay such debts or expenses. The
amount to be borrowed shall be determined by the town board by a
resolution and shall be based either upon the aggregate of claims,
charges and demands previously audited at a regular or special meeting,
or upon an estimate of theeprobable amount needed, to be filed with the
town clerk and subscribed by a majority of members of the town board.
If the amount to be borrowed does not exceed one thousand dollars, a
certificate or certificates of indebtedness shall be issued in the manner
prescribed by section one hundred and thirty-eight of this chapter, and
the amounts maturing thereon certified to the supervisor from time to
time as provided in section one hundred and thirty-eight for the purpose
of including the amount thereof maturing in the sums to be raised by
taxation at the ensuing tax levy. If the amount to be borrowed equals
or exceeds one thousand dollars, the same shall be borrowed upon bonds
of the town in the same manner as provided by law for borrowing money
398: TOWN BOARD.
Town Law, §§ 141, 141-a.

to pay judgments. Moneys may be provided under this section for
more than one lawful purpose by a single issue of such town certificates
or bonds, but the proceeds shall be divided into separate funds, each
for a separate purpose, and each such purpose shall be set forth in the
resolution authorizing the borrowing of such money. [Town Law, §
138-a, as added by L. 1913, ch. 571.]

§ 19a. APPROPRIATIONS FOR CONSTRUCTION OF CONNING TOWERS,

At a regular or special meeting, the town board of any town, not within
the forest preserve, if requested by the conservation commission, may vote
a sum of money for the construction of a conning tower, to be constructed
by such commission and to be used as a look-out in aid of the suppression of
forest fires, but the whole amount shall be voted at one meeting of such
board and shall not exceed five hundred dollars. The moneys appropriated
shall be made available for payment on the order of the conservation
commission. All moneys hereby authorized shall be assessed, levied and
collected the same as other town expenses. [Town Law, § 138b, as added by
L. 1922, ch. 141.]

§ 19b. POWER OF TOWN BOARD, IN CERTAIN TOWNS, TO BORROW MONEY
FOR THE PURPOSE OF PAYING CHARGES, CLAIMS OR DEMANDS
AGAINST THE TOWN.

Whenever a town board or board of town auditors of any town, having
a population of two thousand and upwards, shall have audited any
account, and shall have allowed in whole or in part any charge, claim or
demand against such town, and shall have made and filed a certificate to
that effect in the office of the town clerk, and such account shall thereby
have become a legal obligation and charge against such town, the town
board, in anticipation of the taxes for the current fiscal year, shall have
power to borrow upon the faith and credit of the town a sum of money
sufficient to pay the aggregate amount of the accounts so audited and

allowed at any one of the regular meetings held for that purpose, by issuing
a temporary certificate or temporary certificates of indebtedness therefor,

bearing interest and payable at such date or dates as may be fixed by
such town board, but not for a longer period than sixteen months; and
the proceeds of such loan shall be placed to the credit of the public officers
charged by law with the payment of town claims. [Town Law, § 141,
as added by L. 1912, ch. 258, and amended by L. 1916, ch. 81, and L.
1919, ch. 92.]
AUDITING OF TOWN ACCOUNTS. 399
Town Law, § 141a.

§19c. APPROPRIATION BY TOWN BOARD FOR CONTROL OF WHITE PINE
BLISTER RUST.

The town board of any town may, by a majority vote at a regular or
special meeting, appropriate for the eradication or the control of white
pine blister rust within the said town a sum not exceeding three mills
per acre of the total land area of its town. When such an appropriation
is made, the town clerk of the town shall deliver to the supervisor and
send to the conservation commission a certified copy of the resolution
making the appropriation. The supervisor shall present the certified copy
thereof to the board of supervisors of his county at its next annual session,
and the amount thereof shall be levied upon the taxable property of the
town in the same manner as are other town charges. When such funds
are available, the supervisor shall, in writing, notify the conservation com-
mission of the fact. If, in the judgment of the conservation commission,
there is sufficient white pine in the town to warrant the expenditure of
the appropriation, it shall provide for and carry on the eradication and
controlling work. The expenses incurred in connection therewith shall
be a town charge and the supervisor is authorized to pay claims therefor on
the certificate of the commission, not exceeding, however, the amount made
available. [Town Law, § 141-a, added by L. 1920, ch. 146.]

§ 194. POWER OF TOWN BOARD, IN CERTAIN TOWNS, TO ADOPT BUILD-
ING CODE. ;

The town board of a town, having a population of twenty thousand and
upwards in a county of not more than three hundred thousand and adjoining °
a city of one million or more according to the last state or federal enumera-
tion, and the town board of any town adjoining any city of the first class,
may adopt and establish and provide for the enforcement of a building code
regulating and controlling all matters concerning, affecting or relating to
the construction, alteration or removal of buildings or structures erected or
to be erected in such town not included within the limits of an incorporated
village and requiring permits for the erection, alteration or removal of such
buildings and structures.

Any such town board also may enact ordinances, not inconsistent with the
provisions of the highway law, governing the laying out of thoroughfares in
399a TOWN BOARD.

Town Law, § 14la.

subdivisions of tracts of land within such town, which ordinances may
prescribe the location, width and grade of all thoroughfares laid out as part
of a real estate subdivision. No such subdivision map of land within said
town shall be accepted by the county clerk for filing or recording unless a
certificate from the town board is attached thereto certifying a compliance

with such ordinances.

The town board, by ordinance, may impose penalties for the violation of
such ordinances or code, but no penalty for a single violation shall exceed
one hundred dollars. The town board may maintain actions at law, in any
court of competent jurisdiction, for the recovery of such penalties, in behalf
of the town, and two or more penalties incurred by the same person may be
sued for in the same action. A justice’s court in the town shall have juris-
diction of such an action, where the amount sued for does not exceed two
hundred dollars, or complaint for a violation of such an ordinance or code
may be made by any person to such justice’s court and the court may impose
a fine equal to the penalty prescribed for such violation and commit a person
convicted of a violation to the county jail, in case of default of payment of
the fine, for one day for each dollar of the fine, but not exceeding thirty
davs. .Anv such ordinance or code may provide that a continuing violation
for twenty-four hours shall constitute a separate and distinct violation.
Ordinances which the town board may adopt, or such code, or amendments
to either, shall be published before they shall go into effect in a newspaper
published in the town, if any, and also in such other newspaper or news-
papers as may be designated by the town board, and posted in at least three
public places in the town. Such ordinances, code or amendments sha!l take
effect ten days after the date of such publication, if any, and posting. In
any action or proceedings the certificate of the town clerk shall be prima
facie evidence of the adoption and publication of all such ordinances, code or
amendments. [Town Law, §141-a, as added by L. 1920, ch. 263, and
amended by L. 1922, ch. 520.]

§20. TOWN BOARDS MAY VOTE MONEY FOR MEMORIAL DAY; EXPENDI-
TURE.

It shall be lawful for the town boards of any town in this state at any
regular or special meeting to vote any sum of money not exceeding seven-
AUDITING OF TOWN ACCOUNTS. 399b

Town Law, § 136.

ty-five dollars in any year, or in towns of over five thousand inhabitants
according to the last preceding state enumeration, in which are main-
tained one or more posts or camps of the Grand Army of the Republic,
the United Spanish War Veterans or the American Legion, a sum not
exceeding one hundred dollars in any year, or in towns of over ten thous-
and inhabitants a sum not to exceed two hundred dollars a year, for the
purpose of defraying the expenses of the proper observance of Memorial or
Decoration day, which amount shall be assessed, levied and collected in
the same manner as other expenses of said town are assessed, levied and
collected and shall be paid to the supervisor of such town and be disbursed
by him in such manner as the town board of such town may direct upon
vouchers properly receipted and audited by the town board of such town;
except that in any town in which there may be a post or camp of the
Grand Army of the Republic, the United Spanish War Veterans or the
American Legion, such post or camp may direct the manner and extent
of such observance and the supervisors shall pay the expenses thereof upon
the order or orders of the commander or quartermaster of such post, which
orders shall be his vouchers for such payment, and in case there may be
two or more posts or camps of the Grand Army of the Republic, the
United Spanish War Veterans or the American Legion in any such town,
the commanders and quartermasters of such posts or camps, by concur-
ent, action, shall direct the supervisor of such town what proportion of
such money so raised shall be expended by each of such posts or camp,
which proportion 'shall be paid by such supervisor upon the order or orders
of the commander and quartermasters of each of such posts. In case
there is a post or camp in a town adjoining a town in which no post or
camp is located, whose membership includes at least three residents of
such town having no post or camp, the post or camp shall appoint a
committee of not less than three of its members who are residents of the
said adjoining town in which the post or camp is not located, and the
supervisor of said town shall pay the expenses of observance of Memorial
or Decoration Day upon the order or orders of said committee or a major-
ity thereof, which orders shall be his vouchers for such payment. [Town
Law, § 136, as amended by L. 1919, ch. 194, and L. 1920, ch. 360.]
399e TOWN BOARD.
Town Law §§ 1387, 139.

§ 21. APPROPRIATION BY TOWN BOARD FOR ROOMS FOR POSTS.

It shall be lawful for the town board of any town at any regular or special
meeting to vote a sum of money not exceeding two hundred dollars in any
year, for the purpose of assisting in defraying the rental of rooms for the
holding of meetings of any post of the Grand Army of the Republic, of the
United Spanish War Veterans or of the American Legion, located in such
town. In case there is a post in a town adjoining a town in which
no post is located, whose membership includes at least ten residents of
such town having no post, it shall be lawful for the town board of such
town having no post, at any regular or special meeting, to vote any sum
of money, not exceeding fifty dollars in any year, for the purpose of assist-
ing in defraying the rental of rooms in such adjoining town, for
the holding of meetings of a post of the Grand Army of the Republic,
of the United Spanish War Veterans or of the American Legion. ll
moneys hereby authorized shall be assessed, levied and collected the same as
other town expenses and shall be paid to the quartermaster of such post by
the supervisor, on proof to such supervisor that the post is not receiving
under the provisions of this article from a town or towns more than the
actual rental of such rooms. [Town Law, § 137, as amended by L. 1911, ch.
465, L. 1914, ch. 156, L. 1915, ch. 413, L. 1917, ch. 339, L. 1920, chs. 338,
579, and L. 1921, ch. 133.]

§22, TOWN BOARD MAY BORROW MONEY TO PAY JUDGMENTS AGAINST
TOWN.

Whenever a final judgment recovered against a town exceeds one thousand
dollars the town board of such town may borrow the sum necessary to pay
such judgment by the issue of bonds to be signed by the supervisor and
attested by the town clerk. Such bonds shall become due within twenty
years from the date of issue, and unless the whole amount of the indebt-
edness represented thereby is to be paid within five years from their date,
they shall be so issued as to provide for the payment of the indebtedness
in equal annual installments, the first of which shall be pavable not more
than five vears from their date. They shall bear interest at a rate not
exceeding five per centum per annum, and shall be sold for not less than
their par value. They shall be sold on sealed proposals or at public auc-
tion, upon notice published in a paper printed in the town, if any, and
also in such other papers as may be designated by the town board, and
posted in at least five public places in the town, at least ten davs before
the sale, to the person who will take them at the lowest rate of interest.
Such bonds shall be consecutively numbered from one to the highest num-
ber issued, and the town clerk shall keep a record of the number of each
bond, its date, amount, rate of interest, when and where payable, and the
purchaser thereof or the person to whom they are issued. [Town Law,
§ 139; B. C. & G. Cons. L., 2d Ed.; p. 6190.]
AUDITING OF TOWN ACCOUNTS. 399d
Town Law, 136a.

§23, ADDITIONAL APPROPRIATIONS FOR MEMORIAL DAY UPON THE
ADOPTION OF A PROPOSITION THEREFOR,

Upon the adoption of a proposition therefor, by the qualified electors
of the town entitled to vote thereon, as hereinafter provided, the town
board of any town may appropriate from town funds a sum not exceeding
the amount which it is authorized by the provisions of this section to
raise by tax for the purpose of defraying the expenses of the proper observ-
ance of Memorial or Decoration Day, in addition to any moneys which
such town board is authorized to provide for by section one hundred and
thirty-six of this chapter. A proposition directing the appropriation of
town moneys for the additional expenses of the proper observance of Mem-
orial or Decoration Day, under the provisions of this section may be sub-
mitted to the electors of the town qualified to vote thereon at a biennial
or special town meeting in the manner provided in this chapter for the
submission of propositions for raising or appropriating. money, except that
no such proposition shall be submitted unless at least ten per centum of
the qualified voters of the town unite in a written application therefor
addressed to the town clerk. Such proposition shall be deemed adopted
if it receive the affirmative vote of a majority of the qualified electors
voting thereon. Moneys appropriated for the purposes of this section shall
be raised by taxation in the same manner as other town expenses, but shall
not exceed in any one year a sum equal to twenty-five hundredths of a
mill on each dollar of the assessed valuation of property in the town
according to the assessment-roll last preceding the date of submission of
the proposition. A proposition adopted as aforesaid shall continue in
force until rescinded by a proposition submitted and adopted in like man-
ner, but not more than one such proposition either directing the appropria-
tion or rescinding a former proposition shall be adopted in any one year.
Moneys appropriated under the provisions of this section shall be kept
separate and apart from those provided for in section one hundred and
thirty-six of this chapter and shall be expended under the direction of the
town board. [Town Law, 136-a, as added by L. 1912, ch. 185, and
amended by L. 1915, ch. 412.]
400 TOWN BOARD.

Explanatory note.

CHAPTER XXIX.

ORDINANCES AND LICENSES BY TOWN BOARDS.

EXPLANATORY NOTE.

Licenses in Towns.

A town board as the governing board of a town has much the same
power in regulating the granting of licenses to peddlers and other
persons desiring to transact business in streets and public places as is
possessed by common councils in cities and boards of trustees in villages.

The Town Law authorizes a town board to prohibit hawking and
peddling of goods and produce, either in the streets or by calling from
house to house, without a license. There are certain limitations on
this power, as in case of selling meats, fish, fruit or farm produce.
If a person peddles goods, wares or merchandise produced in any
foreign country, other than groceries and provisions, he must not only
be licensed as provided by regulation of a town board, but he must
also have a license issued by the Secretary of State.

It is expressly provided by § 81, post, of the General Municipa! Law
that a town board shall not regulate or prohibit the hawking and peddl-
ing of farm produce. Where a town board has passed an ordinance or
regulation requiring a license for peddling or hawking, a person who
refuses to show such a license when demanded by a peace officer for the
purpose of inspection, is liable to a penalty of twenty-five dollars, re-
coverable by the supervisor. He is also guilty of a misdemeanor.

A town board may also regulate the transaction of a transient retail
business in any store in the town, for the sale of damaged or bankrupt
goods. No such business may be conducted without a license to be is-
sued upon the payment of a license fee to be fixed by the town board,
at not exceeding fifty dollars and not less than ten dollars a month.

mw
LICEN3ZS BY TOWN BOARDS. 401

Town Law, § 210.

Town boards are also authorized, in towns of more than 3,000
population outside of villages, to license hacks, shows, concerts and
public amusements.

Section 1. Town board may prohibit hawking and peddling without a license;
not to apply in certain cases.

2. Licenses to be issued by town clerk and endorsed by supervisor;
effect of license,

8. Hawking and- peddling by soldiers, sailors and marines; license
therefor. .

4. Peddling and hawking farm produce.

5. Penalty for peddling or hawking without a license; refusal to show
license, effect of.

6. Unlawful hawking or peddling, or refusal to produce a license a mis-
demeanor.

3. Transacting retail business for sale of bankrupt or damaged goods
without a license; town board to fix license fee; supervisor to issue
license.

Ya. Taxation of transient merchants.

8. Town board may license hacks, venders, shows, concerts and public
amusements; rules and regulations therefor; penalty for violation.

8a. Town boards may regulate saie and use 61 u.cwuins; violation mis-
demeanor.

9, Regulation of junk business; junk dealers to be licensed by town su-
pervisor.

10. Restrictions or regulations not to discriminate against non-residents,

11, Exhibitions and entertainments on fair grounds to be exempt from
license,

§ 1. TOWN BOARD MAY PROHIBIT HAWKING AND PEDDLING
WITHOUT A LICENSE; NOT TO APPLY IN CERTAIN CASES.

The town board of any town may, by resolution, prohibit the hawking and
peddling of goods or produce in public streets or places, or the vending
of the same by calls from house to house, without a license; but such
prohibition shall not apply to the peddling of meats, fish, fruit or farm
produce, to the sale by sample or prospectus of goods, books or other
merchandise where the same are not delivered at the time the order therefor
is taken, or to peddling by any person or corporation ‘in this state,
provided no sale is made by such person or corporation of dry goods, cloth-
ing, drugs or articles of food, and all sales are wholly or partly by barter for
merchandise, or so as to require a license from an honorably discharged
soldier, sailor or marine of the military or naval service of the United

 

1. Peddling of farm produce. General Municipal Law, sec. 81, post, p. 403,
prohibits a town board from regulating by ordinance the hawking and peddling
e* form produce.
402 TOWN BOARD.

Town Law, § 211; General Business Law, § 32,

States, who has obtained a license from the county clerk to hawk, peddle,
vend or solicit trade, in pursuance of law.? [Town Law, § 210; B. C.
& G. Cons. L., p. 6202.]

§ 2. LICENSES TO BE ISSUED BY TOWN CLERK AND ENDORSED
BY SUPERVISOR; EFFECT OF LICENSE.

If any such occupation in any town shall be so prohibited, the town
board thereof shall establish uniform annual fees for such licenses, and
the town clerk shall issue a license, specifying the fee to be paid therefor,
to any citizen of the United States, applying therefor, that he deems a
suitable person to pursue such calling. Upon the presentation of such
license to the supervisor of the town, and the payment to him of the fee
specified therein, the supervisor shall endorse upon the license a receipt
of such payment and the date thereof. Such license shall take effect from
tne date of such payment, and shall continue in force for the term specified
therein. Such license shall not be issued for a longer term than one year
nor for a shorter term than three months. Any applicant that has been
refused such license by the town clerk may apply to the town board therefor,
and the same may be granted or refused by the board. [Town Law, §
211; B. C. &. G. Cons. L., p. 6202. ]

§ 3. HAWKING AND PEDDLING BY SOLDIERS, SAILORS AND
MARINES; LICENSE THEREFOR.

Every honorably discharged soldier, sailor or marine of the military
or naval service of the United States, who is a resident of this state and

 

2. Hawking and peddling generally. As to hawking and peddling by soldiers,
sailors and marines, see General Business Law, § 31.

By article 4 of the General Business Law, a person traveling from place to
place within this state for the purpose of selling or exposing for sale of any
goods, wares or merchandise of the growth, product or manufacture of any
foreign country, other than family groceries and provisions, must secure a
license as a peddler from the secretary of state. The provisions of such article
do not affect the applicat-on of any ordinance, by-law or regulation adopted by
a town board relating .o hawkers and peddlers within the limits of such
town. But the provisions of such article are to be complied with in addition
to the requirements of any such ordinance, by-law or regulation. See General
Business Law, -§ 35. It follows, therefore, that no person can peddle from
house to house in a town goods, wares, or merchandise of the growth or manu-
facture of a foreign country without securing a license from the secretary of
state, and also complying with the rules and regulations of the town board as
to peddling in the town.

Liability for false imprisonment. Where information is presented to a jus-
tice of the peace, alleging the violation of a resolution or ordinance passed by
a town board, jurisdiction is given to the justice; if the person arrested is
discharged because the resolution related only to non-residents of the town,
the person who presented the information is not liable for false imprisonment.
Gilbert v. Satterlee, 101 App. Div. 313, 91 N. Y. Supp. 960.
LICENSES BY TOWN BOARDS. 403

General Municipal Law, § 81.

a veteran of either the civil war, the Spanish-American war or the world war, or
who shall have served beyond sea, and the widow of.any such veteran if she is a
resident of the state, shall have the right to hawk, peddle, vend and sell by auction
his own goods, wares or merchandise or solicit trade within this state, by procuring
a license for that purpose to be issued as herein provided.

On the presentation to the clerk of any county in which any soldier, sailor or
marine may reside of a certificate of honorable discharge from the army or navy of
the United States, which discharge shall show that the person presenting it is a
veteran of the civil war, the Spanish-American war, or the world war, or that
he has served beyond sea, or on presentation to such clerk by any such widow, of an
affidavit of herself and two other residents of the county that she is such widow,
accompanied by such certificate of honorable discharge of her deceased husband,
such county clerk shall issue without cost to such soldier, sailor, marine or widow a
license certifying him or her to be entitled to the benefits of this article.3 A license
issued without cost, under the provisions of this section, shall be personal to the
licensee, and any assignment or transfer thereof shall be absolutely void. A person
assigning or transferring, or attempting to assign or transfer any such license con-
trary to the provisions of this section shall be guilty of a misdemeanor. [General
Business Law, § 32, as amended by L. 1915, ch. 175, and L. 1919, ch. 42, and 272.]

§ 4. PEDDLING AND HAWKING FARM PRODUCE.

The governing board of a municipal corporation shall not by ordinance or other-
wise regulate or prohibit the pursuit or exercise of hawking and peddling farm pro-
duce except hay and straw within the limits of any such municipal corporation, if
such farm produce is hawked or peddled by the producer thereof, or his seryants
or employees; nor shall the governing board of any such municipal corporation pass
an ordinance requiring such producer of farm produce to secure a license for
peddling and hawking such farm produce within the limits of such municipal cor-
poration.3a Nothing contained herein shall affect any pending action or proceeding to

ae

, Sale of goods, through orders given to deliverymen, does not come within the mean-
ing of this provision. Rept. of Atty. Genl. (1899), 229.

8. Municipal regulations. A license to peddle granted under this article does not
relieve the licensee from compliance with municipal regulations as to licenses. City
of Buffalo v. Linsmann, 113 App. Div. 584, 98 N. Y. Supp. 737. See also Opinion
of Atty. Genl. (1917), 11 State Dept. Rep. 562.

A veteran who holds a license under this section which entitles him to_ peddle
goods anywhere in the state, must nevertheless observe such municipal ordinances
as are designed to prevent: obstruction of the public streets. Eggleston v. Scheibel,
60 Misc. 250, 112 N. Y. Supp. 114.

An ordinance which prohibits any person from selling peanuts or popcorn from
a vehicle, unless drawn by a horse or horses, is unlawful, because it unreasonably
discriminates against those who might engage in such business from vehicles drawn
by hand. People v. Gilbert, 68 Misc. 48, 128 N. Y. Supp. 264.

Rights under license. Veteran holding a license cannot solicit trade on the Niagara
Reservation. Rept. of Atty. Genl. (1899) 291. See also Rept. of Atty. Genl, (1904) 427.

An honorably discharged soldier of the United States, who has procured a license
from the county clerk pursuant: to this section, is not guilty of a misdemeanor on
account of the violation of a municipal ordinance forbiddinng all persons from
occupying or obstructing any portion of any street for the sale of certain specified
commodities, in the absence of proof of his having obstructed the street. People v.
Gilbert, 68 Misc. 48, 123 N. Y. Supp. 264.

Construction. This section should be construed fairly and liberally, and those
Soldiers, sailors and marines who have been discharged from active duty but kept on
the reserve list, should be accorded the same rights and privileges in the granting
of licenses under this section as those who have been finally discharged. Opinion of
Atty. Gen. (1919) 19 St. Dep. Rep. 367.

Veterans entitled to license. Residents of the state who were enrolled as members
of the military, naval or marine organizations during the Civil War, the Spanish-
American War or the World War, or who served overseas and who received discharges
other than dishonorable discharges, are entitled to peddlers’ license. Opinion of
Atty. Gen. (1920), 24 St. Dept. Rep, 212,

8a, Constitutionality of the provision requiring certain transient retail dealers to
obtain licenses from local authorities before doing business, cannot be sustained as an
evercise of either the police power or of the power of taxation. People ex rel.
Moskowitz v. Jenkins, 202 N. Y. 58, revg. 140 App. Div. 786, 125 N. Y. Supp. 817.

Hawking and peddling of farm produce by persons who have purchased the same
from others, cannot be prohibited by a village. Rept. of Atty. Genl., Apr. 25, 1911.

Farmers peddling milk, which they produce on_ their own farms, cannot be compelled
to take out a license by local boards of health operating under city ordinanlces.
Rept. of Atty. Genl., Aug. 11. 1910.

 
x

404 TOWN BOARD,
General Municipal Law, § 85: Town Law, § § 212-214,

recover penalties imposed for violations of existing ordinances and regula-
tions. Nothing in this section shall be construed to permit wagons from
wnich farm produce is sold to stand in front of stores or private residences
for a longer time than may be necessary for the sale and delivery of
produce purchased by the occupants of such stores or residences; nor to
permit the congregating of such wagons upon any street or thoroughfare
not set apart by the municipality as a public market for the sale of farm
produce. This section shall not apply to cities of the first class. [General
Municipal Law, § 81; B. C. & G. Cons. L., p. 2135.]

§ 5. PENALTY FOR PEDDLING OR HAWKING WITHOUT A LI-
CENSE; REFUSAL TO SHOW LICENSE, EFFECT OF.

Every person hawking or peddling goods or produce in the public streets or
places, or vending the same by calls from house to house, in any town, the town
board of which requires a license for the pursuit of such calling, without having
obtained such license, or who refuses to produce such a license to any peace officer
who demands inspection of the same, shall be liable to a penalty of twenty-five
dollars, recoverable by the supervisor of the town in any court having jurisdiction
thereof, and applicable to the support of the poor of the town. The refusal to
produce such a license when demanded by a peace officer shall be presumptive evi-
dence that such person is hawking, peddling or vending without a license. An
action for a penalty imposed by this section shall not be maintained unless it is
brought within sixty days after the commission of the offense charged.* [Town
Law, § 212; B. C. & G. Cons, L., p. 6202.]

§ 6. UNLAWFUL HAWKING OR PEDDLING, OR REFUSAL TO PRO-
DUCE A LICENSE A MISDEMEANOR.

Any person who hawks, peddles or vends wtihout a license in any town, as re-
quired by tle article, or contrary to the terms of his license, or who refuses to
produce his license on the demand of a peace officer is guilty of a misdemeanor.
[Town Law, § 213; B. C. & G. Cons. L., p. 6203.]

Niagara and Orleans counties excepted. Niagara and Orleans counties are hereby
excepted from the provisions of the last four sections of this chapter. [Town Law,
§ 214; B.C. & G. Cons. L., p. 6203.]

§ 7. TRANSACTING RETAIL BUSINESS FOR SALE OF BANKRUPT
OR DAMAGED GOODS WITHOUT A LICENSE; TOWN BOARD
TO FIX LICENSE FEE; SUPERVISOR TO ISSUE LICENSE.

No person whether acting as principal or as agent for another, shall conduct a
transient retail business in any store in any city of the third class, village or town
of this state for the sale of goods which shall be represented or advertised as a
bankrupt stock, or as assigned stock, or as goods damaged by fire, water or other-
wise, or by any such like representation or device, without first taking out a license
therefor from the mayor of such city, president of such village or the supervisor

4, Penal provision. By section 1610 of the Penal Law it is provided that: “A
person who is found trading as a peddler without a license or contrary to the terms
of his license, or who refuses to produce his license on demand of any officer or
citizen is guilty of a misdemeanor.”
LICENSES BY TOWN BOARDS. 405

General Municipal Law, § 85a; Town Law, § 215.

of such town. The amount of the fee for such license in any city shall be fixed by
resolution duly passed by the board of aldermen or common council, and in a village
py resolution duly passed by the board of trustees of such village; and in a town
by resolution of the town board of such town. Such fee shall not be less than
twenty-five dollars nor more than one hundred dollars per month in a city or an
incorporated village, and not less than ten dollars nor more than fifty dollars
per month in a town. No such license shall be issued for a less period than one
month and it shall be renewed monthly during the continuance of such business.
The sum paid as license fees shall, in a city or village, be paid to the treasurer of
such city or village, and in « town to the supervisor thereof, to be used for city,
village or town purposes. ; ’ ae .

Any person as principal or agent conducting a transient retail business as de-
scribed in this section, without obtaining a license therefor, shall be guilty of a
misdemeanor and upon conviction thereof shall be fined a sum not less than one
hundred dollars nor more than two hundred dollars, and in default of the payment
theregf shall be imprisoned for a period of not more than sixty days.ta [General
Municipal Law, § 85; B. C. & G. Cons. L., p. 2136.]

§ 7a. TAXATION OF TRANSIENT MERCHANTS.

The legislative body of a city, the town board of a town or the board of trustees
of a village has power to provide that a tax shall be levied upon all persons or cor-
porations conducting transient retail business therein, and may provide for the
collection of such tax by requiring a permit and bond, cash deposit or other secur-
ity before the commencement of business by such persons or corporations. Such
tax shall be based upon the gross amount of sales and shall be at the same rate as
other property is taxed for the year in such city, town or village. If at the time
such tax becomes due and payable, the tax rate for the current year of such city,
town or village has not been fixed, the same shall be estimated by the assessors
thereof. An ordinance or resolution providing for a tax hereunder may require veri-
fied reports to be filed from time to time relating to stock and sales, and may
make such further requirements as may be necessary in order to determine the
amount of such tax, and to provide for the collection thereof. A transient business
is one conducted in a store, hotel, house, building or structure for the sale at retail
of goods, wares or merchandise, excepting food products, and which is intended to
be conducted for a temporary period of time and not permanently. If the place in
which a business is conducted is rented or leased for a period of two months or less,
such fact shall be presumptive evidence that the business carried on therein is a
transient business. Any person or corporation failing to pay said tax, or failing to
obey the provisions of an ordinance or resolution adopted hereunder, shall be guilty
of a misdemeanor.4> [General Municipal Law, § 85a, as added by L. 1917, ch. 199.]

§ 8 TOWN BOARD MAY LICENSE HACKS, VENDERS, SHOWS, CONCERTS
AND PUBLIC AMUSEMENTS; RULES AND REGULATIONS THERE-
FOR; PENALTY FOR VIOLATION.

License fees, how fixed, collected and applied—tThe supervisor, jus-
tice of the peace and town clerk of any town are hereby authorized and
empowered to license and regulate all public hacks, vehicles, vendors,
shows, concerts, public amusements, merry-go-rounds, carousals, tobog-
gan slides, ferris wheels, rope dancing, loop-the-loop, public gardens,
tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any
other entertainment of the stage, or any part or parts thereof, or any

 

4a, Constitutionality of the provision, requiring certain transient retail dealers
to obtain licenses from local authorities before doing business, cannot be sustained
as an exercise of either the police power or of the power of taxation, and hence is
unconstitutional. People ex rel. Moskowitz v. Jenkins (1911), 202 N. Y. 53, revg.
140 App. Div. 786, 125 N. Y. Supp. 817. .

4b. As to constitutionality, see Opinion of Atty. Genl. (1918), 18 State Dept.
Rep. 444,
406 TOWN BOARD.

Town Law, §§ 216-218.

equestrian, circus or dramatic performance, or any performance of
jugglers or acrobats in such town outside of an incorporated city or
village, and to fix the fee to be paid for the persons so licensed to said
officers, which money so collecied shall bz paid over to the supervisors of
such town within thirty days after the receipt of the same, and the said
supervisor shall, after deducting the necessary expences for carrying out
the provisions of this article place the same in the general town fund.
| Town Law, § 215, as amended by L. 1913, ch. 496; B. C. and G. Cons.
L., p. 6203.]

Rules and regulations—The said officers shall have power to make
and establish such rules, regulations and ordinances not inconsistent with
the laws of this state, as they may deem necessary for the proper regula-
tion of such hacks, vehicles, venders, shows, concerts, public amusements,
merry-go-rounds, carousals, toboggan slides, ferris wheels, rope dancing,
loop-the-loop, public gardens, tragedy, comedy, opera, ballet, play, farce,
minstrelsy or dancing, or any other entertainment of the stage, or any
part or parts thereof, or any equestrian, circus or dramatic performance,
or any performance of jugglers or acrobats. Such rules, regulations and
ordinances shall be posted in at least ten public places in such town.
[Town Law, § 216; B. C. & G. Cons. L., p. 6203.]

Licenses required, and violation of act a misdemeanor.—lIt shall not be
lawful, in any town where the officers mentioned in this article shall have
made and established rules, regulations and ordinances as in this article
provided for, to conduct, or operate, any public hacks, vehicles or peddling
or to maintain, operate, carry on or exhibit any shows, concerts, public
amusements, merry-go-rounds, carousals, toboggan slides. ferris wheels,
rope dancing, loop-the-loop, public gardens, tragedy, comedy, opera, ballet,
play, farce, minstrelsy or dancing, or any other entertainment of the stage,
or any part or parts tnereof, or any equestrian, circus or dramatic perform-
ance, or any performance of jugglers or acrobats, until a license for
conducting, maintaiming, carrying on, and exhibiting the same shall have
been first had and obtained, signed by the supervisor and town clerk of
any such town, and each and every violation of the provisions of this
article shall be a misdemeanor. [Town Law, § 217; B. C. & G. Cons.
L., p. 6204.]

Offenders: where tried—Subject to the power of removal provided
for in part one, chapter one, title six of the code of criminal procedure,
courts of special sessions in any such town have, in the first instances,
exclusive jurisdiction to hear and determine charges of violating tne pro-
visions of this article and all violations of any rule, regulation or ordinance
established by the officers of any such towns as provided for in this article;
and any person violating the provisions of this article, or any rule, reguia-
tion er ordinance established by said officers as in this article provided
LICENSES BY TOWN BOARDS, 407
Town Law, §§ 219, 220; General Business Law, § § 60, 61.

for, shall be guilty of a misdemeanor. [Town Law, § 218; B. C. & G. Cons. L.,
2d Ed., p. 8846.]

Injunction by town authorities.—In case any person shall operate or conduct any
public hack, vehicle or peddling or shall open, advertise to open, operate, maintain
or conduct any show, concert, public entertainment, merry-go-round, carousal, tobog-
gan slide, ferris wheel, rope dancing, loop-the-loop, public garden, tragedy, comedy,
opera, ballet, play, farce, minstrelsy or dancing, or any other entertainment of the
stage, or any part or parts thereof, or any equestrian, circus, or dramatic perform-
ance or any performance of jugglers or acrobats in any town without first obtaining
a license therefor as provided for by this article or as provided for by the rules,
regulations and ordinances adopted by any town as herein provided for, it shall,
and may be lawful for the town, in its corporate name, to apply to the supreme
court, or any justice thereof, for an injunction to restrain the opening, carrying on,
or maintaining thereof, until he shall have complied with the requisites of this
article and of the rules, regulations and ordinances adopted by any said town in
obtaining such license, which injunction may be allowed upon a complaint to be
in the name of the town in the same manner as injunctions are now usually allowed
by the practice of said court; and the said town is not required to give any under-
taking on any such application granted or applied for under the provisions of this
article. [Town Law, § 219; B. C. & G. Cons. L., 2d Ed., p. 8846.]

§8a, REGULATIONS RELATING TO FIREWORKS AND CERTAIN OCCUPA-
TIONS.

The town board of any town shall have power to make and establish such rules,
regulations and ordinances, not inconsistent with the laws of this state, as they
may deem necessary for the proper regulation of the sale, disribution, explosion
and use of any fire crackers, rockets, blue lights, roman candles, colored pots, lance
wheels or other fireworks within the town. The town board of any town in a
county containing wholly within its boundaries a city of*over four hundred and
fifty thousand population also may make and establish such rules, regulations and
ordinances, not inconsistent with the laws of this state, as they may deem necessary
for the proper regulation and licensing of all eating places, lunch counters, pool
and billiard rooms and places wherein beverages of any description are sold or
offered for sale. Such rules and regulations may establish the hours when such
place or places may remain open. Such rules, regulations and ordinances shall be
posted in at least ten public places in such town. A person violating any provisions
of such rules, regulations or ordinances shall be guilty of a misdemeanor. [Town
Law, § 220, added by L. 1920, ch, 29, and amended by L, 1921, ch. 215.]

§9. REGULATION OF JUNK BUSINESS; JUNK DEALERS TO BE LICENSED
BY TOWN SUPERVISOR.

It shall be unlawful for any person, association, partnership or corporation to
engage in the business of buying or selling old metal, which business is herein
designated junk business, and which person, association, partnership or corporation
is herein designated junk dealer, unless such junk dealer shall have complied with
the provisions of this article and obtained a license so to do from the mayor of
the city, if the principal place of business of such junk dealer is in a city, or the
president of the village if such place of business is in an incorporated village,
otherwise from the supervisor of the town in which such place of business is located;
for which license shall be paid such mayor, president or supervisor for the use of
such city, village or town, the sum of five dollars, which license shall expire June
a at of each year. [General Business Law, § 60; B. C. & G. Cons. L., 2d Ed,
p.

Persons «ot entitled to  license-—-No person, association, partnership
or corporation shall be entitled to or receive such license who or which
408 TOWN BOARD.

General Business Law, §§ 62-64; General Municipal Law, § 80.

and in case of a partnership or association any member of which, has
been since January first, nineteen hundred and three, or who or which
shall hereafter be convicted of larceny or knowingly receiving stolen
property, or of a violation of this act. [Idem, § 61; B. C. & G. Cons. L,
p. 1816.]

Statement required from persons selling certain property—On purchas-
ing any pig or pigs of metal, bronze or brass casting or parts thereof, sprues
or gates or parts thereof, copper wire or brass car journals, such junk
dealer shall cause to be subscribed by the person from whom purchased
a statement as to when, where and from whom he obtained such property,
also his age, residence by city, village or town, and the street and number
thereof, if any, and otherwise such description as will reasonably locate
the same, his occupation and name of his employer and place of employ-
ment or business, which statement the junk dealer shall forthwith file in
the office of the chief of police of the city or village in which the purchase
was made, if made in a city or incorporated village, and otherwise in the
office of the sheriff of the county in which made. [Idem, § 62, as amended
by L. 1918, ch. 20; B. C. & G. Cons. L., p. 1816.]

Certain property to be kept in certain piles—Every junk dealer shall on
purchasing any of the property described in the last section place and
keep each separate purchase in a separate and distinct pile, bundle or
package, in the usual place of business of such junk dealer, without re-
moving, melting, cutting or destroying any article thereof, for a period
of five days immediately succeeding such purchase, on which package,
bundle or pile shall be placed and kept by such dealer a tag bearing the
name and residence of the seller, with the date, hour and place of purchase,
and the weight thereof. [Idem, § 63; B. C. & G. Cons. L., p. 1816.]

Penalty.—¥Each violation of this act, either by the junk dealer, the agent
or servant thereof, and each false statement made in or on any statement or
tag above mentioned shall be a misdemanor, and the person convicted snall,
in addition to other penalties imposed, forfeit his license to do business.
But nothing herein contained shall apply to cities of the first class. [Idem,
§ 64; B. C. & G. Cons. L., p. 1817.]

§ 10. RESTRICTIONS OR REGULATIONS NOT TO DISCRIMINATE
AGAINST NONRESIDENTS.

Any restriction or regulation imposed by the governing board of @
municipal corporation upon the inhabitants of any other municipal cor-
poration within this state, carrying on or desiring to carry on any lawful
business or calling within the limits thereof, which shall not be necessary
for the proper regulation of such trade, business or calling, and shal! not
apply to citizens of all parts of the state alike, except ordinances or regu-
LICENSES BY TOWN BOARDS. 409

Membership Corporations Law, § 197.

lations in reference to traveling circuses, shows and exhibitions, shall be
voids [General Municipal Law, § 80; B. C. & G. Cons. L, p. 2134.]

§ 11. EXHIBITIONS AND ENTERTAINMENTS ON FAIR GROUNDS
TO BE EXEMPT FROM LICENSE.

The provisions of any special or local law or municipal ordinance,
requiring the payment of a license fee for exhibitions or entertainments,
shall not apply to any exhibition or entertainment held on the grounds of
a town or county fair association, if the association derives a pecuniary
profit from such exhibition or entertainment by the lease of its grounds
for such purpose, or otherwise. [Membership Corporations Law, § 197;
B. C. & G. Cons. L., p. 3449.]

 

5. This section is operative except as inconsistent with the preceding sec-
tions of this chapter. Sections 210-213 of the Town Law, and General Munici-
pal Law, § 85, supersede in a measure the provisions of this section.

Licenses of vendors which discriminate against non-residents are void. Rept.
of Atty. Genl. (1894) 189, 200. ,
410 TOWNS, TOWN MEELINGS AND TOWN OFFICERS.

Explanatory note.

CHAPTER XXX,

FIRE PROTECTION; WATER, LIGHT AND SEWER SYSTEMS; SIDE-
WALKS.

EXPLANATORY NOTE.

Fire Companies in Towns.

It is sometimes desirable in towns having thickly settled communities
which are not incorporated as villages, to provide therein for fire pro-
tection. The law authorizes the town board in such cases to organize
fire companies. Such companies are permitted to choose their own
officers and adopt rules for their government. All vacancies in such
companies are filled hy the town board, although it would be proper to
make such appointments ‘on recommendation of the companies.

Where such a company is organized the electors of the district
served by such company may vote to purchase necessary fire apparatus.
The cost thereof is to be levied upon the taxable property of the district.

Water Supply District ; Water-Works.

A town board may establish a water supply district outside of any
incorporated village in the town. Where such a district is established,
the town board may contract with village water commissioners to
furnish water for fire, sanitary or other public purpose to such district.
Such a contract may also be made with a water works company. The
rental to be paid for the use of the water is primarily a charge upon
the town, but must be levied upon the taxable property in the district.

Provision is also made in the Town Law for the purchase of existing
water works. Town bonds may be issued therefor which tare to be
paid, principal and interest, by tax levied against the taxable property
of the district. It is also provided that a town may construct its own
water works system at the cost of a water supply district established
hy the town board.
FIRE: WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 411

Explanatory note.

Street Lighting Districts.

Lighting districts may be established in towns where circumstances
warrant it. In such cases the town board may contract for the lighting
of streets and public places in such districts, upon such terms and
for such periods, not exceeding ten years, as they may deem proper or
expedient. No such contract may be made unless petitioned for by
a majority of the taxpayers of the district. The expense incurred is
assessed and levied on the taxable property in the district.

Establishment of Sewer System.

A sewer system may le established by a town board in a prescribed
district in the town, outside of an incorporated village. The town
board acts upon the petition of a majority of the taxpayers representing
a majority of the taxable property in the district. The petition must
describe the proposed district. The town board upon establishing the
system must appoint three taxpayers of the district as sewer com-
missioners. These commissioners are to construct the sewer as provided
by law.

Secrion 1. Town board may appoint members of fire companies outside of incor-
porated villages; electors of highway district may vote to pur-
chase fire apparatus. —

2. Town board may establish water supply districts.
3. Water works corporations must furnish water to town; town board may
establish water supply district; expense chargeable upon district.
4, Purchase of water works by town.
5. Establishment of water districts in towns.
5a. Town boards may establish joint water supply districts; petition;
map; expenses, how paid; action by joint town boards; contract
for water supply; levy of taxes for payment of amount of contract.
6. Town boards may establish street lighting districts and contract for
the lighting of streets therein; petition therefor; notice to be pub-
lished; amount of contract, how raised.
éa. Lighting contracts in town and village.
6b. Town contracts for lighting improved highways or bridges.
7. Town board may establish sewer system; petition,
8. Sidewalk districts established.
9. Contracts for improvements; improvements, how paid for.
10. Control over sidewalks,
11. Proceedings for constructing sidewalks not constructed under the pre-
ceding sections.

§1. TOWN BOARD MAY APPOINT MEMBERS OF FIRE COMPANIES OUT-
SIDE OF INCORPORATED VILLAGES; ELECTORS OF HIGHWAY
DISTRICT MAY VOTE TO PURCHASE FIRE APPARATUS,

_ The town board of any town may appoint in writing, any number of
inhabitants of their town, which they may deem necessary, to be a fire com-
pany or companies for the extinguishment of fires in their town. [Town
Law, § 310, as amended by L. 1910, ch. 408, and L. 1912, ch. 238; B.C. &
G. Cons, L., 2d Ed., p. 8882.]
412 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, §§ 311, 312, 313.

Establishment of rules and regulations by fire company.—Hach fire com-
pany, thus formed, shall choose a captain and clerk thereof, and may es-
tablish such by-laws and regulations as may be necessary to enforce the per-
formance, by such firemen, of their duty, and may impose such penalties,
not exceeding five dollars for each offense, as may be necessary for that
purpose. Such penalties may be collected by and in the name of the cap-
tains, in any court having cognizance thereof, and, when collected, shall
be expended by the companies for the repair and preservation of their en-
gines and apparatus for the extinguishment of fires. [Town Law, § 311;
B.C. & G. Cons L., p. 6221.]

Vacancies in fire company.—All vacancies which may, at any time hap-
pen in such companies by death, resignation or otherwise, shall, from time
to time, be filled by the town board. ['Town Law, § 312; B. C. & G. Cons.
L., p. 6221.]

Appropriations for fire company—The electors of any water district,
highway district, town fire district or water supply district, in which any
town fire company shall have their headquarters, at a special meeting law-
fully called by the town clerk, who is hereby authorized to call such special
meeting, may vote, by ballot, a sum of money, not exceeding four thousand
dollars, except that in any such district in a town within a county having
more than three hundred thousand inhabitants according to the last state
census, and adjoining a city of the first class, such sum shall not exceed
ten thousand dollars, for the purchase of a fire engine and apparatus for
the extinguishment of fires, and for the purchase or lease or other acqui-
sition of suitable buildings and grounds for keeping and storing such fire
engine and apparatus for the extinguishment of fires, and other property
of said water district, highway district or water supply district, and an
additional sum for the maintenance and operation of the engines, apparatus
and buildings and of said fire company or companies within such district
for the ensuing year. And whenever said electors shall so vote said money
for the purchase of a fire engine and apparatus for the extinguishment of
fires, and for the purchase or lease or other acquisition of suitable build-
ings and grounds for keeping and storing such fire engine and apparatus
for the extinguishment of fires, and other property of said water district,
highway district, town fire district or water supply district, the water com-
missioners in water districts and the town boards in highway and water
supply districts or town fire districts where no board of town fire commis-
sioners has been established, and the boards of town fire commissioners in
town fire districts may contract for and purchase for such district a good
and sufficient fire engine and apparatus for the extinguishment of fires, and
may contract for and purchase or lease or otherwise acquire for auch dis-
trict suitable buildings and grounds for keeping and storing such fire en-
gine and apparatus for the extinguishment of fires, and other property of
said district at a price not to exceed the sum so voted therefor, which en-
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 413

Town Law, §§ 313, 313a, 313b, 314.
e

gine and apparatus for the extinguishment of fires, and buildings and
grounds, shall be the property of said water district, highway district, town
fire district or water supply district, but may be used and cared for by
such fire company or companies under the direction and control of the
water commissioners in water districts and the town board in highway and
water supply districts and in town fire districts where no board of town
fire commissioners has been established; all of which boards shall in such
cases respectively have such powers and duties as are hereafter in this ar-
ticle provided for boards of town fire commissioners.? [Town Law, §
313, as amended by L. 1910, ch. 408, L. 1912, ch. 238, L. 1916, ch. 226,
and L, 1917, ch. 577; B. OC. & G. Cons. L., p. 8882. ]

In any such district authorized to raise more than four thousand dollars,
as in the last section provided, if the amount so voted shall exceed in
amount one-fourth of one per centum of the aggregate assessed valuation
of the real property within such district, as shown by the last preceding
town assessment roll, and request so to do is made of the town board by
the governing commission, or board, of such district, it shall be the duty
of such town board to raise the amount of money so voted by the issue and
sale of bonds. Such bonds shall be signed by the supervisor and attested
by the town clerk, and shall be paid in five equal annual installments, the
first of which shall become due not more than eighteen months from their
date. Such bonds shall bear such rate of interest not exceeding six per
centum per annum, and be in such form as the town board of such town
may approve and shall be sold at public sale by the supervisor of such town
for not less than their par value. Such bonds shall be consecutively num-
bered from one to the highest number issued, and the town clerk shall keep
a record of the number of each bond, its date, amount, rate of interest,
when and where payable and the purchaser thereof, or the person to whom
they are issued. Such bonds shall be a charge upon the town and ‘the
amount necessary to pay said bonds and the interest thereon as the same
becomes due shall be collected from the property within such district.
[Town Law, § 313a, as added by L. 191%, ch. 577.]

In any town in which bonds are issued as in the last section provided,
the town board shall annually transmit a statement of the amount due
for the payment of said bonds and interest to the board of supervisors
of the county. Such board of supervisors shall levy such sums against
the property liable, and the amount of such taxes shall be extended
against such property in a separate column of the annual tax roll of
such town. Such taxes when collected shall be paid to the supervisor
and by him applied in payment of such bonds and interest. [Town
Law, § 313b, as added by L. 1917, ch. 577.]

Assessments for expense of maintaining fire company.—The purchase
price of said fire engine and apparatus or other apparatus for the extin-
guishment of fires, and buildings and grounds, and the expense of main-

 

“L. Application of section. Fabric Hose Co. v. Town of Whitestown (1919),
187 App. Div. 118.
414 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § § 314, 314a.

taining said fire engine and apparatus for the extinguishment of fires and
other property and apparatus and for maintaining said fire company or
companies shall be assessed and levied upon the property of said district
and collected in the same manner as other town charges are assessed, levied
and collected, except that in the case of a water district, highway district or
water supply district the amount thereof shall be put in a separate column
upon the tax-roll, and the board of supervisors of the county shall cause
the sum as certified by the town board, to be levied upon the taxable prop-
erty of such water district, highway district or water supply district. The
funds so collected shall be paid by the collector to the supervisor of the
town who shall apply the same to the expenses incurred pursuant to the
provisions of this article, by paying the same on the order of the board
authorized by the provisions of this article to purchase, direct and control
said engines, apparatus, buildings and grounds.4* [Town Law, § 314,
as amended by L, 1910, ch. 408, L. 1912, ch. 238, and L, 1916, ch.
226; B. C. & G. Cons. L., 2d Ed., p. 8884.]

Town fire companies in incorporated cities and villages—No such fire
company, as herein provided, shall be formed in any incorporated city or
village unless such incorporated city or village pays a highway tax in or
to such highway district, in which case such fire company or companies
may be formed to include the whole or any part of such incorporated city
or village, with the consent of the board of trustees or other body perform-
ing like duties of such city or village. [Town Law, § 314a, added by L.
1912, ch. 238, in effect April 9, 1912.]

Incorporated fire companies. Upon the written petition of a majority of
the resident taxpayers of any water district, highway district, water supply
district or school district in which any incorporated fire company shall have
its headquarters, the town board of any town in behalf of such water district,
highway district or water supply district or the trustee or trustees of such
school district in behalf of such school district may make a contract with any
such incorporated fire company for fire protection to be furnished within
such water district, highway district, water supply district or school district
for a sum not to exceed in any one year ten cents upon each one hundred
dollars of assessed valuation of taxable property lying within such water
district, highwav district, water supply district or school district, as appears
by the last preceding town assessment-roll of said town or school district,
and for a period not exceeding five years at any one time. The amount of
any contract that may be entered into pursuant to the provisions of this

 

ja. Fire districts. Fire districts outside of incorporated villages are established
by boards of supervisors upon the petition of the taxable inhabitants of a proposed
fire district. In districts so established fire commissioners are elected by the
electors residing therein who have control of all matters pertaining to fire protection
including the organization of fire, hook and ladder, and hose companies, See County
Law, sec. 38, ante, p. 74.

The above sections contemplate the organization of town fire companies, And it
is also provided that the electors of any highway district may ‘appropriate money
for the purpose of a fire engine and apparatus. The above section is independent
of section 38 of the County Law, and provides for fire protection without the estab-
lishment by the board of supervisors of a fire district.
FIRE, WATER, LIGHT, SEWER SYSTEM; SIDEWALKS. 414a

Town Law, § 314b, 314c.

section shall be assessed, levied and collected upon the taxable property in
said district in the same manner, at the same time and by the same officers
as the taxes, charges or expenses of said town or school district are now
assessed, levied and collected and the same shall be paid over by the super-
visor of the town or the collector of the school district to the corporation or
incorporated fire company furnishing such fire protection. This section
shall apply to a water supply district formed under the provisions of section
eighty-one of the transportation corporations law, as well as to water dis-
tricts, highway districts or water supply districts formed under the pro-
visions of this chapter. No such contract shall be made, however, with any
such fire corporation unless it has, in the opinion of the town board, suitable
apparatus and appliances for the furnishing of such fire protection in said
district. [Town Law, § 314b, as added by L. 1913, ch, 392, and amended
by L. 1922, ch. 236.]

Town board may contract for fire protection, et cetera——The town board
of a town, upon the written petition of a majority of the resident taxpayers
in territory adjoining a city or incorporated village and wholly without
such city or village, may establish such territory as a fire district for the
purposes of this section, by filing in the office of the town clerk a certificate
describing the boundaries thereof. Upon the written petition of a
majority of the resident taxpayers of any water district, highway
district, water supply district or fire district adjoining a city or an
incorporated village, having a fire department or an incorporated fire com-
pany therein, the town board of any town may make a contract with any
such city or incorporated village for fire protection to be furnished within
such water district, highway district, water supply district or fire district
- for a sum not to exceed in any one year ten cents upon each one hundred
dollars of assessed valuation of taxable property lying within such water
district, highway district, water supply district or fire district as appears
by the last preceding town assessment-roll of said town and for a period not
exceeding five years at any one time. The amount of any contract that may
be entered into pursuant to the provisions of this section shall be assessed,
levied and collected upon the taxable property in said district in the same
manner, at the same time and by the same officers as the taxes, charges or
expenses of said town are now assessed, levied and collected and the same
shall be paid over by the supervisor to the city or incorporated village fur-
nishing such fire protection. This section shall apply to a water supply
district formed under the provisions of section eighty-one of the transpor-
tation corporations law, as well as to water districts, highway districts,
water supply districts or fire districts formed under the provisions of this
chapter. No such contract shall be made, however, with any such city or
incorporated village unless it has in the opinion of the town board suitable
apparatus and appliances for the furnishing of such fire protection in
said district. [Town Law, § 314c, as added by L. 191%, ch. 364, and
amended by L. 1918, ch. 69.]

Ordinances—The board of water commissioriers in any water dis-
trict, established pursuant to this chapter, and the town board in any
highway district, town fire district or water supply district may adopt
ordinances, not inconsistent with law, relating to fire protection, the
414b TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, §§ 316, 317.

prevention and extinguishment of fires and conduct thereat within said
district, and to regulate or prevent the discharge of fireworks and fire-
arms and to regulate the use of inflammable materials and the storing,
sale and transportation of gunpowder and other explosives within said
district, and may enforce the observance thereof by the imposition of
penalties. [Town Law, § 315, as added by L. 1910, ch. 408, and amended
by L, 1912, ch. 238, and L. 1916, ch. 226.]

Town fire districts; boards of town fire commissioners—The town
board of a town may, with the consent of the proper board or officers
of any water supply district, or highway district, or fire district, main-
taining fire apparatuses, and the boards of trustees, or other like bodies
performing such duties, of all incorporated cities or villages wholly
within such town, establish a town fire district, the boundarics of which
shall be the same as the boundaries of the town, and transfer to said
town fire district all property held by the town for the purpose of
extinguishment of fires. The town board of any town where such town
fire district is established may, on like consent, by resolution establish
a board of town fire commissioners, consisting of three members, and
shall appoint the first members of such board for the term of one, two
and three years, respectively; and shall thereafter appoint successors
to such members for the term of three years, and shall fill vacancies in
said board of town fire commissioners. [Town Law, § 316, as added
by L. 1916, ch. 226.]

Powers and duties of boards of town fire commissioners.—Such
board of town fire commissioners shall have the care, custody and
control of all property belonging to the town fire district; may, on the
conditions prescribed in this article, purchase fire engines, and other
apparatus for the extinguishment of fires within the town, purchase,
lease, otherwise acquire and maintain suitable and necessary buildings
and grounds for the keeping and storing thereof; may construct and
maintain reservoirs and cisterns and supply them with water for use
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. Al4e

Town Law, § 281.

at fires; shall have the exclusive power to organize a town fire company
or companies by appointment in the manner provided in this article
for appointment by the town board, and to fill vacancies in such com-
pany or companies; may adopt rules for the admission, suspension, re-
moval and discipline of the members and officers of such company or
companies; may prescribe their respective powers and duties and fix
their compensation; may appoint persons other than members or officers
of the company or companies to take charge of and operate the property
of the fire district, and may fix their compensation; shall have the con-
trol and supervision of such members, officers and employees, may direct
their conduct at fires and prescribe methods for extinguishing fires; and.
may inquire into the cause and origin of fires occurring in the town and.
may take testimony in relation thereto; and may expend for the main-
tenance and operation of the engines, and other apparatus for the ex-
tinguishment of fires, and other property and for maintaining said fire
company or companies a sum in each year, not exceeding the sum voted
for such purposes as prescribed in this article. [Town Law, § 317, as
added by L. 1916, ch. 226.]

§2. TOWN BOARD MAY ESTABLISH WATER SUPPLY DISTRICTS,

The town board of any town may establish one or more water supply
districts in such town outside of an incorporated village therein, by
filing a certificate, describing the bounds of any such district, in the
office of the town clerk; and may contract in the name of the town for
the delivery, by the water commissioners of a village owning a system
of waterworks, of a supply of water through hydrants or otherwise, for
fire, sanitary or other public purposes, to such districts, and the whole
town shall be bound by such contract, but the rental or expense thereof
shall annually, in the same manner as other expenses of the town are
raised, be assessed, levied upon and collected only from the taxable prop-
erty within such water supply district. Such money when collected,
shall be kept as a separate fund and be paid over to such board of water
414d TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Transportation Corporations Law, § 81.

commissioners by the supervisor of the town, according to the terms
and conditions of any such contract.2 [Town Law, § 281; B. C. & G.
Cons. L., p. 6215.]

§3. WATER WORKS CORPORATIONS MUST FURNISH WATER TO TOWN;
TOWN BOARD MAY ESTABLISH WATER SUPPLY DISTRICT; EX-
PENSE CHARGEABLE UPON DISTRICT.

Every such corporation shall supply the authorities or any of the
inhabitants of any city, town or village through which the conduits or
mains of such corporation may pass, or wherein such corporations may
have organized, with pure and wholesome water at reasonable rates and
cost.

The town board of any town may establish a water supply district in
such town outside of a city or incorporated village therein, by filing
a certificate describing the bounds thereof, in the office of the town
clerk; and may contract in the name of the town for the delivery,
by a corporation, subject to the provisions of this article, of a supply
of water, for fire, sanitary or other public purposes, to such districts,
and the whole town shall be bound by such contract, but the rental or
expense thereof shall annually, in the same manner as other expenses
of the town are raised, be assessed, levied upon and collected only from
the taxable property within such water supply district. Such money,
when collected, shall be kept as a separate fund and be paid over to

 

2, Water districts are also to be established when the town board contracts
with a water works corporation for furnishing water for fire, sanitary or other
public purposes to any portion of the town. See Transportation Corporations Law,
sec, 81. And wu water district may also be established by the town board upon the
petition of a majority of the owners of taxable real property in u proposed district
for the purpose of making contracts for the construction and maintenance of a
water system by such district. See Town Law, § 282.

The law then provides for the establishment of water districts in three cases:
(1) Where it is desired to contract with the water commissioners of a village for
the furnishing of water as in the above section; (2) where it is desired to contract
with a water works company, and (3), where it is desired to construct and oper-
ate water works for the furnishing of water to the district and inhabitants thereof
by the district itself.
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 415

Town Law, §§ 270, 271.

such corporation by the supervisor of the town, according to the terms
and conditions of any such contract. No such contract shall be made
for a longer period than five years, nor for an annual expense exceeding
three mills upon each dollar of the taxable property within such water
supply district, provided, however, that where the population of the
water supply district does not exceed one thousand inhabitants such
contract may be made for a period not longer than ten years.? [Trans-
portation Corporations Law, § 81, in part, B. C. & G. Cons. L., p. 6326. |

§ 4, PURCHASE OF WATER WORKS BY TOWN.

Town may acquire watcrworks.—Any town in this state which has a contract
with a water-works company for supplying such town, or any portion thereof,
with water, may acquire the works, franchises and property of such water-
works company, in the manner specified in sections two hundred and seventy-
one to two hundred and eighty of this article. [Town Law, § 270; B.C. &G.
Cons. L., p. 6212.]

Petition of taxpayers, submission of propositionUpon the written petition cf
not less than one-tenth in number of the taxpayers of such town, wav
shall be assessed for at least one-tenth of the total amount of the
property assessed in said town, the supervisor of the town: shall ascer-
tain the price which the water-works company will accept for its works,
franchises and property, and shall submit to the lawful voters of such town

 

3. Establishment of water supply district. The territory supplied with water
under a contract with a water company should correspond in area with the terri-
tery desigriated as the water supply district. A district cannot be established as
including the whole town and «a contract be made by the town for the supply of
water to two villages occupying a very small portion of the territory of the town.
Such a contract is invalid, and does not bind the town, although the company sup-
plies water to the village in pursuance of its terms. People ex rel. Tupper Lake
Water Co. v. Sisson, 75 App. Div. 1388, 77 N. Y. Supp. 376 (1902), affirmed 173
N. Y. 606.

Reasonable rules and regulations may be made by a water company in order that
it may fulfill its obligations. Pond v. New Rochelle Water Co., 143 App. Div. 69,
127 N. Y. Supp. 582.

There is not necessarily an unjust discrimination because different rates are
charged to different consumers if the circumstances under which the water is fur-
nished differ and the price charged in each case is reasonable. People v. Albion
Water Works Co.. 140 App. Div. 646, 125 N. Y. Supp. 589.

Contract with town for water supply; liability of company to taxpayer for
failure to supply.-—Where a water-works company contracts with a town to furnish
water for fire protection to the inhabitants thereof, a taxpayer, whose buildings are
destroyed by fire because of the failure of the company to keep its hydrants in gcod
working order, and to have a sufficient head or force of water for the extinguish-
ment of fires, cannot sue the company to recover the value of the buildings destroyed.
The contract between the town and the water-works company was not made for his
benefit. Smith v. Great South Bay Water Co., 82 App. Div. 427, 81 N. Y. Supp.
812 (1903). ,

Contracts made by a town board with reference to a water system constructed
under the provisions of the Town Law, are the contracts of the town and the town
alone is liable under them. People ex rel. Farley v. Winkler, 203 N. Y. 445.

See also New York Inter-Urban Water Co. v. City of Mount Vernon (1918), 185
App. Div. 305, 173 N. Y. Supp. 38, as to when a contract will not be extended so
as to constitute a continuing legal obligation.
416 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, §§ 272, 2738, 274, 275.

at the next town meeting the question whether such works, franchises and
property snall be purchased at the price specified as aforesaid. ['Town
Law, § 271; B. C. & G. Cons. L., p. 6213.]

Notice of submission of question. Notice that such question will be so
submitted to the voters of the town shall be given by publishing the same
once a week, for at least four weeks, immediately preceding the election,
in every newspaper published in said town, and by posting a copy of such
notice conspicuously in the office of the clerk of such town at least thirty
days prior to the day for voting; and the clerk of such town shall see
that such notice is so published and posted. [Town Law, § 272; B. C.
& G. Cons. L., p. 6213.]

If vote is favorable supervisor to contract for purchase of works.—At
such election each qualified voter shall be given an opportunity to vote
either for or against such proposed purchase. If a majority of the votes
cast on the question shall be for making the proposed purchase, the super-
visor of the town shall forthwith make and enter into a contract with
such water company for the transfer of such company’s works, franchises
and property to such town; and the said town officers are hereby authorized
and empowered to enter into such contracts and to bind their respective
towns thereby. And such companies are authorized and empowered to
make such contracts and to do whatever is necessary to fulfill them.
[Town Law, § 273; B. C. & G. Cons. L., p. 6213.]

Company to furnish statement of debts, etc-—At the time of the making
such a contract the water-works company shall make and deliver to said
officers of the town a full, true and accurate statement in detail of all its
debts, contracts, obligations and responsibilities of every sort, and such
statement shall be verified by the president or treasurer of said company.
The amount of such liabilities shall be carefully estimated by the officers
acting on behalf of the town and the gross amount thereof shall be
deducted from the purchase price named. Should there be any difference
between said town officers and such company as to the amount of such
liabilities the same shall be referred by them to the county judge of the
county and decided by him. [Town Law, § 274; B. C. & G. Cons. L,
p. 6213.]

Town board to raise money for purchase of works—As soon as the
amount of the company’s liabilities has been thus ascertained and deducted
and the net amount remaining to be paid for said company’s works, property
and franchise has been thus determined, the town board of the town shall
proceed to raise the money and carry out in behalf of the town the contract
so made. [Town Law, § 275; B. C. & G. Cons. L., p. 6213.]

Issuance of bonds for purchase money.—Such town board shall make
and issue bonds for the town for the entire amount of the purchase price
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. ALY

Town Law, §§ 276, 277, 278, 279.

of the property, works and franchises to be purchased as agreed on and
voted for as aforesaid. Such bonds shall run for not more than thirty
years and shall bear interest at a rate not exceeding five per centum per
annum, and shall be a valid and binding obligation upon the town in
behalf of which they shall be issued. They may contain such provisions as
to payment of a part of those issued at such times, short of the full
term for which they might run, as in the judgment of the town board
issuing them would be advantageous to the town bound thereby. [Town
Law, § 276; B. C. &.G. Cons. L., p. 6214. ]

Sale of bonds; proceeds of sale—Said town board shall proceed to sell
such bonds, at either public or private sale, for the best price obtainable
not less than par. Out of the proceeds of such sale said board shall pay
to the water-works company that portion of the purchase price agreed on
and voted for as aforesaid which remains due the company, after making
the deductions mentioned in section two hundred and seventy-four, upon
receiving an assignment or transfer of all the works, property and fran-
chises of said company, duly executed by said company or by the proper
officers thereof, in its name and behalf. The balance of the proceeds of
such bonds shall be used as far as, and when, necessary to discharge the
debts, liabilities and obligations of said water-works company. [Town
Law, § 277; B. C. & G. Cons. L., p. 6214.]

Stockholders’ consent to sale of works.—Before naming the price for the
property, franchises and works of any company under this article, as con-
templated in section two hundred and seventy-one, the officers thereof
must obtain authority so to do from a majority in number and amount
of the stockholders; such consent shall be given in writing and duly
signed and acknowledged by the stockholders. [Town Law, § 278; B. C.
& G. Cons. L., p. 6214.]

Upon sale, debts, etc., are a charge upon town.—Upon making such trans-
fer and conveyance to the town the debts, liabilities and obligations of said
company, which have been included in the statement referred to in sec-
tion two hundred and seventy-four of this article, shall become a charge
upon the town and may be enforced against it. And if the company should
be called upon to pay any claim or to do any act on or on account of
such debts, liabilities or obligations, it may enforce the same against the
town. [Town Law, § 279; B. C. & G. Cons. L., p. 6214.]

Works to be managed by town board.—The works, franchises and
property thus purchased, shall be managed and controlled for and in
behalf of such town by the town board which purchased the same and their

Tespective successors in office. [Town Law, § 280; B. C. & G. Cons. L.,
p. 6214.)
418 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, § 282, 283, 284.

$ 5. ESTABLISHMENT OF WATER DISTRICTS IN TOWNS.

Town board may establish water district; petition—The town board
on the petition of a majority of the owners of taxable real property in
a proposed district, as appears by the last preceding completed assessment-
roll, may establish a water district outside any incorporated village or city
and wholly within such town. The petition must describe the proposed
district and state the maximum amount proposed to be expended in the
construction of such water system. The petition must be signed by the
petitioners and acknowledged in the same manner as a deed to be recorded.
[Town Law, § 282; B. C. & G. Cons. L., p. 6215.]

Map and plans.—There shall be annexed to the petition above provided
a map and plan showing the sources of water supply and a description of
the lands, streams, water or water rights to be acquired therefor, and the
mode of constructing the proposed waterworks and the location thereof,
including reservoirs, mains, distributing pipes and hydrants. The petition,
map and plans shall be filed with the town clerk, and a certified copy of
such map shall also be filed in the county clerk’s office. Such map and
plan shall be prepared by a competent engineer. [Town Law, § 283;
B. C. & G. Cons. L., p. 6215. ]

Expenses, how paid.—The reasonable expenses of the necessary proceed-
ings on the organization of a water district, as herein prescribed, are a
charge against the district so organized. If a water district is not organ-
ized, the persons who signed the petition for the establishment of a water
district are jointly and severally liable for such expenses. [Town Law, §
284; B. C. & G. Cons. L., p. 6215.]

Action by town board—When the petition, map and plans are filed in
the town clerk’s office the town clerk shall cause notice of the filing of said
petition and the object thereof to be published for one week in a newspaper
published in such town or if no newspaper be published therein, then by
posting said notice in at least six public and conspicuous places in the
proposed water district described in such petition. Such notice shall also
specify a time and place where the town board will meet to consider the
petition, which meeting shall not be less than ten or more than twenty
days after the petition is filed. At such meeting the town board shall
determine if said petition is in fact signed and acknowledged by a majority
of the owners of taxable real property in said proposed water district. Such
determination shall be in writing signed by said board and recorded in
the minutes of said meeting. If the decision be that the petition is signed
and acknowledged by a majority of the owners of taxable real property
in the proposed district, then the town board shall make an order establish-
ing such district and appointing three taxpayers therein as water com-
missioners. The order shall be filed with the town clerk and recorded in
the minute book of said board. Such commissioners first appointed shall
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 419
Town Law, §§ 285, 286, 287, 287a.

hold office for terms‘ of one, two and three years, to be determined by the town board
in making the appointments. The town board shall thereafter appoint each year
one commissioner who shall hold office for the term of three years and shall fill
any vacancies that may occur. [Town Law, § 285; B. C. & G. Cons. L., p. 6215.]

Oaths, undertakings and compensation of commissioners.—Hach commissioner be-
fore entering on the duties of his office shall take the constitutional oath of office
and execute to the town and fite with the town clerk an official undertaking in such
sum and with such sureties as the town board shall direct. The town board may
at any time require any such commissioner to file a new official undertaking for
such sum and with such sureties as the board shall approve. Such water commis-
sioners may each be paid for their services, at such times as the town board may
designate, an amount to be fixed by the town board, not exceeding three dollars per
day for each day actually and necessarily spent in the business of the water dis-
trict. Such compensation shall be deemed an expense of maintaining the water dis-
trict, and shall be levied against the taxable property in the water district and
collected annually at the same time and in the same manner as provided in section
two hundred and eighty-nine of this chapter for the levy and collection of taxes
for payment of bonds and interest. [Town Law, § 286, as amended by L. 1915, ch.
379; B. C. & G. Cons. L., p. 6216.]

Contracts for the construction of .water system.—The water commissioners of such
district shal] advertise for proposals for the construction of a water system either
under an entire contract or in parts or sections as the board may determine. Such
advertiseménts shall be published once in each of two successive weeks in each
newspaper published in the town and if no newspaper is published therein, in two
newspapers published in a city or village nearest to such town. The commissioners
may require a bond or deposit from each person submitting a proposal, the lia-
bility on such bond to accrue or such deposit to be forfeited to the town in case
such person shall refuse to enter into a contract in accordance with his proposal.
The commissioners may accept or reject any proposal, and make contracts with
other than the lowest bidder or may reject all proposals and advertise again. No
contract shall be made by which a greater amount shall be agreed to be paid than
the maximum amount stated in the petition for the construction of such water
system. Each contract shall be executed in duplicate one of which shall be given
to the contractor and the other shall be filed in the office of the town clerk. The
water commissioners shall immediately after letting the contract or contracts for the
construction of the water system serve on the town board a written notice, speci-
fying the amount of such contract or contracts and the amount of money needed for
the construction of such water system. It shall be the duty of the town board to
raise the money necessary by the issue and sale of bonds as provided in this article.4
[Town Law, § 287; B. C. & G. Cons. L., p. 6216.]

Acquisition of water works—— The water commissioners of any such water district
may acquire the works, franchises, contracts and property of any water works com-
pany supplying such water district or a portion thereof, in which the construction
of water, works has been or may be authorized at an expense not exceeding the
amount authorized for such construction in the manner following:

1. In the event such water commissioners agree with the owner or owners of
such works, franchises, contracts and property as to the purchase price thereof,

 

4. Liability of town for breach of contract made by water commissioners. A
town is not liable for damages caused by a breach of contract made by water
commissioners appointed in a water district in a town for the construction of water-
works. Such a contract is not a contract of the town and is not for its benefit.
Holroyd v. Town of Indian Lake, 180 N. Y. 318, affg. 85 App. Div. 246, 83 N. Y.
Supp. 533 (1903). :

The town is not liable for contracts made by district water commissioners. They
themselves are liable in their official capacity upon contracts made by them in that
relation. District water commissioners need not be sued in actions at law, as they
ee personally liable upon their official contracts. Farley v. Winkler, 203

. Y. 445.
420 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, §§ 288, 288a, 289.

2
they may with the consent of the majority of the town board of the town wherein
euch water district is situate, acquire the same by purchase.

2. In the event such water commissioners are unable to agree with such owner
or owners as to the purchase price of such works, franchises, contracts and prop-
erty, they may, with the consent of a majority of the town board of such town, by
proceedings in the supreme court, acquire such works, franchises, contracts and
property by condemnation.

3. The purchase price may be paid out of any moneys in the hands of or to the
credit of such water district or the commissioners thereof or moneys raised or au-
thorized to be raised for the construction of a water-works system in such dis-
trict. In the event of condemnation, the appraisal or award may be paid out of
any such moneys or out of moneys hereafter raised or authorized to be raised for
the construction of a water-works system in such district. [Town Law, § 287a,
as added by L. 1917, ch. eel

Issue and sale of bonds.— Town bonds issued under authority conferred by this
article shall be signed by the supervisor and attested by the town clerk. Such
bonds shall become due within twenty years from the date of issue, and unless
the whole amount of the indebtedness represented thereby is to be paid within
five years from their date, they shall be so issued as to provide for the payment
of the indebtedness in equal annual installments, the first of which shall be pay-
able not more than five years from their date. They shall bear interest at a rate
not exceeding five per centum per annum, and shall be sold for not less than
their par value. They shall be sold on sealed proposals or at public auction upon
notice published in a paper printed in the town, if any, and also in such other
papers as may be designated by the town board, and posted in at least five public
places.in the town, at least ten days before the sale, to the person who will take
them at the lowest rate of interest. Such bonds shall be consecutively numbered
from one to the highest number issued and the town clerk shall keep a record of
the number of each bond, its date, amount, rate of interest, when and where pay-
able and the purchaser thereof or the person to whom they are issued. The bonds
shall be a charge upon the town and shall be collected from the property within
the water district. [Town Law, § 288; B. C. & G. Cons. Li, p. 6217.]

Refunding of indebtedness.— The town board of a town containing a water supply
district in behalf of which bonds shall have been issued under authority conferred
by this article may, upon the petition of the water commissioners of such district,
refund the whole or any part of such indebtedness and cause new bonds of the
town to be issued in substitution for such outstanding bonds or to realize money
by the sale thereof for the payment of such outstanding bonds. Such new bonds
shall become due within twenty years from the date of issue, shall bear interest
at a rate not to exceed five per ceritum per annum and shall be sold for not less
than their par value. Such bonds shall be a charge upon the town and shall be
collected from the property within the water supply district and be otherwise sub-
ject to the provisions of this article in relation to the issue, sale and payment of
the bonds originally issued. [Town Law, § 288a, added by L. 1912, ch. 22, in effect
March 6, 1912.]

Tax for payment of bonds and interest.— The water commissioners shall annually
apportion the amount to be raised for the payment of the principal and interest
of the bonds upon the taxable property in the water district as the same appears
on the assessment-roll and present a statement thereof to the town board on the
Thursday preceding the annual meeting of the board of supervisors. Such state-
ment shall give the names of the persons liable to pay the same and the amount
chargeable to each. The town board shall transmit such statement to the board of
supervisors at its next annual meeting. The board of supervisors shall levy such
sums against the property liable and shall state the amount of the tax in a separate
column in the annual tax-roll under the name of “water tax.” Such tax when
collected shall be paid to the supervisor and be by him applied in payment of the
bonds. [Town Law, § 289; B.C. & G. Cons. L., p. 6217.]

Assessment of property partly in district. —In all cases where a farm

 

Action for breach of contract; pleadings. A complaint in an action brought
against a town for breach of a contract for the construction of a water system, en-
tered into pursuant to the above section, which merely states that the contract was
executed by the town officers, without alleging that any of the preliminary steps
required by the act were taken, is demurrable. Holroyd v. Town of Indian Lake,
75 App. Div. 197, 77 N. Y. Supp. 672.
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 421

Town Law, §§ 290-295.

or lot or the real property of a corporation or joint stock association is
divided by the boundary line of a water district, it shall be the duty of the
town assessors after fixing the valuation of the whole of such real property
as now required by law to determine what proportion of such valuation is
on account of that part of such real property lying within the limits of
the water district, and shall designate the same upon their assessment-roll.
The valuation of real property lying within such water district so fixed
and determined by the assessors shall be the valuation on which the water
commissioners of the water district shall levy the water tax. [Town Law,
§ 290; B.C. & G. Cons. L., p. 6218.]

Supervising engineer and inspectors—The water commissioners may
employ a supervising engineer to superintend and inspect the construction
of the water system or works connected therewith, and also such inspectors
as may be necessary and fix the compensation of such engineer and inspec-
tors. Such compensation shall be treated as a part of the expense of
construction. [Town Law, § 291; B. C. & G. Cons. L., p. 6218.]

Acquisition of property by condemnation.—If the water commissioners
are unable to agree with the owners for the purchase of real property
necessary for the construction of the water system, they may acquire the
same by condemnation. [Town Law, § 292; B. C. & G. Cons. L, p.
6218.]

Establishment of water rents—The board of water commissioners shall
establish a scale of rents for the use of water, to be called “water rents,”
and to be paid at such times as the board may prescribe. Such rents shall
be a lien on the real property upon which the water is used. [Town Law, §
293; B. C. & G. Cons. L., p. 6218.]

Reservoirs.—In the construction of a storage reservoir connected with
the system of waterworks, all vegetable or other matter subject to decay
shall be removed from the banks thereof between its highest and lowest
possible flow line or such space be covered by gravel or stone to prevent
such decay. [Town Law, § 294; B. C. & G. Cons. L., p. 6218.]

Connection with mains.—Supply pipes connecting with mains and used
by private owners or occupants shall be laid and kept in repair at their
expense. Such pipes can only be connected with the mains by the permis-
sion and under the direction of the board of water commissioners. A
member of the board or its authorized agent may at any time enter a
building or upon premises where water is used from supply pipes, and make
necessary examinations. [Town Law, § 295; B. C. & G. Cons. L., p.
6219.]

Ordinances.—The board of water commissioners may adopt ordinances,
not inconsistent with law, for enforcing the collection of water rents and
relating to the use of water, and may enforce observance thereof, by cutting
422 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, §§ 296, 297.

off the supply of water, or by the imposition of penalties. [Town Law, §
296; B. C. & G. Cons. L., p. 6219.]

Annual report of water commissioners.—The board of water commis-
sioners shall on the thirty-first day of October file with the town clerk
a report for the year ending that day, containing a statement of the follow-
ing facts:

1. The amount of money on hand at the beginning of the year, and
the receipts from all sources during such year.

2. An itemized statement of the amount paid out during such year,
and the balance on hand.

3. The outstanding indebtedness of the district, either bonded or other-
wise, separately stated.

4, The estimated deficiency in the amount necessary to pay principal
or interest or the expenses of the district during the next year, after
applying thereto the probable amount of water rents.

5. The improvements and extensions made during such preceding year,
and the general condition of the waterworks.

6. Such other facts as the board deems important for the information
of the water district, together with such recommendations concerning such
district as may be deemed proper. [Town Law, § 297; B. C. & G. Cons,
L., p. 6219.]

Enlarging water district. Granting permission for use of water out-
side the district.— After the establishment of a water district under
the provisions of sections two hundred and eighty-two to two hundred
and eighty-five, inclusive, of this article, the water commissioners
thereof, with the consent of the town board and upon the application
of a majority of the owners of taxable real property in the new district,
owning more than one-half, measured by its assessed valuation, of such
taxable real property, and upon the written application of the person
or persons owning one or more parcels of taxable real property in the
town outside of and adjoining said water district, may annex and add
to said district the territory comprising such outside real estate. An
amended map of the proposed enlarged district shall be submitted with
said applications and shall be filed as prescribed in section two hundred
and eighty-three for the filing of the map of the original district. All
applications under this section must be by petition or petitions
subscribed by the petitioners and acknowledged in the same manner
as a deed to be recorded. The reasonable expenses of the neces-
sary proceedings on the extension of a water district, as herein pre-
scribed, are a charge against the enlarged district; excepting that if the
extension is not granted, such expenses shall be borne by the petitioners
owning such outside real estate. A notice, upon such application, shall
be given and a hearing and determination made by and before the water
commissioners in the manner, as nearly as may be, as is provided in
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 423
Town Law, §§ 298, 299.

section two hundred and eighty-five. The determination, if favorable to
the applicants, shall, when approved by the town board at any regular or
special meeting, be to the effect that the district is extended to include the
outside real estate described in the application. From the time such terri-
tory is annexed it shall be subject to annual taxation for the raising of
money for interest and installments on the balance of unpaid bonds of the
original district, with the other property in the district, as enlarged, in
the manner prescribed by section two hundred and eighty-nine, and the
owners shall enjoy all the water privileges, subject to the same rents and
restricticns as the owners of property in such original district. A water
district may be repeatedly enlarged and extended under the provisions
of this section as often as an application, in conformity thereto, may be
made and approved by the water commissioners and town board. The
water commissioners, with the consent of the town board, may also, if
authorized by a majority vote of the electors owning real estate in the
district, taken at a public meeting, of which notice has been given by
publication in a newspaper in the town once a week for the preceding four
weeks, or, if there be no such newspaper, then by posting for twenty-eight
days in twenty public places in the town, permit any person or persons
residing or owning real estate outside of the district to use water from the
district system outside of the district, for a rental and subject to restrictions
to be prescribed by the commissioners. Such a meeting shall be called and
notice given by the town clerk at the request of a majority of the water com-
missioners or at the request of twenty-five taxpayers of the district. The
notice of the meeting, in addition to stating the time and place where the
same is to be held, shall specify the purpose thereof. There shall be a chair-
man and two inspectors of election at such meeting to take charge thereof,
who shall be chosen by the persons entitled to vote on said proposition.
The voting shall be by ballot. The chairman shall announce the result and
certify the same in writing to the water commissioners. Such certificate
shall be prima facie evidence of the statements therein contained, and if the
result of the vote as certified authorizes the commissioners and town board
to grant the water permits hereinabove mentioned, they may do so unless
restrained by a court or judge having jurisdiction in the premises. [Town
Law, § 298, as added by L. 1909, ch. 356, and amended by L. 1915,
ch, 49; B. C. & G. Cons, L., p. 6220. ]

Enlarging water supply system.—After the establishment of a water
district and the construction of a water system therein as provided by
this article, the water commissioners thereof with the consent of the
town board and on the petition of the owners of more than one-half of
the taxable real property in such district as appears by the last preced-
ing completed assessment-roll, may enlarge the water supply system in
such district as provided by this section. The petition must state the
maximum amount proposed to be expended in the construction of such
enlargement of the water system, must be signed by the petitioners and
424 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 299-a.

acknowledged in the same manner as a deed to be recorded. The peti-
tion shall also be accompanied by a map showing the proposed enlarge-
ment of the water supply system, which map shall be filed as prescribed
in section two hundred and eighty-three for the filing of the map of the
original district. A notice upon such petition shall be given and a hear-
ing and determination had by and before the water commissioners in
the manner as nearly as may be as is provided in section two hundred
and eighty-five. The determination if favorable to the petitioners shall
be approved by the town board at any regular or special meeting to the
effect that the water supply system in such district shall be enlarged in
accordance with the petition. All the provisions of this article in rela-
tion to contracts for the construction of the original water system in
such district, and issue and sale of bonds therefor and the payment of
such bonds shall apply to the enlargement of such water supply system,
as authorized by this section. [Town Law, § 299, as added by L. 1912,

ch, 275.]

Enlargment and extension of water districts. After the establish-
ment of a water district and the construction of a water supply system
therein in any town adjoining an incorporated city of the first class,
upon the petition of owners of real property within a proposed extension of
said district, representing more than one-half in value of the taxable real
property situated within such proposed extension thereof, as appears
by the last preceding completed assessment roll, the water commissioners
of said district may with the consent of the town board enlarge said
district to take in the territory comprising such outside real estate and
extend the water supply system therein. The petition must describe the
proposed extension of said district and state the maximum amount pro-
posed to be expended in the construction of the enlargement of the
water supply system in such added territory and must be signed by
the petitioners and acknowledged in the same manner as a deed to be
recorded. The petition shall also be accompanied by a map and plan
prepared by a competent engineer, showing the proposed enlargement of
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 424a
Town Law, § 299-a.

the water district and water supply system, which map shall be filed as
prescribed in section two hundred and eighty-three for the filing of the
map of the original district. A notice of such petition shall be given
and a hearing and determination had by and before the water commis-
sioners in the manner, as nearly as may be as is provided in section
two hundred and eighty-five. The determination, if favorable to the
petitioners, shall be approved by the town board at any regular or
special meeting to the effect that the water district and the water supply
system therein shall be enlarged in accordance with the petition. Every
petition made, as provided in this section, shall contain a statement
conspicuously printed or written thereon as follows:

“The cost of the enlargement of said district and of said water sup-
ply system within such added territory shall be levied and assessed
from year to year upon the lands within such added territory in pro-
portion as nearly as may be to the benefit which each lot or parcel will
derive therefrom.”

All the provisions in this article in relation to contracts for the con-
struction of the original water system in such water districts and the
issue and sale of bonds therefor and the payment of such bonds shall
apply to the enlargement of such water district and water supply sys-
tem as authorized in this section, except that the total cost thereof shall
be levied and assessed as stated in said notice against the real property
included within such added territory. When the town board has ap-
proved the determination of said water commissioners, the said water
commissioners shall thereupon and from time to time thereafter, as
often as is necessary, make such reasonable rules and regulations for the
supplying of water to such new territory and the collection of the
reasonable cost thereof as may be necessary. Such water district may be
enlarged as provided herein as often as may be desired. The reason-
able expenses of the necessary proceedings on the enlargement of such
water district, as herein prescribed, are a charge against such added
territory to be levied and collected in the same manner as the cost of
the construction of the enlargement of the water supply system. If the
petition is not granted, the persons who signed the same are
jointly and severally liable for such expenses. At any time after the
424b TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 300.

town board has made an order enlarging such water district or the water
supply system, as herein provided, the maximum amount proposed to
be expended in the construction of the enlargement of such water sup-
ply system may be increased by a petition of owners of real property
in said added territory representing more than one-half in value of the
taxable real property therein, as appears by the last preceding completed
assessment roll setting forth the additional amount proposed to be ex-
pended in excess of the maximum amount set forth in the original pe-
tition. Such petition must be signed and proved or acknowledged in the
same manner as the original petition for such enlargement and shall be
filed in the office of the town clerk. The provisions of this section shall
not apply to the enlargement of any water district within the limits of
an incorporated village. [Town Law, § 299-a, added by L. 1919, ch.
523, and amended by L. 1921, ch. 451.]
§ 5a. TOWN BOARDS MAY ESTABLISH JOINT WATER SUPPLY DISTRICTS;
PETITION; MAP; EXPENSES. HOW PAID; ACTION BY JOINT TOWN

BOARDS; CONTRACT FOR WATER SUPPLY; LEVY OF TAXES FOR
PAYMENT OF AMOUNT OF CONTRACT.

Town boards may establish joint water supply districts.—It shall be
lawful for the town boards of two or more adjoining towns in this
state to form a joint water supply district whenever a petition for
the establishment signed by a majority of the owners of taxable real
property in the proposed district owning more than one-half, measured
by its assessed valuation according to the last assessment roll, shall
file with the town clerk of one of said towns in which proposed district
lies, and cause a certified copy or copies thereof to be filed with the
town clerk of the other town or towns within which such proposed
district lies. Such proposed water supply district may be either an
entirely new district or the extension of a water supply district hereto-
fore formed wholly in one of said towns, or as a joint water supply dis-
trict in two or more towns. A joint meeting of the town boards of such
towns shall be held after the filing of the petition as aforesaid upon the
written request of the supervisor of any such town, or upon the written
request of a majority of the town board of any such town filed with the
town clerk of such town and upon the filing of such a written request such
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 435

Town Law, §§ 301, 302, 303.

town clerk shall call a meeting at the usual meeting place of the town board
of the town whose official, or officials, presented the request therefor, by giv-
ing ten days’ notice of the date, hour and place of such meeting, which
notice shall be either given personally or by mailing the same to the mem-
bers of such town boards at least ten days before the date of such meeting
and addressed to such members at their last known post office address.
[Town Law, § 300, as added by L. 191%, ch. 423.]

Petition; map— The petition to be filed as in the last section provided
must describe the proposed district, be signed by the petitioners and ac-
knowledged in the same manner as a deed to be recorded, and there shall be
annexed thereto a map of such proposd district, which map shall also show
the proposed method of procuring a water supply for said district, and the
proposed line of mains, distributing pipes and hydrants, and the parties
presenting the petition shall present sufficient additional copies of the
petition and maps in order that the town clerk with whom they are first
filed may make the necessary certified copies. [Town Law, § 301, as
added by L. 1917, ch. 423.]

Expenses; how paid.— The reasonable expenses of the necessary proceed-
ings on the organization of a joint water supply district, as herein prescribed,
shall be a charge against the district, if organized; if such water district
is not organized the persons who signed the petition for the establishment
of such joint water supply district shall be jointly and severally liable for
such expenses. [Town Law, § 302, as added by L. 1917, ch. 423.]

Action by joint town boards.— When. the petition and map as herein-
before provided have been filed, the town clerk of the town with whom a
request for a meeting of the joint town boards has been filed shall cause
notice of the filing of such petition to be published for one week in a news-
paper published in each of such towns, or if no newspaper be published in
any or all of such towns then by posting such notice in at least six public
and conspicuous places in each of said towns within the proposed water
district described in such petition. Such notice shall also specify a time
and place where the joint town boards will meet to consider the petition,
which meeting shall not be less than ten days nor more than twenty days
after the filing of the request for a meeting and the publishing or posting
of the notices. At such meeting the joint town boards shall determine if
said petition is in fact signed and acknowledged by a majority of the owners
of the taxable property in said proposed water district, measured by its
425a TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
e

Town Law, §§ 304, 305.

assessed valuation according to the last assessment rolls of such towns.
Such determination shall be in writing, signed by said joint town boards
or a majority of both of them, and recorded in the minutes of said meeting.
If the decision be that the petition is signed and acknowledged by a majority
of the owners of the taxable property in the proposed district, measured by
its assessed valuation according to the last town assessment rolls, then the
joint town boards shall make an order establishing such joint water supply
district. [Town Law, § 303, as added by L. 1917, ch. 423.]

Contract for water supply If the town boards establish a joint water
supply district as in the last section provided, it shall be lawful for the
supervisors of the towns, any part of which is within such district, to enter
into a contract on behalf of such towns with any water company, or other
party or person, to supply water for such district for fire, sanitary or other
public purposes. Any water company authorized to supply water to any
one of such towns may enter into such contract and lay its conduits, mains
and distributing lines, and set its hydrants as in the contract provided,
the same as if such water supply district was wholly within the town in
which it was authorized to supply water. Such water company may supply
water to persons or corporations residing within such water supply district,
if an order be procured from the public service commission fixing the maxi-
mum price to be charged therefor. Application for such order may be made
to the public service commission either by such town boards or by such
water company. The public service commission shall fix a time and place
for a hearing on such application, of which due notice shall be given to the
supervisors of such towns or to such water company, as the case may be,
at which shall be heard all persons interested in such application, including
any corporation or person residing within such water supply district. After
such hearing the public service commission shall, by order, fix the maximum
price which may be charged for water by such water company, which order
shall be binding on such company and the price fixed therein shall remain
unchanged until a different price shall have been fixed by the public service
commission, in like manner, upon application either by such town boards,
such water company or a corporation or person residing within such water
supply district. [Town Law, § 304, as added by L. 1917, ch. 423.]

Levy of taxes for payment of amount of contract.— The annual amount
due under and pursuant to any contract that may be entered into for a joint
water supply district shall be apportioned on the basis of the assessed valu-
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 425b

Town Law, § 260.

ation of the real property within said district between each of said towns by
the supervisors of the towns affected, on the basis of the equalized valuation
and the amount of such expense shall be assessed and levied on the taxable
property in such water supply district in each of said towns, and collected
in the same manner and at the same time and by the same officers as the
other town taxes or charges or expenses of the towns in which such district
is located are now assessed, levied and collected, and such money, when
collected, shall be kept as a separate fund and be paid over by the super-
visors of said towns to the corporation, company, person or persons furnish-
ing such water, pursuant to the terms of the contract therefor. [Town
Law, § 305, as added by L. 1917, ch, 423.]

§ 6. TOWN BOARDS MAY ESTABLISH STREET LIGHTING DIS-
TRICTS AND CONTRACT FOR THE LIGHTING OF STREETS
THEREIN; PETITION THEREFOR; NOTICE TO BE PUB-
LISHED; AMOUNT OF CONTRACT, HOW RAISED.

Town boards may establish lighting districts—It shall be lawful for
the town board of any town in this state to contract for the lighting of
the streets, avenues, highways, public places and public buildings
therein, outside of the corporate limits of any incorporated village in
said town, upon such terms and for such time or period not exceeding
ten years, as the town board may deem proper or expedient, and for
the payment of the expenses thereof may establish one or more lamp or
lighting districts therein. It shall be lawful for the town boards of two
or more adjoining towns in this state, whenever a petition for the estab-
lishment of a lamp or lighting district shall cover territory lying in two
or more adjoining towns in this state, to contract for the lighting of the
streets, avenues, highways, public places and public buildings therein,
outside of the corporate limits of any incorporated village in said town,
upon such terms and for such time or period not exceeding ten years, as
the town boards of two or more adjoining towns in joint session assembled
may deem proper or expedient and for the payment of the expenses thereof.
[Town Law, § 260; B. C. & G. Cons. L., p. 6210.]

 

5. Town board cannot construct or purchase a plant. Rept. of Atty. Genl.
(1901) 237.

Where a town board illegally establishes a lighting plant with moneys of the
town and repays such town with money raised by tax in the lighting district, res-
425¢ TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, § 261.

Petition.—Where there is no lighting district already formed within t’.2
town, and the amount is to be collected upon the taxable property of the
whole town, no petition or establishment of district shall be necessary.
When the amount is to be collected upon the taxable property of a district or
there is another lighting district or districts already formed within the town
no such contract shall be made unless a :)2tition for such lig iting, signed by
a majority of the taxpayers of such lamp or lighting district, shall be filed
with the town clerk of said town thirty days before the contract is made,
but in the counties of Nassau, Rockland, Suffolk and Westchester no such
contract shall be made unless the petition for such lighting is signed by a
majority of the resident taxpayers in such lamp or lighting district, unless
it be a renewal or extension of such a contract. In case such proposed lamp
or lighting district lies in two or more adjoining towns, a petition signed by
a majority of the taxpayers of such lighting district may be filed with the
clerk of any such towns, and a copy of such petition and its signatures,
certified to be such by the clerk of the town with whom the original petition
is filed shall thereupon be filed with the town clerk of each other such town,
and such petition shall not be deemed filed within this section until so
filed with the clerk of each such town. A joint meeting of the town boards
of such towns for the purpose of transacting any business of such joint lamp
or lighting district shall be held at any time upon written request of the
supervisor of any such town to the clerk of each such town. It shall be law-
ful, however, for the town board of each town, a part of which is included
in a joint lamp or lighting district so established, to transact all business
thereof in separate session, except that the establishment of the district
and the adoption of an initial contract for lighting shall be done in
joint meeting as provided in section two hundred and sixty. For the
purposes of such joint action in separate session a majority vote at a
meeting of each such town board, upon the same resolution, shall be
necessary. The town clerk of each such town shall file a copy of such
minutes of separate meetings as refer to such lighting district with the
town clerk of each other town, a part of which is included in such joint
lighting district, and the action of the several town boards shall there-
upon become effective for such joint district. [Town Law, § 261, as
amended by L. 1910, ch. 671, L. 1916, ch. 99, L. 1917, ch. 19, L. 1919, ch.
452, and L. 1921, ch. 117.]

 

toration of funds to the lighting district must be sought under § 1969 of Code
of Civil Procedure. But taxpayer’s action under § 51 of the General Municipal
Law will lie to enjoin the further operation of the plant. Montgomery v, Smead
(1916), 97 Misc. 283, 161 N. Y. Supp. 431.
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 425d

Town Law, §§ 261a, 262, 262a.

Consolidation of lighting districts— Two or more adjoining lighting
districts in the same town may be combined in a single lighting district
by a resolution of the town board of said town, and two or more adjoin-
ing lighting districts, any one of which lies in two or more adjoining
towns, may be combined in a single lighting district by resolution of
the town boards of said towns in joint session. In case the existing
contracts for lighting different parts of such combined district are, by
the terms thereof, to expire at different times, no renewal of any such
contract shall be for a period longer than the unexpired portion of
the term of the other such contract, if there be but two, or in case
there be more than two such contracts, for a period longer than the unex-
pired portion of that one of such contracts which has the longest time to
run. [Town Law, § 261-a, added by L. 1916, ch. 99.]

Notice of filing petition— The town board, or if such district shall
lie in two or more adjoining towns, then the town boards of each such
towns shall cause notices of the same to be published for one week in one
or more of the newspapers published in such town or towns, or if no
newspaper be published in such town or towns, then by posting said
notice in at least six public and conspicuous places in said district of
the filing of said peitition, and the time and place when the same will be
acted upon by said town board, or if such lighting district lies in two or
more adjoining towns, then when the same will be acted upon at a joint
meeting of the town boards of such towns, to be held in the territory
where such district is to be created. [Town Law, § 262; B. C. & G.
Cons. L., p. 6211.] :

Consolidation of lighting districts— Any existing lighting district
may be extended by resolution of the town board of the town in which
such district is situated, or by resolution in joint session of the town boards
of the several towns in which such district is situated, so as to include there-
in any part of such town or towns, adjoining such district, upon the writ-
ten petition of a majority of the owners of the real property to be included
in such proposed extension, duly filed withthe clerk of the town in which
such district is situated; or if such district lies in two or more adjoining
towns, with the clerk of any one of such towns. A lighting district may be
repeatedly enlarged and extended in accordance with the provisions of this
section. No contract for lighting such extension shall be made for a period
of time longer than the unexpired portion of the term of the existing con-
425e TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, §8§ 263, 264.

tract for lighting said district; or, in case there shall be at the time of
such extension more than one existing contract for lighting said district,
for a period longer than the unexpired portion of that one of such contracts
which has the longest time to run. [Town Law, § 262-a, added by L. 1916,
ch. 99.]

Amount of contract, how collected— The amount of any contract that
may be entered into pursuant to the provisions of this article shall be
assessed, levied and collected upon the taxable property in said town or
district in the same manner, at the same time, and by the same officers as
the town taxes, charges or expenses of said town are now assessed, levied
and collected, and the same shall be paid over by the supervisor to the corpor-
ation, company, person or persons furnishing or supplying said light. If
the the town boards of two or more adjoining towns shall, in joint session,
establish a lamp or lighting district in two or more adjoining towns, they
shall determine the relative proportion of the expense of such lighting
which shall be borne by each of said towns, and the amount of such expense
shall be assessed and levied on the taxable property in such lighting district
in each of said towns, and collected in the same manner and at the same
time, and by the same officers as the town taxes or charges or expenses of the
town in which said district is located, are now assessed, levied and collected,
and such relative expense shall be paid over by the supervisor of each of
said towns to the corporation, company, person or persons furnishing or
supplying the light." [Town Law, § 263; B. C. & G. Cons. L., p. 6211.]

§ Ga. LIGHTING CONTRACTS IN TOWN AND VILLAGE.

Whenever a town board has established a lighting district in a town, and,
thereafter, a portion of said town containing a part of said lighting dis-
trict, shall have been included within the boundaries of an incorporated

 

5a. Misappropriation of moneys collected by board of supervisors; remedy against
town. Where a party contracted with a town board, under section 260 of the Town
Law, for the lighting of a district, and a tax therefor was levied and collected
under this section, and the supervisors into whose hands the money was paid, mis-
appropriated it, the claim for the lighting is a liquidated indebtedness of the town,
and the remedy is by an action at law and not by mandamus against the town
officers to compel levy and collection of another tax. Dunn v. Town of Whites-
town (1911), 185 Fed. 585.
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 425f
Town Law, §§ 265, 230.

village it shall be lawful for said town board and the board of trustees of
said village, in joint session, without petition therefor, to jointly make,
renew or extend a contract for the lighting of the whole of said village and
the portion of said district in said town, not included in the village, for a
period not to exceed five years. For the purpose of such joint action, in
separate session a majority vote at a meeting of each town board and village
board, upon the same resolution, shall be necessary. If the town board and
village board of trustees in joint session, shall make, renew, or extend such
a contract, they shall determine the relative proportion of the expense of
such lighting which shall be borne by such town and village, respectively,
and the amount of such expense to be borne by such town sliall be assessed
and levied on the taxable property in said lighting district in said town and
collected in the same manner and at the same time and by the same officers
as town taxes, charges and expenses of such town in which a portion of said
district is located, are now assessed, levied and collected, and such relative
expense shall be paid over by the supervisor of said town to the corporation,
company, person or persons supplying or furnishing said light. The portion
of the expense to be borne by said village, shall be assessed, levied and col-
lected at the same time and in the same manner as other village charges,
expenses and taxes are levied, assessed and collected and shall be paid in
annual installments commencing with making, renewal or extension of said
contract to the corporation, company, person or persons furnishing or supply-
ing said light to the amount of the contract. The expense of such lighting
in such village shall not, for each fiscal year, exceed three and one-half mills
on every dollar of the taxable property of said village as appears on the last
preceding assessment roll before the making, renewal or extension of such a

contract,* unless authorized by a village election. [Town Law, § 264, as
added by L. 1917, ch. 280.]

§ 6. TOWN CONTRACTS FOR LIGHTING IMPROVED HIGHWAYS OR
BRIDGES.

The town board of any town, without establishing a lamp or lighting dis-
trict as provided by this article and without a petition as required by section
two hundred and sixty-one, may contract for the lighting of such improved
highways or such bridges in the town outside of villages and cities, as the
board deems needed for the safety or convenience of the public. Such
contract shall be upon such terms and for such time or period, not exceeding
five years as the board deems proper or expedient. The amount payable
annually thereunder shall be a town charge and shall be paid from the sur-
plus money of the town, or if such surplus be insufficient, the town board
may cause not exceeding one thousand dollars in any year to be assessed,
levied and collected for such purpose at the same time and in the same
manner as other town charges. Lighting may be contracted for pursuant
to this section in addition to lighting contracted for on account of a lighting
Pree ot aoe within the town. [Town Law, § 265, as added by L.

, ch. 65. ‘

§ 7. TOWN BOARD MAY ESTABLISH SEWER SYSTEM; PETITION.

The town board of any town on the petition of owners of real property
in a proposed district, or in a proposed extension of an existing district,
representing more than one-half in value of the taxable real property
therein as appears by the last preceding completed assessment roll, may
establish a sewer system outside an incorporated village or city, or ex-

 

Exemptions. The property of corporations or associations falling within
subdivision 7 of section 4 of the Tax Law, is exempt from payment of the tax
levied pursuant to this section. Rept. of Atty. Genl. (1915), p. 44.
+426 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, 8 230.

tend the boundaries of an existing district and the sewer system therein
accordingly. The petition must describe the proposed district, or pro-
posed extension of an existing district, and state the maximum amount
proposed to be expended in the construction of such sewer system or ex-
tension. Each petitioner shall state opposite his name the assessed val-
uation of the real property owned by him in such district, or extension
of an existing district, according to the last preceding completed assess-
ment-roll. The petition must be signed by the petitioners and proved
or acknowledged in the same manner as a deed to be recorded, and if it
be a petition to extend an existing district and the sewer system therein
shall, in addition to the foregoing provisions, be approved in writing by
the sewer commissioners of such district. There shall be annexed to and
presented with such petition a map and plan of the proposed sewer sys-
tem, or extension, with specifications of dimensions and connections and
outlet or sewage disposal works prepared by a competent engineer at the
expense of the petitioners. The petitioners may, however, present to
the town board with such petition, map, plan and specifications, a state-
ment, verified by one of the petitioners having personal knowledge of the
correctness thereof, showing the amount of the actual cost to them of
said map, plan and specifications and the cost of the acknowledgments
of the signatures to such petition, and by whom paid, which said
amount, if found by the town board to be just and reasonable, and if the
said town board shall make one of the orders as provided by section two
hundred and thirty-one of this chapter, shall be and become a part of
the expense of construction, and shall be included in the first tax levy
therefor, and shall be refunded to the person or persons by whom paid,
as shown by the aforesaid statement, by the supervisor of the town, who
shall take a receipt therefor. At any time after the town board has
made an order establishing such district, or extending an existing dis-
trict, the maximum amount proposed to be expended in the construction
of such sewer system in said district, or extension, may be increased by
a petition of owners of real property in said district or extension, repre-
senting more than one-half in value of the taxable real property therein,
as appears by the last preceding completed assessment-roll, setting forth
the additional amount proposed to be expended, in excess of the maxi-
mum amount set forth in the petition upon which the said district or
extension was established. Such petition must be signed and proved or
acknowledged in the same manner as the petition for the establishment
of said sewer district or extension, and shall be filed in the office of the
town clerk. Every petition made as provided in this section shall con-
tain a statement conspicuously printed thereon as follows: ‘‘ The cost
of construction and maintenance of such sewer system or extension, as
the case may be shall be assessed, from year to year, by the sewer com-
missioners to be appointed, upon the lands within the sewer district or
extension in proportion as nearly as may be to the benefit which each
lot or parcel will derive therefrom.” Any petition made as herein pro-
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS 426a

Town Law, § 230a.

vided shall be legal for all purposes herein, although some of the peti-
tioners therein may have signed and acknowledged the same before this
section, as hereby amended, takes effect.© [Town Law, § 230, as
amended by L. 1910 ch. 134, and L. 1911, ch. 507; B. C. & G. Cons.
L., p. 6205. ]

Town board may direct construction of portions of sewer system ; ex-
tension, notice of, petition.—If in the petition for the establishment of
a sewer district or for an extension to an existing district, the petitioners
shall pray that a portion or portions only of the system designed ulti-
mately to serve the entire district or an extension to the said district,
shall be constructed in the first instance, and shall describe the said
portion or portions in their said petition, and indicate the same on the
said map and plan, and shall specify the maximum amount proposed to
be expended in the construction of such portion or portions of the said
system, the town board may include in its order establishing the said.
district or extension, a direction that the sewer commissioners shail con-
struct only the portion or portions of the said system designated in the ,
said petition, until extensions thereto shall be authorized as hereinafter
provided. In case the town board shall make an order establishing the
said district and containing the said direction, the provisions of this
_ chapter shall be applicable thereto in all respects, except that the town
board shall not issue bonds to provide for thé cost of such portion or por-
tions to an amount exceeding the amount mentioned in the said petition
as the maximum amount proposed to be expended in the construction of
such portion or portions. Thereafter extensions to the said system may,
from time to time, be authorized by the town board upon the petition of
the owners of real property within the area in said district to be served
by any proposed extension or extensions to the said system, representing
more than one-half in value of the taxable real property within such
area, as appears by the last preceding completed assessment-roll, which
said petition shall comply in form, substance, and in the manner of exe-
cution, so far as applicable thereto, with the requirements of the petition
for the establishment of a sewer district, and shall state the maximum
amount proposed to be expended for such extension cr extensions, and
shall have endorsed thereon a written approval of a majority of the
sewer commissioners of such district, and there shall be presented with
the said petition a map prepared by a competent engineer, showing the
area proposed to be served by any such proposed extension, and in case
such proposed extension or extensions involve a change from the plans
shown by the map and plan attached to the petition for the establish-
ment of the said sewer district such petition shall be accompanied by a
map and plan of such extension or extensions prepared in the same man-
ner as the original map and plan, and approved by the state board of
health. Before acting upon a petition to extend the system in any dis-
trict or extension thereof, the town board shall give notice of the time

6. Outlet for the system may be outside of the district created. Rept. of Atty.
Genl. (1902) 346.
426b TOWNS, TOWN MEETINGS AND TOWN OFFICERS, ,

Town Law, § 281.

(

and place at which it will meet to act thereon, by posting at least twenty-
one days before the day fixed for the said meeting a notice thereof in at
least four public places in the said district, and by publishing a notice
thereof once in each of the three calendar weeks immediately preceding
the week in which the said meeting is to be held in at least one news-
paper published in the said town, if a newspaper is published therein.
The cost to the petitioners of the maps, plans, specifications, and of the
acknowledgments of the signatures to such petition may be made a part
of the expense of constructing the said extension or extensions as pro-
vided in section two hundred and thirty of the town law with respect to
the like expenditures of the original petitioners, and the maximum
amount proposed to be expended in the construction of any such exten-
sion or extensions to the sewer system in any such district may be in-
creased by the petition of the owners of real property in the area pro-
posed to be served thereby, representing more than one-half the taxable
real property therein as appears by the last preceding completed assess-
ment-roll of said town, in the manner specified in section two hundred
and thirty of the town law for increasing the maximum amount pro-
posed to be expended for the construction of the original system. In
case said extension or extensions to the said sewer system in any such
district shall be authorized by the town board of any such town, such ex-
tension or extensions, shall. thereafter, for all purposes, be regarded as
part of the original system, and shall be constructed and maintained by
the sewer commissioners of the said district, and the cost of the construc-
tion thereof shall be provided for by the issue and sale of town bonds in
the same manner as provided in section two hundred and thirty-seven of
the town law for the payment of the cost of the original system, which
said bonds shall be a town charge, and the principal and interest thereof,
together with the cost of maintenance of such extension or extensions,
shall be collected from the real property within the said district by the
said sewer commissioners, in the same manner as though said extension
or extensions had formed a part of the original system constructed in
the said district. [Town Law, § 230a, as added by L. 1912, ch. 205.]
Order of town board; appointment. of commissioners.—If the town
board is satisfied that the petitioners are owners of real property in the
proposed district or extension, and own more than one-half in value of
the taxable real property therein, they shall make an order establishing
such district, or extending the boundaries of an existing district, and if
establishing a new district, appointing three taxpayers therein as sewer
commissioners, who shall hold their offices at the pleasure of the town
board. Such sewer commissioners shall each be paid for their services,
at such times as the town board may designate in said order,.an amount
to be fixed by the town board, which amount shall not exceed three dol-
lars per day for each day actually aad necessarily spent in the business
of the sewer district and shall be deemed an expense of maintaining the
sewer system and shall be collected and paid as provided in section twe
hundred and forty-three of this chapter for expense of maintenance.
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 497
Town Law, §§ 232, 233, 234, 235.

[Town Law, § 231, as amended by L. 1910, ch. 134, and L. 1911, ch.
507; B. C. & G. Cons. L., 2d Ed., p. 8850.]

Oath of office and undertaking of commissioners.—Each commis-
sioner before entering on the duties of his office shall take the consti-

tutional oath of office and execute to the town and file with the town
clerk an official undertaking in such sum and with such sureties as the
town board shall direct. The town board may at any time require any
such commissioner to file a new official undertaking for such sum and
with such sureties as the board shall direct. [Town Law, § 232; B. C.
& G. Cons. L., 2d Ed., p. 8851.]

Map and plans of system; approval of state board of health. The
sewer commissioners shall cause a copy of the map and plan of the pro-

posed sewer system, or proposed extension thereof, to be submitted to
the state engineer, and if approved, it shall be filed in the office of the
state commissioner of health. Such map and plan may be amended
with the approval of the state engineer, and if approved, it shall be
filed in the offices of the state commissioner of health and of the town
clerk. [Town Law, § 233, as amended by L. 1910, ch. 134, and L. 1921,
ch. 510.]

Contracts The sewer commissioners of such district shall advertise for
proposals for the construction of a sewer system, or an extension thereof,
according to such map and plan, finally filed, either under an entire con-
tract or in parts or sections as the board may determine. Such advertise-
ment shall be published once in each of two successive weeks in each news-
paper published in said sewer district and extension thereof, and if no news-
paper is published therein, in the two newspapers published nearest thereto.
The commissioners may require a bond or deposit from each person sub-
mitting a proposal, to be not less than twenty-five per centum of the amount
involved, the liability on such bond to accrue, or such deposit to be forfeited
to the town, in ease such person shall refuse to enter into a contract in
accordance with his proposal. The commissioners may accept or reject any
or all proposals, and when the contract is let it shall be let to the lowest bid-
der. No contract shall be made by which a greater amount shall be agreed
to be paid than the maximum amount stated in the petition for the construc-
tion of such sewer, as amended by supplemental petition, if any, including
the expense of superintendence and inspection as provided in section two
hundred and thirty-five. Each contract shall be executed in duplicate, one
of which shall be given to the contractor and the other shall be filed in the
office of the town clerk. [Town Law, § 234 as amended by L. 1910, ch.
134; B. C. & G. Cons. L., p. 6206.]

Engineers and inspectors—The sewer commissioners may employ an
attorney, a supervising engineer to superintend and inspect the construction
of any sewer, or extension thereof, or works connected therewith, and also
such inspectors as may be necessary and fix the compensation of such
attorney, engineer and inspectors. Such compensation, together with the
498 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, §§ 236, 237.

fees, charges and expenses of the engineer employed to prepare the map, plan
and specifications, and the cost of the acknowledgments of the signatures of
the petitioners, as provided for in section two hundred and thirty of this
chapter, shall be treated as a part of the expense of construction. [Town
Law, § 235, as amended by L. 1910, ch. 134; B. C. & G. Cons. L., 2d Ed.,
p. 8851.

Acquisition of property by purchase or condemnation. The sewer commis-
sioners may from time to time acquire, by condemnation or purchase, such
real estate, right of ways, and easements to and into real estate, as they may
deem necessary for the proper erection, construction and operation of said
system, or any extensions thereof, whether the property and easements neces-
sary to be acquired are within the territorial limits of the sewer district as
established, or extended, and may dispose, by deed or otherwise, of the whole
or any part of such real estate and easements previously acquired, but always
at public sale, to the most favorable bidder or bidders, notice of which sale
shall be given in the manner provided by law, for the sale of lands under
an execution, provided that the owner from whom the real estate or ease-
ments have been acquired shall have the right to purchase such real estate
or easements from the town at the highest price bid for the same at public
sale, such right to be exercised by the former owner within thirty days after
the date of the public sale, said sewer commissioners may enter into an
agreement with the board of trustees or other duly authorized officers of an
adjoining incorporated village, to sewer some part or portion of such in-
corporated village, and to lay and maintain pipes therein, and when pipes
are laid and maintained, and sewer system constructed within the limits of
an adjoining incorporated village pursuant to an agreement so made, the
sewer commissioners shall have the same control and exercise the same rights
and privileges in connection with the system constructed within the limits of
an incorporated village as they have in connection with the system estab-
lished within the sewer district as laid out. [Town Law, § 236, as amended
by L. 1913, ch. 73, and L. 1922, ch. 163.]

Apportionment of local assessment for construction. The sewer commis-
sioners shall prepare and file in the office of the town clerk a map and plan
of such district, or extension, which shall show the highways and the several
parcels of land therein. The commissioners shall report to the town board
the amount of the cost of construction of such sewer system as determined
under the foregoing provisions hereof. The town board shall direct the issue
and sale of bonds for the amount of the cost of construction as so reported to
said board by the said commissioners, which said bonds shall be redeemable
in such equal yearly instalments, the interest thereon to be paid semi-an-
nually, as said town board shall prescribe, and shall be a town charge. In
the month of July in each year the town board shall notify the sewer commis-
sioners of the amount to become due for principal and interest during the
ensuing year on the bonds so issued. The sewer commissioners shall forth-
with proceed to assses such amount on the lands within such district, or
extension of an existing district, in proportion as nearly as may be to the
benefit which each lot or parcel will derive therefrom. After making such
apportionment, said commissioners shall forthwith serve on each land owner
a notice of at least ten days of the completion thereof and of the filing of
such map and plan, and that at a specified time and place a hearing will be
had to consider and review the same. Such notice must be served upon
said land owners personally or by mailing the same to their last known
respective addresses or by publishing the same once each week for two weeks,
in a newspaper which circulates in said district, or by either or any of said
methods. The commissioners shall meet at the time and place specified to
hear objections to such apportionment, and may modify and correct the same.
The sewer commissioners upon the completion and correction of such appor-
tionment shall forthwith file the same in the office of the town clerk, and shall
give notice of the filing of such completed and corrected apportionment in the
manner provided for by section thirty-nine of the tax law as to
towns. The apportionment shall then be deemed final and conclusive
unless an appeal is taken therefrom, as hereinafter provided, within fifteen
days after the filing thereof. The town board shall present to the board
of supervisors at its annual meeting, a statement of such apportionment
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 499
Town Law, §§ 238, 239, 240, 241.

as so corrected and filed, showing the amount due, or to become due, for principal
and. interest during the ensuing year, om the bonds issued under this article; each
lot or parcel liable to pay the same, and the amount chargeable to each. The board
of supervisors shall levy such sums against the property liable, and shall state the
amount of the tax in a separate column in the annual taxroll under the name
“ sewer tax.” Such tax when,collected shall be paid to the supervisor and be by him
applied in payment of the bonds. An unpaid assessment shall be collected in the
same manner and shall subject the land and land owner liable therefor, to the
same interest, burdens and penalties, as other town taxes in arrears. [Town Law,
§ 237, as amended by L. 1910, ch. 134, and L. 1915, ch. 368; B. C. & G. Cons. L., p.
6207.]

Appeal.—A person aggrieved by an apportionment may within fifteen days after
the filing thereof, appeal therefrom to the County Court of the county in which
such district is situated. Such appeal shall be taken by a notice stating the
grounds thereof, served personally or by mail upon each of the sewer commis-
sioners and filed with the town clerk. [Town Law, § 238; B. C. & G. Cons. L.,
p. 6208.]

Notice of appeal; reversal.—Either party may bring on the appeal on a notice
of not less than ten nor more than twenty days. All appeals from the same
apportionment must be consolidated and heard as one appeal. The County
Court may affirm or reverse the apportionment. If it be reversed on the
ground that it is erroneous, unequal or inequitable, the court shall, by order
of reversal, appoint three disinterested freeholders of the district as commis-
sioners to make a new apportionment and no appeal shall be allowed from such
order. [Town Law, § 239; B. C. & G. Cons. L., p. 6208.]

Reapportionment.—A reapportionment shall be made in the following cases:

1. By the commissioners appointed by the County Court where the original
apportionment is reversed on the ground that it is erroneous, unequal or
inequitable.

2. By the sewer commissioners of the districts where the original apportion-
ment is reversed on any other ground. A reapportionment under this subdi-
vision shall be made in like manner as the original.

3. Reapportionments shall also be made by the sewer commissioners in like
manner as original apportionments are made upon the petition of the owners
of real property in said district representing a majority of the taxable prop-
erty therein, as appears by the last preceding completed assessment roll, when
the said petition shall state that the existing apportionments have become
unequal or inequitable; such reapportionments shall be made from time to
time, but not oftener than once in three years. [Town Law, § 240, as amended
by L. 1911, ch. 251; B. C. & G. Cons. L., p. 6208.]

Meeting of commissioners.—The commissioners appointed by the County Court
shall give notice of the time and place at which they will meet to make
such reapportionment, and shall serve notice thereof, either personally
or by mail, at least ten days before such meeting, upon each owner of land
within such district or extension of an existing district, as finally fixed by
the board of sewer commissioners. They shall meet at the time and place
specified and make such reapportionment in the manner herein prescribed
430 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, §§ 242, 2438.

for the sewer commissioners. They shall file such reapportionment in
the office of the town clerk, and it shall be final and conclusive. [Town
Law, § 241, as amd. by L. 1910, ch. 134; B. C. & G. Cons. L., p. 6203.]

Compensation of commissioners.—Each commissioner appointed by
the county court is entitled to five dollars for each day necessarily
spent in making such reapportionment, besides his actual necessary
expenses. Such fees and expenses are a charge against the town, and
must be audited by the town board. The amount thereof shall be
added to the portion of the expense of constructing such sewer or
sewer system, which is to be assesssed against property in such sewer
district, or extension. [Town Law, § 242, as amended by L. 1910, ch.
134; B. C. & G. Cons. L., p. 6208.]

Assessment on property benefited—After the sewer system is con-
structed it shall be maintained by the commissioners, and the cost of
such maintenance shall be a charge upon the sewer district, provided,
however, that in a case where the boundaries of any such district are
coterminous with the boundaries of the town outside of an incorporated
village or city all work required in connection with the maintenance of
the sewer system may be performed by, under, or through the superin-
tendent of highways. In July of each year the sewer commissioners
shall present to the town board an estimate of the amount of money re-
quired by said commissioners to meet the expenses of maintaining
the sewer system for the ensuing year. The town board shall formally
pass upon such estimate and approve, or correct and approve, the same.
The sewer commissioners shall thereupon assess the amount of the esti-
mate as so approved, and corrected, on the lands within their dis-
trict, in proportion, as nearly as may be, to the benefit which each lot
or parcel will derive therefrom, and shall give the same notice thereof,
and shall correct and file such apportionment in the same manner, and
shall give the same notice of the filing of such corrected apportionment,
as is provided for in section two hundred and thirty-seven of this
chapter. An appeal may be taken from such corrected apportionment
within the same time, and the procedure thereupon shall be the same
as specified in sections two hundred and thirty-eight to two hundred
and forty-two, both inclusive, of this chapter, except that the fees of
the commissioners appointed by the county court to readjust the ap-
portionment made pursuant to this section shall be a charge upon the
sewer district, and shall be included in the expenses of maintenance.
Whenever an apportionment is to be made to meet an installment of
principal and interest on the bonds issued pursuant to section two hun-
dred and thirty-seven of this chapter, any proceedings for the cor-
rection, review or readjustment thereof shall be consolidated with the
like proceedings, if any, with respect to the apportionment made as
provided in this section. The town board shall present such estimate
to the board of supervisors at its annual meeting, with a statement
of each property or parcel liable for the same and the amount charge-
able to each. The board of supervisors shall levy such sums against
the property liable and shall state the amount of tax in
the annual tax roll under the name ‘‘sewer tax,’’ with
the sewer tax to be raised for payment of bonds as provided

in section two hundred and thirty-seven of this chapter, and after
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 431

Town Law, §§ 244, 129.

such bonds shal] have been entirely paid in a similar column headed “ sewer
tax.” This tax for maintenance, when collected, shall be paid to the super-
visor of the town and by him paid to the sewer commissioners to meet the
expense of maintenance of the sewer system. An unpaid assessment under
this section shall be collected in the manner provided for in section two
hundred and thirty-seven of this chapter. The sewer system as so con-
structed, or as hereafter added to or changed, shall be under the charge
and control of the sewer commissioners, under whose supervision it shall be
used by property owners, and no person shall enter into, open or interfere
with or use said sewer system except under the inspection and direction of
said sewer commissioners and after formal permission shall have been given
by said commissioners. The sewer commissioners shall adopt rules and
regulations to govern the maintenance and use of the sewer system and
shall therein fix the amount of fees that shall be chargeable to individuals
or property owners, who may wish to enter or use the sewer system, which
fees shall be sufficient in amount to pay for the cost of inspection of such
entry or entries. Any person violating any provisions hereof and inter-
fering with, entering or using said sewer system without obtaining such
permission shall be guilty of a misdemeanor and liable to punishment
accordingly. [Town Law, § 243 as amended by L. 1910, ch. 184, and 1..
1921, ch. 144.]

Annual statement of commissioners——The sewer commissioners shall in
the month of December in each year file in the office of the town clerk a
detailed statement, under oath, of the moneys received and paid by them
since their last statement under the provisions of this chapter, together
with the names of the persons or parties from whom the same were received
and to whom the same were paid, and the object of each payment, with
the vouchers therefor. Such statement shall show the balance remaining
in their hands, which balance shall be applied to maintenance account for
the following year. [Town Law, § 244, as amended by L. 1910, ch. 134;
B. 0. & G. Cons. L., p. 6210.]

§ 7a. WATER AND SEWER COMMISSIONERS IN TOWNS OF CER-
TAIN COUNTIES.

The town board of any town in a county adjoining a city of the first class
and containing not more than five towns, upon the written request of at
least ten taxpayers in each of the water and sewer districts in such town,
shall cause to be submitted at a biennial town meeting in such town the
following proposition: “Shall there be established in the town of (nam-
‘ing thé town) a water and sewer commission?” If such proposition be
adopted by the affirmative vote of a majority of the qualified voters voting
thereon there shall be established in such town a water and sewer commis-
sion with the powers prescribed by this section. Such commission shall
consist of three members. The supervisor of such town shall on or before
the first day of December following the biennial town meeting at which
such proposition shall have been adopted appoint three water and sewer
commissioners for such town to hold office for the terms of one, two and
three years, respectively, from the first day of December, and annually
thereafter the supervisor of such town shall on or before December first
appoint a water and sewer commissioner to hold office for a full term of
three years from such date. The members of such commission shall each
receive an annual salary to be fixed by the town board, not exceeding twenty-
432 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, §§ 250, 251.

five hundred dollars. Such salary shall be apportioned among the several
water and sewer districts in such town in the proportion of the aggregate
assessed valuation of the real and personal property in such districts as
appears by the last preceding town assessment roll, and the portion thereof
apportioned to a district shall be levied and collected therein in the same
manner as town taxes are levied and collected, and when collected shall be
paid to the supervisor of such town to be applied toward the payment of
such salary. On the first day of December succeeding the adoption of a
proposition establishing such commission the terms of office of all the water
and sewer commissioners in the several water and sewer districts of such
town shall expire, and all the powers and duties of such commissioners in
respect of the water and sewer districts for which they were appointed shall
be vested in the water and sewer commission of such town; and thereupon
such water and sewer commissioners shall turn over to the water and sewer
‘commission of such town all books, records, documents and other property
of their respective districts. Pending proceedings shall not be affected by
reason of the creation of such commission, but shall be continued in the
same manner and with the same effect as if such commission had not been
created, except that such commission shall be substituted for the district
commissioners. [Town Law, § 129, as added by L. 1918, ch. 397.]

§ 8. SIDEWALK DISTRICT ESTABLISHED; IMPROVEMENTS IN
SUCH DISTRICT.

The town board of any town, on the petition of twenty-five owners of
real property in a proposed district, whose names appear upon the laat
preceding completed assessment-roll, may establish a sidewalk district out-
side of an incorporated village or city; such petition must be filed with the
town clerk of said town at least ten days before it is acted upon by the
town board as hereinafter mentioned and must bound the territory outside
of the corporate limits of any incorporated village or city in said town,
which is to be included in said district, and thereafter said district is to be
known as a sidewalk district, and the taxable property within said district
is to thereafter become subject to the charges and assessments hereinafter
mentioned ; and after receiving such petition, the town board may adopt the
same by resolution and lay out the portion of the town described in said
petition as a sidewalk district. [Town Law, § 250, as added by L. 1910,
ch. 183, in effect April 28, 1910.]

Improvements in such districts——The town board of any town in which
a sidewalk district is laid out as aforesaid may cause a sidewalk on any
street or part thereof in said sidewalk district to be graded and
a sidewalk to be built, curbed or guttered, or any one or more of such acta
performed, partly at the expense of the taxable property in said side-
walk district, and partly at the expense of the owners of the land front-
ing on said street or part thereof, improved as aforesaid, but such sidewalk
shall not be so graded, built, curbed or guttered unless a petition therefor
be presented to said town board signed by at least a majority of the owners
of property fronting on said street or portion thereof, proposed to be so im-
proved. The town board shall upon the receipt of such petition as afore-
said give a public hearing thereon to all persons interested on a notice of at
least ten days, which notice shall specify the time and place said hearing
shall be held, and shall be served upon said persons personally by mailing
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 433

Town Law, §§ 252, 253.

the same to their last known respective addresses, or by publishing the same
once each week for two weeks, in a newspaper which circulates in said dis-
trict, or by either or any of said methods. If said town board shall act
favorably upon said petition, it shall by resolution define the width of the
sidewalk, the kind and character of materials of which the same shall be
constructed, and whether the same shall be curbed or guttered, or both,
and the kind and character of curb or gutter, or both, that shall be laid.
It shall cause the sidewalks upon said street or portion thereof to be graded
and a sidewalk, curb and gutter, or either, to be constructed and laid there-
upon, and such sidewalks, curbs or gutters as may be already laid upon said
street or portion thereof, to be repaired and made to conform to the estab-
lished grade. [Town Law, § 251, as added by L. 1910, ch. 183, and
amended by L. 1917, ch. 593.]

§ 9. CONTRACT FOR IMPROVEMENTS; IMPROVEMENTS, HOW
PAID FOR. : ‘

The town board of any town wherein a sidewalk district is laid out and
defined as aforesaid is hereby empowered and authorized, after it has
favorably acted upon a petition presented by the property owners on @
street or portion thereof as aforesaid, to cause a.survey to be made, grade
to be established, plans and specifications to be drawn and to advertise for
bids to grade and build a sidewalk, lay a curb or gutter on the street or
portion thereof described in said petition, or do any one or more of said
acts and award a contract therefor to the lowest bidder; or the said town
board may with or without a survey, plan or specifications obtain from the
superintendent of highways of the town, an estimate of the costs of making
said improvements, and after approving the estimate, cause the same to be
made under the supervision of the said superintendent of highways without
a contract; all expenses incurred by the town board in connection with
such improvements or any of them, shall be a charge upon said district.
[Town Law, § 252, as added by L. 1910, ch. 183, and by L. 1917, ch. 593.]

Improvements; how paid for—After a town board has ascertained the
expense of the improvements provided for herein, it may borrow upon the
credit of the town wherein said district is located a sum equal to the total
thereof, for a period not exceeding eight months from the date thereof, at
a rate of interest not exceeding six per centum and use the same to pay
the expense thereof, which certificate with interest is to be paid out of the
moneys derived as herein provided. After the town board has ascertained
the expense of grading and building the sidewalks and laying the curbs and
gutters upon any street or portion thereof as contemplated herein, it shall
apportion and assess three-fourths of the expense thereof upon the property
fronting upon the street or portion thereof improved as aforesaid. Notice
of such assessment shall be given to the owners of said real property in the
same manner as the notice above mentioned is given, which notice shall
state, among other things, that said expenditures have been made, the pur-
pose and the amount thereof, and that at a specified time and place the
town board will meet for the purpose of making said assessments. The
town board shall meet at the time and place specified in said notice and
shall determine all objections made to such assessment, including the
amount thereof, and shall aesess upon the land benefited and fronting unon
said street or portion thereof, the amount it may deem just and reasonable,
434 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 254.

not exceeding in case of default the amount stated in the notice. After the
expiration of thirty days from the time said assessment is finally made and
assessed, the town board shall direct or issue a sale of bonds, pledging the
credit of the town wherein said district is located for the aggregate amount
of the assessments remaining unpaid, which bonds shall mature within a
period of five years and bear interest at a rate not exceeding six per centum
and shall be a town charge. The town board shall thereafter annually
apportion the amount to be raised for the payment of such bonds on the
lots or parcels in default, so that the tax thereon will be the same as if an
equal portion of the general assessment was then paid. Interest on the un-
paid assessment shall be added to such tax at the rate payable on the bond
or certificate of indebtedness, which amounts shall be computed to the time
when the principle or an instalment will become due, or if no principal
will become due during the ensuing year, then the interest accrued during
that year, upon the assessment or, bonds must be levied upon such lot or
parcels. The town board shall annually report to the board of supervisors
at its annual meeting, and submit a statement showing the amount due or
to become due with principal and interest the ensuing year on bonds issued
under this act, and the lots or parcels liable to pay the same and the amount
chargeable to each. The board of supervisors shall levy such amounts
against the property liable and shall state the amount of the tax in a sepa-
rate column, in the annual tax roll under the name “ sidewalk tax ;” such
‘tax when collected shall be paid to the supervisor and be by him applied in
payment of the bonds. The amount apportioned by the said town board
on any lot or parcel and any tax levied for collection thereof shall be a lien
prior and superior to any lien or claim except the lien of an existing tax
or local assessment. The remaining one-fourth of said expense shall be
levied and assessed upon the taxable property within said sidewalk district,
the same as town charges are levied and assessed upon the taxable property
within the town wherein said district is located. An aggregate amount,
however, to be levied and assessed upon a sidewalk district during any one
year, shall not be in excess of two per centum of the assessed valuation of
when the principle or an installment will become due, or if no principal
the taxable property within said district as appears upon the last preceding
assessment-roll. [Town Law, § 253, as added by L. 1910, ch. 183, and
amended by L. 1911, ch. 139, and L. 1917, ch. 593.]

§ 10. CONTROL OVER SIDEWALKS.

After a sidewalk district has been established as herein provided, all
sidewalks constructed and curbs and gutters laid within said district shall
be done under the supervision of the superintendent of highways of the
town wherein said district is located. He is hereby authorized, if in his
judgment he believes it to be necessary, to establish the necessary grades
therefor. It shall be the duty of the owner or occupant of each and every
lot or parcel of land situate upon a street or avenue, or a portion thereof,
which has been graded, sidewalked, curbed or guttered as herein provided,
to remove within twelve hours, all snow, ice or other obstructions upon the
sidewalk in front thereof. If such owner or occupant fails to remove such
snow, ice or other obstructions as provided herein, the superintendent of
highways of a town in which such lots are situate shall cause the same
to be removed and the expense thereby incurred shall be paid in the first
instance out of moneys provided by the town board for such purposes
available therefor, and the amount thereof shall be charged against such
owner or occupant, and levied and collected as follows: Such super-
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 435

Town Law, § 254.

intendent of highways shall serve personally or by mail upon such owner,
occupant or company a written notice stating that at a time and place
therein mentioned, he will assess such cost against the owner, occupant
or company neglecting to perform such duties. Such notice shall be
served at least eight days previous to the time specified therein. If
directed to a company it may be served upon it at its principal place of
business, or upon an agent of the company within the town. If the
property be unoccupied and the name and address of the owner is un-
known, it may then be served by posting the same upon the property
affected at least eight days previous to the time specified therein. At the
time and place so specified, he shall hear the parties interested and
shall thereupon complete the assessment stating therein the name of each
owner, occupant or company, if he can ascertain the same and the
amount assessed against him or it, and shall return such assessment to
the town clerk, who shall present the same to the town board of his
town at its meeting held on the Thursday preceding the annual meeting
of the board of supervisors. Such town board shall certify such assess-
ment to the board of supervisors, who shall cause the amount stated
therein to be levied against such owner, occupant or company, and any
uncollected tax shall be a lien upon the lot or parcel of land affected.
The amount so levied shall be collected in the same manner as other
taxes levied by such board and shall be paid to the supervisor of the
town, to be applied in reimbursing the fund from which such cost was
defrayed. The town board of any town in which a sidewalk district
is laid out as herein provided shall annually estimate the amount
necessary each year to remove snow, ice and other obstructions from
the sidewalks in said district as herein provided, which sum so estimated
shall be levied and assessed upon the taxable property within said side-
walk district as town taxes are levied and assessed upon the taxable
property within said town, which sum after the same is collected shall
be paid to the supervisor of said town and retained by him for the pur-
poses herein provided. [Town Law, § 254, as added by L. 1910, ch.
183, in effect April 28, 1910. ]
435a TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, § 255.

§ 11. PROCEEDINGS FOR CONSTRUCTING SIDEWALKS NOT CON-
STRUCTED UNDER THE PRECEDING SECTIONS.

If the town board of any town shall determine that any sidewalks
should be constructed outside of a sidewalk district or within a side-
walk district and upon a street or portion of street as to which no
petition is filed under the provisions of section two hundred and fifty-
one, of stone, cement, brick or similar substance, it may cause such
sidewalk to be so constructed along the front of one or more parcels of
real property at the joint and equal expense of such property and of
the town. The board shall allow to each land owner an opportunity to
appear and object to such proposed action, upon five days’ notice of the
time and place of the hearing. If the town board shall finally deter-
mine to cohstruct such sidewalk, it may cause the same to be constructed.
The board shall assess fifty per centum of the cost of such construction
upon the land in front of which the sidewalk is constructed. The other -
fifty per centum of such cost shall be borne by the town, and moneys
provided therefor by taxation in the same manner as other town charges.
The entire expense shall be paid in the first instance by the town. Such
expense may be raised in an entire amount or in small amounts from
time to time as the town board may determine. Bonds or certificates of
indebtedness of the town may be issued, if the town board deem it neces-
sary, to provide for such expense. The board may apportion the part
to be assessed upon adjoining land and assess the same as a whole or by
installments. Where cne parcel of land only, owned by the same party,
is affected by the improvement, the share to be paid by such land owner
shall be one-half of the cost of the improvement; otherwise, the propor-
tion payable by the several land owners shall be determined according
to the linear feet of sidewalk in front of each parcel. Notice of an
assessment shall be given to the land owner or land owners, who may pay
the amounts assessed within ten days after such notice. At the expira-
tion of that time, town bonds or certificates of indebtedness may be
issued for the aggregate amount of such assessment then remaining
unpaid.

The town board shall include in its annual budget reported to the
FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 435b

Town Law, § 255.

board of supervisors, of taxes to be levied in the town, the principal or
interest accruing during the same fiscal year upon bonds or certificates
of indebtedness issued on account of default in the payment of local
assessments under this section; and the board of supervisors shall levy
the same upon the lots or parcels in default. Such principal shall be
apportioned among the lots or parcels in default in such manner that
the tax thereon will be the same as if an equal portion of the assess-
ment were then to be paid. Interest on an unpaid assessment shall be
added to such tax at the rate payable by the bond or certificate of in-
debtedness, which must be computed to the time when the principal or
an installment will become due; or if no principal will become due
during the fiscal year, then the interest accruing during that year upon
the assessment must be levied upon such lot or parcel.

The town board shall annually estimate the probable amount neces-
sary each year to enable the town to pay for construction work in the
first instance under this section, which sum so estimated shall be levied
and assessed upon the taxable property of the town and paid to the
supervisor, to be disposed of by him as hereinafter provided. [Town
Law, § 255, as added by L. 1915, ch. 513.]
436 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
General Municipal Law, §§ 72, 72b.

CHAPTER XXXI.
OTHER POWERS AND DUTIES OF TOWN BOARDS.

Section 1. Acquisition of lands by town board for soldiers’ or other monu-
ment or memorial structures.
la. Construction and maintenance of memorial building or monu-
ment by county and city.
2. Leases of public buildings to grand army posts.
2a. Military equipment for local military organizations, etc.
2b. Convention expenses of municipal officers and employees.
8. Lease of buildings for justices of the peace.
4. Collection and disposition of garbage.
5. Penalty for violating ordinance relating to garbage.
6. Assessments for expenses of disposition of garbage.
7. Purification of water and sewerage.
Ta. Sewerage and sewage systems.
8. Appropriation by town board for shade tree fund.
9. Acquisition and development of forest lands.
10. Power of town boards in certain towns to enact ordinances.
11. Notice required in certain towns of construction or improvement
of buildings.
12. Appointment of traffic policemen for unincorporated villages and
hamlets.

§ 1, ACQUISITION OF LANDS BY TOWN BOARDS FOR SOLDIERS' OR
OTHER MONUMENT OR MEMORIAL STRUCTURES.

The governing board of a municipal corporation, or the trustees of a
monument association, may acquire not to exceed three acres of land,
for the erection of a soldiers’ monument, or a monument or other struc-
ture as a memorial of the soldiers, sailors, marines and nurses who
served in the forces of the United States in any of its wars, or of some
distinguishing or important event in the history of the state or nation,
and for laying out such lands as a park or square. The governing
board of such municipality may provide funds for the construction and
maintenance of such memorial in whole or in part and to this end may
authorize payments of public funds to the trustees of such a monument
association for such purpose. [General Municipal Law, § 72, as
amended by L. 1920, ch. 380.]

Acquisition of lands and erection of memorial buildings. The gov
erning board of a town or a village may, upon the adoption of a prop-
osition therefor by a majority vote of the electors of any such town
or village qualified to vote upon the submission of propositions, acquire
lands and erect a memorial building in commemoration of the services
of the soldiers, sailors and marines of the world war at a total cost
OTHER POWERS AND DUTIES OF TOWN BOARDS. 437

General Municipal Law, § 77a.

of not to exceed one per centum of the assessed valuation of any such
town or village. Such proposition may be submitted by the governing
board and shall be submitted upon the petition of fifteen resident
taxpayers and shall be submitted in the same manner as other town or
village propositions are submitted. For the purpose of paying for the
purchase and erection of such memorial the governing board of any
such town or village is hereby authorized to borrow upon the credit
of such town or village a sum not exceeding one per centum of its
. assessed valuation upon terms of credit not exceeding thirty years and
at a rate of interest not exceeding five per centum per annum; and to
secure the payment of such loan, may issue bonds of such town or vil-
lage payable in such amounts and at such respective times as shall
be determined upon the submission of such proposition. The moneys
so borrowed shall be appropriated for the expense of securing a site
and the erection of such memorial and for no other purpose. No bonds
shall be sold for less than par and when sold shall be valid and sub-
sisting obligations of such town or village. The governing board of
any such town or village shall cause such sums to be raised by tax,
as may be necessary to provide for the payment of the principal and
interest of such bonds as the same shall become due; such tax to be
levied and collected in the same manner as other town or village taxes

are levied and collected. [General Municipal Law, § 72b, as added by
L. 1920, ch. 616.]

§ 1a. CONSTRUCTION AND MAINTENANCE OF MEMORIAL BUILDING
OR MONUMENT BY COUNTY OR CITY.

A county or city, by resolution adopted by the governing board of
such municipality by a two-thirds vote of its members, may construct
and maintain a memorial building, park or a monument at a place
within the municipality or upon any publie park thereof, in commem-
oration of soldiers and sailors of the United States in any war or wars
in which the United States shall have engaged, at an expense to be
borne by the city or county at large. Such resolution shall create a
committee, to be at all times composed of members of such governing
boards, to have charge of such construction and of such maintenance,
direct expenditures therefor and let a contract or contracts for such
construction. Upon the adoption of such resolution, the governing
board or other proper authorities of such municipality shall appro-
Priate, raise by tax in the city or county, as the case may be, and make
available from time to time to the order of such committee, the amount
chargeable to the city or county for such construction and maintenance.
437a TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

General Municipal Law, §§ 77, 77a.

In a city having a board of estimate and apportionment, the concur-
rence of such board, with any action by the governing board, shall
be necessary to any action by the city under this section. A county
and a city wholly contained therein may unite in the construction and
maintenance of such a memorial by such resolution being so adopted
by the governing board of each municipality, at an expense to be borne
by the city and county at large, or by the city and taxable property
of the county outside of the city, in such manner and in such propor-
tions as the resolution shall prescribe. Such resolution shall create a
committee to be at all times composed of members of each of such
governing boards, to have charge of construction and of such main-
tenance, direct expenditures therefor and let a contract or contracts
for such construction. Upon adoption of such resolutions the govern-
ing board or other proper authorities of such municipality shall ap-
priate, raise by tax in the city or county, as the case may be, and
make available from time to time to the order of such committee, the
amount chargeable to the city or county for such construction and
maintenance. [General Municipal Law, § 77a, as added by L. 1919, ch.
372, and amended by L. 1921, ch. 421.]

§ 2. LEASES OF PUBLIC BUILDINGS TO GRAND ARMY AND AMERICAN
LEGION POSTS.

A municipal corporation may lease, for not exceeding five years, to a
post or posts of the Grand Army of the Republic, or American Legion,
or other veteran organization of honorably discharged Union soldiers,
sailors or marines, a public building or part thereof, belonging to such
municipal corporation, except school-houses in actual use as such,
without expense, or at a nominal rent, fixed by the board or council
having charge of such buildings and provide furniture and furnish-
ings, and heat, light and janitor service therefor, in like manner?
[General Municipal Law, § 77, as amended by L. 1917, ch. 583, and L.
1920, ch. 280.]

§ 2a. MILITARY EQUIPMENT FOR LOCAL MILITARY ORGANIZATIONS
AND TO PROVIDE FOR EMERGENCIES AND THE SUPPORT OF
PERSONS DEPENDENT UPON MEN ENLISTED IN THE FED-
ERAL SERVICH, NATIONAL GUARD OR NAVAL MILITIA DUR-
ING THE PRESENT WAR.

A county, city, town or village may provide arms, uniforms and
equipments for military organizations raised within the municipality,
and for the purposes of security, defense, mobilization of resources and
emergency aid during and continuing of the present war and may, in

 

1. Erection of a city hall in the form of a memorial including a public
museum and depository is constitutional, but it is unlawful to guarantee
private associations and individuals permanent accommodations in the build-
ing. Opinion Atty. Genl. (1919), 19 St. Dept. Rep. 337.
OTHER POWERS AND DUTIES OF TOWN BOARDS. 437b
General Municipal Law, § 77b; Town Law, § 135.

its discretion, provide for the support of any person or persons resid-
ing in such municipality who may be dependent for support upon a
man enlisted in the federal service, national guard or naval militia.
The governing board may appropriate necessary moneys therefor and
provide the same by taxes to be levied upon the taxable property of
the municipality in the same manner as other municipal taxes. Such
board may borrow the amount of any such appropriation upon certifi-
cates of indebtedness, one-half of which shall be payable within two
years and the remaining half part within four years from date of issue.
[General Municipal Law, § 77a, as added by L. 1917, ch. 235.]

§ 2b. CONVENTION EXPENSES OF MUNICIPAL OFFICERS AND EM-
PLOYEES,

The governing board of any municipal corporation, except of a city
of the first class or of a county contained wholly within a city of that
class, may by a majority vote of its members, authorize any one or
more of its officers, or either the executive head or deputy of a de-
partment, or the executive head of a bureau, to attend an official or
unofficial convention of municipal officers if believed to be of benefit
to the municipality. Such authorization must be by resolution duly
entered in the record of the proceedings of the board and adopted
prior to. the audit of any claim for expenses incurred by any such
officer on account of such attendance. All sums actually and neces-
sarily expended by any person so authorized to attend a convention,
for railroad fare and hotel expenses, shall be a charge against his or
her municipality, and the amount thereof shall be audited, allowed and
paid in the same manner as are other claims against such municipality.
No such person shall be entitled to any compensation for the time spent
in attending such a convention, except that no deduction shall be made
from the salary of a person so attending because of such attendance.
[General Municipal Law, § 77b, as added by L. 1918, ch. 637, and
amended by L. 1919, ch. 250.]

§ 3. LEASE OF BUILDINGS FOR JUSTICES OF THE PEACE.

The town boards of any town in a county adjoining or containing a
city of the first or second class may from time to time lease buildings
or parts of buildings in any portion of said town for the use of justices
of the peace of said town to hold court therein. There shall not be
leased for the purposes set forth in this section more than one build-
ing for each justice of the peace in said town. Such lease may be
made with any of the justices of the peace of the town. [Town Law,
§ 185, amended by L. 1920, ch. 339.]
438 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Town Law, §§ 320, 321.
§ 4. COLLECTION AND DISPOSITION OF GARBAGE AND ASHES.

Within any town having over five thousand inhabitants or within
any town adjoining a city of the first class, or within any district in
any such town established by the town board of such town, it shall be
lawful for the town board of such town to provide for the collection
of and to cause to be consumed by fire or heat or disposed of in such
other manner as the town board may determine, and to prohibit the
throwing, casting or deposit in any body or stream of water, or upon
any ash heap or other place than such as may be provided by them
within such town or district, any animal or vegetabe refuse, dead ani-
mal, carrion, offal, swill or garbage. And it shall be lawful for the
town board of any such town, to contract for the collection and for
the consumption by heat or fire or for the disposition in such other
manner as the town board may determine of any such refuse or other
aforesaid matter, or for the purchase, maintenance and operation of
any appliances for the collection and disposition thereof. Such town
board may also provide for the collection and disposition of ashes and
may contract for such collection and disposition, or for the purchase,
maintenance and operation of any appliances for the collection and
disposition thereof. Such town board may also acquire by purchase
or condemnation the necessary land and construct thereon the neces-
sary plant that may be required for such purposes or either of them
and may issue bonds therefor, as well as for the cost of any of the
appliances including vehicles required for the collection and disposi-
tion of garbage and of ashes or either of them. In ease such a town
acquires such a plant or plants, such town board may contract with
any municipality which does not maintain such a plant, for the collec-
tion and disposal of its garbage and ashes or either of them. The
contract price therefor shall be the fair and reasonable sum as fixed
by the town board and the term of such contract shall be for a period
not longer than two years, subject to renewal from time to time under
such terms and price as the town board may direct. [Town Law,
§ 320, as amended by L. 1917, ch. 55, L. 1918, ch. 482, and L. 1921,
ch. 145.]

§ 5. PENALTY FOR VIOLATING ORDINANCE RELATING TO GARBAGE.

Any person offending against any such provision as aforesaid made
by any such town board for the collection, or for the prohibition of the
throwing, casting or deposit, of any such refuse or other aforesaid
matter shall be deemed guilty of a misdemeanor. [Town Law, § 321;
B. C. & G. Cons. L., 2d Ed., p. 8888.]
OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. 4384
Town Law, § 322; General Municipal Law, § 120.

§ 6. ASSESSMENTS FOR EXPENSES OF DISPOSITION OF GARBAGE,

Any expenses incurred in any town, or any district in any town, pur-
suant to.the provisions of the last two sections shall be levied, assessed
and collected upon the taxable property in the town or district as to which
the same is incurred in the same manner, at the same time and by the
same officers as the town taxes, charges or expenses of such town are
assessed, levied and collected, and shall be paid over to the supervisor of
such town, and by him applied to the payment of such expenses. [Town
Law, § 322; B. C. & G. Cons. L., p. 6223.]

§ 7%. PURIFICATION OF WATER AND SEWERAGE.

The local authorities of the several cities, towns and villages of the state
having charge of the supply of water and the care of sewerage in their re-
spective localities, are hereby authorized, on behalf of their cities, towns and
villages, respectively, to enter into contracts with the owners of any process
or apparatus for the purification of water and sewerage whether protected
by patents or not, and either contract for the use of apparatus and process
for a term of years or for the purchase of the same, as to them shall seem
advisable. It shall be lawful for any two or more of such municipalities
in this state, excepting only cities of the first and second class, without
regard to the form of their incorporation, including towns or sewer districts
of towns, to jointly construct, provide, maintain and operate a compre-
hensive system of sewerage including trunk lines and laterals, or a system
of conveying or conducting sewerage from said municipalities from a point
or points to be agreed upon to a common destination or disposal plant
or plants, and to construct, maintain and operate within or without the
said municipalities or any of them one or more outlet or trunk sewers,
plants, works or stations for the treatment, disposal, or rendering of sewer-
age, or any such municipality or any such municipalities may jointly or
severally contract for the construction for it or them of any such system,
extension or part thereof, including any such sewers, plants, works or sta-
tions, and agree to pay annually, semi-annually or quarterly for the use or
possession thereof, by way of permanent rental reserved therefor; or such
lawful authorities of the respective municipalities may jointly or severally
contract with any person, persons or corporations or with other municipali-
ties or sewage districts for the removal of sewage within the boundaries
of such local government, upon such reasonable terms as they may agree
upon. And to that end the governing bodies or boards of any two or more
municipalities, including sewer districts of a town, authorized by law to
have charge of sewer systems established or to be established in said mu-
438b TOWNS, TUWN MEETINGS AND TOWN OFFICERS,

General Municipal Law, § 120a.

nicipalities, or sewer districts of a town, respectively, may unite and jointly
cause to be made at their joint expense (each district bearing a part of the
expense in proportion to the assessed valuation of real estate in such dis-
trict, or on such other basis or division as may be jointly agreed upon) by
competent engineers, mechanics and others, surveys, maps, plans, reports
and estimates of proposed works and improvements relating to such con-
templated public improvement or works authorized by this act, which such
municipalities may desire to jointly provide, maintain, operate or lease
under the authority conferred by this act, and for such purpose they may
determine upon the final route and plan for the building or construction
of such sewerage system and for the making of such surveys, maps, plans,
reports and estimates as provided in this section. It shall be lawful for
the officers and agents of such municipalities to enter at all times upon
any lands or waters for the purpose of exploring, surveying, and laying
out the route of such sewerage system. [Generaal Municipal Law, § 120,
as amended by L. 1917, ch. 709.]

§ 7a. SEWERAGE AND SEWER SYSTEMS.

Contracts for sewerage disposal—The respective municipalities and dis-
tricts may contract with each other, or they may jointly or severally con-
tract with a third person, corporation or municipality, either for the con-
struction, operation, maintenance or leasing of a complete comprehensive
system for the removal and disposal of sewerage, or of a trunk line system
with or without lateral connections, with or without the sewerage disposal
plant or of a sewerage disposal plant; each of the boards or commissioners,
however, binding only the municipalities or districts which they respectively
represent. Such municipalities jointly acting through such board or com-
missioners, if they deem it expedient so to do, may contract with any other
municipality or municipalities through or over whose territory such trunk
sewer or sewers are intended to pass, for the construction of said outlet,
trunk sewer or sewers and appurtenances located within the territory of
such other municipality, in such manner as may be agreed upon between
such other municipality, and the municipality theretofore jointly contract-
ing as herein authorized, or such jointly contracting municipalities may
contract in writing with any other municipality or municipalities for the
privilege of connecting its or their sewers and drains with such outlet or
trunk sewer or sewers so to be jointly constructed by the municipalities
originally contracting for the public improvements or works hereby author-
ized, and it shall be lawful for such other municipality or municipalities
to enter into a contract for such purpose, upon such terms and for such
OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. 438e

General Municipal Law, § 120c.

consideration and length of time as may be mutually agreed upon between
all the contracting municipalities. [General Municipal Law, § 120-a, as
added by L. 191%, ch. 709.]

Supervision of sewage system.—If the public works herein provided
be constructed and operated by the municipalities acting jointly, the local
authorities of the contracting municipalities or districts having charge of
sewage shall jointly supervise the construction and operation of such sew-
age system, or they may jointly engage or employ a competent sanitary
engineer for such purpose. They shall jointly elect or appoint all neces-
sary employees at the disposal plant and for the care of the trunk line
sewer, and severally appoint such employees as they may be authorized so
to do by the respective governing bodies to work on the system within the
bounds of such municipality. [General Municipal Law, § 120-b. as added
by L. 1917, ch. 709.]

Obligations and privileges relating to sewerage contracts—No contract
‘for the construction, use or possession of any such sewer system extension
or part thereof, including any such sewers, plants, works or stations, au-
thorized by section one hundred and twenty, or for the removal of sewage,
or agreement to pay any annual, semi-annual or quarterly sum by way of
permanent rental reserved therefor, shall be deemed to create an indebted-
ness of such city, town or village under any act limiting the amount of
such indebtedness, unless and to the extent that such municipality or mu-
nicipalities shall covenant to pay for such system, extension or part thereof,
including any such sewers, works, plants or stations under any right re-
served in such contract or otherwise. Such system, extension or part
thereof shall, when accepted under such contract, and such works, plants
or stations, may if so provided therein, pass into the use, possession, man-
agement and control of such municipality or municipalities, and it or they
shall, by proper provision in the said contract, subject such contract to its
or their right at any time to terminate all its or their liability under the
same for such rental by paying for such system, extension or part thereof
a price named therein or to be determined in accordance with the provi-
sions thereof, and it or they may by proper division in such contract, cove-
nant to terminate its or their liability in such manner at a time or within
a period named therein, but the sum or rental to be paid for such use and
possession or the price which must be paid for such system, extension or
part thereof in order to terminate the liability of such municipality or
municipalities under such contract, shall not be fixed by said contract
beyond a period of thirty years, after which and at any time thereafter, if
such municipality or municipalities shall not have terminated its or their
438d TOWNS, TOWN MEETINGS AND TOWN OFFICERS,

General Municipal Law, § 120d-120f.

liability under said contract, the sum or rental to be paid for the continued
use and possession of such system, extension or part thereof or the price at
which the same must be paid for in order to terminate such liability, which
sum or rental and which price shall be based on the value of such system,
extension or part thereof at any such time, shall be fixed by agreement, or
in the absence of agreement by application to a competent court and under
its order, but each such agreement or order shall be limited to a period not
exceeding ten years. And such local authorities may also at any time
contract for the maintenance and operation of any such system, extension
or part thereof, including any such works, plants or stations or of any
sewerage or sewage disposal system or part thereof owned or used by any
such municipality or municipalities. [General Municipal Law, § 120-c, as
added by L. 1917, ch. 709.]

Officers of meeting.—In order to facilitate business procedure, the local
authorities of the several municipalities or districts meeting jointly for
the purposes herein provided shall, at a meeting at which all the municipal-
ities and districts intending to act jointly are represented, choose from
among their number a chairman, who shall act as such until his successor
-is chosen in a similar manner. Such meeting, when organized, shall elect
a secretary who may or may not be a member of one of the local boards
meeting jointly. [General Municipal Law, § 120-d, as added by L. 1917,
ch. 709.]

By whom proposed district meeting represented—Until a sewer district
of a town is organized as provided by the town law, the supervisor, or a
member of the town board appointed ky the supervisor, of the town in
which the proposed sewer district is located, may act for and on behalf
of the people of the territory proposed to be embraced in a sewer district,
when requested 30 to do by a petition in writing signed by not less than
five per centum of the voters of such proposed district, at such joint meet-
ing of municipalities and districts; provided, however, that neither the
town nor any property within the town, except such property as may be
within such proposed district, shall be chargeable with any debt or expenses
created by such municipalities or districts acting jointly. [General Munic-
ipal Law, § 120-e, as added by L. 1917, ch. 709.]

Contract; how executed No municipality or district acting jointly as
herein provided shall be bound by any contract or agreement unless such
contract or agreement be signed and executed by a majority of the local
‘authorities of such municipality having care of sewerage in such munici-
OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. 4386

General Municipal Law, §§ 120g, 120h, 120i.

pality or district. [General Municipal Law, § 120-f, as added by L. 1917,
ch. 709.]

Apportionment of cost.— Before any such contract for construction men-
tioned in section one hundred and twenty-c shall become effective, such local
authorities shall determine the part or proportion of the annual cost thereof,
if any, which is to be assessed upon the property benefited thereby, and the
method of such assessment, and shall provide that any part thereof not
actually paid out of such assessment shall be paid out of the general funds
to be raised by a tax in such city, town, village or sewer district. In the
case of-a town, the petition for the creation of such sewer district, or supple-
mental petition, shall request the construction of such sewer system, exten-
sion or part thereof, as herein provided, and such petition shall comply in
form, substance and in the manner of execution, so far as applicable thereto,
to the requirements of section two hundred and thirty of the town law,
except that it may state that the annual sum or rental to be paid for the use
of said plant or for the removal of sewage as herein provided shall be fixed
and assessed in the first instance for the full period named in any such con-
tract, not exceeding thirty years, and that any part thereof not actually paid
out of such assessment may be reassessed upon the property in such district.
Before acting on any such petition, the town board shall give the notice
provided in section two hundred and thirty-a of the town law, and the
assessment shall be made in form and substance so far as applicable thereto
as provided in section two hundred and thirty-seven of said law. [General
Municipal Law, § 120-g, as added by L. 1917, ch. 709.]

Further provisions as to apportionment of cost——Each of the contract-
ing municipalities or districts shall pay its just and proportionate share for
the public improvement authorized by this act and the general laws, includ-
ing its just and proportionate share of the cost for the removal of sewage
and of maintenance and carrying charges of the system. The manner of
arriving at the share each local government shall bear and the method of
payment thereof as hereinafter provided shall be determined by its local
board or commissioners having charge of sewage, before such contract for
construction or for sewage removal becomes effective, as hereinafter pro-
vided. [General Municipal Law, § 120-h, as added by L. 1917, ch. 709.]

Bond issues and assessments.— The indebtedness created for such public
works may be paid by each contracting municipality, including a sewer
district of a town, wholly by a bond issue; or partly by a bond issue, and
partly by assessment on the property deemed specially benefited by such
improvement and partly by money raised by general taxation; or partly by
a bond issue and partly by assessment on the property deemed specially
438f TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

General Municipal Law, §§ 120j, 120k, 1201.

benefited by such improvement. In the case of a sewer district of a town
the petition for the creation thereof or a supplemental petition may state
the means of payment as above provided and the assessment therein shall
be made in form and substance so far as applicable as provided in section
two hundred and thirty-seven of said law, except that such sewer commis-
sioner shall assess a part of the district’s proportionate share of the total
cost of such system on the lands within such district, or extension of an
existing district in proportion, as nearly as may be, to the benefit which
each lot or parcel will derive therefrom. Such sewer commissioners shall
determine the amount to be raised by general taxation for such expense
and the amount to be raised by bond, if any. [General Municipal Law,
§ 120-i, as added by L. 1917, ch 709.]

Notes in anticipation of assessments.— For the purpose of defraying
the costs and expenses of such public improvement as is authorized hereby
in respect of which an assessment for benefits may be made on lands and real
estate situated in any such contracting municipality, the governing body or
board having charge of the finances of any such contracting municipality
may, if necessary, borrow money and secure the payment of the same by the
notes or other temporary obligations of such municipality; these notes and
obligations may be renewed from time to time until such improvement or
works be completed or the assessment for benefits confirmed; when so con-
firmed the said governing body or board of such municipality shall provide
the cost and expenses of such improvements in the manner herein or in
general laws provided. [General Municipal Law, § 120-j, as added by L.
1917, ch. 791.]

Payments; how made—JIt shall be lawful for the governing body or
board having control of the finances of such contracting municipality, in
lieu of issuing the bonds of such municipality, to pay its proportion of the
costs and expenses of any improvements jointly contracted for and made
under this act, with money to be raised by taxation, after the making of the
public improvements herein authorized have been determined upon and
a joint contract made and entered into pursuant to the provisions of this act,
or by paying the whole or part of such indebtedness out of all moncys
belonging to such contracting municipality not otherwise appropriated or
required. [General Municipal Law, § 120-k, as added by L. 1917, ch. 791.]

Letting of contracts— Whenever any work to be performed or materials
to be furnished in or about any improvement to be made by two or more
municipalities under the provisions of this act shall involve an expenditure
of any sum of money exceeding five hundred dollars, the municipal bodies
or boards of the contracting municipalities, by their official action taken
OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. 438g

General Municipal Law, §§ 120m, 120n, 1200.

in joint meeting as herein provided, shall designate a time when they. will
meet at their usual place of meeting to receive proposals, in writing, for
doing the work or furnishing the materials, and such joint meeting shall
order the chairman and secretary thereof to give notice, by advertisement
inserted in one or more newspapers published or circulating in the munici-
palities jointly contracting, at least two weeks before the time of such
meeting, of the work to be done or materials to be furnished, of which at
the time of such order they shall cause to be filed in the office of such joint
meeting particular specifications; all proposals received shall be publicly
opened by such chairman in the presence and during a session of such
joint meeting, and of all others who choose to attend the said meeting;
not more than one proposal shall be received from any one person, directly
or indirectly, for the same contract work or materials; and the said joint
meeting may reject any and all of said proposals and direct its chairman
and secretary to advertise for new proposals and accept such as shall in the
opinion of a majority of the municipalities represented in said joint meet-
ing be deemed most advantageous for the said municipalities, subject, how-
ever, to the reservations herein provided; the board may require a bond or
deposit from the person submitting a proposal, the liability of such bond
to accrue, or such deposit to be forfeited to the municipality, or munici-
palities, in case such person shall refuse to enter into a contract in accord-
ance to his proposal. The proposal so accepted shall be reduced to a con-
tract in writing, and a satisfactory bond to be approved by such joint
meeting shall be required and given for its faithful performance, but all
contracts when awarded shall be awarded to the lowest responsible bidder
offering satisfactory security; this section shall not apply to any engineer
or agent of the joint contracting municipalities engaged in supervising or
directing the work of such improvements. [General Municipal Law, §
120-1, as added by L. 1917, ch. 709.]

Application of other laws to procedure.— Except where inconsistent with
this act, or otherwise permitted hereunder the apportionment of local assess-
ments and the manner of payment of the expense of construction of such
public works shall be as provided in the town law, the village law, the general
cities law, or in the manner provided in any special city and of any contract-
ing city. [General Municipal Law, § 120-m, as added by L. 1917, ch. 709.]

Map and plan, etc.— Before taking any proceedings for the construction

.of any sewer or of any system of sewers or of any addition thereto or alter-
ation thereof, such municipality or municipalities acting severally or jointly
shall cause to be made a map and plan therefor, or an amendment of any
map and plan previously approved, as the case may be, and shall submit, the
438h TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

General Municipal Law, §§ 1200, 120p.

same to the state commissioner of health for his approval, and upon his
approval the same shall be filed in his office. A copy of such map and plan
or of any such amendment thereof shall also be filed in the office of the
clerk of each such municipality. Any such map and plan shall include
specifications of dimensions, connections and outlets or sewage disposal
works and may also include any existing sewer which it shall be found
feasible and proper to incorporate or include in the proposed system. No
work of any kind shall be done on or for the construction, extension, recon-
struction, removal or modification of any system of sewers or of any sewer
thereof until a map and plan covering the entire system shall first have been
duly approved and filed as above provided, and in the execution of the
construction, extension, reconstruction, removal or modification of any
system of sewers or of any sewer thereof no deviations from the plans as
finally approved and filed shall be made until plans or descriptions ade-
quately showing such deviations are first approved and filed as above pro-
vided. The state commissioner of health, in approving said map and plan
or by a certificate supplementing any such approval, may authorize such
municipality or municipalities to temporarily omit or defer the construction
of any portion of any such sewer or system of sewers. A copy or copies
of his approval or of any such supplemental certificate shall be certified to
each such municipality and filed in the office of the clerk thereof. [General
Municipal Laws, § 120-n, as added by L. 1917, ch. 709.]

Definitions.— The words “ joint meeting” as used in this act shall be
construed to mean the meeting or assembly of the members of the governing
bodies or boards of the several municipalities having authority to make and
enter into a contract for the construction jointly of public improvements,
pursuant to and by virtue of the provisions of this act. [General Municipal
Law, 120-0, as added by L. 1917, ch. 709.] e

Referendum in cities and villages.—In any such city or village, whether
acting severally or jointly, a copy of such contract, for construction men-
tioned in section one hundred and twenty-c, with a copy of the determination
required in section one hundred and twenty-g, shall be published at least
twice in one or more newspapers published therein, including the official
newspaper or newspapers, if any, of such city or village, or posted in not less
than five public places, and published at least twice in a newspaper circulat-
ing in such municipality if no newspaper is published therein. If, within
fifteen days after the publication or posting of such contract and determi-
nation, a protest or protests against such contract shall be filed in the office
of the clerk of such city or village signed either by not less than one-third
of the governing body adopting such resolution or by a three per centum
OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. 438]

General Municipal Law, § 120p.

in number of the taxpayers thereof whose names appear on the last preced-
ing assessment roll of real property, excluding special franchises, then such
contract shall not become effective unless the governing body shall by a fur-
ther resolution provide for the submission to the taxpaying voters of a
proposition to ratify such contract, nor unless, within sixty days after
such publication or posting such proposition shall be adopted at a general
election or at a special election to be called and held for that purpose, by a
majority of the voters voting on such proposition. At any such election only
voters entitled to vote for an officer and women qualified to vote for an officer
except as to sex, owning real property other than special franchises assessed.
in their names upon the last preceding assessment roll of such city or
village, shall be entitled to vote upon such proposition. At least ten
days’ notice of any election under this section shall be given by the clerk
of the city or village by publication at least twice in one or more news-
papers, including the official newspaper or newspapers, if any, of such city
or village, or by posting in at least five public places, if no newspaper is
published therein. Such election may be held and the result canvassed and
certified as may be required by any general or special law applicable to an
election upon a proposition in any such city or village, or in the absence of
any such law as may be prescribed by any general ordinance. The voting
shall be by ballot prepared, in the form prescribed by the election law.
The facts as to the filing and sufficiency of any protests under this section,
and as to the calling, holding or result of any election which may be required
or held under this section or under any other statute with respect to the
authorization of any such improvement or the ratification of any ordinance
authorizing the same, and all facts affecting the validity of any contract
mentioned in section one hundred and twenty-c, including the organizations
or acts of any town or sewer district shall, for the purpose of this section,
be conclusively determined by a resolution of the governing body of any such
city, town or village. A copy of such resolution shall be published twice
in one or more newspapers, including the official newspaper or newspapers,
if any, of such city, town or village, or posted in not less than five public
places if no newspaper is published therein, and the facts therein stated
shall not be disputed in any action commenced after the expirataion of
ten days after such publication or posting involving the validity of such
contract, or of any tax, assessment or other charge to meet any payment
thereunder, and such contract shall be conclusively deemed to be valid
unless entered into in violation of this section, section one hundred and
twenty, or section one hundred and twenty-c of this chapter. [General
Municipal Laws, § 120-p, as added by L. 1917, ch. 709.]
438] TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
General Municipal Law, §§ 120q, 120r, 120s; Town Law, § 140.

Rules and regulations——Such person, persons or corporation operating
and maintaining such system or contracting for the removal of sewage as
herein provided shall be subject to such rules, ordinances and regulations
as said municipalities may establish, not inconsistent with any contract
made therefor. [General Municipal Law, § 120-q, as added by L. 1917,
ch. 709.]

Failure to keep system in good condition; penalty, etc— In the event
of such person, persons or corporation failing and neglecting to keep said
system of sewage in good healthy and effective condition after due notice
in writing of not less than sixty days, from any municipality using the same,
their rights, of such person, persons or corporation, guaranteed under such
contract may be canceled by such municipality, except that such munici-
pality or municipalities shall pay the fair and reasonable value of such
sewerage system as provided in such lease or contract. This section shall
not apply if such system is under the management and control of one or
more of such contracting municipalities. [General Municipal Law, § 120-r,
as added by L. 1917, ch. 709.]

Municipalities acting jointly; powers—— The joint meeting representing
any two or more of such municipalities, as aforesaid, shall have power with
their consent and on their behalf and by its own proper officers to enter into
any contract and to acquire, by purchase or condemnation, and to hold,
maintain and operate any property, necessary or desirable for any of the
purposes authorized as aforesaid, as fully and to the same extent as any
municipality acting severally. [General Municipal Law, § 120-s, as added
by L. 1917, ch. 709.]

§ 8. APPROPRIATION BY TOWN BOARD FOR SHADE TREE FUND.
A town board of a town in which a tree warden is appointed may, by
resolution, appropriate annually not exceeding two hundred dollars, to be
known as the shade tree fund, and which shall be used and expended by
the tree warden for the setting out and preservation of shade trees along
the highways in such town. [Town Law, § 140; B. C. & G. Cons. L,, p.
6191.]

§ 9. ACQUISITION AND DEVELOPMENT OF FOREST LANDS.

The governing board of a county, town or village may severally acquire
for such county, town or village, by purchase, gift, lease or condemnation,
and hold as the property of such municipality, tracts of land having forests
or tree growth thereon, or suitable for the growth of trees, and may appro-
priate therefor the necessary moneys of the county, town or village for
OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. 438k

General Municipal Law, § 72a.

which the lands are acquired. Such lands shall be under the manage-
ment and control of such board and shall be developed and used for
the planting and rearing of trees thereon and for the cultivation thereof
according to the principles of scientific forestry, for the benefit and
advantage of the county, town, or village. The determination of
any such board to acquire lands under the provisions of this section shall
be by resolution; but the question of the final adoption of such resolution
shall be taken up by the board only after public notice thereof has been
published for at least two weeks, as follows: If it be a resolution of a board
of supervisors, the publication shall be made in the newspapers in which the
session laws and concurrent resolutions are required to be published: if it
be a resolution of a town board or of a board of trustees of a village, the
publication shall be made in a newspaper published in the town or village,
respectively. The board shall give a hearing to all persons appearing in
support of or in opposition to such proposed resolution. If it be deter-
mined to purchase such lands the moneys necessary therefor may be pro-
vided as follows: If the acquisition be by a county, the board of supervisors
may cause such moneys to be raised by taxation and levied and collected as
other county taxes or may borrow money therefor on the credit of the county
by the issuance and sale of county bonds in the manner provided by law for
the issuance and sale of other county obligations; if the acquisition be by
a town, the moneys necessary therefor shall constitute a town charge and be
taised by taxation as other town charges, or, the town board may in its
discretion, cause town bonds to be issued and sold in the manner provided
by law for the issuance and sale of town bonds, under the town law, to pay
judgments; if the acquisition be by a village, the moneys therefor may be
raised by taxation, as other village taxes, or by the issuance and sale of
village bonds in the manner provided by the laws governing such village
relating to village obligations, after the adoption of a resolution therefor
by the board of trustees, without other authorization. All revenues and
emoluments from lands so acquired shall belong to the 1aunicipality and
emoluments from lands so acquired shall belong to the municipality and
in reduction of taxation therein. Such forest lands shall be subject to such
Tules and regulations as such governing board of the municipality shall
prescribe; but the principal object to be conserved in the maintenarice of
such lands shall be the sale of forest products in aid of the public revenues
and the protection of the water supply of the municipality. Such lands
or portions thereof may be sold and conveyed or leased, if a resolution
therefor be adopted by the affirmative vote of two-thirds of all the members
of such governing board; but no such resolution directing an absolute con-
438] TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 142a.

veyance shall be effectual unless adopted after a public hearing, held
upon notice given in the manner required in the case of a resolution to
aequire such lands. A deed of conveyance or lease of such lands,
when authorized as aforesaid, shall be executed by the county treasurer
of the county, supervisor of the town or president of the village by
which the conveyance or lease is made. Moneys may be appropriated
for the care and maintenance of such lands and the development and
use of forests thereon annually, by the county, town or village, respec-
tively, and the amount thereof raised by taxation in the same manner
that other expenditures of such county, town or village are provided
for by law. [General Municipal Law, § 72a, as added by L. 1912,
eh. 74.]

§ 10. POWER OF TOWN BOARDS IN CERTAIN TOWNS TO ENACT
ORDINANCES.

The town board of any town, within a county having a population
of more than three hundred thousand according to the last federal or
state census or enumeration, adjoining a city of the first class having
a population of one million and upwards, and the town board of any
town adjoining any city of the first class, may enact, amend and repeal
ordinances, rules or regulations for the following purposes:

1. Relating to peace and good order generally. To preserve the pub-
lic peace and good order; to prevent and suppress vice, immorality, dix
orderly and gambling houses and houses of ill-fame, riots and tumultu-
ous assemblages, unnecessary crowds upon the streets, or in doorways
or stairways adjacent thercto, or loitering about such places, and all
disorderly, noisy, riotous or tumultuous conduct within the town, dis-
turbing the peace and quiet of the town or any meeting or assembly
therein.

2. Animals at large. To restrain the running at large of horses,
cattle, sheep, unmuzzled dogs, fowls or other animals, and may authorize
the impounding and sale of the same for the penalty and costs of keep-
ing and proceedings, or the killing of such unmuzzled dogs.

3. Amusements. To regulate or prevent coasting, ball playing or any
act, amusement or practice endangering property or persons on the
streets or public grounds.

4. Incumbering the streets; encroachments. To regulate or prevent
incumbering the streets or public grounds with any material whatever,
or any encroachment or projection in, over, or upon any of the streets or
public grounds, or any excavations immediately adjacent thereto.

5. Barbed wire fences. To forbid the use and maintenance, by own-
ers and occupants of property abutting on public streets or grounds, of
barbed wire or similar fences along the boundaries of such streets or
grounds.

6. Shade trees. To protect and preserve shade trees in the streets
and public places, and to prevent the hitching of horses to such trees.

7. Railroad crossings; speed. To regulate the time during which
cars, engines or trains may stand upon the strect crossings of railroads;
to regulate the speed of locomotives and cars, subject to the provisions
of the railroad law, and by a two-thirds vote of all the members of the
board, to require railroad companies to erect gates or crossings, to em-
OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. 438m
Town Law, § 142-a.

ploy competent men to attend the same, and to employ competent flag-
men at such crossings.

8. Fireworks and firearms. To regulate or prevent the discharge of
firearms, rockets, gunpowder or other explosives, or the making of bon-
fires.

9. Gunpowder. To regulate the storing, sale or transportation of
gunpowder or other explosives within the town.

10. Swimming and bathing. To regulate swimming and bathing in
open water, exposed to the public, within or bounding the town.

11. Vulgar language or conduct. To punish profane, vulgar or ob-
scene language or conduct in any street or public place in the town.

12. Malicious mischief. To punish the wilful and malicious break-
ing, marring, injury, removal or defacement of any building, fence,
awning, sign, sign-board, tree, shrubbery or other ornamental thing in
the town, the removal from or piling up before any door or on any side-
walk or street of boxes, casks or other things, the tearing down of any
notice or hand-bill lawfully posted, or inciting or inducing dogs to fight
in any of the streets or public places in the town.

13. False alarm of fire. To punish the wilful giving of a false alarm
of fire.

14. Conduct at fires. To punish insubordination or disorderly cons
duct at fires, the obstruction of the operations of the fire department of
the wilful neglect or refusal to obey or the attempt to prevent or to ob-
struct the execution of the orders of the town board or officers of the fire
department.

15. Keeping of swine. To regulate or prohibit the keeping of swine
within the town limits.

16. Keeping of calves. To regulate the keeping of calves within the
town limits.

17. Licensing public carriages, et cetera. To prohibit the pursuit or
exercise. without license of the following occupations, to wit: The run-
ning of public carriages, cabs, hacks, carts, drays, express wagons, auto-
mobiles, or other vehicles for the transportation within the town, for
hire, of persons or property, soliciting or running therefor, or for hotels.

If any such trade or occupation shall be so prohibited, the town board
shall establish uniform fees for license therefor and such rules and regu-
lations as they deem proper, and the supervisor shall issue a license
therefor specifying the fee to be paid therefor to such persons or corpo-
rations as he shall deem fit and proper for such trade or occupation.
Every such license shall be countersigned by the town clerk who shall
keep a record thereof and of the amount of the fee paid therefor. The
license shall not take effect until the payment to the town clerk of the
fee fixed by the town board for such license. Any applicant who shall
have been refused such license by the supervisor, may apply to the town
board therfor at a meeting thereof; the same may be granted or refused
by the board; the supervisor may suspend any such license until the
438n TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 142a,

next meeting of the town board; thereupon said license may be re-
voked or continued by the town board.

And to prescribe penalties, rules or regulations for the violation of
such ordinances and to maintain actions at law for the recovery of
such penalties by legal proceedings in the name of and on behalf of
the town, but not to exceed two hundred dollars shall be recoverable
for any single violation of such rules and regulations and the justice’s
court of the justices of the peace in such towns shall have jurisdiction
to hear, try and determine complaints for the violation of said ordi-
nances, rules and regulations and to impose fines equal to the penalty
prescribed by said ordinances, rules and regulations for violations of
the same and to commit any person convicted of a violation of said
ordinances, rules or regulations to the jail of the county in case of de-
fault of payment of the fine imposed for such violation for a term not
exceeding one day for each and every dollar of such fine. Said ordi-
nances, rules and regulations may provide that when a violation of the
same is continuous, each twenty-four hours thereof shall constitute
separate and distinct violations. Ordinances which the town board
may adopt shall be published before they shall go into effect in a news-
paper published in the town, if any, and also in such other newspaper
or newspapers as may be designated by the town board, and posted
in at least three public places in the town. Such ordinances shall take
effect ten days after date of such publication, if any, and posting.
The certificate of the town clerk shall be prima facie evidence of the
adoption and publication of all such ordinances, rules and regulations.

18. Building lines; character and use of buildings. To establish
building lines on any property fronting or adjoining any public streets
and require all buildings hereafter erected to be within such lines, to
regulate and limit the height and bulk of buildings hereafter erected
and regulate and determine the area of yards, courts and other open
spaces and for such purpose divide the town into districts, which
regulations shall be uniform for each class of buildings throughout any
district, but the regulations in one or more districts may differ from
those in other districts; to regulate and restrict the location of trades
and industries and the location of buildings designed for specified uses
and for such purpose divide the town into districts and prescribe for
each such district the trades and industries that shall be excluded or
subjected to special regulation and the uses for which buildings may
not be erected or altered. Regulations under this subdivision shall be
designed to promote the public health, safety and general welfare,
and shall be made with reasonable consideration, among other things,
to the most desirable use for which the land of each district may be
adopted, the peculiar suitability for particular use of a district, the
conservation of property values and the direction of building develop-
ment, in accordance with a well-considered plan. Such ordinance or
ordinances, however, shall apply only to that portion of such town not
incorporated as a village and shall take effect from the date of its
service as against a person served personally with a copy thereof,
certified by the town clerk under the corporate seal of the town, and
showing the date of its passage and entry in the minutes. The ap-
OTHER POWERS AND DUTIES OF TOWN BOARDS. 4380
Town Law, § 142b.

pointment of a commission for any such town, to consist of not less
than three nor more than five members who shall be citizens and resi-
dents and who shall serve without compensation to recommend the
necessary ordinance or ordinances therefor, is hereby authorized. All
necessary expenses incurred by any such town board in connection
therewith shall be a town charge. [Town Law, § 142-a, as added by
L. 1919, ch. 218, and amended by L. 1920, ch. 210; subd. 18, as added
by L. 1922, ch. 322.]

§ 11. NOTICE REQUIRED IN CERTAIN TOWNS OF CONSTRUCTION OR
IMPROVEMENT OF BUILDINGS.

The town board of any town in a county having a population of less
than two hundred thousand as shown by the last federal census or
state enumeration, having an assessed valuation of more than fifty mil-
lion dollars, and adjoining a city of the first class having a population
of more than one million, by resolution duly adopted at a meeting of
such board, may determine that after a date specified in the resolution,
a building or other structure shall not be constructed or improved in
such town at a cost in excess of an amount stated in such resolution,
which stated amount shall be not less than two hundred and fifty
dollars, until a notice has been filed and certificate issued as required
by this section. A copy of such resolution to which shall be attached
a copy of this section shall be posted in at least five conspicuous public
places in such town at least ten days before such resolution takes
effect. Thereafter the owner or occupant of premises in such town
shall not construct or improve any building or other structure thereon,
at a cost in excess of the amount stated in such resolution, without
filing in the office of the board of assessors-of such town, or if the
premises are situated within a village, with the clerk of such village,
a notice of intention to make such construction or improvement, and
procuring from ‘such board or clerk a certificate that such notice has
been filed. Such notice shall be in writing, on a blank prepared and
furnished by the board of assessors of such town and adapted for filing

either with such board or with a village clerk, and shall specify the .

name of the owner or occupant, that construction or improve-
ment of a building or other structure is contemplated which will
cost more than’ a sum specified, which shall be the amount
stated in the resolution of the town board and shall contain
a description or other designation of the premises sufficient to
identify the same. Such notice may be filed either personally
or by mail. Upon the filing of such notice, the board of assessors or
village clerk, as the case may be, shall issue a certificate that such
notice has been duly filed, which certificate shall be in a form pre-
scribed by the board of assessors of such town and adapted for use
either by such board or by a village clerk. The certificate shall specify
the name of the owner or occupant, shall state that the notice has been
duly filed and shall describe or designate the premises to which it
pertains. A village clerk upon the issuance of such a certificate shall,
within five days thereafter, file a certified copy thereof in the office of the
board of assessors of the town in which the premises are located. The
board of assessors of such a town shall be entitled to charge a fee of
twenty-five cents for the issuance of a certificate pursuant to this section
438p TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, § 119.

to be held for the use and benefit of such town, and the board of trus-
tees of any village to which this section is applicable may prescribe the
fee, which shall not exceed twenty-five cents, for the issuance of such
a certificate by the clerk of the village, to be held for the use and
benefit of such village. Any owner or occupant of premises in such
a town who shall construct or cause to be constructed any building or
structure, or make or cause to be made any improvement to any build-
ing or structure, subject to the provisions of this section, without
having filed the notice and obtained the certificate as required by this
section, shall be liable to a penalty of one hundred dollars for each
such violation, recoverable in any court of competent jurisdiction,
by the board of assessors of the town for the use and benefit of the
town. [Town Law, § 142-b, as added by L. 1922, ch. 165.]

§ 12, TRAFFIC POLICEMEN FOR UNINCORPORATED VILLAGES AND
HAMLETS.

The town board of any town, of its own motion or at the request of
a resident of the town, may, by resolution, define the boundaries of any
unincorporated village or hamlet in the town, for the purposes of this
section, and file with the town clerk a general map or description
thereof. A petition may then be filed with the town clerk, addressed
to the town board, praying for the appointment of a traffic policeman
for such unincorporated village or hamlet. The petition shall be
signed by the owners of two-thirds of the taxable property in such
unincorporated village or hamlet, according to the assessed valuation
thereof upon the last preceding town assessment roll. Upon the filing
of such petition, the town board shall appoint a traffic policeman in
accordance with the prayer of the petition. It shall also fix his com-
pensation, which shall be payable monthly by the town. The amount
of such compensation, annually, shall be a charge against the taxable
property within the territory of such unincorporated village or hamlet
and shall be levied thereon, as town taxes, by the board of super-
visors. If a like number of taxpayers shall thereafter petition the

town board for the abolition of such position, the town board, in its
’ discretion, may abolish such position. It shall be the duty of such
policeman to enforce all laws relating to traffic upon the highways
within the territory for which he is appointed, including speed regu-
lations, and he shall also have all the powers of a peace officer. Any
petition provided for in this section must be duly acknowledged by
the signers in the same manner as a deed to be recorded.

The town board of any town, of its own motion and without petition
therefor, may provide portable standards known as ‘‘dummy police-
men’’ to be placed at such points in the public highways within the
town as the town superintendent of highways may deem proper, and
may appropriate from town funds the necessary moneys therefor;
provided, however, that the placing of any such dummy policemen
within the bounds of a state route or county highway by such town
superintendent shall be done only with the consent of the county
superintendent of highways. [Town Law, § 119, added by L. 1921,
ch. 149.]
TOWN BOARD AS LOCAL BOARD OF HEALTH. 43y

Explanatory note.

CHAPTER XXXII.

TOWN BOARD AS LOCAL BOARD OF HEALTH.
EXPLANATORY NOTE.

Local Boards of Health.

The town board and a citizen of the town appointed by it constitute
local board of health of the town. The board should meet as a board
of health at stated intervals, to be prescribed by the rules of the board.
The presiding officer may call special meetings of the board whenever
the protection of the public health requires it. The presiding officer
may be elected by the board at its meeting to be held after each
biennial town meeting. If no such officer is elected the supervisor
should act as the presiding officer. The board should at its first meet-
ing held after the biennial town meeting appoint the additional member
required by law. This member has the same powers as the other
members of the board and should participate in all its meetings.

Health Officer.

The board of health must appoint a health officer, who shall be a
competent physician, residing in the town or an adjoining town. His
term of office is four years. He may be removed for just cause by the
board or the state commissioner of health, after a hearing, The
powers and duties of the health officer are to be prescribed by the board.
He is the chief executive officer of the board, and as such, must
carry into effect the orders and rules and regulations of the board,
The compensation of the health officer must be fixed by the board, but
shall not be less than ten cents per annum for each inhabitant of the
town. He may be paid his reasonable expenses in attending the annual
conference of health officers. Such expenses are a legal charge against
‘the town. His compensation, and all other necessary expenses incurred
by hin in the performance of his duties, should be audited by the town
440 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Explanatory note.

board and paid in the same manner as other town charges. Additional
compensation may be allowed where an epidemic has broken out in the
town, and the health officer has been compelled to perform extraordinary
services.

Orders and Regulations.

The board must make and publish all orders and regulations
deemed necessary by them for the preservation of life and health
in the town. Such orders and regulations have the force of law, and
may be enforced the same as a law passed by the legislature, provided they
are reasonable and within the power of the board to make. Where
special cases are to be dealt with, as the suppression of nuisances, an
order may be made and enforced, without publication. For the pur-
pose of determining whether such a special order should issue in a
particular case, the board may conduct hearings and compel the
attendance of witnesses by the issue of subpcenas, and administer oaths
to such witnesses and compel them to testify. The board may prescribe
-penalties for the violation of any of its orders or regulations, not exceed-
ing one hundred dollars for a single violation.

Registration of Births, Marriages and Deaths.

The board must see to it that proper provisions are made for the
registration of all births and deaths occurring within the town, and the
cause of death. Birth certificates must be made out by physicians or
midwives attending at such births. The cost of such registration, not
exceeding twenty-five cents, is a charge against the town.

Burial and Burial Permits.

The board should prescribe sanitary regulations for the burial and
removal of corpses. The board must designate the town clerk and
health officer to grant permits for the burial of such corpses and for
their transportation beyond the country where the death occurred.

Infectious and Contagious Diseases.

The board must guard against the introduction and spread of such
infectious and contagious diseases as are designated by the state depart-
ment of health. Infected persons may be quarantined by order of the
board and suitable places for the treatment and care of such persons
must be provided, where they cannot be otherwise provided for.
TOWN BOARD AS LOCAL BOARD OF HEALTH. 441

Explanatory note.

Notice of every case of any such disease must be given by every
physician to the health officer. The health officer is required to report
all such cases to the state department of health. The board must
provide a suitable supply of vaccine virus and if an epidemic of small-
pox exists in the town must secure a fresh supply at least once a week,
and provide thorough and safe vaccination for all persons in need of the
same.

Suppression of Nuisances.

One of the most important duties of a board of health pertains to the
suppression of nuisances. The board is required to receive and ex-
amine into all complainis made concerning nuisances. The members
of the board, or persons designated by it, are authorized to enter upon
premises where nuisances are alleged to exist, and to examine and
inspect such premises. If facts are feund to exist warranting supres-
sion of a nuisance an order should be issued to that effect. Notice
should be given to the owner of the premises, of the complaint made,
and if after an examination of the premises there is any doubt as to
the existence of the nuisance, the owner should be given a hearing before
an order is issued directing its suppression. In every case the owner
must be given a statement of the results and conclusions of an examina-
tion made by the board or its officers or servants. The court of appeals
has held that a board may act upon its own inspection and knowledge
of the alleged nuisance, without a hearing. But jurisdiction depends
upon the existence of facts establishing the nuisance, and in contested
cases it will be advisable to give a formal hearing to the owner of the
premises,

If the owner or occupant of premises fails to comply with the order
of the board directing the abatement of a nuisance, provision is made
by the law for the abatement at the expense of the owner or occupant.
The expense of such abatement is made a lien upon the premises
affected.

Section 1. Town board to act as local board of health; health officer of
town.
la. Expenses of consolidated health district.
1b. General health districts.
2. General powers and duties of local boards of health; rules and
regulations; suppression of nuisances; subpoenas; warrants of
arrest; penalties.
442 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Public Health Law, § 20.

Sxorion 3. Board to supervise registration of births, marriages and deaths; phy-
sicians, midwives, clergymen, etc., to furnish certificates; cost of
registration a town charge.

4, Burial and burial permits.

5. Contagious and infectious diseases; duties of boards of health; reporis
of health officers to state commissioner of health; disease in alms-
house.

5a. Providing for the care and maintenance of carriers of disease.

6. Complaints as to nuisances; order of board.

7. Removal of nuisances by board or its officers; expense to be paid by
owner.

8. Expense of abatement of nuisances a lien upon the premises.

9. Removal of accumulation of water tending to breed mosquitoes; pay-
ment of expense.

10. Jurisdiction of town board of health over city or village; uniting of
towns and villages in a combined sanitation and registration district.
11. Expenses incurred by town board of health a town charge; property of
village exempted from taxation therefor.
12. Relief of indigent Indians in case of epidemic.
13. ea ae og against local board of health at instance of state board of
ealth.

$ 1. TOWN BOARD TO ACT AS LOCAL BOARD OF HEALTH;
HEALTH OFFICER OF TOWN.

Local boards of health.—There shall continue to be local boards of
health ! and health officers in the several cities, villages and towns of the
state except as hereinafter provided? * * * Tn villages the board
of health shall consist of the board of trustees of such village. In towns

the board of health shall consist of the town board.? The local board
of health shall appoint a competent physician, not a member of the

local board of health, to be the health officer of the municipality.
Notwithstanding the provisions of any general or local law or
charter, a physician who has received the degree of doctor of
public health in course from any institution of learning recognized by
the regents of the university of the state of New York, or who has com-

 

1. Power to sue and be sued. A board of health is not a corporation and can-
not sue or be sued unless expressly authorized by statute. People v. Supervisors of
Monroe, 18 Barb. 567; Gardner v. Board of Health, 4 Sand. (6 Super. Ct.) 153;
affd. 10 N. Y. 409.

The preferring of charges and holding a hearing before declaring the office of
village health officer vacant, may be dispensed with where said officer has failed
to take and file the oath of office required by statute. Rept. of Atty. Genl., Sept.
9, 1910.

Jurisdiction of the local board of health and the state commissioner to entertain
charges in the first instance, is concurrent. But where a complainant has failed to
sustain his charges on the merits before one tribunal, he cannot institute another
proceeding, on the same charges, before the other authority. Rept. of Atty. Genl.,
Oct. 26, 1910.

2. Part omitted, relating to boards of health in cities, has no reference to town
board of health.

3. Compelling action by town board. If the town board fail to comply with the
provisions of this section any citizen of the town may apply to the court for a
TOWN BOARD AS LOCAL BOARD OF HEALTH. 443

Public Health Law, § 20.

pleted a course in public health approved by the public health council at
the time of his appointment, shall be eligible for appointment as health
officer. The term of office of the health officer shall be four years and he
shall hold office until the appointment of his successor. He may be removed
for just cause by the local board of health or the state commissioner of
health after a hearing; such removal by the local board of health must be
approved by the state commissioner of health. The health officer need not
reside within the village or town for which he shall be chosen.** Notice
of the membership and organization of every local board of health shall be
forthwith given by such board to the state department of health. The
term “municipality,” when used in this article, means the city, village,
town or consolidated health district for which any such local board may
be or is appointed. The provisions herein contained as to boards of health,
and for the appointment of health officers, shall apply to all towns and vil-
lages, whether such villages are organized under general or special laws.
The members of town boards and of village boards of trustees and of boards
of health of consolidated health districts shall not receive additional com-

pensation by reason of serving as members of boards of health., ex-
cept that in the case of consolidated health districts members of the
boards of health of such districts shall be allowed a per diem compen-
sation which shall be the same as is fixed for members of town boards
and boards of trustees of villages in the locality, and in addition
thereto their actual and necessary expenses, all of which shall be
audited and paid in the same manner as the other expenses of the
consolidated health districts. Any matter within the jurisdiction of
a town or village board of health may be considered and acted upon
at any meeting of such town board or village board of trustees.

The state commissioner of health, on the request of the town board
of any town and the board of trustees of any village and the common
council or other like authority of any city, may combine into one health

 

mandamus to compel such compliance, it being a fixed and established rule
that every citizen has a right to compel the performance by public officers,
of the duty imposed upon them of executing the laws of the state which
are enacted for the benefit of the community. People ex rel. Boltzer v. Daley,
37 Hun 461. For full provisions relating to the powers and duties of local
board of health, see Boyce’s Health Officers’ Manual, 1910.

i me oe ciney. | Mandamus will lie to compel board of health to fill vacancy
L of hea officer. eople ex rel. Lynch v. Pierce (1912), 149 App.
Div. 286, 133 N. Y. Supp. 802. ne

Art of office. Health officer required to take oath of office. In case
0 failure vacancy exists which may be filled by local board, without notice
or judicial procedure. People ex rel. Walton v. Hicks, 173 App. Div. 338,

153 N. Y, Supp. 757.
443a TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Public Health Law, § 20.

district, hereinafter referred to as a consolidated health district, any
two or more of such towns, villages or cities and may on the request
of the town board of any town, board of trustees of any village or
common council or other like authority of any city at any time there
after set apart such town, village or city as a separate health district,
In any consolidated health district there shall be a board of health
which shall consist of the supervisor of each town, the president of the
board of trustees of each village, and the mayor and the supervisors of
each city included in each district, provided that if the number of
members so provided for is an even number less than seven, such mem-
bers shall within thirty days after such district shall have been estab-
lished by the state commissioner of health choose an additional member
of such board of health to be known as the elective member, and if the
number of members so provided for is more than seven such members
shall meet and elect a board of health of three members for such con-
solidated health district. Of the board of health first so elected one
member shall be elected to serve until one year from the first day of
January following his election, one to serve two years, and one to
serve-three years from such first day of January, and until his successor
has been elected and has qualified. Prior to December first each year
such village presidents, mayors and supervisors shall meet and elect one
member of the board of health who shall serve three years from the
January first following and until his successor has been elected and has
qualified. .An elective member shall serve for a term of two years from
the first day of January preceding his election and until his successor
shall have been appointed, provided that if at any time the number of
members of the board of health, excluding the elective member, shall
become an odd number, the term of office of the elective member shall
thereupon cease.

The board of health of a consolidated health district shall from time
to time elect a president from among its members, The health officer of
a consolidated health district shall serve as the secretary of the board of
health thereof without additional remuneration therefor.

In each such consolidated health district the board of health shall
appoint a health officer. Each board of health and each health officer
of a consolidated health district shall have all the rights, powers, duties
and obligations conferred and imposed by law upon boards of health
and health officers respectively.

When any consolidated health district is established, as herein pro-
vided, the boards of health of the towns, villages or cities included
within such district, shall thereupon cease to exist as boards of health,
and all their rights, powers, duties and obligations shall thereupon be
TOWN BOARD AS LOCAL BOARD OF HEALTH. 443b

Public Health Law, § 20.

transferred to the board of health of such district. When the board of
health of any such consolidated health district shall have appointed a
health officer therefor, the terms of office of the health officers of the
towns, villages or cities included in such district shall cease, and all
their rights, powers, duties and obligations shall thereupon be trans-
ferred to and imposed upon the health officer appointed for such con-
solidated health district.

The board of health of any such consolidated health district shall
from time to time audit all accounts, and allow or reject all charges,
claims and demands against such health district for the remuneration
and expenses of the health officer, registrar or registrars, and for all
other expenses lawfully incurred by said board of health or on its au-
thority. Unless such board of health of such consolidated health dis-
trict adopts the estimate system of payment as provided by this section
they shall, prior to the annual meeting of the board of supervisors each
year, make an abstract, to be known as the consolidated health district
abstract, of the names of all persons who have presented to them ac-
counts to be audited, the amounts claimed by each such person and the
amounts finally audited and approved by them respectively, and, if
such district be wholly in one county, shall deliver -such abstract to the
clerk of the board of supervisors. If such consolidated health district
be located in more than one county the board of health of such district
shall divide the total amount of the consolidated health district abstract
as audited and approved in proportion to the assessed valuation of the
real and personal property of the towns, villages or cities of such con-
solidated health district located in each county, as determined by the
last preceding assessment-rolls of the towns or cities wholly or partly
included in such district, and shall deliver a certified copy of such
abstract to the board of supervisors of each such county, with a state
ment of the amount due from the real and personal property of each
town, village or city of the consolidated health district in each such
443¢ TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Public Health Law, § 20.

county on account of the expenses of such board. The board of super-
visors of each such county shall levy a tax upon the real and personal
property within such health district sufficient to provide for the sums
audited and approved by the board of health thereof and chargeable to
the real and personal property of each town, village or city of the con-
solidated health district in each such county. Such sums, when col-
lected and paid to the county treasurer of each such county respectively,
shall be paid by him to the president of such board of health and shall
be disbursed by him in accordance with the abstract of claims audited
and approved by such board of health, as hereinabove provided.

The board of health of any consolidated health district may annually
make an estimate of the expenses of such board,for the ensuing calendar
year and, if such district be wholly in one county, shall deliver a
certified copy of such estimate to the clerk of the board of supervisors
of such county prior to the annual meeting of the board preceding such
year. If such consolidated health district be located in more than one
county, the board of health of such district shall proportion the total
amount of such estimate in the same manner as provided by this section
for proportioning the expenses of such a district when audited and
approved by the board, and shall deliver to the clerk of the board of
supervisors of each such county a certified statement of the total esti-
mate and the amount due from the real and personal property of each
town, village or city of the consolidated health district in each such
county on account thereof. The board of supervisors of each such
county shall levy a tax upon the real and personal property within such
health district sufficient to provide for the ‘portion of the amount of
such estimate chargeable to the real and personal property of each town,

village or city of the consolidated health district in each such county.
TOWN BOARD AS LOCAL BOARD OF HEALTH. 443d
Public Health Law, §§ 20a, 20b.

Such sums, when collected and paid to the county treasurer of each
county respectively shall be paid by him to the president of such board
of health and shall be disbursed by the board of health in accordance
with the estimates. After such estimate system has been adopted by a
consolidated health district, the board of health thereof shall deduct
from the estimate for the succeeding calendar year the amount, if
any, remaining in the hands of such board after all of the liabilities
incurred on account of the preceding estimate have been paid, before
the certified statement of the total estimate and the amount due from
real and personal property of each town, village or city of the consoli-
dated health district in each such county is certified to the respective
clerks of the boards of supervisors for collection. [Public Health Law,
§ 20, as amended by L. 1909, ch. 165, L. 1918, ch. 559, L. 1915, ch. 124,
L, 1916, ch. 369, L. 1918, ch. 275, L. 1920, ch. 621, and L. 1921, ch. 270.])

§ la. EXPENSES OF CONSOLIDATED HEALTH DISTRICT.

A consolidated health district may adopt the estimate system as
provided by section twenty of this chapter, and, as provided by such
section, may make and file with the clerk of the board of supervisors
of the county, or if such district be located in more than one county,
with the clerk of the board of supervisors of each such county, an
estimate for the remainder of the current year and for the ensuing
calendar year, and may issue a certificate of indebtedness upon the
eredit of the district for such portion of such estimate as may be
needed to pay the expenses of the board until the tax levied on account
of such assessment shall have been collected and paid to the board as
provided by section twenty of this chapter. Such tax when collected
shall be applicable in the first instance to the payment of such certifi-
cate. [Public Health Law, § 20-a, as added by L. 1917, ch. 182.]

§ ib. GENERAL HEALTH DISTRICTS,

The board of supervisors of any county, with the approval of the
state commissioner of health, shall have the power to establish such
county, or any part or parts thereof, as a general health district and
in such event shall appoint a board of health for each of such districts.
Provided, however, that no city of the first or second class or
any part thereof shall be included as part of any such district,
and that no city of the third class or any part thereof shall be
included as part of such district, unless the mayor and com-
mon council, or the officials exercising similar powers, shall
44306 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Public Health Law, § 20b.

have consented thereto. The county medical society may submit to
the board of supervisors a list of physicians residing in the county
from which such board may choose medical members of the board of
health. The board of health shall consist of five members, at least
one of whom shall be a graduate of at least three years’ standing of a
medical college. The term of office of each member of said board
shall be five years and the term of one of the members shall expire
annually. The first appointments shall be made for the respective
terms of five, four, three, two and one years. The members of the
board shall receive for attendance at meetings of the board a per diem
allowance which shall be the same as the per diem allowance to mem-
bers of town boards in the vicinity and shall be allowed their actual
and necessary traveling expenses, to be audited and paid in the same
manner as the other expenses of the county. Where the health dis-
trict includes the whole county, all charges and other expenses of such
district shall be audited and paid in the same manner as other charges
against the county. All accounts, charges, claims and demands of
such general health district where such district is less than a county
shall be presented and paid in the same manner as the expenses,
charges, claims and demands of consolidated districts and for such
charges, the board of health shall have all the powers of the board of
health of the consolidated health district, as set forth in sections
twenty and twenty-a of this article. When such board of health has
been established, it shall within its district exercise all the powers and
perform all the duties of local boards of health conferred by any law or
laws or by the state sanitary code.

Such board of health shall appoint a general district health officer who
shall without extra. compensation act as secretary to the board and
who shall possess such qualifications as may be prescribed by the public
health council. Such health officer shall serve for a term of six years
and shall, where the district embraces the whole county, devote his
whole time to the duties of his office. He shall within his district pos-
sess all the powers and duties conferred upon local health officers by
any law or laws or by the state sanitary code. The salary of such
health officer shall be fixed by the board of health of suen district.

Local health districts now existing within the area of any such
general health district hereinafter established shall continue to exist
as subdivisions of the general health district. Local boards of health
within such district shall continue to exist and to retain their present
powers and duties subject to the rulings and ordinances of the district
health board and may continue to appoint health officers for such local
districts as now provided for by law. The board of supervisors shall
TOWN BOARD AS LOCAL BOARDS OF HEALTH. 4423f
Public Health Law, § 21.

have power within any general health district to consolidate with ad-
joining health districts any local health districts. When such consoli-
dation has been ordered by the board of supervisors the same steps
shall be taken and the same rights and duties devolve upon all persons
as ensue upon the signing of the order by the state commissioner of
health, as provided for by sections twenty and twenty-a of this article.
Provided, however, that no consolidation so ordered shall take effect
until the expiration of the terms of the local health officers affected
who are in office on the first day of July, nineteen hundred and twenty-
one, unless with the consent of such local health officers. The local
health officers within a general health district shall act as deputies
to the general district health officer. They shall, subject to the
supervision of the general district health officer, perform within
their local districts all the duties of local health officers and
shall serve for the same terms and under the same conditions
as now are, or hereafter may be, prescribed by law. Present
local health officers in office at.the time of the passage of this
act shall act as such deputies during their present term of office
and shall be eligible for reappointment if they have complied
with the qualifications prescribed by the public health council, and
hereafter no one shall be appointed as such local health officer unless
he has complied with such qualifications or has been duly exempted
therefrom. [Public Health Law, § 20b, as added by L. 1921, ch. 509.]

§ 2. GENERAL POWERS AND DUTIES OF LOCAL BOARDS OF HEALTH;
RULES AND REGULATIONS; SUPPRESSION OF NUISANCES;
SUBPOENAS; WARRANTS OF ARREST; PENALTIES.

Every such local board of health shall meet at stated intervals to be
fixed by it in the municipality. The presiding officer of every such board
may call special meetings thereof when in his judgment the protection
of the public health of the municipality requires it, and he shall call
such meeting upon the petition of at least twenty-five residents thereof,
of full age, setting forth the necessity of such meeting. Every such
local board, subject to the provisions of the public health law and of the
sanitary code, shall prescribe the duties and powers of the local health
officer, who shall be its chief executive officer, and direct him in the
performance of his duties, and fix his compensation, which in case
444 TOWNS, TOWN MEETINGS AND TOWN OFFICERS,

Public Health Law, § 21.

of health officers of cities, towns and villages, having a population of
eight thousand or less, shall not be less than the equivalent of ten cents
per annum per inhabitant of the city, town or village according to the
latest federal or state enumeration; and in cities, towns and villages
having a population of more than eight thousand shall not be less than
eight hundred dollars per annum.’ In addition to his compensation so
fixed, the board of health must allow the actual and reasonable expenses
of said health officer in the performance of his official duties and in
going to, attending and returning from, the annual sanitary couterence
of health officers, or equivalent meeting, held yearly within the state,
and conferences called by the sanitary supervisor of the district. and
whenever the services rendered by its health officer shall include the cars
of smallpox, the board of health shall allow, or whenever such services
are extraordinary, by reason of infectious diseases, or otherwise, they
may in their discretion, allow to him such further sum in addition to
said fixed compensation as shall be equal to the charges for consultation
services in the locality, audited by the town board of a town, by the
board of trustees of a village or by the proper auditing board of a city
of the third class, which said expenses and said additional compensation
shall be a charge upon and paid by the municipality as provided in
section thirty-five of this chapter. Every such local board shall make
and publish from time to time all such orders and regulations, not in-
consistent with the provisions of the sanitary code, as it may deem
necessary and proper for the preservation of life and health and the
execution and enforcement of this chapter in the municipality.’ It

 

4a, A village is not liable for the expenses of a health officer in successfully
defending a suit brought against him for alleged willful, careless and negligent
acts committed by him as health officer, nor can the village pay the same. Rept.
of Atty. Genl. (1911), vol. 2, p. 556.

5. Compensation of local health officer—The local board of health may fix
compensation of a local health officer and allow his reasonable expenses in attending
the annual sanitary conference of health officers, and the town board must audit
such allowances and may not refuse because the health officer serving for a fixed
salary failed to keep a detailed statement of services rendered, or his duties w re
not prescribed by the board of health, or because the auditing board did not agree
with the health board as to the rate of compensation. People ex rel. Sherwood v.
Blood, 120 App. Div. 614, 105 N. Y. Supp. 20.

Compensation of a legally appointed local health officer having been fixed by the
board of health appointing him should not be diminished during his regular term.
Rept. of Atty. Genl., May 17, 1911.

Delegation of authority as to inspection of milk and dairies unauthorized. A
local board of health has no power to delegate its authority in respect to matters of
judgment and discretion. City of Hudson v. Fleming, 139 App. Div. 327, 123 N. Y.
Supp. 1065,

6. Orders and regulations.—An order made by a town board of health at a
TOWN BOARD AS LOCAL BOARD OF HEALTH. 445

Public Health Law, § 21.

shall make without publication thereof, such orders and regulations for
the suppresion of nuisances and concerning all other matters in its
judgment detrimental to the public health in special or individual cases,
not of general application, and serve copies thereof upon the owner or
occupant of any premises whereon such nuisances or other matters may
exist, or upon which may exist the cause of other nuisances to other
premises, or cause the same to be conspicuously posted thereon.’ The
health officer may employ such persons as shall be necessary to enable

 

meeting at which the citizen member was not present, not having been notified to
attend, is invalid. Schoepflin v. Calkins, 5 Misc. 159; 25 N. Y. Supp. 696. There is
no question but what the legislature may in the exercise of its constitutional au-
thority confer on boards of health the power to enact sanitary ordinances having the
force of law within the districts over which their jurisdiction extends. Polinsky v.
People, 73 N. Y. 65; Health Department v. Knoll, 70 N. Y. 530; Metropolitan Board
of Health v. Heister, 37 N. Y. 661; People ex rel. Cox v. Justices of Sessions, 7 Hun,
214. Regulations so adopted have the force of a statute, although they forbid and
prescribe penalties for common law offenses. People ex rel. Meyer v. Special S2s-
sions. 12 Week. Dig. 367. But the ordinances must be reasonable and declare with
cer‘ainty the object and purpose for which they are enacted. MeNall v. Kales, 61
Hun, 231: 16 N. Y. Supp. 7.

Where the legislature has fixed a standard of limitation of rights, it is not com-
petent for the board of health to impose additional restrictions. Metropolitan Board
of Health v. Schmades, 10 Abb. Pr. (N. 8.) 205; 3 Daly 282.

Ordinances adopted by the board of health of a town forbidding the having or
keeping within the town of any refuse vegetable or animal matter in a decayed or
decaying condition and the boiling or:cooking of garbage or refuse in an open vat
or kettle permitting exhalations to escape into surrounding air, were held reason-
able and valid. Town of Newtown vy. Lyons, 11 App. Div. 105; 42 N. Y. Supp. 241.
But an ordinance providing that: ‘No cow shall be kept within two hundred feet
of any dwelling in the village of Flushing without a special permit obtained from
the board of health,” was held invalid upon the ground that while it would have
been competent for the board to have forbidden the keeping of cows within two hun-
dred feet of a dwelling house, it was not authorized to license cow stables in cer-
tain cases, since such a power is not conferred by the statute. Village of Flushing
v. Carraher, 87 Hun 63; 33 N. Y. Supp. 951.

Rules and regulations of a local board of health should be posted as well as pub-
lished, Rept. of Atty. Genl. (1900), 244. See also Opinion of Comptroller (1917),
13 State Dept. Rep. 481.

Power to make ordinances; penalty for disobedience of ordinances.—
A village board of health has the power under this section to make both general and
special orders for the protection of the public health. Under this statute, where
such an order was made which did not prescribe any penalty, such board is without
power, after the order has been disobeyed, to prescribe for the first time a penalty
for the wrong already done. Village of Carthage v. Colligan (1915), 216 N. Y. 217,
affg. 158 App. Div. 793.

Compensation for damages.—Laws and regulations of a police nature, though

~ they may disturbe the enjoyment of individual rights, are not unconstitutional,
though no provision is made for compensation for such disturbances. They do not
appropriate private property for public use, but simply regulate its use and enjoy-
ment by the owner. If he suffer injury it is either damnum absque injuria, or, in
the theory of the law, he is compensated for it by sharing in the genral benefits
Ee boa regulations are intended to secure. Health Department v. Rector, 145

« ¥. 32, 43.

7. Suppression of nuisances.—The board of health, while authorized to order
the Suppression of nuisances, cannot make such an order unless there be a nuisance
in fact, and it is the actual existence of that fact which gives them jurisdiction to
446 TOWNS, TOWN MEETINGS AND TOWN OFFICERS,

Public Health Law, § 21.

him to carry into effect the orders and regulations of the board of health
and the provisions of the public health law and of the sanitary code,
and fix their compensation within the limits of the appropriation there.
for. The board of health may issue subpcenas, compel the attendance
ot witnesses, administer oaths to witnesses and compel them to testify,
and for such purposes it shall have the same powers as a justice of the
peace of the state in a civil action of which he has jurisdiction’ It
may designate by resolution one of its members to sign and issue such
subpenas. No subpeena shall be served outside the jurisdiction of the
board issuing it, and no witness shall be interrogated or compelled to
testify upon matters not related to the public health. It may issue
warrants to any constable or policeman of the municipality to apprehend
and remove such persons as cannot otherwise be subjected to its orders
or regulations, and a warrant to the sheriff of the county to bring to its
aid the power of the county whenever it shall be necessary to do so.
Every warrant shall be forthwith executed by the officer to whom di-
rected, who shall have the same powers and be subject to the same
duties in the execution thereof, as if it had been duly issued out of a
court of record of the state. Every such local board may prescribe and
impose penalties for the violation of or failure to comply with any of
its orders or regulations, not exceeding one hundred dollars for a single
violation or failure, to be sued for and recovered by it in the name and

 

act. The determination of the board as to the existence of the nuisance is not final!
and conclusive upon the owner of the premises, where it is alleged to exist. People
ex rel. Copeutt v. Board of Health, 140 N. Y. 1; 35 N. E. 320. The question of
whether or not the nuisance exists is always an open one, upon which the jurisdie-
tion of the board is based. Coe v. Schultz, 47 Barb. 64; 2 Abb, Pr. (N. 8.) 193;
see, also, Village of Flushing v. Carraher, 87 Hun, 63; 33 N. Y. Supp. 951, in which
it was held that a declaration by a board of health that'a particular establishment
is a nuisance does not preclude the owner from contesting the question in the courts.

A resolution declaring the damming of the water in a particular river to be a
dangerous nuisance and detrimental to the health of the inhabitants, and ordering
such nuisance to be removed within three days, is too vague, ind«finite and uncertain
to authorize the removal of a mill dam which has been in existence for more than
sixty years. Rogers v. Barker, 31 Barb. 447.

Certiorarii—Determination of board as to existence of nuisance is not review-
able by certiorari. People ex rel. Copeutt v. Board of Health. 140 N. Y. 1, revg. in
effect. People ex rel. N. Y. C. & H. R. R. R. Co. v. Town of Seneca Falls, 35 N. Y.
St. Rep. 411, 12 N. Y. Supp. 561.

Service of order to abate nuisance may be made outside of jurisdiction of
board. Gould v. City of Rochester, 105 N. Y. 46.

8. Issue of subpoenas and taking of testimony.—A subpoena may be en-
forced by the board of health in the manner authorized by sections 406-408
of the Civil Practice Act, and a witness who, without reasonable cause, re-
fuses to be examined or to answer a legal and competent question may be
committed to jail under a warrant issued by a judge of a court of record.
Civil Practice Act, § 406, subd. 3.
TOWN BOARD AS LOCAL BOARD OF HEALTH. 447

Public Health Law, § 21a.

for the benefit of the municipality; and may maintain actions in any
court of competent jurisdiction to restrain by injunction such viola-
tions, or otherwise to enforce such orders and regulations.° [Public
Health Law, § 21, as amended by L. 1909, ch. 480, and L. 1913, ch. 559;
B. C. & G. Cons. L., vol. 8, p. 205.]

§ 2, POWERS AND DUTIES OF LOCAL BOARDS OF HEALTH AS TO
SEWERS.

Whenever such local board of health in any incorporated village
shall deem the sewers of such village insufficient to properly and safely
sewer such village, and protect the public health, it shall certify such
fact in writing, stating and recommending what additions or altera-
tions should in the judgment of such board of health be made, with its
reasons therefor, to the state commissioner of health for his approval,
and if such recommendations shall be approved by the state commis-
sioner of health, and the plans therefor be approved by the
state engineer, it shall be the duty of the board of trustees or
other board of such village having jurisdiction of the construction of
sewers therein, if there be such a board, whether sufficient funds
shall be on hand for such purpose or not, to forthwith make
such additions to or alterations in the sewers of such village
and execute such recommendations and the expenses thereof
shall be paid for wholly by said village in the same manner
as other village expenses are paid or by an assessment of the
whole amount against the property benefited, or partly by the village
and partly by an assessment against the property benefited, as the boarc
of trustees of such village shall by resolution determine. If the board
of trustees shall determine that such expenses shall be paid partly by
the village and partly by an assessment against the property benefited,
as authorized by this section, it shall in the’ resolution making such
determination fix the proportion of such expense to be borne by each,

 

9. Penalties for violation.—Town boards of health should fix a definite penalty
for the violation of their regulations, and the amount so fixed should be the amount
recovered in an action for such a penalty, and not a sum to be established at the
trial for the offense. McNall v. Kales, 61 Hun, 231, 16 N. Y. Supp. 7; 40 N. Y. St.
Rep. 719. :

In the case of Board of Health of New Rochelle v. Valentine, 32 N. Y. St.. Rep.
919; 11 N. Y. Supp. 112, it was held that an action for a penalty may be brought
in the name of the board. See, also, Board of Health v. Copeutt, 140 N Y. 12; 35
N. E. 320,

A city board of health can only bring such actions as allowed by statute. It
cannot enlarge its own powers to bring actions by a provision in the local sanitary
code. Bd. of Health of New Rochelle v. Farrell (1917), 178 App. Div. 714, 165
N.Y. Supp. 911.

Penal provisions respecting the public health. Section 1740 of the Penal Law
‘provides that: “A person who wilfully violates any provision of the health
laws, the punishment for violating which is not otherwise prescribed by those laws
or by this code, and a person who wilfully violates or refuses or omits to comply
with any lawful order or regulation prescribed by any board or health officer, or
any regulation lawfully made or established by any public officer under authority
448 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Public Health Law, § 21b.

and the proportion thereof to be raised by an assessment against the
property benefited shall be assessed and collected in the manner pro-
vided by the village law for the assessment and collection of sewer
assessments. Said village is hereby authorized to raise such sum as
may be necessary for the payment of the expenses incurred, which are
a village charge, if any, as herein provided, in addition to the amount
such village is now authorized to raise by law for corporation purposes,
and such board shall have the right to acquire such lands, rights of
way, or other easements, by gift, or purchase, or in case the same can-
not be acquired by purchase may acquire the same by cordemnation
in the manner provided by law. [Public Health Law, § 21a, as amended
by L. 1913, ch. 559, and L. 1921, ch. 510.]

§ 3 GENERAL POWERS AND DUTIES OF HEALTH OFFICERS.

Health officers of towns and villages, in addition to such other duties
as may be lawfully imposed upon them and subject to the provisions
of the public health law and the sanitary code, shall perform the follow-
ing duties:

1. Make an annual sanitary survey and maintain a continuous sani-
tary supervision over the territory within their jurisdiction.

2. Make a medical examination of every school child as soon as
practicable after the opening of each school year, except in those schools
in which the authorities thereof make other provision for the medical
examination of the pupils.™*

3. Make a sanitary inspection periodically of all school buildings and
places of public assemblage, and report thereon to those responsible for
the maintenance of such school buildings and places of public assemblage.

4. Promote the spread of information as to the causes, nature and
prevention of prevalent diseases, and the preservation and improvement
of health.

5. Take such steps as may be necessary to secure prompt and full
reports by physicians of communicable diseases, and prompt and full

‘registration of births and deaths.

 

of the health laws, is punishable by imprisonment not exceeding one year or by a
fine not exceeding $2,000, or by both.”

It is further provided in section 1741 of the Penal Law that: “A person who
wilfully opposes or obstructs a health officer or physician charged with the enforce-
ment of the health laws in performing any legal duty, is guilty of a misdemeanor.”

As to public nuisances generally, see Penal Law, secs. 1530-1533.

9a. This subdivision is superseded in effect by article 20-a of the Education
Law, as added by L. 1913, ch. 227, which provides that inspection of school children
shall be made by mecical inspectors appointed by boards of education or school
trustees.
TOWN BOARD AS LOCAL BOARD OF HEALTH. 449

Public Health Law, § 21b

6. Enforce within their jurisdiction the provisions of the public health
law and the sanitary code.

7. Attend the annual conferences of sanitary officers called by the
state department’ of health, and local conferences within his sanitary
district, to which he may be summoned by the sanitary supervisor
thereof.

The written reports of public health officers, inspectors, nurses and
other representatives of public health officers on questions of fact under
the public health law or under the sanitary code or any local health
regulation shall be presumptive evidence of the facts so stated, and shall
be received as such in all courts and places. The persons making such
reports shall be exempt from personal liability for the statements therein
made, if they have acted in good faith. '

No health officer, inspector, public health nurse, or other representa-
tive of a public health officer, and no pérson or persons other than the
city, village or town by which such health officer or representative
thereof is employed shall be sued or held to liability for any act done
or omitted by any such health officer or representative of a health officer
in good faith and with ordinary discretion on behalf or under the direc-
tion of such city, village or town or pursuant to its regulations or ordi-

 

10. Registar of village board of health may be appointed from their own
number. Rept. of Atty. Genl. (1901) 173.

Town clerk should be designated as registrar. Rept. of Atty. Genl. (1902) 148.

A village clerk is not required to act as rcgistrar of vital statistics, without ap-
pointment or designation by the village beard cf health. Rept. of Atty. Genl. (1911),
vol. 2, p. 622.

Records as evidence. While it was the primary object of the legislature to
furnish information on the subject of vital statistics for sanitary purvoses, yet the
language employed in the statute is broad enough to make the certificates of the
cause cf death of persons on file in the office of the town clerk in which such persons
died, admissible in evidence upon the trial of an action, although such certificates
are not under oath; and such certificates are p'tma facie evidence of the facts
therein: set forth. Woolsey v. Trustees of Ellenville, 84 Hun, 236; 32 N. Y. Supp.
546; see, also, Keefe v. Supreme Council, 37 App. Div. 276; 55 N. Y. Supp. 827.

The statute making cer‘ified copies of record as to the death of a person presump-
tive evidence as to. the facts therein stated does not change the common law rule
of evidence in controversies of private parties growing out of contracts. A copy
of a record of a city board of health cannot, therefore, be proved in an action upon
a life insurance policy for the purpose of showing that a material statement made
by an applicant for insurance as to the cause of her mother’s death was false.
Ceglin v. Metropolitan Life Ins. Co., 173 N. Y. 374.

11, Cost of registration of a town charge.—The statute imposes upon every
local board of health the duty of supervising and making complete the registration
450 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Public Health Law, §§ 2le, 25.

nances, or the sanitary code, or the public health law. Any person whose
property may have been unjustly or illegally destroyed or injured pursuant
to any order, regulation or ordinance, or action of any board of health or
health officer, or representative of a health officer, for which no personal
liability may exist as aforesaid, may maintain a proper action against the
city, village or town for the recovery of proper compensation or damages.
Every such suit must be brought within six months after the cause of action
arose and the recovery shall be limited to the damages suffered. [Public
Health Law, § 21b, as amended by L, 1913, ch. 559; B. C. & G. Cons. L,
vol. 8, p. 2054.]

§ 4. EMPLOYMENT OF PUBLIC HEALTH NURSES.

Each health officer or other official exercising similar duties, by what-
ever official designation he may be known, shall have power to employ such
number of public health nurses as in his judgment may be necessary
within the limits of the appropriation made therefor by the city, town or
village. They shall work under the direction of the health officer and may
be assigned by him to the reduction of infant mortality, the examination or
visitation of school children or children excluded from school, the discovery
or visitation of cases of tuberculosis, the visitation of the sick who may be
unable otherwise to secure adequate care, the instruction of members of
households in which there is a sick person, or to such other duties as may
seem to him appropriate. [Public Health Law, § 21c, as amended by L.
1913, ch. 559.]

§ 5. INFECTIOUS AND CONTAGIOUS OR COMMUNICABLE DIS-
EASES; DUTIES OF BOARDS OF HEALTH; REPORTS OF
HEALTH OFFICERS TO STATE COMMISSIONER OF HEALTH;
DISEASE IN ALMSHOUSE.

Every local board of health and every health officer shall guard against
the introduction of such infectious and contagious or communicable dis-
eases as are designated in the sanitary code, by the exercise of proper
and vigilant medical inspection and control of all persons and things
infected with or exposed to such diseases, and provide suitable places
for the treatment and care of sick persons who cannot otherwise be pro-
provided for. They may, subject to the provisions of the sanitary code,
prohibit and prevent all intercourse and communication with or use of in-
fected premises, places and things, and require, and if necessary, provide
the means for the thorough purification and cleansing of the same before
general intercourse with the same or use thereof shall be allowed.1* Every
physician shall immediately give notice of every case of infectious and con-
tagious or communicable disease required by the state department of health

 

of all births, marriages and deaths occurring within its jurisdiction; and the cost
of so doing, not to exceed the amount prescribed in the act, is a town charge which
must be audited and allowed by the board of town auditors. People ex rel. Wem-
mell v. Town Auditors, 34 Hun 336.

12. Burial permits. A permit for the burial of the dead, with a transit permit
TOWN BOARD AS LOCAL BOARD OF HEALTH. 451

Public Health Law, § 25.

to be reported to it, to the health officer of the city, town or village where
such disease occurs, and no physician being in attendance on such case, it
shall be the duty of the superintendent or other officer of an institution,
householder, hotel or lodging house keeper, or other person where such case
occurs, to give such notice. Whenever an examination for diagnosis by a
laboratory, or by any person other than the physician in charge of the per-
son from whom the specimen is taken, of any specimen discloses the exist-
ence of a case of infectious and contagious or communicable disease, the
person in charge of such laboratory or the person making such examination
shall immediately report the same, together with all the facts in connection
therewith, to the health officer of the city, town or village where such
laboratory is situated and also to the health officer of the city, town or vil-
lage from which such specimen came and shall keep a permanent record
of all the facts in connection with such examination, including the identity
of the person from whom the specimen is taken and the name of the physi-
cian, if any, sending such specimen. The physician or other person giving
such notice shall be entitled to the sum of twenty-five cents therefor, which
shall be a charge upon and paid by the municipality where such case occurs.
Every local health officer shall report to the state department of health,
promptly, all cases of such infectious and contagious or communicable dis-
eases, aS may be required by the state department of health, and for such
reporting the health officer of a village or town shall be paid by the munici-
pay employing him, upon the certification of the state department of

ealth, a sum not to exceed twenty cents for each case so reported. The
reports of cases of tuberculosis made pursuant to the provisions of this sec-
tion shall not be divulged or made public so as to disclose the identity of
the persons to whom they relate, by any person ; except in so far as may be
authorized by the public health council. The board of health shall provide

 

obtained from the board of health of the place where the death occurs, authorizes a
body to be buried either in the county where the death occurred or in any other
county without any permit in the latter case from the local’ board of health. LEickel-
berg v. Board of Health of Newtown, 47 Hun 371.

18. Quarantine. To justify the isolation of persons infected with or exposed to
contagious and infectious diseases the fact must exist that such persons are so
infected or have been so exposed. No authority is given by the statute to the board
of health or health officer to quarantine a person simply because he refuses to be
vaccinated, and to continue him in quarantine until he consents to such vaccination.
Matter of Smith, 146 N. Y. 68; revg. 84 Hun 465, 32 N. Y. Supp. 317. The mere
fact that a person has been exposed to the smallpox, although he refuse to be vacci-
nated, does not authorize the quarantine of such person; but conditions for the
communication of the disease must exist. Smith v. Emery, 11 App. Div. 10, 42
N. Y. Supp. 258. As to liability of city health officer in enforcing quarantine es-
tablished in compliance with city ordinance, see Crayton v. Larrabee, 220 N. Y. 493.

Infected clothing may be destroyed by a local board of health. Rept. of Atty.
Genl. (1894) 237.

Services of a town physician, who aids in inspecting smallpox cases in an Indian
reservation, are a town charge. Rept. of Atty. Genl. (1904) 282.

14, Exposing person affected with a contagious disease. Section 1756 of the
Penal Law provides that: “A person who willfully exposes himself or another,
affected with any contagious or infectious disease in any public place or thorough-
fare, except upon his necessary removal in a manner not dangerous to the public
health is guilty of a misdemeanor.”
‘452 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Public Health Law, § 36a.

at stated intervals, a suitable supply of vaccine virus, of a quality and from
a source approved by the state department of health, and during an actual
epidemic of smallpox obtain fresh supplies of such virus at intervals not
exceeding one week, and at all times provide thorough and safe vaccination
for all persons in need of the same. If a pestilential, infectious, or con-
tagious disease exists in any county almshouse or its vicinity, and the physi-
cian thereof shall certify that such disease is likely to endanger the health
of its inmates, the county superintendent of the poor may cause such in-
mates or any of them to be removed to such other suitable place in the
county as the local board of health of the’ municipality where the almshouse
is situated may designate, there to be maintained and provided for at the
expense of the county, with all necessary medical care and attendance until
they shall be safely returned to such almshouse or otherwise discharged.
The health officer, commissioner of health, or boards of health of the cities
of the first class shall report promptly to the state department of health all
cases of smallpox, typhus and yellow fever and cholera and the facts re-
lating thereto. [Public Health Law, § 25, as amended by L. 1913, ch:
559, and by L. 1918, ch. 177; B. C. & G. Cons. L., p. 4436.)

§ 5a. PROVIDING FOR THE CARE AND MAINTENANCE OF CAR.
RIERS OF DISEASE.

Whenever an individual is declared by the state commissioner cf
health as being a carrier of typhoid fever bacilli and whenever, for the
protection of the public health, the state commissioner of health shall
have certified to the necessity of continued quarantine; or, whenever,
in accordance with rules and regulations adopted by the state commis-
sioner of health a carrier of the germs of typhcid fever is prevented
from carrying on any occupation which would enable him to gain a
livelihood, such individual may be given hospital or institutional care
under the surveillance of the local health officer at the expense of the
state if such hospital or institution in the judgment of the state com-
missioner of health be properly equipped for the care and maintenance
of said individual.

When no such hospital or institution is available and when in the
opinion’ of the state commissioner of health such individual mav be
eared for at home or in a private family with due regard to the pro-
tection of the public health the local charities commissioner or overseer
of the poor shall, in accordance with rules and regulations adopted by
the commissioner of health, furnish necessary medical attendance ar
maintenance. No expenditure for the purposes herein authorized shall
be contracted for or incurred by anv local overseer of the poor or
charities commissioner until after such expenditure has been authorized
and approved by the state commissioner of health. A verified state-
ment of any such approved expense incurred hereunder shall be trans-
mitted by the local overseer of the poor or charities commissioner to
the state commissioner of health. The commissioner of health shall
examine this statement and if satisfied that such authorized expenses
TOWN BOARD AS LOCAL BOARD OF HEALTH. 453

Public Health Law, § 26.

are correct and necessary in accordance with rules and regulations
adopted by him he shall audit and allow the same and when so audited
the amount thereof shall be paid by the state treasurer on the warrant of
the comptroller to such institution or local poor officer. [Public Health
Law, § 36a, as added by L. 1916, ch. 371, in effect May 1, 1916.]

§ 6. COMPLAINTS AS TO NUISANCE; ORDER OF BOARD.

Every such board shall receive and examine into all complaints made
by any inhabitant concerning nuisances, or causes of danger or injury to
life and health within the municipality, and may enter upon or within
any place or premises where nuisances or conditions dangerous to life
and health or which are the cause of nuisances existing elsewhere are
known or believed to exist, and by its members or other persons desig-
nated for that purpose, inspect and examine the same. The owners,
agents and occupants of any such premises shall permit such sanitary
examinations to be made, and the board shall furnish such owners,
agents and occupants with a writtten statement of the results and con-
clusions of any such examination. Every such local board shall order
the suppression and removal of all nuisances and conditions detrimental
to life and health found to exist within the municipality.” Whenever
the state department of health shal] by notice to the presiding officer

 

15. Powers conferred by section are broad and general and should be
interpreted, in the light of the beneficial purposes to be subserved. They include
constant and necessary inspection and supervision with the view of anticipating,
suppressing and preventing all dangers which may threaten the public health,
ent v. Village of North Tarrytown, 26 Misc. 86, 56 N. Y. Supp. 885, affd. 50
App. Div. 502, 64 N. Y. Supp. 178.

To justify a board of health in determining the existence of a nuisance facts
vuust exist tending to show that the thing condemned is or is likely to become
a nuisance, Unless such facts exist there is no’ justification for the exercise by
the health officers of their jurisdiction. The question of the existence of a
nuisance is in each case jurisdictional. If there is no nuisance the officers have
no authority to act. Coe v. Schultz, 47 Barb. 64; 2 Abb. Pr. (N. 8.) 193; People
ex rel. Copcutt v. Board of Health, 140 N. Y. 1; 35 N. E. 320; Underwood v. Greene,
42 N. Y. 140.

No power to condemn property.—Local boards of health have no power to
condemn private property for the purpose of building a sewer through it, in order
to abate a nuisance on the adjoining property. Rept. of Atty. Genl. (1894) 236.

Force of ordinance.—The legislature may confer on boards of health the power
to enact sundry ordinances having the force of law within the localities for which
they act. Cartwright v. City of Cohoes, 39 App. Div. 69, 56 N. Y. Supp. 731, affd.
165 N. Y. 631.

Under the provisions of this section a board of health cannot exercise the power
of license, and an ordinance declaring certain conduct to be a nuisance “ without
+ avg pial ” is invalid. Village of Flushing v. Carraher, 87 Hun 63, 33 N. Y.

upp. 951.

What constitutes « nuisance.—A thing is a nuisance when, because of its in-
herent qualities or the use to which it is put, it works an injury to people who
live in its neighborhood. Health Department v. Dassori, 21 App. Div. 348, 47 N.
Y. Supp. 641.

Public nuisances. As to what are public nuisances, and as to the crime of
maintaining public nuisances, see Penal Law, §§ 1530-1531.

Abatement of nuisauces.—Officer acts at his peril, and is liable unless it
appears that the thing abated was in fact a nuisance. Smith v. Irish, 37 App. Div.
220, 55 N. Y. Supp. 837; People ex rel. Copcutt v. Board of Health, 140 N. Y. 1.
454 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Pubiie Health Law, § 381.

ot any local board of health, direct him to convene such local board
to take certain definite proceedings concerning which the state depart-
ment of health shall be satisfied that the action recommended by them
is necessary for the public good, and is within the jurisdiction of such
board of health, such presiding officer shall convene such local board,
which shall take the action directed. [Public Health Law, § 26;
B. C. & G. Cons. L., p. 4439.]

§ 7 REMOVAL OF NUISANCES BY BOARD OR ITS OFFICERS; EX-
PENSE TO BE PAID BY OWNER.

If the owner or occupant of any premises whereon any nuisance or
condition deemed to be detrimental to the public health exists or the
cause of the existence elsewhere, fails to comply with any order or
regulation of any such local board for the suppression and removal of
any such nuisance or other matter, in the judgment of the board detri-
mental to the public health, made, served or posted as required in this

 

If nuisance is outside of jurisdiction board cannot summarily abate, but may in-
voke the aid of the court to restrain a violation of its order. Gould v. City of
Rochester, 105 N. Y. 46, revg. 39 Hun 79.

The right to abate a nuisance arises from the necessity of the case, exists only
because of that necessity and is to be exercised only so far as the necessity requires,
A thing which is a nuisance because of the use to which it is put cannot be de
stroyed by way of abating the nuisance unless such destruction is necessary. If a
nuisance can be abated by discontinuing the use it must be abated in that way.
Health Department v. Dassori, 21 App. Div. 348, 47 N. Y. Supp. 641.

A town board of health has no jurisdiction to suppress a nuisance unless
proof is made before the board that a nuisance exists. The board cannot impose
a fine upon a person who tars up and obstructs a drain contrary to the rules 1f
the board, where it does not appear by proof produced before the board that the
obstructed drain was a nuisance, and where the person obstructing the, drain has
not been cited to appear before the board and show cause why he should not be
ordered to remove the obstruction. Town of Fayette v. Greenleaf, 44 Misc. 352, 89
N. Y. Supp. 1093.

Notice.—In construing a local act, the court held that duties of the board of
health, in respect to inquiring into and determining whether or not a nuisance
existed, were of quasi judicial character and an omission to give notice of the
proposed action was fatal. In the absence of any prescribed length of notice a
reasonable opportunity is implied. People v. Board of Health, 58 Hun 595, 12 N. Y.
8. 561. See also People v. Wood, 62 Hun 131, 16 N. Y. Supp. 664; Schocfflin v.
Calkins & Davis, 5 Misc. 159, 25 N. Y. Supp. 696. But see People ex rel. Copcutt v.
Board of Health, 140 N. Y. 1. :

Judicial review.—The acts of municipal authorities in abating nuisances are
not subject to judicial interference unless manifestly unreasonable or oppressive,
or unwarrantably invade private rights or clearly transcend the powers granted
to such authorities. Although a local act contains no provision that notice shall be
given to the owner, he is entitled to an opportunity to contest in a judicial pro-
ceeding, the reasonableness of the order and the facts under. which it proceeded.
Eckhardt v. City of Buffalo, 19 App. 1, 46 N. Y. Supp. 204, affd. 156 N. Y. 658.

Existence of nuisance although declared to be such by board of health is still
open to determination in the courts. Village of Flushing y. Carraher, 87 Hun,
63, 33 N. Y. Supp. 951; People ex rel. Copcutt v. Borad of Health, 140 N. Y. 1.

Action of board not reviewable by certiorari.—The board of health has a
tight to act upon its own inspection and knowledge of the alleged nuisance. It
is not obliged to hear any party. It can obtain its information from any source
and in any way, hence its determination upon the question of nuisance is not
reviewable by certiorari. People ex rel. Copcutt v. Board of Health, 140 N. Y. 1.
TOWN BOARD AS LOCAL BOARD OF HEALTH. 455
Public Health Law, § 31.

article, such boards or their servants or employees may enter upon the
premises to Which such order or regulation relates, and suppress or
remove such nuisance or other matter.6 The expense of such sup-
pression or removal shall be paid by the owner or occupant
of such premises, or by the person who caused or maintained
such nuisance or other matters, and the board may maintain '
an action in the name of the municipality to recover such ex-
pense, and the same when recovered shall be paid to the treasurer
of the municipality, or if it has no treasurer to its chief fiscal
officer, to be held and used as the funds of the municipality. Whenever

iG. Abatement of nuisances, <A board of health may abate a nuisance of a
pullic character, and exercise every power necessary to this end, but it can-
nct go into the domain of public improvement and erect buildings and con-
struct drains not necessary to the abatement of a nuisance and impose the
burden upon the individual or his property. Haag v. City of Mt. Vernon,
41 App. Div. 366, 58 N. Y. Supp. 581. The law confers upon boards of
health very extensive powers. When acting in good faith, and when the
public health or comfort demands summary procedure on their part, they are
justified in taking possession of, purifying, or even destroying the buildings
or other property of a citizen. Regan v. Fosdick, 19 Misc. 489, 43 N. Y.
Supp. 1102. If the only way in which a nuisance can be abated is by the
destruction of a building, such destruction is authorized. Health Depart-
ment v..Dassori, 21 App. Div. 348, 47 N. Y. Supp. 641.

The abatement of a nuisance and the charge of the expense thereof upon
the owner or occupant causing the nuisance, should be exercised only in ex-
treme cases, and then only upon notice and hearing. People v. Wood, 62
Hun 131, 16 N. Y. Supp. 664.

It seems that whoever abates an alleged nuisance and thus destroys and
injures private property, or interferes with private rights, whether he be a
public officer or a private person, unless he acts under a judgment or
order of the court having jurisdiction, does it at his peril, and when his
act is challenged in the regular judicial tribunals it must appear that the
thing abated was in fact a nuisance. People ex rel. Copeutt v. Board of
Health, 141 N. Y. 1, 35 N. E. 320.

Under the act from which this section was derived it was held that a town
board of health may lawfully make an order for the suppression and removal
of a nuisance consisting of the discharge of sewage on lands of a town by a
city. Bell v. City of Rochester, 58 Hun 602, 11 N. Y. Supp. 305.

Local board may order the removal of pulp wood from a river which is
the source of the water supply. Rept. Atty. Genl. (1905), 362.

Abatement of nuisances on private property.—A resolution of the board of
health that certain ponds are a menace to public health, declaring them to be
nuisances and empowering the health officer to abate the same, is not sufiic-
ient to entitle a contractor employed by the health officer for the purpose of
improving ponds to charge the towns with sums expended in working
up-n pcnds belonging to private owners, who are not notified as re-
quired by statute. People ex rel. Burns v. Painter, 128 App. Div. 69, 112
N. Y. Supp. 473.

Owner to abate nuisance.——Where a quantity of potatoes which a farm ten-
ant was permitted by the owner of the premises to store in the cellar of the
dwelling house became rotten and decayed because one to whom the tenant
orally agreed to sell them refused to take or remove them, it is the duty of
the owner of the premises under this section to abate the nuisance, and the
owner of the premises having an ample remedy at law to determine who was
responsible to him for leaving the potatoes to rot in the cellar, a demurrer
to his application for a writ of mandamus to compel the board of health to
abate the nuisance or to show cause will be sustained. Moose v. Town
Board of Health (1921), 116 Misc. 459, 190 N. Y. Supp. 161.

See Village of Larchmont v. Larchmont Park (1918), 185 App. Div. 330,
173 N. Y. Supp. 32.
456 TOWNS, TOWN MEETINGS AND TOWN OFFICERS,

Public Health Law, § 32.

the suppression or removal of such nuisance or conditiuns detrimental
to health demand the immediate expenditure of money, every such local
board of health shall be authorized to use for such purpose any money
in the hands of the board, or may call on the city council for such
money or it may borrow the same on the credit of the municipality.
All such moneys so expended or borrowed shall be immediately repaid
to the fund or source whence they were received on the recovery of the
same by action or otherwise from the persons responsible for the ex-
penses of suppression or removal. [Public Health Law, § 31, as
amended by L. 1913, ch. 559; B. C. & G. Cons. L., p. 4442.]

§ 8. EXPENSE OF ABATEMENT OF NUISANCES A LIEN UPON THE
PREMISES.

If execution upon a judgment for the recovery of the expense of the
suppression or removal of a nuisance or other matter, pursuant to an
order or regulation of any such local board, is returned wholly or in
part unsatisfied, such judgment, if docketed in the place and manner
required by law to make a judgment of a court of record a lien upon
real property, shall be a first lien upon such premises, having preference
over all other liens and incumbrances whatever. The board may cause such
premises to be sold for a term of time for the payment and satisfaction
of such lien and the expenses of the sale. Notice of such sale shall be
published for twelve weeks successively, at least once in each week, in a
newspaper of the city, village or town, or if no newspaper is published
therein, in the newspaper published nearest to such premises. If the
owner or occupant of the premises, or his agent, is known, a copy of such
notice shall be served upon him, either personally, at least fourteen days
previous to the sale, or by mail at least twenty-cight days prior thereto.
The premises shall be sold to the person offering to take them for the
shortest time, paying the amount unpaid on such judgment and interest
and the expenses of such notice and sale. A certificate of the sale,
signed and acknowledged by the president and secretary of the board,
shall be made and delivered to the purchaser, and may be recorded as a
conveyance of real property, and the purchaser shall thereupon be entitled
to the immediate possession of such premises, and, if occupied, may main-
tain an action or proceeding to recover the possession thereof against the
occupant, as against a tenant of real property holding over after the
expiration of his term; and the cost of any such action or proceeding,
if not paid by the occupant, shall also be a lien upon such premises,
having the same preference as the lien of such judgment, and the right
‘of the purchaser to such premises shall be extended for a longer term,
which shall bear the same proportion to the original term as the amount
TOWN BOARD AS LOCAL BOARD OF HEALTH. 454

Public Health Law, §§ 27, 28.

of such costs bears to the amount paid by the purchaser on such sale.
The term of the purchaser at any such sale shall commence when he shall
have acquired possession of the premises sold. At any time within six
months after recording such certificate, the owner of the premises or any
lessee, mortgagee or incumbrancer thereof, or of any part of the same,
may redeem the premises or any such part from such sale by paying
to the purchaser the amount paid by him on the sale, and all costs and
expenses incurred by him in any action or proceeding to recover possession
with interest at the rate of ten per centum per annum thereon. If
redemption is made by the owner, the right of the purchaser shall be
extinguished; if by a lessee, the amount paid shall be applied as a pay-
ment upon any rent due or which may accrue upon his lease; if by a
mortgagee or an incumbrancer, the amount paid shall be added to his
mortgage, incumbrance or other lien, or if he have more than one to the
oldest, and shall thereafter be a part of such mortgage, lien or incum-
brance and enyorceable as such.‘[Public Health Law, § 32; B. C. &
G. Cons. L., p. 4443.]

§ 9. REMOVAL OF ACCUMULATICN OF WATER TENDING TO MOS-
QUITOES; PAYMENT OF EXPENSE.

Owner to bear all or part of expense of removal of waters wherein
mosquito larvae breed.— Whenever the local board of health of a mu-
nicipality shall determine that any accumulation of water wherein mos-
quito larvee breed, constitutes a nuisance or a danger or injury to life
or health, the owner or owners of the premises on which the breeding
place is located shall bear the expense of its suppression or removal, or
so much thereof as the local board may have determined to be equitable
as hereinafter provided, and for the amount thereof an action may be
maintained in the name of the municipality and the same shall become
a first lien on the premises as provided by sections thirty-one and thirty-
two of this article.** [Public Health Law, § 27, as amended by L. 1913,
ch, 559; B. C. & G. Cons. L., p. 4440.]

Assessing cost on property benefited.— If such local board shall deter-
mine, in its discretion, that, owing to the natural conditions which are
favorable to the breeding of mosquitoes and owing to the benefits
to be secured to the public by the suppression of such conditions,
some part or all of the expense of suppressing or removing a breed-
ing place for mosquitoes should, in equity, be borne by the owners
of the property which will be benefited by such suppression or
removal, the local board shall make application as hereinafter
provided, for the appointment of three commissioners, and the
county court of the county in which are situated the prem-
ises whereon the breeding place is located, or, in case such prem-

 

16-a, See Village of Larchmont v. Larchmont Park (1918), 185 App. Piv.
330, 1738 N. Y. Supp. 32.
_ 1%. As to establishment of commission for extermination of mosquitos
in counties adjacent to the city of New York, having a population of less than
200,000, see Article 21 of Public Health Law, as inserted by L. 1916, ch. 408.
A58 TOWNS, TOWN MELTINGS AND TOWN OFFICERS

Public Health Law, §§ 29, 30.

ises are situated in more than one county, the supreme court, shall there
upon appoint three persons as commissioners to proceed with the work
necessary for the suppression or removal of such breeding place, and to
apportion, assess and collect the cost thereof, as so determined from the
owners of such property benefited. Such appointment, apportionment,
assessment and collection shall be made in the manner provided for the
appointment of commissioners to suppress and remove any such breeding
place by draining the premises on which such breeding place is located by
means of ditches and channels constructed over lands belonging to others
end the owners of the premises to be drained and to apportion, assess and
“Meet the cost thereof from the owners of the property benefited therebv.
Tn any case where, under the provisions of this article commissioners are
to determine what property is benefited and to what extent said property
is benefited by the suppression or removal of any such breeding place,
such commissioners shall not be restricted in their determination to prop-
erty immediately adjoining the premises whereon such breeding place is
located; and, in apportioning the benefit to any property, such commis-
sioners may consider any circumstances by reason whereof any property
will be benefited by the suppression and removal of such breeding place.
[Public Health Law, § 28; B. C. & G. Cons. L., p. 4440.]

Municipality may bear part of expense—If such local board shall
have determined that, owing to the natural conditions which are favorable
to the breeding of mosquitoes and owing to the benefit to be secured to the
public by the suppression of such conditions, a part of tne expense of such
suppression or removal shall be borne by the owner of such premises and
a part thereof by the municipality wherein the premises are situated, such
owner or occupant may proceed to suppress or remove such breeding place
and shall be reimbursed by the municipality for such proportion of the
reasonable expense of such suppression or removal as the local board shall
have determined should be borne by the municipality. For the purpose
of ascertaining the actual cost of such suppression or removal, the local
board or its duly authorized agents may at all times have access to the
premises whereon the work is being carried on; and the owner of the prem-
ises shall furnish to such local board such information as such local
board may deem necessary or desirable for the purpose of ascertaining such
actual cost. If in any such case the owner of the premises shall not, within
a reasonable time, proceed to suppress or remove such breeding place, the
local board may proceed to suppress and remove the same, and for such
proportion of the expense of such suppression and removal as the local
board shall have determined to be equitable, an action may be maintained
against such owner, and the same shall become a first lien upon the prem-
ises as above provided. [Public Health Law, § 29; B. C. & G. Cons.
L., p. 4441.]

Assessing expense upon property benefited.—If such local board shall
TOWN BOARD AS LOCAL BOARD OF HEALTH. 459
Public Eealth Lav, §§ 34, 35.

deem it necessary, in order to suppress or remove any such breeding
place, that any swamp, bog, meadow or other low or wet lands within
the municipality over which said board has jurisdiction, shall be drained
and that it is necessary, in order thereto, that a ditch or ditches or other
channel for the free passage of water should be opened through lands
belonging to a person or persons other than the owners of said swamp, bog,
meadow or other low or wet lands, or that any other act or thing be done
upon or over land belonging to others than the owners of the lands whereon
such breeding place shall be located, such board shall make application for
the appointment of three commissioners to construct and complete such
channels and ditcnes for the free passage of water, or to do such other act
or thing as such local board shall have determined to be necessary upon
such lands in order to suppress or remove such breeding place, and to
apportion, assess and collect the amount of the cost thereof from the owners
of the lands which will be benefited by the suppression and removal of such
breeding place. Such commissioners shall be appointed, and shall proceed,
when appointed, to construct and complete such channels and ditches, or
do such other act or thing as may be necessary, and to apportion, assess
and collect the cost of the same from the owners of the lands benefited
by such suppression or removal, in the manner provided for the appoint-
ment of commissioners for the drainage of any swamp, bog, meadow or
other low or wet land and the apportionment, assessment and collection
of the cost of such drainage, by the drainage law, and this article shall be
construed with the provisions of such drainage law. In case of conflict
the provisions of this article shall be substituted for the provisions of such
drainage law, but such parts of the provisions of the drainage law as are
not necessarily superseded shall apply. [Public health Law, § 30; B. C.
& G. Cons. L., p. 4441.]

§ 10. JURISDICTION OF TOWN BOARD OF HEALTH OVER CITY OR
VILLAGE.

A town board of health shall not have jurisdiction over any city or
incorporated village or part of such city or village in such town, [Pub-
lic Health Law, § 34, as amended by L. 1913, ch. 559; B. C. & G.
Cons. Law, p. 4445.]

+. PETASTS NUM BF ADIGE ORO PEALE, fc Bora
THEREFOR,

All expenses incurred by any local board of health in the performance
of the duties imposed upon it or its members by law shall be a charge
upon the municipality, and shall be audited, levied, collected and paid
in the same manner as the other charges of, or upon, the municipality
460 TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Public Health Law, § 35.

are audited, levied. collected and paid.” The taxable property of any
incorporated village shall not be subject to taxation for maintaining
any town board of health, or for any expenditure authorized by the town
board of health, but the costs and expenditures of the town board shall

 

17. Proper charges against towns as health districts. When a town board of
health incurs expense in the performance of its duties in guarding against the intro-
duction into the town of contagious or infectious diseases, or in providing suitable
places for the sick who cannot otherwise be provided for, such expense is uw legal
claim against the town and should be audited and allowed as are other town ex-
penses. See Matter of Taxpayers of Plattsburgh, 157 N. Y. 86; 51 N. E. 512.
Where poor persons under quarantine are on this account unable to provide for
themselves, their care and support is a proper charge against the health district.
Opinion of Comptroller (1916), 9 State Dept. Rep. 455, 522. Expenses necessarily
incurred in suppressing an epidemic are a charge against the district. Opinion of
Comptroller (1916), 9 State Dept. Rep. 536.

Where a person coming from another state and not having yet gained a residence
here, who is dependent upon his daily labor for the support of himself and his
family, but who has never been a public charge, is stricken with a contagious disease
and quarantined by the health authorities, and being unable to work is supplied
with necessaries for the care and support of himself and family until he recovers,
upon the order or direction of the town board of health to charge the same to the
town, the cost of such necessaries is a proper charge against the town. Matter of
Bellows v. Board of Supervisors, 73 Misc. 566.

The charge by a town constable for burying the dead bodies of animals is a
proper charge against the town, when done pursuant to the direction of the local
board of health. Matter of Town of Hempstead, 36 App. Div. 321, 336; 55 N. Y.
Supp. 345, affd. 100 N. Y. 685.

The expense of building a drain designed to abate a nuisance is a town charge,
the contract therefor being made with the Town Board of Health. Malloy v. Board
of Health, 60 Hun 422, 15 N. Y. Supp. 487.

A wunicipality is liable under a contract by the board of health with a party
to carry into effect its orders and regulations and to inspect and examine premises
of which complaint has been made. Kent v. Village of North Tarrytown, 26 Misc.
86, 56 N. Y. Supp. 885, affd. 50 App. Div. 502, 64 N. Y. Supp. 178.

Expenses of quarantine are a charge upon the municipality. Rept. of Atty. Genl.
(1902) 205, 271.

Expense of treatment of paupers when ill. Rept. of Atty. Genl. (1902) 205.

Expense of caring for smallpox patients should be audited by the town board.
Rept. of Atty. Genl. (1903) 478.

Fee may be charged for preparing certificates regulating the employment of
women and children. Rept. of Atty. Genl. (1897) 163.
TOWN BOARD AS LOCAL BOARD OF HEALTH. 461

Public Health Law, § 36.

be assessed and collected exclusively on the property of the town outside
of any such village. [Public Health Law, § 35, as amended by L. 1913,
ch. 559; B. C. & G. Cons. L., p. 4445.]

§ 12. RELIEF OF INDIGENT INDIANS IN CASE OF EPIDEMIC.

Whenever an epidemic of a contagious or infectious disease shall prevail
among the Indians of any nation, tribe or band in this state, the overseer
of the poor of any town in which the reservation of such nation, tribe or
band, is wholly or partly situated, may in accordance with rules and regu-
lations adopted by the state commissioner of health, cause needed medical
attendance, provisions and maintenance to be furnished to any indigent
Indian residing in the town, who, or a member of whose family, is afflicted
with such disease, while such disease shall continue; and the cost thereof
after being audited as herein provided shall be a state charge. A verified
statement of any expenses incurred under this section shall be transmitted
by the overseer of the poor to the state commissioner of health. Such com-
missioner shall examine into the matter, and if satisfied that such expenses
were properly and necessarily incurred in accordance with the rules and
regulations of the state commissioner of health, shall audit and allow the
same, and when so audited, the amount thereof shall be paid by the state
treasurer on the warrant of the comptroller to such overseer of the poor.
[Public Health Law, § 36; B. C. & G. Cons. L., p. 4446.]

 

Expenses of the boards of health of a village and of a town are not to be com-
bined. Rept. of Atty. Genl. (1894) 359.

Expenses of board of health during an epidemic of smallpox for sanitary police
and for the support and maintenance of different families quarantined during such
epidemic are a charge upon the municipality. Rept. of Atty. Genl. (1908) 512.

Compensation of attending physician and watchers in a smallpox case, having
been tixed by the local board of health, should be audited and paid where it is
shown that the local board exercised its best efforts. Rept. of Atty. Genl. (1908)
525.

Claims for damages arising from the burning or fumigation of school books in a
schoolhouse, by order of the town board of health, following an epidemic of scarlet
fever, are not proper town charges. Rept. of Atty. Genl. (1912), vol. 2, p. 179.

Reimbursement by the state. There is no provision in the statute for the reim-
bursement by the state of individuals or a locality for services rendered for ex-
penses incurred, even under the direction of the state board of health. City of
Geneva v. State of New York, 70 Mise. 206, 128 N.Y. Supp. 170.
462 TOWNS, TOWN MEETINGS AND TOWN OFFICERS,
Public Health Law, § 37.

§ 12 MANDAMUS AGAINST LOCAL BOARD OF HEALTH AT IN.
STANCE OF STATE BOARD OF HEALTH.

The performance of any duty or the doing of any act enjoined, pre-
scribed or required by this article, may be enforced by mandamus
at the instance of the state department of health or its president or secre
tary, or of the local board of health, or of any citizen of full age resident of
the municipality where the duty should be performed or the act done.
[Public Health Law, 37; B. C. & G. Cons. L., p. 4446.]
DUTIES AS TO VITAL STATISTICS. 462a

Public Health Law, § 370.

CHAPTER XXXII-A.
DUTIES OF TOWN OFFICERS IN RESPECT TO VITAL STATISTICS.

(This chapter contains article 20 of the Public Health Law, as inserted
by L. 1913, ch. 619, in effect January 1, 1914.)

Section 1. Registration of births and deaths; duties of state department of
health.
. Duties of state commissioner of health as to vital statistics.
. Registration districts.
Registrar of vital statistics.
. Correction of defective registration.
. Permits for burial or removal of dead bodies.
. Registration of stillborn children.
. Certificate of death.
. Registration of deaths occurring without medical Bien anneS
10. Duties of undertakers.
| 11. Duties of undertakers; interment within the state.
| 12. Interments.
13. Registration of births.
14. Certificate of birth.
15. Registration of name of child subsequent to filing of birth cer-
tificate.
16. Registration of physicians, midwives and undertakers.
17. Registration of persons in institutions.
18. Records to be kept by state commissioner of health.
19. Certified copies of birth certificates evidence of age.
20. District records to be kept by registrar.
21. Fees of registrar for the prompt and correct return and filing of
birth and death certificates.
22. Certified copies of records; state commissioner of health to
furnish.
23. Penalties.
24. Enforcement.
25. Exemptions.

6 00 IG OV CO DO

§ 1. REGISTRATION OF BIRTHS AND DEATHS; DUTIES OF STATE DE-
PARTMENT OF HEALTH.

The state department of health shall have charge of the registration of
births and deaths, shall provide the necessary instructions, forms and blanks
for obtaining and preserving such records, and shall procure the faithful
registration of the same in each primary registration district as constituted
by this article and in the division of vital statistics at the capital of the state.
The said department shall be charged with the uniform and thorough en-
forcement of this article throughout the state and shall from time to time
recommend any additional legislation that may be necessary for this purpose.
The public health council may establish such rules and regulations supple-
mentary to the provisions of this article and not inconsistent therewith, as
it may deem necessary from time to time, in relation to the registration of
births and deaths. Such rules and regulations shall be observed by all au-
thorities upon whom duties are imposed by this article in connection with
the registration of births and deaths1 [Public Health Law, § 370, as
added by L. 1913, ch. 619.]

1. Purpose. The purpose of the vital statistics law is to bring about the
registration of information, not only for the compilation of accurate sta-
tisties, but for recording matters likely to be involved in litigation or contro-
versy thereafter and thus tending to bring about greater accuracy in the ad-
ministration of justice. Any variation from the rule prescribed by statute
Tesults in inaccuracy of record and tends to defeat both purposes of the
statute. Opinion Atty. Genl. (1919), 18 State Dept. Rep. 463.

Public health council has authority under this section to adopt rules re-
garding vital statistics, Under the provisions of this section the public health
council has authority to adopt rules and regulations defining under what
462h TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Public Health Law, §§ 371-373.

§ 2. DUTIES OF STATE COMMISSIONER OF HEALTH AS TO VITAL
STATISTICS.

The state commissioner of health shall have general supervision of the
division of vital statistics which shall be established by the department of
health, and which shall be under the immediate direction of a director to be
appointed by the commissioner, who shall possess such qualifications as may
be prescribed by the public health council. The state commissioner of health
shall detail to the division of vital statistics such clerical and other assistants
as may be necessary to carry into effect the provisions of this act. The
trustees of public buildings shall provide suitable offices in the capitol or
elsewhere for the division of vital statistics, which shall be suitably equipped
for the permanent and safe preservation of all records received or made
under the provisions of this act. [Idem, § 371.] a

§ 3. REGISTRATION DISTRICTS.

The state shall be divided into registration districts as follows: Each city,
each incorporated village, each town, and each state hospital, charitable or
penal institution shall constitute a primary registration district, provided
that the state commissioner of health may combine two or more primary
Tegistration districts or divide one registration district into two or more
primary districts to facilitate registration. When a district is divided into
two or more primary registration districts, the appointment of a registrar
for each shall be made by the same appointing authority which had jurisdic-
tion over the original district, except in the instance of a state hospital,
charitable, or penal institution, the registrar for which shall be the superin-
tendent or person in charge as provided in section three hundred and seventy-
three of this chapter. When two or more primary districts are combined,
the registrar for such combined district shall be appointed at a joint session
of the authorities which heretofore made the appointments of registrars of
the original districts.

Remuneration and expenses of the registrars of districts which have been
divided into two or more primary registration districts shall be paid by the
municipality comprising the original district, except that the registrar of a
state hospital, charitable, or penal institution shall receive no additional
remuneration for acting as registrar.

Remuneration and expenses of registrars of combined districts shall be
paid by the municipalities comprising such districts in proportion as each
would be required to compensate a separate registrar for its own district, ex-
cept that when such combined districts coincide with a consolidated health
district the remuneration and expenses of the registrar shall be paid by the
consolidated health board of such district as provided by section twenty of
chapter three of the public health law. [Idem, § 372, as amended by L.
1917, ch. 321, and L. 1919, ch. 213.]

§ 4. REGISTRAR OF VITAL STATISTICS.

In each primary registration district there shall be a registrar of vital
statistics. Qualifications for registrars of vital statistics hereafter appointed
shall be prescribed by the public health council, and no licensed undertaker
or licensed embalmer, and no person employed in the business of embalming
or undertaking, shall be eligible for appointment as a registrar of vital sta-
tistics, deputy registrar or subregistrar. A local health officer shall be
eligible for appointment as registrar of vital statistics and if so appointed
and if receiving a salary equivalent to not less than fifteen cents per year
per inhabitant of such registration district, he shall serve as registrar of
vital statistics without additional remuneration therefor. In towns and vil-
Jages the registrar or registrars of vital statistics shall be appointed by the
town board and by the village board of trustees respectively; in the cities,
unless otherwise provided by the charter, the registrar or registrars of vital

 

circumstances the records of the division of vital statistics in the state de-
partment of health may be inspected and transcripts from such records or
searches thereof shall be made, where such rules and regulations have for
their aim that the purposes of the law in establishing a division of vital
statistics shall be fully subserved but not subverted, and in particular have
DUTIES AS TO VITAL STATISTICS. 462e
Public Health Law, § 374.

statistics shall be appointed by the mayor. In each primary registration dis-
trict consisting of a state hospital, charitable or penal institution, the regis-
trar shall be the superintendent or person in charge of such institution,
provided, however, that he shall receive no additional remuneration for act-
ing as such registrar. The term of office of a registrar of vital statistics,
unless the charter of the city or village shall provide otherwise, shall be four
years. Each registrar of vital statistics shall hold office until his successor
shall have been appointed and shall have qualified. Any registrar of vital
statistics who in the judgment of the state commissioner of health fails or
neglects to discharge efficiently the duties of his office as set forth in this
article, or to make prompt and complete return of births and deaths as re-
quired thereby, shall be forthwith removed by the state commissioner of
-health, and such other penalties may be imposed as are provided by this
article. Each registrar of vital statistics shall immediately upon his ac-
ceptance of appointment as such, appoint a deputy whose duty it shall be to
act in his stead in case of his absence or inability, ‘and such deputy shall in
writing accept such appointment and be subject to all rules and regulations
governing registrars. When it appears necessary for the convenience of the
people in any rural district, the registrar is authorized, with the approval of
the state commissioner of health, to appoint one or more suitable persons
to act as subregistrars, who shall be authorized to receive birth and death
certificates and to issue burial or removal permits in and for such portions
of the district as may be designated, and each such subregistrar shall note
on each certificate over his signature the date of filing and shall forward
all certificates to the local registrar of the district within three days, and
in all cases before the third day of the following month; provided, however,
that each subregistrar shall be subject to the supervision and control of the
state commissioner of health and may be by him removed for neglect or
failure to perform his duty in accordance with the provisions of this act or
the regulations of the public health council, and shall be subject to the same
penalties for neglect of duty as the local registrar.la [Idem, § 373, as
amended by L. 1917, ch. 321, and L. 1919, ch. 213.]

§ 5. CORRECTION OF DEFECTIVE REGISTRATION.

If defects be found in the registration under the supervision of a regis-
trar of vital statistics, the state commissioner of health shall notify such
registrar that such defects must be corrected within ten days of the date
of the notice. If such defects are not so corrected the state commissioner
of health shall take control of such registration and of the records thereof,
and enforce the rules and regulations in regard thereto and secure a com-
plete registration in such district, and such control shall continue
until the registrar of vital statistics shall satisfy the commissioner
of health that he will make such record and registry complete as re-
quired by law and by the rules and regulations of the public health

 

authority to provide that no inspection, transcript or search of any such
records shall be made without facts being disclosed to indicate that the
application for such inspection, transcript or search is for a legitimate pur-
pose. Opinion of Atty. Genl. (1921), 26 St. Dept. Rep. 514.

Registrars to conform to regulations of public health council. This sec-
tion, by its express terms, renders it obligatory upon the part of all registrars
to conform to any and all regulations which the public health council may
adopt in connection with the registration of births and deaths, and such
regulations as the public health council may adopt relative to the inspection
or certification of transcripts from, or searching of, the records of births
and deaths includes such records in the offices of the local registrars. Opin-
ion of Atty. Genl. (1921), 26 St. Dept. Rep. 514.

1-a. Town Law, § 130, and similar general statutes do not apply to this
section, since the registrar is not a town, village or city officer. Opinion of
Atty. Genl. (1920), 22 St. Dept. Rep. 588.

Terms of office of all registrars began on January 1,1914. Where a term
is interrupted by a vacancy or where an appointee holds over, the registrar
succeeding holds only during the residue ‘of the four years’ term. An ap-
pointing board or officer should not by anticipation fill a vacancy to happen
during the term of office of the succeeding board or officer. Opinion of Atty.
Genl. (1920), 22 St. Dept. Rep. 588.

Public Officers Law, § 30, subd. 7, applies to this section. Opinion Atty.
Genl. (1920), 22 St. Dept. Rep. 588.
462d TOWNS, TOWN MEETINGS AND TOWN OFFICERS,

Public Health Law, §§ 375, 376.

council. The expenses incurred by the state commissioner of health or
his authorized representative while in control of such registration shall
be a charge upon the city, town or village comprising the registration
district. [Idem, § 374.]

§ 6. PERMITS FOR BURIAL OR REMOVAL OF DEAD BODIES,

The body of any person whose death occurs in this state or which
shall be found dead therein shall not be interred, deposited in a vault or
tomb, cremated or otherwise disposed of or removed from or into any
registration district, or be temporarily held pending further disposition
more than seventy-two hours after death, unless a permit for burial,
removal, or other disposition thereof shall have been properly issued by
the registrar of vital statistics of the registration district in which the
death occurred or the body was found. No such burial or removal
permit shall be issued by any registrar until, wherever practicable, a
complete and satisfactory certificate of death has been filed with him
as heretofore provided; provided that when a dead bodv is transported
from outside of the state into a registration district in this state for
burial, the transit or removal permit issued in accordance with the law
and health regulations of the place where the death occurred shall be
given the same force and effect as the burial permit herein provided for.
No registrar of vital statistics shall receive any fee for the issuance of
burial or removal permits under this act other than the compensation
provided in this article.* [Idem, § 375.]

§ 7. REGISTRATION OF STILLBORN CHILDREN.

A stillborn child shall be registered as a birth and also as a death,
and separate certificates of both the birth and the death shall be filed
with the registrar of vital statistics in the usual form and manner, the
certificate of birth to contain in place of the name of the child, the
word “ stillbirth ;” provided, that a certificate of birth and a certificate
of death shall not be required for a child that has not advanced to the
fifth month of uterogestation. The medical certificate of the cause of
death shall be signed by the attending physician, if any, and shall state
the cause of death as “stillborn,” with the cause of the stillbirth, if
known, whether a premature birth, and, if born prematurely, the period
of uterogestation, in months, if known; and a burial or removal permit
of the prescribed form shall be required. Midwives shall not sign
certificates of death for stillborn children; but such cases, and still-
births occurring without attendance of either physician or midwife shall
be treated as deaths without medical attendance, as hereinafter provided
in this article. [Idem, § 376.]

 

la, A person who removes a body, without a permit, from one primary registra-
tion district to another, violates the statute and unless the coroner does so for
the purpose of the inquest, he cannot authorize or direct such removal. Such
illegal removal constitutes a misdemeanor under public health law, section 392,
and the improper orders of a coroner are no justification. Opinion of Atty. Genl.
(1919), 18 State Dept. Rep. 463,
DUTIES AS TO VITAL STATISTICS. 462e
Public Health Law, § 877.
§ 8 CERTIFICATE OF DEATH.

The certificate of death shall contain the following items, which are
hereby declared necessary for the legal, social and sanitary purposes sub-
served by registration records.

1. Place of death, including state, county, township, village or city.
If in a city, the ward, street and house number; if in a hospital or other
institution, the name of the same to be given instead of the street and
house number. If in an industrial camp, the name of the camp to be

riven.
: 2. Full name of decedent. If an unnamed child, the surname pre-
ceded by “ unnamed.”

3. Sex.

4. Color or race—as white, black, mulatto (or other negro de-
scent), Indian, Chinese, Japanese, or other.

5. Conjugal condition — as single, married, widowed or divorced.

6. Date of birth, including the year, month, and day.

7. Age, in years, months and days. If less than one day, the hours
cr minutes.

8. Occupation The occupation to be reported of any person, male
or female, who had any remunerative employment, with the statement
of trade, profession or particular kind of work; general nature of in-
dustry, business or establishment in which engaged or employed.

9. Birthplace; at least state or foreign country, if known.

10. Name of father.

11. Birthplace of father; at least state or foreign country, if known.

12. Maiden name of mother.

18. Birthplace of mother; at least state or foreign country, if known.

14. Signature and address of informant.

15. Official signature of registrar, with the date when certificate was
filed, and registered number.

16. Date of death, year, month and day.

1%. Certification as to medical attendance on decedent, fact and time
of death, time last seen alive, and the cause of death, with contributory,
that is to say, secondary cause of complication, if any, and duration of
each, and whether attributed to dangerous or insanitary conditions of
employment: signature and address of physician or official making the
medical certificate.

18. Length of residence at place of death and in the state, together
with the place where disease was contracted, if not at place of death,
and former or usual residence.

19. Place and date of burial, cremation or removal.

20. Signature and address of undertaker or person in charge of the
corpse.
462f TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Public Health Law, § 378.

The particulars called for by items one to thirteen inclusive shall be
authenticated by the signature of the informant, who may be any com-
petent person acquainted with the facts.

The statement of facts relating to the disposition of the body shall
de signed by the undertaker or person in charge of the corpse.

The medical certificates shall be made and signed by the physician,
if any, last in attendance on the deceased, who shall specify the time in
attendance, the time he last saw the deceased alive and the hour of the
day at which death occurred. He shall further state the cause of death,
so as to show the cause of disease or sequence of causes resulting in the
death, giving first the name of the disease causing death, that is to say,
the primary cause, and the contributory, that is to say, the secondary
cause, if any, and the duration of each. Indefinite terms, denoting only
symptoms of disease or conditions resulting from disease, shall not be
held sufficient for the issuance of a burial or removal permit. Any
certificate stating the cause of death in terms which the state commis-
sioner of health shall have declared indefinite, shall be returned to the
physician or person making the medical certificate for correction and
more definite statement. Causes of death which may be the result of
either diseases or violence shall be explicitly defined; and if from vio-
lence, the means of injury shall be stated, and whether apparently acci-
dental, suicidal, or homicidal. For deaths in hospitals, institutions, or
of non-residents, the physician shall supply the information required
under Item 18, if he is able to do so, and mav state where, in his
opinion, the disease was contracted. [Idem, § 377.]

§ 9. REGISTRATION OF DEATHS OCCURRING WITHOUT MEDICAL AT-
TENDANCE.

In case of any death occurring without medical attendance, it shall
be the duty of the undertaker or other person to whose knowledge the
death may come to notify the local health officer of such death, and when
so notified the health officer shall immediately investigate and certify
as to the cause of death; provided that if the health officer has reason
to believe that the death may have been due to unlawful act or neglect
he shall then refer the case to the coroner or other proper officer for his
investigation and certification. The coroner or other proper officer
whose duty it is to hold an inquest on the body of a deceased person.
and to make the certificate of death required for a burial permit, shall
state in his certificate the name of the disease causing death, or if from
external causes, the means of death; whether probably accidental. sui-
cidal or homicidal; and shall, in any ease, furnish such information
as may be required by the state commissioner of health in order proper!
to classify the death. [Jdem. § 378.]
DUTIES AS TO VITAL STATISTICS. 462g
Public Heaith Law, § 379, 380, 381.

§ 10. DUTIES OF UNDERTAKER,

In each case the undertaker, or person having charge of the corpse,
shall file the certificate of death with the registrar of the district in
which the death occurred and obtain a burial or removal permit prior
to any disposition of the body. He shall obtain the required personal
and statistical particulars from a person qualified to supply them, over
the signature and address of his informant. He shall then present the
certificate to the attending physician, who shall forthwith fill out and
sign the medical certificate of death, or to the health officer or coroner,
for the medical certificate of the cause of death and other particulars
necessary to complete the record for the registration of deaths, as speci-
fied in this article,-if no physician was in attendance upon the deceased.
He shall then state the facts required relative to the date and place of
burial, cremation or removal, over his signature and with his address,
and present the completed cantifieats to the registrar in order to obtain
a permit for burial, removal or other disposition of the body. The
undertaker shall deliver the burial permit to the person in charge of
the place of burial, before interring or otherwise disposing of the
bedy; or shall attach the removal permit to the box containing the
corpse, when shipped by any transportation company; said permit to
accompany the corpse to its destination, where if within the state of
New York, it shall be delivered to the person in charge of the place of
burial. [Idem, § 379.]

§ 11, DUTIES OF UNDERTAKERS; INTERMENT WITHIN THE STATE.
If the interment, or other disposition of the body is to be made within
the state, the wording of the burial or removal permit may be limited
to a statement by the registrar, and over his signature, that a satisfactory
certificate of death, having been filed with him. as required by law,
permission is granted to inter, remove or dispose otherwise of the bodv,
stating the name, age, sex, cause of death. and other necessarv details

upon the form prescribed by the commissioner of health. [Idem. §
280]
§ 12, INTERMENTS.

No person in charge of any premises on which interments or crema-
tions are made shall inter or permit the interment or other disposition
of any body unless it is accompanied by a burial, cremation or transit
permit, as herein provided. Such person shall endorse upon the permit,
the date of interment, or cremation over his signature, and shall return
all permits so endorsed to the registrar of his district within seven days
from the date of interment or cremation. He shall keep a record of all
bodies interred or otherwise disposed of on the premises under his
charce. in each case stating the name of each deceased person, place of
462h TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Public Health Law, §§ 382, 383.

death, date of burial or disposal, and name and address of the under
taker; which record shall at all times be open to official inspection;
provided that the undertaker or person having charge of the corpse,
when burying a body in a cemetery or burial ground having no person
in charge, shall sign the burial or removal permit, giving the date of
burial, and shall write across the face of the permit the words “ No
person in charge,” and file the burial or removal permit within three
days with tne registrar of the district in which the cemetery is located,
[Idem, § 381.]

§ 18. REGISTRATION OF BIRTHS,

The birth of each and every child born in this state shall be registered
within five days after the date of each birth, there shall be filed with the
registrar of the district in which the birth occurred a certificate of such
birth, which certificate shall be upon the form prescribed therefor by
the state commissioner of health. In each case where a physician,
midwife or person acting as midwife, was in attendance upon the birth,
it shall be the duty of such physician, midwife or person acting as
midwife, to file said certificate. In each case where there was no
physician, midwife, or person acting as midwife, in attendance upon
the birth, it shall be the duty of the father or mother of the child, the
householder or owner of the premises where the birth occurred, or the
manager or superintendent of the public or private institution where
the birth occured, each in the order named, within five days after the
date of such birth, to report to the local registrar the fact of such birth.
In such case and in case the physician, midwife or person acting as
midwife in attendance upon the birth is unable, by diligent inquiry, to
obtain any item or items of information required in this article, it shall
then be the duty of the registrar to secure from the person so reporting,
or from any other person having the required knowledge, such informa-
tion as will enable him to prepare the certificate of birth herein required,
and it shall be the duty of the person reporting the birth or who may
be interrogated in relation thereto to answer correctly and to the best
of his knowledge all questions put to him by the registrar which may be
calculated to elicit any information needed to make a complete record
of the birth as contemplated by this article, and it shall be the duty of
the informant as to any statement made in accordance herewith to verify
such statement by the signature when requested so to do by the local
registrar. [Idem, § 382.]

§ 14. CERTIFICATE OF BIRTH.

The certificate of birth shall contain the following items, which are
hereby declared necessary for the legal, social and sanitary purposes
enbserved by registration records.
DUTIES AS TO VITAL STATISTICS. 462i

Public Health Law, § 383.

1. Place of birth, including state, county, town, village or city. Hf
in a city, th. ward, street and house number; if in a hospital or other
institution, the name of the same to be given, instead of the street and
house number.

9. Full name of child. If the child dies without a name, before the
certificate is filed, enter the words “ Died unnamed.” If the living
child has not yet been named at the date of filing certificate of birth,
the space for “ full name of child” is to be left blank, to be filled out
subsequently by a supplemental report, as hereinafter provided.

8, Sex of child.

4. Whether a twin, triplet, or other plural birth. A separate cer-
tificate shall be required for each child in case of plural births,

5. For plural births, number of each child in order of birth.

6. Whether legitimate or illegitimate.

4. Date of birth, including the year, month and day.

8. Full name of father; provided, that.if the child is illegitimate,
the name of the putative father shall not be entered without his con-
sent, but the other particulars relating to the putative father may bo
entered if known, otherwise as “ unknown.”

9. Residence of father.

10. Color or race of father.

11. Age of father at last birthday, in vears.

12. Birthplace of father; at least state or foreign country, if known.

18. Occupation of father. The occupation to be reported if engaged
in any remunerative employment, with the statement of trade, profes-
sion, or particular kind of work; general nature of industry, business
or establishment in which engaged or employed.

14. Maiden name of mother.

15. Residence of mother.

16. Color or race of mother.

17. Age of mother at last birthday, in years.

18. Birthplace of mother; at least state or foreign country, if known.

19. Occupation of mother. The occupation to be reported if engaged
in any remunerative employment, with the statement of trade, profes-
sion, or particular kind of work; general nature of industry, business
or establishment in which engaged or employed.

20. Number of children born to this mother, including present birth.

21. Number of children of this mother living.

22. The certification of attending physician or midwife as to attend-
ance at birth, including statement of year, month, day and hour of
birth, and whether the child was born alive or stillborn. This certifica-
tion shall be signed by the attending physician or midwife, with date
462] TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Public Health Law, §§ 384, 385, 386.

of signature and address; if there was no physician or midwife in at-
tendance, then by the father or mother of the child, householder, owner
of the premises, manager or superintendent of public or private institu-
tion where the birth occurred, or other competent person, whose duty it
shall be to notify the local registrar of such birth.

23, Exact date of filing in office of local registrar, attested by his
official signature, and registered number of birth, as hereinaftcr pro
vided. [Idem, § 383.]

§ 15. REGISTRATION OF NAME OF CHILD SUBSEQUENT TO FILING OF
BIRTH CERTIFICATE.

When any certificate of birth of a living child is presented without
the statement of the given name, the local registrar shall make out and
deliver to the parents of the child a special blank for the supplemental
report of the given name of the child, which shall be filed out as directed,
and returned to the local registrar as soon as the child shall have been
named. [Idem, § 384.]

§ 16. REGISTRATION OF PHYSICIANS, MIDWIVES, AND UNDERTAKERS,

Every physician, midwife and undertaker shall, on or before the day
on which this article takes effect, register his or her name, address and
occupation with the registrar of the district in which he or she resides,
and shall so register in any district in which he or she may hereatter
establish a residence; and shall thereupon be supplied by the registrar
with a copy of this article, together with such rules and regulations a3
may be prepared by the public health council relative to its enforcement.
Within thirty days after the close of each calendar year each registrar
shall make a return to the state commissioner of health of all physi-
cians, midwives, or undertakers who have been registered in his district
during the whole or any part of the preceding calendar year; provided,
that no fee or other compensation shall be charged by registrars to physi-
cians, midwives or undertakers for registering their names under this
section or making returns thereof to the state commissioner of health.
(Idem, § 385.]

§ 17. REGISTRATION OF PERSONS IN INSTITUTIONS,

All superintendents or managers or other persons in charge of hos-
pitals, almshouses, lying-in or other institutions, public or private. to
which persons resort for treatment of diseases or confinement. or to
which persons are committed bv n-ocess of law. shall make a record of
all the personal and statistical particulars relative to the inmates in their
irctitutions when this act takes effect: which are required in the forms
DUTIES AS TO VITAL STATISTICS. 462k

Public Health Law, § 387.

of the certificate provided for by this article as directed by the state
commissioner of health; and thereafter such record shall be by them
made for all future inmates at the time of their admittance. In the
case of persons admitted or committed for treatment of disease, the
physician in charge shall specify for entry in the record, the nature of
the disease, and where, in his opinion, it was contracted. The personal
particulars and information required by this section shall be obtained
from the individual himself if it is practicable to do so; and when they
cannot be so obtained, they shall be obtained in as complete a manner as
possible from relatives, friends, or other persons acquainted with the,
facts. [Idem, § 386.]

§ 18, RECORDS TO BE KEPT BY STATE COMMISSIONER OF HEALTHY. ©

The state commissioner of health shall prepare, print, and supp:y to
all registrars all blanks and forms used in registering, recording and
preserving the retums, or in otherwise carrying out the purposes of this
article, and shall prepare and issue such detailed instructions, not 1"-
consistent with the regulations established by the public health council,
as may be required to prepare the uniform observance of its pro-
vision and the maintenance of a perfect system of registration; and
no other blanks shall be used than those supplied by the state commis-
sioner of health. He shall carefully examine the certificates received
monthly from the registrars, and if any such are incomplete or un-
satisfactory he shall require such further information to be supplied
as may be necessary to make the record complete and satisfactory.
All physisians, midwives, undertakers, or informants, and all other
persons having knowledge of the facts, are hereby required to supply,
upon a form provided by the state commissioner of health or upon
the original certificate, such information as they may possess regarding
any birth or death upon demand of the state commissioner of health,
in person, by mail, or through the registrar; provided, that no cer-
tificate of birth or death, after its acceptance for registration by the
registrar, and no other record made in pursuance of this article, shall
be altered or changed in any respect otherwise than by amendments
properly dated, signed and witnessed. The state commissioner of
health shall arrange, and permanently preserve the certificates in a
systematic manner, and shall prepare and maintain a comprehensive
and continuous typewritten or printed index of all births and

-deaths registered ; said index to be arranged alphabetically, in the case
of deaths, by the names of decedents, and in the case of births by the
names of fathers or mothers if born out of wedlock. He shall inform
all registrars what diseases are to be considered infectious, contagious,
or communicable and dangerous to the public health, as decided
4621 TOWNS, TOWN MEETINGS AND TOWN OFFICERS,

Public Health Law, §§ 388, 389.

by. the public health council in order that when deaths occur from such
diseases proper precautions may be taken to prevent their spread,
[Idem, § 387, as amended by L. 1922, ch. 415.]

®
§ 19. CERTIFIED COPIES OF BIRTH CERTIFICATES EVIDENCE OF AGE,

Certified copies of birth certificates, or of statements based on duly
registered certificates of birth shall be accepted by public school author-
ities in this state as prima facie evidence of age of children, registering
for school attendance, and by the legally constituted authorities as
prima facie proof of age for the issuance of employment certificates,
provided that when it is not possible to secure such certified copy of
birth registration certificate for any child, the school authorities may
accept as secondary proof of age any of the kinds of evidence specified
in the labor law. [Idem, § 388.]

§ 20. DISTRICT RECORDS TO BE KEPT BY REGISTRAR,

Each registrar shall supply blank forms of certificates to such persons
as require them. Each registrar shall carefully examine each certificate
of birth or death when presented for record in order to ascertain whether
or not it has been made out in accordance with the provisions of this
act and the instructions of the state commissioner of health; and if any
certificate of death is incomplete or unsatisfactory, it shall be his duty
to call attention to the defects in the return, and to withhold the burial
or removal permit until such defects are corrected. All certificates,
eithcr of birth or death, shall be written legibly, in durable black ink,
and no certificate shall be held to be complete and correct that does not
supply all of the items of information called for therein, or satisfactorily
account for their omission. If the certificate of death is properly exe-
cuted and complete, he shall then issue a burial or removal permit to
the undertaker; provided, that in case the death occurred from some
disease which is held by the public health council to be infectious, con-
tagious, or communicable and dangerous to the public health, no permit
for the removal or other disposition of the body shall be issued by the
registrar, except to an undertaker licensed under section two hundred
and ninety-five of the public health law, under such conditions as may
be prescribed by the state public health council. If a certificate of birth
is incomolete. the local registrar shall immediatelv notifv the informant.
and require him to supplv the missing items of information if thev can
he chtained. He shall number consecutively the certificates of birth and’
death. in two separate scrics, beginning with the number one for the
first. birth and the first death in each calendar year. and sign his name
as regictrar jn attest of the date of filing in his office. He shall also
; DUTIES AS TO VITAL STATISTICS. 462m
Public Health Law, §§ 390, 391.

make a complete and accurate copy of each birth and each death certificate
registered by hin in a record book supplied by the state commissioner of
health, to be preserved permanently in his office as the local record, in such
manner as directed by the commissioner of health. Within ten days after
receiving the certificate of any legitimate birth he shall furnish to the parents
or guardian of the child a certificate of registration, to be made out on a form
which shall be furnished by the state commissioner of health; except that the
issuance of such certificate of registration may be postponed until the child’s
given name is also registered; and such certificate of registration shall be ac-
cepted by public authorities in this state for the purposes indicated in section
three hundred and eighty-eight of this chapter in the same manner as certi-
fied copies of birth certificates; he shall also make a notation on his copy of
the original birth certificate indicating the date of issuance of such certifi-
cate of registration. He shall, on the fifth day of each month, transmit to
the state commissioner of health all original certificates registered by him
for the preceding month. If no births or no deaths occurred in any month,
he shall on the fifth day of the following month, report that fact to the state
commissioner of health on a card provided for such purpose. [Idem, § 389,
as amended by L. 1919, ch. 213, and L. 1922, ch. 415.]

§ 21, FEES OF REGISTRAR FOR THE PROMPT AND CORRECT RETURN AND
FILING OF BIRTH AND DEATH CERTIFICATES.

Except as hereinbefore otherwise provided each registrar and each physician
and each midwife shall be paid the sum of twenty-five cents for each birth certi-
ficate properly and completely made out and registered and each death certificate
properly and completely made out in accordance with the international list of
causes of death and returned and filed with the registrar and correctly recorded
and promptly returned by him to the state commissioner of health, as required
by this article. And in case no births or no deaths were registered during any
month, the local registrar shal] report to that effect. Each local registrar shall
be paid the sum of two dollars for a monthly report to be transmitted on the
fifth day of the following month to the state commissioner of health on, such form
as may be provided or required by the commissioner, All amounts payable to the
local registrar under the provisions of this article shall be paid by the municipality
comprising the registration district, upon certification by the state commissioner
of health and all amounts payable.to physicians shall be certified to by the local
registrar annually and paid to said physicians by said municipality. The state
commissioner of health shall annually certify ‘to the municipality the number of
births and deaths properly registered, with the name of the local registrar and
the amount due him at the rate fixed herein. In addition thereto the local registrar
shall be paid a fee of twenty-five cents for each burial, removal or transit permit
issued by him. [Idem, § 390, as added by L. 1913, ch. 619, and amended by L.
1915, ch. 385, L. 1917, ch. 111, and L. 1919, ch. 213.]

§ 22. CERTIFIED COPIES OF RECORDS; STATE COMMISSIONER OF HEALTH
TO FURNISH.

The state commissioner of health may, upon request, supply to any applicant
a certified copy of the record of any birth or death registered under the provisions
of this act, for the making and certification of which he shall be entitled to a
fee of one dollar, to be paid by the applicant; provided that the United States
census bureau may obtain without expense to the state, transcripts of certi-
fied copies of births and deaths without payment of the fee here prescribed,
for use solely as statistical data. Any copy of the record of w birth or death,
when properly certified by the state commissioner of health, shall be prima
facie evidence in all courts and places of the facts therein stated. For
any search of the files and records when no certified copy is made, the
state commissioner of health shall be entitled to a fee of fifty cents for
462n TOWNS, TOWN MEETINGS AND TOWN OFFICERS.
Public Health Law, § 391.

each hour or fractional part of an hour of time of search, said fee to
be paid by the applicant.

If at any time after the birth, or within one year of the death of any
person within this state, a certified copy of the official record of said
birth or death with the information required to be registered by this
act, be necessary for legal, judicial, or other proper purposes, and,
after search by the state commissioner of health, it should appear
that no such certificate of birth or death was made and filed as pro-
vided by this act, then the person asking for such certified copy may
file a sworn statement, to be accompanied by the affidavits of two
competent witnesses, as to the fact of birth or death, with as many
particulars of the standard certificate supplied as possible, and the
state commissioner of health shall file it and issue a certified copy
thereof to said applicant without fee and without charge for time of
search; and the state: commissioner of health shall immediately re-
quire the physician, or midwife, who, being in attendance upon a birth
since the date of the taking effect of this act, failed or neglected to
file a certificate thereof or the undertaker, or other person who having
charge of the interment or removal of the body of a deceased person
since the date of the taking effect of this act, failed or neglected to
file the certificate of death, if he or she be Jiving. to obtain and file
at once with the local registrar such certificate in as complete form
as the lapse of time will permit, together with a fee of five dollars,
which shall be transmitted to the state commissioner of health and
accounted for as a fee for certified copies. With said certificate shall
be filed the sworn statements and affidavits hereinabove mentioned.
The delinquent physician, midwife, undertaker, or other person may
also, in the diseretion of the state commissioner of health be prose-
cuted as required by this article, and shall be prosecuted without bar
from the statute of limitations, if he or she shall neglect or fail to
file promptly the certificate required by this section as a substitute
for the certificate not filed as required by this article, and to pay the
filing fee provided for in this section.

The state commissioner of health shall keep a true and correct ac-
count of all fees by him received under this section, and turn the same

over to the state treasurer.1¢ [Idem, § 391, as amended by L. 1921,
ch. 398.]

1c. Furnishing of transcripts of records mandatory. Under this section
and Public Officers Law, § 66, the duty to furnish a transcript of the records
of the division of vital statistics in the state department of health or search
of said records is a mandatory duty imposed upon the commissioner of
health where the application for such transcript or search is made by a per-
son lawfully entitled thereto. The records from which a transcript may be
lawfully required or a search made include all the records now under the
DUTIES AS TO VITAL STATISTICS. 4620
Public Health Law, §§ 392, 393.
§ 23. PENALTIES.

Any person, who for himself or as an officer, agent, or employee
of any other person, or of any corporation or partnership, shall inter,
eremate, or otherwise finally dispose of the dead body of a human
being, or permit the same to be done, or shall remove said body from
the primary registration district in which the death occurred or the
body was found, without the authority of a burial or removal permit
issued by the local registrar of the district in which the death occurred,
or in which the body was found; or shall refuse or fail to furnish cor-
rectly any information in his possession, or shall furnish false informa-
tion affecting any certificate or record, required by this article; or
shall wilfully alter, otherwise than is provided by this article, or shall
falsify any certificate of birth or death, or any record established by
this article; or being required by this article to fill out a certificate
of birth or death and file the same with the local registrar, or deliver
it, upon request, to any person charged with the duty of filing the
same, shall fail, neglect or refuse to perform such duty in the manner
required by this article; or being a registrar, deputy registrar, or sub-
registrar, shall fail, neglect or refuse to perform his duty as required
by this article and by the instructions and direction of the state com-
missioner of health thereunder, shall be deemed guilty of a misde-
meanor and upon conviction thereof shall for the first offense be fined
not less than five dollars nor more than fifty dollars and for each
subsequent offense not less than ten dollars, or more than one hundred
dollars or be imprisoned in the county jail not more than sixty days,
or be both fined and imprisoned in the discretion of the court. [Idem,
§ 392, as amended by L. 1916, ch. 58.]

§ 24. ENFORCEMENT.

Each registrar is hereby charged with the strict and thorough en-
forcement of the provisions of this article, in his registration district,
under the supervision and direction of the state commissioner of health.

dominion and control and supervision of the state department of health, as
records of vital statistics, filed or recorded since the enactment of L. 1880,
ch. 322, whereby the state board of health first was constituted and provision
made in said chapter for the establishment at the capital of the state of a
central bureau of vital statistics. Opinion Atty. Genl. (1921), 26 St. Dept.
Rep, 514.

Copies of records of births and deaths; fees. The fees for certified copies
of a record of any birth or death or for any search of the files or records
where no certified copy is made, specified in this section, are properly
chargeable for certified copies of any record or for searches of all of the
records and files of the division of vital statistics in the state department of
health, collected and recorded since the enactment of L. 1880, ch. 322.
Opinion of Atty. Genl. (1921), 26 St. Dept. Rep. 514.
462p TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Public Health Law, § 394.

He shall make an immediate report to the state commissioner of health
of any violation of any provision of this article coming to his knowl-
edge, by observation or upon complaint of any person, or otherwise,
The state commissioner of health is hereby charged with the
thorough and efficient execution of the provisions of this article in
every part of the state, and is hereby granted supervisory power over
registrars, deputy registrars, and subregistrars, to the end that all of
its requirements shall be uniformly complied with. The state com-
missioner of health, either personally or by an accredited representa-
tive, shall have authority to investigate cases of irregularity or viola-
tion of law, and all registrars shall aid him, upon request, in such
investigations. When he shall deem it necessary, he shall report cases
of violation of any of the provisions of this article to the district at-
torney of the county, with a statement of the facts and circumstances;
and when any such case is reported to him by the state commissioner
of health, the prosecuting attorney shall forthwith initiate and prompt-
ly follow up the necessary court proceedings against the person or
corporation responsible for the alleged violation of law. Upon request
of the state commissioner of health, the attorney-general shall assist
in the enforcement of the provisions of this article. [Idem, § 393.]

§ 25. EXEMPTIONS,

Nothing in this article shall be construed to affect, alter, or repeal
laws in force applying to the city of New York.? [Idem, § 394.]

 

2. L. 1913, ch. 619, § 3. Section 5 of such chapter as amended by chapter
557, Laws of 1909, and section 22 of such chapter as amended by chapter

407, Laws of 1909, chapter 639 of the Laws of 1910 and chapter 279 of
Laws of 1911, and section 23 of such chapter as amended by chapter 407,
Laws of 1909, are hereby repealed.
PARKS AND PLAY GROUNDS. 462q

Town Law, §§ 342, 343.

CHAPTER XXXII-B.

PARKS AND PLAY GROUNDS IN CERTAIN TOWNS.

(This chapter contains article 17-a of the Town Law, as inserted by L. 1914,
ch. 382, in effect April 16, 1914.)

Section 1, Town boards in certain counties may establish public parks and play
grounds.

. Special meetings of the taxpayers.

. Purchase and improvement of parks and play grounds.

. Issue and sale of town bonds,

. Cost of maintenance.

- Rules and regulations.

. Acquisition of property by condemnation.

“1 Op © DD

§ 1. TOWN BOARDS IN CERTAIN COUNTIES MAY ESTABLISH
PUBLIC PARKS AND PLAY GROUNDS.

When authorized by a special meeting of the taxpayers therein, as
hereinafter provided, the town board of any town may, from time to
time, acquire one or more parcels of land in such town outside an incor-
porated village for the purpose of establishing thereon one or more pub-
lic parks or play grounds, and upon like authority may equip the same
with suitable buildings, structures and apparatus, and may thereafter
maintain and improve the same at the expense of the town. [Town
Law, § 342, as inserted by L. 1914, ch. 382, and amended by L. 1915,
ch, 300. ]

§ 2, SPECIAL MEETINGS OF THE TAXPAYERS.

Before the town board of any such town shall acquire land for such
purposes, except by dedivation, it shall, by resolution, call a special
meeting of the taxpayers of such town for the purpose of voting upon
one or more propositions to be submitted thereat, which propositions
shall be in substantially the following form: “Shall the town board of
the town Of .cisecwess COUMES WL ee ai eiweee be authorized to pur-
chase one or more parcels of land in such town for the purpose of
establishing and maintaining thereon one or more public parks or play

 

1. In towns in counties exceeding two hundred square miles in extent, adjacent
to cities of the first class, the town boards may establish park districts, in which
parks may be laid out and maintained at the expense of the owners of real estate
m such district. See Town Law, §§ 349-349j, as added by L. 1916, ch. 54.
462r TOWNS, TOWN MEETINGS AND TOWN OFFICERS,

Town Law, § 348.

grounds and to pay therefor a sum not exceeding .......... . dollars
and shall the amount to be expended therefor, including principal and
interest of any bonds which may be issued therefor, pursuant to the
provisions of article seventeen-a of the town law, be paid in such instal-
ments as the town board shall determine, and shall there be raised
annually, by tax, upon the taxable property in such town, a sum suff-
cient to pay interest and principal of such bonds, as the same shall
become due?”

“Shall the town board of the town of ........ county of ........
be authorized to expend in equipping one or more public parks or play
grounds in such town with suitable buildings, structures and apparatus
a sum not exceeding ........... dollars, and shall the amount to be
expended therefor, including principal and interest.of any bonds which
may be issued therefor, pursuant to the provisions of article seventeen-a
of the town law be paid in such instalments as the town board shall de-
termine, and shall there be raised annually, by tax, upon the taxable
property in such town, a sum sufficient to pay interest and principal of
such bonds, as the same shall become due?”

Notice of the time, place and purpose of the meeting and of the
proposition or propositions to be voted upon thereat shall be posted
conspicuously in at leasst six of the most public places in such town at
least ten days before the meeting, and be published once in each week
for two consecutive weeks immediately prior to the week in which such
special meeting is to be held in a newspaper published in such town,
or if no newspaper be published in such town, then in such newspaper
published in the county as the town board shall designate. Such notice
shall specify the number of hours, not less than five, between sunrise
and nine o’clock in the afternoon, during which the polls will be open.
The town clerk shall, at the expense of such town, provide the necessary
ballot boxes and shall also prepare and have at such special meeting a
sufficient number of written or printed ballots, on which the voters may
vote either for or against the proposition or propositions. The meeting
shall be conducted according to the provisions of section forty-nine of
the town law, and the presiding officers thereat shall sign and file within
three days thereafter in the office of the clerk of such town a certificate
showing the total number of votes cast at such meeting and the number
of votes cast for and against the proposition or propositions, respectively,
together with a list of the persons voting thereat. The qualifications of
voters at sucn special town meeting shall be the qualifications specified
in sections fifty-three and fifty-five of the town law. [Idem, § 343.]
PARKS AND PLAY GROUNDS. 462s
Town Law, §§ 344, 345, 346, 347.
§ 3 PURCHASE AND IMPROVEMENT OF PARKS AND PLAY GROUNDS.

In case the majority of all votes lawfully cast upon any such propo-
sition at such special meeting shall be in the affirmative, the town board
of any such town shall be authorized to purchase in the name of such
town such parcel or parcels of land therein as it may select for either or
both of such purposes at a cost not exceeding in the aggregate the
amount specified in such proposition, and to expend in equipping such
parcel or parcels of land with suitable buildings, structures and ap-
paratus an amount not exceeding in the aggregate the amount specified
in such proposition, and to enter into suitable contracts therefor. [Idem,
§ 344.]

§ 4. ISSUE AND SALE OF TOWN BONDS.

In case the amount authorized to be expended for any such purpose
by a special meeting of taxpayers as herein provided, is, in the opinion
of the town board of any such town, greater than should be collected
in one instalment, the town board may issue bonds of such town under
its seal, signed by the supervisor and attested by the town clerk. Such
bonds shall be a charge upon such town and shall become due within
thirty years from the date of issue, in such instalments as the town
board may determine. They shall be sold on sealed proposals or at
public auction on notice published in a newspaper printed in such town,
if any, and posted in at least six public places in such town, at least ten
days before the sale, to the person who will purchase the same at par
at the lowest rate of interest, not exceeding six per centum per annum.
The bonds shall be a charge upon the town and shall not exceed in thie
aggregate the amount authorized at such special taxpayers’ meeting ur
meetings. The proceeds of such bonds shall be paid to the supervisor
and by him expended under the direction of the town board, for the
purposes for which such bonds were sold. [Idem, § 345.]

§ 5. COST OF MAINTENANCE.

The town board is authorized to provide for the care and maintenance
of such parks and play grounds and for the improvement thereof, and
the cost thereof shall be a town charge. [Idem, § 346.]

§ 6. RULES AND REGULATIONS.

Such parks and play grounds shall be under the care and control of
the town board, and the town board may adopt, and, from time to time,
462t TOWNS, TOWN MEETINGS AND TOWN OFFICERS,

Town Law, § 348.
repeal, modify or amend, rules and regulations for the use of such
public parks and play grounds. [Idem, § 347.]

§ 7. ACQUISITION OF PROPERTY BY CONDEMNATION,

If the town board are unable to agree with the owners for the pur.
chase of real property for the establishment of public parks and play
grounds, the town may acquire the same by condemnation. [Idem,
§ 348.]
POLICE. 462u
Town Law, §§ 319, 319a, 319b.

CHAPTER XXXILC.
POLICE.

(This chapter contains article 14a of the Town Law, as inserted
by L. 1920, ch. 233.)

Section 1. Town board may establish police districts.:
2. Police commissioners.

8. Police force; appointment and salaries.
4, Discipline.

5. Expense of maintenance; property liable.
6. Estimate of expense; levy of tax.

7. Temporary loans.

§ 1. TOWN BOARD MAY ESTABLISH POLICE DISTRICTS.

The town board of a town in a county adjoining a city of the first
class may establish and define the bounds of a police district or police
districts in such town outside of any incorporated village. [Town
Law, § 319, added by L. 1920, ch. 233.]

§ 2. POLICE COMMISSIONERS.

When a police district has been so established, such board shall ap-

point and at pleasure may remove three police commissioners, who shall
serve without compensation. Each commissioner before entering on

the duties of his office shall take the constitutional oath of office and

execute to the town and file with the town clerk an official undertak-
ing in such sum and with such sureties as the town board shall direct.

The town board may at any time require any such commissioner to
file a new official undertaaking for such sum and with such sureties
as the board shall approve. [Town Law, § 319-a, added by L. 1920,
eh. 233.]

§ 3. POLICE FORCE; APPOINTMENT AND SALARIES,

The police commissioners shall appoint a chief of police and such
number of policemen as may be needed and fix the amount and times
of payment of their compensation. No person shall be eligible to
appointment on the police force, who shall not be a citizen of the
United States, who shall have been convicted of a felony or who shall
be unable to read or write understandingly the English language.
Members of the police force shall have all the powers of peace officers.
462v TOWNS, TOWN MEETINGS AND TOWN OFFICERS.

Town Law, §§ 319c, 319d, 319e.

[Town Law, § 319-b, added by L. 1920, ch. 233, and amended by L.
1921, ch. 46.]

§ 4, DISCIPLINE.

Any member of the police force found guilty upon charges, after
notice and an opportunity to be heard in his defense, of neglect or
dereliction in the performance of official duty, violation of rules and
regulations, disobedience of orders, absence without leave or other
breach of discipline, incompetency to perform official duty or an act
or delinquiney seriously affecting his general character or fitness for
office, may be punished by the police commissioners by reprimand,
forfeiture and the withholding of salary or compensation for a speci-
fied time not exceeding twenty days, suspension from duty for a speci-
fied time not exceeding twenty days without pay or by dismissal from
the force. The dismissal of a member of the force, however, shall be
subject to review by certiorari. [Town Law, § 319-c, added by L.
1920, ch. 233.]

§ 5. EXPENSE OF MAINTENANCE; PROPERTY LIABLE.

The expenses of maintaining such police force shall annually, in the
same manner as other expenses of the town are raised, be assessed
upon and collected only from the taxable property within such police
district. In all cases where a farm or lot or the real property of a cor-
poration or joint stock association is divided by the boundary line of
a police district, it shall be the duty of the town assessors after fixing
the valuation of the whole of such real property as now required by
law, to determine what proportion of such valuation is on account of
that part of such real property lying within the limits of the police
district and shall designate the same upon their assessment roll. The
valuation of the real property lying within such police district so fixed
and determined by the assessors shall be the valuation on which the
police tax shall be levied. The money collected for the maintenance
of the police force shall be kept as a separate fund and be paid to the
police commissioners by the supervisor of the town to be used by them
in defraying the expenses of such maintenance. [Town Law, § 319-d,
added by L. 1920, ch. 233.]

§ 6. ESTIMATE OF EXPENSE; LEVY OF TAX.

The police commissioners shall annually, on the Thursday preceding
the annual meeting of the board of supervisors, present to the town
board a statement of the balance of the police fund which will be
unexpended at the end of the year and an estimate of the amount which
it will be necessary to raise for the payment of the expenses of main-
taining such police force for the following year and the town board
shall apportion such amount upon the taxable property liable therefor
and transmit such statement and apportionment to the board of suner-
visors at its next annual meeting. The board of sunervisors shall
levy such sums against the property liable and shall state the amount
of tax in a separate column in the annual tax roll under the name of
‘police tax.’’ [Town Law, § 319-e, added by L. 1920, ch. 233.]
POLICE. 462w
Town Law, § 319f.

§ 7. TEMPORARY LOANS.

If a police district or police districts’ be established pursuant to this
article after the adoption of the annual estimate, the town board shall
have power to borrow money for the establishment and maintenance
of such district or districts, including the compensation of police offi-
cers, until the adoption of the next annual estimate. The town board
may provide for the issue of certificates of indebtedness or revenue
bonds to be signed by the supervisor and countersigned by the town
clerk for such purpose. Such certificates or bonds, together with the
interest thereon to date of maturity, shall be paid out of moneys re-
ceived on account of taxes and revenues applicable to such purpose
and shall in no case be made to run for more than sixteen months.
[Town Law, § 319-f, added by L. 1921, ch. 46.]
462x TOWNS, TOWN MEETINGS AND TOWN OFFICERS,

Town Law, §§ 306, 307.

CHAPTER XXNII-D.

(This chapter contains article 13a of the Town Law, as inserted
. by L. 1921, ch. 534:)

DRAINAGE OF AGRICULTURAL LANDS.

Section 1. Petition.
2. Hearing; determination; damages.
8. Review of determination.
4. Payment of damages; entry.

§ 1. PETITION.

The owner of any swamp, meadow or other low or wet agricultural
land in this state, who may desire to drain the same in order to in-
crease their productivity or otherwise render them more available for
agricultural purposes, may petition the town board of the town in
which such land is located for permission to erect or construct a drain
or drains, ditch or ditches, dyke or dykes for the free passage of water.
Such petition shall set forth the name and address of the petitioner,
a map or description of the land which is to be drained and also of
the land upon which such drain, ditches or dykes are to be erected
and shall set forth the name and residence of all owners of the land
to be occupied and shall be duly verified. [Town Law, § 306, added
by L. 1921, ch. 534.]

§ 2. HEARING; DETERMINATION; DAMAGES.

Upon receipt of such petition, the town board shall appoint a time
and place when and where it will hold a hearing for the purpose of
determining the necessity for such drainage and the oceupancy of such
lands and assess the damage and benefits resulting therefrom. The
town board shall cause copies of such petition, to which shall be at-
tached a notice of the time and place of such hearing, to be served
personally or by registered mail upon all owners of land specified in
the petition. If any such owner is an infant such petition and notice
shall be served on his general guardian or person with whom he re-
sides; if a lunatic, idiot or habitual drunkard, upon his committce or
person with whom he resides. Such notice shall be served as herein
provided at least fifteen days prior to the date of such hearing. The
town board shall view the premises affected and at the time and place
appointed hear all parties interested and such witnesses as they may
produce. Such hearing may be adjourned from time to time at the
discretion of such board. At the close of such hearing, if the town
board or a majority thereof shall determine that the occupancy of
such lands or any part thereof is necessary for the drainage of the
DRAINAGE OF AGRICULTURE LANDS. 462y

Town Law, §§ 308, 309.

petitioner, it may make a determination specifying in detail the drains,
ditches or dykes to be erected or constructed and assess the damages
and fix the compensation to be made therefor, but no such determina-
tion shall permit any such construction at a cost to exceed three hun-
dred and fifty dollars. In fixing the amount of such compensation,
the board may make allowance or deduction for benefits received by
any such lot owner. Such determination shall be signed by the town
board, or a majority thereof, and copies thereof, duly certified, served
personally or by registered mail upon each lot owner affected.
A certified copy of such determination shall also be filed in the office
of the clerk of the county in which such lands are located.
The town board may, after a hearing therefor, order the reconstruc-
tion or repair of an existing ditch, drain or dyke, and shall specify
in detail the manner in which and to what extent the same shall be
reconstructed or repaired and shall assess the damages and make
compensation therefor. The hearing for the reconstruction or repair
of such ditch, drain or dyke shall be held and the determination made
in the same manner and upon like notice as for the original construc-

tion of a ditch, drain or dyke. [Town Law, § 307, added by L. 1921,
ch. 5384, and amended by L. 1922, ch. 211.]

§ 8. REVIEW OF DETERMINATION.

Within thirty days after the determination of the town board shall
have been served and filed as herein provided, the owner or applicant
may apply to the supreme court for an order confirming, vacating
or modifying such determination as to it shall seem just and legal.
The court may confirm, vacate or modify such determination and if it
vacate the same, may remit the proceedings to the town board for
another hearing. If no such application be made within the time
herein provided, the determination shall be deemed final. The matter
shall be brought on, upon the service of papers on the adverse party,
according to the usual practice of the court in actions and special
proceedings therein, and the decision of the supreme court shall be
final except that a new hearing may be had as herein provided. [Town
Law, § 308, added by L. 1921, ch. 534.]

§ 4. PAYMENT OF DAMAGES; ENTRY.

Whenever a determination granting any such petition shall become
final, by the failure to institute proceedings to review the determina-
tion of the town board, or upon such review, the petitioner shall pay
the damages assessed and may thereafter enter upon such lands and
construct such drains, ditches and dykes as permitted in the determina-
tion. [Town Law, § 309, added by L. 1921, ch. 534.]
PART V.

TAXATION,

CHAPTER XXXIIL

TAXABLE PROPERTY AND PLACE OF TAXATION.

EXPLANATORY NOTE.

Law Relating to Taxation.

In this state the entire subject of taxation, so far as it is controlled
by statute, is covered by the provisions of the Tax Law, constituting
chapter sixty of the Consolidated Laws, as enacted by chapter 62 of the
laws of 1909. The powers and duties of town and county officers rela-
tive to the levy, assessment and collection of taxes are prescribed by
this law. In this part of the manual is included the several sections
of the Tax Law which concern such officers.

Taxable Property.

All property, real and personal, is taxable unless expressly exempt
by law. Where real property is situated in a town and county it is
taxable in that town and county for both town and county purposes.
So where the owner of personal property has a residence in a town and
county, such property is taxable for town and county purposes in that
town and county. For taxation, as well as for other purposes, personal
property is deemed situated in the place where the owner has his resi-
dence. The Tax Law defines both real and personal property (See § 2).
Assessors should consult such definitions in determining the character of
taxable property.

Exemptions from Taxation.

Section 4 of the Tax Law declares what property is exempt from
' 463
464 TAXATION.

Explanatory note.

taxation. There must be an express statutory provision declaring that
property shall not be taxed, to bring such property within an exemption.
The legislative intent to exempt must be clear and unambiguous. The
assessors are to determine whether certain property is entitled to exemp-
tion in accordance with the law relative to exemptions and the facts
bringing such property within such exemptions. They act judicially in
making such determination, and are not personally liable for any mis-
take which they may make.

Taxation of Non-residents of State.

Non-residents of the state, doing business in the state, are taxed on
the capital invested in such business within the state. Such capital
is taxed as personal property, at the place where the business is car-
ried on. This applies to individuals, partnerships and corporations.
It is also provided that personal property of non-residents of the
state, not forming a part of invested capital, but having an actual situs
in the state, is to be taxed in the tax district where it is situated.

Place of Taxation of Personal Property.

This subject is governed by § 8 of the Tax Law. Personal property
of residents of the state is taxable where the owner, or the person having
the control of it, has his residence. The question of residence is one
of fact to be determined in each case by the particular circumstances.
A number of rules applicable to this question has been laid down by
the courts and the cases are cited in the notes under the proper section
in this chapter. The residence at the time the assessment is made must
govern. If after the assessment is made the owner of the personal
property taxed leaves the town, he is not released from the tax. The
time of assessment referred to in the law relates to the time when the
assessors dcsignate the taxpayers and the amount of their taxable prop-
erty. This must be July 1 in each year, as the assessors are required to
complete their preparatory inquiries in May and June.

Place of Taxation of Real Property.

Real property is taxable in the town where it is situated. When
owned by a resident it is, of course, taxable to him in his own name.
If owned by a non-resident and is occupied by a resident, it may be
assessed to either the owner or occupant. Ifthe land is unoccupied, or
TAXABLE PROPERTY AND PLACE OF TAXATION. 465
Tax Law, § 2.

the occupant resides outside of the town, the land must be assessed as
non-resident as provided in § 30 of the Tax Law. (See next chapter,
Pp. 527.)

Section 10 of the Tax Law (post, p. 497), provides for cases where
land is divided by town line.

Property of Corporations.

The real property of a corporation must be assessed where it is
situated. For instance, the right of way, tracks, yards and stations of a
railroad company, located in a town are to be assessed in that town.
The personal property of a corporation is to be assessed in the town or
city where the corporation has its principal place of business. The value
of the capital stock of a corporation must be determined, and after de-
ducting real property which has been assessed, the balance is the assess-
able value of the personal property.

 

Section 1. Definitions.
2. Property liable to taxation.
3. Exemption from taxation.
3a. Exemption of new buildings from local taxation.
4, Exemption of intangible personal] property.
6. Exemption of property belonging to a plank road or turnpike cor-
poration.
7. Exemption of property of soldiers’ monument association.
7a. Exemption and reduction in assessment of lands planted with trees
for forestry purposes. ;
7b. Exemption and reduction in assessment of lands maintained as
- wood lots and to encourage the growth of trees for such pur-
poses.
8. Taxation of lands sold or leased by the state.
9. No deduction allowed for indebtedness fraudulently contracted.
10. Where property of non-residents is taxable.
11. Place of taxation of personal property of residents; state board of
tax commissioners may determine place.
12. Place of taxation of real property.
18. Taxation of real property divided by line of tax district; when
owner may elect in which district property shall be taxed.
14. Corporations; place of taxation; personal property to be taxed where
principal office is located; taxation of toll bridges and turnpike.
15. Taxation of corporate stock of corporations.
16. Stock holders of bank taxable on shares,
17. Place of taxation of individual bank capital.
18. Report of exempt property by assessors.

§ 1. DEFINITIONS.

“Tax commission” as used in this chapter means the state tax com-
mission and “ tax department” means the state tax department. [Tax
Law, § 2, subd. 1, added by L. 1916, ch. 232.]

“ Assessor” as used in this chapter shall be deemed to include any
elected or appointed officer of any civil or political subdivision of the
state, charged by law with the duty of assessing property for taxation
466 TAXATION.

Tax Law, § 2.

for state, county or local purposes. [Tax Law, § 2, subd. 3, added by
L. 1916, ch. 323.]

“‘Tax district’? as used in this chapter (the Tax Law) means unless
otherwise herein provided a city or town of this state. [Tax Law, § 2,
sub. 4, as amended by L. 1916, ch. 323; B. C. & G. Cons. L., p. 5799.]

‘‘County treasurer’’ includes any officer performing the duties de-
volving upon such officer under whatever name. [Idem, § 2, sub. 5,
as amended by L. 1916, ch. 323.]

1. Tax district. A town is the only political subdivision within the mean-
ing of tax district as defined in the above section which is within the scope
of this work. It is not the purpose of this work to treat of taxation in any
other sense than as connected with the powers and duties of town and county
officers.

A village incorporated under the village law, whose board of assessors has
no power to assess property for state and county taxes, is not a tax district.
People ex rel. Champlin v. Gray, 185 N. Y. 196, reversing 109 App. Div. 116,
95 N. Y. Supp. 825.

2. Rule for determining what is real or personal property. To deter-
mine the character of property for the purpose of taxation principles no less
rigid than those which would be applied to a question of fixtures arising be-
tween a vendor and vendee must be considered. In the case of People ex rel.
Starch Co. v. Waldron, 26 App. Div. 527, 50 N. Y. Supp. 523, it was held
that machinery standing on brick or wooden foundations, fastened with
bolts, capable of being removed without material injury to the buildings in
which they are, and which was placed in the building by the owner thereof, a
manufacturing corporation, for the purpose of conducting a manufacturing
business, to which machinery was essential, and which had been purchased
together with the land by a corporation conducting a similar business
thereon, must be deemed to have been permanently annexed to the land for
the purposes of business, and as such to be taxable as “land” within the
meaning of the term as defined in the above section.

In the case of Herkimer County Light and Power Co. v. Johnson, 37 App.
Div. 257, 55 N. Y. Supp. 924, apparatus, including an engine and boiler, used
by the corporation in the manufacture and supply of gas, and engines, boilers
and apparatus used by such corporation in generating electricity, all of which
are known as trade fixtures, are situated in buildings standing upon land
leased by the corporation, and can be removed from the buildings without
injury thereto, were held to be assessable for state and county taxes as real
property in the tax district where the property is situated. But gas mains
or pipes laid by a gas company under the streets of a city are not real estate
for the purpose of taxation. People ex rel. Citizens’ Gas Light Co. v. Board
of Assessors, 39 N. Y. 81. The latter case was decided prior to the amend-
ment of the above section by the act of 1897, known as the Special Franchise
Tax Act. Under the law as it now stands, gas mains laid in public streets
are to be taxed as real property. See, also, People ex rel. Equitable Gas
Light Co. v. Barker, 81 Hun 22, 30 N. Y. Supp. 586.

Interest in real estate subject to taxation. The term lands as used in re-
lation to taxation, includes such an interest in real estate as will protect the
erection thereon, and the possession of buildings and fixtures, whether such
buildings and fixtures are held in connection with the ownership of a fee
in the soil or not. People ex rel. Dunkirk, etc., R. R. Co. v. Cassity, 46 N.
Y. 46. See, also, People ex rel. Muller v. Assessors, 93 N. Y. 308; Trustees
of Elmira v. Dunn, 22 Barb. 402.

Right to draw water from river is realty—The right of the Niagara Falls
Hydraulic Power Company to draw water from Niagara river for the purpose
of its business, as defined by ch. 968, laws of 1896, is not a franchise, but an
incorporeal hereditament appurtenant to its land, and the value of which
should be considered in assessing the lind. People ex rel. Niagara Fa''s
ees Co. v. Smith, 70 Ann. Div. 543, 75 N. Y. Supp. 1100; affirmed 1757".

. Wo.
TAXABLE PROPERTY AND PLACE OF TAXATION. 467
Tax Law, § 2.

The terms ‘‘land,’’ ‘‘real estate’ and ‘‘real property,’’?? as used in
this chapter, include the land itself above and under water, all build-
ings and other articles and structures, substructures and superstruc-
tures, erected upon, under or above, or affixed to the same; all wharves
and piers, including the value of the right to collect wharfage, cranage
or dockage thereon;? all bridges, all telegraph lines, wires, poles and
appurtenances ; all supports and inclosures for electrical conductors and
other appurtenances upon, above and under ground; all surface, under-
ground or elevated railroads,* including the value of all franchises,
rights or permission to construct, maintain or operate the same in, un-
der, above, on or through, streets, highways or public places; all rail-
road structures, substructures and superstructures, tracks and the iron
thereon; branches, switches and other fixtures permitted or authorized
to be made, laid or placed in, upon, above or under any public or private
road, street or ground; all mains, pipes and tanks laid or placed in,
upon, above or under any public or private street or place for con-
ducting steam, heat, water, oil, electricity or any property, substance

Safe deposit faults as real property. Vaults owned by a safe deposit com-
pany, situated in buildings owned by other parties and constructed in such
a manner as to be part of the realty, constitute an interest in real property,
and should be treated as such for the purpose of taxation. People ex rel.
Knickerbocker Safe Deposit Co. v. Wells, 181 N. Y. 245, affirming 99 App.
Div, 455, 91 N. Y. Supp. 283.

Municipal property without corporation.—An engine or pump and a pipe
line maintained by a city as a part of its water works system outside of the
corporate limits of a city, while not subject to a special franchise tax, is
subject to taxation as real property. People ex rel. City of Auburn v. Dur-
yea, 59 App. Div. 488, 69 N. Y. Supp. 388; People ex rel. City of Rochester
v. De Witt, 59 App. Div. 493, 69 N. Y. Supp. 366; affirmed 167 N. Y. 575.

Machinery and equipment of manufacturing and mercantile corporations.
People ex rel. General Chemical Co. v. Cantor (1920), 228 N. Y. 506, 126
N. E. 919, affg. 188 App. Div. 959, 176 N. Y. Supp. 916.

Oil wells on leased land are assessable as real property against the lessee,
a foreign corporation. Matter of Hazelwood Oil Co. (1920), 195 App. Div 23.

8. Wharves and piers have always been held to be taxable as real property.
See Smith v. Mayor, 68 N. Y. 552; People ex rel. Smith v. Commissioners of
Taxes, 10 Hun 207. Under the old revised statutes the right to receive
wharfage was held to be neither real nor personal property and nct subject
to taxation. Boreel v. Mayor, etc., of New York, 4 Sup. Ct. (2 Sandf.) 552.
But the above definition of real estate includes the value of the right to col-
lect wharfage and supersedes in effect the decision in such case.

4. Elevated railroads.—The foundations, columns and superstructure of
an elevated railway are within the statutory definition of land, and are liable
to taxation as realty. People ex rel. N. Y. Elevated R. Co. v. Commissioners
of Taxes, 82 N. Y. 459. It makes no difference in respect to taxation, whe-
ther the rail is laid upon the surface of the ground or placed upon pillars or
carried through a covered way or tunnel. In either case the structures
adopted to-sustain it, or facilitate and protect its use, are, within the mean-
ing of the law, land and taxable as such. People ex rel. New York & Harlem
R. R. Co. v. Comrs. of Taxes, 101 N. Y. 322, reversing 23 Hun 687.

Tunnels under streets.—Tunnels of concrete construction under certain
streets in the city of New York used for the conveyance of coal and ashes,
and tunnels for the intake and discharge of water from a power house that
are merely extensions thereof, are taxable as real estate ard not as special
franchises. People ex rel. Interborough R. T. Co. v. Purdy (1914), 25 Mise.
581, 148 N. Y. Supp. 1074.
468 TAXATION,

Tax Law, § 2.

or product capable of transportation or conveyance therein or that is
protected thereby, including the value of all franchises, rights, authority
or permission to contsruct, maintain or operate, in, under, above, or
through, any streets, highways or public places, any mains, pipes, tanks,
conduits or wires, with their appurtenances, for conducting water,
steam, heat, light, power, gas, oil or other substance, or electricity for
telegraphic, telephonic or other purposes; all trees and underwood grow-
ing upon land, and all mines, minerals, quarries and fossils in and under
the same, except mines belonging to the state. A franchise, right,
authority or permission specified in this subdivision shall for the purpose
of taxation be known as a “special franchise.” *° A special franchise
shall be deemed to include the value of the tangible property of a person,
copartnership, association or corporation situated in, upon under or
above any street, highway, public place or public waters in connection
with the special franchise. The tangible property so included shall’
be taxed as a part of the special franchise. No property of a municipal
corporation shall be subject to a special franchise tax. [Idem, § 2,
sub, 6, as amended by L. 1916, ch. 323.]

5. Special franchise. Subdivision 2 of the above section of the former Tax
Law was amended by L. 1899, ch. 712, for the purpose of including as real prop-
erty all franchises granted by municipalities for the use of streets, highways and
other public places. All rights, privileges or easements which a person, copart-
nership or corporatiori may have in such streets, highways and public places by
virtue of a grant from public authorities, made pursuant to law, are to be sub-
jected to taxation. Among the more common franchises thus to be taxed are
those of street railroads, electric light and gas companies, telegraph and telephone
companies stringing their wires in streets and highways, water companies, pipe
line companies and steam surface railroad companies operating their railroads or
any part thereof or across these streets or highways. The taxation of these fran-
chises as real property seems to be based upon the fact that the right to use public
streets and highways for the transaction of business of a public or quasi-public
nature, is a property right similar in its character to an easement granted by a
private person for the use of private property; and that since an easement granted
by a private person is subject to taxation, a similar easement granted by a munici-
pality should also be subject to taxation.

The franchise prior to the modification of the definition of real property by the
franchise tax act was generally held not taxable. See People ex rel. Panama R. R.
Co. v. Commissioner of Taxes, 104 N. Y. 240.

A special franchise is “a right to do something in the public highway, which,
except for the grant, would be a trespass.” People ex rel. Metropoiitan St. Ry.
Co. v. Tax Comrs., 174 N. Y. 417 (1903), affirmed 199 U. 8. 1, in which case the
constitutionality of the special franchise tax law was upheld. See also, for defini-
tion of special franchise, People ex rel. Interborough R. T. Co. v. Tax Comrs., 126
App. Div. 610, 110 N. Y. Supp. 577; People ex rel. Union Rental Co. v. Byrnes
(1918), 223 N. Y. 668, affg. 179 App. Div. 961,

A special franchise involves a grant from competent public authority, and there
ean be no franchise if an act is done within the boundaries of a street “ by virtue
of the ownership of the soil or of some :nterest therein”’ Hence, where a rail-
road company, after a city opens a street and builds a bridge over its tracks acquir-
ing a mere easement for street purposes, acquires additional lands adjacent to its
original right of way, and uses it for switch tracks underneath the bridge, it should
not be assessed as a special franchise. So, also, additional lands acquired by a
railroad company across streets laid out subsequent and adjacent to its right of
way, upon which no structures have been erected, are not assessable as a special
franchise. People ex rel. N. Y. Cent. & H. R. R. R. Co. v. Woodbury (1915), 167
App. Div. 428, 153 N. Y. Supp. 537.

The special franchise tax act does not affect the liability of a city to taxation
upon its real property situated without its corporate limits. An engine or pump
and a pipe line maintained by the city as a part of its water works system out-

 
TAXABLE PROPERTY AND PLACE OF TAXATION. 469

Tax Law, § 2.

The term special franchise shall not be deemed to include the crossing
of a street, highway or public'place outside the limits of a city or incor-
porated village where such crossing is less than two hundred and fifty
feet in length, unless such crossing be the continuation of an occupancy
of another street, highway or public place.** The subdivision shall not
apply to any elevated railroad. [Idem, § 2, sub. 7, as amended by L.
1916, ch. 323. ]

The terms “ personal estate’ and “ personal property,’ as used in
this chapter, include chattels, money, things in action, debts due from
solvent debtors,°® whether on account, contract, note, bond or mortgage;
debts and obligations for the payment of money due or owing to persons
residing within this state, however secured or wherever such securities
shall be held; debts due by inhabitants of this state to persons not re-
siding within the United States for the purchase of any real estate;

 

side of the corporate limits of the city is not subject to a special franchise tax,
although it may be subject to taxation as other real property. Poeple ex rel. City
of Auburn v. Duryea, 59 App. Div. 488; 69 N. Y. Supp. 388.

In the case of People ex rel. Retsof Mining Co. v. Priest, 75 App. Div. 181; 77
N. Y. Supp. 382, affd. 175 N. Y. 511, it was held that a corporation which lays a
line of pipe in the town highways, the fee of which is owned by the abutting owners,
with the consent and grant of such abutting owners, but without any express grant
from the city or other public body, coes not enjoy a special franchise as that term
is defined in the above subdivision. The court in this case said, “ ‘The franchise’
here defined does not mean the right to exercise corporate functions, but the right
to use the public streets, highways or public places, either as an individual or a
corporation. The right to so use the public streets, highways or public places is a
property right, and it is because such property has value that the right exists to
assess 1t. ‘The franchise right, authority, or permission’ here mentioned must
mean some special privilege derived from some governmental body or some political
body having authority to grant the property right sought to be taxed. It is this
species of property, intangible in its nature, which the law was enacted to reach.

All tangible property, real and personal, was assessed before the passage of this
law. The tangible property which by this law is added to the intangible was pre-
sumably before assessed, and there was no apparent difficulty in reaching its value
under the general provisions governing local taxation. The purpose of the law, I
think, is obvious. Its purpose was to reach and assess those rights in streets,
highways and public places which once belonged to the public at large or to political
divisions of the state and which had been granted for the term or in perpetuity to
individual or corporate bodies.” ,

A viaduct erected, maintained and used by a street railway company, which has
an insurable interest in it, is a part of the company’s tangible property and may be
assessed as such. People ex rel. B. L. & E. T. Co. v. Tax Commissioners, 77 Misc.
235, 136 N. Y. Supp. 474, affd. 156 App. Div. 466.

Where a railroad company incorporated under a special statute (L. 1866, ch.
763) was authorized by such statute to construct, maintain and operate its railroad
over certain navigable rivers and streams, subject to the public easement of navi-
gation, upon condition tuat i$ should construct and maintain in a manner prescribed
by the statute “substantial bridges with suitable draws, and viaducts with proper
openings, Over or across the same, whenever the same may be necessary,” and the
tailroad company has erected and maintains bridges and trestles for its railroad
to pass over such navigable waters, such bridges and trestles are tangible property
situated above public waters, and the franchise or right of the company to cross
such waters and to construct and maintain its bridges and trestles over the same is
4 special franchise liable to assessment and taxation, People ex rel. Harlem River
and Port Chester R. R. Co. v. State Board of Tax Commissioners (1915), 215 N. Y¥.
507, affg. 165 App. Div. 609.

“This section limits special franchises to two classes of rights in public highways
and places; first, railroad rights; and’ second, rights for the conveying of gas,
water, electricity and the like. While bridges are specifically included in the
470 TAXATION.

Tax Law, § 2.

public stocks, stocks in moneyed corporations,** and such portion of the
capital of incorporated companies liable to taxation on their capital,

 

definition of land, the section does not mention franchises, rights or permis-
sions to construct, maintain or operate bridges even though across public
streets or public places. Bridges not im connection with special franchises,
that is, not in connection with rights to operate a railroad within the limits
of public streets, highways or public places, or with rights to convey gas,
electricity, etc., within such limits, are within the definition of land but not
within the definition of a special franchise. A bridge may be a part of a
special franchise but the fundamental special franchise, that is, the right,
authority or permission specified in the subdivision, must first be present,
The bridge must be in connection with such special franchise,’’ People ex rel,
Niagara Falls International Bridge Co. v. State Tax Commission (1918), 103
Misc. 648, 170 N. Y. Supp. 997.

The permission of an electric light and power company to have and operate
its cable upon a bridge constitutes a right which, in connection with its physi-
cal property, may be assessed as a special franchise. Matter of N. Y. & Queens
Elec. Light & Power Co. v. Delaney (1920), 229 N. Y. 184, 128 N. E. 161,
revg. 190 App. Div. 934, 179 N. Y. Supp. 938.

Special franchise; crossing canal lands.—The canal lands owned by the
state are a ‘“‘public place” within the meaning of subd. 3 of this section, and
the crossing of said lands by the tracks of a railroad is a special franchise
and taxable as such. People ex rel. Rochester, Syracuse and Eastern R. R.
Co. v. Moroney (1918), 224 N. Y. 114, revg. 176 App. Div. 901.

State and federal franchises of telegraph company.—A telegraph company
may have special rights or franchises under the Post Roads Act and also
special franchises under grants by the state. The federal franchises are not
subject to taxation, but in the absence of a finding or evidence that the fed-
eral franchises are included in an assessment, it will be held valid as an
assessment of special franchises granted by the state. People ex rel. Postal
Tel. & Cable Co. v. State Board of Tax Commissioners (1918), 224 N. ¥.
167, affg. 181 App. Div. 777.

5a, A highway bridge, forming part of an overhead crossing of a railway,
if less than 250 feet in length, cannot be deemed a special franchise. Rept.
of Atty. Genl., Oct. 28, 1910.

A railroad which maintains a bridge which crosses the Erie canal and an
abutting highway at an angle other than a right angle for a distance of more
than 250 feet is liable for a special franchise tax thereon. People ex rel. N.
Y.C. & H.R. R. R. Co. v. Woodbury, 140 App. Div. 848, 125 N. Y. Supp. 728.

See, also, People v. State Tax Commission (1921), 116 Misc. 774, 191 N.
Y. Supp. 464.

Overhead bridges, which are entirely unnecessary for the operation of a
railroad, but which are erected and maintained for the benefit of the com-
munity, are not tangible property taxable as a part of the special franchise.
People ex rel. N. Y. C. & H. R. R. R. Co. v. Tax Commissioners (1917), 179
App. Div. 421, 166 N. Y. Supp. 26. See, also, People ex rel. N. Y. C. & H.
R. R. R. Co. (1917), 179 App. Div. 489, 165 N. Y. Supp. 970.

Though the state may tax the right to maintain that portion of the Sus-
pension Bridge across the Niagara river at Niagara Falls which extends from
the easterly margin of the river to the international boundary line, such right
is not within this section as a special franchise, but the bridge should be
TAXABLE PORPERTY AND PLACE OF TAXATION, ATL

Tax Law, § 2.

as shall not be invested in real estate. [Idem, § 2, sub. 8, as amended
by L. 1916, ch. 323.]

 

assessed as “land.” People ex rel. Niagara Falls International Bridge Co. v.
State.Tax Commission (1918), 103 Misc. 648, 170 N. Y. Supp. 997.

5b. Debt due from solvent debtor; balance on war contract.—The unpaid
balance of a debt which was due and owing from the United States, on Oc-
tober 1, 1919, on certain war contract fully performed, is not exempt from
taxation under U. S. Rev. Stats. § 3701, but is an asset subject to municipal
taxation under this subdivision for the year 1920, as a debt due from a sol-
vent debtor. People ex rel. Astoria L. H. & P. Co. v. Cantor (1921), 114
Mise. 419, 187 N. Y. Supp. 467.

5c. The words “stocks in moneyed corporations,” as used in subdivision 5,
include shares of stock in state and national banks. Atty. Genl. Opin. (1915),
5 State Dept. Rep. 471.

6. Debts due to persons in state, The clause including in the definition of
personal property debts and obligations due or owing to persons residing
within the state re-enacts Laws 1888, ch. 392.

The rule of exemption of personal estate situated in another state, though
owned by a resident of this state, applies only to property capable of having
an actual situs away from the owner, or his domicile. Choses in action or
securities in the hands of an agent out of the state for collection or in-
vestment, are so situated as to be regarded as having foreign and not do-
mestic situs. People ex rel. Hoyt v. Comrs. of Taxes, 23 N. Y. 224.

Property of a resident in the form of loans in other states, the securities
for which are in the hands of agents there, is not taxable in this state.
People ex rel. Jefferson v. Gardner, 51 Barb. 352.

Under the above section debts due to residents of this state, however
secured, and wherever such securities may be held, are deemed personal
property and subject to taxation. Before the enactment of L. 18£3, ch. 392,
from which a portion of the above subdivision was derived, it was held that
mortgage securities on lands in another state held permanently by an agent
in such state for the owner who resided in this state and which mortgage
Was subject to taxation in the state where the agent resided was held not
to be personal property and subject to taxation in this state. People ex
rel. Jefferson v. Smith, 88 N. Y. 576.

In construing the provision of the act of 1883 declaring that, ‘‘All debts
and obligations for the payment of money due or owing to persons residing
within this state . . .- wherever said securities shall be held shall be
deemed, for the purpose of taxation, personal property within this state, and
shall be assessed as such to the owner or owners,” it was held that it referred
to debts or obligations which are solely due or owing to residents of this
state; but that it did not include as owners persons who are trustees only;
the court said: ‘‘Generally a man is not spoken of as an owner of property,
who merely holds it as a trustee and ina representative capacity. He hzs5 the
legal title, and he is to be assessed for it when it is within the state, but this
is by express provision of statute and such provision is not mentioned in the

case of a trustee whose trust property is outside of the state and not.in his
Possession.” People ex rel. Darrow v. Coleman, 119 N. Y. 137.

If a trustee residing in this state is in Possession of the securities, he can
be assessed for them as a trustee in possession even though there be other
trustees who are non-residents. In the case last cited it appeared that the
real acting trustee lived in New Jersey and that he had possession and con-
trol of the securities consisting of bonds and mortgages upon lands in other
states, and that the beneficiaries were all non-residents. The tax commis-
Bloners contended’ that because two of the trustees were residents of this

state, although neither of them had possession or control of the property and
479 TAXATION,
Tax Law, § 3.
§ 2. PROPERTY LIABLE TO TAXATION.

All real property within this state, and all personal property situated
or owned within this state, is taxable unless exempt from taxation by
law.? [Tax Law, § 3; B. C. & G. Cons. L., p. 8281.]

 

none of it was in this state, that the trust estate was taxable in this state.
The Court of Appeals emphatically overruled this contention.

Debts due to non-residents by residents. The clause including in the
definition of personal property debts due by inhabitants of this state to
persons not residing within the United States is derived from Laws 1851,
ch. 371.

Assessment of city bonds. The assessment and collection, by a city, of a
tax on its own bonds in the hands of a taxpayer in the same manner as on
other like property, is proper. People ex rel. Manhattan Fire Ins. Co. v.
Comrs. of Taxes, 76 N. Y. 64.

Patented article. A tax may be imposed on a patented article, although
the patent itself is not taxable. Webber v. Virginia, 103 U. S. 344, 347.

Award in condemnation proceedings is taxable to owner, although appeal
is pending. People ex rel. Ryan v. Halstead, 26 App. Div. 316, 49 N. Y.
Supp. 685, affd. 159 N. Y. 533.

A seat in the New York Stock Exchange has been held by the Court of
Appeals to be property. Powell v. Waldron, 89 N. Y. 328; Belton v. Hatch,
109 N. Y. 593. But such a membership is not personal property and tax-
able under the laws of this state. People ex rel. Lemmon v. Feitner, 167
N. Y. 1; People ex rel. Slade v. Comrs. of Taxes, 53 Misc. 336, 104 N. Y.
Supp. 756.

Switches and conduits connecting the street feed mains of an electric sup-
ply company in a city with the customer’s premises are personal property
and are not assessable to the corporation as real estate. People ex rel. N.
Y. Edison Co. v. Feitner, 99 App. Div. 274, 90 N. Y. Supp. 904; affd. 181
N.Y. 549.

7. Statute, how construed. It is the general purpose of statutes relating
to assessments and taxation, to secure an assessment upon all property, real
and personal, at its actual value, and they must be construed and enforced
with this purpose constantly in view. An intent to exempt any property
or any portion of the value of any property, from taxation must not be pre-
sumed but found plainly expressed in the statutes. People ex rel. Railroad
Co. v. Commissioners of Taxes, 95 N. Y. 554.

In construing this section the court said in the case of City of Rochester
v. Coe, 25 App. Div. 300, 305; 49 N. Y. Supp. 52: ‘The language used is
broad and comprehensive and, presumptively, is intended to reach all the real
property and personal property found in any tax district of the state except
such as is exempted from taxation by statutory law. We think the words
‘unless exempted from taxation by law’ were used with the intention of
limiting the exemptions to such as should be enumerated by statutory law.”

Real and personal property of aliens situated in this state is subject to
taxation by the city or county where it is located. People ex rel. Cook v.
Dunckel, 69 Misc. 361, 125 N. Y. Supp. 385.

The servient estate cannot be taxed upon the basis of the easement which
has been made appurtenant to the dominant estate. People ex rel. Topping
v. Purdy, 143 App. Div. 389, 128 N. Y. Supp. 569.

Ownership of property. The addition, by the revision of 1896, of the
words ‘‘or owned’ did not change the rule in People ex rel. Hoyt v. Comrs.
of Taxes, 23 N. Y. 224, that personal property of a resident having a situs
out of the state is not taxable. “It is possible, however, that it was intended
to apply to a species of property that has no actual situs, such as credits or
the like; but a chattel or property having a definite situs is not owned in
TAXABLE PROPERTY AND PLACE OF TAXATION, 473
Tax Law, § 4.
§ 3. EXEMPTION FROM TAXATION.

The following property shall be exempt from taxation :§

this state when it is actually located in a foreign state.’’ People ex rel.
Orinoka Mills v. Barker, 84 App. Div. 469, 83 N. Y. Supp. 33.

If a farm belonging to the wife is assessed to the husband who resides
with her upon it, the assessment is void for want of jurisdiction. Hallock
v. Rumsey, 22 Hun 89. But see Powell v. Jenkins, 14 Misc. 83.

The land itself may be taxed to one person as owner of the fee and the
structures thereon or the minerals or quarries therein may be taxed to an-
other person. Smith v. Mayor, etc., of New York, 68 N. Y. 552. A person
or corporation owning fixtures, such as the foundations, columns and super-
structure of an elevated railway, may be assessed therefor, although the
fee of the land to which they are affixed is in another; and this is so with-
out regard to the question whether that other is a natural person, or a
municipality, or whether the land is or is not liable to taxation. People
ex rel. N. Y. Elevated R. R. Co. v. Commissioners of Taxes, 82 N. Y. 459.

Parties may by contract so regulate their respective interests in real
estate that one may be the owner of the buildings and the other of the land.
In such case each interest may be assessed to its owner, and the assess-
ment of the buildings as real estate is proper. So where a lessee is the
owner of the buildings upon the demised premises the fact that the lessor
has by the lease a right of re-entry in case of non-performance by the lessee,
does not affect his present right in the buildings, or the right to assess them
to him. People ex rel. Muller v. Board of Assessors, 93 N. Y. 308.

In the case of People ex rel. International Navigation Co. v. Barker, 153
N. Y. 98, 47 N. E. 46, it appeared that a shed was erected by the lessee
upon a pier leased from the city of New York, under a lease requiring its
erection and providing that it is to become the property of the city on the
expiration of the lease. It was held that such shed became the property of
the city on being erected and affixed to the realty, and was therefore not
taxable as property of the lessee.

Statutes providing the procedure for assessing and collecting taxes for
the sale of lands for their non-payment, and for the redemption of lands
sold for unpaid taxes are applicable to infants and persons under dis-
abilities unless they are excepted from the operation of the act. Levy v.
Neuman, 130 N. Y. 11; 28 N. E. 660.

Valuation of suburban real estate. In ascertaining the actual value of real
estate in a purely agricultural community, which is in a state of transfer
to suburban conditions, some consideration should be taken of the present
availability of the land for other than farm purposes. People ex rel. Town
of Hempstead v. Tax Commissioners (1914), 168 App. Div. 803, 149 N. Y.
Supp. 239.

Mortgages executed before recording act of 1906 are subject to local tax.
Cassavoy v. Dimond, 121 App. Div. 559, 106 N. Y. Supp. 277.

Mcrtzage on real property not to be deducted from assessment. Paddell
v. City of New York, 50 Misc. 422, 100 N. Y. Supp. 581; affd. 114 App.
Div. 911, 100 N. Y. Supp. 11338, affd. 188 N. Y. 544.

Taxation of personal property within the state. The old rule of mobilia
sequuntur personam has been modified so that the owner of personal property
may be taxed on its account at it situs although not his residence or
domicile; but the mere presence of notes within a state which is not the
residence or domicile of the owner does not bring the debts of which they
are the written evidence within the taxing jurisdiction of the state. Buck
v. Beach, 206 U. S. 392.
ATA TAXATION.

Tax Law, § 4.

Property of the United States. [Tax Law, § 4, sub. 1; B.C. & G.
Cons. L., 2d ed., p. 8283.]

As a state cannot directly tax tangible property permanently outside the
state and having no situs within the state, it cannot attain the same end
by taxing the enhanced value of the captial stock of a corporation which
arises from the value of the property beyond its jurisdiction. D., L. & W.
R. R. Co. v. Pennsylvania, 198 U. S. 341.

L. 1902, ch, 559, relating to taxes in Oneida county, was not repealed by
the General Tax Law, enacted in 1909. Budd v. Franco (1920), 194 App.
Div. 803, 185 N. Y. Supp. 797.

8. Application of section. This section does not extend to the income
tax. Opinion of Atty. Genl. (1920), 22 St. Dept. Rep. 44.

Rule of construction as to exemption clauses. Exemptions from taxation
are not favored and are to be strictly construed. They will not be sustained
unless such clearly appears to have been the intent of the Legislature.
People ex rel. Mizaph Lodge v. Burke (1920), 228 N. Y. 245, 126 N. E.
703, revg. 190 App. Div. 980, 179 N. Y. Supp. 944; People ex rel. New York
Lodge B. P. O. E. v. Purdy (1917), 179 App. Div. 805, 167 N. Y. Supp. 285,
a‘fd. 224 N. Y. 710; People ex rel. Andrews v. Cameron, 140 App. Div. 76,
124 N. Y. Supp. 949, affd. 200 N. Y. 585. Taxation is the rule and exemption
is not to be established by doubtful implication. People ex rel. Insurance
Co. v. Commissioners of Taxes, 76 N. Y. 64; People ex rel. Railroad Co. v.
Commissioners of Taxes, 82 N. Y. 459, 465; People ex rel. D. K. E. Society
vy. Lawlor, 74 App. Div. 553; 77 N. Y. Supp. 840. An intent to exempt any
property or any portion of the value of any property may not be presumed,
but must be found plainly expressed in the statutes. People ex rel. Rail-
road Co. v. Commissioners of Taxes, 95 N. Y. 554. In determining whether
a given case is within a clause in a statute exempting certain property or
interests form taxation the policy of the law in making the exemption must
be considered and should have great weight. People ex rel. Brush Electric
Mfg. Co. v. Wemple, 129 N. Y. 543, 552; 29 N. E. 808. A presumption that
the legislature intended to surrender its right of taxation in the future by
a present exemption therefrom, cannot be entertained, unless such intention
is clearly expressed. People ex rel. Cunnigham v. Roper, 35 N. Y. 629;
People ex rel. Westchester Fire Insurance Co. v. Davenport, 91 N. Y. 574.
Statutes of exemption are to be strictly construed. Winona & St. Paul Land
Co. v. Minnesota, 159 U.S. 526; 16 Sup. Ct. 83. They are not to be extended
beyond their exact and express requirements, Lazoo R. R. Co. v. Thomas,
132 U. S. 174; 10 Sup. Ct. 68. Exemptions must be clearly expressed, and
not left to implication or inference. Schurz v. Cook, 148 U. 8. 397; 13 Sup.
Ct. 645; Keokuk, etc., Co. v. Missouri, 152 U. S. 301; 14 Sup. Ct. 592.

See also People ex rel. N. Y. C. & H. R. R. Co. v. Mealey (1918), 224 N.
Y. 187, affd. 179 App. Div. 951.

Not transferable. Immunity from taxation is not transferable. It is a
personal privilege and not extended beyond the immediate grantee unless
otherwise expressly declared. Pickard v. Railroad Co., 130 U. 8. 637.

Conditional exemption. Exemption may be granted upon conditions or
contingencies which may happen in the future. Mobile, ete., R. R. Co. v.
Tennessee, 153 U. S. 486.

Property devcted to public use is not taxable even for local improvements,
unless expressly so directed ty legislative enactment. Matter of Bronx Park-
way Commission v. Common Council (1919), 106 Mise. 579, 175 N. Y.
Supp. 208. .

Effect of exemptions as to assessments for local improvements, Exemption

 
TAXABLE PROPERTY AND PLACE OF TAXATION. 475

Tax Law, § 4.

Property of this state other than its wild or forest lands in the forest
preserve.!° “[Id., § 4, sub. 2.]

from taxation does not necessarily embrace exemption from assessment for @
local improvement. Buffalo City Cemetery v. City of Buffalo, 46 N. Y.
506; Matter of St. Joseph’s Asylum, 69 Id. 353.

In the case of Roosevelt Hospital v. Mayor, etc., of N. Y., 84 N. Y. 108,
where a provision in an act incorporating the Roosevelt Hospital exempted
its real estate from taxation, it was held that such real estate was not prop-
erly exempted from an assessment for a local improvement; that the assess-
ment was not taxation within the meaning of the act. The court said: ‘‘In
a broad sense, taxes undoubtedly included assessments, and the right to
impose assessments has its foundation in the taxation power of the govern-
ment; and yet in practice, and generally understood, there is a broad
distinction between the two terms. Taxes, as the term is generally used,
are public burdens imposed generally upon the inhabitants of the whole
state or upon some civil division thereof, for governmental purposes with-
out reference to peculiar benefits to particular individuals or property.
Assessments have reference to impositions for improvements which are
specially beneficial to particular individuals or property and which are impos-
ed in proportion to the particular benefits supposed to be conferred. They are
justified only because the improvements confer special benefits and are
just only when they are divided in proportion to such benefits.” It follows
therefore that an exemption from taxation is not sufficient to exempt the
property specified from an assessment for local improvements. See, also, Mat-
ter of Mayor, etc., of New York, 11 Johns. 80; Bleecker v. Ballon, 3 Wend.
263; Hassen v. City of Rochester, 67 N. Y. 528.

In the case of Roosevelt Hospital v. Mayor, etc., supra, the court also
said. ‘“‘There is still further suggestion to be made. Laws exempting prop-
erty from taxation are to be strictly construed. Taxation is the rule; ex-
emption the exception, and before any one can claim exemption from what
would otherwise be his just share of a tax or assessment, he must find a
plain warrant for such exemption in the law. In view of what has been said,
it would certainly be going to an extraordinary length to say that the exemp-
tion from assessments in the plaintiff’s charter is plain or free from reason-
able doubt. We must therefore hold that plaintiff’s property, while ex-
empt from taxation, is not exempt from improvement assessments.”

Powers of assessors as to exempt property. The office of assessor in deter-
mining what property is subject to, and what is exempt from taxation, is
judicial; and the assessor in determining such questions acts judicially
and is not liable for errors committed in arriving at his conclusion upon
that subject. Barhyte v. Shepherd, 35 N. Y. 238. See, also, Vale v. Owen, 19
Barb. 22; Foster v. Van Wyck, 2 Abbt. Ct. of App. Dec. 167; 41 How. Pr.
493; Matter of Peek, 80 Hun 122; 39 N. Y. Supp. 59. But see Prosser
v. Secor, 5 Barb. 607; National Bank of Chemung v. City of Elmira, 53 N. Y.
49; Clark v. Norton, 49 Id. 243; Overing v. Foote, 65 Id. 263; Lapolt v. Malt-
by, 10 Misc. 330, 31 N. Y. Supp. 686.

Assessors having jurisdiction of the subject matter and of the person
assessed are protected against liability as private persons for the erroneous
exercise of their judgment when acting judicially and their determination
cannot. be assailed collaterally or furnish ground for a private action against
them. Robinson v. Rowland, 26 Hun, 501; Weaver v. Devendorf, 3 Denio,
117.

9. Property of United States is only taxable by consent. Fort Leavenworth
R. R. Co. v. Low, 114 U. S. 525; Van Brocklin v, Tennessee, 117 Id. 151;

 
ATG TAXATION,

Tax Law, § 4.

3. Property of a municipal corporation™ of the state held for a
public use, including real property held or used for cemetery pur-

 

Railroad Co. v. Price Co., 133 Id. 496. Property of the United States is
not taxable for municipal or other purposes unless expressly authorized
by statute. People ex rel. Mayor, etc., v. Assessors of Brooklyn, 19 Abb.
New Cases, 158.

Property of a corporation of the United States may be taxed by the state,
although its franchises may not be. Central Pac. R. R. Co. v. California, 162
U. 8. 125 (1896).

10. Property owned by the state under a valid tax sale is exempt from taxa-
tion. Rept. of Atty. Genl., Feb. 24, 1911.

State lands in forest preserve. Wild and forest lands belonging to the
state within the forest preserve are assessed at a like valuation and rate as
similar lands of individuals within the county where situated. Section 22 of
the Tax Law, post, p. 518. The forest preserve includes the lands owned
by the state within the county of Clinton, excepting towns of Altoona and
Dannemora, and the counties of Delaware, Essex, Franklin, Fulton, Hamil-
ton, Herkimer, Lewis, Oneida, Saratoga, St. Lawrence, Warren, Washington,
Greene, Ulster, and Sullivan, except lands within the limits of any village or
city, and lands not wild lands acquired by the state on foreclosure of mort-
gages made to loan commissioners. Conservation Law, § 50, as amended
by L. 1916, ch. 451.

11. Property of municipal corporation, A municipal corporation is de-
fined in section 3 of the General Corporation Law, as including ‘county,
town, school district, village and city and any other partial division of the
state established by law with powers of local government.’”’ The above
subdivision is a substitute for sub. 3 and 4 of sec. 4 of tit. 1, ch. 13, pt. 1,
of the Revised Statutes, which provided that ‘‘every school house, court
house and jail used for either of such purposes; and the several lots where-
on such buildings are situated, and the furniture belonging to each of them,”
and, also, ‘‘every poorhouse, almshouse, and the real and personal property
used for such purposes belonging to or connected with the same,” are ex-
empted from taxation. The above subdivision extended the former pro-
visions of the revised statutes so that all property of a municipal corpor-
ation held for the public use except such property as is not included within the
limits of a corporation, is exempt from taxation. This change was made
by the revision of 1896 in conformity with the decisions of the court that
property owned by the municipality and held by it for municipal purposes was
not taxable. See City of Rochester v. Town of Rush, 80 N. Y. 302; People
ex rel. Murphy v. Kelley, 76 N. Y. 479, 486-89.

It is not property about to be taken or become the property of a muni-
cipal corporation that is exempt, but real property actually owned and held
by a municipal corporation for public use. Matter of Board of Education,
59 App. Div. 258; 69 N. Y. Supp. 572. Property of a city constituting part
of its water works system and located beyond the boundries of such city
is subject to general taxation in the town in which it is located. People
ex rel. City of Amsterdam v. Hess, 157 N. Y. 42; 51 N. E. 410. (This case
was decided before the addition of the last clause to this section.)

Property of a municipality is not subject to taxation, whether it be employ-
ed for public uses or held in a proprietary capacity in trust for the public.
People ex rel. Hollock v. Purdy, 72 Mise. 122.
TAXABLE PROPERTY AND PLACE OF TAXATION. 477

Tax Law, § 4.

poses,?? and all lots and plats therein conveyed by the municipal cor-
poration as places for the burial of the dead, except the portion of
municipal property not within the corporation. [Id., § 4, sub. 3.]

 

Assessment of sewer property maintained by city of New York outside
city limits; sewer constructed in village to prevent pollution of city water
supply; when such property subject to taxation. Where, pursuant to stat-
utory authority, the city of New York, in order to protect its water supply
from the pollution of a stream which flows through a village outside the city
limits, constructed a portion of a sewer situated partially within the village
limits, and the village, pursuant to mutual agreement, constructed the other
portion of the sewer, that portion constructed by the city is subject to as-
sessment as real property owned by the city under section 480 of the
Greater New York Charter. The provision of the aforesaid statute exclud-
ing aqueducts from taxation does not exempt the sewer property owned
by the city. Nor are said lands exempt from taxation on the theory that
the city has constructed and is maintaining the sewer for the benefit of the
village, as in fact in so doing it is acting for its own benefit. People
ex rel. City of New York v. Page (1920), 192 App. Div. 406, 18 N. Y. Supp.
610. .

Presumption of exemption. Property of a municipality, acquired and held
for governmental and public uses, and used for public purposes, is not tax-
able subject within the purview of the tax laws unless specially included.
People v. Assessors, 111 N. Y. 505.

12, Exemption of cemeteries. The consent of the supervisors is not essen-
tial to secure exemption from taxation where the lands owned by a cemetery
corporation were acquired under a special statute. People ex rel. Trustees of
Cathedral v. Davren, 16 N. Y. Supp. 794; 41 N. Y. St. Rep. 779; affd. 131
N. Y. 601. Water rates assessed against cemetery corporations by muni-
cipalities are not public rates within the meaning of this section. Batter-
man v. City of New York, 65 App. Div. 576, 73 N. Y. Supp. 44.

Lands within the terms of this section are exempt from taxation from the
moment of their acquistion, although no dead are buried there and such
burial is forbidden by a municipal ordinance. People ex rel. Oak Hill Cem-
etery v. Pratt, 129 N. Y. 68; 29 N. E. 7. See, also, Hope Cemetery Asso. v.
Rose (1921), 117 Misc. 457, 191 N. Y. Supp. 623.

18. Indian lands. Where the title of Indians to lands occupied by them is
not such as implies ownership but is only temporary in its character, the
above sub-division does not apply and such lands may be subject to taxation.
It is only when the lands in an Indian reservation are owned by the Indian
nation or tribe occupying them that the exemption applies. Fellows v. Den-
niston, 23 N. Y. 420, 435. See, also, People ex rel. Erie R. R. Co. v. Bearus,
52 Barb. 105, affd., 41 N. Y. 619.

14. Property exempt from execution.

(1.) Exempt personal property. The following personal property, when
owned by a householder, is exempt from levy and sale by virture of an ex-
ecution; and each movable article thereof continues to be so exempt, while
the family, or any of them, are removing from one residence to another:

1. All stoves kept for use in a dwelling house; one sewing machine, with
its appurtenances,

2. The family bible, family pictures, and school books, used by or in the
family; and other books, not exceeding in value fifty dollars, kept and used as
part of the family library.
Ai7a TAXATION.

Tax Law, § 4.

The lands in any Indian reservation owned by the Indian nation,
tribe or band oceuppying them. [Id., § 4, sub. 4.]

All property exempt by law from_execution other than an exempt
homestead.'* But real property purchased with the proceeds of a pen-

 

3. A seat or pew, occupied by the judgment debtor, or the family, in
a place of public worship.

4. Ten sheep, with their fleeces, and the yarn or cloth manufactured
therefrom; one cow; two swine; the necessary food for those animals; all
necessary meat, fish, flour, groceries and vegetables, actually provided for
family use; and necessary fuel and oil, for the use of the family for sixty
days.

5. All wearing apparel, beds, bedsteads, and bedding, necessary for the
judgment debtor and the family; all necessary cooking utensils; one table;
six chairs; six knives; six forks; six spoons; six plates; six tea cups; six
saucers; one sugar dish; one milk pot; one tea pot; one coal scuttle; one
shovel; and one lamp.

6. The tools and implements of a mechanic, necessary to the carrying
on of his trade, not exceeding in value one hundred dollars.

7. In addition to the exemptions allowed by the last section, necessary
household furniture, working tools, team, professional instruments, furniture
and library, not exceeding in value two hundred and fifty dollars, together
with the necessary food for the team, for ninety days, are exempt from levy
and sale by virture of an execution, when owned by a person, being a house-
holder, or having a family, for which he provides, except where the execution
is issued upon a judgmenf, recovered wholly upon one or more demands,
either for work performed in the family as a domestic, or for the purchase
money of one or more articles exempt as prescribed in this or the last sec-
tion. (Civil Practice Act, § 665.)

Where the judgment debtor is a woman, she is entitled to the same ex-
emptions, from levy and sale, by virture of an execution, subject to the same
exceptions, as prescribed in the last section, in the case of a householder.
(Civil Practice Act, § 666.)

(2.) Exemptions to members in military or naval service. The pay and
bounty of a non-commissioned officer, musician or private, in the military or
naval service of the United States or the state of New York; a land warrant,
pension, or other reward, heretofore or hereafter granted by the United
States or by a state, for military or naval services; a sword, horse, medal,
emblem, or device of any kind presented, as testimonial for services rendered
in the military or naval service of the United States or a state; and the uni-
form, arms and equipments, which were used by a person in that service,
are also exempt from levy and sale, by virture of an execution, and from
seizure in any legal proceeding. (Civil Practice Act, § 667.)

(3.) Exemption of burying ground. Land, set apart as a family or priv-
ate burying ground, and heretofore designated, as prescribed by law, in
order to exempt the same, or hereafter designated for that purpose, as
prescribed in the next section, is exempt from sale by virture of an execu-
tion, upon the following conditions only:

1. A portion of it must have been actually used for that purpose.

2. It must not exceed in extent one-fourth of an acre.

3. It must not contain, at the time of its designation, or at any time after-
wards, any building or structure, except one or more vaults, or other places
of deposit for the dead, or mortuary monuments.
TAXATION, 477b
Tax Law, § 4.

sion, bonus or insurance granted by the United States or by this
state for military or naval services, and owned by the pensioner,
the person receiving the bonus or the insured, or by dependent
mother, wife or widow, is subject to taxation as herein pro-
vided. Such property shall be assessed in the same manner as
other real property in the tax districts. At the meeting of the
assessors to hear the complaints, concerning assessments, a veri-
fied application for the exemption of such real property from taxa-

 

In order to designate land to be exempted as prescribed in this section, a
notice containing a full description of the land to be exempted and stating
that it has been set apart for a family or private burying ground must be
subscribed by the owner; acknowledged or proved, and certified, in like man-
ner as a deed to be recorded in the county where the land is situated; and
recorded in the office of the clerk or register of that county, in the proper
book for recording deeds, at least three days before the sale of the land
by virtue of the execution. (Civil Practice Act, § 670.) eae wie

15. Real property purchased with pension money exempt. Property pur-'
chased with the pay and bounty of a soldier is not entitled to any greater or
different exemption than that in the above subdivision for the exemption
from taxation of real property purchased with pension moneys, It there-
fore follows that real property purchased with a soldier’s pay or bounty
is subject to taxation for local school and highway purposes in the same
manner as such property purchased with pension moneys. People ex rel.
Kenney v. Reilly, 41 App. Div. 378; 58 N. Y. Supp. 558.

Property purchased with money received by a retired soldier is exempt
the same as property of a pensioner. Rept. of Atty. Genl., Dec. 23, 1910,
following: People ex rel. Kenny v. Reilly, 41 App. Div. 378.

Real property purchased with bounty money or pay of a retired soldier
of the United States Army is not exempt from taxation. Rept. of Atty.
Genl., March 27, 1911.

Exemption of property purchased with pension money extends to the
amount invested when assessed as one item. It is not the intent of the statute
to make a pro rate basis depending upon the extent of occupancy. Rept.
of Atty. Genl., Jan. 31, 1911.

A veteran is entitled to exemption on property purchased with pension
money, although he rents a portion of such property and occupies the re-
mainder. Rept. of Atty. Genl., Oct. 17, 1910.

Where real property owned by a pcnsioner upon which exemption has
been established is sold, and the procecds used to purchase another piece
of real property, the second piece is also exempt. Opinion of Atty. Genl.
(1917), 14 State Dept. Rep. 495.

The property of pensioners is exempt from a tax imposed to meet bonds
issued for the purpose of installing a village water system. Rept. of Atty.
Genl., May 15, 1911.

The exemption from taxation of all real property to the extent of $5,000
purchased with the proceeds of a United States pension applies to non-
residents as well as to residents of this State. Rept. of Atty. Genl., July 1,
1914,

Amendment of 1897 providing for the exemption from assessment and
taxation of real property, purchased with pension money, to the extent of the
pension money used in its purchase, is not retroactive. People ex rel. Jones
vy. Feitner, 157 N. Y. 363, affg. 32 App. Div. 23.
478 , TAXATION.
Tax Law, § 4.

tion may be presented to them by or on behalf of the owner thereof,
which application must show the facts on which the exemption is
claimed, including the amount of pension, bonus or insurance money
used in or toward the purchase of such property.%* No such exemption
on account of pension, bonus or insurance money shall be allowed in
excess of five thousand dollars. If the assessors are satisfied that the
applicant is entitled to the exemption, and that the amount of pension,
bonus or insurance moncy exempt to the extent authorized by this sub-
division used in the purchase of such property equals or exceeds the
assessed valuation thereof, they shall enter the word “exempt” upon
the assessment-roll opposite the description of such property. If the
amount of such pension, bonus or insurance money exempt to the ex-
tent authorized by this subdivision used in the purchase of the property
is less than the assessed valuation, they shall enter upon the assess-
ment-roll the words “ exempt to the extent of ............ dollars ”
(naming the amount) and thereupon such real property, to the extent
of the exemption entered by the assessors, shall be exempt from state,
county and general municipal taxation, but shall be taxable for local
school purposes, and for the construction and maintenance of streets
and highways. If no application for exemption be granted, the prop-
erty shall be subject to taxation for all purposes. The entries above
required shall be made and continued in each assessment of the prop-
erty so long as it is exempt from taxation for any purpose. The pro-
visions herein, relating to the assessment and exemption of property
purchased with a pension, bonus or insurance, apply and shall be en-
forced in each municipal corporation authorized to levy taxes. [Id.,
§ 4, sub. 5, as amd. by L. 1914, ec. 278, L. 1920, e. 413, L. 1921. e. 169.]

Bonds of this state vr any civil division thereof.” [Id., § 4, sub.
6, as amended by L. 1917, ch. 97.]

 

16. Application for exemption. For form of application for exemption, see Form
No. 37, post.

The assessors are required under the above subdivision to place the real property
of a veteran purchased with pension money upon the roll in the usual manner of
assessment, and the claimant for an exemption must prefer it in writing stating
the amount on which the exemption is claimed. People ex rel. McGrane v. Reilly,
21 Misc. 360; 47 N. Y. Supp. 742. To secure the exemption of real estate pur-
chased in part with pension moneys the owner must make his claim known on
grievance day and in default thereof the assessment will stand. Matter of Baum-
garten, 39 App. Div. 174, 57 N. Y. Supp. 284; Tucker v. City of Utica, 35 App.
Div. 206, 54 N. Y. Supp. 855; McKibben v. Oneida County, 25 App. Div. 361,
49 N. Y. Supp. 553; Broderick v. City of Yonkers, 22 App. Div. 448, 48 N. Y.
Supp. 265.

17. Under the amendment of 1917, bonds of school districts, lighting districts, ete.,
are exempt from taxation, which was not the case under the former law.
TAXABLE PROPERTY AND PLACE OF TAXATION. A179

Tax Law, § 4.

The real property of a corporation or association organized exclusively
for the moral or mental improvement of men or women, or for religious,
bible, tract, charitable, benevolent, missionary, hospital, infirmary, educa-
tional, scientific, literary, library, patriotic, historical or cemetery purposes,
or for the enforcement of laws relating to children or animals, or for two
or more such purposes, and used exclusively for carrying out thereupon
one or more of such purposes; and the personal property of any such cor-
poration shall be exempt from taxation.* But no such corporation or

 

18. Corporations entitled to exemption. In the case of People ex rel,
D. K. E. Society v. Lawlor, 74 App. Div. 553; 77 N. Y. Supp. 840, it appeared
that a house owned by a chapter of a Greek letter college fraternity, organized
as stated in its certificate of incorporation for literary purposes and the
promotion of fine arts, was primarily used, with the exception of the society
room, as a boarding place for the active members of the chapter, at which they
enjoyed the privileges of home life and met for social recreation and fellowship
without intrusion from uninvited guests; it was held that such property was
not exempt from taxation under the above subdivision although it was incident-
ally used for literary, educational and scientific purposes. The property entitled
to exemption under this subdivision must be exclusively used for the purposes
therein specified. See Church of St. Monica v. Mayor, 119 N. Y. 91; 23 N. E.
294; People ex rel. Church of St. Mary v. Feitner, 168 N. Y. 494, N. E.

In the case of People ex rel. D. K. E. Society v. Lawlor, supra, the court
said: -‘‘Now the adverb ‘exclusively’ is defined by lexicographers to mean
‘with the exclusion of all others, without admission of others to participa-
tion’ (Century Dictionary); and with this definition in mind it is apparent
that the partial or occasional use of the relator’s chapter house for literary,
educational or scientific purposes is not sufficient to sustain‘its claim to ex-
emption, unless it can be said that such purposes are primary and inherent,
while all others are secondary and incidental; for although we ought not per-
haps to give the word ‘exclusively’ an interpretation so literal as to pre-
vent an occasional use of the relator’s property for some purpose other than
one or more of those specified, yet the policy of the law is to construe
statutes exempting property from taxation somewhat rigidly, and not to permit
such exemption to be established by doubtful implication.”

In the case of People ex rel. Young Men’s Association v. Sayles, 32 App.
Div. 197; 53 N. Y. Supp. 67; affd., 157 N. Y. 677, it appeared that the relator
was a corporation organized exclusively for the mental and moral improve-
ment of men and women and for benevolent purposes. Any respectable young
man could become a member and enjoy its privileges upon the payment of a
nominal membership fee. It owned a building in the city of Albany of which
a portion was used for the purpose of a public library, gymnasium, reading,
lecture and bath rooms, while the remainder consisted of a spacious and
elaborately constructed theater or hall suitable for public meetings, exhibitions
and entertainments. This hall was leased at fixed rates of rental and used for
such purposes only, the income therefrom being devoted exclusively to the
maintenance of the library. It was held by the appellate division and sub-
480 TAXATION.

Tax Law, § 4.

association shall be entitled to any such exemption if any officer, member
or employe thereof shall receive or may be lawfully entitled to receive any
pecuniary profit from the operation thereof except reasonable compensa-

 

sequently affirmed by the Court of Appeals that such property was subject to
taxation.

In the case of People ex rel. Catholic Union v. Sayles, 32 App. Div. 203; 53 N.
Y. Supp. 65; affd. 157 N. Y. 679, a like conclusion was reached upon a very similar
state of facts. The rent of athletic grounds by a college to persons not connected
therewith deprives it of the exemption. People ex rel. Adelphi College v. Wells,
97 App. Div. 312, 89 N. Y. Supp. 957. See, also, People ex rel. Medical Society v.
Neff, 34 App. Div. 83; 53 N. Y. Supp. 1077. As to effect of lease of academy by
educational corporation. see People ex rel. Trustees, ete., v. Mezgar, 98 App. Div.
237, 90 N. Y. Supp. 488. Land held by a voluntary unincorporated religious order
for charitable purposes—held exempt. People ex rel. Missionary Sisters v. Reilly,
85 App. Div. 71, 83 N. Y. Supp. 39, affd. 178 N. Y. 609. The proceeds of crops
raised on land owned by the religious society of Friends—held not exempt. People
ex rel. Blackburn v. Barton. 63 App. Div. 581, 71 N. Y. Supp. 933. The property of
the Brooklyn Masonic Guild, held exempt. People ex rel. Crook v. Wells, 179 N. Y.
257, revg. 93 App. Div. 500. 87 N. Y. Supp. 826.

In the case of Congregation K. I. A. P. v. Mavor, 52 Hun, 507, it was held that
the building. of which the principal story was used as a synagogue, while the lower
story contained the living rooms of the janitor of the synagogue and bath tubs and
plunging pools for men and women, which were accessible for a pecuniary considera-
tion, payable to the janitor in lieu of salary, to all Jews, whether worshippers at
that synagogue or not, was not exempt from taxation, for the reason that the
building was not “ exclusively used,” for one or more of the purposes specified in
the statute.

The religious society of Friends owned four hundred and fifty acres of land upon
which was conducted an institution for the education of Indian children. A porti-n
of this land was cultivated and used for raising crops and the pasturage of cattle.
Tle crops raised were more than sufficient for the use of the school and the surplus
was sold and the proceeds devoted to the school. It was held that only the land
used for crops'and pasturage was exempt from taxation. People ex rel. Blackburn
v. Barton. 63 App. Div. 581. But where all the products of the farm upon which is
situated an institution exempt from taxation under the above subdivision are used
for the maintenance of the inmates of the institution. the farm is entitled to ex-
emption. People ex rel. Seminarv. ete. v. Rarbour. 42 Hun, 27; affd. 106 N. Y. 669.

A church corporation engaged in charitable and missionary work among the poor
carried on such work by the aid of guilds of men and women, and a staff consisting
of the rector, curates and three sisters. Annexed to the church building in which
religious services were held, and forming a part thereof, was the clergy house end
a rectory devoted to the use of the work of the cornoration. It was held in the
appellate division thet the entire building was exempt from trx°tion unr the
above subdivision. People ex rel Societv of the Free Church v. Feitner, 63 Ann,
Div. 181. But the Court of Anneals modifie its dec’sion by holding that the rec-
tory, being located cn another corner of the church lot and separate from the
other pronerty, wes not exemnt from taxstion excent as ‘a dwelling hovse used
by the oiciating clergymen of the church See evh. 9 of gee, 4, post - 40°

Property bequeathed to a university organized under the laws of a foreign state
exclusively for educational. scientific and literary purposes is, before payment to
the beneficiary. liable to taxation in the town or village of the testator’s residence
even though the property would be exempt from taxation if the beneficiarv were
organized under our laws. People ex rel. Anderson v. Cameron, 140 App. Div. 74
124 N. Y. Supp. 949, affd. 200 N. Y. 505. The power under a charter to make al-
Jowances or pensions to teachers does not affect the right of the school to exemption
under this subdivision. People ex rel, Master School v. Keys (1917), 178 App. Div.
677, 165 N. Y. Supp. 863.

Bequests to the American Society for the Prevention of Cruelty to Animals, or-
ganized under L. 1886, ch. 469, are exempt from taxation. People ex rel. Anderson
v. Cameron, 140 App. Div. 76, 124 N. Y. Supp. 949, affd. 200 N. Y. 585.
TAXABLE PROPERTY AND PLACE OF TAXATION. 481
Tax Law, § 4.

tion for services in effecting one or more of such purposes, or as proper
beneficiaries of its strictly charitable purposes; or if the organization
thereof for any such avowed purposes, be a guise or pretense for direct-
ly or indirectly making any other pecuniary profit for such corporation
or association, or for any of its members or employes, or if it be not in
good faith organized or conducted exclusively for one or more of such
purposes. The real property of any suck corporation or association
entitled to such exemption held by it exclusively for one or more of
such purposes and from which no rents, profits or income are derived,
shall be so exempt, though not in actual use therefor by reason of the
. absence of suitable buildings or improvements thereon, if the construc-

tion of such buildings or improvements is in progress, or is in good
faith contemplated by such corporation or association; or if such real
property is held by such corporation or association upon condition
that the title thereto shall revert in case any building not intended
and suitable for one or more of such purposes shall be erected upon
said premises or some part thereof. The use of any such real
property as a polling place upon days of registration and election
shall not be deemed to impair any exemption from taxaticn other-
wise applicable thereto. The real property of any such corpora-
tion not so used exclusively for carrying out thereupon one or
more of such purposes, but leased or otherwise used for other

 

Where the charter of a literary corporation, organized to promote social
intercourse and a general knowledge of literature, states that one of its cor-
porate purposes is to own a building and sublet portions thereof, it is not
entitled to exemption. People ex rel. Forward Assn. v. Purdy (1917), 173
App. Div. 926, 158 N. Y. Supp. 551.

Lineoln Agricultural School at Iowa, owned by the New York Catholic
Protectory, is exempt from taxation. Rept. of Atty. Genl., July 26, 1910.

Real property of Greely Lodge No. 69, I. O. O. F., used exclusively for
purposes for which it was formed, is exempt from taxation. Rept. of Atty.
Genl., Aug. 23, 1910.

Building and lot of Masonic lodge held not exempt. Rept. of Atty. Genl.,
July 29, 1910. But see People ex rel. Masonic Temple v. Ostrander (1918),
105 Mise. 405, 173 N. Y. Supp. 356.

Real property of fraternal association, a portion of which is rented for
commercial purposes, is taxable tothe extent thatit is sorented, although
the surplus remaining after payment of carrying charges of property is
devoted to payment of benefits to worthy, but not indigent, members of the
association. People ex rel. Delphian Lodge v. Cahoon (1917), 179 App.
Div. 287, 166 N. Y. Supp. 348. See, also, People ex rel. Buffalo Consistory
v. Betz (1921), 114 Misc. 124, 185 N. Y. Supp. 538; People ex rel. S. O.
F. T. A. v. McMillon (1922), 117 Misc. 600.

Hospital owned by religious corporation—held not exempt. People ex
rel. Sisters of Mercy v. Nowles, 34 Misc. 501, 70 N. Y. Supp. 277. Lands
of hospital corporation used for care of comsumptive patients, held exempt.
Sanitorium v. Keese, 112 App. Div. 738, 98 N. Y. Supp. 1088. The charge
made by a hospital for treating some of its patients, the sum so received be-
ing applied to the use of other poor patients, is not an income of the hospital
of such a nature as to deprive the institution of its exemption from taxa-
tion under the above act. People ex rel. Society of the New York Hospital
v. Purdy, 58 Hun 386, 12 N. Y. Supp. 307; affd. 126 N. Y. 679,

Effect of subdivision upon special provisions. The provisions of the above
482 TAXATION.
Tax Law, § 4.

purposes, shall not be exempt, but if a portion only of any lot or building of
any such corporation or association is used exclusiveiy for carryimg out
thereupon one or more such purposes of any such corporation or association,
then such lot or building shall be so exempt only to the extent of the value
of the portion so used, and the remaining or other portion, to the extent
of the value of such remaining or other portion, shall be subject to taxation;
provided, however, that a lot or building owned, and actually used for hos-
pital purposes, by a free public hospital, depending for maintenance and
support upon voluntary charity, shall not be taxed as to a portion thereof
Jeased or otherwise used for the purposes of income, when such inconie is
necessary for, and is actually applied to the maintenance and support of such
hospital, and further provided that the real property of any fraternal cor-
poration, association or body created to build and maintain a building or
buildings for its meeting or meetings of the general assembly of its members,
or subordinate bodies of such fraternity and for the accommodation of other
fraternal bodies or associations, the entire net income of which real property
is exclusively applied or to be used to build, furnish and maintain an asylum
or asylums, a home or homes, a school or schools, for the free education
or relief of the members of such fraternity, or for the relief, support and
care of worthy and indigent members of the fraternity, their wives, widows
or orphans, shall be exempt from taxation, and provided also that the real
estate owned by a free public library or held in trust by an educational cor-
poration for free public library purposes situate outside of a city, shall not
be taxed as to that portion thereof leased or otherwise used for purposes
of income, when such income is necessary for and actually applied to the
maintenance and support of such library. Property held by any officer of
a religious denomination shall be entitled to the same exemptions, subject
to the same conditions and exceptions, as property held by a religious
corporation. Property held by trustees named in a will or deed of trust
or appointed by the supreme court of the state of New York for hospital
and library purposes, as set forth in this subdivision, shall be exempt to the
same extent and subject to the same conditions and exceptions as if held by
a corporation. [Id. § 4, sub. 7, as amended by L. 1916, ch. 411, L. 1918,
ch. 288, and L. 1921, ch. 446.]

Real property of an incorporated association of present or former volunteer
firemen actually and exclusively used and occupied by such corporation and
not exceeding in value fifteen thousand dollars.182 [Id., § 4, sub. 8.]

 

subdivision exempting the property of a charitable corporation and associa-
tion from taxation supersede, and by implication repeal, the provisions of
all special acts exempting the property of such corporations and associations
from taxation. Matter of Huntington, 168 N. Y. 399; Pratt Institute v. City
of New York, 183 N. Y. 151. The provision of the charter of the Roosevelt
Hospital exempting its property from taxation, held not to be repealed by the
General Tax Law, on the ground that the courts will not assume that the legis-
lature exercised by implication its reserved power to alter or repeal a charter,
where the transfer of property, in endowment, was thus indirectly induced
by a promise of an exemption from taxation. People ex rel. Roosevelt Hos-
pital v. Raymond, 194 N.Y. 189, revg. 126 App. Div. 720, 111 N.Y. Supp. 177,
and distinguishing Matter of Huntington, 168 N. Y. 399; Pratt Institute
v. City of New York, 183 N, Y. 151; People ex rel. Cooper Union v. Gass,
190 N. Y. 328.

Maintenance of lamp district. The property of corporations or associa-
tions falling within the classifications made by subdivision 7, is exempt from
payment of a tax levied pursuant to the provisions of article XII of the
Town Law for the establishment and maintenance of a lamp or lighting
district. Rept. of Atty. Genl. (1915), 44.

18a. Firemen’s association. Under the statute exempting from taxation
“real property of an incorporated association of present or former volunteer
firemen actually and exclusively used and occupied by such corporation and
not exceeding in value fifteen thousand dollars,” property of such an asso-
ciation of the value of $15,000 or less is exempt, and the assessing officers
have no eee over it. Elmhurst Fire Co. v. City of New York (1914),
213 N. Y. 87.
TAXABLE PROPERTY AND PLACE OF TAXATION, 483
“ Tax Law, § 4.

All dwelling-houses and lots of religious corporations while actually used by the
officiating clergymen thereof, but the total amount of such exemption to any
one religious corporation shall not exceed two thousand dollars. Such ex-
emption shall be in addition to that provided by subdivision seven of this
section.19 [Id., § 4, sub. 9.]

The real property of an agricultural society permanently used by it for exhibi-
tion grounds.20 [Id., § 4, sb. 10.]

The real and personal property of a minister of the gospel or priest of any denom-
ination being an actual resident and inhabitant of this state, who is engaged in
the work assigned to him by the church or denomination to which he
belongs, or who is disabled by impaired health from the performance of
such duties, or over seventy years of .ge, and the property of the widow of
such minister while she remains such and is an actual resident and inhabi-
ta... of this state, but the total amount : 7 such exemption on account of
both real and personal property shal! not exceed fifteen hundred dollars.
Such real and personal property cuall, however, ke taxable for water or
lighting purposes only ‘.. an water or lighting district established under the
provisions of the town law.°t [Id., § 4, sub. 11, as amended by L. 1916, ch.
412, L. 1917, ch. 42, and L. 1921, ch. 168.]

All vessels registered at any port in this state and owned by an American citizen,
or association, or by any corporation, incorporated under the laws of the
state of New York, engaged in ocean commerce between any port in the
United States and any foreign port, are exempted from all taxation in this
state, for state and local purposes; and all such corporations, all of whose
vessels are employed between foreign ports and ports in the United States,
are exempted from all taxaticn in this state, for state and local purposes,
upon their capital stock, franchises and carnings, until and including Decem-
ber thirty-first, nineteen hundred and twenty-two. [Id., § 4, sud. 12.]

A bond, mortgage, note, contract, account or other demand, belonging to
any person not a resident of this state, sent to or deposited in this state
for collection; the products of another state, owned by a  non-resi-
dent of this state and consigned to his agent in this state for sale on

 

19. Property used for religious purposes, owned by an individual, to whom
rent is paid for such use, is not exempt from taxation. Rept. of Atty. Genl. (1894)
211.

20. Lands which an agricultural society holds by a lease are not exempt. Rept.
of Atty. Genl. (1895) 222.

21. Exemption of ministers and priests. A minister who is withdrawn
from active duty as such by reason of age or infirmity, but is engaged in no secular
occupation is entitled to an exemption. People ex rel. Mann v. Peterson, 31 Hun,
421. Where the value of a minister’s property exceeds the sum of $1,500, he is
entitled to a deduction for that amount, although he has not occupied the real
property. Idem.

Property of clergyman regularly engaged in his duties or permanently disabled
is exempt, no matter where he resides. Rept. of Atty. Genl. (1903) 226.

The assessors’ acts in determining the value of the property of a minister are
judicial and they cannot be held liable for assessing the property in excess of the
valuation exempted. Weaver v. Devendorf, 3 Denio, 117; Vale v. Oyen, 19 Barb. 22.

To enable a minister of the gospel to maintain an action against assessors, for.
assessing his property, and thereby subjecting him to the payment of taxes, he
must show that he is such minister, and that the value of both his real and personal
property does not exceed $1,500. Prosser v. Secor, 5 Barb. 607.

The property of a minister of the gospel engaged in secular occupation discharg-
ing occasional duties as a minister is not regularly engaged in performing his duties
as such, and is not entitled to the statutory exemption from taxation. Rept. of
Atty. Genl. (1914) 386.
484 TAXATION.
Tax Law, § 4.

commission for the benefit of the owner; moneys of a nonresident of this
state, under the control or in the possession of his agent in this state,
when transmitted to such agent for the purpose of investment or other-
wise.”? [Id., § 4, sub. 13.]

 

22. Exemption of securities belonging to non-residents. The statute pro-
vides that a person shall be taxed'in the tax district where he resides, when
the assessment for taxation is made, for all personal property owned by
him or under his control as agent, trustee, guardian, executor or administrator.
Tax Law, sec. 8, post, p. 492, This provision if standing alone would doubtless
autnorize the assessment of all personal property belonging to a non-resident
in the hands of his agent in this state. But by virtue of the above subdivision
there are appended to this general provision two important qualifications; first,
that the products of any state of the United States consigned to any agent
in this state for sale on commission shall not be assessed to such agent; second,
that agents of moneyed corporations of capitalists shall not be liable to taxa-
tion for any moneys in their possession or under their control, transmitted to
them for the purpose of investment or otherwise.

The Court of Appeals, in the case of Williams v. Board of Supervisors, 78
N. Y. 561, in speaking of these exemptions, says: ‘“‘ Nothing can be more
plain than the policy and purpose of these exemptions. They are clearly
intended to further the trade and commerce of the state and to encourage and
even invite the sending of foreign capital here for investment. It is argued,
however, that the exemption as to capital continues only so long as it remains
uninvested, and that when invested, if the securities remain in the hands of
the agent they are taxable. If such were the true construction of the provision
it would be quite ineffectual and rather a lure than a protection to foreign
capitalists who might send their capital here to be invested under the assurance
that it should be free from taxation. But such a construction is precluded by
the express provisions of the statute contained in the same chapter, which
declares that when any bond, mortgage, note, contract, account, or other
demand belonging to any person, not being a resident of this state, shall be sent
to this state for collection, or shall be deposited in this state for the same pur-
pose, such property shall be exempt from taxation. . . . These provisions
are clearly designed to afford to the foreign capitalist who invests his funds
here every conceivable protection. His capital cannot be taxed while awaiting
investment. If the securities are taken by him out of the state he may with
impunity send them back to the agent here for the collection of principal or
interest. And if instead of being removed from the state, they are deposited
here with an agent for collection, they are equally free. The capital is pro-
tected from taxation whether invested or uninvested, and whether the securities
are taken away or remain here for collection.” Funds sent here for investment
are not taxable. People ex rel. Ferrer v. Comrs. of Taxes, 42 Hun 560. Con-
tracts for the sale of land in the hands of a resident agent are not taxabie.
Lord v. Arnold, 18 Barb. 104. See also Boardman v. Supervisors of Tompkins,
85 N. Y. 359; People ex rel. Smith v. Comrs. of Taxes, 100 Id. 215.

Debts due to non-residents upon contracts for the sale of real estate
situated within the state, wuich contracts were in the hands of an agent
residing within the state, are liable to assessment and taxation against such
agent. People ex rel. Young v. Willis, 188 N. Y. 388; 31 N. BE. 125. The above
subdivision does not apply to assets in the hands of an administrator of a
TAXABLE PROPERTY AND PLACE TAXATION. 485
Zax Law, § 4.

The deposits in any bank for savings which are due depositors.23 The
accumulations in any domestic life insurance corporation, held for the
exclusive benefit of the insured, other than real estate and stocks, now
liable to taxation, the accumulations of any incorporated co-operative loan
association upon the shares of such association held by any person; certifi-
cates of investment or other evidences of indebtedness, together with any
accumulations thereon, issued by any investment company organized pur-
suant to the provisions of article seven of the banking law and actually
exercising the powers conferred by both subdivisions two and four of section
two hundred and ninety-three of the banking law; and personal property of
any corporation, person, company or association transacting the business
of fire, casualty or surety insurance in this state equal in value to the
unearned premiums required by the laws of this state, or the regulations of
its insurance department, to be charged as a liability.24 [Id., § 4, sub. 14,
as amended by L, 1917, ch. 707.]

Moneys collected in the course of the business of any corporation, association or
society doing a life or casualty insurance business or both, upon the co-operative
or assessment plan, and which are to be used for the payment of assessments,
or for death losses or for benefits to disabled members. [Id., § 4, sub. 15.]

The owner or holder of stock in an incorporated company liable to
taxation on its capital, shall not be taxed as an individual for such stock.2
[Id., § 4, sub. 16.]

resident of Scotland where such assets consists of debts due on bond and mort-
gage on real property located in this state, and where the residuary legatees
reside therein. People ex rel. Cochrane v. Coleman, 128 N. Y. 524; 28 N. H.
465. Nor to drafts upon a foreign corporation doing business within the
state. People ex rel. International Banking Corp. v. Raymond, 117 App.
Div. 62, 102 N. Y. Supp. 85, affg. 52 Misc. 194, 102 N. Y. Supp. 84.

23. Deposits in savings banks. The exemption from taxation conferred
by the above subdivision upon “deposits in any bank for savings which are
due depositors,’’ applies to the depositors as well as to the bank and relieves
them from assessment for taxation as to their deposits, People ex rel.
Hiermance v. Dederick, 158 N. Y. 414; 53 N. EH. 163; People ex rel. Ithaca
Sav. Bank v. Beers, 67 How. Pr. 219.

Every savings bank is required to pay to the state annually for the
privilege of exercising its corporate franchise or carrying on its business in
such corporate or organized capacity an annual tax, which shall be equal
to one per centum of the par value of its surplus and undivided earnings.
Tax Law, sec. 189, as added by L. 1901, ch. 117. Prior to this statute it
vas held that the surplus of a savings bank was exempt under the above sub-
division. People ex rel. Newburg Savings Bank y. Peck, 157 N. Y. 51, 51 N.
E. 412.

24. The amendment of 1901 adding the exemption of property equal in
value to unearned premiums supersedes Nat. Surety Co. v. Feitner, 166 N. Y.
129, which held that the unearned premiums of a surety company are not
deductable as debts.

Deposits are exempt to the bank. People ex rel. Ithaca Savings Bank v.
Beers, 67 How. Pr. 219. And also to depositors. People ex rel. Hermance
v. Dederick, 158 N. Y. 414, affg. 35 App. Div. 29, 54 N. Y. Supp. 519.

Surplus of savings bank is aes under this subdivision. People ex
rel. Newburg Bank v. Peck, 157 N. Y. 51, affg. 32 App. Div. 624, 52 N. Y.
Supp. 259.

25. Exemption of corporate stock. The shares of stock of corporations
created under the laws of this state are not taxable in the hands of the
stockholders, nor are shares of stock of corporations created by other
states taxable, since the presumption is that they are taxed upon their
capital in the same states. Bonds being evidence of a fixed indebtedness
are taxable at their actual value. People ex rel. Trowbridge v. Commis-
sioners of Taxes, 4 Hun 595, affd. 62 N. Y. 630.

A corporation is not subject to taxation upon stock of another corporation
owned by it and the capital of which is taxable, any more than an individual
stockholder would be. People ex rel. Brooklyn Traction v. Board of Assessors,
30 N. Y. Supp. 488; 61 N. Y. St. Rep. 480. See also People ex rel. Keppler v.
Barker, 22 App. Div. 120, 47 N. Y. Supp. 958, affd. 155 N. Y. 661.

 
486 TAXATION,
Tax Law, § 4, subs. 17-19, § 4-b.

_ The personal property in excess of one hundred thousand dollars of a mutual
life insurance corporation incorporated in this state before April tenth,
eighteen hundred and forty-nine. [Id., § 4, sub. 17.]

Property real, from which no income is derived, and personal property,
situated within any city of the first class and belonging to the medical
society of any county, which county is either wholly or partly within such
city and which society was heretofore incorporated under the provisions
of chapter ninety-four, laws of eighteen hundred and thirteen, entitled
“An act to incorporate medical societies for the purpose of regulating
the practice of physic and surgery in this state,’’ provided that such
property is used for the purposes of such a society and not otherwise, and
provided that such exemption of property for any society in the coun-
ties of Kings or New York, shall not exceed one hundred and fifty thou-
sand dollars, and in any other county affected hereby, shall not exceed
fifty thousand dollars. [Id., § 4, sub. 18.]

Property real from which no rent is derived and personal property situated
within any city of the first class and belonging to any incorporated pharma-
ceutical society of any county which is either wholly or partly within such
city, which society has heretofore been or may hereafter be authorized and
empowered by act of the legislature to establish and which has established
or may hereafter establish, a college of pharmacy in such city; provided
that such property is used for the purposes of such college and not other-
wise, and provided also that the exemption of such property for any society
in the counties of Kings and New York shall not exceed one hundred thou-
sand dollars and in any other county affected hereby, shall not exceed fifty
thousand dollars. [Id., § 4, sub. 19.]

Household furniture and personal effects to the value of one thousand dollars.
[Id., § 4, sub. 21, as added by L. 1912, ch. 267.]

§ 3a. EXEMPTION OF NEW BUILDINGS FROM LOCAL TAXATION.

The legislative body of a county, or the legislative body of a city with
the approval of the board of estimate and apportionment, if there be one
in such city, or the governing board of a town, village or school district may
determine that until January first, nineteen hundred and thirty-two, new
buildings therein, planned for dwelling purposes exclusively, except hotels,
shall be exempt from taxation for local purposes other than for assess-
. ments for local improvements during construction and so long as
used or intended to be used exclusively for dwelling purposes, or if a
building of four stories or more in height, used exclusively for dwelling
purposes above the ground floor, provided construction was completed since
April first, nineteen hundred and twenty, or, if not so completed, that con-
struction be commenced before April first, nineteen hundred and twenty-
three, and completion for occupancy be effected within two years after
such commencement, or if in course of construction on September twenty-
seventh, nineteen hundred and twenty, within two years thereafter. ‘The
provisions of this section shall not be construed to preclude such legisla-
tive bodies from granting exemptions which do not exceed the exemption
authorized by this section. Any such limited exemption heretofore granted
by any such legislative body, intending or purporting to act under the au-
thority conferred by this section, is hereby legalized, validated and con-
firmed. For the purposes of this section, construction shall be deemed
commenced when the plans have been filed with the proper authority
and excavation actually and in good faith begun. The owner or architect
may file with the authority with whom the plans are filed a statement in
writing setting forth the date of filing plans and the date when excavation
was actually commenced; and said authority shall forthwith cause said facts
to be investigated. If said statement on such investigation is found to be
true, said authority shall thereupon issue to such owner or architect a
certificate setting forth the date when the plans were filed with him, and

 

25a. Construction. This section is merely an enabling act authorizing
a municipality to adopt a scheme of exemption for buildings completed
after April 1, 1920, and those begun before April 1, 1922. People v. Cantor
(1921), 116 Mise. 169, 190 N. Y. Supp. 277.
TAXABLE PROPERTY AND PLACE OF TAXATION. 487
Tax Law, § 4a; Transportation Corp. L., § 141; Membership Corp. L., § 171.

the date when excavation was actually commenced, which certificate shall
be conclusive evidence of the date when construction was commenced, for
the purpose of obtaining the benefits of this section.25a [Tax Law, § 4-b, as
added by L. 1920, ch. 949, and amended by L. 1921, ch. 444, and L. 1922,
ch. 281.]

§ 4. EXEMPTION OF INTANGIBLE PERSONAL PROPERTY.

Notwithstanding any provision of this chapter, or of any other general
special or local law, intangible personal property, except shares of stock
of banks or banking associations, whether referred to as personal property,
capital, capital stock or otherwise, after June thirtieth, nineteen hundred and
twenty, shall be exempt from taxation locally for state or local purpose. This
exemption shall be in addition to all other exemptions of personal property
from local taxation, whether based upon the character, ownership or amount
of property. The term ‘intangible personal property,’’ as used in this section,
means incorporeal property, including money, deposits in banks, shares of
stock, bonds, notes, credits, evidences of an interest in property and evidences
of debt. [Tax Law, § 4-a, as added by L. 1920, ch. 647.]

§ 6. EXEMPTION OF PROPERTY BELONGING TO A PLANK ROAD
OR TURNPIKE CORPORATION,

So much of any bridge or toll-house of any bridge corporation as may
be within any town, city or village, shall be lidble to taxation therein as
real estate. Toll houses and other fixtures, and all property belonging
to any plank road or turnpike corporation shall be exempt from assess-
ment and taxation for any purpose until the surplus annual receipts of
tolls on its road over necessary repairs and a suitable reserve fund for
repairs or relaying of plank, shall exceed seven per centum per annum
on the first cost of the road.26 If the assessors of any town, village or
city and the corporation disagree concerning any exemption claim, the
corporation may appeal to the county judge of the county in which such
assessment is proposed to be made, who shall, after due notice to both
parties, examine the books and vouchers of the corporation, and take
such further proof as he shall deem proper, and decide whether such
corporation is liable to taxation under this section, and his decision shall
be final. [Transportation Corporations Law, § 141; B. C. & G. Cons.
L., 2d ed., p. 9032.]

§ 7. EXEMPTION OF PROPERTY OF SOLDIERS’ MONUMENT ASSO-
CIATION.

The property of any corporation formed pursuant to laws of eighteen
hundred and _ sixty-six, chapter two hundred and _ seventy-three, as
amended by laws of eighteen hundred and eighty-eight, chapter two hun-
dred and ninety-nine, or section one hundred and seventy of this chap-
ter (Membership Corporations Law), shall be exempt from levy and
sale on execution, and from all public taxes, rates and assessments, and
no street, road, avenue or thoroughfare shall be laid through the

 

26. Exemption of plank and turnpike roads. Property of plank and turn-
pike road corporations are exempt from taxation until the surplus annual
tolls over necessary repairs and a suitable reserve fund for repairs or re-
laying plank shall exceed 7 per cent. per annum on the first cost of the
road. The first cost of the road means only such road as the company
has and operates at the time of the assessment; so where a company con-
structed the plank road, and afterwards abandoned a portion of it, it was
held that the first cost of the portion of the road retained, and-not of the
whole original road, was to be estimated in determining whether the prop-
erty of the company was assessable. People v. Freeman, 3 Lans. 148.

Assessment for improvements in cities. The provisions of the charter of
the city of Gloversville (L. 1899, ch. 275, § 105) authorizing the city to
make public improvements and assess the expense upon the lands bordering
or touching upon the improved street, and against any plankroad company
occupying any portion thereof, abrogate the exemption from assessment
for public improvements conferred upon a plankroad company by*the pro-
visions of this section. People ex rel. Cayadutta P. R. Co. v. Cummings,
166 N. Y. 110, revg. 53 App. Div. 36, 65 N. Y. Supp. 581.
488 TAXATION.
Tax Law, § 16.

lands of such association held for the purposes aforesaid without the
consent of the trustees of such corporation, except by special permis-
sion of the legislature of the state. [Membership corporations Law,
§ 171, in part, as amended by L, 1920, ch. 506.]

7a. EXEMPTION AND REDUCTION IN ASSESSMENT OF LANDS PLANTED
WITH TREES FOR FORESTRY PURPOSES.

Whenever the owner of lands, to the extent of one or more acres and
not exceeding one hundred acres, shall plant the same for forestry pur-
poses with trees to the number of not less than eight hundred tw the
acre, and whenever the owner of existing forest or brush lands to the
extent of one or more acres and not exceeding one hundred acres, shall
under plant the same with trees, to the number of not less than three
hundred to the acre, and proof of that fact shall be filed with the assess-
ors of the tax district or districts in which such lands are situated as
hereinafter provided, such lands so forested shall be exempt trom as-
sessment and taxation for any purpose for a period of thirty-five years
from the date of the levying of taxes thereon immcdiately following
such planting, and such existing forest or brush lands so underplanted
shall be assessed at the rate of fifty per centum of the assessable valua-
tion of such land exclusive of any forest growth thereoa for a period of
thirty-five years from the date of the levying of taxes thereon imme-
diately following such underplanting. The owner or owners of lands
forested as above provided, in order to secure the benefits of this section,
shall file with the conservation commission an affidavit making the due
proof of such planting or underplanting and setting forth an accurate
description of such lands, the town and county in which the same are
situated, the number of trees planted or underplanted to the acre and
the number of acres so forested, which affidavit shall remain on file in
the office of said commission. Upon the filing of such affidavit it shall
be the duty of the conservation commission to cause an inspection of
such forested lands to be made by a competent forester or other em-
ployee of said commission who shall make and file with said commission
a written report of such inspection. If the commission is satisfied from
the said affidavit and the report of inspection that the lands have been
forested as above provided, in good faith and bv adequate methods to
produce a forest plantation, and are entitled to the exemption of assess-
ment or to a reduction of assessment as provided in this section, it shall
make and execute a certificate under the seal of its office, and file the
same with the county treasurer of the county in which the lands so for-
ested are located, which certificate shall set forth a description of the
lands affected by this section, the area and owner or owners thereof, the
town or towns in which the same are situated, the description upon the
last assessment-roll which included said lands, the period of exemption
TAXABLE PROPERTY AND PLACE OF TAXATION. 488a

Tax Law, § 16.

or of reduction of assessment to which such lands are entitled and the
date of the expiration of such exemption or reduction of assessment.
Upon the filing of such certificate it shall be the duty of the county treas-
urer to file with the assessors of the tax district in which the lands de-
scribed therein are located within ten days after receipt thereof a certi-
fied copy of such certificate, and the assessors of such tax district shall
place the lands according tothe description contained in said certificate
upon the next assessment-roll prepared for the assessment of lands with-
in such tax district, and shall exempt, or reduce the assessment upon,
the lands so described as hereinbefore provided, and shall insert upon
the margin of said assessment-roll opposite the description of said lands,
a statement that in accordance with the provisions of this section of the
tax law said lands are exempt from taxation or that the assessment
thereof is reduced fifty per centum as the case may be and insert also
in the margin the date of the expiration of such exemption or reduction
of assessment and such lands shall continue to be exempted, assessed and
carried in such manner upon the. assessment-rolls of such town until
the date of the expiration of such exemption or reduction of assessment.
Lands which have been forested as above provided within three years
prior to the taking effect of this section may come within its provisions
if application therefor is made to the conservation commission within
one year from the time when this section takes effect, but except as pro-
vided by this section the period of exemption or reduction as certified
to by the conservation commission shall not exceed the period of thirty-
five years from the date of the original planting. Lands situated within
twenty miles of the corporate limits of a city of the first class, vr within
ten miles of the corporate limits of a city of the second class, or with-
in five miles of the corporate limits of a city of the third class, or within
one mile of the corporate limits of an incorporated village shall not be
entitled to the exemption or reduction of assessment provided for by
this section. In the event that lands exempted or reduced in taxation
as above provided shall, by act of the owner or otherwise, at any time
during the period of exemption or reduction in taxation cease to be used
exclusively as a forest plantation to the extent provided by this section
to entitle such land to the privileges of this section, the said exemption
and reduction in taxation provided for in this section shall no longer
apply and the assessors having jurisdiction are hereby empowered and
directed to assess the said land at the value and in the manner provided
by the tax law for the general assessment of land. If any land ex-
empted under this section continues to be used exclusively for the
growth of a planted forest after the expiration of the period of exemp-
tion provided hereby, the land shall be assessed at its true value and
the timber growth thereon shall be exempt from taxation, except if such
timber shall be cut before the land has been duly assessed and taxes
regularly paid for five consecutive years after the exemption period has
483b TAXATION.

Tax Law, § 17.

expired, such timber growth shall be subject to a tax of five per centum
of the estimated stumpage value at the time of cutting, unless such cut-
tings are thinnings for stimulating growth and have been made under
the supervision of the conservation commission. Whenever the owner
shall propose to make any cutting of such timber growth for a purpose
other than for thinning as above provided, he shall give thirty days’
notice to the assessors of the tax district on which the land is located,
who shall forthwith assess the stumpage value of such proposed cutting,
and such owner shall pay to the collector of the town in which such land
is situated before cutting such timber five per centum of such assessed
valuation. If such owner shall fail to give such notice and pay such
taxes he shall be liable to a penalty of three times the amount of such
tax, and the supervisor of the town may bring an action to recover the
same for the benefit of the town in any court of competent juris.tiction.
[Tax Law, § 16, as added by L. 1912, ch. 249.]

§ 7b, EXEMPTION AND REDUCTION IN ASSESSMENT OF LANDS MAtIN-
TAINED AS WOOD LOTS AND TO ENCOURAGE THE GROWTH OF
TREES FOR SUCH PURPOSES.

In order to encourage the maintenance of wood lots by private owners
and the practice of forestry in the management thervof, the owner of
any tract of land in the state, not exceeding fifty acres, which is occu-
pied by a natural or planted growth of trees, or by both, which shall not
be situated within twenty miles of the corporate limits of a city of the
first class, nor within ten miles of the corporate limits of a city of the
second class, nor within five miles of the corporate limits of a city of the
third class, nor within one mile of the corporate limits of an incorpo-
rated village, may apply to the conservation commission in manner and
form to be prescribed by it, to have such land separately classified for
taxation. Application for such classification shall be made in duplicate
and accompanied by a plot and description of the land, and such other
information as the commission may require. Upon the filing of such
application it shall be the duty of the commission to cause an inspection
of such land to be made by a competent forester for the purpose of de-
termining whether or not it is of a suitable character to be so classified.
If the commission shall determine that such land is suitable to be so
classified, it shall submit to the owner a plan for the further manage-
ment of said land, and trees and shall make and execute a certificate
under the seal of the commission and file the same with the county treas-
urer of the county in which the land is located, which certificate shall
set forth a description and plot of the land so classified, the area and
owner thereof, the town or towns in which the same is situated, and that
the land has been separately classified for taxation in accordance with
the provisions of this section. Upon the filing of such certificate it shall
be the duty of the county treasurer to file with the assessors of the tax
TAXABLE PROPERTY AND PLACE OF TAXATION. 488e

Tax Law, § 17.

district in which the land described therein is located, within ten days
after receipt thereof, a certified copy of such certificate. So long as the
land so classified is maintained as a wood lot, and the owner thereof
faithfully complies with all the provisions of this section and the in-
structions of the commission, it shall be assessed at not to exveed ten
dollars per acre and taxed annually on that basis. In fixing the value
of said lands for assessment, the assessors shall in no case take into ac-
count the value of the trees growing thereon, and said land shall not be
assessed at a value greater than other similar lands within the same tax
district, which contain no forest or tree growth, are assessed. The as-
sessors of each tax district where said land so classified is located shall
insert upon the margin of said assessment and opposite the description
of such land a statement that said land is assessed in accordance with
the provisions of this section. In the event that land so classified as
above prescribed shall at any time by act of the owner or otherwise
cease, in the judgment of the commission, to be used exclusively as a
wood lot to the extent provided by this section to entitle the owner of
such land to the privileges of this section, the exemption and valuation
in taxation provided for in this section shall no longer apply and the
assessors having jurisdiction shall, upon the direction of the commis-
sion assess the said land at the value and in the manner provided by the
tax law for the general assessment of land. Whenever the owner shall
propose to cut any live trees from said land, except for firewood or build-
ing material for the domestic use of said owner or his tenant, he shall
give the commission at least thirty days’ notice prior to the time he de-
sires to begin cutting, who shall designate for the owner the kind and
number of trees, if any, most suitable to be cut for the purpose for
which they are desired, and the cutting and removal of the trees so des-
ignated shall be in accordance with the instructions of said commission.
After such trees are cut and before their removal from the land, the
owner shall make an accurate measurement or count of all of the trees
cut and file with the assessors of the tax district a verified, true and ac-
curate return of such measurement or count and of the variety and
value of the trees so cut. The assessors shall forthwith assess the stump-
age value of the timber so cut, and such owner shall pay to the tax col-
lector of the town in which such land is situated, before the removal of
any such timber, five per centum of such valuation. If such owner
shall fail to give such notices and pay such taxes he shall be liable to a
penalty of three times the amount of such tax, and the supervisor of the
town may bring an action to recover the same for the benefit of the town
in any court of competent jurisdiction. [Tax Law, §17, as added
by L. 1912, ch. 363, in effect April 15, 1912.]

 

26a. Purpose and application. Opinion of Commr. of Education (1918), 18
State Dept. Rep. 417.
488d TAXATION.

Tax Law, §§ 5, 6.

8. TAXATION OF LANDS SOLD OR LEASED BY THE STATE.

All lands which have been sold by the state, although not conveyed,
shall be assessed in the same manner as if such purchaser were the actual
owner. Improvements not acquired by the state but situate on land
purchased by the state shall be assessed to the owner thereof. Where
land is leased by the state such leasehold interest, except in cases where
by the terms of the lease the state is to pay the taxes imposed upon
the property leased, shall be assessed to the lessee or occupant in the
tax district where the land is situated. [Tax Law, § 5, as amended
by L. 1916, ch. 323; B. C. & G. Cons. L., p. 5816.]

§ 9. ASSESSMENT OF REAL AND PERSONAL PROPERTY.

All real and personal property subject to taxation shall be
assessed at the full value thereof, provided, however, that the
owner of personal property shall be allowed a deduction from
the full value of all his taxable personal property to the extent of the
just debts owing by him but no such deduction shall be allowed by rea-
son of the indebtedness of the owner contracted or incurred in the pur-
chase of nontaxable property or securities owned by him or held for
his benefit,?” nor for or on account of any direct liability as surety,

 

27. Deduction because of purchase of non-taxable property. The first
clause of the above section to the effect that no deduction shall be made for
debts or liabilities contracted or incurred in the purchase of non-taxable
property applies to debts incurred in the purchase of imported goods not taxable
by the state. Imported tobacco in original packages, which has been subjected
to the duty under the U. S. Revenue Laws, is non-taxable property. The above
provision is not confined to cases where the debt was fraudulently contracted to
evade taxation. Nor is it unconstitutional as working a discrimination in tax-
ation. People ex rel. Bijur v. Barker, 155 N. Y. 330; 49 N. E. 940. A debt
incurred by a corporation in the purchase of the good will of the business
cannot be deducted from the value of its taxable personal property under the
above section. People ex rel. Cornell Steamboat Company v. Dederick, 161
N. Y. 195; 55 N. E. 927. Nor in purchase of a stock exchange seat, which
is non-taxable. People ex rel. Slade v. Comrs. of Taxes, 53 Misc. 336, 104 N. Y.
Supp. 756. Nor contingent liabilities, such as unearned premiums held as
reinsurance reserve by surety company. People ex rel. National Surety Co.
v. Feitner, 166 N. Y. 127. A corporation is entitled to deduct a debt incurred in
the purchase of stock of another domestic corporation taxable on its capital.
People ex rel. Keppler, etc. v. Barker, 22 App. Div. 120; 47 N. Y. Supp. 958;
affd., 155 N. Y. 661.

The amount of an existing indebtedness on bonds and mortgages issued by
railroads which, by statute, were merged into a new company liable for the
debts of the merged railroads, which were dissolved except for special purposes,
should be deducted from the property of the new company liable to taxation.
TAXABLE PROPERTY AND PLACE OF TAXATIGN, 489

Tax Law, § 7.

guarantor, indorser or otherwise, or for or on account of any debt or
liability contracted or incurred for the purpose of evading taxation.
[Tax Law, § 6, as amended by L. 1914, ch. 277; B. C. & G. Cons. L.,
p. 5817.]

§ 10. WHERE PROPERTY OF NON-RESIDENTS IS TAXABLE.

1. Nonresidents of the state doing business in the state, either as
principals or partners, shall be taxed on the capital invested in such busi-
ness, as personal property, at the place where such business is carried on,
to the same extent as if they were residents of the state.?®

People ex rel. Metropolitan Street Ry. Co. v. Barker, 121 App. Div. 661, 106 N. Y.

Supp. 336.
28. Constitutionality of section upheld, Duer v. Small, 4 Blatchf. 263; Brown

vy. Houston, 114 U. S. 633; New Orleans v. Stempel, 175 id. 309, 317.

The assessment of the capital stock of a foreign corporation invested in business
in this state does not impose a personal liability; it is in fact an assessment in
rem. The tax upon such assessment does not become a debt. Matter of Maltbie v.
Lobsitz Milk Co. (1918), 223 N. Y. 227, 233, revg. 179 App. Div. 395, 165 N. Y.
Supp. 550.

Intention and application of statute. This statute was intended to reach
the capital of non- residents employed within this state in continuous trade,
and not property sent here only to market for sale. So where a foreign corpora-
tion, engaged in manufacturing in another state, transmitted to its agent here
its manufactured product for sale, the proceeds being remitted at once, with
the securities received for sales made on credit, to the home office of the cor-
poration, it was held not to be doing business in this state within the meaning
of the statute. People ex rel. The Parker Mills v. Commissioners of Taxes, 23
N. Y. 242. Where the business of a foreign corporation carried on in this state
is intended by it to be a permanent and continuous business, including both the
manufacture and the sale of goods, the value of its merchandise at the place
designated by it as its principal place of business in this state is properly
assessed for taxation, under the above section of the Tax Law as being invested
in its business in this state, although the business conducted at that place
consists wholly of selling, and while a portion of the goods held there for sale
was manufactured by the corporation within this state, a large portion was
manufactured at the corporation’s domicile in another state, to which the /
proceeds of sales are remitted. People ex rel. Armstrong Cork Co. v. Barker,
157 N. Y. 159; 51 N. E. 1048.

Applies to deposits with superintendent of insurance. British Com. Life Ins.
Co. v. Comrs. of Taxes, 31 N. Y. 32; Smyth v. International Life Assurance Co.,
85 How. Pr. 126. Credits and bills receivable for goods sold in the state.
People ex rel. Burke v. Wells, 184 N. Y. 275, affg. 107 App. Div. 15, 95 N. Y.
Supp. 100. Property of non-resident placed in a trust company, income to be
paid to the settler and another. People ex rel Van Norden Trust Co. v. Wells,
118 App. Div. 381, 103 N. Y. Supp. 874. Does not apply to property sent here
only to market for sale. People ex rel. Parker Mills Co. v. Comrs. of Taxes, 23
N. Y. 242. Nor to money constantly subject to draft of foreign house. People
ex rel. Bank of Montreal v. Comrs. of Taxes, 59 N. Y. 40. Nor to the agent of
a foreign corporation. McLean v. Jephson, 132 N. Y. 142. Nor to securities
constituting part of a trust fund where two of the three trustees are non-
residents, although they represent investments in the state. People v. Comrs
of Taxes, 42 N. Y. St. Rep. 449, 17 N. Y. Supp. 928 (1891).
490 TAXATION.

Tax Law, § 7.

2. The personal property of nonresidents of the state having an actual
situs in the state, and not forming a part of capital invested in business

 

Where the evidence shows a plain intent to establish a continuous busi-
ness, the non-resident is taxable. People ex rel. Carey Mfg. Co. v. Comrs. of
Taxes, 39 Misc. 282, 79 N. Y. Supp. 485. A foreign corporation carrying on a
merely transitory business is not taxable under this section. People ex rel.
Goetz Silk Mfg. Co. v. Wells, 42 Misc. 86, 85 N. Y. Supp. 533, affd. 93 App.
Div. 613, 87 N. Y. Supp. 1144. Money temporarily on deposit for paying divi-
dends and the maintenance of an office for directors’ meetings does not subject
foreign corporation to taxation under this section. People ex rel. Dives-Pelican
Co. v. Feitner, 77 App. Div. 189, 78 N. Y. Supp. 1017. A foreign banking corpora-
tion having a large office in the city of New York, where foreign bills of
exchange are sold and drafts are paid, is in business in the state. People ex
rel. International Banking Corporation v. Raymond, 117 App. Div. 62, 102 N. Y.
Supp. 85. A non-resident dealer in foreign pictures maintaining a place for
the sale of pictures and keeping a bank account sufficient for current expenses
in the city of New York are taxable within the state. People ex rel. Durand-
Ruel v. Wells, 41 Misc. 144, 83 N. Y. Supp. 936, affd. 92 App. Div. 622, 87 N. Y.
Supp. 1144. A foreign corporation is doing business within the state and liable
to taxation under this section where it is continuously engaged, within the state,
in the importation and sale of foreign goods, and maintains an office in the city
of New York, at which the proceeds of the sales of its goods are received and
out of which all-of the expenses of the business in this country are paid, the
surplus only being remitted to the home office at convenient periods. People
ex rel. Farcy & Oppenheim vy. Wells, 183 N. Y. 264.

The value of notes and open accounts owing to the corporation for mer-
chandise sold by it in the transaction of its business in this state, is properly
included in the assessment. Idem.; see, also, People ex rel. Crane Co. v. Feitner,
49 App. Div. 108; 62 N. Y. Supp. 1107; People ex rel. Yellow Pine Co. v. Barker,
23 App. Div. 524; 48 N. Y. Supp. 558; affd., 155 N. Y. 665.

The section has no application to goods stored here for sale, the proceeds of
which are to be remitted to the foreign principal. People ex rel. Sherwin-
Williams Co. v. Barker, 5 App. Div. 246; 89 N. Y. Supp. 151; affd. 149 N. Y. 623.
It is not sufficient that a person is doing business in this state as an agent,
although solely with the property of his principal. To justify an assessment
under the above section it is indispensable that the person assessed shall in fact
have money invested in the business carried on by him in this state, either as
sole principal or as partner. McLean v. Jepson, 128 N. Y. 142; 25 N. E. 409.
The money value of the privilege enjoyed by a non-resident of the state of New
York, as a member of the New York Stock Exchange, is capital invested in
business in this state, but it is not taxable as personal property as against a non-
resident. People ex rel. Lemmon v. Feitner, 167 N. Y. 1.

Capital invested in business. No hard and fast rule can be laid down for
the determination as to what constitutes capital invested in business within the
meaning of this section. The fundamental element is the intent of the party as
gathered from the nature and character of the business carried on, the method of
its conduct and the declarations of the parties in connection therewith, The
circumstances of each case must be considered in arriving at a conclusion there-
in. People ex rel. Tower Co. v. Wells, 98 App. Div. 82, 90 N. Y. Supp. 313 (1904),
affd. 182 N. Y. 553.
TAXABLE PROPERTY AND PLACE OF TAXATION. 491
Tax Law, § 7.

in the state, shall be assessed in the name of the owner thereof for the
parpose of identification and taxed in the tax district where such property

 

Place and manner of assessment. A foreign corporation doing business in
this state, and having a principal office here, is taxable for moneys invested in
such business, as the personal estate of a domestic corporation is taxed, in the
town or ward of such office and the assessment at such place must be exciusive,
and embrace all its personal property liable to taxation within this state. An
assessment of personal property of a foreign corporation in the possession of an
agent in a town, other than that where such office is situated, by the assessors
of that town is void. People ex rel. Bay State, etc., Co. v. McLean, 80 N. Y. 254.
Moneys in the hands of a resident partner, belonging to a firm whose principal
place of business was in a foreign country, but which transacted business here,
are subject to taxation, though the business here consisted of purchasing prod-
ucts for sale abroad, and the moneys were here only for that purpose. Matter
of McMahon, 66 How. Pr. 190.

Where all the members are non-residents, it is not necessary to insert in the
roll the individual names of the partners. The assessment may be made in the
partnership name. People ex rel. Dufour v. Wells, 85 App. Div. 440, 83 N. Y.
Supp. 387, affd. 177 N. Y. 586. :

Assessment of rolling stock of foreign railroad company should be made in
the tax district where the principal office or place of business of said compzny
is located. Rept. of Atty. Genl., July 27, 1910.

Deduction for debts. In the case of People ex rel. Thurber-Whyland Co. v.
Barker, 141 N. Y. 118; ‘35 N. E. 1073, the court said: ‘‘ We are cf the opinion that
this act (the above section) does not contemplate the deduction of debts from
the sums invested in this state by non-residents. As the person is a non-resident,
it is to be assumed that he will, at the place of his domicile, have all of what
might be termed his equities adjusted, and that if entitled to it anywhere, it
will be at such domicile that he will claim and be allowed the right to have such
deduction. In using the expression ‘the same as if they were residents of this
state,’ we do not think it was intended that exceptions were to be allowed here
the same as if the party were a resident, or that deductions from the sum thus
invested should be made as if that were the case. It meant, as it seems to us,
that the sum invested in any manner in business in this state should be assessed
in the same manner and form as a resident would be assessed.” But where a
foreign corporation, doing business in this state, has purchased property in
this state for its business and pays cash for a portion of it and promises to pay
the balance at a future time, the amount due upon the property is to be deducted
in ascertaining the sums invested in this state. People ex rel. Milling Co. v.
Barker, 147 N. Y. 31; 41 N. E. 435; see, also, People ex rel. Bird v. Barker, 145
N. Y. 289; 39 N. BE. 1065. In the case of People ex rel. Barney v. Barker, 35 App.
Div. 486; 54 N. Y. Supp. 848, it was held that a non-resident having capital
invested in a firm doing business in, this state, is not entitled to have deducted
the amount of his indebtedness to residents unless it appears that he has no
personal property out of the state to pay such indebtedness.

The relation of a savings bank to its depositors is that of debtor and creditors,
and in assessing a foreign savings bank, upon stock of New York bank, held by
it, the amount of liability to its depositors shall be deducted from its assets.
People ex rel. Bridgeport Savings Bank v. Barker, 17 Misc. 180, 40 N. Y. Supp.
1001.

Deduction of debts of foreign corporation not made where such debts bear no
relation to the assets of the corporation in this state. People ex rel. Dunlap’s
Express Co. v. Raymond, 54 Misc. 330, 105 N. Y. Supp. 1007.
492 TAXATION.
Tax Law, § 8.

is situated, unless exempt by law. This subdivision shall not apply to
money, or negotiable collateral securities, deposited by, or debts owing to,
such nonresidents nor shall it be construed as in any manner modifying
or changing the law imposing a tax on real estate mortgage securities.
[Tax Law, § 7; B. C. & G. Cons. L., p. 5817.]

§ 11. PLACE OF TAXATION OF PERSONAL PROPERTY OF RESI-
DENTS; STATE BOARD OF TAX COMMISSIONERS MAY
DETERMINE PLACE.

Every person shall be taxed in the tax district where he resides when the
assessment for taxation is made, for all personal property owned by him,
or under his control as agent, trustee, guardian, executor or administrator.”

 

29. What constitutes residence. For the purpose of assessment for personal
property the residence of the taxpayer will be presumed to continue to be where
it has been previously shown to be until a change is affirmatively shown.
Matter of Nicholls, 54 N. Y. 62. The presumption that when a man has acquired
a residence in a tax district, such residence continues for the purpose of taxa-
tion until another residence shall have been acquired, can be overcome only by
affirmative and satisfactory evidence that such place of business has been
abandoned by the party assessed. People ex rel. Blocker v. Crowley, 21 App.
Div. 304; 47 N. Y. Supp. 457; see, also, Paddack v. Lewis, 59 App. Div. 130; 69
N. Y. Supp. 1. The declaration of an intention not to return to a domicile or to
longer reside in such place is not sufficient to effect a change. People ex rel.
Rosa v. Streeter, 24 Wk. Dig. 95; affd., 103 N. Y. 652.

The temporary occupation each year of an apartment in New York does not
establish residence. People ex rel. Lord v. Feitner, 78 App. Div. 287, 80 N Y.
Supp. 534 (1903).

Where a person resides in New York city during the winter months and has
his place of business in such city, he should be taxed there, although he resides
elsewhere during the summer months. Bartlett v. Mayor, etc., of New York, 5
Sandf. 44; see, also, Douglass v. Mayor, etc., of New York, 2 Duer, 110. But
in the case of People ex rel. Lorillard v. Parker, 70 Hun, 379; 24 N. Y. Supp. 63,
where it appeared that the relator lived in a hired house in the city of New
York during the winter, but lived during the rest of the year in a house owned
by him without the city, where he voted and was taxed, and that he was not en-
gaged in business in New York city, it was held that he was not a resident
of New York city and was not liable there for a tax upon his personal property.
If a person has two residences, the place where his family lives, where he stays
the greater part of his time, where he votes and is assessed for personal taxes
is his place of residence for the purpose of taxation. People ex rel. Lawrence
v. Barker, 44 St. Rep. 695, 17 N. Y. Supp. 788; see, also, People ex rel. Blocker
v. Crowley, 21 App. Div. 394, 47 N. Y. Supp. 457. Where one’s principal place of
business is in a city and he resides there part of the time and part of the time
on a farm in another town, he is properly taxable for his personal property in
the city ward in which he resides. Bowe v. Jenkins, 69 Hun, 458, 23 N. Y. Supp.
548; see, also, People ex rel. Gilbert v. Moore, 52 Hun, 18, 4 N. Y. Supp. 778.

Where the plaintiff had removed his residence from the town where he stil!
TAXABLE PROPERTY AND PLACE OF TAXATION. 493
Tax Law, § 8.

Where taxable personal property is in the possession or under the control
of two or more agents, trustees, guardians, executors or administrators
residing in different tax districts, each shall be taxed for an equal portion
of the value of such property so held by them.*® Rents reserved in any

 

conducted his business, returning there at intervals and staying at a hotel,—
held, that the assessors of the town were liable in damages for a sale of his
property to satisfy a tax assessed by them, though they were not aware of his
change of residence. Wade v. Matheson, 4 Lans. 158.

Residence is a matter of intention. Where a person has a house in each of
two towns he may choose to reside in either for the purpose of taxation. People
ex rel. Bolcher v. Crowley, 21 App. Div. 304, 47 N. Y. Supp. 457, affd. 155 N. Y.
700. i

A person, though domiciled in another state where he votes, may be taxable on
his personalty as a resident here, where he moves to New York and hires a
residence October 1st, and remains for the following year. Matter of Austin,
13 App. Div. 247, 42 N. Y. Supp. 1097.

Residence at the time when assessment is made. The above section provides
that the residence of a person on July first shall be deemed his residence for the
purpose of assessment and taxation during that year. In the case of Bell v.
Pierce, 51 N. Y. 12, it appeared that the plaintiff during the whole of the year
preceding June 20, resided in his own house in Buffalo, where his only business
was transacted. He also owned a house in West Seneca, where he passed the
summers with his family, attending meantime to his business in Buffalo, and
staying there occasionally over night. The assessors of West Seneca assessed
him upon his personal property and the tax was collected. After the statutory
notice no objection was made to the regularity of the assessment, and the
assessors were not aware that the plaintiff claimed another residence until the
delivery of the assessment roll to the supervisor. It was held that since the
plaintiff resided in West Seneca on July first, the assessors had jurisdiction to
assess him there, and were not liable in damages for their so doing.

A person taxed as trustee in New York city and county in 1901, claiming a
residence in the town of Southampton, Suffolk county, who was physically
present in that town on July 1, 1900, and remained there until October 1, 1900,
and then returned to New York city and resided there with his mother, voted
there in November, 1900, and was still there on the second Monday of January,
1901, when the annual “tax record” was open for public inspection, was prop-
erly taxed as a resident in New York city and county, in 1901. People ex rel.
Beers v. Feitner, 40 Misc. 368, 82 N. Y. Supp. 258.

The words “ when assessment is made” relate to the binding and conclusive
act of the assessors which designates the taxpayers and the amount of taxable
property held by each. This time must be the first day of July, the assessors
being required to complete their preparatory inquiries in May and June.
Myatt v. Washburn, 15 N. Y. 316. Residence by an owner of property in a town
during June, July and August, gives the assessors jurisdiction for the purpose
of assessment. Boyd v. Gray, 34 How. Pr. 323..

80. Assessment of trustees, executor, etc.. The above section does not au-
thorize the assessment of a tax upon personal securities belonging to trustees,
two of whom reside within this state, while the third who has possession of
the securities resides without the state, and the beneficiaries are also non-
494 TAXATION.

Tax Law, § 8.

lease in fee or for one or more lives or for a term more than twenty-one
years and chargeable upon real property within the state, shall be taxable
te the person entitled to receive the same, as personal property in the

 

residents. People ex rel. Darrow v. Coleman, 119 N. Y. 137; 23 N. E. 488. But:

in the case of People ex rel. Campbell v. Commissioners of Taxes, 38 Hun, 536,
it was held that the personal estate of the testator whose will was admitted
to probate in New York city is taxable there although one of the executors who
has actual possession and control of the property resides in another state, the
other executors being residents of, though temporarily absent from, New York.
See, also, People ex rel. Neustadt v. Coleman, 42 Hun, 581.

The term “trustee,” in § 5, must be limited in its application to a person ex-
pressly authorized by statute to hold the legal title to property in trust for some
specific purpose. The treasurer of a county is not such a “ trustee,” though the
legal depositary of trust funds, nor can the assessment be made to the court.
People ex rel. Brodie v. Cox, 14 St. Rep. 632, Sp. T.

Where the whole of an infant’s estate is vested in executors and trustees, and
neither of them resides in the county, and the property is assessed and pays
taxes in another county, no assessment can be made against the guardian in the
former county. Douglass v. Board of Supervisors, 1 N. Y. Supp. 126, Gen. T.

Upon a proceeding against administrators to collect a tax assessed upon them
as such, it appeared that the intestate, who had been a resident of another
state died there, leaving personal property and debts here, and that, pending
proceedings before the surrogate, the assessment had been made upon the valua-
tion of the whole personalty without deducting the indebtedness. It was held
that the assessment was properly made and that it was no defense that the ad-
ministrators did not know of the assessment. In this proceeding the valuation
could not be questioned and there was no ground for legal or equitable inter-
ference in behalf of the administrators. Matter of McMahon, 67 How. Pr. 113.

When personal property is held in trust by taxable inhabitants of the state,
it is to be taxed at their place of residence without regard to the residence of
the person creating the trust, or that of the person benefited by it. This rule
applies to the case of a sinking fund raised and owned by a foreign corpora-
tion. The cestui que trust in this case was the city of Albany. People ex rel.
Western R. R. Co. v. Assessors of Albany, 40 N. Y. 154.

Where a testator had resided in Westchester, his will was proved there and
letters testamentary issued to his sons, who resided there, as well as to other
persons who resided in New York city, and the other persons had no actual pos-
session or control of the property,—held, that an assessment of the personalty
in New York was erroneous. People ex rel. Caswell v. Comrs. of Taxes, 17 Hun
£93.

Personal estate in the hands of an agent is properly assessed to him without
the addition to his name of his representative character. People ex rel. Hoffman
v. Bug, 13 Abb. N. C. 169.

Under the statutes relating to the city of Albany, an assessment of personal
property of an estate in the single name of one executor “ and others ” is suffi-
cient and its subsequent amendment in the official revision by inserting the
names of the four executors and correcting the amount assessed is regular.
People ex rel. McHarg v. Gaus, 169 N. Y. 19; 61 N. E. 987. An assessment for
personal property, levied in the city of New York, against a trustee who was a
TAXABLE PROPERTY AND PLACE OF TAXATION. 495

Tax Law, § 8.

tax district where such real property is situated, at a principal sum, the
interest of which at the legal rate per annum shall produce a sum equal
to such annual rents, and if payable in anything except money, at the
value of the rents in money to be ascertained by the assessors, the value
- of each rent to be assessed separately, and for the purpose of the taxation
thereof such person is to be deemed -a resident of such tax district.”
When a person shall have acquired a residence in a tax district, and
shall have been taxed therein, such residence shali be presumed to con-
tinue for the purpose of taxation until he shall have acquired another
residence in this state or shall have removed from this state. The resi-
dence of a person on July first shall be deemed his residence for the
purpose of assessment and taxation during that year. If he shall have
actually and in good faith changed his residence after July first, and
before August first in any year, from one tax district to another, and
shall make proof to the assessors at or before their last meeting for the
correction of the assessment-roll of such change of residence and that he

 

resident of the state of New York, but not of the city of New York, is void for
want of jurisdiction, and it is not necessary for the trustee to apply on review
day to have the assessment cancelled. Dale v. City of New York, 71 App. Div.
227; 75 N. Y. Supp. 576. See, also, People ex rel. Moller v. O’Donnel, 183 N. Y. 9.

Personal property held by trustees jointly. Where taxable personal prop-
erty is held by two or more trustees jointly, each trustee must be assessed in the
tax district in which he resides for his proportionate share of such trust estate,
and where taxable personal property is held by three trustees, two of whom are
residents and the other a non-resident of the state, each resident trustee should
be assessed for one-third of all of the taxable property of the trust estate.
People ex rel. Beaman v. Feitner, 168 N. Y. 360.

One or two trustees a non-resident. An assessment against property valued
at $50,000, held jointly by two trustees, one of whom is a non-resident, is illegal.
A reduction in such an assessment to one-half thereof is necessary and proper
under this section. People ex rel. Kellogg v. Wells, 182 N. Y. 314, revg. 101
App. Div. 600, 92 N. Y. Supp. 5.

Assessment where one of the executors is a non-resident. The amount of an
assessment for personal property under the control of executors and trustees is
not, by reason of the non-residence of the third executor and trustee, limited to
two-thirds of the amount of the personal property. In making an assessment
upen such property such executors are not entitled to a deduction on account of
mortgages which were liens upon parcels of real estate when acquired by the
testator, but which the testator had not assumed. People ex rel. Farmers’ Loan
& Trust Co. v. Wells, 94 App. Div. 4638, 87 N. Y. Supp. 745, affd. 179 N. Y.
566.

31. Rents reserved. Rents not due on leases for years are not taxable as per-
sonal property. People ex rel. Thompson v. McComber, 24 N. Y. St. Rep. 902, 7 N.
Y. Supp. 71. The fact that relator changed mortgages and other securities inte
real estate, and then gave leases to avoid personal taxation, is not material on
the question of his liability so long as he violated no law. Id.

Taxes upon rents reserved in perpetual lease assessed against lessor are not
payable by the lessee under a covenant to pay “all taxes, etc., assessed on the
premises, or the lessors in respect thereof.” Woodruff v. Oswego Starch Factory,
70 App. Div. 481, 74 N. Y. Supp. 961, affd. 177 N. Y. 23.
496 TAXATION.

Tax Law, § 9.

is assessed in the tax district to which he has removed, his name and the
assessment of his personal property shall be stricken from the assessment-
roll of the tax district where he resided on July first. In case of any con-
troversy as to the proper place of taxation within the state of any person,
his residence for purposes of taxation may be determined by the tax commis-
sion, subject to review by the court. [Tax Law, § 8, as amended by L.
1914, ch. 277, and L. 1916, ch. 323; B. C. & G. Cons. L., p. 5819.]

§ 12. PLACE OF TAXATION OF REAL PROPERTY.

Real property shall be assessed as of July first in the tax district in
which it is situated.** In all cases the assessment shall be deemed as against

 

32, Jurisdiction of assessors. The only fact necessary to give assessors jurisdic-
tion as to real estate is that it be situated within the assessor’s town or ward. In
making an assessment upon such land they have jurisdiction of the subject matter,
and while an error committed by them may be subject to review, it will not make
their proceedings void. Wan Rensselaer v. Cottrell, 7 Barb. 127. In the case of
Tebo v. City of Brooklyn, 134 N. Y. 341, 31 N. E. 984, a lot of land under water
with a pier upon it extending from the city of Brooklyn beyond low water mark,
the boundary line between New York and Kings counties, was held properly taxable
in Brooklyn where the owner resided. ,

Assessment of railroad lands. The lands of railroad companies are to be assessed
the same as those of residents in the towns in which they lie and not as non-resi-
dent lands. People ex rel. Dunkirk, ete, R. R. Co. v. Cassity, 46 N. Y. 46. A
railroad corporation is, for the purpose of taxation of its real estate, a resident of
each town through which it passes, and is properly assessed in personam therefor.
People ex rel. Buffalo & State Line R. R. Co. v. Supervisors of Erie, 48 N. Y. 93.

A special franchise can only be assessed to « tenant or an occupant when the
owner does not reside within the tax district. People ex rel. Interborough R. T.
Co. v. Tax Comrs., 126 App. Div. 610, 613, 110 N. Y. Supp. 577.

Contracts for the sale of land should be assessed against the person holding them,
and the land should be assessed against the purchaser in possession. Rept. of Atty.
Genl. (1900), 241.

Waiver of irregularity. While the assessors of « town have no jurisdiction of
the person of a non-resident so as to charge him personally with a tax on land
TAXABLE PROPERTY AND PLACE OF TAXATION. 499

Tax Law, § 10.

the real property itself, and the property itself shall be holden and liable
to sale for any tax levied upon it.33 [Tax Law, § 9, as amended by L. 1911,
ch, 315, and L, 1916, ch. 323.]

§ 13. TAXATION OF REAL PROPERTY DIVIDED BY LINE OF TAX
DISTRICT; WHEN OWNERS MAY ELECT IN WHICH DIS-
TRICT SHALL BE TAXED.

Section 10 of the Tax Law, relating to the taxation of real property
divided by line of tax district, was repealed by L. 1917, ch. 154, and now

 

owned but not occupied by him, where the agent of such owner had appeared before
the assessors and procured a reduction, without protest against the assessment
against the owner,— held, that this was such a waiver as would bar an action by
the owner for damages for an illegal assessment. Hilton v. Fonda, 86 N. Y. 348.
Effect of amendments on decisions. The various amendments have rendered many
of the earlier decisions obsolete. The individual assessed is now inconsequential
as the assessment is againt the real property itself. It was accordingly held in
Smith v. Russell (1916), 172 App. Div. 793, that this section and § 63 construed

together evince a lcgislative intent to place the burden of a tax upon the real
property itself and to make the name of the person to whom it is assessed secondary
and merely for the purpose of identification.

See also People ex rel. N. Y. C. & H. RB. BR. Co. v. Mealey (1918), 224 N. Y. 187,
affg. 179 App. Div. 951, 165 N. Y. Supp. 1106.

33. Assessment to occupant. When lands of a non-resident of a county are occu-
pied by « resident of a town where they are situated they must be assessed to
the occupant. An assessment of them as non-resident is void. Stewart v. Crisler,
100 N. Y. 378; Joslyn v. Rockwell, 128 N. Y. 334, 28 N. E. 604. An assessment to
a person who is neither owner nor occupant of the land is void. Whitney v. Thomas,
23 N. Y. 281. When real property is assessed to the owner the name of the owner
must be inserted in the roll; when assessed to the occupant, the name of the occu-
pant should appear. Where real estate was assessed in th name of one not the
owner adding the words “or occupant,” it was held that the roll was fatally de-
fective and would not support process against property in the possession of the oc-
cupant. Dubois v. Webster, 7 Hun 371. The assessors are not authorized to name
in their rolls the actual or supposed non-resident owners of lands. The lands are
to be assessed, not the owners. New York & Harlem R. R. Co. v. Lyon, 16 Barb.
651. An assessment against the husband of the owner of a house and not living
with her therein is void, he being neither owner nor occupant. Loomis v. Semper,
38 Misc. 567, 78 N. Y. Supp. 74.
498 TAXATION.

Tax Law, § 10.

the portions of such property located in each tax district is to be assessed
there.®5

 

Assessment of unoccupied lands as non-resident. Article 2 of the Tax Law re-
ferred to in the above section prior to its amendment in 1911, is made the subject
of the following chapter of this work. The terms “unoccupied” and “ non-resi-
dent” as applied to lands within the meaning of the tax laws, are not synony-
mous. Lands, although occupied, may be assessed as non-resident lands, while un-
occupied lands may be assessed as resident. People ex rel. Vander Veer v. Wilson,
125 N. Y. 367, 26 N. E. 454. Non-resident lands are unoccupied lands not owned
by a person residing in the town or ward in which such lands are situated. Hamp-
ton v. Hampsher, 46 Hun 147.

An assessment in the name of the husband, living with his family, on property
the title to which was in his wife, is not void, he being occupant as head of the
family. Powell v. Jenkins, 14 Misc. 83, 69 N. Y. St. Rep. 582, 35 N. Y. Supp. 265.

Assessment to occupant need not indicate that the lands are non-resident. People
ex rel. Hoffman v. Bug, 13 Abb. N. C. 169.

85. Repeal; effect. By the repeal of section 10 of Tax Law, property divided by
town line is to be taxed in the towns in which the property is located. Former
decisions on the effect of the division on the jurisdiction of assessors are no longer
applicable.

Forest land. The section only applied to farms and lots a division of which
would be inconvenient. It does not apply to a large tract of forest land lying in
two districts. People ex rel. Low v. Wilson, 113 App. Div. 1, 98 N. Y. Supp.
1080.

Boundary line between village and town. Where a farm is divided by a boundary
line between a town and village incorporated under the Village Law, the part
thereof within the boundaries of the village is assessable for village purposes. The
section did not apply in such a case since such a village is not a tax district.
People ex rel. Champlin v. Gray, 185 N. Y. 196, revg. 109 App. Div. 116, 95 N. Y.
Supp. 825.

School districts. The section did not apply to land lying in more than one school
district, as a school district is not a tax district. Rept. of Atty. Genl. (1903),
431.

Dwelling-houses or other principal buildings. Where a large tract of land
S$ situated in two towns and several dwellings are erected thereon, some in one
TAXABLE PROPERTY AND PLACE OF TAXATION. 499
Tax Law, § 11.

§ 14. CORPORATIONS; PLACE OF TAXATION; PERSONAL PROP-
ERTY TO BE TAXED WHERE PRINCIPAL OFFICE IS LO-
CATED; TAXATION OF TOLL BRIDGES AND TURNPIKES.

The real estate of all incorporated companies liable to taxation, shall
be assessed in the tax district in which the same shall lie, in the same
manner as the real estate of individuals. All the personal estate of every
incorporated company liable to taxation on its capital shall be assessed
in the tax district where the principal office or place for transacting the
financial concerns of the company shall be, or if such company have no
principal office, or place for transacting its financial concerns, then in the
tax district where the operations of such company shall be carried on.**

In the case of a toll bridge, the company owning such bridge shall be

assessed in the tax district in which the tolls are collected; and where the

tolls of any bridge, turnpike, or canal company are collected in several
tax districts, the company shall be assessed in the tax district in which the
treasurer or other officer authorized to pay the last preceding dividend

resides. [Tax Law, § 11; B. C. & G. Cons. L., p. 5828.]

 

town and some in the other, the fact that the larger dwelling is occupied by a
son of the owner who is in charge of the tract does not make the land taxable
in the town where such dwelling is erected. Chamberlain v. Sherman,
53 Mise. 477, 103 N. Y. Supp. 239.

Effect of general law upon special act. Special acts have been passed from
time to time providing for the payment by taxation of town bonds issued for
the construction of railroads. For instance, in chapter 152 of L. 1882, sec.
25, as amended by ch. 21, of L. 1883, it is provided that all real property within.
th2 corporate limits of a town assessed or liable to be assessed upon the assess-
ment roll of such town at the time of issuing bonds by said town pursuant
to this act, and all acts amendatory thereof, shall continue to be assessed and
assessable for all purposes whatsoever in said town until said bonds or any
renewals thereof are fully paid; and if the owner of such real property does
not reside within said town, then such real proverty shall be assessed as non-
resident land or to any occupant of said real property actually residing within
paid town. This statute was under consideration in the case of Casterton v.
Town of Vienna, 163 N. Y. 268; £7 N. ™. €22, and it was held that the general
low did not supersede the provisiors of the speciol act and that under such a
statute a change made in the residence cf the owrer of a farm situated partly
in two towns from the portion of the farm in ore town to that in the other
would not withdraw from taxation the portion of his farm within the town
from which he moved. See, also, Wilcox v. Baker, 22 App. Div. 299; 47 N. Y.
Supp. 900.

36. Place of taxation of personal property of corporation. Under section 205
of the Tax Law the personal property of every corporation, company, association
or partnership taxable under article 9 of the Tax Law, other than for the organi-
zation tax, are exempt from assessment and taxation upon its personal property
for state purposes. Trust companies which are taxable under section 188 of the
Tax law upon their capital stock surplus and undivided profits are exempt from
assessment and taxation for all other purposes.

Manufacturing and mercantile corporations are exempt from taxation on account
or personal property since they are subject to an income tax, a portion of which is
apportioned to the town. See Tax Law, § 219j, as added by L. 1917, ch. 726.
500 TAXATION.
Tax Law, § 12.

§ 15. TAXATION OF CORPORATE STOCK OF CORPORATIONS.

The capital stock 37 of every company liable to taxation, except such
part of it as shall have been excepted in the assessment-roll or shall be
exempt by law, together with its surplus profits or reserve funds exceeding

 

The certificate of incorporation naming the place where the principal office
.of the corporation is located is conclusive as to its location for the purpose
of taxation. Western Trans. Co. v. Scheu, 19 N. Y. 408. See, also, Union
Steamboat Co. v. City of Buffalo, 82 N. Y. 351; Chesebrough Mfg. Co. v. Cole-
man, 44 Hun, 545; People ex rel. Knickerbocker-Press v. Barker, 87 Hun,
341, 34 N. Y. Supp. 269; People ex rel. Gen. Electric Co. v. Parker, 91 Hun,
590; 36 N. Y. Supp. 844.

In the case of Austin v. Hudson River Telephome Co., 73 Hun, 96; 25
N. Y. Supp. 916, it was held that, where the act under which a corporation
was organized did not require that the article should state where the
principal office of the corporation should be established, the statement that
it was to be in a certain place was not conclusive, but its actual principal
place of business would determine its residence. Where the principal office
is stated by a corporation to be at a certain place in a sworn statement
of an officer filed in the office of the assessor, the corporation is estopped
from claiming that the place of business for the purpose of taxation is at
some other place. Matter of McLean, 138 N. Y. 158; 33 N. E. 821.

Situs of property. The personal property within this state, of corpor-
ations, whether domestic or foreign, is taxed at the place where its principal
office, within this state, is located, without regard to the particular situs
of the property. People ex rel. The Keystone Gas Co. v. The Assessors of
Olean, 15 N. Y. St. Rep. 461.

37. Manufacturing and mercantile corporations are exempted from tax
on capital stock by virtue of § 219j of Tax Law, as added by L. 1917,
ch. 726.

Capital stock. The words “capital stock” in the statute refer to the
capital of the company and not the shares of the stockholder. People
ex rel. Union Trust Co. v. Coleman, 126 N. Y. 433; 27 N. HE. 818. In
taxing corporations, therefore, under the above section the subject of valu-
ation and assessment is never the share stock, but always the company’s
capital and surplus which should be assessed at its actual value when
that is known or can be ascertained. The court, in the case last cited, in
considering this question discussed elaborately the relative significance of
the capital stock of the company and the capital stock which is held in
shares by the corporators. It was said: ‘‘The two things are neither identi-
cal nor equivalent. The capital stock of a company is one thing; that of
the stockholders is another and a different thing. That of the company
is simply its capital, existing in money or property, or both; while that
of the shareholders is representative, not merely of that existing and tangible
capital, but also of surplus, of dividend earning power, of franchise and the
good will of an established and properous business.’”’ See, also, People ex
rel. Johnson Co. v. Roberts, 159 N. Y. 70; 53 N. E. 685; People ex rel.
Wiebusch, etc., Co. v. Roberts, 154 N. Y. 101, 47 N. E. 980; People ex rel.
Singer Mfg. Co. v. Wemple, 150 N. Y. 46; 44 N. E. 787; People ex rel.
Jewelers Publishing Co. v. Roberts, 155 N. Y. 1, 4; 49 N. E. 248. See
People ex rel. Butterick Pub. Co. v. Purdy, 153 App. Div. 665, 138 N. Y.
Supp. 707, mod. in 207 N. Y. 771; People ex rel. Federal Terra Cotta Co. v.
Purdy (1920), 229 N. Y. 519, 129 N. E. 898, affg. (1919), 189 App. Div.
131, 178 N. Y. Supp. 316; People ex rel. Simms Magneto Co. v. Purdy
(1920), 229 N. Y. 520, 129 N. E. 898, affg. 189 App. Div. 134, 178 N. Y.
Supp. 318; People ex rel. Port & McCord v. Cantor (1919), 108 Mise. 632,
178 N. Y. Supp. 579.

What is included in capital. The capital of a corporation is the actual
value of all its tangible property, including the value of its real estate,
wherever situated. People ex rel. Manhattan Ry. Co. v. Barker, 146 N. Y.
30, 40 N. E. Rep. 996, 66 N. Y. St. Rep. 658.

A corporation having its entire capital invested in the capital stock of cer-
tain Pennsylvania corporations which are liable to assessment in Pennsyl-
vania, is exempt from personal taxation in local tax districts. Rep. of Atty.
Genl., July 26, 1910.
TAXABLE PROPERTY AND PLACE OF TAXATION. 501
Tax Law, § 12.

ten per centum of its capital,?* after deducting the assessed value of its
real estate, and all shares of stock in other corporations actually owned
by such company which are taxable upon their capital stock’ under the

 

Theory of taxing corporate stock. The theory of the Tax Law is to prescribe
a method of computation by which to ascertain a total valuation of the taxable
corporate property from which a deduction of the assessed value of its real
estate may be made in order to determine the balance which is properly assess-
able as its personal property. People ex rel. Equitable Gas-Light Co. v. Barker,
144 N. Y. 94, 89 N. BE. Rep. 18, 63 N. Y. St. Rep. 38, revg. 81 Hun 22, 62 N. Y.
St. Rep. 568, 30 N. Y. Supp. 586.

Capital stock of railroad corporation. The capital stock of a railroad cor-
poration which is not invested in its railways, or other real estate, is to be
taxed as personal property, in the town or ward where the principal office or
place for transacting the financial concerns of the company is situated. Mohawk
& H.R. R. Co. v. Clute, 4 Paige, 384. In fixing the value of a lease of railroad
property for the purpose of assessing the capital stock and surpius of the
lessee corporation, the assessors have the right to consider the nature of the
estate granted to the lessee corporation, its duration and the profits, if any,
realized from operating the leased property, but should deduct therefrom the
value of the leased franchise, as the lease of the franchise is taxable under
another statute. People ex rel. D. & H. Co. v. Feitner, 61 App. Div. 129, 70
N. Y. Supp. 500, affd. 171 N. Y. 641.

The capital ard surplus of a railroad corporation cannot be assessed where
it appears that its railroad is leased at an annual rental of 8 per cent. of its
capital stock, and it possesses no other assets. The tax commissioners cannot
take into consideration the earning power of such stock in determining the
value of its property. People ex rel. N. Y. C. & H. R. R. Co. v. Feitner, 75
App. Div. 527, 78 N. Y. Supp. 308, affd. 174 N. Y. 532.

Street railroad. In determining the amount of capital stock of a street rail-
way liable to taxation, the value of leases of other roads held by it should be
included; but that value should not be based on the value of the fee owned by the
lessor, but only upon the actual value to the lessee of the leases as shown by
evidence. When the fee value of the leased railroads has been assessed to the
lessor and the lessee has paid the amount as part of the rent reserved, it
should not again be compelled to pay taxes on the fee value, as that would be
double taxation. People ex rel. Metropolitan Street R. Co. v. Barker, 121 App.
Div. 661, 106 N. Y. Supp. 336.

88. Section construed as to exception and surplus profits. In speaking of
the provisions of this section Judge Earl said in the case of People ex rel.
23d St. R. R. Co. v. Commissioners of Taxes, 95 N. Y. 554, 557: “There is a
most extraordinary confusion of ideas in this section. What is meant by the
clause, ‘except such part of it (capital stock), as shall have been excepted in
the assessment roll?’ I know of no law which authorizes any such exception
to be made in the roll. Then the section, literally read, requires that the actual
valuation shall be placed both upon the capital and the surplus, and yet the
surplus is always included in and goes to make up the actual value of the cap-
ital. Notwithstanding the language, it could not have been intended that
capital should be assessed at its actual value, and that in addiion thereto the
surplus, less the ten per cent., should also be included in the assessment at its
actual value, thus making a double assessment of surplus.”
502 TAXATION.
Tax Law, § 12.

laws of this state, shall be assessed at its actual value.*® [Tax Law, §
12: B. C. & G. Cons. L., p. 5829.]

 

Deduction of 10 per cent. of capital will only be allowed where surplus equals
that amount. People ex rel. Citizens’ Elec. Ill. Co. v. Neff, 26 App. Div. 542, 50
N. Y. Supp. 680. For what surplus profits or reserve funds are, and when
assessable, see People ex rel. Manhattan Ry. Co. v. Barker, 165 N. Y. 305.

39. Valuation, how ascertained. The capital stock should be assessed at its
real, as distinguished from its nominal value. The par value of the shares of
stock is not material in determining the actual value of the capital stock.
Oswego Starch Factory v. Dolloway, 21 N. Y. 449. The value may be ascer-
tained from other sources as in valuing real estate. People ex rel. Pacific Mail
S. S. Co. v. Commissioners of Taxes, 46 How. Pr. 315. If the capital of a
corporation is of no value because of the fact that its indebtedness exceeds its
assets, it should not be assessed. People ex rel. West Side and Yonkers R. R.
Co. v. Commissioners of Taxes, 31 Hun, 32. An assessment of a corporation
besed upon the market value of its shares is erroneous since it is the corporate
assets that is the subject of taxation. People ex rel. Bleecker St., etc., R. R.
v. Barker, 85 Hun, 210; 32 N. Y. Supp. 990.

The method of ascertaining the actual value is left to the judgment of the
assessors and they have a right to resort to any and all of the tests and meas-
ures of value which are ordinarily adopted for business purposes in estimating
values. Where the assessors have so exercised their judgment it is subject to no
review or correction except as prescribed by law. People ex rel. Knickerbocker
Fire Insurance Co. v. Coleman, 107 N. Y. 541.

In ascertaining the amount for which a corporation is liable upon its corporate
stock and surplus, a greater value cannot be placed upon corporate real estate,
which constitutes its entire capital and surplus, than that placed on the same
Teal estate, when assessed generally for purposes of taxation. People ex
rel. Merchants’ Real Estate Co. v. Wells, 110 App. Div. 194, 97 N. Y. Supp.
47.

Market value of stock. The market value of its stock may be taken into
consideration in determining the value of the corporate property. People ex
rel. Knickerbocker Fire Ins. Co. v. Coleman, 44 Hun 410 (1887), affd. 107 N. Y.
541, 14 N. E. Rep. 431. But where the value of the assets of a corporation
cannot, owing to conflicting and insufficient data, be definitely ascertained, the
proper way to establish a valuation, for the purposes of taxation, is to deduct
the assessed value of its real estate from the market value of its stock. People
ex rel. Malcolm Brewing Co. v. Neff, 19 App. Div. 596; 46 N. Y. Supp. 299.
In this case it was also held that while the good will of the business of a
corporation is not taxable no deduction from the actual value of the capital
of the corporation should be made therefor where the facts show that there
is no good will of any value which enters into the market value of the shares
of stock. But it is erroneous to base the value of the capital upon the market
value of the corporate shares, as it is the actual value of the property and not
the selling value of the corporate shares which is assessable. People ex rel.
Bleecker St., etc., v. Barker, 85 Hun 210, 66 N. Y. St. Rep. 474, 32 N. Y. Supp.
990 (1895).

It has been held, however, where the market value of the shares was taken
as the basis of the value of the capital, the assessment is not void and the
TAXABLE PROPERTY AND PLACE OF TAXATION. 502a
Tax Law, § 219h.

'$ 15a. INCOME TAX ON MANUFACTURING AND MERCANTILE COR-
PORATIONS; RATE OF TAX; DISPOSITION OF REVENUES
COLLECTED AMONG TOWNS AND COUNTIES.

Franchise tax on corporations based on net income.— For the privilege of
exercising its franchises in this state in a corporate or organized capacity
every domestic manufacturing and domestic mercantile corporation, and
for the privilege of doing business in this state, every foreign manufacturing
and every foreign mercantile corporation, except corporations specified in
the next section, shall annually pay in advance for the year beginning
November first next preceding an annual franchise tax, to be computed by
the tax commission upon the basis of its net income for its fiscal or the
calendar year next preceding, as hereinafter provided, upon which income
such corporation is required *to pay a tax to the United States. [Tax
Law, § 209-a, as added by L. 1917, ch. 726.]

Corporations exempt from article Corporations liable to a tax under
section one hundred and eighty-four of this chapter, corporations owning
or operating elevated railroads or surface railroads not operated by steam,
or formed for supplying water or gas or for electric or steam heating, light-
ing or power purposes and liable to a tax under sections one hundred and
eighty-five and one hundred and eighty-six of this chapter, shall be exempt
from the payment of the taxes prescribed in this article. [Tax Law, § 210,
as added by L. 1917, ch. 726.]

Rate of tax.— The tax imposed by this article shall be at the rate of three
per centum of the net income of the corporation or portion thereof taxable
within the state, determined as provided by this article. [Tax Law, § 215,
as added by L. 1917, ch. 726.]

Disposition of revenues collected—The state comptroller shall on or
before the twenty-fifth day of each month pay into the state treasury
to the credit of the general fund all interest and penalties and two-
thirds of all taxes deposited under this article during the preceding
calendar month. The balance of all taxes deposited under this article
shall on or before the twenty-fifth day of April, July, October and
January, for the quarter ending with the last day of the preceding
month, be distributed and paid by him to the treasurers of the several
counties of the state and disposed by such treasurers, in accordance
with-the following rules: [Paragraph amended by L. 1921, ch. 443,
and L. 1922, ch. 507.]

1. If the corporation has no tangible personal property within the
state, such payment shall be made to the county treasurer of the
county in which is located the office at which its principal financial
concerns within the state are transacted ;

2. If the corporation has tangible personal property, as shown by its
report pursuant to section two hundred and eleven, in but one city or
town of the state, such payment shall be made to the county treasurer
of the county in which snch citv or town is located ;

38. df the corporation has real property or tangible personal property
502b TAXATION.

Tax Law, § 219h.

in more than one city or town of the state, as shown by its report pur-
suant to section two hundred and eleven, such payment shall be made
to the county treasurers of the counties in which such cities or towns
are located in the proportion that the average monthly value of the
tangible personal property of such corporation in the cities and towns
of such county bears to the average monthly value of all its real prop-
erty and tangible personal property within the state;

4. In making such payment to a county treasurer, the state comp-
troller shall indicate the portion thereof to be credited to any city or
town within the county on account of the location therein of its prin-
cipal financial office or property as determined by the preceding subdi-
visions, and if such principal financial office or property is located in a
village shall indicate the village in which it is located ; if such principal
financial office or property is located in a city or in a town outside
of a village, the whole of such portion shall be paid to such city or
town as hereinafter provided ; if such principal financial office or prop-
erty is located in a village, there shall be paid to such village as here-
inafter provided such a part of the entire amount credited to the town
as the entire amount of taxes raised by said village, or portion there-
of in said town, during the preceding calender year for village and
town purposes bears to the aggregate amount so raised by the town
and village during the preceding calendar year for town and village
purposes property in such village or portion thereof in such town as
appears by the last preceding town assessment-roll bears to twice
the total assessed valuation of the real and personal property in such
town as appears by such assessment-roll.

5..As to any county wholly included within a city such payment
shall be made to the chamberlain or other chief fiscal officer of such
city and-be paid into the general fund for city purposes;

6. As to any county not wholly included within a city the county
treasurer shall within ten days after the receipt thereof pay to the
chief fiscal officer of a city or to the chief fiscal officer of a vil-
lage or to the supervisor of a town the portion of money received
by him from the state comptroller to which such city, village or town
is entitled, which shall be credited by such officer to general city,
village or town purposes. The sum so paid to the supervisor of a town
in Onondaga county shall be further distributed by him as provided
in subdivision seven following. [Subd. 6, amended by L. 1921, ch. 447,
and L. 1922, ch. 654.]

7. Upon the distribution of such revenues as hereinbefore provided
the entire allotment of any town in Onondaga county paid to the
supervisor thereof shall be further distributed by him as follows: One-
third thereof shall be apportioned among the several school districts
in such town in the proportions that the total amount of the assess-
ed valuation of all the real property of such corporations in each of
said school districts, respectively, or part thereof in such town, bears
to the aggregate assessed valuation of all the real property of such
corporations in the entire town, as the same appears unon the last pre-
ceding town assessment-roll. The balance thereof shall be retained by
him and credited to general town purposes. [Tax Law, § 219h, as
added by L. 1917, ch. 726, and amended by L. 1918, ch. 417, and L.
1921, chs. 443, 447: subd. 7, added by L. 1921, ch. 447, and amended
by L. 1922, ch. 654.]
TAXABLE PROPERTY AND PLACE OF TAXATION. 503
Tax Law, § 13.

§ 16. STOCKHOLDERS OF BANK TAXABLE ON SHARES.

The stockholders of every bank or banking association organized under
the authority of this state, or of the United States, shall be assessed and
taxed on the value of their shares of stock therein; said shares shall be

 

amount will not be reduced, unless it appears that the corporation was
aggrieved. People ex rel. Equitable Gas-Light Co. v. Barker, 66 Hun 21, 49 N. Y.
St. Rep. 428, 20 N. Y. Supp. 797 (1892), affd. 187 N. Y. 544.

The market rate of a stock is a deceptive test, justifiable, if at all, by
necessity only. People ex rel. Consol. Gas. Co. v. Feitner, 38 Misc. 178, 77 N. Y.
Supp. 745 (1902), modf. 78 App. Div. 3138, 79 N. Y. Supp. 975 (1903).

Evidence of value of capital. In ascertaining the value of the corporate
stock the assessors have the right to act upon evidence outside of that furnished
by the corporation, and in making inquiry and collecting facts they are not
bound by the strict rule which governs ordinary judicial proceedings. Their de-
cision will be sustained if they act in good faith upon their best judgment, upon
reasonable grounds, and do not err in the principle of assessment to the pre-
judice of the taxpayer. People ex rel. Equitable Gas-Light Co. v. Barker, 144
N. Y. 94, 39 N. E. Rep. 18. They may consider the earnings of the corporation.
People ex rel. Manhattan Ry. Co. v. Barker, 146 N. Y. 304, 40 N. E. Rep. 996,
66 N Y. St. Rep. 658. Dividends are, in the absence of evidence that they were
declared out of earnings, an insufficient basis for an assessment. People ex rel.
Consol. Gas Co. v. Feitner, 78 App. Div. 313, 79 N. Y. Supp. 975.

Deduction on account of real estate. In assessing the capital stock of a
corporation, the assessors are to ascertain the present value thereof, and
from this are to deduct the assessed value of the real estate, and the fact that
the whole capital was originally invested in real estate does not preclude them
from so doing. People ex rel. Butchers, etc., Co. v. Asten, 100 N. Y. 597. The
rule of taxation as to corporations when based upon the amount of capital paid
in, is, after deducting the amount paid out for real estate from the capi-
tal, to assess the remaining capital at its actual value, leaving the real estate
to be assessed like that of individuals in the town or ward where it is
situated. People ex rel. Citizens’ Gas Light Co. v. Assessors, 39 N. Y. 81;
People. ex rel. American Linen Thread Co. vy. Assessors, 6 Lans. 105. If
the real estate is situated in a town or ward within the state its assessed
valuation may without difficulty be ascertained from the proper assessment
rolls. But if the real property is situated in another state or country its
assessed valuation may not be easily ascertained. In such cases or in any
other case where the assessed valuation cannot be ascertained, the price paid
for the real property, in the absence of proof or of any other standard may
be taken as the assessable value. People ex rel. 23d St. R. R. Co. v Commis-
sioners of Taxes, 95 N. Y. 554. See, also, People ex rel. Van Ness v. Commis-
sioners of Taxes, 80 N. Y. 573. The refusal of commissioners in taxing the
capital of a bank to deduct anything for a building erected by it upon leased
land is erroneous since the property of a bank in the building is real estate
and taxable as such. But to entitle a corporation to the deduction of the value
of its real estate from that of its capital, the real estate must have been
paid for out of its capital. People ex rel. Van Ness v. Commissioners of
Taxes, supra. In the case of Eden Musee v. Feitner, 60 App. Div. 282; 70 N, Y,
504 TAXATION.
Tax Law, § 13.

‘Included in the valuation of the personal property of such stockholders
in the assessment of taxes in the tax district where such bank or banking

 

Supp. 120, it was held that when assessing the capital stock and surplus of a
corporation whose chief estate is a building erected on leased ground, the com-
missioners may properly estimate the building at its actual value, and then
add the value of the personal property belonging to the corporation, and from
this amount deduct the assessed value of the building. In determining the
value of the building the actual cost of the erection thereof may be considered.

If the real estate is situated in another state the deduction should be made
at the assessed value of the real estate, if known, in the absence of controlling
evidence showing a different valuation. People ex rel. Fairfield Chemical Co.
v. Coleman, 115 N. Y. 178, 21 N. E. Rep. 1056, 24 N. Y. St. Rep. 584. If neither
the assessed vaiue or price paid is known, the actual value of such real estate,
so far as ascertainable, should probably be taken as the basis of deduction.
People ex rel. Panama R. R. Co. v. Comrs. of Taxes, 104 N. Y. 240, Even though
the real estate may be assessed at less than its actual value, the assessed value
is the proper basis of deduction. People ex rel. Equitable Gas-Light Co. v.
Barker, 144 N. Y. 94, 39 N. E. Rep. 13, 63 N. Y. St. Rep. 33, revg. 81 Hun 22,
62 N. Y. St. Rep. 563, 30 N. Y. Supp. 586.

Deduction when real estate is encumbered with a mortgage. In assessing
the capital stock of a corporation under this section, where the real estate is
encumbered with a mortgage the payment of which has not been assumed by
the corporation, and the value of the equity of redemption alone has been
included in determining the value of its capital stock, the corporation is entitled
to have deducted from the valuation only the value of the equity, and not the
whole assessment value of its real estate. People ex rel. Weber Piano Co. v.
Wells, 180 N. Y. 62, revg. 95 App. Div. 574, 88 N. Y. Supp. 1030.

Building on leased ground. In assessing the capital stock and surplus of a
corporation whose chief asset is a building erected on leased ground, the commis-
sioners may properly estimate the building at its actual value and then add
the value of the personal property and from this amount deduct the assessed
value of the building. In determining the value of the building the actual
cost of the erection thereof must be considered. People ex rel. Eden Musee v.
Feitner, 60 App. Div. 282, 70 N. Y. Supp. 120.

Debts rot included. The assessors should deduct the debts of the corporation
—or perhaps, more properly, should consider them in fixing the actual value of
the capital of the corporation. People ex rel. Second Ave., etc., Co. v. Barker,
141 N. Y. 196, 36 N. E. Rep. 184, 56 N. Y. St. Rep. 834. Debts should be
deducted under § 12. People ex rel. Cornell S. Co. v. Dederick, 161 N. Y. 195;
People ex rel. Rochester R. Co. v. Pond, 37 App. Div. 330, 57 N. Y. Supp.
490; People ex rel. Trust Co. v. Norton, 53 Id. 557, 65 N. Y. Supp. 992. The
actual value of the stock is the basis, and where it is of no value because of
its indebtedness exceeding its assets it should not be assessed. People ex rel.
West Side & Yonkers R. R. Co. v. Comrs. of Taxes, 31 Hun 82. The valuation
of the capital having been once fixed, no further deduction can be made on
account of indebtedness. People ex rel. Broadway, etc., R. R. Co. v. Comrs. of
Taxes, 1 Th. & C. 635; People ex rel. Butchers, etc., v. Asten, 100 N. Y. 597.
The deposits of a savings bank of another state are to be deemed debts. People
TAXABLE PROPERTY AND PLACE OF TAXATION. 505

Tax Law, § 14.

association is located, and not elsewhere, whether the said stockholders
reside in said tax district or not.” [Tax Law, § 13; B. C. & G. Cons.
L., p. 5834. ]

§ 17. PLACE OF TAXATION OF INDIVIDUAL BANK CAPITAL.

Every individual banker shall be taxable upon the amount of capital
invested in his banking business in the tax district where the place of such

 

ex rel. Groton Savings Bank v. Barker, 154 N. Y. 122, 47 N. E. Rep. 1103; People
ex rel. Bridgeport Savings Bank v. Barker, 154 N. Y. 128.

Exempt property not included. The assessors should deduct the capital
invested in property exempt from taxation by law. People ex rel. Edison, etc.,
Co. v. Barker, 139 N. Y. 55, 34 N. EB. Rep. 722, 54 N. Y. St. Rep. 444. Thus, it
was held that the capital of a corporation invested in United States patent
rights is exempt. People ex rel. N. Y. & N. J. Telephone Co. v. Neff, 15 App.
Div. 8, 44 N. ¥. Supp. 46, affd. 156 N. Y. 701; People ex rel. Edison Hlectric
Illuminating Co. v. Neff, 156 N. Y. 417, affg. 19 App. Div. 599, 46 N. Y. Supp.
388.

40. Effect of assessment of bank shares under section 24 of the Tax
Law. Section 24, as amended by L. 1916, ch. 323, of the Tax Law, provides a

complete scheme for the assessment for taxation of bank shares and in effect
supersedes the provisions of the above section. Such section 24 requires
the bank to pay a fixed tax of one per centum upon the value of the shares of
stock as ascertained by adding together the amount of the capital stock, surplus and
undivided profits of the bank, and by dividing the result by the number of outstand-
ing shares of such bank. The decisions under such section will be considered here-
after. See Tax Law, sec. 24, post, p. 520.

Taxation of shares of national bank. By section 5219, U. 8S. Revised Stat-
utes, the state is authorized to direct the manner of taxing shares of national bank
stock held by taxpayers.

The shares of national bank stock are subject to taxation under the laws of the
state, though such tax must not be at a greater rate than upon other moneyed capital
in the hands of individuals, nor must such tax exceed the rate imposed upon the
shares of any of the banks organized under the authority of the state. People ex
rel. Kennedy v. Commissioners of Taxes, 35 N. Y. 423. National bank shares can
be assessed above par. No unjust discrimination against national banks arises
from the fact that the state banks can divide up all their surplus while national
banks are required to accumulate a surplus. People ex rel. Gallatin Nat. Bank v.
Commissioners of Taxes, 67 N. Y. 516.

The restriction in the U. S. Revised Statutes, sec. 5219, as to taxation of shares
of stock in national banks, is equality of assessment with other moneyed capital,
not with other property generally. Talbott v. Silver Bow County, 139 U. S. 428;
11 Sup. Ct. 594; Davenport Nat. Bank v. Board of Equalization, 123 U. 8. 83; 8
Sup. Ct. 73.

The rule and test of discrimination is to be found in the nature of the business
in which the corporation is engaged. The act simply prohibits taxation at a greater
rate than like property similarly situated. Mercantile Bank v. City of New York,
121 U. S. 138, 7 Sup. Ct. 826.
506 TAXATION.

Tax Law, § 15.

business is located, and shal!, for that purpose, be deemed a resident of
such tax district.*1 [Tax Law, § 14; B. C. & G. Cons. L., p. 5836.]

§ 18. REPORT OF EXEMPT PROPERTY BY ASSESSORS.

It shall be the duty of the board of assessors of the several towns of this
state, and the boards or officials charged with the duty of assessing prop-
erty for the purposes of taxation in the several cities of the state, to
furnish to the clerks of the boards of supervisors of their respective
counties, or in the case of the city of New York, to the city clerk of that
city, on or before the first day of September in each year, a full and
complete list and statement of all property situated within their
respective districts exempt or partially exempt from taxation under
the laws of this state. Such list and statement shall be made on blanks
furnished by the tax commission, and in such form and to -contain
and set forth all the information relative to such property and the
situation and value thereof, as may be required by the tax commission,
and to be verified in the same manner as assessments of property for
the purposes of taxation, and in the city of New York by the chief
deputy of the department of taxes and’assessments. The tax commission
shall prepare and transmit to the clerk of the board of supervisors in
each county and to the city clerk of the city of New York, a sufficient
number of such blanks, on or before the first day of June in each
year, and the clerks of the boards of supervisors and the city clerk of
the city of New York shall forthwith, upon the receipt thereof, dis-
tribute the same among the boards of assessors for use in preparing the
statement herein required. And it shall be the duty of the clerk of the
board of supervisors of each county and of the city clerk of the city
of New York, to transmit such completed lists or statements to the
tax commission, on or before the first day of October in each year, and
the tax commission shall tabulate such statements, and cause to be pub-

 

41. Assessment of individual banker. Section 25 of the Tax Law, post, p.
524, provides the manner of making an assessment of an individual banker.

The words “ individual banker,” as used in this section and in section 25 of
Tax Law, mean an individual banker as defined by section 2 of the Banking Law.
Rept. of Atty. Genl., Aug. 25, 1910.

The residence of an individual banker doing business under the Banking
Law is for the purpose of taxation of his banking capital in the town or place speci-
fied as the location of his banking office. But the property of private bankers, as
such, follows the residence of the owner. Rept. of Atty. Genl., Aug. 25, 1910.
TAXABLE PROPERTY AND PLACE OF TAXATION. 507

Tax Law, § 15.

lished in their annual report to the legislature, a complete tabulated
statement, based upon the statement so transmitted to the tax commis-
sion of all real esate in the several counties of the state which is exempt
or partially exempt from taxation.*? Immediately upon the receipt
of the completed reports by the various clerks of the boards of super-
visors, and the city clerk of the city of New York, those officials shall
prepare a tabulated statement of the returns received and shall post a
copy thereof in a conspicuous place, and in all cities of the state cause
a copy thereof to be published in the official paper or papers of said city
twice, with an interval between publication of three weeks, except such
cities which publish a complete assessment-roll. The expense of such
publication shall be a city charge and shall be audited and paid in the
same manner as charges for other city notices. are audited and paid.
[Tax Law, § 15, as amended by L. 1916, ch. 323; B. C. & G. Cons. L.,
p. 5836.]

 

Location of bank fixes place for assessment. Patchin v. Ritter, 27 Barb. 34; Miner
vy. Village of Fredonia, 27 N. Y. 155; Metcalf v. Messenger, 46 Barb. 325.

An assessment of “ circulation; notes and profits,” held illegal. Bellinger v.
Gray, 51 N. Y. 610.

United States bonds and realty. Capital invested in United States bonds or
realty should be deducted. People ex rel. Raplee v. Reddy, 43 Barb. 539.

42. Published list of exempt property of city need include only such
property as is situate within the city limits. Rept. of Atty. Genl., Oct. 21, 1910.
508 TAXATION.

Explanatory note,

CHAPTER XXXIV.

MODE OF ASSESSMENT.

EXPLANATORY NOTE.

Assessors to Ascertain Facts for Assessment.

The three town assessors should first divide the town into convenient
assessment districts, one for each assessor. This is for the purpose of
permitting each assessor to take a part of the town with which he is
most familiar and ascertain in the first instance the values of real
property and the amount of personal property owned by the taxpayers
therein. It must be remembered, however, that one assessor cannot make
an assessment. An assessment to be binding and valid must be the act
of a majority of the board. The law does not compel a division of the
town into assessment districts. It provides that the assessors may
divide the town into such districts.

The assessors should during the months of May and June secure
such information as may be useful and do all their preliminary work.
The law does not prescribe how the necessary information shall be
secured. They may inquire of whomever they please. They may fix
values according to their own judgment. They are not concluded by
the opinions of witnesses. They should consult public records, and
take notice of bona fide sales of land in the immediate neighborhood of
the property assessed. If the party assessed claims that injustice has
been done, he may file his affidavit and be heard on grievance day.

The assessors must consider and decide all claims of exemptions.

Having passed upon such exemptions the claimant has his remedy by
certiorari.

Preparation of Assessment-roll.
After the completion of their preliminarv inquiries. the assessors
must prepare an assessment-roll in the form prescribed by the State
MODE OF ASSESSMENT. 509

Explanatory note.

Board of Tax Commissioners as provided in § 21 of the Tax Law, as
amended by L. 1914, ch. 277, L. 1915, ch. 218 and L. 1916, ch. 323.
There should be a substantial compliance with the requirements,
although a deviation which does not conceal the name of the taxpayers
and mislead him as to property assessed would not affect the validity
of the roll. Care should be taken to secure the correct name of the
person assessed. If the name by which a person is known is included
it is sufficient although it is not his real name. It is usual to assess
decedents’ estates under the name of the estate, with the name of the

administrator or executor added. The land should be described by
giving the amount thereof, and some statement indicating its character,
e. g. “farm,” “ house and lot,” “ mill,” ete. The statute does not now
require a specified number of columns, although the State Board of Tax
Commissioners may require such columns.

Village, School Districts and Special Districts.

The assessment-roll must provide for the indication thereon of the
name of the village, the number of the school district and of the special
district, in which each parcel of land is situated. The roll as prescribed
by the State Tax Commissioners will provide for this. The assessors
must avail themselves of such knowledge as they may have in locating
in the proper village and school district each parcel assessed by them.

Determination of Valuation.

The assessors may use their own judgment in determining the value
of lands assessed. It must always be remembered that their determina-
tion is subject to review by the courts. The values included in the
assessment-roll may be reduced or increased prior to its final completion
and verification by the assessors. It is impracticable to lay down all
the rules declared by the courts as controlling the assessors in deter-
mining values. In assessing railroads cost of reproduction is the chief
consideration; that is the cost of replacing the portion of the property
of the company situated within the town, without much regard to the
earning capacity of the railroad as a whole. The same rule controls in
the assessment of telephone and telegraph companies. Special provision
is made by the Tax Law, § 24, as amended by L. 1916, ch. 323, and L.
1922, ch. 603, for the assessment and collection of taxes against banks.

Corporations are required through their proper officers (see Tax
Law, § 27, as amended by L. 1916, ch. 323) to make detailed statements
as to real property owned by them in the town, and the amount of
capital stock paid in and secured to be paid in, excepting the sums paid
for real property. The law specifies how corporations shall be as-
sessed on the assessment-roll. See Tax Law, § 382.

Non-resident Lands. .

The real property of non-residents must be designated in a separate
part of the assessment-roll. The lands should be described by lot-num-
ber, if it be known by such, or if not the boundaries should be given.
The quantity and value of the land must be given. When deemed
510 TAXATION.

Explanatory note.

necessary by the assessors, the supervisor may cause a map and
survey af non-resident lands to be made.

Omitted Property.

Assessors may include in the assessment-roll of the current year prop-
erty shown to have been omitted from the assessment-roll of the pre-
ceding year, at the valuation of the preceding year, or, if none was then
made, at a valuation fixed by them based upon conditions as they
existed during the preceding year. When omitted property is included,
the valuation must be stated on a separate line from that of the same
property for the present year.

Completion of Assessment Roll; Notice.

The assessors must complete the roll on or before August 1. A copy
must be made and left with one of them. A notice must then be posted
in three or more public places in the town that such roll has been com-
pleted and a copy may be seen and examined at a place mentioned until
the third Tuesday of August, and that on that day, and at the place
mentioned the assessors will meet to review their assessments. Such
notice must be mailed to corporations and non-residents who have re-
quested it on or before July 15 preceding.

Grievance Day.

The day specified, i. e., the third Tuesday in August is grievance
day. On this day, or a day to which they adjourn, the assessors must
hear and determine all complaints against assessments made by them.
The statement containing the complaint must be verified and must
specify in what respects the assessment is erroneous. The assessors
may take testimony and administer oaths to witnesses. The hearing
should be conducted in an orderly manner. The complainants should
be permitted to appear by counsel. All the evidence presented orally
at the hearing should be taken down and written out and be filed in the
office of the town clerk.

Verification of Roll.

When the roll is finally completed after grievance day, each assessor
should verify the roll by taking the oath prescribed by law. (See Tax
Law, § 38, as amended by L. 1916, ch. 323.) There must be a sub-
stantial compliance with the requirements of the statute in respect to
the oath.
MODE OF ASSESSMENT. 511

Explanatory note.

When completed and verified, two copies must be made. One to be
retained by them and delivered to their successors, and the other, duly
certified by them to be a copy, must be filed in the office of the town
clerk, on or before September 15. Notice of filing must be posted in at
least three public places, and be published in one or more newspapers,
if any, published in the town. The original assessment-roll must be
delivered to the supervisor on or before October 1. The dates of filing
and delivery of the assessment roll, and the number of copies to be made
may be changed by the board of supervisors.

Section 1. Ascertaining facts for assessment.
2. Assessment roll, how prepared.
2a. Assessment of certain real property in Suffolk and Herkimer counties.
3. Assessment of state lands in forest preserve; copy of assessment roll
to be filed in offices of comptroller and board of fisheries, game
and forestry; approval of comptroller.

4. Banks to make report; contents of report; penalty; list of stock-
holders; forms prescribed by state tax commissioners.

5. Bank shares, how assessed; deductions.

6. Individual banker, how assessed.

7. Notice of assessment to bank or banking association.

8. Statement of corporations to assessors; contents; mandamus to com-
pel report.

9. Penalty for omission of corporation to make statement; how recov-
ered.

10. County clerks to furnish data respecting corporations.

11. Tax map in each tax district.

12. Assesment of agent, trustee, guardian or executor.

13. Assessment roll, when to contain assessment of property omitted in

13a. Reassessment of mapped lots illegally assessed. _

14. Debts owing to non-residents of United States, how assessed.

15. Completion of assessment roll; notice of completion; contents.

16. Grievance day; statement of complaints; effect of failure to
testify; minutes of examination to be filed.

17. Application to county court for apportionment of taxes and assess-
ment; notice to assessors; collector to change assessment roll
upon order of court.

18. Oath verifying assessment roll.

19. Assessment roll when completed and verified to be open to inspec-
tion; notice thereof; roll to be delivered to supervisor.

20. Assessors to apportion valuation of railroad, telegraph, telephone,
or pipe line companies and of special franchises among school
and special districts.

21. Forms prescribed by tax commissioners; neglect or omission of
duty by assessors; penalty.

22. Sub-division of lots may be abandoned; thereafter lots to be treat-
ed as a single tract.

23. Making false statement in reference to taxes.
512 TAXATION.
Tax Law, § 20.

§ 1. ASCERTAINING FACTS FOR ASSESSMENT.

The assessors in each tax district shall annually between January first
and July first, ascertain by diligent inquiry all the property and the
names of all the persons taxable therein. The comptroller shall on or
about April fifteenth in each year transmit to the assessors of each tax
district a statement of all lands owned by the state in such district, and
such statement shall be used by the assessors in making up their assess-
ment-rolls and shall be considered by them as their authority to assess
to the state such of the lands described thereon as are legally subject to
taxation. [Tax Law, § 20, as amended by L. 1911, chs. 116, 805, L.
1912, ch. 270, and L. 1916, ch. 323; B. C. & G. Cons. L., p. 5838.]

 

1. Majority of assessors must act. One assessor cannot make an assess-
ment. It is the general act of all or a majority of the assessors which constitutes
a valid asseesment. An assessment made by one assessor without the concurrence
of the others is irregular and void, and cannot be enforced. Metcalf v. Messenger,
46 Barb. 325; People ex rel. Mygatt v. Supervisors, 11 N. Y. 563; People ex rel.
D. & H. C. Co. v. Parker, 45 Hun 432. Where an assessment is signed by two of
three assessors it is prima facie evidence that the third acted with them. Doughty
v. Hope, 3 Denio 249, affd. 1 N. Y. 79. An assessment is not shown to be illegal
by proof that it was made up and notice thereof published by less than majority
of the full board of assessors. It must be ‘proved that all were not present, or
that the one absent did not have notice of the meeting, or that a vacancy occasioned
by death had not been filled. Matter of Merrian, 84 N. Y. 596.

Cannot employ attorney, where they are not instructed by town board to de-
fend a proceeding to review an assessment made by them. People ex rel. McMillan
v. Vanderpoel, 35 App. Div. 73, 54 N. Y. Supp. 436.

Ascertainment of facts for assessment. The assessors may avail themselves
of such information by inquiry and otherwise as they can obtain. If the party
assessed claims that injustice has been done, he may file his affidavit, which the as-
sessors may afterwards examine. People ex rel. Thompson v. McComber, 7 N. Y.
Supp. 71; 24 N. Y. St. Rep. 902. Where physical and tangible property visible to
the assessors exists, of the character ordinarily dealt in and whose value is a matter
of common knowledge in the community, the assessors may assess it according to
their-own judgment without seeking other proof or sources of knowledge. In such
a case the determination of the assessors will stand until affirmatively proved to be
erroneous. People ex rel. Trowbridge v. McNamara, 18 App. Div. ¥7, 45 N. Y. Supp.
458. The assessors are not concluded by opinions of witnesses as to the value of
real or personal property unless it be the only evidence and they have no other
information. People ex re]. Oswego Canal Co. v. City of Oswego, 5 Hun 117. Tax
assessors are not free to capriciously disregard the evidence and emancipate them-
selves from all restrictions and rules, however fundamental; but they are not bound
by statements that are contradicted and which they disbelieve, where good reasons
exist for such disbelief. People ex rel. Manhattan Railway v. Barker, M6 N. Y.
304, 40 N. E. 996.
MODE OF ASSESSMENT. 513
Tax Law, § 21.

§ 2. ASSESSMENT-ROLL; HOW PREPARED.
1. The assessors shall prepare an assessment-roll or rolls, the form
of which shall be prescribed or approved by the tax commission, so

 

In determining the question of residence the assessors may act upon such facts
as come to their notice, and where real property is situated partly in one town and
partly in another the assessors act judicially in determining’ the place of residence
of the owner for the purpose of taxation. Brown v. Smith, 24 Barb. 419. If a
person taxed for personal property is an inhabitant of the town when the assess-
ment is made, the assessors are clothed by statute with jurisdiction to inquire
and determine whether he is taxable or not, and if the person has another resi-
dence and a principal place of business elsewhere, which should be deemed the site
of his personal property for the purpose of taxation, he should inform the assessors.
The assessors are not liable for an error in assessing him under such circumstances.
Idem. See, also, Bell v. Pierce, 51 N. Y. 12.

Assessors act judicially in determining liability to assessment. Assessors are
quasi-judicial officers, when acting within the sphere of their juridiction; and their
assessments when made become judgments to be enforced by a warrant in the nature
of a special execution, to be issued by the supervisors of the county. The assessors
are not subject to an action to review, modify, or reverse their judgments, nor to
hold them to personal liability when acting within their jurisdiction. Western
R. R. Co. v. Nolan, 48 N. Y. 513. See, also, Barhyte v. Shepherd, 35 N. Y. 238;
Weaver v. Devendorf, 3 Denio 117;. Robinson v. Rowland, 26 Hun 501; Vose v. Wil-
lard, 47 Barb. 320; Matter of Peck, 80 Hun 122, 30 N. Y. Supp. 59. An erroneous
assessment overruling a claim of exemption, is not void; the assessors in deciding
what property within their jurisdiction is taxable and what is exempt, act judicially.
Foster v. Van Wyck, 2 Abb. Ct. App. Dec. 167. An action will not lie to set aside
an erroneous assessment where the assessors have acted within their jurisdiction
and the assessment roll was in due form and attested according to law. The as-
sessors acting in such instance judicially, their acts cannot be attacked collaterally,
but the remedy provided by law for review must be followed. Brooklyn Elevated
R. R. Co. v. City of Brooklyn, 11 App. Div. 127, 42 N. Y. Supp. 683. In determining
the value of taxable property assessors act judicially. Weaver v. Devendorf, 3 Denio
117. If the assessors err in determining the value of taxable property the error is
a judicial one and can only be reviewed upon certiorari. Genesee Valley Nat. Bank
yv. Supervisors, 53 Barb. 223; Youmans v. Simmons, 7 Hun 466; Williams v. Weaver,
75 N. Y. 30. ;

Residence of the person assessed within the assessment district is essential to
give jurisdiction to the assessor to make a valid assessment of personal property,
and the fact that the board of assessors acts for the whole city and has jurisdiction
of all the taxable inhabitants will not validate an assessment made in a wrong
ward or render it irregular only. Wilcox v. City of Rochester, 129 N. Y. 247, 29
N. E. 99.

The legal presumption is that an assessment of property for the purposes of
taxation is regular and the determination of the taxing officials will not be dis-
turbed unless it clearly appears that injustice has been done. People ex rel. Have-
meyer v. Purdy (1915), 91 Mise. 610, 154 N. Y. Supp. 993.

Time of assessment. The assessment must be made before the expiration of
514 TAXATION.

Tax Law, § 21.

classified and arranged with respect to number of parts and number
of columns in each part and with such entries and descriptions? as

 

the time prescribed in the above section. The assessors have no authority to make
an assessment on grievance day or at any time after the first day of July in each
year. Clark v. Norton, 3 Lans. 484, 58 Barb. 434. This case was affirmed by the
Court of Appeals (49 N. Y. 243, 246), and the court said: “ The law prescribes
and regulates the duties of assessors, and defines and limits their powers with pre-
cision, and by an adherence to the statute the rights of the taxpayers are protected
and secured. The assessors have the months of May and June within which to make
the necessary inquiries and to ascertain the names of the taxable inhabitants in
their respective towns and wards, and the property, real and personal, within their
jurisdiction liable to taxation; and to prepare an assessment roll containing the
names of those liable to taxation, and the property to be taxed, with its value
arranged in columns, as directed by law. The assessment must be made by the
first day of July, and of property and persons in respect to the liability as it ex-
ists on that day. The assessment roll must be completed and a fair copy made and
deposited for examination by those interested, on or before the first day of August.
An individual not liable to taxation on the first day of July could not be placed
upon the assessment roll after that time; neither could a person whose name was
properly on the assessment roll be assessed for property acquired by him after that
day.” See, also, People ex rel. Mygatt v. Supervisors of Chenango, 11 N. Y. 563;
Mygatt v. Washburn, 15 N. Y. 316; Sexton v. Pepper, 28 Hun 31; People ex rel.
Coudert v. Commissioners of Taxes, 31 Hun 235. Assessment made on July let
cannot be reduced because the property was thereafter destroyed. Rept. of Atty.
Genl. (1902) 289.

Failure to properly arrange column.—Under the law prior to the amend-
ment of 1914, it was held that where the columns were not arranged in the roll
just as directed by the statute, but all the matter required to make a good assessment
was inserted in the roll, with sufficient certainty so that there could be no mistake
about it, the validity of the assessment will not be affected. People ex rel. Mohawk,
ete., R. R. Co. v. Garmon, 63 App. Div. 530, 71 N. Y. Supp. 826. See, also, Pearsall
v. Brewer, 120 App. Div. 584, 105 N. Y. Supp. 207. The improper use of the columns,
where there is nothing misleading in the assessment, does not invalidate the assess-
ment-roll. New York v. Appleby, 168 App. Div. 503, 154 N. Y. Supp. 85.

The omission of the headings of the columns of the assessment-roll does not
invalidate the assessment. Litchfield v. Brooklyn, 13 Misc. 693, 69 N. Y. St. Rep.
171, 34 N. Y. Supp. 1090.

The first column is the one containing the names, although two columns are
prefixed. Bennett v. Robinson, 42 App. Div. 412, 59 N. Y. Supp. 197.

2. Name of taxable persons. Reasonable certainty is all that is required in
preparing the list of names of taxable persons for an a8sessment roll. Van Voorhis
v. Budd, 39 Barb. 479: If the name of a taxpayer inserted in an assessment roll
is the name by which he is generally known, he will be bound thereby, though the
name is not his real one. Idem. The assessment against heirs of a deceased person
without naming them is void. Village of Sandy Hill v. Akin, 77 Hun 537; 28 N. Y.
Supp. 889. An assessment in the name of a lunatic with an addition of the name of
the committee who had not yet been appointed is a valid assessment. People ex rel.
Trust Co. v. Barker, 59 N. Y. St. Rep. 741; affd. 187 N. Y. 631.
MODE OF ASSESSMENT. 515

Tax Law, § 21.

shall be sufficient to identify each separately assessed parcel or portion
of real estate with the approximate quantity of the square feet, square

 

Where the owner to whom property was assessed died July 11th, though the roll
was not verified till September—held, that the assessment was to the proper owner.
O’Donnell v. McIntyre, 37 Hun 615, affd. 116 N. Y. 663.

In the case of Dubois v. Webster, 7 Hun 371, the tax roll contained the name and
description, “ Foster, Joseph, or occupant.” It appeared that Foster did not own
the property assessed. It was held that the words “or occupant” did not give the
assessment any validity. The court said: “The occupant must be named or else the
tax roll gives no information to the collector of whom he may require payment.

When the statute provides that real estate may be assessed to the owner, the name
of the owner must be inserted in the assessment-roll. It is the same with the word
‘eccupant.’? Any other rule would lead to great confusion, uncertainty and injus-
tice.” But see Wallach Co. v. Rooney (1917), 177 App. Div. 640, 164 N. Y. Supp. 616.

The assessment of a trust estate against the name of one of the trustees only,
adding the name of the other and the words “executor and trustees,” and making
the name of the trustee “Henry” instead of “Harry P.,” may be amended by “the
assessors by striking out the word “executors” and correcting the name. People ex
rel. Pike v. Barker, 86 Hun 283; 33 N. Y. Supp. 1132. An assessment of executors
of “the estate of Goodwin,” when the testator’s name was “ Godwin,” is not invalid.
People ex rel. Moller v. O’Donnell, 106 App. Div. 526, 94 N. Y. Supp. 884.

Assessment against an estate without additional description is invalid. Matter of
McCue v. Supervisors, 162 N. Y. 235; Cromwell v. McLean, 123 Id. 474; Adams v.
Supervisors of Monroe, 18 App. Div. 415, 46 N. Y. Supp. 48, affd. 154 N. Y. 619.
But Laws 1898, ch. 310, validated such assessments theretofore made. Against
“ Blackwell, R. M., Est.” Trowbridge v. Horan, 78 N. Y. 439.

An assessment for personal property against an executor by name
of estate of,” etc. is not an assessment against the executor as such, and is valid.
McLean v. Horn, 42 N. Y. St. Rep. 329, 17 N. Y. Supp. 119. A misnomer of one of
several administrators—held not to invalidate the assessment. Id.

An assessment of nonresident land is not invalid because the owner of the prem-
ises was designated “Estate George P. Gordon.” The designation is neither the
name of a person nor corporation and may be treated as surplusage. Sanders v.
Carley, 83 App. Div. 193, 83 N. Y. Supp. 106, affd. 178 N. Y. 622.

The insertion of the words “Village of Medina Water Works outside the Cor-
poration ” under the heading “ Names of Taxable Persons” does not invalidate the
assessment, since the village of Medina is thus named with sufficient certainty.
Matter of the Village of Medina, 52 Misc. 621, 103 N. Y. Supp. 1018.

Assessment of partners. In the case of People ex rel. Dufour v. Wells, 82 N. Y.

“

as executor

Supp. 866, 40 Misc. 553, an assessment was made against the firm of Dufour &
516 TANATION.

Tax Law, § 21.

rods or acres contained in such parcel or portion or a statement of
the linear dimensions thereof;* each special franchise and the names

 

Co., instead of against the partners as individuals. Judge Bischoff said: ‘“ The
statute requires that the assessment shall be made in such manner as to describe
the ‘ person’ taxed, and the value of the property of that ‘ person’ after deducting
all the debts owing by him. In no possible aspect is a partnership a ‘ person,’ nor
is the aggregate property employed by the partners in the business property of a
‘person,’ nor is the firm’s property the measure of each partner’s interest for taxa-
tion. The property of each individual, lessened by his debts, is the basis of the tax.
The law so provides, for the benefit of the taxpayer, and a strict compliance with
the terms of the law, in the manner of making the assessments is essential to the
legality of the assessment. Unless the statute provides to the contrary an assess-
ment for taxation of partnership property must be made in the names of the in-
dividuals composing the firm.”

The owner of real estate at the time of the completion of the roll is liable
for the tax, although he conveys before the tax is laid by the board of supervisors.
Rundell vy. Lakey, 40 N. Y. 513; Everson v. City of Syracuse, 29 Hun 458 (1883),

xy eee

reversed on another ground in 100 N S77

Waiver of defective assessment. Where an assessment is defectively made to
an estate instead of to the owners or occupants thereof, the defect may be waived
by acquiescence for many years in such assessment and by failing to object to the
form of the assessment on grievance day. Brown v. Otis, 98 App. Div. 554, 90 N. Y.
Supp. 250, mod. 185 N. Y. 303.

8. Description of lands. It was a sufficient description in an assessment-roll to
give the known name of a tract of land and the number of the town, range and
lot therein. Coleman v. Shattuck, 62 N. Y. 348. Where an assessment was made
against “the trustees of the First Congregational Church,” and the property as-
sessed was described as “ parsonage” and the valuation was entered as $1,600, it
was held that this description did not mislead the relators; that the abscnce in
the statement of the quantity*of the land which it was intended to assess was not
a source of any injury to the relators. People ex rel. Hutchinson v. O’Bren, 53
Hun 580, 6 N. Y. Supp. 862. This case should not be deemed to authorize an omis-
sion to specify the quantity of land assessed where it is ascertainable. It would
seem that the courts require a strict compliance with the statute as to the form
and contents of the assessment-roll. May v. Traphagen, 139 N. Y. 478; People ex
rel. Supervisors v. Fowler, 55 N. Y. 252. An assessment of a house and lot as
“33 Woodbury Street,” does not state quantity of real property, and is not suffi-
cient description. McInnis v. City of New Rochelle (1917), 99 Misc. 388, 163
N. Y. Supp. 1003. The commissioners of taxes referred to in this subdivision are
the state board of tax commissioners. It is made the duty of the state board to
prepare forms for reports and assessment-rolls and to furnish the same to assessors
and other officers at the expenee of the state. Tax Law, sec. 171, subd. 3, post,
p. 572.

Where property consisting of about twelve acres was described by appropriate
metes and bounds in deeds of conveyance forming the chain of title, a sale by the
county treasurer for unpaid taxes under an assessment to a certain named person,
as owner, who never lived on or ever had any interest in the property, which was
simlpy described both in the assessment-roll and the certificate of sale as eleven
and one-quarter acres, no boundary line being given, the owner is entitled to judg-
ment in an action to remove the certificate of sale as a cloud upon his title.
Nolan v. Phillipi (1917), 99 Mise. 384, 163 N. Y. Supp. 730.
MODE OF ASSESSMENT. 517

Tax Law, § 21.

of all persons and corporations taxable on personal property, capital
stock or capital invested in business and bank stock. Assessments
of real property, other than special franchises, shall be carried in a
separate part of the roll from the assessments of personal property.

2. The form of assessment-roll prescribed or approved by the tax
commission shall provide for the indication thereon, in appropriate
columns, of the name of the village, if in a village, the number of the
school district and the name or number of any special district in which
a special tax is levied for district purposes, in which each parcel or
portion of real property and each special franchise described on such roll
is situated or in which each person or corporation subject to taxation
for personal property in the tax district pursuant to this chapter, resides,
carries on business, has its principal place of business or in which its
operations are carried on or where the personal property is located, as
the case may be, and shall also provide for the entry of the assessments
of real property, special franchises and personal property respectively,
made pursuant to this chapter, and of the apportionments made pursuant
to section forty of this chapter.

8. In all cities there shall be an additional column in the assessment-
roll before the column in which is set down the value of real property,
and in such additional column there shall be set down the value of the

 

Where an assessment roll omitted from its first column ditto marks, referring
to the name and subdivision of property, but correctly used them in the column
for owners, such imperfect entry did not warrant the county treasurer in execut-
ing a tax deed which described certain lots as on “Map No. 1,” it appearing
that the top of the page of the assessment-roll referred to “Map No...... 1907,”
that there was no map with that number, and that the only map of any kind
was filed in 1911. Where the description of the map is impressed only at the
head of the first column of the assessment-roll, ditto marks are necessary to
connect the numbers of the lots with some means of definite description. McCoung
v. Pierpont (1921), 195 App. Div. 726, 187 N. Y. Supp. 856. ’

An assessment in Long Island City in the form customary since the organization
of such city and which had been recognized by the Legislature, was held valid,
although it omitted to state the quantity of land as required by this section.
Matter of Wood, 35 App, Div. 363, 54 N. Y. Supp. 978.

Assessment against neither owner nor occupant void.The assessment of a tax
on resident land in the name of one neither owner nor occupant is jurisdictionally
void, and cannot be made a lien except by proceedings for reassessment upon
notice to the owner or occupant. Hagner v, Hall, 10 App. Div. 581, 42 N. Y. Supp.
63, affd. 159 N. Y. 552; Parsons v. Parker, 80 Hun 281, 61 N. Y. St. Rep. 847,
30 N. Y. Supp. 134; Cottle v. Cary 78 App. Div. 54, 76 N. Y. Supp. 580, aid. 173
N.Y. 624, z

Defective description—Where the assessment-roll described real estate as
fronting on w certain street, but gave no definite courses for the remaining sides
of the lot, nor other means of identification, nor any lines by which it could be
518 TAXATION.

Tax Law, § 21.

land exclusive of the buildings thereon.** The total assessment only can
be reviewed.*

 

i..c,xosed—held, that it was fatally defective. Matter of New York Central, et-.,
R. R. Co., 90 N. ¥. 342.

-An assessment-roll which does not describe the lands assessed or state the
amount thereof is defective under this section and is also void under the constitu-
tional provisions prohibiting the taking of property without due process of law,
Lawton v. City of New Rochelle, 114 App. Div. 883, 100 N. Y¥. Supp. 284.

Where a turnpike company does not own the fee of the land over which its road
passes, its property is not adequately described in an assessment as “upon five
miles of highway.” Such an assessment is defective in that it does not indicate
that it was laid upon something else than the ownership of the fee, and that
structures or superstructures, or something apart from the franchise, were intended
to be taxed thereunder. Matter of Albany & Bethlehem Turnpike Road v. Selkirk,
180 N. Y. 401, revg. 94 App. Div, 509, 87 N. Y. Supp. 1104,

A municipal assessment-roll which merely describes the property assessed as a
house and lot located upon a certain street is insufficient to effect a valid assess-
ment. Noxon v. City of New Rochelle, 63 Misc. 232, 116 N. Y. Supp. 822.

Where assessments made by the city assessors merely describe the land by the
words “land,” “plot of land,” and designate the location as “Webster and Winyah
Aves.,” the assessment is null and void. French v. City of New Rochelle, 141
App. Div, 8, 125 N. Y. Supp. 677,

A mistake in the number of acres does not vitiate assessment, where land is suf-
ficiently described to locate it. Saranac Land & Timber Co. v. Roberts, 208 N. Y. 288.

3-a, Attack upon assessment; comparison with similar property.—Subd. 3 of
this section does not affect the rule that a property owner claiming’ to be
aggrieved by inequality in the assessment of his real property is at liberty to
attack the assessment by comparing the gross valuation placed upon his property
with the gross valuation of other similar property upon the assessment-roll; and
that he is also at liberty to compare the assessed valuation placed upon his land
alone with the values placed upon the land only in the case of other properties
of like character and situation, People ex rel. Strong v, Hart (1916), 216 N. Y.
518, affg. 166 App. Div. 907, 150 N. Y. Supp. 1106,

Under subd, 3 (former § 21-a) the petitioner may give testimony as to an alleged
overvaluation of the lands and at the same time adopt the figures of the taxing
officers so far as the value of the buildings is concerned. People ex rel, Havemeyer
v. Purdy (1915), 91 Mise. 610, 154 N. Y. Supp. 993.

The cases above cited were decided under the former law which specifically
described the columns in the assessment-roll and the entries to be made therein.

4. In general, see People ex rel, Socurbee, Inc. v. Purdy (1917), 179 App. Div.
748, 167 N. Y. Supp. 91, affd. 222 N. Y. 657, 119 N. E. 1071; People ex rel. Fish-
man & Sons v. Purdy (1918), 222 N. Y. 656, 119 N. E. 1069, affg. 179 App. Div.
754, 167 N. Y. Supp. 95. See, also, People ex rel. Gleason v. Purdy (1918), 225
N. Y. 88, 119 N. E. 249, affg. 179 App: Div. 754, 166 N. Y. Supp. 480; People
ex rel. Morse Dry Dock & Repair Co. v. Purdy (1917), 100 Mise. 580, 167 N. Y.
Supp. 69.

Valuation of real property. In determining the value of real estate the
MODE OF ASSESSMENT. 519

Tax Law, § 21.

4, When a tax map has been approved by the tax commission, refer-
ence to the lot, block and section number or other identification number:
of any parcel on said map shall be deemed a sufficient description of
said parcel on the assessment-roll.

5. A separate part shall be provided for the listing of property that
is entirely exempt from taxation. If the property is partially exempt
it shall be listed with the taxable property.

 

assessors are to be merely guided and not controlled by the evidence as to value
produced by the owner of the property and may use their own judgment. People ex
rel Trowbridge v. McNamara, 18 App. Div. 17, 45 N. Y. Supp. 456. In ascertaining
the full value of business property its cost may be considered, but the more control-
ling consideration is its earning capacity. People ex rel. Albany, etc., Bridge Co. v.
Weaver, 34 Hun 322; People ex rel. Del., etc., Canal Co. v. Roosa, 2 How. Pr. (U. S.)
479.

In the following case it was held that the assessors could only, under the peculiar
circumstances, assess the property with reference to its intrinsic value. People ex
tel. N. Y., West Shore & B. R. R. Co. v. Toohey, 4 N. Y. St. Rep. 895.

Assessors are not bound by proof produced before them as to value, but must exer-
cise their judgment notwithstanding such proof. People ex rel. Westbrook v. Village
of Ogdensburgh, 48 N. Y. 390.

As to what constitutes an assessment of a building “at its full and true value,”
sée People ex rel. Powers v. Kalbfleisch, 25 App. Div. 432, 49 N. Y. Supp. 546.

Value of improvements placed upon real property should be included. People ex
rel. Consolidated Gas Co. v. Wells, 54 Misc. 322, 105 N. Y. Supp. 1006, affd. 111 N.
Y. Supp. 1135.

The figures of the taxing officers are prima facie evidence of the valuation of un-
improved property. So held in a case involving the assessment of land upon which

an uncompleted building was situated. People ex rel. Gleason v. Purdy (1918),
223 N. Y. 88, 119 N. E. 249.

Valuation of railroad lands. In determining the value of the real estate of a
railroad for the purpose of taxation the estimation should include its original cost
and the cost of present reproduction as well as its earning capacity. People ex
rel. D. & H. Co. v. Ganley, 8 N. Y. Supp. 563; affd. 131 N. Y. 566.

The exemption of an Indian reservation from taxation ceases to the extent of a
right granted to a railroad company. People ex rel. Erie Ry. Co. v. Beardsley, 52
Barb. 105, affd. 41 N. Y. 619.

The rule to be ordinarily applied in assessing the value of the real estate of a
railroad company for local taxation is the cost of replacing the portion of the road
and appurtenances situated within the jurisdiction of the assessors in the con-
dition in which they are found by the assessors at the time of making the assess-
‘ment. In assessing such real estate it is erroneous to base the valuation of the
520 TAXATION,

Tax Law, § 21.

6. Provision shall also be made thereon for the entry of the amount
of tax levied for state, county, city, town, highway or special district
purposes, against each parcel or portion of real property, each special
franchise and each person or corporation for personal property,’ together
with the date of payment thereof and such other items and details as
may be required.

7. The tax commission shall adopt regulations and rules for the
preparation and use of the assessment-roll and shall advise with and
instruct boards of assessors and other officers as to their duties in respect
thereto. [Tax Law, § 21, as amended by L. 1911, ch. 315, L. 1912,
ch. 266, L. 1914, ch. 277, L. 1915, ch. 218, and L. 1916, ch. 323.]

 

portion of the railroad situated within a town upon the income or earning ca-
pacity of any other extensive system of which such portion of railroad forms a
part. People ex rel. D., L. & W. R. R. Co. v. Clapp, 152 N. Y. 490, 46 N. E. 842.
In the case of Albany & Schenectady R. R. Co. v. Osborne, 12 Barb. 223, it was held
that the real estate of a railroad is to be valued in the same manner as the adja-
cent lands belonging to individuals, and without reference to the other parts of the
railroad, without the town in which it is assessed, and irrespective of whether it is
profitable to the stockholders or not. See, also, Albany & W. Stockbridge R. R. Co.
vy. Canaan, 16 Barb. 244; People ex rel. Buffalo & State Line R. R. Co. v. Barker,
48 N. Y. 70.

Telegraph and telephone companies.—The proper method of assessment of
such real property is to take the cost of the articles, considering them land, which
are in their nature personal property, and add to that cost the value of the interest
in the land on which the poles stand and the value of the right to erect such poles
based upon the cost which the company incurred in securing such right. The prop-
erty is not to be regarded as a part of a whole, nor as « complete telegraph line in
operation. Its value for telegraph purposes, and its position with its connections,
and its productive capacity, are not considerations entering into the value of the
property under the acts. People ex rel. W. U. Tel. Co. v. Dolan, 126 N. Y. 166, 37
N. Y. St. Rep. 28, affg. 11 N. Y. Supp. 35.

Where it is shown on grievance day, before a town board of assessors, that a tele-
phone company possessed no real property in the town other than that assessed by
the State Board of Tax Commissioners and its poles, wires and equipment in the
public highway, an assessment against it is illegal. People ex rel. Glen Telephone
Co. v. Hall, 57 Mise. 308, 109 N. Y. Supp. 402.
MODE OF ASSESSMENT. 51

Tax Law, § 22.

§ 3. ASSESSMENT OF STATE LANDS IN FOREST PRESERVE; COPY
OF ASSESSMENT-ROLL TO BE FILED IN OFFICE OF COMP-
TROLLER AND BOARD OF FISHERIES, GAME AND FOR-
ESTRY; APPROVAL OF COMPTROLLER.

All wild forest land within the forest preserve and also all such lands
owned by the state in the towns of Altona and Dannemora, county of
Clinton, except the lands in the town of Dannemora upon which build-
ings and enclosures are erected and maintained by the state for the use
of state institutions, together with said buildings thereon, shall be as-
sessed and taxed at a like valuation and rate as similar lands of individ-
uals within the counties where situated. On or before August first in

every year the assessor of the town within which the lands so belonging

 

5. Valuation of personal property. The assessors are liable for entering in
an assessment-roll an assessment of personal property belonging to persons who are
not residents of the tax district. Dadwin v. Strickland, 57 N. Y. 492; Mygatt v.
Washburn, 15 N. Y. 316; People ex rel. Mygatt v. Supervisors of Chenango, 11 N. Y.
563. But they are not liable for an excessive valuation of such property. Youmans
vy. Simmonds, 7 Hun 466. Where evidence adduced before assessors as to personal
property of a taxpayer stands uncontradicted, they cannot disregard it in fixing the
assessment. People ex rel. Douglas v. Dykes, 19 N. Y. Supp. 78; 45 N. Y. St. Rep.
621. The omission of property liable to assessment for taxes from the roll does not
invalidate it nor support an action by a person whose property is taxed upon it, to
have the tax set aside as illegal, since the assessors act judicially. Wan Derventer
v. Long Island City, 139 N. Y. 133; 34 N. E. 774. As to the deduction of debts, see
People ex rel. Schaeffler v. Barker, 87 Hun 194; 33 N. Y. Supp. 1042; People ex rel.
Luckemeyer v. Coleman, 16 N. Y. Supp. 330; 41 N. Y. St. Rep. 160.

Assessors not liable for erroneous assessments of residents.—A town as-
sessor having jurisdiction of the property and person of one assessed is not liable
for malicious assessment for erroneously assessing personal property which the
plaintiff claimed to have sold. The proper remedy for the party illegally assessed
is by certiorari. Hopkins v. Leach, 125 App. Div. 294, 109 N. Y. Supp. 713.

Assessment of non-resident for personalty.—The determination of the as-
sessors is not conclusive as to the residence of an owner of personal property. Pad-
dock v. Guydel, 29 N. Y. St. Rep. 773, 8 N. Y. Supp. 905.
522 TAXATION,
Tax Law, § 23.

to the state are situated shall file in the office of the comptroller and of
the conservation commission, a copy of the assessment-roll of the town,
which, in addition to the other matter now required by law, shall state
and specify which and how much, if any, of the lands assessed are forest
lands, and which and how much, if any, are lands belonging to the state;
such statements and specifications to be verified by the oaths of a ma-
jority of the assessors. The comptroller shall thereupon and before the
first day of September following, and after hearing the assessors and
the conservation commission, if they or any of them so desire, correct or
reduce any assessment of state lands which may be in his judgment an
unfair proportion to the remaining assessment of land within the town,
and shall in other respects approve the assessment and communicate
such approval to the assessors. No such assessment of state lands shall
be valid for any purpose until the amount of assessment is approved by
the comptroller, and such approval attached to and deposited with the
asscssment-roll of the town, and therewith delivered by the assessors of
the town to the supervisor thercof or other officer authorized to receive
the same from the assessors. No tax for the erection of a schoolhouse or
opening of a road shall be imposed upon the state lands unless such erec-
tion or opening shall have first been approved in writing by the
conservation commission.’ [Tax Law, § 22, as amended by L. 1912,
ch, 245; B. C. GG. Cons. L., p. 5846. ]

§ 4. BANKS TO MAKE REPORTS; CONTENTS OF REPORT; PENALTY;
LISTS OF STOCKHOLDERS; FORMS PRESCRIBED BY STATE
TAX COMMISSIONERS.

The chief fiscal officer of every bank or banking association organized
under the authority of this state, or of the United States, shall, on or
before the first day of June, in each year, furnish the assessors of the tax
district in which its principal office is located a statement under oath

 

6. Purpose and application of section.—This section is designed only to pro-
tect the state from an overvaluation of the lands assessed to it and does not em-
power the comptroller to require lands assessed to individuals to be assessed to the
state. People ex rel. Town of Brighton v. Williams, 145 App. Div. 8.

Assessment of state lands for school and highway purposes. Repts. of Atty.
GenL (1898) 102, (1899) 158.

Lake George Islands are assessable for ordinary highway and school purposes.
Rept. of Atty. Genl. (1901) 232.

Mandamus requiring the state comptroller to approve an assessment roll con-
taining assessment of forest lands against the state should be applied for within
the third judicial district, People ex rel. Town of Brighton v. Williams, 145 App.
Div. 8.
MODE OF ASSESSMENT, 522a

Tax Law, § 24,

of the condition of such bank or banking association on the first day of
May next preceding, stating the amount of its authorized capital stock,
the number of shares and the par value of the shares thereof, the amount
of stock paid in, the amount of its surplus and of its undivided profits,
if any, a complete list of the names and residences of its stockholders
and the number of shares held by each.’ In case of neglect or refusal on
the part of any bank or banking association to report as herein pre-
scribed, or to make other or further reports as may be required, such
bank or banking association shall forfeit the sum of one hundred dollars
for each failure, and the additional sum of ten dollars for each day such
failure continues, and an action therefor shall be prosecuted by the
county treasurer of the county in which such bank or banking association
so neglecting or refusing to report is located, in the city of Buffalo by
the city treasurer of said city, and in the city of New York by the receiver
of taxes thereof. There shall, in addition to such report, be kept in the
office of every such bank or banking association a full and correct list of the
names and residences of all stockholders therein, and of the number of
shares held by each, and such lists shall be subject to the inspection of the
assessors at all times. , The list of stockholders furnished by such bank or
banking association shall be deemed to contain the names of the owners of
such shares as are set opposite them, respectively, for the purpose of assess-
ment and taxation. [Tax Law, § 23, as amended by L. 1916, ch. 323, anc
L. 1917, ch. 153; B. C. & G. Cons. L., 2d Eid., p. 8333.]

5. BANK SHARES, HOW ASSESSED.’

The value of each share of stock of each bank and banking association,
except such as are in liquidation, shall be ascertained and fixed by adding
together the amount of the capital stock, surplus and undivided profits of
such bank or banking association and by dividing the result by the number
of outstanding shares of such bank or banking association. The value of
each share of stock in each bank or banking association in liquidation shall
be ascertained and fixed by dividing the actual assets of such bank or
banking association by the number of outstanding shares of such bank
or banking association. The owners of the stock of banks and banking
associations shall be entitled to no deduction from the taxable value of
their shares because of the personal indebtedness of such owners, or for

 

7. For form of report to be made by bank to local assessors, see Form No. 38, post.

8. Constitutionality of the amendment of 1901 declared. People ex rel. Bridge-
port Sav. Bank v. Feitner, 191 N. Y. 88, revg. 120 App. Div. 838, 105 N. Y. Supp. 993.

Former section held constitutional in Matter of Jenkins, 47 App. Div. 394, 62
N. Y. Supp. 321, affd. 163 N. Y. 320, affd. 186 U. S. 230.

The assessment of stock of a national bank proceeds upon the ascertainment
of the book value of the shares, not their market value, and is based solely upon
a consideration of capital stock, surplus and undivided profits. People ex rel.
Nat. Park Bank v. Cantor (1920), 111 Mise. 420, 183 N. Y. Supp. 448.
522b TAXATION,
Tax Law, § 24-a.

any other reason whatsoever.’ This section is not to be construed as an
exemption of the real estate of banks or banking associations from taxation.
No shares of stock of such banks and banking associations, by whomsoever
held, shall be exempt from the tax hereby imposed. [Tax Law, § 24, as
amended by L. 1916, ch. 323, and L. 1922, ch. 603.]

The assessors of every tax district shall, within ten days after they
have completed the assessment of the stock of a bank or banking associa-
tion, give written notice to such bank or banking association of such
assessment of the shares of its respective shareholders and no personal or
other notice to such shareholders of such assessment is required. Com-
plaints in relation to the assessments of the shares of stock of banks and
banking associations shall be heard and determined as provided in section
thirty-seven of this chapter. [Tax Law, § 24a, as added by L. 1916, ch.
323.]

 

Upon certiorari to review an assessment for taxes, for the year 1919, on shares
of a national bank, which is bound to keep its books on the accrual system in
accordance with the rules made by the comptroller of the currency, items of
discounts collected but not earned do not represent “profits” taxable as such, and
should be eliminated from the assessment. Items to cover payments to be made
for Federal income and excess profits taxes for 1918, though made March 15, 1919,
but payable in installments after May 1, 1919, the day as of which the condi-
tion of relator was reported for the assessment, was a determined charge on the
latter date, and as it necessarily reduced the moneys otherwise applicable as
“surplus and undivided profits” it was deductible from the assessment even if
the valuation were directed to “assets” of the relator, People ex rel. Nat. Park
Bank v. Cantor (1920), 111 Misc. 420, 188 N. Y. Supp. 443.

Laws 1901, ch. 550, substituted the new liability for the old, although the act
may not have taken effect until after the final revision of the assessment-roll under
which such liability might arise. First Nat. Bank v. Binghamton, 72 App. Div,
354, 76 N. Y. Supp. 526.

9. Place of taxation of bank shares, Under section 18 of the Tax Law, ante,
p. 503, the shares of bank stock are to be included in the assessment of taxes in
the tax district where the bank or banking association is located and not else-
where, whether the owners of such shares reside in such tax district or not,

Nonresident owner of bank stock is not personally liable, and § 936 of the
Greater New York Charter does not authorize a personal judgment against him for
the tax. The property only is liable. City of New York v. McLean, 170 N. Y. 374.

Assessment of banks in cities——The sums assessed and collected on shares of
stock of banks located in a city should be paid to such city and should not be
apportioned to the county. City of Utica v. Board of Supervisors, 109 App. Div.
189, 95 N. Y. Supp. 839,

By virtue of this section the city of Tonawanda is entitled to the tax collected
upon the capital stock of a bank located in said city; the sum collected does
not belong to the county of Erie. People ex rel. City of Tonawanda v. Fitzhenry
(1915), 170 App. Div. 227, 156 N. Y. Supp. 70. See also People ex rel. Lawver
v. Supervisors (1903), 39 Mise. 162, 79 N. Y. Supp. 145; City of Utica v. Super-
visors (1905), 109 App. Div. 189, 95 N. Y. Supp. 839.

Under section 24 of the Tax Law a city, which in and of itself is a tax district
within a county, is alone entitled to the money collected for taxes on the stock of a
bank located within said city. County of Erie v. Town of Tonawanda (1916). 95
Misc. 663, 159 N. Y. Supp. 714, affd. (1917), 176 App. Div. 942, 162 N. Y. Supp. 994.
MODE OF ASSESSMENT. 522e

Tax Law, §§ 24b, 24¢

The rate of tax upon the shares of stock of banks and banking associ-
ations shall be one per centum upon the value thereof, as ascertained
and fixed in the manner hereinbefore provided. [Tax Law, § 24b, as
added by L. 1916, ch. 323.] :

The said bank tax shall be in lieu of all other taxes whatsoever for
state, county or local purposes upon the said shares of stock, and mort-
gages, judgments and other choses in action and personal property held
or owned by banks or banking associations the value of which enters into
the value of said shares of stock shall also be exempt from all other state,
county or local taxation. If any bank within this state shall have re-
ceived from the superintendent of banks special authorization to exer-
cise fiduciary powers as provided by section twenty-four-a of the bank-
ing law, the said bank tax shall also be in lieu of any franchise tax on
such bank under the provisions of section one hundred and eighty-eight
of this chapter. [Tax Law, § 24c, as added by L. 1916, ch. 323, and
amended by L. 1920, ch. 84.]

The bank tax herein imposed shall be levied in the following man-
ner: The board of supervisors of the several counties shall, on or be-
fore the fifteenth day of December in each year, ascertain from an in-
spection of the assessment-rolls in their respective counties, the num-
ber of shares of stock of banks and banking associations in each town,
city, village, school and other special districts, in their several counties,
respectively, in which such shares of stock are taxable, the names of the
banks issuing the same, respectively, and the assessed value of such
shares, as ascertained in the manner provided in this article and en-
tered upon the said assessment-rolls, and shall forthwith mail to the
president or cashier of each of said banks or banking associations a

 

Neglect to pay taxes collected to city. The neglect or refusal of the board of
supervisors to direct the county treasurer as required by this section to pay over to
a city the bank taxes collected is a violation of statutory duty and gives the city
a complete cause of action to recover the full amount of the taxes. Such action
is barred by the Statute of Limitations unless brought within six years of
the first day of January succeeding their payment. City of Buffalo v. County of
Erie (1915), 88 Misc. 591, 151 N. Y. Supp. 409, affd. 171 App. Div. 973, 156 N. Y.
Supp. 73.

Tax on stock of bank located in city; remedy against county unlawfully appro-
priating tax; relief by action and by mandamus; laches, By virtue of this section
the city of Tonawanda is entitled to the tax collected upon the capital stock of a
bank located in said city; the sum collected does not belong to the county of Erie.
Where a county has unlawfully appropriated taxes upon bank stock, a city entitled
to receive the same may enforce its right of action, though, under some circum-
stances, mandamus is also a proper remedy. But where there has been a long delay
by the city in enforcing its right and the moneys collected may have gone into the
general fund of the county and have been diverted to other purposes, so that a
tax levy may be necessary to satisfy the claim of the city, the writ of mandamus
suould be denied upon the ground of laches and the city should be left to its remedy
by action. It seems, that, in any event, where an issue of fact such as laches is
raised, an alternative rather than a peremptory writ should issue in cases where
mandamus is an appropriate remedy. People ex rel. City of Tonawanda v. Fitzhenry
(1915), 170 App. Div. 227, 156 N. Y. Supp. 70.
522d TAXATION.
Tax Law, § 24e.

statement setting forth the amount of its capital stock, surplus and un-
divided profits, the number of outstanding shares thereof, the value of
each share of stock taxable in said county, as ascertained in the man-
ner herein provided, and the aggregate amount of tax to be collected
and paid by such bank and banking association, under the provi-
sions of this article, provided that in the county of Erie
the shares of stock of the banks located in the city of Buffalo shall
not be included, nor shall any such notice be given by the board of super-
visors of said county to the said officers of the banks located in said city.1°
A certified copy of each of said statements shall be sent to the county
treasurer. Provided, that, in the city of New York the statement of the
bank assessment and tax herein provided for shall be made by the board of
tax commissioners of said city, on or before the fifteenth day of December
in each year, and by them forthwith mailed to the respective banks and
banking associations located in said city, and a certified copy thereof sent
to the receiver of taxes of said city. And further provided that in the city
of Buffalo a statement of the bank assessment and tax herein provided for
shall be made by the assessors of said city on or before the fifteenth day
of December in each year, and by them forthwith mailed to the respective
banks and banking associations located in said city, and a certified copy
thereof sent to the city treasurer of said city. [Tax Law, § 24-d, as added
by L. 1916, ch. 323, and amendea by L. 1917, ch. 153.]

The board of supervisors shall issue their warrant or order to the county
treasurer on or before the fifteenth day of December in each year, setting
forth the number of shares of bank stock taxable in each town, city,
village, school and other tax district in said county, in which said shares
of stock shall be taxable, the proportion of the tax imposed by this chapter
to which each of said tax districts is entitled, under the provisions hereof,
and commanding him to collect the same, and to pay to the proper officer
in each of such districts the proportion of such tax to which it is entitled
under the provisions of this chapter, provided that in the county of Erie
the shares of stock of banks taxable in the city of Buffalo shall be omitted
from such warrant or order. The said county treasurer shall have the
same powers to enforce the collection and payment of said tax as are
possessed by the officers now charged by law with the collection of taxes,
and the said county treasurer shall be entitled to a commission of one
per centum for collecting and paying out said moneys, which commission
shall be deducted from the gross amount of said tax before the same is
distributed. In issuing their warrants to the collectors of taxes, the

 

10. For form of statement to be made by supervisors to president or cashier of a
bank, see form No. 39, post.

In determining the value of the shares of a banking corporation the assessing
officers should include the value of the real estate owned by the corporation. Mat-
ter of First Nat. Bank of Ossining, 182 N. Y. 460.

The fact that a part of the surplus or undivided profits of a bank are invested
in barge canal bonds which are exempt from taxation, does not authorize the as-
sessors to deduct the amount of such bonds from the amount of the capital stock,
surplus and undivided profits of such bank in assessing the shares of stock of
banks under this section. Rept. of Atty. Genl. (1911), vol. 2, p. 565.

The assessed value of the stock of a bank located in a tax district must be in-
MODE OF ASSESSMENT.

cr
zw
w

Tax Law, §§ 24f, 24g.

board of supervisors shall omit therefrom assessments of and taxes upon
the shares of stock of banks and banking associations, [Tax Law, § 24,
as added by L. 1916, ch. 323, amended by L. 1917, ch. 153, and L. 1918,
ch. 149]

It shall be the duty of every bank or banking association to collect the
tax due upon its shares of stock from the several owners of such shares,
and to pay the same to the treasurer of the county wherein said bank
or banking association is located, except that in the city of Buffalo such tax
shall be paid to the city treasurer of said city, and in the city of New York
to the receiver of taxes thereof on or before the thirty-first day of December
in said year; and any bank or banking association failing to pay the
said tax as herein provided shall be liable by way of penalty for the
gross amount of the taxes due from all the owners of the shares of stock,
and for an additional amount of one hundred dollars for every day of
delay in the payment of said tax. Every bank or banking association
so paying the taxes due upon the shares of its stock shall have a lien on
the shares of stock, and on all property of the several share owners in its
hands, or which may at any time come into its hands, for reimbursement
of the taxes so paid on account of the several shareholders, with legal
interest; and such lien may be enforced in any appropriate manner. The
tax shall be paid by the respective banks in the city of New York to the
said receiver of taxes on or before the thirty-first day of December in
said year, and said tax shall be collected by the said reeciver of taxes
and shall be by him paid into the treasury of said city to the credit of
the general fund thereof. The tax shall be paid by the respective banks
in the city of Buffalo to the city treasurer of said city on or before the
thirty-first day of December in said year, and said tax shall be collected
by the said treasurer and credited to the general fund of said city. [Tax
Law, § 24f, as added by L. 1916, ch. 323, and amended by L. 1917, ch.
153.

ithe bank tax shall be distributed in the following manner: The board
of supervisors of the several counties shall ascertain the aggregate assesed
valuation of taxable pioperty in each of the several town, city, village,
school and other special districts in their counties, respectively, in which
the shares of stock of banks and banking associations shall be taxable for
the year for which the tax is imposed, and the proportion of the tax on
bank stock to which each of said districts shall be respectively entitled
shall be ascertained by taking such proportion of the tax upon the shares
of stock of banks and banking associations, taxable in such districts,

 

cluded in the aggregate amount of the taxable property of such district for the pur-
pose of determining the amount of tax to be levied therein. The tax upon bank
stock is not exclusively for the benefit of the district wherein the bank is situated.
People ex rel. City of Geneva v. Board of Supervisors, 188 N. Y. 1.

Tax is property tax, and not based on term of existence of bank. Taxes levied.
upon the shares of a banking association constitute a property tax, and the asso-
524 TAXATION.

Tax Law, §§ 25, 26.

respectively, under the provisions of this chapter as the aggregate assessed
valuation of such tax district shall bear to the aggregate assessed valuation
of all the town, city, village, school or other special districts in which said
shares of stock shall be taxable, provided that in the county of Erie the
provision of this section shall have no application to the taxes paid by the
banks and banking associations located in the city of Buffalo, and the pro-
visions of this section shall be carried out as if the city of Buffalo were
not a part of said county.11_ The clerks of the several cities, villages and
school districts to which any portion of the tax on shares of stock of banks
and banking associations is to be distributed under this section shall, in
writing and under oath, annually report to the board of supervisors of their
respective counties on or before October first of each year, the aggregate
assessed valuation of such city, village and school district as shown by the
last assessment-roll of each respective city, village, and school district
for the year prior to the meetings of each such board. [Tax Law, § 24g,
as added by L. 1916, ch. 323, and amended by L. 1917, chs. 153, 494. ]

§ 6. INDIVIDUAL BANKER, HOW ASSESSED.

Every individual banker doing business under the laws of this state,
must report before the fifteenth day of June under oath to the assessors
of the tax district in which any of the capital invested in such banking
is taxable, the amount of capital invested in such banking business in
such tax district on the first day of June preceding.13 Such capital shall be
assessed as personal property to the banker in whose name such business
is carried on. [Tax Law, § 25; B. C. & G. Cons. L., p. 5850.]

§ 7. NOTICE OF ASSESSMENT TO BANK OR BANKING ASSOCIA-
TION.

Tax Law, § 26, repealed by L. 1916, ch. 323.

 

ciation is not entitled to have such tax reduced because it has only been in exist-
ence and his enjoyed the benefit of governmental protection during a portion of
the year. People ex rel. Nat. Copper Bk. v. Wells, 58 Misc. 252, 110 N. Y. Supp. 829.

11. Apportionment of tax upon bank stock between town and village. Where a
town containing a village, they being separate tax districts, has two tax rates, one
applicable to the whole town including the village property, the other an additional
rate imposed for town highways as a special road district distinct from the village
under L. 1908, chs. 330, 339, the supervisors, in apportioning the tax upon the stock
of banks situate in the village between the village and the town pursuant to this
section, should not take into consideration the rate assessed for the care of roads
MODE OF ASSESSMENT. 525

Tax Law, § 27.

§ 8. STATEMENTS OF CORPORATIONS TO ASSESSORS; CONTENTS;
MANDAMUS TO COMPEL REPORT.

The president or other proper officer of every moneyed or stock cor-
poration deriving an income or profit from its capital or otherwise shall,
on or before June first, deliver to one of the assessors of the tax district
in which the company is liable to be taxed a written statement in the
form prescribed by the tax commission specifying:

 

outside the village in figuring the ratio payable to the town. People ex rel. Village
of Cobleskill v. Supervisors, 140 App. Div. 769, 126 N. Y. Supp. 259.

A county is not a tax district within the meaning of this section, and is not,
therefore, entitled to share in the distribution of the tax laid upon bank stock
taxable in a tax district. People ex rel. Lawyer v. Supervisors of Schoharie County,
39 Mise. 162. In this case the assessors of the town of Cobleskill within which are
located two banks, made their assessment against each stockholder of such banks in
the manner required by law. The tax so laid was paid by the banks to the treas-
urer of Schoharie county. No question was raised as to the regularity or amount
of the assessment, but it was claimed by the relator that an erroneous principle was
adopted by the board of supervisors in distributing or apportioning the tax among
the tax districts entitled thereto. The board apportioned the tax as follows: To
the county of Schoharie, $568.88; to the village of Cobleskill, $1,385.54; to the town
of Cobleskill the sum of $632.24. Judge Chester said: “The provisions of the stat-
ute require the tax to be distributed among the tax districts in which the bank
shares are taxable. To justify the distribution of a portion of the tax to the county
required the board to regard the county as a tax district. This, it appears, they did,
but in so doing I think they fell into an error. The Tax Law (sec. 2), defines a
‘tax district ’ to be a ‘ political subdivision of the state having a board of assessors
authorized to assess property therein for state and county taxes.’ While a county,
like towns and villages, is a political subdivision of the state, it does not come
within this statutory definition of a tax district. It was, therefore, unlawful for
the board to include the county in its apportionment of this tax and the whole
of it should have been apportioned to the town and village of Cobleskill which was
the only ‘ tax district’ within which the bank shares, upon which this tax was paid,
were taxable.”

It appeared in this case that the board of supervisors ascertained that the tax rate
of the town of Cobleskill was .0047, and of the village of Cobleskill .0103, making
the aggregate tax rates of both tax districts .0150. Following the provisions of the
above section it was the duty of this board to apportion the tax on these bank
shares, amounting to the sum of $2,586.66, to the town and village of Cobleskill,
being the only two districts where the shares were taxable, and the court held that
the town was entitled to $827.12, or .0047-.0150 thereof, and the village to $1,759.54,
or .0103-.0150 thereof.

By the amendment to this section the tax on bank stock is to be distributed
among all municipalities formerly entitled to assess such stock; the term “tax dis-
trict,” as here used, includes villages and school districts, though not having sep:
arate boards of assessors. People ex rel. Village of Kinderhook v. Supervisors of
Columbia, 105 App. Div. 319, 93 N. Y. Supp. 1093, affd. 182 N. Y. 556.

18. For form of report of individual banker, see Form No. 41, post.

15. For form of statement of a corporation to assessors, see Form No. 43, post.

Effect of failure to file statement. Corporations may be assessed though no
statement is made by them to the assessors as required by law. Such a statement
when made is not conclusive upon the assessors. It is the judgment of the assessors
526 TAXATION.

Tax Law, § 28.

1. The real property, if any, owned by such company, the tax district
in which the same is situated and, unless a railroad corporation, the
sums actually paid therefor.

2. The capital stock actually paid in and secured to be paid in, except-
ing therefrom the sums paid for real property and the amount of such
capital stock held by the state and by any incorporated literary or
charitable institution, and

3. The tax district in which the principal office of the company is
situated or in case it has no principal office, the tax district in which its
operations are carried on.

Such statement shall be verified by an officer of the corporation making
the report to the effect that it is in all respects just and true. If such
statement is not made within twenty days after the first day of June, or
is insufficient, evasive or defective, the assessors may compel the cor-
poration to make a proper statement by mandamus.”* [Tax Law, § 27,
as amended by L, 1916, ch. 323; B. C. & G. Cons. L., p. 5850.]

§ 9. PENALTY FOR OMISSION. OF CORPORATION TO MAKE STATE-
MENT; HOW RECOVERED.

In case of neglect to furnish such statements within thirty days after
the time above provided, the company so neglecting shall forfeit to the
people of this state for each statement so omitted to be furnished, the
sum of two hundred and fifty dollars, and it shall be the duty of the
attorney-general to prosecute for such penalty upon information which
shall be furnished him by the tax commission. Upon such statement
being furnished and the costs of the suit being paid, the tax commission,

 

that the law requires.. People ex rel. Manhattan Fire Ins. Co. v. Commissioners of
Taxes, 76 N. Y. 64. The assessors have jurisdiction to assess a corporation although
it fails to make a sta#ement of its financial condition. If such a corporation fails to
appear and demand a correction of the preliminary assessment it can obtain no relief
from overvaluation by certiorari. People ex rel. Union Telegraph Co. v. Com-
missioners of Taxes, 99 N. Y. 354.

15. Effect of statement. Where a corporation furnishes assessors with a full
and complete statement of its assests and liabilities, together with its balance sheet
supporting such statements, the assessors are, in the absence of any other evidence
bound to make such statements the basis of their assessment against the corporation.
People ex rel. Seidenberg Co. v. Feitner, 41 App. Div. 571; 58 N. Y. Supp. 713. The
assessors cannot accept a part of a statement relating to the assests of a corporation
and reject the part relating to its liabilities. People ex rel. Amer. Flag Co. v. Barker,
37 N. Y. Supp. 106; 72 N. Y. St. Rep. 152. Assessors are not justified in rejecting
the statement of a corporation upon the sole ground that it sets forth values less than
the statement of the preceding year. People ex rel. Insulating Co. v. Barker, 16 Mise.
252; 39 N. Y. Supp. 88. If taxing officers do not require an examination of the books
and officers of the corporation they are bound to assume that the value of the gross
assests was correctly given in the verified statement. People ex rel. Brooklyn Union
Gas Co. % Peitner, $2 Aro, Dov. 20S, 1 N.Y. tion, $08)
MODE OF ASSESSMENT. 527

Tax Law, § 29.

if it shall be satisfied that such omission was not wilful, may, in its
discretion, discontinue such suit.*® [Tax Law, § 28, as amended by L.
1916, ch. 8323; B. C. & G. Cons. L., p. 5851.1

§ 10. COUNTY CLERKS TO FURNISH DATA RESPECTING CORPO-
RATIONS.

Between the first and fifteenth days of June in each year the county
clerk in each county of the state, excepting counties wholly situate within
the corporate limits of a city, shall prepare from the records in his office
and mail to each of the city and town clerks in his said county, a certified
statement containing the names of every stock corporation, whose certificate
of incorporation has been filed with him since the last preceding annual
statements to said several city and town clerks, whose principal business
office or chief place of business is designated in its certificate of incorpora-
tion as being in such city or town or in any village or hamlet therein,
together with the fact of such designation and the names and addresses of
the directors of each such corporation so far as said county clerk can discover
the same from the certificate of incorporation or from the latest certificate
of election of directors of such corporation filed in his office. ach city or
town clerk receiving such statement shall forthwith file the same in his office
and mail a notice of such filing to each of the assessors of his city or town.

 

In case of the failure of a corporation to deliver the report required by this section,
it will be presumed that the assessors ascertained the value of the capital and surplus
of the corporation to be the sum stated in the assessment-roll, from the best infor-
mation available to them. Matter of Adler Bros. & Co., 76 App. Div. 571; 78 N. Y.
Supp. 690; affd., 174 N. Y. 287. .

Valuation by secretary as basis of assessment.—The valuation of the capital
stock made by the secretary of a company in the statement to the assessors, held suffi-
cient evidence of value upow which to base the assessment, notwithstanding the com-
pany sought by certiorari to correct the assessment by deducting the amount of debts
owed by it from the sum indicated in the statement, since the value of the franchises
might make up the difference. People ex rel. Buffalo Mut. Gas-Light Co. v. Steele,
1 Buff. Super. Ct. 345.

Mandamus not « remedy.—It seems that a corporation cannot be mandamused
to furnish the statement required by this section. Matter of Adler Bros. & Co., 76
App. Div. 571, 78 N. Y. Supp. 690, affd. 174 N. Y. 287. .

16. The penalty prescribed by this section is exclusive and the courts cannot im-
pose any other punishment. People ex rel. West Shore R. R. Co. v. Pitman, 9 N. Y.
St. Rep. 469.
528-532 TAXATION.

Tax Law, §§ 30, 33.

[Tax Law, § 29, as amended by L. 1917, ch. 38; B. C. & G. Cons. L., p.
5852.]

§ 11. TAX MAP IN EACH TAX DISTRICT.

A tax district may prepare or adopt for the use of the assessors a tax
map of the district, or of such portion of the tax district as lies within
an incorporated village, on which shall be shown each separately assessed
parcel of real property with its boundaries properly marked. When
any parcel contains more than one acre its contents in acres shall be
shown upon said tax map. Each separately assessed parcel shall be
given an identification number or numbers upon such map, and such
number or numbers shall not be changed except as may be necessary
when such parcel is altered or divided or merged with some other
parcel. The assessors shall make such changes from year to year upon
such tax map as may be necessary to keep the map accurate. Such
map shall be prepared and kept in accordance with such rules as the
tax commission may, from time to time, prescribe. For the purposes of
. this section an incorporated village shall be deemed a tax district.”
[Tax Law, § 30, as added by L. 1911, ch. 315, and amended by L. 1916,
ch. 323, and L. 1919, ch. 442.]

§ 12. ASSESSMENT OF AGENT, TRUSTEE, GUARDIAN OR EXECUTOR.

If a person holds taxable property as agent, trustee, guardian, ex-
ecutor or administrator, he shall be assessed therefor as such, with the
addition to his name of ‘his representative character, and such assess-
ment shall be carried out in a separate line from his individual assess-
ment.2 [Tax Law, § 33; B. C. & G. Cons. L., p. 5856.]

17. The necessary expenses incurred by assessors in preparing tax maps pur-
suant to this section are charges against the municipality which they represent.
Rept. of Atty. Gen]. (1911), vol. 2, p. 639.

As to when an assessment is not in compliance with the statute, see People v.
Baker (1917), 180 App. Div. 275, 167 N. Y. Supp. 591.

28. References. Place of taxation of trust property, etc., see Tax Law, sec. 8,
ante, p. 492. All assessments made to the “estate” of a decedent prior to April
9, 1898, were legalized by L. 1898, ch. 310; and it would seem that such assess-
ments are deemed to be valid under section 63 of the Tax Law, post, p. 566.

Assessments to personal representatives. It has been repeatedly held that
it is not sufficient for assessors to assess lands or personal property to the
“estate of A. B..” or to the “heirs of <A. B.,” but that the assessment to be
valid, must specify the name or names of the individuals who are subject to the

 
MODE OF ASSESSMENT. 533
Tax Law, § 34.

§ 13 ASSESSMENT-ROLL, WHEN TO CONTAIN ASSESSMENT OF
PROPERTY OMITTED IN PRECEDING YEAR.

The assessors of any tax district shall, upon their own motion, or upon
the application of any taxpayer therein, enter in the assessment-roll of
the current year any property shown to have been omitted from the
assessment-roll of the preceding year, at the valuation of that year, or

 

tax. Cruyer v. Dougherty, 43 N. Y. 107; Trowbridge v. Horan, 78 N. Y. 439;
Cromwell v. MacLean, 123 N. Y. 474, 485; 25 N. HB. 932; Matter of Kenworthy,
63 Hun, 165; 17 N. Y. Supp. 655; Sandy Hill v. Akin, 77 Hun, 587; 28 N. Y.
Supp. 889; Adams v. Supervisors of Monroe, 18 App. Div. 415, 46 N. Y. Supp.
48, affd. 154 N. Y. 619.

Executors are taxable as such from the death of the testator. The admission
of the will to probate and the issuance of letters testamentary dare not conditions
precedent to such a possession and control of the testator’s personal estate as
to authorize an assessment of such estate in the name of the executors. People
ex rel..Gould v. Barker, 150 N. Y. 52; 44 N. E. 785.

An assessment to one of four executors, with an addition “and others
excrs., of the est. uf ” a specified decedent, followed by the entry of the amount
of personal property, is sufficiently accurate to lead to the identification of the
executors and is in proper form to make a valid assessment. People ex rel.
McHarg v. Gaus, 169 N. Y. 19.

Executor not to be assessed unless property is received. Assessors have no
jurisdiction to assess executors for personalty where they receive none, nor to
determine contrary to the facts that they have personalty of the testator in their
possession. Bowe v. McNab, 11 App. Div. 386, 42 N. Y. Supp. 9388.

Assessment of trust estates. Where a will creates three separate and distinct
trusts in behalf of three different beneficiaries the three trust estates may be
assessed in solido. The fact that one of the three trustees is not named is not
a fatal defect. People ex rel. Cammann v. Feitner, 61 App. Div. 115, 70 N. Y.
Supp. 556, affd. 168 N. Y. 646. See People ex rel. Beamon v. Feitner, 168 N. Y.
360, revg. 63 App. Div. 174,°71 N. Y. 261. Fe

The name of the trustee, or other person acting in a representative capacity.
should be inserted, and there should be appended a designation of his rep-
resentative capacity and a description of the estate which he represents, as “A.
B. trustee for estate of J. D.”’ In this connection Judge Beekman, in the case
of Pecple ex rel. Cadwallader v. Feitner, 26 Misc, 40, 43; 56 N. Y. Supp. 407,
says: “Itis plain that the proper construction of the statute requires a separate
assessment against a trustee with respect to each separate and distinct trust
administered by him. It is also obvious that the tax commissioners could not,
under a single assessment and a general designation of the person assessed,
by the words “John L. Cadwallader, as trustee,” without further description,
necessarily include all the trust estates represented by him. Such a method
would inevitably result in difficulties and complications in the determination of
the proportion of the tax which should be charged against each estate, and in
other respects, which it would be unreasonable to suppose the legislature ever
intended to sanction. Separate assessments then being necessary with respect
to each trust, it is the more apparent that the trust itself must, in each case, be
particularized, as, otherwise, it would be impossible to determine to which estate
any one of such assessments applied, and a condition of uncertainty would exist
534 TAXATION.

Tax Law, § 34-a.

if not then value, at such valuation as the assessors shall determine for
the preceding year. Assessments of special franchises that were
omitted shall be entered at the valuation fixed and equalized by the tax
commission.” [Tax Law, § 34, as amended by L. 1914, ch. 277%, and L.
1916, ch. 323; B. C. & G. Cons. L., 2d Ed., p. 8344.]

§ 13-a. Reassessment of mapped lots illegally assessed.

The assessors of any tax district, who shall have heretofore assessed
mapped lots in such district, describing such lots by stamping or writing
the title of the map of such lots at the head of the column in which the
description of such lots is to be made, and shall have failed or neglected
to repeat such description by the use of ditto marks or otherwise before
subsequent block and lot numbers, and by such failure or neglect the
property-has been illegally assessed, may reassess any such lot or property
for any year in which such illegal assessment shall have been made and
enter the same in the assessment-roll of the current year at the valuation
originally set forth in the assessment-roll for the year in which such
neglect or omission occurred, or if not then valued, at such value as the
assessors shall determine. [Tax Law, § 34-a, as added by L. 1921, ch. 442.]

 

calling for a construction of the statute that would avoid any such result. Such
w construction, which is consonant with reason and does no violence to the terms
of the statute, is realized by holding, as I do, that the requirement that the
representative character of the person assessed shall be stated, imports a specifi-
cation of the concrete relation of such person to a particular trust.” See, also,
People ex rel. Pike v. Barker, 86 Hun, 283; 33 N. Y. Supp. 1132.

Bequests to benevolent corporation in hands of executor. An absolute bequest
of a residuary estate to a benevolent or charitable corporation, which is included
within the exemption of a charitable corporation, under § 4 of the Tax Law, vests
at the death of the testator and is thereafter exempt from taxation; the fact
that the estate has not been settled and the legatee has not received the property
does not render its assessment proper under this section; such section only applies
to property that is taxable under other provisions of the Tax Law, People ex rel.
Crook v. Wells, 179 N. Y. 257, revg. 93 App. Div. 500, 87 N. Y. Supp. 826.

Deductions, In order that an executor may be entitled to have just debts
deducted from the aggregate of personal property held by him, they must be legal,
valid and incontestable obligations. To reduce or nullify an assessment, affirmative
proof that it is erroneous in whole or in part must be given. People ex rel.
Osgood v. Comm’rs of Taxes and Assessments, 99 N. Y. 154,

29. Omitted property. Under L. 1865, ch. 453, sec. 1, from which the above sec-
tion was derived. it was held that the duties of the assessors were merely min-
isterial, and that they could not include property omitted from the assessment-
roll of the preceding year unless it had been valued either in that year or in the
year preceding. People ex rel. Oswald v. Goff, 52 N. Y. 434. But this decision
is apparently nullified by the change made in the above section of the Tax Law
which seems to authorize the assessors to determine the valuation of the omitted
property for the preceding vear in ease none was then made.

.
MODE OF ASSESSMENT, 535
Tax Law, § 35.

§14. DEBTS OWING TO NON-RESIDENTS OF UNITED STATES, HOW
ASSESSED.

Every agent in any county of the state of a nonresident creditor
having debts owing to him, taxable in any county of the state, shall
annually, on or before June first, furnish to the county treasurer of the
county where the debtor resides, a true, and accurate statement verified
by his oath, of such debts owing on the first day of May next preceding
in each town or ward in such county.*°

The county treasurer shall, immediately upon the receipt of such state-
ment, make out and transmit to the assessors of every tax district in the
county in which any such debtor resides, a copy of as much of such state-
ment as relates to the tax district of Sach assessors, with the name of the
creditor. The assessors on receipt of such statement from the county
treasurer shall, within the time in which they are required to complete
the assessment-roll, enter therein the name of such nonresident creditor,
and the aggregate amount due him in such tax district on the first day
of May next preceding, in the same manner as other personal property is
entered on the roll, adding the name of the debtor owing such debt.

 

Where land of non-resident is assessed to “Warford, Cyrus, est. G. H. Grafft,
Agt.” the assessors may treat it as having been wholly omitted, and reassess it
the next year for the previous year. Matter of Chadwick, 59 App. Div. 334, 69
N. Y. Supp. 853.

A tax against a resident returned as unpaid, held to be chargeable, in the subse-
quent year, against the land assessed only. Jewett v. Lamphear, 20 N. Y. Wk.
Dig. 232. ‘

Administrators are personally liable for a tax duly imposed on property of an
estate in their hands, and they are not relieved because they subsequently dis-
tribute the estate. City of N. Y. v. Goss, 124 App. Div. 680, 109 N. Y. Supp. 151.

A corporation liable to taxation having been inadvertently omitted from assess-
ment for city and county purposes for one year may be taxed therefor under the
provisions of the above section upon the roll of the succeeding year. People
ex rel. Brooklyn City R. R. Co. v. Assessors, 92 N. Y. 430.

Notice. The reassessment of omitted taxes cannot be made without notice, nor
after the completion of the roll for the current year. Overing v. Foote, 65 N. Y. 263.

The provisions of this section, being a part of the general system of taxation, are
not subject to the constitutional objection that they do not require a notice or
hearing, since the general notice of the completion of the assessment roll is suffi-
cient. People ex rel. Brooklyn City R. R. Co. v. Assessors of Brooklyn, 92 N. Y. 430.

This section does not provide for a new assessment or for a reassessment of an
assessment cancelled by the judgment of a court of competent jurisdiction, and does
not authorize an assessment for taxes without any notice to the party sought to
be taxed. People ex rel, Glen Head Realty Co. v. Garland, 72 Mise. 413.

30. For form of statement of agent of non-resident creditor having debts owing
to him, see Form No. 45, post.
536 TAXATION,

Tax Law, § 36.

Any agent neglecting or refusing without good cause to furnish such -
statement to the county treasurer shall forfeit to the county in which the
debtor resides the sum of five hundred dollars, recoverable by the district
attorney, if the existence of such debts was known to the agent.2!. [Tax
Law, § 35, as amended by L. 1916, ch. 323; B. C. & G. Cons. L., 2d Ed.,
p. 8345.]

§15. COMPLETION OF ASSESSMENT-ROLL; NOTICE OF COMPLETION;
CONTENTS.

The assessors shall complete the assessment-roll on or before the first
day of August, and make out a copy thereof, to be left with one of their
number, and forthwith cause a notice to be conspicuously posted in three
or more public places in the tax district, stating that they have completed
the assessment-roll, and that a copy thereof has been left with one of their
number at a specified place. where it may be seen and examined by any
person until the third Tuesday of August next following, and that on that
day they will meet at a time and place specified in the notice to review their
assessments. In any city the notice shall conform to the requirements

 

31. Debts due non-residents are personal property. See Tax Law, sec. 2, sub.
5, ante, p. 470. The term debt as here used includes sums of money due from
inhabitants of the state, to the non-resident mentioned, by certain and express
agreements or judicial sentence, and for the purchase of real estate. People ex rel.
Stephens v. Halsey, 53 Barb, 547; 36 How. Pr. 487; affd. 37 N. Y. 344; see, also,
Redfield v. Supervisors of Genesee, Clarke’s Ch, 42.

The statement furnished by the agent is not conclusive upon the assessors; but
the county treasurer cannot question the amount fixed by the assessors, People ex
tel. Stephens v. Halsey, 837 N. Y. 344.

Application may be made by agent of owner, if in good faith. If agent fails to
appear before board of assessors, or to answer material questions in a blank form
presented to him, it is evidence that application was not made in good faith. The
agent must have information as to the facts so as to be able to answer questions
submitted to him. People ex rel. Trojan Realty Corp. v. Purdy (1917), 174 App.
Div. 702, 162 N. Y. Supp. 56.

32, For form of notice of completion of assessment roll, see Form No. 46, post.

Effect of failure to give notice. Omission to give notice for the time prescribed
is a jurisdictional defect, and the assessment is void. Wheeler v, Mills, 40 Barb. 644;
see, also, Jewell v. Van Steenburgh, 58 N. Y. 85; Metcalf v. Messenger, 46 Id. 325;
Overing v. Foote, 65 N. Y. 268; People ex rel, McGuinness v. Lewis, 127 App.
Div. 107, 119, 111 N. Y. Supp. 398.

Failure to publish notice of final completion of assessment roll will relieve a
person seeking to correct it from the limitation prescribed by section 291 of the
Tax Law, for bringing an action to review the assessment. People y, Adams, 125
N. Y. 471.

Poll tax assessed in December without notice to persons taxed is invalid. Burger
y. Farrell, 50 Mise. 497, 100 N. Y. Supp. 638

Sufficiency. If the assessment made was valid under the statute in force at the
time the fact that the notice to the taxpayer incorrectly describes the statute under
MODE OF ASSESSMENT. 537

Tax Law, § 36a:

of the law regulating the time, place and manner of revising assessments
in such city. During the time specified in the notice the assessor with whom
the roll is left shall submit it to the inspection of every person applying
for that purpose. [Tax Law, § 36, as amended by L. 1909, ch. 403, and
L. 1916, ch. 823; B. C. & G. Cons. L., 2d Ed., p. 8346.]

Completion of assessment-roll; notice to nonresidents.—The assessors
shall between the first and fifth day of August mail a notice to each person
and corporation nonresident of their tax district, who has filed with the
city or town clerk, on or before the fifteenth day of June preceding, a
written demand therefor. Such notice shall specify each parcel or portion
of real property separately assessed to said nonresident person or corpora-
tion, the assessed valuation thereof, and the time and place at which the
board of assessors will meet for the purpose of hearing complaints in

 

which it was made does not invalidate the assessment. People ex rel. Barney v.
Barker, 35 App. Div. 486; 54 N. Y. Supp. 848; affd. 159 N. Y. 569.

Posting notices. A posting of the notices of assessors of taxes on the completion
of the assessment roll, by a person other than an assessor, under the assessor’s direc-
tion, is a sufficient compliance with the statute. Supervisors v. Betts, 25 N. Y.
St. Rep. 660.

Evidence of posting notices by assessors, of the completion of the assessment
roll and of notice of meeting to hear grievances, coupled with the presumption that
obtains in respect to the action of officials in the line of their duty, is sufficient to
sustain a finding of fact in an action of ejectment under a tax title, that such
notices were given. Supervisors v. Betts, 25 N. Y. St. Rep. 660.

After completion and notice roll cannot be changed as to persons or property
assessed, except upon complaint. People ex rel, Chamberlain v. Forrest, 96 N. Y.
544. Or, with consent of person assessed. Overing v. Foote, 43 Id. 290.

The provision that the town board of assessors shall complete the assessment
roll on or before the first day of August is mandatory and after said date no prop-
erty can be legally added to the roll. People ex rel, Suburban Investment Co. v.
Miller, 73 Misc, 214.

The verification of an assessment-roll before the third Tuesday of August
and the omission of the assessors to meet on the third Tuesday of August, as
required by law, are mere irregularities and not jurisdictional defects, ‘and a title
resting upon a sale for the taxes so assessed is validated by L. 1885, ch. 448.
People v. Turner, 145 N. Y. 451, 65 N. Y¥. St. Rep. 389; Matter of Young, 26 Misc.
186, 56 N. Y. Supp. 861.

An assessor need not retain actual custody of an assessment roll after it has
been left with him, The assessors are empowered in their discretion to designate
a place which, in their judgment, will be most convenient and accessible, where
the roll may be seen and examined, for instance, the town clerk’s office. Rept.
of Atty. Genl., July 27, 1910. /

Compensation of town clerk. The town clerk is not entitled to compensation for
allowing the assessment rolls of the town to be placed in his office for examination,
People ex rel. Gedney v. Sippell, 116 App. Div. 753, 102 N. Y. Supp. 69.
538 TAXATION.

Tax Law, § 387.

relation thereto. Upon application made on or before the third Tuesday
of August by any nonresident owner of real estate, or by a corporation,
having real property in more than one tax district in the county, the
assessors shall fix a time subsequent to the third Tuesday in August, but
not later than the thirty-first dav of August, for a hearing and to review

their assessments.°** [Tax Law, § 36a, as added by L. 1916, ch, 323,
and amended by L. 1917, ch. 489, and L. 1922, ch. 209.]

§ 16. GRIEVANCE DAY; STATEMENT OF COMPLAINTS; EFFECT OF FAIL-
URE TO TESTIFY; MINUTES OF EXAMINATION TO BE FILED.32b

The assessors shall meet at the time and place specified in such notice,
and hear and determine all complaints in relation to such assessments
brought before them, and for that purpose they may adjourn from time to
time.** Such complainants shall file with the assessors a statement,
under oath, specifying the respect in which the assessment complained of
is incorrect, which statement must be made by the person assessed or whose
property is assessed, or by some person authorized to make such statement,

 

The statutory provisions as to specifications to be alleged in protests and com-
plaints on grievance day and in petitions for writs of certiorari to review assess-
ments (§§ 87, 290), are applicable to review of assessments of special franchises
only “so far as practicable.” L. 1899, ch. 712, § § 44, 45, L. 1896, ch. 908, §§ 36,
250). People ex rel. Long Island R. R. Co. v. Tax Com’rs. (1921), 231 N. Y. 221,
131 N. E. 896, modfg. 193 App. Div. 297, 183 N. Y. Supp. 733.

32a, Protest need not be made on grievance day. A corporation having real prop-
erty in more than one tax district in a county, which makes application to review
its assessment, need not appear to file protest on the regular grievance day, but
may subsequently make an application provided it will permit the fixing of a date
not later than the thirty-first day of August. Opinion of Atty. Genl. (1916), 9
State Dept. Rep. 422.

32b, Application. It is doubtful whether this section applies to the revision of
assessments in the City of New York. People ex rel. Empire Mortgage Co. v. Cantor
(1920), 190 App. Div. 512, 180 N. Y. Supp. 139.

33. Meeting of assessors to hear complaints. The assessors are required by the
above section to meet at the time and place specified in the notice to hear com-
plaints in respect to assessments made by them. The failure of the assessors to
meet on grievance day is an irregularity and not a jurisdictional defect. Matter of
Young, 26 Mise, 186; 56 N. Y. Supp. 861; see, also, People v. Turner, 145 N. Y.
451; 40 N. E. 400.

Time of making application for review, Where it appeared that the notice pub-
lished by assessors fixed August 18th, the third Tuesday in August, as “the first
day upon which objections” to the assessment would be heard; that the petitioner
did not appear on such day, but did appear on August 19th; that all the members
of the board of assessors were then present but declined to hear the petitioner’s
protest on the ground that it was made too late, and that on August 18th they
had adjourned without fixing any other time for the presentation of protests; it
MODE OF ASSESSMENT.

cr
a>
o

Tax Law, § 37.

and who has knowledge of the facts stated therein.** The assessors may
administer oaths, take testimony and hear proofs in regard to any such
complaint and the assessment to which it relates. If not satisfied that

 

was held that in view of the provisions of the above section relative to adjourn-
ments, and of the absence of any provision in the statute designating a particular
day for the presentation of protests, the assessors had jurisdiction to entertain the
protest made by the petitioner on August 19th. Matter of Cathedral of Incarna-
tion, 91 App. Div. 543, 86 N. Y. Supp. 900.

34, For form of application for the correction of an assessment, see Form No.
47, post.

Necessity of complaint. The assessors are without jurisdiction to modify an
assessment upon grievance day except upon complaint of the party aggrieved. People
ex rel. Chamberlain v. Forrest, 96 N. Y. 544. And assessors cannot at such time
enter upon the roll an assessment for personal property against a person whose
name was not then on such roll, even though the person so assessed voluntarily
appeared before the board and submitted to an examination. People ex rel, Swart-
wout v. Village of Port Jervis, 23 Misc. 317; 52 N. Y. Supp. 59.

In the case of an assessment made without jurisdiction, the omission to file a
written objection on the day fixed by village assessors for hearing complaints pur-
suant to this section does not impair the right of the person or corporation assessed
to review the assessment by writ of certiorari. People ex rel. N. Y. Cent, & H. R,
R. Co. v..Keno, 61 Mise. 845, 114 N, Y. Supp, 1094.

Who may make statement. An attorney or agent may make the statement under
this section. Matter of Corwin (1892), 185 N. Y. 245, 832 N. E. 16; People ex rel.
West Shore R. R. Co. v. Johnson (1898), 29 App. Div. 75, 51 N. Y. Supp. 388;
People ex rel. Erie R. R. Co. v. Webster (1900), 49 App, Div. 556, 63 N. Y. Supp. 574.
But must have knowledge of facts stated therein. A corporation which has no
prior relation to, or knowledge of, the property assessed is not thus qualified.
People ex rel. Floersheimer v. Purdy (1916), 174 App. Div. 694, 162 N. Y. Supp. 70;
People ex rel. Trojan Realty Corp. v. Purdy (1916), 174 App. Div. 702, 162 N. Y.
Supp. 56. The application for reduction may be made by a lay agent. Id.

‘Sufficiency of statement. The statement should comply in all respects with the
requirements of the statute. People v. Supervisors of Westchester County, 15 Barb,
607; People v. Ross, 15 How. Pr. 63. :

It is too late on appeal for assessors to object to the sufficiency of the complaint
filed with them on grievance day. People ex rel. Congress Hall v. Ouderkirk, 120
App. Div. 650, 105 N. ¥. Supp. 134.

In specifying a grievance, if the error complained of is that the property is
assessed proportionately higher than any other property in the town, particular
instances need not be given. People ex rel. Erie R. R, Co. v. Webster, 49 App. Div.
556; 63 N. Y. Supp. 74. In this case it was also held that the verification by the
tax agent of a railroad corporation is sufficient without giving the source of his
information. See, also, Matter of Corwin, 135 N. Y. 245; 32 N. E. 16; People ex.
rel. West Shore R. R. Co. v. Johnson, 29 App. Div. 75; 51 N, Y. Supp. 388.
539 MODE OF ASSESSMENT.

Tax Law, § 37.

such assessment is erroneous, they may require the person assessed,
or his agent or representative, or any other person, to appear before

 

Instances of inequality need not be specified. A complaint filed with tax assess-
ors on grievance day based upon the inequality of assessment, need not specify
instances of inequality in order to become the basis of a petition for certiorari to
review the assessment. People ex rel. N. Y. C. & W. R. Co. v. Wakeham, 143 App.
Div. 816.

Where the statement filed on grievance day does not specify the instances of
inequality, the courts have refused to inquire into the question of the inequality,
although there is no such requirement in this section. People ex rel, Hermann v.
Kaufman, 121 App. Div. 599, 106 N. Y. Supp. 305.

Proof of inequality. On complaint to the assessors on grievance day to show
inequality of assessment as compared with other pieces of property in the neighbor-
hood of the same general class and character, it is sufficient, in the absence of contra-
diction, to prove substantial similarity to make them suitable for comparison. A
landowner complaining of the inequality of the assessment as compared with other
lands similarly situated in the neighborhood may show the inequality by comparing
either the gross assessment of his property with the gross assessment of similar
properties on the assessment-roll, or by comparing the valuation of the land made
by the assessors and the values of other similar lands, and the valuation of build-
ings made by the assessors and the values of other similar buildings, and this is
not changed by Tax Law, § 21a, added by Laws 1911, ch. 117, which provides for
the separate listing of the value of lands exclusive of buildings, and “the total
assessment only can be reviewed.” People ex rel. Strong v. Hart, 216 N. Y. 513,
111 N. E. 56, affirming 166 App. Div. 907, 150 N. Y. Supp. 1106.

Service of a notice or statement as required by this section is not effected by
the delivery of said statement to the clerk, if the board of assessors was not in
session or in or about the office at the time. People ex rel. Suburban Investment
Co. v. Miller, 73 Mise. 214.

Effect of statement and testimony as to financial condition of corporation.
Where a corporation has been assessed upon its capital and surplus pursuant to
§ 12 of the Tax Law, and makes application for a correction of the assessment,
and files a verified statement as to its financial condition, and the president is
examined under oath as to the truth of such statement, the tax commissioners are
bound to accept the statement and testimony as true in the absence of evidence
impeaching their verity. People ex rel. Cons. Gas Co. v. Feitner, 78 App. Div. 313,
79 N. Y. Supp. 975,

Effect of requests for relief from entire assessment. Where the relators had
asked the assessors to relieve them from an assessment entirely, whereas it ap-
peared that they were entitled to a reduction only—held, that the reduction should
have been granted, though costs should not be imposed on the assessors on review-
ing their proceedings denying the application, since it had not asked for the reduc-
tion merely. People ex rel. Western R. R. Co. v. Assessors of Albany, 40 N, Y. 154.

The statement is not conclusive, but is to be considered by the assessors with
such other evidence as they possess. People ex rel. Buffalo & State Line R. R. Co.
v. Barker, 48 N. Y. 70. But if such statement is the only evidence before the asses-
MODE OF ASSESSMENT. 539b

Tax Law, § 37.

them and be examined concerning such complaint, and to produce any
papers relating to such assessment with respect to his property or his

 

sors they cannot disregard it. People ex rel. Oswego Canal Co. v. Oswego, 5 Hun, 117;
People ex rel. Raplee v. Reddy 43 Barb. 589; Matter of Plumb, 19 N. Y. Supp. 78.
A sworn statement showing the assets and liabilities of a corporation, which is
unimpeached, should control, and the valuation should be reduced accordingly, People
ex rel. Brokaw Bros v. Feitner, 44 Ap. Div. 278; 60 N. Y. Supp. 687.

The determination of the correctness of the assessment is remitted to the assess-
ors’ judgment and decision upon all the facts and proceedings including the evidence
of the complainant, and any other facts known to them, and brought to their
attention, bearing upon the complaint, People ex rel. Equitable Gas Light Co. v.
Barker, 144 N. Y. 94, 101; 39 N. E. 13. But the judgment of the assessors cannot
be capriciously or arbitrarily exercised, and when the proofs presented on the appli-
cation are full, uncontradicted and credible, and show the assessment to have been
erroneous, they cannot arbitrarily refuse to grant relief. People ex rel. Edison v.
Commissioners, 139 N, Y. 55; 34 N. E, 722.

Waiver by assessors. If the assessors act upon an application made to them
for a reduction of an assessment, they thereby waive its defects. People ex rel.
Eckerson v. Christie, 115 N. Y. 158; 21 N. Y. 1117.

In the case of people ex rel, Scobell v. Kelborn, 35 Mise. 600, it was held that
the failure of a complainant to file a statement under oath, as required by the
above section, is waived by the assessors, where he appeared before the assessors
and insisted that his valuation should be reduced, and they, without requiring the
statutory statement, reduced the assessment to some extent.

Commissioners are without power to waive provisions of this section requiring
an application for reduction of assessments to be made under oath. People ex rel.
Laurelton Div. Co. v. Purdy (1920), 190 App. Div. 957.

Defects in a petition for a writ of certiorari are waived by the filing of a return
thereto before moving to quash said writ, People v. State Board of Tax Com’rs.
(1921), 231 N. Y. 221, 1381 N. E. 896, modfg. 193 App. Div. 297, 183 N. Y. Supp. 733.

Where application for revision of assessment on real property in city of New
York meets all requirements of this section and of § 895 of the Greater New York
Charter, and is referred to a deputy tax commissioner for re-examination, and the
hearing upon the merits is had without objection at any time being made to the
form or sufficiency of the application, a reassessment may not be denied on the
sole ground that the application was insufficient, such objections being deemed
waived. People v. Cantor (1921), 115 Misc. 519, 188 N. Y. Supp. 885.

Waiver of defect in affidavit. Where an affidavit in support of an application
for relief from an assessment is considered by the assessors on the merits, an
objection that it is informal, or insufficient proof of the facts alleged, not made
at the time it was presented, will not be available to them on certiorari to review
their proceedings. People ex rel, Western R. R. Co. v. Assessors of Albany, 40
N.Y. 154.

Examination of claimant; evidence. Assessors should require a personal exam-
ination, on oath, of all persons making application for a reduction of assessment
whenever practicable. Répt. of Atty. Genl. (1895) 210. If the applicant states
that he cannot remember to whom the debts he seeks to have deducted from his
assessment are due, nor the several amounts thereof, the assessors should disregard
his evidence, Vose v. Willard, 47 Barb. 320,

Applicant must answer any pertinent relevant question, else the assessors will
be justified in refusing the application. Rept. of Atty. Genl. (1895) 150.

A relator seeking to obtain a reduction of her personal assessment refused
540 TAXATION.

Tax Law, § 37.

residence for the purpose of taxation.** The assessors shall, after said

examination, fix the value of the property of the complainant and for
that purpose may increase or diminish the assessment thereof. If any
such person, or his agent or representative, shall wilfully neglect or
refuse to attend and be so examined, or to answer any material question
put to him, such person shall not be entitled to any reduction of his
assessments.*® Minutes of the examination of every person examined

 

to answer concerning the disposition of personal property formerly owned by
her when questioned by the assessors. The inquiry being justifiable to enable
them to judge of the present amount of her personality, a refusal by them to
reduce the assessment would not afford ground for review. People ex rel. Green
v. Hall, 883 Hun, 375. In passing upon an application for a reduction of an
assessment for personality, the assessors act judicially and should be governed
by the evidence, though they may exercise their knowledge and judgment where
the value is to be ascertained upon an assumed basis of estimate. Idem.

The evidence produced by the owner seeking to correct an assessment, if
uncontradicted, must control. People ex rel. Amer. Linen Thread Co. v.
Howland, 61 Barb. 273. Where a corporation presents evidence to the taxing
officers as to the value of its assets, full and complete, so as to establish the facts
upon which its claim for reduction rests, and it is not contradicted by facts
within their knowledge, and no good reason exists for questioning its truth,
refusal to decide in accordance with such evidence is legal error. People ex rel.
German, etc., Co. v. Barker, 75 Hun, 6.

The burden of proving over-valuation is upon the taxpayer. People ex rel.
Fargo v. Murphy, 32 N. Y. St. Rep. 780; 10 N. Y. Supp. 377.

35. Attendance personally required. A taxpayer who claims a reduction
must attend upon the assessors in person, submit to an examination under oath,
and subscribe to the answers, and an affidavit taken before a notary public with-
out such attendance is not sufficient. People ex rel. Mercer v. Maynard, 7 Misc.
295, 58 N. Y. St. Rep. 546, 28 N. Y. Supp. 141; People ex rel. Brown v. O’Rourke,
31 App. Div. 588, 52 N. Y. Supp. 427.

Failure to appear. In case a taxpayer does not appear before the assessors and
object to an assessment, the taxpayer loses his right to a review of the assessment
by a certiorari. People ex rel. Horton v. Ferguson, 120 App. Div. 563, 105 N. Y.
Supp. 388; People ex rel. West Shore R. R. Co. v. Adams, 125 N. Y. 471; 26 N. E.
746; People ex rel. Western Union Tel. Co. v. Dolan, 126 N. Y. 166, 27 N. E. 269;
People ex rel. Trojan Realty Corp. v. Purdy (1917), 174 App. Div. 702, 162 N. Y.
Supp. 56; see, also, cases cited in Cumming & Webster’s Annotated Tax Laws
under sec. 250.

The omission of a person claiming to be a non-resident uf the town to appear be-
fore the assessors and object to an assessment of his personal property will not
deprive him of the right to review the action of the assessors by certiorari. People
ex rel. Paddock v. Lewis, 55 Hun 521, 29 N. Y. St. Rep. 606, 9 N. Y. Supp. 333.
See Mygatt v. Washburn, 15 N. Y. 319; Clark v. Norton, 49 Id. 247; Westfall v.
Preston, Id. 354. This last case was followed in Kane?v. City of Brooklyn, 15
N. Y. St. Rep. 872, 1 N. Y. Supp. 306 (Gen. T.); People ex rel. Buffalo R. R. v.
Fredericks, 48 Barb. 176; Clark v. Norton, 49 N. Y. 247. See Livingston v. Hollen-
beck, 4 Barb. 9.

36. Refusal to testify. Where a New Jersey corporation, engaged in business
within this state, makes application for a correction of an assessment, the com-
missioners may take into consideration, in disposing of the application, the wilful
refusal of the president of the corporation to testify in regard to transactions of
the company in the state of New Jersey. People ex rel. Claflin Co. v. Feitner,
58 App. Div. 468; 69 N. Y. Supp. 410.
MODE OF ASSESSMENT. 541

Tax Law, §§ 297, 38.

by the assessors upon the hearing of any such complaint shall be taken
and filed in the office of the town or city clerk. [Tax Law, § 37, as
amended by L. 1916, ch. 323; B. C. & G. Cons. L., p. 5860. ]

§ 17. APPLICATION TO COUNTY COURT FOR APPORTIONMENT
OF TAXES AND ASSESSMENT; NOTICE TO ASSESSORS;
COLLECTOR TO CHANGE ASSESSMENT-ROLL UPON ORDER
OF COURT.

When the premises of one person shall have been wrongfully assessed
and taxed in with the premises of another, the person aggrieved thereby
may, upon application to the county court of the county in which the
property is situated, on petition duly verified, and on eight days’ notice to
the assessors of the town in which the premises are situated, and to the
party whose premises are included in such wrongful assessment, have such
assessment and tax apportioned by such county court. The county court
shall take such evidence as may be necessary to determine the facts, and
shall fix and specify the amount of the assessment and tax properly charge-
able to the petitioner’s property, and to the other party chargeable therewith.
The collector of the town, upon receiving a copy of the order of the
county court, shall forthwith change the assessment roll and tax to conform
to such order, and shall receive the amount apportioned upon the premises
of the petitioner in full for the tax upon such property. [Tax Law, § 297;
B. C. & G. Cons. L., p. 6050.]

§ 18. OATH VERIFYING ASSESSMENT-ROLL.

When the assessors, or a majority of them, shall have completed their
rell, they shall severally appear before any officer of their county, authorized
by law to administer oaths, and shall severally make and subscribe before
such officer an oath in the following form:*? “We, the undersigned, do
severally depose and swear that we have set down in the foregoing assess-
ment-roll all the real estate situated in the tax district in which we are
assessors, according to our best information; and that, with the exception
of those cases in which the value of the said real estate has been changed

 

37. References, An assessor may make and subscribe the oath required by the
above section before a judge, clerk, deputy clerk, or a special deputy clerk, of a
court, a notary public, mayor, justice of the peace, a city magistrate of any of
the cities of this state, or police justice thereof, surrogate, special county judge,
special surrogate, county clerk, deputy county clerk, special deputy county clerk,
or commissioner of deeds, within the district in which the officer is authorized to
act. Civil Practice Act, § 357. A false oath is punishable as perjury under section

1620 of the Penal Law,
549 TAXATION.

Tax Law, § 38.

by reason of proof produced before us, and with the exception of those
cases in which the value of any special franchise has been fixed by the
state tax commission, we have estimated the value of the said real estate
at the sums which a majority of the assessors have decided to be the full
value thereof; and, also, that the said assessment-roll contains a true
statement of the aggregate amount of the taxable personal estate of each
and every person ** named in such roll over and above the amount of
debts due from such persons, respectively, and excluding such stocks as
are otherwise taxable, and such other property as is exempt by law from
taxation, at the full value thereof, according to our best judgment and
belief,” which oath shall be written or printed on said roll, signed by the
assessors and certified by the officer.*® [Tax Law, § 38, as amended by
L. 1916, ch. 823; B. C. & G. Cons. L., p. 5864.]

38. “Person includes corporation. 'The word “person”? as used in this
section in the form of oath includes corporation, and the omission from the oath
of the words “or corporation ” .does not render the assessment void. Matter
of Adler Bros. & Co., 76 App. Div. 571, 78 N. Y. Supp. 690, affd. 174 N. Y.
287.

39. Sufficiency of affidavit. An oath which is substantially in the form
prescribed by statute will be sufficient. Sherrill v. Hewitt, 13 N. Y. Supp. 498;
386 N. Y. St. Rep. 321; People ex rel. Parsons Mfg. Co. v. Moore, 11 N. Y.
St. Rep. 859; Buffalo & State Line R. R. Co. v. Supervisors, 48 N. Y. 93.
But any material deviation from the form prescribed by the statute will
invalidate the assessment. Shattuck v. Bascom, 105 N. Y. 39; Inmann v. Cole-
man, 37 Hun, 170. A verification by an assessor to the effect “that the fore-
going assessment is just and correct to the best of his knowledge and belief”
is fatally lefective. Lord v. Cooper, 19 App. Div. 535; 46 N. Y. Supp. 519.

Where the assessment-roll was not signed by the assessors at the end of the
valuation of the property, but the certificate required by statute (1 R. S., 3d
ed., 447, § 2G) was written upon the roll and signed by the assessors,—held that
such signing satisfied the statute. Chamberlain v. Taylor, 36 Hun 24.

The certificate of the assessors stated that they had estimated the value of
the real estate at a sum at which they would appraise the same in payment of
a just debt due from a solvent ‘‘creditor.” Held, that the substitution of
“ereditor ”’ for ‘ debtor,” as it appeared in the copy, did not vitiate the assess-
ment. Id.

An oath, “we have estimated the value of the said real estate at the sums
which a majority of the assessors have decided to be the fair proportionate value
thereof, and at which, in the same ratio, they would appraise the same in
payment of a just debt due from a solvent debtor,”—held to be fatally defective.
Beach v. Hayes, 58 How. Pr, 17.

An affidavit of assessors to their roll stated that they had estimated the real
estate “at the assessed value thereof” instead of “the full and true value
thereof,” and that the roll contained a true statement of the personal property,
“according to our best knowledge and belief” instead of “judgment and
belief.” Held, that the affidavit was fatally defective, and any tax levied upon
the roll was void. Hinckley v. Cooper, 22 Hun 253.

 
MODE OF ASSESSMENT. 543
Tax Law, § 39.

§ 19. ASSESSMENT-ROLL WHEN COMPLETED AND VERIFIED TO
BE OPEN TO INSPECTION; NOTICE THEREOF, ROLL TO BE
DELIVERED TO SUPERVISOR.

In cities the assessment-roll when thus finally completed and verified
shall be filed on or before September first, in the office of the city clerk,
there to remain for fifteen days for public inspection. The assessors
shall forthwith cause a notice to be posted conspicuously in at least three
public places in the tax district and to be published in one or more, news-
papers, if any, published in the city, that such assessment roll has been
finally completed and stating that it has been so filed and will be open to

 

Omission of venue to assessors’ verification,—held immaterial, since it is not
an affidavit, but an oath in a prescribed form. Though it did not appear that
the justice before whom it was sworn was a justice of the town, held, that, in
the absence of proof to the contrary, it would be presumed that he was.
Coleman v. Shattuck, 62 N. Y. 348, affd. 2 Hun 497, 5 Th. & C. 34, ,

The oath of assessors on one side of the roll, under the entry of assessments
on residents,—held to cover the assessment of non-resident lands on the other
side of the leaf, in the absence of proof that when sworn to the roll did not
contain the latter entries. Id.

How verified. Where two assessors verify the assessment-roll it is not
fatal to the validity of the roll, although they omit to certify the name of the
delinquent assessor, and the reason for his not performing his duties. Coleman
v. Shattuck, 62 N. Y. 348. But see Bellinger v. Gray, 51 N. Y. 610. A verification
made at any time before the assessment-roll has been acted upon by the board
of supervisors satisfies the statute. Rome, Watertown & O. R. R. Co. v. Smith,
39 Hun, 332; affd. 101 N. Y. 684. But the verification cannot be made before
the expiration of the time fixed for the final review and correction of the roll.
If the jurat shows otherwise, the supervisors cannot levy the tax. Westfall v.
Preston, 49 N. Y. 459; but see People v. Turner, 145 N. Y. 451; 40 N. E. 400,
where it was held that a verification before the day of grievance was a mere
irregularity and not a jurisdictional defect. If the verification is signed, but the
assessment-roll itself is not signed, the defect constitutes a mere irregularity
and is not jurisdictional. Ensign v. Barse, 107 N. Y. 329. The neglect of a justice
of the peace to affix his signature to a jurat of assessors is at most an irregularity
and does not vitiate subsequent proceedings under the assessment. Saranac Land
and Timber Co. v. Roberts, 208 N. Y. 288.

The custom is much too prevalent among assessors of assessing real estate at
less than its full value in direct violation of the s atute. Not only do ass-ssors in
following such custom violate their official duties, but consciously or unconsciously
swear to an untruth when in the verification of the ass ssinen-rui] they make oava
that they “ have estimated the value of the said real estate at sums which a majority
of the assessurs have decided to be the full value thereof.” People ex rel. Congress
Hall v. Ouderkirk, 120 App. Div. 650, 105 N. Y. Supp. 134.

The attestation of the assessment-rolls by the assessurs in the form prescribed by
law is a judicial act of unquestionable verity, which they will not be heard to im-
peach. Brooklyn El. R. R. Co. v. Brooklyn, 16 Misc. 416, 38 N. Y. Supp. 154, affd.
11 App. Div. 127, 42 N. Y. Supp. 683.

Roll in three parts. Assessment-roll was made up in three parts and was in
that form on review day, when the relator was heard, and afterward the parts were
engrossed in a single roll duly verified. Held, that the detachment of the sheets
was not an irregularity or a departure from the statute. People ex rel. D., L. &
W. R. R. Co. v. Clapp, 64 Hun, 547, 46 N. Y. St. Rep. 509, 19 N. ¥. Supp. 531.

BRelevy by legislature. Where a tax was void by reason of the omission of the
assessors to annex to the assessment-roll the sworn statement required by law,
the legislature has power to relevy the tax with interest. People ex rel. Flower
044 TAXATION.

Tax Law, §§ 39, 40,

public inspection. At the expiration of such fifteen days, the city clerk
shall deliver such roll to a supervisor of the tax district embraced therein.
In towns, assessors shall prepare and verify the assessment-roll, and make
and certify one copy thereof. When the assessment roll shall have been
thus finally completed and verified and the copy thereof certified the
aassessors shall, on or before the fifteenth day of September, file the said
certified copy in the office of the town clerk, to remain for public inspection
until delivered by the town clerk to the supervisor of the town as hereinafter
provided.*° The assessors shall forthwith cause a notice to be posted con-
spicuously in at least three public places in the tax district and to be pub-
lished in one or more newspapers, if any, published in the town, that such
assessment roll has been finally completed and stating that such certified
copy has been so filed.4! The original assessment roll shall on or before
the first day of October be delivered by the assessors to a supervisor of the
tax district embraced therein. The certified copy of the assessment-roll
on file in the town clerks’s office, as heretofore provided, shall on the first
day of November be delivered by the town clerk to a supervisor of the tax
district embraced therein who shall make such corrections as may be made
in the original roll by the board of supervisors and shall extend the tax
thereon so that such roll shall be in all respects a copy of the original roll
delivered to the collector and said certified copy shall thereafter be returned
by the supervisor to the office of the town clerk there to remain as a public
record. Notwithstanding the provisions of this section, the board of super-
visors of any county may require additional copies of the assessment-rolls
of the towns of such county to be made, and specify by whom such addi-
tional copies shall be made, the date when the certified copy of the town
assessment-roll shall be filed in the office of the town clerk, and the date
when the original assessment roll shall be delivered to the supervisor of the
town. [Tax Law, § 39, as amended by L. 1916, ch. 323, and L. 1917, ch.
496, and L. 1918, ch. 279; B. C. & G: Cons. L., p. 5867.]

§ 20. ASSESSORS TO APPORTION VALUATION OF RAILROAD,
TELEGRAPH, TELEPHONE, PIPE LINE, WATER OR GAS
COMPANIES AND OF SPECIAL FRANCHISES AMONG
SCHOOL AND SPECIAL DISTRICTS.

The assessors of each town or city in which a railroad, telegraph, tele-

 

v. Bleckwenn, 55 Hun 169, 27 N. Y. St. Rep. 593, 7 N. Y. Supp. 914, affd. 129
N. Y. 637. Followed in Collins v. Long Island City, 31 N. Y. St. Rep. 460, 9 N. Y.
Supp. 866; Vanderventer v. Long Island City, 32 N. Y. St. Rep. 1054, 10 N. Y.
Supp. 801.

40. Time of filing. The requirement that an assessment-roll should be filed
with the town clerk on or before the fifteenth day of September, is directory merely,
and when the roll is completed and verified, a delay in filing it does not vitiate the
assessment. People ex rel. Rome, Watertown & O. R. R. Co. v. Haupt, 104 N. ¥.
377; 10 N. E. 871.

41. The provision as to the publication of notice of the completion and filing of
the assessment-roll is directory merely, its purpose being to set running the fifteen
days within which to sue out a writ of certiorari. People ex rel. Sweet v. Blake,
72 Misc. 646.

For form of notice of filing completed assessment-roll with clerk, see Form No.
48, post.
MODE OF ASSESSMENT. 545
Tax Law, § 41.

phone, water pipe line, or gas company, including a company engaged in
the business of supplying natural gas, is assessed by them or by the tax
commission upon property lying in more than one school district or in
one or more special districts in which a tax is levied for district pur-
poses shall after the time fixed for hearing complaints and action thereon
and prior to the final completion of the roll, pursuant to section thirty-
nine of this chapter, apportion the assessed valuation of the property of
each of such corporations so made by them or by the tax commission among
such school and special distticts. Such apportionments shall be entered
by the assessors in the appropriate column of the assessment-roll and a cer-
tificate thereof signed by the assessors or a majority of them shall be filed
with the tewn or city clerk within five days thereafter, and thereupon the
valuations so apportioned shall become the valuations of such property in
such districts for the purpose of taxation for the ensuing year. The town
clerk shall furnish the trustees of school districts a certified statement of
the valuations apportioned to their respective districts.

In case of the failure of the assessors to act, a supervisor of the town
or city shall make such apportionment on request of either the trustee
of any school district or the officers of any special district or the corpora-
tion assessed. In case of any alteration in any school district affecting the
valuation of such property, the officer making the same shall fix and deter-
mine the valuations in the districts affected for the current year.. [Tax
Law, § 40, as amended by L. 1912, ch. 271, L. 1913, ch. 556, and L. 1916,
chs. 134, 323; B. C. & G. Cons, L., p. 5868.]

§ 21. FORMS PRESCRIBED BY TAX COMMISSIONERS; NEGLECT
OR OMISSION OF DUTY BY ASSESSORS; PENALTY.

The assessors, in the execution of their duties, shall use the forms and
follow the instructions and orders transmitted to them, from time to
time, by the tax commission. If any assessor shall neglect or omit to
perform any duty, the other assessors shall perform such duty and shall
certify upon the assessment roll the name of the delinquent assessor,

 

If the notice is not given as prescribed in the above section the time for
the application for the writ of certiorari is unlimited. People ex rel. Swartwout
v. Village of Port Jervis, 23 Misc. 317; 52 N. Y. Supp. 59.

4la. Time of filing certificate of apportionment.—The provision of this
section regulating the time within which a certificate of apportionment must be filed,
is directory merely. People ex rel. Troy Gas Co. v. Hall, 143 App. Div. 756.

42. Apportionment should not be indicated on town roll. It seems, that
Laws 1867, ch. 694, from which the above secticn was originally revised, was intended
to regulate valuation in towns of railroad property for purposes of school
district taxation only, and that the statute does not contemplate that the appor-
tionment therein provided to be made should be indicated on the town assess-
ment-roll, but by certificate of the assessors to be prepared and filed in the office
of the town clerk after the roll is completed. People v. Adams, 125 N. Y. St.
471, 36 N. Y. St. Rep. 166.

For form of apportionment, see Form No. 49, post.
546 TAXATION

Tax Law, § 42; Penal Law, § 2321.

stating therein the cause of such omission, and the assessment roll, when
otherwise made and completed in accordance with the requirements of
or under this chapter shall be deemed to be the assessment roll of the
tax district.** If the assessors shall neglect to meet for the purpose of
hearing grievances any person aggrieved by the assessment may appeal
to the board of supervisors at its next meeting, which shall have the same
power to review and correct such assessment as the assessors have under
this article. If any assessor shall refuse or neglect to perform any duty
or do any act required of him by this chapter, he shall forfeit to the tax
district the sum of fifty dollars, to be recovered by the tax commission.
[Tax Law, § 41, as amended by L. 1916, ch. 323; B. C. & G. Cons. L.,
p. 5868. ]

§ 22. SUBDIVISION OF LOTS MAY BE ABANDONED; THEREAFTER

LOTS TO BE TREATED AS A SINGLE TRACT.

Whenever more than ten years shall have elapsed after the subdivision
of any tract of land into lots, plots or sites, with or without proposed
streets, the owner of such tract, or of any part thereof composed of two or
more contiguous lots may, by an instrument in writing, duly executed and
acknowledged and describing such land, disclaim and abandon such sub-
division including any streets not opened, accepted or used by the public
and which are not necessary for the use of an owner or occupant of any
part of said tract; and thereupon said subdivision, as to the lands de-
scribed in such instrument, shall be deemed abandoned and of no effect;
and thereafter the lands described therein shall, for the purpose of taxa-
tion, be regarded as a single tract. If a map of such subdivision has
been filed in the office of the county clerk or register of deeds, such in-
strument may be recorded in said office, and a notice of such record shall
thereupon be indorsed by the clerk or register upon such map. This
section shall not apply to a county embracing a portion of the forest
preserve. [Tax Law, § 42; B.C. & G. Cons. L., p. 5869.]

§ 23. MAKING FALSE STATEMENT IN REFERENCE TO TAXES.

A person, who, in making any statement, oral or written, which is
required or authorized by lew to be made as the basis of imposing any
tax or assessment, or of an 4, plication to reduce any tax or assessment,
wilfully makes, as to any material matter, any statement which he knows
to be false, is guilty of a misdemeanor. [Penal Law, § 2321; B.C. &
G. Cons. L., p. 4106. ]

 

43. For form of certificate of neglect or omission of du‘y of one of the as-
sessors, see Form No. 50, post.

An assessment roll is not invalid which is signed by two assessors, because of
the failure to make the certificate required by the above section. Coleman
vy. Shattuck, 62 N. Y. 348.
ASSESSMENT OF SPECIAL FRANCHISES. 547

ixplanatory wote.

CHAPTER XXXV.

ASSESSMENT OF SPECIAL FRANCHISES.

EXPLANATORY NOTE.

Special Franchises.

A special franchise has been defined as the right granted to a cor-
poration to construct, maintain ‘or operate in a public highway: some
structure intended for a public use, which except for the grant would
be a trespass. (People ex rel. Metropolitan St. Ry. Co. v. Tax Com-
missioners, 174 N. Y. 417, affd. 199 U.S. 1.)

Chapter 712 of the Laws of 1899, known as the Special Franchise
Act, amended the Tax Law by declaring that the right, authority or
permission to construct, maintain or operate any structure intended for
public use, “in, under, above, on or through streets, highways or public

”?
places,

such as railroads, gas pipes, water mains poles and wires for
electric, telephone and telegraph lines, and the like, is a special fran-
chise. This act was consolidated as a part of the present Tax Law, and
is included in this chapter.

Prior to the enactment of the Act of 1899 special franchises were
never lawfully assessed as either real or personal property by state or
local authority. For the first time in the history of the state this act
authorized the assessment or valuation for the purpose of general taxa-
tion of all special franchises by a state board of tax commissioners ap-
pointed by the governor. For the purpose of such taxation a special
franchise is made. real estate and is “‘ deemed to include the value of the
tangible property of a person, copartnership, association or corporation
situated in, upen, under or above any street, highway, public place or
public waters in connection with the special franchise,” and taxed as a
part thereof.
548 TAXATION.

Explanatory note,

A speciai franchise includes nothing but what is in the street, directly
or indirectly, and excludes power houses, depots and all structures with-
out the lines of the street. The taxes thus imposed are for general pur-
poses, are collected in the same way, and used for the same objects as
other taxes upon the general assessment-roll.

This act has been attacked upon the ground that it is unconstitutional
since it deprives the local assessing officers of their rightful jurisdiction
over local assessments, but its validity has been fully sustained by the
Court of Appeals. (People ex rel. Metropolitan St. Ry. Co. v. Tax
Commissioners, Supra.)

Assessment by State Tax Commissioners.

The town assessors have no duties to perform in respect to determining
the values of special franchises. The state board of tax commissioners
are required to determine the values of such franchises in each town,
and file a statement thereof with the town clerk within thirty days pre-
ceding the first day of July in each year.

Duties of Assessors.

The town clerk must, within five days after the receipt of such state-
ment, deliver a certified copy thereof to the assessors. The assessors
must then enter the valuation of each special franchise as determined
by the state board in the proper column of the assessment-roll, opposite
the name of the owner of such franchise. The assessors must apportion
the valuation of such special franchise among the several school dis-
tricts of the town in the same manner as railroad, telegraph and tele-
phone property is apportioned.

Section 1. Report to state board of tax commissioners.

. Special franchise; full valuation and equalization by tax commissioners.
. Hearing on special franchise valuations; notice.

. Certiorari to review assessment.

Tax commissioners to appear by counsel; employment of experts.

. Deduction from special franchise tax for local purposes.

. Special franchise tax not to affect other tax.

Namrwrnr
ASSESSMENT OF SPECIAL FRANCHISES. 549-55)
Tax Law, § 44.

§ 1. SPECIAL FRANCHISE REPORT TO TAX COMMISSION.1

Every person, copartnership, association or corporation subject to
taxation on a special franchise, shall, within thirty days after such
special franchise is acquired, make a written report to the tax commis-
sion containing a full description of every special franchise possessed
or enjoyed by such person, copartnership, association or corporation, a
copy of the special law, grant, ordinance or contract under which the
same is held, or if possessed or enjoyed under a general law, a reference
to such law, a statement of any condition, obligation or burden imposed
upon such special franchise, or under which the same is enjoyed, together
with any other information relating to the value of such special fran-
chise, required by the tax commission. The tax commission may re-
quire an annual report and from time to time a further or supplemental
report from any such person, copartnership, association or corporation
containing information and data upon such matters as it may specify.
Every report required by this section shall have annexed thereto the
affidavit of the president, vice-president, secretary or treasurer of the
association or corporation, or one of the persons or one of the members
of the copartnership making the same, to the effect that the statements

 

1. Constitutionality of special franchise tax. The fact that the special
franchise tax act confers upon state officers the right to assess such franchises, and
especially the right to assess the tangible property annexed thereto and included
therein by the act, which was formerly assessed by local boards of assessors does
not violate the principle of home rule embodied in the constitution for the following
reasons: (1) Because it creates a new system of taxation and brings within its
range a new character of property, which requires new methods of valuation and
the exercise of functions which never belonged to local assessors and must neces-
sarily have been committed to state officers with new functions whose sole duty re-
lated to the subject of taxation in all its phases throughout the entire state, and
who, with wider experience and greater opportunities for observation than local
assessors, would be able to grasp the new scheme of taxation as a whole and whose
action would be free from all local prejudice or color and uniform in its result. (2)
Because the tangible property formerly assessed by local assessors is an inseparable
part of the special franchises mentioned in the statute, constituting with them a
new entity, which in a going concern can neither be assessed nor sold to advantage
except as one thing, single and entire, and the function of assessing such entity is
not essentially local in character, never belonged to localities, never was and never
could be exercised with the requisite justice and uniformity by their officers, and,
therefore, was of necessity conferred upon state officers, expert tax officials, having
a jurisdiction co-extensive with the limits of the state. Property, therefore, created
by the legislature and never intrusted by it to local assessors cannot with propriety
be said to have been taken away from them. People ex rel. Met. St. Ry. Co. v. Tax
Commissioners, 174 N. Y. 417.
552 TAXATION.

Tax Law, § § 45, 45a.

contained therein are true. Such commission may prepare blanks to
be used in making the reports required by this section. Every person,
copartnership, association or corporation failing to make the report
required by this section, or failing to make any special report required
by the tax commission within a reasonable time specified by it, shall
forfeit to the people of the state the sum of one hundred dollars for
every such failure and the additional sum of ten dollars for each day
that such failure continues, and shall not be entitled to review the assess-
ment by certiorari, as provided by section forty-six of this chapter.’
Acknowledgment of receipt of blank reports which contain the penalty
provisions of this section shall be deemed sufficient notice of such penal-
ties. [Tax Law, § 44, as amended by L. 1916, ch. 334; B. C. & G.
Cons. L., p. 5872.]

§ 2. SPECIAL FRANCHISE; FULL VALUATION AND EQUALIZATION
BY TAX COMMISSION.

The tax commission shall annually fix and determine the full and
actual valuation of each special franchise subject to assessment in each
city, town or village; shall inquire into and ascertain as near as may
be the percentage of the full and actual value at which other real property
in the city, town or village for which such full valuation has been made,
is being assessed, and by the rate of equalization so established fix and
determine the equalized valuation of each special franchise subject to
assessment. [Tax Law, § 45, as added by L. 1916, ch. 334.]

§3. HEARING ON SPECIAL FRANCHISE VALUATIONS; NOTICE.

On determining the full and actual valuation of a special franchise
and the rate of equalization thereof the tax commission shall immedi-
ately give notice in writing to the person, copartnership, association or
corporation affected, and to each city, town or village in which such
special franchise is subject to assessment, stating in substance that such
determinations have been made and the total full and actual valuation

 

2. References. A person who makes a false statement in reference to taxes is
guilty of a misdemeanor. Penal Law, § 2321.

The refusal to make a report required by law is also a misdemeanor. Penal Law,

665.
; A failure to make a report as provided in this section within thirty days after
the franchise is acquired does not forfeit the right to review the assessment by cer-
tiorari as provided by section 46. But the report may be made subject to the pecuni-
ary penalty imposed, at any time before a final assessment. People ex rel. N. Y.
& Queens County R. R. Co. v. Tax Commissioners, 55 App. Div. 218; 67 N. Y. Supp. 69.

An injunction will not lie to restrain the board of tax commissioners from allow-
ing any inspection or disclosure of reports made under this section, because this
question should be determined by them in the proper discharge of their public
duty. Am. Dist. Tel. Co. v. Woodbury, 127 App. Div. 455, 457, 112 N. Y. Supp, 165.
ASSESSMENT OF SPECIAL FRANCHISES. 553

Tax Law, §§ 45b, 45c.

and the rate of equalization thereof in each city, town and village, and
that the commission will meet at its office in the city of Albany on a day
specified in such notice, to hear and determine any complaint concern-
ing such full valuation and the rate of equalization. Such notice must
be served at least thirty-five days before the day fixed for the hearing;
and it may be served on a copartnership, association or corporation by
mailing a copy thereof to it at its principal office or place of business
and on a person, either personally or by mailing it to him at his place
of business or last known place of residence. In a town said statement
shall specify the total amount of the assessment of such special fran-
chise, and the amount thereof in any village or villages therein. If
any person, copartnership, association or corporation whose special fran-
chise is assessed or if any city, town or village in which a special fran-
chise is subject to assessment proposes to complain at the hearing concern~
ing the full valuation or rate of equalization as fixed in such statement,
such persons, copartnership, corporation or association or such city,
town or village shall cause a written complaint specifying its objections,
to be served on the tax commission at least fifteen days before the day
fixed for the hearing. Service may be either in person or by mail.
Section thirty-seven of this chapter applies so far as practicable to a
hearing by the tax commission under this section.2* [Tax Law, § 45a,
as added by L. 1916, ch. 334, and amended by L. 1920, ch. 648, and 1921,
ch. 124.]

Determination of final full and equalized valuation. After hearing
complaints as to such valuation and rate of equalization of the special
franchise the commission shall fix and determine the final full value
of each special franchise and ascertain the final rate of equalization and
equalize the final full value of each special franchise to such an amount
as in its judgment will place the special franchise on the same basis as
the assessment of other real property in the city, town or village in
which the special franchise is located. In ascertaining the basis of
assessment of other real property- or determining the final full and
actual valuation of a special franchise, the tax commission may, in its
discretion, take testimony and hear proof, under oath or otherwise, and
may avail itself of all information on the subject appearing of record
in its office and all information which it may acquire in the discharge of
its duties, and may employ its experts, agents or other persons in pro-
curing any information it may require for such purpose. [Tax Law,
§ 45b, as added by L. 1916, ch. 334.]

Certificate of special franchise valuations filed with localities. After
determining the final full and equalized valuation of a special franchise

 

2a. A petition for a writ of certiorari to review assessments for taxation of
special franchises must conform “so far as practicable” with the requirements of
the statute for the review of assessments for local taxation in the different tax
districts; strict conformity with the statute in proceedings to review assessments
of special franchises is not required. People ex rel. L. I. R. R. Co. v. State Bd.
of Tax Comnrs, (1920), 193 App. Div. 297, 183 N. Y. Supp. 733, modfd. 231
N. Y. 221.
554 TAXATION.

Tax Law, § 45d.
é
the tax commission shall file with the clerk of the city, town or village in
which such special franchise is subject to assessment, a written statement
duly certified by the secretary of the commission of the valuation of each
special franchise assessed therein as finally fixed and equalized. In a
town said statement shall specify the total amount of the assessment of
each special franchise, and the amount thereof in any village or villages
therein. In the city of New York said statement shall be filed with the
department of taxes and assessments. Such statement shall be filed with
the clerk of the village not later than the first day of October and with the
clerk of the city, or the department of taxes and assessments in the city of
New York, not later than thirty days before the final completion, verifica-
tion and filing of the assessment-roll. The statement of special franchise
valuations in towns shall be made in duplicate, one copy to be filed with the
town clerk not later than August first, and the other copy with the clerk
of the board of supervisors of the county not later than September first.

It shall be the duty of city, town and village clerks within five days after
the final completion and filing of the assessment-roll, and the first posting
or publication of the notice thereof as required by law in their respective
municipal corporations and of the clreks of the boards of supervisors in
each county within five days after the final revision of the assessment-roll
and the annexation of the warrant thereto to furnish the tax commission
with said date or dates.

Each city clerk shall, within five days after the receipt by him of the
statement of the equalized valuations of a special franchise as fixed by
the tax commission, deliver a copy of such statement certified by him to
the assessors or other officers charged with the duty of making local as-
sessments in said city. Each town clerk shall, within five days after the
receipt by him of the statement of equalized valuations, deliver copies
of such statement certified by him to the supervisor of the town, and to
the assessors of the town for which the assessments have been made.
Each village clerk shall, within five days after the receipt by him of the
statement of equalized valuations, deliver copies of such statement cer-
tified by him to the assessors, if any, and if not to the trustees of the
village for which the asscssments have been made,

The final equalized valuation of cvery special franchise in a city,
town or village as so fixed, determined and certified by the tax com-
mission shall be entered by the assessors or other officers thereof in the
proper part of the assessment-roll before the final revision and certi-
fication of such roll by them and become a part thereof with the same
force and effect as if snch assessment had been originally made by such
assessors. [Tax Law, § 45c, as added by L. 1916, ch. 384, and
amended by L. 1917, ch. 488, and L. 1919, ch. 190.]

Certification of final valuations to owners.—The tax commission, on
filing said statement of the final equalized valuation of a special fran-
chise, shall give to the person, copartnership, association or corporation
affected written notice thereof, which notice shall contain a statement
of the full and actual value of such special franchise as finally fixed and
determined and the amount to which it has been equalized. In a town
said statement shall specify the total amount of the assessment of each
ASSESSMENT OF SPECIAL FRANCHISES. Bb4a
Tax Law, §§ 45e, 45f, 46.

special franchise, and the amount thereof in any village or villages thore-
in. Such notice may be served on a copartnership, association or corpora-
tion affected by mailing a copy thereof to it at its principal office or
place of business, and on a person either personally or by mailing it to
him at his place of business or last known place of residence. [Tax
Law, § 45d, as added by L. 1916, ch. 334.]

Special franchise assessments subject to all taxes.—The final equalized
valuation of every special franchise as fixed and determined by the tax
commission shall be the assessed valuation on which all taxes, based on
such special franchise for state, county, city, town, village, school, high-
way or other district purposes shall be levied for the ensuing year. [Tax
Law, § 45e, as added by L. 1916, ch. 334.]

Information by local officers——The assessors or other taxing officers or
other local officers in any city, town or village or district, or any state or
county officer, shall on demand furnish to the tax commission any informa-
tion required by them for the purpose of determining the full and equal-
ized value of a special franchise.

It shall be the duty of city, town, and village clerks within twenty days
after the taking effect of any law changing the boundaries of their respect-
ive municipal corporations to furnish the tax commission with a statement
giving the details of and clearly showing said changes. Upon the granting
of any franchise to use the streets, highways, public places or public waters
by the proper officers of any city, town or village, it shall be the duty of the
respective clerks of said municipalities to furnish a copy of same to the
tax commission. [Tax Law, § 45f, as added by L. 1916, ch. 334, and
amended by L. 1917, ch. 37.]

§ 4. CERTIORARI TO REVIEW ASSESSMENT.

An assessment of a special franchise by the tax commission may be re-
viewed in the manner prescribed by article thirteen of this chapter, and
that article applies so far as practicable?» to such an assessment, in the same
manner and with the same force and effect as if the assessment had been
made by local assessors; a petition for a writ of certiorari to review the
assessment must be presented within thirty days after the final completion
and filing of the assessment-roll, and the first posting or publication of the
notice thereof as required by law. Such writ must run to and be answered
by said tax commission and no writ of certiorari to teview any assessment
of a special franchise shall run to any other board or officer unless other-
wise directed by the court or judge granting the writ. In cities a copy of
said writ and the petition for same shall be furnished to the corporation
counsel or other law officer. An adjudication made in the proceeding
instituted by such writ of certiorari shall be binding upon the local assessors
and any ministerial officer who performs any duty in the collection of the

2b. “So far as practicable.”"—-See People ex rel. L. I. R. R. Co. v. State Bd. of

Tax Comnrs. (1921), 231 N. Y. 221, 131 N. E. 896, modfg. 193 App. Div. 297,
183 N. Y. Supp. 733.

 
554b TANATION.
Tax Law, §§ 47, 48.

taxes levied upon said assessment in the same manner as though said local
assessors or officers had been parties to the proceeding.” [Tax Law. § 46,
as amended by L. 1911, ch. 804, L. 1916, ch. 334, and L. 1918, ch. 278;
B. C. & G. Cons. L., 2d Ed., p. 8366.]

§5. TAX COMMISSION TO APPEAR BY COUNSEL; EMPLOYMENT OF
EXPERTS,

In any proceeding for the review of an assessment of a special fran-
chise made by the state board of tax commissioners or the tax commission,
said tax commission is authorized to appear by counsel to be designated
by the attorney-general. The attorney-general or such counsel may employ
experts and the compensation of such counsel and experts and -their
necessary and proper expenses and disbursements, incurred or made in
such proceeding, and upon any appeal therein, shall when audited and
allowed as are other charges against such tax district, be a charge upon
the tax district upon whose rolls appears the assessment sought to be
reviewed. Where, in one proceeding, there is reviewed the assessment
of a special franchise in more than one tax district, separate accounts
shall be rendered for said costs, expenses and disbursements to the proper
officer of each of said tax districts and audited and allowed by him as
aforesaid. For the purposes of this section, the city of New York shall
be deemed one tax district. If provision shall not have been made for
the payment of such expense in any year, then the officers who are
empowered by law to make such provisions in any county, city, town or
other political subdivision of the state, are hereby authorized and directed
to raise money to such an amount as may be necessary, in any manner
provided by law for meeting expenses in anticipation of the collection of
taxes and to pay such expense therefrom. The amount so raised shall be
included in the amount to be raised by tax in the ensuing year. [Tax Law,
§ 47, as amended by L. 1911, ch. 471, L. 1913, ch. 134, and L. 1916,
ch. 334; B. C. & G. Cons. L., 2d Ed. » p. 8368. ]

§6. DEDUCTION FROM SPECIAL FRANCHISE TAX FOR LOCAL PURPOSES.

If, when the tax assessed on any special franchise is due and payable
under the provisions of law applicable to the city, town or village in
which the tangible property is located, it shall appear that the person,
copartnership, association or corporation affected has paid to such city,
town or village for its exclusive use within the next preceding vear,
under any agreement therefor, or under any statute requiring the same,
any sum based upon a percentage of gross earnings, or any other income,
or any license fee, or any sum of money on account of such special fran-
chise, granted to or possessed by such person, copartnership, association
or corporation, which payment was in the nature of a tax, all amounts
so paid for the exclusive use of such city, town or village except money
paid or expended for paving or repairing of pavement of any street,
highway or public place, and except in a city of the first class car license

 

2c. Certiorari to review special franchise assessments. People ex rel. N. Y. Rail-
ways v. State Tax. Comnrs, (1917), 101 Mise. 205, 167 N. Y. Supp. 550.

A full and complete method for reviewing and correcting erroneous assessments
is provided in this section. Matter of Hedges v. Craig (1920), 194 App. Div. 786,
185 N. Y. Supp. 122.
ASSESSMENT OF SPECIAL FRANCHISES. BBB

Tax Law, § 49.

fees or tolls paid for the privilege of crossing a bridge owned by the
city, shall be deducted from any tax based on the assessment made by
the state tax commission for city, town or village purposes, but not other-
wise; and the remainder shall be the tax on such special franchise payable
for city, town or village purposes. The chamberlain or treasurer of a city,
the treasurer of a village, the supervisor of a town, or other officer to whom
any sum is paid for which a person, copartnership, association or corpora-
tion is entitled to credit as provided in this section, shall, not less than five
nor more than twenty days before a tax on a special franchise is payable,
make and deliver to the collector or receiver of taxes or other officer author-
ized to receive taxes for such city, town or village, his certificate showing
the several amounts which have been paid during the year ending on the
day of the date of the certificate. On the receipt of the certificate the
collector, receiver or other officer shall immediately credit on the tax-roll
to the person, copartnership, association or corporation affected the amount
stated in such certificate, on any tax levied against such person, copartner-
ship, association or corporation on an assessment ‘of a special franchise
for city, town or village purposes only, but no credit shall be given on
account of such payment or certificate in any other year, nor for a greater
sum than the amount of the special franchise tax for city, town or village
purposes, for the current year; and he shall collect and receive the balance,
if any, of such tax as required by law.2 [Tax Law, § 48, as amended
by L, 1916, ch. 581, and L. 1917, ch. 39; B. OC. & G. Cons. L., p. 8368.]

§7. TAX ON SPECIAL FRANCHISE NOT TO AFFECT OTHER TAXES,

The imposition or payment of a tax on a special franchise as provided
in this chapter shall not relieve any association, copartnership or cor-
poration from the payment of any organization tax or franchise tax or
any other tax otherwise imposed by article nine of this chapter, or by
any other provision of law; but tangible property situated in, upon,
under or above any street, highway, public place or public waters, subject
to tax as special franchise as described in subdivision six of section two,
shall not be taxable except upon the assessment made as herein provided
by the tax commission. [Tax Law, § 49, as amended by L. 1916, ch. 334;
B. C. & G. Cons. L., p. 8370.]

 

3. The object of this section was to equalize the tax on corporations and compel
each company to pay one franchise tax, and only one, and there is nothing in the
language of the statute indicating that it was only intended to apply to franchises
granted prior to the enactment. Village of Saranac Lake v. Paul Smith’s L.,
P. & R. R. Co, (1918), 183 App. Div. 620, 170 N. Y. Supp. 541.

Sums payable for local franchise deductable from franchise tax, Where an elec-
tric light and power company as a condition for exercising its franchise in a village
agreed to pay the village a certain sum per year the payment is in the nature of
a tax, and by virtue of this section such sums must be deducted from the special
franchise tax levied against the company. Village of Saranac Lake v. Paul Smith’s
E. L. & P. R. R. Co. (1918), 183 App. Div. 620, 170 N. Y. Supp. 541.

Payments made to a city for permission to lay and operate conduits and wires
are in the nature of a tax and of a character which the statute permits to be
deducted from its special franchise tax. Matter of N. Y. & Queens Elec, Light &
P. Co. v. Delanev (1920), 229 N. Y, 184, 128 N. E. 131, revg. 190 App. Div. 934,
179 N. Y. Supp. 938.
556 TAXATION.

Explanatory noie.

CHAPTER XXXVI.

DUTIES OF BOARDS OF SUPERVISORS AS TO ASSESSMENTS AND
TAXATION; EQUALIZATION OF ASSESSMENTS. *

EXPLANATORY NOTE.

Equalization of Assessments by Board of Supervisors.

The board of supervisors must, at its annual meeting, examine the
assessment-rolls of the towns and cities in the county. If in their
opinion the valuation in one town or city bears an unjust relation to the
valuations in the other towns or cities, they may increase or diminish
such valuation by adding or deducting a certain sum on each one hun-
dred dollars of valuation. ‘The duty to equalize is an important one,
and causes frequent controversy between towns. The board should act
fairly and after a due consideration of all attendant facts. An arbi-
trary or unreasonable modification of valuations will be set aside on
appeals to the state board of tax commissioners.

The board may delegate its powers of equalization to three commis-
sioners of equalization, who, when appointed must equalize valuations
and report to the board. Such report is binding upon the board and
must be adopted by them.

Correction of Errors in Assessment-roll.

A board of supervisors is empowered to correct errors in assessment-
rolls, upon petition of the town assessors. The petition must be verified
by the assessors. It must appear that the errors are in (1) copying the
roll, (2) omitting taxable property from the assessment-roll of the pre-
ceding year, or the current year. A copy of the petition and notice of
its presentation must be served personally on the person alleged to be
liable to taxation, and such person must be given an opportunity to be
heard before the board of supervisors. The provisions of § 56 of the
DUTIES OF SUPERVISORS AS TO TAXATION. 5B

Explanatory note.

Tax Law, as amended by L. 1916, ch. 323, as to correction of errors on
petition of assessors must be complied with, and it is only in the cases
mentioned in that section that the board has authority to act on such a
petition,

The board may correct any manifest clerical error in an assessment-
roll. Ifa tax has been erroneously paid, the board may cause the same
to be refunded. It must refund a tax illegally paid when ordered so to
do by the county court. When a refund is made, the board must provide
for raising the necessary funds by tax levy.

If property has been declared by the courts to have been illegally as-
sessed, and thereby the property has not been assessed at all, the board
may, upon proper notice and after an opportunity to be heard, reassess
the property at a proper valuation upon the assessment-roll of the cur-
rent year.

Levy of Taxes.

The board of supervisors, after equalization and correction, must
levy all state county and town taxes, by setting down in a separate
column in the assessment roll the sum to be paid as a tax on the prop-
erty assessed. The assessment-roll as so extended, with the warrant
annexed thereto becomes the tax-roll of the town.

Tax-roll and Warrant.

The tax-roll must have attached thereto a warrant under the seal of
the county, signed by the chairman and clerk of the board. Such war-
rant is directed to the collector, and is his authority for collecting the
tax imposed by the tax-roll. The warrant also directs the collector to
pay the sums specified to the persons therein named.

Section 1. Board of supervisors to examine assessment-roll; equalization of
valuations. :

2. Board of supervisors mcy appoint commissioners of equalization;
county judge to appoint in case of disagreement; terms of office;
compensation.

8. Examination of assessment-rolls by commissioners; equalization of
valuations; vacancy in office of commissioners.

4. Commissioners’ report of equalized valuations.

§. Board of supervisors may change descriptions of real property.

6. Review of assessment against non-resident owners of rents reserved by
board of supervisors.
558 TAXATION.
Tax Law, § 50.

SECTION 7. Correction of errors by board of supervisors; petition of assessors

for correction; petition to be served on owner.

8. Board of supervisors may correct manifest errors, and cause moneys
illegally collected to be refunded.

9. Certain errors in roll to be corrected.

10. Re-assessment of property illegally assessed.

11. Levy of taxes by board of supervisors.

12. Tax roll, collector’s warrant to be attached to; contents of warrant.

13. Statement of taxes upon certain corporations by clerk of supervisors.

14. Statement of equalized valuation to be forwarded to the state board
of tax commissioners by clerk of board of supervisors.

15. Clerk of board of supervisors to furnish county treasurer with ab-
stract of tax-rolls.

§ 1. BOARD OF SUPERVISORS TO EXAMINE ASSESSMENT-ROLL;
EQUALIZATION OF VALUATIONS.

1, The board of supervisors of each county in this state, at its annual meeting,
shall examine the assessment rolls of the several tax districts in the county, for the
purpose of ascertaining whether the valuations in one tax district bear a just re-
lation to the valuations in all the tax districts in the county; and the board may
increase or diminish the aggregate valuations of real estate in any tax district, in
accordance with the following equalization rule. First, the ratio or percentage
which the assessed value of the real property in each district bears to its full value
shall be established by the board upon proper inquiry and investigation conducted
by it and shall be stated in a resolution by the board after such inquiry and in-
vestigation. Second, from such ratio or percentage values, the board shall then
determine the aggregate full value of all real property of each tax district by divid-
ing the assessed value thereof by the ratio or percentage value as ascertained and
fixed for that district. Third, the average rate of assessment of the real property
in the county shall then be determined by dividing the aggregate assessed value of
the real property in all the tax districts by the aggregate full value thereof as as-
certained in the manner aforesaid. Fourth, the true equalized value for each tax
district shall then be determined by multiplying the full value of such real property
in that tax district by the average rate of assessment for the county. Fifth, deduct
from or add to the assessed value of the several tax districts the difference between
the assessed value and the equalized value as so ascertained so that the amount
which the respective tax districts are increased or diminished from the assessed
value will be shown, and the total assessed value for the county, except as provided
in subdivision two of this section, will not be increased or diminished. Any written
or documentary evidence upon which the percentages for the several tax districts
are determined by the board shall be preserved and an abstract of the same pub-
lished with the table of rates in the proceedings of the board of supervisors. The
table of such percentages, employed in making the equalization, shall be furnished
by the clerk of said board to the tax commission and shall also be published in the
report of the tax commission.1

 

1. The annual meeting of boards of supervisors is held at such time and
place as may be fixed by them. County Law, sec. 10, ante.

Duty of board judicial. The duty of the board of supervisors is of a judicial
character, and if they have acquired jurisdiction any error in their judgment or
mistake in their conclusions can be asserted only in some direct proceeding for a
review. Mayor, etc., of N. Y. v. Davenport, 92 N. Y. 604; Bellinger v. Gray, 51
Id. 610.
DUTIES OF SUPERVISORS AS TO TAXATION. 559
Tax Law, §§ 50a, 51.

2. The board of supervisors in any county of the state shall when examining the
assessment-rolls of the several tax districts of the county, as above provided, ex-
clude from the tax rolls of said districts, to be prepared by said board, such parcels
of real property as have been struck down to the county at a tax sale and not re-
deemed as provided in section one hundred and fifty-two of this chapter. The
county treasurer shall annually between the date of the tax sale and the first day
of December next succeeding, prepare and submit to the board of supervisors a list
of all such lands so struck down to the county in any year and still remaining un-
redeemed. No such properties shall be so excluded from said tax rolls except by a
resolution of said board adopted at an annual meeting by a vote of a majority of
the members thereof. Whenever such real property is so excluded from the tax rolls
by the board, the total of the assessed valuations of the real estate of the several
tax districts, as the same appear on the completed tax rolls, shall be the aggregate
valuation of the taxable real estate in the county. [Tax Law, § 50, as amended by
L. 1911, ch. 801, L. 1914, ch. 397, and L. 1916, ch. 323; B. C. & G. Cons. L., p. 5877.]

Exclusive of shares of stock of banks and banking associations. In fixing the ag-
gregate valuation of a tax district for the purpose of equalizing the valuations be-
tween the several] tax districts within a county, the board of supervisors or commis-
sioners of equalization of such county shall not include the shares of stock of banks
or banking associations assessed in such tax district pursuant to article two of this
chapter. [Tax Law, § 50-a, as added by L. 1916, ch. 249.]

§ 2. BOARD OF SUPERVISORS MAY APPOINT COMMISSIONERS OF
EQUALIZATION; COUNTY JUDGE TO APPOINT IN CASE OF
DISAGREEMENT; TERMS OF OFFICE; COMPENSATION.

The board of supervisors of any county of the state may by the concurring vote of
@ majority of all the supervisors elected to such board, resolve to appoint three
persons to be commissioners of equalization of such county. They shall thereupon
appoint such commissioners, two of whom shall be residents of such county and not
members of the board of supervisors, and the third commissioner shall not be a
resident of or a taxpayer in such county, but shall reside in the judicial district in
which such county is situated. If there be one or more cities in such county one of
such commissioners shall be a resident of such city or cities and one shall be a resi-
dent of the towns in such county outside of such city or cities. The commissioner
appointed from such city or cities shall be named by the supervisors representing
such city or cities, and the commissioner appointed from the towns outside of such
city or cities shall be named by the supervisors representing such towns. Both such
commissioners, including the third commissioner appointed from the judicial district
outside of such county, shall be confirmed by a two-thirds vote of all the members
of the board of supervisors. If after such board has resolved to appoint such com-
missioners of equalization, they are unable to agree upon the commissioners to be ap-
pointed as provided by this section, and such commissioners are not appointed before
the first day of July, succeeding the time when such resolution was adopted, the
clerk of such board shall apply to the county judge of such county certifying to him
the fact that such resolution was adopted and such commissioners have not been ap-
pointed pursuant thereto, and such county judge shall appoint the commissioners sub-
ject to the provisions of this section relating to their places of residence.
The term of office of each such commissioner shall be three years. Not more
than one commissioner shall reside in the same town or city, and if a com-
missioner remove to a town or city in which another commissioner
resides, the office of the commissioner so removing shall thereon

 

Application. The rules for equalization contained in this section do not apply
to equalization by commissioners appointed as provided in § 51 of the Tax Law
(see next section). Rept. of Atty. Genl. (1912), vol. 2, p. 497.

Notice. Notice of the time and place of meeting of the board of supervisors as
a board of equalization need not be given. The taxpayer or person aggrieved is pre-
sumed to have knowledge of the provisions of ae statute. People v. Turner, 117 N.
Y. 227, 22 N. E. 1022.
560 TAXATION,
Tax Law, §§ 52, 53.

become vacant. Such appointments shall be so made that not more than
a majority of the commissioners belong.to the same political party, and
the other commissioner shall be chosen from the other political party
polling in such county at the last general election either the highest or
the next highest number of votes. If the office of any commissioner
become vacant before the expiration of his term, such vacancy shall be
filled, for the unexpired term, by the appointment of a person of the
same political faith as his predecessor at the time of his appointment.
Each commissioner shall be paid by the county for his services, a sum
to be fixed by the board of supervisors, not exceeding the rate of ten
dollars per day, for the time necessarily and actually occupied in the
performance of his duties, and his necessary and reasonable expenses
incurred while absent from his home in the discharge of his duties,
but the total amount paid to any commissioner for his services and ex-
penses in any one year shall not exceed five hundred dollars. [Tax
Law, § 51, as amended by L. 1918, ch. 287, and L. 1920, ch. 54.]

§ 3. EXAMINATION OF ASSESSMENT-ROLLS BY COMMISSIONERS;
EQUALIZATION OF VALUATIONS; VACANCY IN OFFICE OF
COMMISSIONERS.

Between the first day of September and the time of the annual meeting
of the board of supervisors in each year, the commissioners shall examine
the assessment-rolls of the several towns in their county and shall visit
each town therein once in each alternate year between such dates, or once
in each year when deemed necessary by them, for the purpose of ascertain-
ing whether the valuations in one town or ward bear a just relation to the
valuations in all the towns and wards in the county, and they may in-
crease or diminish the aggregate valuations of real estate in any town or
ward by adding or deducting such sum upon the hundred in accordance
with the rule of equalization specified in section fifty of this chapter, as
may, in their opinion, be necessary to produce a just relation between
all the valuations of real estate in the county, but they shall in no in-
stance reduce the aggregate valuations of all the towns and wards below
the aggregate valuations thereof as made by the assessors. [Tax Law, § 52,
as amended by L. 1916, ch. 323; B. C. & G. Cons. L., p. 5879.]

§ 4. COMMISSIONERS’ REPORT OF EQUALIZED VALUATIONS.

On or before the tenth day of the annual meeting of the board of
supervisors in each year the commissioners shall file with the clerk of
such board of supervisors their report of the equalized valuations of real
estate, signed by a majority of such commissioners, and the same shall
be binding and conclusive on such board of supervisors as an equalization
of the assessments of real estate for such year.

The table of percentages and an abstract of the evidence upon which
the percentages are determined shall be published in the proceedings of
DUTIES OF SUPERVISORS AS TO TAXATION. 561

Tax Law, §§ 54, 55, 56. ;
the board of supervisors and a certified copy of the percentages and evidence
furnished the tax commission. [Tax Law, § 53, as amended by L. 1916,
ch, 323, and L. 1917, ch. 92; B. C. & G. Cons. L., p. 5880.]

§ 5. BOARD OF SUPERVISORS MAY CHANGE DESCRIPTIONS OF
REAL PROPERTY.

The board of supervisors of each county, at its annual meeting, shall:
examine the assessment-ro!ls of the several tax districts, and shall make
such changes in the descriptions of the real property as may be neces-
sary to render such descriptions sufficiently definite for the purposes of
collection of taxes by sale thereof.” If a sufficiently definite description
cannot be obtained during the session, the board shall cause the same to
be obtained for the next annual session, and the property shall not be
taxed until such description is obtained, and shall then be taxed for the
year so omitted, in the manner provided for taxing omitted lands. [Tax
Law, § 54, as amended by L. 1911, ch. 315; B. C. & G. Cons. L., p.
5880. ]

§ 6. REVIEW OF ASSESSMENT AGAINST NON-RESIDENT OWNERS
OF RENTS RESERVED BY BOARD OF SUPERVISORS.

If an assessment of taxable rents shall have been made against any
person in any tax district of which he is not an actual resident, the board
of supervisors of the county shall have the same power and authority in
all respects, and it shall be its duty to correct such assessments as to the
valuation of such rents and as to the gross amount for which such persons
shall be assessed therefor, as the assessors of a tax district have as to the
assessment of personal property of an actual resident of such tax district.
The board may reduce the amount of any such assessment, if necessary,
to make such assessment just when compared with the other assess
ments of property upon such roll. [Tax Law, § 55; B. C. & G. Cons.
L., p. 5880.]

§ 7. CORRECTION OF ERRORS BY BOARD OF SUPERVISORS; PE-
TITION OF ASSESSORS FOR CORRECTION; PETITION TO BE
SERVED ON OWNER.

If it shall be made to appear to the board of supervisors of any
county, upon the verified petition of the assessors of any tax district:
First. That any ‘property taxable therein has, by reason of any mis-
take in transcribing or copying from the field book of the assessors to
the original assessment-roll been placed on such original roll at a valua-
tion less than that actually appearing upon the field book, such board

 

2. References. As to the assessment of real property of non-residents, see Tax
Law, sec. 30, ante, p. 527. ;

As to the survey and maps of non-resident real property made by assessors, see
Tax Law, sec. 31, ante, p. 518.

As to the assessment of omitted property, see Tax Law, sec. 34, ante, p. 533.

8. As to the taxation of rents reserved, see Tax Law, sec. 8, ante, p. 492. Such
taxable rents reserved are included in the fifth column of the assessment-roll. See
Tax Law, sec. 21, sub. 5, ante, p. 518. :

Power same as assessors. The power of correction conferred upon the board
562 TAXATION.
Tax Law, § 56.

shall insert in the assessment-roll of the current year an assessment of
the property upon a valuation equal to the difference between the actual
valuation made by the assessors and the amount at which, by such mis-
take, the property was placed upon the roll of the preceding or current
year, and tax the same at the rate per centum imposed upon property
in such tax district in the year in which the mistake occurred.

Second. That any taxable property therein has been omitted from the
assessment-roll of the preceding year, such board shall place the same
on the roll of the current year at its valuation for the preceding year,
to be fixed by the assessors in their petition, and shall tax the same at
the rate per centum of the preceding year.

Third. That taxable property has been omitted from the assessment-
roll for the current year, such board shall place the same thereon at a
valuation to be fixed by the assessors in their petition and shall tax the
same at the rate per centum of the current year.‘

Fourth. That an assessment of the shares of stock of a bank or bank-
ing association, as provided in article two of the tax law, has been
omitted or erroneously made for the current year, such board shall place
the same thereon at a valuation to be fixed by the assessors in their
petition and shall tax the same at the rate provided in article two.

A copy of the petition under the first, second, third or fourth sub-
division of this section, with a notice of the presentation thereof to
the board of supervisors, shall be served personally on the person or
corporation alleged to be liable to taxation for the property omitted from
the assessment-roll, at least ten days before the meeting of the board of
supervisors; and the board of supervisors shall take no action on such
petition, unless proof of the personal service of such petition and notice
be made to them by affidavit. The board of supervisors shall give to
the person alleged to be liable to taxation for such property an oppor-
tunity to be heard, and on such hearing and review the board of srper-
visors shall have, as to such omitted property, all the powers of the
assessors of a tax district in reviewing and correcting the assessment-

 

of supervisors by Laws 1858, ch. 357, § 1, from which this section was originally
revised, in the case of a non-resident taxpayer assessed upon rents reserved, is the
same which the assessors have in the case of a resident of the town, and no other
or greater. People ex rel. Youmans v. Supervisors of Delaware, 60 N. Y. 381.

Failure to specify amount reserved. An assessment upon rents reserved by
various leases upon the whole of a patent of land without specifying the amount
reserved upon each, lease, or any of the leases, and against “John Kortright and
other legal heirs of the late John Kortright, deceased, or their heirs or assigns,”
the John Kortright first named being also dead at the time of the assessment,—
held void, being defective in not specifying the persons assessed, as in the case of
any personal estate, and in not specifying each rent assessed. Idem.

Valid assessment. Where rents accruing under perpetual leases had been
assessed to a person not the owner, and upon petition the same property was put
upon the roll of the following year, assessed to the owner, and a tax levied for
the preceding year,—held, that such assessment was legal and valid. Overing v.
Foote, 43 N. Y. 290.

4. For form of petition by assessors under this section, see Form No. 51, post.
DUTIES OF SUPERVISORS AS TO TAXATION. 563
Tax Law, § 56a; County Law, § 16.

roll, but the action of the supervisors shall be subject to review by
certiorari as provided in article thirteen of the tax law.? The whole
amount of tax levied upon land or property omitted in the tax levy of
the preceding year shall be deducted from the aggregate of taxation to
be levied on the tax district for the current year before such tax is
levied. [Tax Law, § 56, as amended by L. 1916, ch. 328, and L. 1919,
ch, 191.]

Correction of assessments, and returning and refunding of erroneous
taxes. The board of supervisors of any couxty may correct any mani-
fest clerical or other error in any assessment or returns made by any
one or more town officers to such board, or which may, or shall have
properly come before such board for its action, confirmation or review;
and cause to be refunded to any person the amount collected from him
of any tax erroneously or improperly assessed or levied, and upon the
order of the county court, it shall refund any such tax. In raising the
amount so refunded, or necessary to supply the deficiency caused by the
correction of any error in such assessment, such board shall, in the same
or next ensuing tax-levy, adjust and apportion such amount upon the
property of the several towns and wards of the county as shall be just,
taking into consideration the portion of the state, county, town and ward
included therein, and the extent to which such town or ward has been
benefited thereby. Such board shall ascertain, fix and determine the
amount which any person or corporation is equitably entitled to receive
back from any town for taxes paid while the boundary line between
towns was in dispute and cause the same to be levied and collected. [Tax
Law, § 56a, as added. by L. 1916, ch. 323.]

§ 8. BOARD OF SUPERVISORS MAY CORRECT MANIFEST ERRORS,
AND CAUSE MONEYS ILLEGALLY COLLECTED TO BE RE-
FUNDED.

Any such board may correct any manifest clerical or other error in any
assessment or returns made by any one or more town officers to such
board, or which may, or shall have properly come before such board for its
action, confirmation or review ; and cause to be refunded to any person the
amount collected from him of any tax illegally or improperly assessed or
levied, and upon the order of the county court, it shall refund any such
tax.° In raising the ahount so refunded, or necessary to supply the de-

 

5. Assessment of omitted property. Boards of supervisors, in including in
the assessment roll of a town omitted property, must give the owner of such prop-
erty an opportunity to be heard. In inc‘uding in the assessment of such property
the board is to be governed by the provisions of sections 34-38 of the Tax: Law, ante,
pp. 533-542, relating to the correction of assessment-rolls by assessors.

Powers of supervisors as to assessments. The supervisors have no author-
ity to add to the asssessment-roll, at the suggestion of the assessors, the name of
a person whom they had previously omitted as not liable to assessment. Where
the supervisors add a tax which they have no jurisdiction to place upon the roll, the
supervisor of a town who delivers the roll to the collector is liable in damages for a
sale thereunder. Marsh v. Bowen, 12 Abb. N. C. 1; see, also, Overing v. Foote,
43 N. T. 290.

6. References. ‘This section should be considered in connection with sec. 56
of the Tax Law, as amended by L. 1916, ch. 323. Section 296, ante, of the Tax Law
provides for the auditing and allowing by the board of supervisors of the amount
paid under an assessment which has been declared illegal, erroneous or unequal in
564 TAXATION.

County Law, § 16.

ficiency caused by the correction of any error in such assessment, such
board shall, in the same or next ensuing tax-levy, adjust and apportion

 

proceedings instituted to review the assessment made by the assessors pursuant to
the provisions of secs. 290-295, ante, of the Tax Law.

This section contemplates a presentation of the matter to the board of super-
visors in the first instance before application shall be made to the County
Court, end iz power €aisis and the facts justify it that court may direct the tax
to be refunded, whether the conclusion of the board shall have been favorable
to the claimant of nct. Matter of Trustees of Village of Delhi, 139 App. Div.
412, 124 N. Y. Supp. 487, affd. 201 N. Y. 408.

A legal remedy is provided by this section if a general tax for county and
town purposes has been levied without authority or contrary to law. People
ex rel. Toms v. Board of Supervisors, 199 N. Y. 150.

Distinction between erroneous and an illegal assessment. There is a clear
distinction between a case of erroneous or over-assessment and a case of an
assessment made under an unconstitutional law, or without authority of any
law. For instance, a tax warrant, regular on its face, issued for the collection
of a tax levied under an erroneous assessment, would afford protection to the
officer serving it, while a tax warrant issued for the collection of a tax levied
under an unconstitutional law, or without authority of law, would afford no
protection whatever. Norris v. Jones, 81 Hun, 304, 310, 27 N. Y. Supp. 209.
See, also, Weaver v. Devendorf, 3 Denio, 117; Nat. Bank of Chemung v. City
of Elmira, 53 N. Y. 49; Matter of Ulster Co. Sav. Bank, 20 Hun, 481; People
ex rel. Ithaca Sav. Bank v. Beers, 67 How. Pr. 219, 226; Harris v. Supervisors
of Niagara Co., 33 Hun, 279, s. c., 16 Abb. N. C, 284; Williams v. Board of Super-
visors, 78 N. Y. 561.

Errors which may be corrected. Only such errors can be corrected by the
board of supervisors or the County Court as are manifest from an inspection of
the roll itself without argument or evidence. Matter of Trustees of Village of
Delhi, 189 App. Div. 412, 129 N. Y. Supp. 487.

This section dces not subject all assesments to review, or permit a correc-
tion of all errors, but simply of those which are apparent by an examination
of the assessment-roll or return, without extrinsic evidence to make them clear;
the errors of the assessors in making assessments and substantial errors of
judgment or of law are not subject to correction. Hermance v. Supervisors of
Ulster, 71 N. Y. 481. See, also, Matter of Young, 26 Misc. 186, 56 N. Y. Supp.
861. Nor does this section authorize the correction of an assessment because
of its being excessive. Matter of Baumgarent, 39 App. Div. 174, 57 N. Y. Supp.
284. This section hes reference merely to clerical corrections and the perform-
ance of ministerial duties in reference thereto, and does not empower the super-
visors to make assessments to pay claims disallowed by a town board. Arm-
strong vy. Fitch, 126 App. Div. 527, 110 N. Y. Supp. 736.

Where assessors and collector have jurisdiction of the person and property,
the presumption is that the tax was legally assessed and collected, and the
burden is on the petitioner to show the contrary. Matter of Peek, 80 Hun, 122,
61 St. Rep. 802, 30 N. Y. Supp. 59. ,

Where assessment has been made in name of the wrong person, it is within
this section, and taxes paid thereon, even though by the actual owner, are re-
coverable; owner need not object to a valid assessment, nor do successive,
voluntary payments of taxes waive the illegality. Matter of Reid, 31 Mise.
156, 64 N. Y. Supp. 1121.

The statute was designed to relieve from taxes not legally chargeable to the
person,—taxes which he should not be required in any manner to pay; the
terms illegal or improper assessment or levy of tax had reference to the tax
itself rather than to the method of making the assessment or levy—to an illegal
tax rather than to the erroneous assessment or levy of a legal one. Harris v.
Supervisors of Niagara Co., 33 Hun, 279, 16 Abb. N. C. 282.

Where assessors have not acquired jurisdiction to assess a tax, the acts of
the board of supervisors in levying it are void. Matter of Douglas, 48 Hun, 318,
1N. Y. Supp. 126.

Lispute as to boundary. Where same property is assessed and tax paid in
DUTIES OF SUPERVISORS AS TO TAXATION. 565
County Law, § 16.

such amount upon the property of the several towns and wards of the

 

two towns, because of a dispute as to boundary, and the board of supervisors
refuse to ascertain the amount to be refunded, the statute may be invoked,
whether an action will be against the assesors and collector or not. People
ex sel. Witherbee v. Supervisors, 85 N. Y. 612.

Refund upon order of county court. The board of supervisors under this sec-
tion is required to refund any tax erroneously ‘paid, upon the order of the
County Court. The power of the court is limited to directing the refunding
of an illegal tax that has been paid. It cannot order the board to cancel a tax
illegally imposed. Matter of Buffalo Mut. Gas Light Co., 144 N. Y. 228; 39 N. E.
86. The court in this case, in speaking of the power of the County Court said:
“The legislature anticipated the possibility that the board might neguect or
refuse to refund an illegal tax to the person who had paid it. In such cases
the board is required by the statute to cause it to be refunded upon the order
of the county judge, and this is the only power which the statute has conferred
upon that officer. The power to refund a tax once paid, conferred by statute
upon a board or officer of special and unlimited jurisdiction, does not carry with
it by implication the power to cancel the tax before payment, or to restrain:
its collection.” This case overrules in effect the case of Matter of Douglas, 48:
Hun, 318.

Where part of the water works of a village were situated outside its limits:
in the adjoining town and the town levied an assessment against the village for
“Water works, 45 acres, valuation $14,000,” and the village, without taking any
proceedings to correct the roll, paid the tax and then applied to the supér=
visors for a refund on the ground that only eight acres of the water works
were outside the limits of the village, which application wag denied, the County
Court has no jurisdiction to apportion ¢he tax and remit a portion of it. Matter
of Trustees of Village of Delhi, 1389 App. Div. 412, 124 N. Y. Supp. 489, affd.
201 N. Y. 408. P

Where exempt property has been assessed, and the tax paid, under protest,
the County Court may direct the board to refund the amount paid. Williams
v. Board of Supervisors, 78 N. Y. 561; Matter of New York.Catholic Protectory,
17 N. Y. 342, : ;

The section only authorizes a refund in case a tax has been collected under
compulsion of law. It does not authorize the refund of a tax voluntarily paid
without any effort having been made to collect it. Matter of McCue vy. Super-
visors, 162 N. Y. 235, 56 N. E. 627. See, also, Matter of Reid, 52 App. Div, 243
65 N. Y. Supp. 373. Payments made under a mistake of law are not recover-
able. Van Hise v. Board of Supervisors, 21 Misc. 572, 48 N. Y. Supp. 874. See.
also Matter of Eckerson, 25 Misc. 645, 56 N. Y. Supp. 373. But see Matter of
Edison Elec. Ill. Co., 22 App. Div. 371, 48 N. Y. Supp. 99, where it is held that
a corporation which paid a local tax on its personal property, without knowl-
edge of an exemption, was entitled to a refund.

County Court has no jurisdiction until application has been made to the board
of supervisors to refund the tax illegally collected. In re Gilloren, 38 N. Y.
Supp. 954. ; ;

See generally as to power of court to order a refund, Matter of Buffalo Mut.
Gas-Light Co., 144 N. Y. 228; Matter of Peck, 80 Hun, 122, 126, 30 N. Y. Supp. 59;
Matter of Gilloren, 16 Misc. 130, 38 N. Y. Supp. 954; Matter of Ulster Co. Sav.
Bank, 20 Hun, 481. ;

Voluntary payment cannot be recovered.—Where an assessment is void on its
face and a person without duress in fact pays the tax levied upon such assess-
ment, it is a voluntary payment and cannot be recovered under this section
So, where an assessment although valid on its face, but in fact illegal and void.
is paid by a person with knowledge of the facts which render the assessment
void and without duress in fact it is a voluntary payment. Matter of Village
of Delhi, 201 N. Y. 408, 414.

Proceeding to compel refund, In such a proceeding affidavits of an assessor
will not be received to show that in making the assessment the assessors
included other property than the property upon the assessment roll; neither
can the court determine whether the assessment was illegal and improper, since
the court can do nothing except what the board of supervisors may have done
in the first instance. Matter of Village of Medina, 52 Misc. 621, 103 N. Y. Supp
tee TAXATION,
Tax Law, § § 5a-a, 57.

county as shall be just, taking into consideration the portion of the state,
county, town and ward included therein, and the extent to which such
town or ward has been benefited thereby.

Such board shall ascertain, fix and determine the amount which any
person or corporation is equitably entitled to receive back from any town,
for taxes paid while the boundary line between towns was in dispute and
cause the same to be levied and collected. [County Law, § 16; B. C.
& G. Cons, L., 2d Ed., p. 1416.]

§9. CERTAIN ERRORS IN ROLL TO BE CORRECTED,

An error in the description of a parcel or portion of real property shall
not invalidate the assessment against such parcel or portion, if such des-
cription is sufficiently accurate to identify the parcel or portion. The
entry of the name of the owner, last known owner or reputed owner of a
separate parcel or portion of real property shall not be regarded as part of
such assessment, but merely as an aid to identify such parcel upon the
roll. [Tax Law, § 55a, as renumbered and amended by L. 1916, ch. 323;
B.C. & G. Cons. L., 2d Ed., p. 8376.]

§ 10. REASSESSMENT OF PROPERTY ILLEGALLY ASSESSED.

Whenever, by the final judgment of a court of competent jurisdiction,
it appears to the board of supervisors that any property liable to taxation
in any year was erroneously or illegally assessed, and that by reason of
such erroneous or illegal assessment, such property did not become subject
to taxation for such year, the board shall place the same on the roll of the

 

1018. The application of the taxpayer is informal and not governed by any estab-
lished rules of procedure. Matter of Adams v. Supervisors, 154 N. Y, 619.

6a. Error in name of owners, Though, in the assessment of real estate for taxes,
the use of the name of only one of several tenants in common in connection with
the equivalent term “and others” is an error in the name of the owners it does not
affect the validity of the assessment, that contingency being provided for by sec-
tion 63 (now § 55a) of the Tax Law, section 9 of which declares that the assess-
ment “shall be deemed as against the real property itself” and that it “shall be
holden and liable to sale for any tax levied upon it.’ Where property known a3
210 North Clinton street and listed on a well-known, duly authenticated map in
general use and filed in the county clerk’s office as block 147 was conveyed as
block 146, reference being had to another map, and the assessors in using the term
“block 147, No. 210 North Clinton street” did not refer to any map, the assessment
is valid even though the names of the owners, all of whom were nonresidents, did
not appear on the assessment-roll. Sheldon v. Russell (1915), 91 Misc, 278, 154
N. Y. Supp. 632, affd. (1916), 172 App. Div. 793, 159 N. Y. Supp. 169.

Description of property sold. Where the objections made to the adequacy of a
description of property sold for taxes were first, that the description of the property
on the assessment-roll appeared only once, at the top of the column, and was not
repeated by ditto marks; and second, that the impression left by the stamping
machine through which the entry was made, was not perfect on this page, with the
result that, instead of the words, “Map No. 1, dated March 1907,” there were the
words “Map No. 1907,” the space between the word “No.” and the figures
1907” being blank except for a faint blur, neither of such supposed defects was
sufficient, under this section, to invalidate the tax. McCoun v. Pierpont (1921),
232 N. Y. 66, 183 N. E. 355, revg. 195 App. Div. 726, 187 N. Y. Supp. 856.
DUTIES OF SUPERVISORS AS TO TAXATION, 567

Tax Law, § 58.

current year at the valuation thereof, if any, fixed by the assessors for such
preceding year; and in case no valuation was fixed by the assessors, such
property shall be assessed by the board at such valuation as they may de-
termine for the preceding year. Before fixing such valuation, the board
of supervisors shall give to the owners of such property, at the time of the
assessment by the board, a notice of at least five days and an opportunity
to be heard, and on such hearing, the board shall have, as to such property,
all the powers of the assessors of a tax district in reviewing and correcting
an assessment-roll. Such property shall be taxed at the rate per centum
of such preceding year. The whole amount of tax on property levied
in pursuance of this section shall be deducted from the aggregate of taxa-
tion to be levied on the tax district for the current year, before such tax
is levied. [Tax Law, §57; B. C. & G. Cons. L., 2d Ed., p. 8379.]

§11. LEVY OF TAXES BY BOARD OF SUPERVISORS.

The board of supervisors of each county shall, at its annual meeting,
levy the taxes for the county, including the state tax, upon the valuations
as equalized by it and estimate and set down in a separate column in the
assessment-roll of each tax district therein, opposite to the sums set down
as the valuation of real and personal property the sum to be paid as a tax
thereon, including the state tax, as fixed by the comptroller.? Such assess-

 

7. Reassessment. The evident purpose of this section, which was new in the
Tax Law of 1896, is to permit the board of supervisors to re-assess property
which has been declared by a court of competent jurisdiction, in proceedings
brought for the review of the’ original assessment, to have been erroneously or
illegally assessed. Proceedings for the review of assessment are authorized by
sections 290-296, ante, of-the Tax Law. If in such proceedings an assessment is
declared illegal or erroneous, the effect of the judgment is to render invalid the
assessment for that year, and except for the provisions of the above section, no
authority would be imposed upon any person or board to reassess such property for
the year in which it was declared to have been illegally assessed.

This section does not apply to village assessors. People ex rel. Glen Head
Realty Co. v. Garland, 72 Mise. 418.

8. County charges to be levied upon taxable property. The moneys necessary
to defray the county charges of each county shall be levied on the taxable
property in the several towns therein, in the manner prescribed in the general
laws relating to taxes; and in order to enable the county treasurer to pay such
expenses as may become payable from time to time, the board of supervisors
shall annually cause such sum to be raised in addition to their county, as they
may deem necessary for such purpose. County Law, sec. 242.

As to what constitute county charges, see County Law, sec. 240, ante p. 37.

Town charges to be levied upon taxable property. It is provided in section
170 of the Town Law (ante, p. 388), that “all town charges specified in this section
shall be presented to the town board for audit, and the moneys necessary to
defray such charges shall be levied on the taxable property in such town by
the board of supervisors.” It is also provided by County Law, sec. 12, sub. 3,
that the board of -supervisors shall “annually direct the raising of such sums
in each town as shall be necessary to pay its town charges.”

Manner of levying tax. The board is required to estimate and set down in a
fifth (now eighth) column, opposite to the valuations, the respective. sums in
dollars and cents, rejecting the fractions of a cent, to be paid as a tax thereon.
Newman v. Supervisors of Livingston, 1 Lans. 476, affd. 45 N, Y. 676; People
v. Hagadorn, 104 Id. 516.

Affidavit of assessors must be attached to roll, in order to give supervisors
jurisdiction to levy tax. Bradley v. Ward, 58 N. Y. 401; Van Rensselaer v.
Whitbeck, 7 Id. 517; Westfall v. Preston, 49 Id. 349.
568 TAXATION.
Tax Law, § 59.

ment-roll shall, when the warrant is annexed thereto, become the tax-
roll of the tax district, and a copy thereof shall be delivered to the
proper supervisor, who shall deliver it to the clerk of the proper city
or town to be kept by him for its use. [Tax Law, § 58, as amended
by L. 1916, ch. 323; B. C. & G. Cons. L., p. 8379.]

§ 12. TAX-ROLL; COLLECTOR’S WARRANT TO BE ATTACHED TO; CON-
TENTS OF WARRANT.

On or before December fifteenth in each year, or such date as may be
designated by a resolution of the board of supervisors of any county, not
embracing a portion of the forest preserve, not later, however, than the
first day of February in each year, the board of supervisors shall annex
to the tax-roll a warrant under the seal of the board, signed by the chair-
man and clerk of the board, commanding the collector of each tax dis-
trict to whom the same is directed to collect from the several persons
named in said tax-roll the several sums mentioned in the last column
thereof, opposite their respective names, except taxes upon the shares
of stock of banks and banking associations, on or before the first day of
the following February, where the same is annexed on or before the
fifteenth of December, in each year, as above provided. But where,
however, the time of annexing the: same and performing the several
duties herein imposed is deferred to a later date by resolution as afore-
said, then on or before the first day of May, following the said later date,
and further commanding him to pay over on or before the said first day
of February or first day of May, as the case may be, if he be a collector
of a city or a division thereof, all moneys so collected appearing on said
roll to the treasurer of the county, or if he be a edllector of a town:

 

Roll incomplete until tax is entered. Bellinger v. Gray, 51 N. Y. 610; People
v. Hagadorn, 104 N. Y. 516; Nehasane Park Assoe. v. Lloyd, 7 App. Div. 359, 40
N. Y. Supp. 58; Village of Upper Nyack v. Jewett, 86 Id. 254, 83 N. Y. Supp. 838,
affd. 181 N. Y. 514.

Copying assessment-roll. In each county it is usually the custom for the super-
visor of each town to copy the assessment-roll for his town. Under section 23 of
the County Law (ante, p. 17), the board of supervisors is authorized to allow to
each member of the board for his services in making a copy of the assessment-roll,
three cents for each written line for the first one hundred lines; two cents per line
for the second hundred written lines; and one cent per line for allt written lines in
excess of two hundred, and one cent for each line of the tax roll actually extended
by him. A line means a straight row of words and figures between the margins of
the page, and does not include additions to the assessment-roll, such as totals of
columns, recapitulations and totals of items. Smith v. Hedges (1918), — N. Y. —.
119 N. E. 396. :

Expense of copy of tax-roll. Preparation of a copy of the tax-roll for delivery to
the collector of taxes, if the supervisors do not use the origina! tax-roll for such pur-
pose, may be paid for at “one-half the compensation authorized for making a
copy of the assesment and tax rolls,” as provided by section 23 of the County Law.
Opinion of Atty. Genl. (1916), 9 State Dept. Rep. 428.

Extending line. The process of ascertaining the amount of the tax by multi-
plying the assesed value by the rate and setting it down in the column, is the
DUTIES OF SUPERVISORS AS TO TAXATION. 569

Tax Law, § 59.

1. To the supervisor of the town, all the moneys levied therein for
the support of highways and bridges, moneys to be expended by over-
seers of the poor for the support of the poor and moneys to defray any
other town expenses or charges.

2. To the treasurer of the county, the residue of the money so to be
collected.*°

If the law shall direct the taxes levied for any locality for special
purpose in a city or town to be paid to any person or officer other than
those named in this section, the warrant shall be varied so as to conform
to such direction. The warrant shall authorize the collector to levy such
taxes by distress and sale, in case of non-payment. The corrected
assessment-roll, or a fair copy thereof, shall be delivered by the board of
supervisors to the collector of the tax district on or before December

 

extending of the line mentioned in § 23 of the County Law. Pearsall v. Brower, 120
App. Div. 584, 105 N. Y. Supp. 207.

9. By the Highway Law, it is provided in section 104 that the moneys levied and
collected for highway purposes shall be paid to the supervisor, who is the custodian
thereof and accountable therefor.

10. For form of collector’s warrant, see Form No. 52, post.

The mere omission of the dollar mark in stating the value of the property
and the amount of the tax, in a tax warrant, does not render the warrant irregular
or invalid, for the law supplies the omission in support of the manifest intent.
American Tool Co. v. Smith, 32 Hun 121; 14 Abb. N. C. 378, affd. 96 N. Y. 670.
A defect in the warrant in not specifying the return day, ts cured by the statute
authorizing the extension of the time for the collection of taxes in that county.
Bradley v. Ward, 58 N. Y. 401. The warrant is not void because the persons who
signed it did not attach to their’signature their official description or designation.
Sheldon v. Van Buskirk, 2 N. Y. 473.

The warrant and the assessment-roll constitute one process. Johnson v.
Learn, 30 Barb. 616, 618.

A warrant issued to a collector directing him to collect from persons “named
in the assessment-roll, to which this warrant is annexed, the several sums men-
Uoned in the last column thereof, to wit, the fifth column, and set opposite to the
names of such persons respectively, together with your fees thereon,” and which
further provides that “it is the duty of the collector to demand payment of taxes
charged to him on his property; and in case any person or persons named in said
asgessment-roll shall refuse or neglect to pay the tax imposed on him or them,
you will levy the same by distress and sale of the goods and chattels of the person
or persons who ought to pay the same,” when construed in connection with tfie
assessment-roll is sufficient to authorize the collection of the general tax stated in
the fifth column of the roll, and also the highway tax stated separately in the sixth
column. Bennett v. Robinson, 42 App. Div. 412; 59 N. Y. Supp. 197.

In issuing a warrant for the collection of taxes the action of the board of
supervisors is not the act of the several members, as supervisors of the towns re-
spectively, but the corporate act of the county. Newman v. Supervisors, 45 N. Y. 676.
570 TAXATION.
Tax Law, §§ 60, 61.

fifteenth, in each year, unless another date is designated by the board
of supervisors in the manner above specified, then in that event, on or
befor such date so designated." [Tax Law, § 59, as amended by L.
1916, ch. 323, and by L. 1918, ch. 291, and L. 1920, ch. 164; subd.
3, as added by L. 1918, ch. 519, and amended by L. 1919, ch. 189,
repealed by L. 1920, ch. 311.]

§ 13. STATEMENT OF TAXES UPON CERTAIN CORPORATIONS BY
CLERK OF SUPERVISORS.

The clerk of each board of supervisors shall, within five days after the
tax warrant is completed, deliver to the county treasurer a statement show-
ing the names, valuation of property and the amount of tax of every rail-
road corporation and telegraph, telephone and electric light line and gas
company including a company engaged in the business of supplying natural
gas in each tax district in the county, and on refusal or neglect so to do,
shall forfeit to the county the sum ‘of one hundred dollars, to be sued
for by the district or county attorney in the name of the county.? [Tax
Law, § 60, as amended by L. 1918, ch. 556, and L. 1916, ch. 323; B. C.

& G. Cons. L., p. 5884.]

$ 14. STATEMENT OF EQUALIZED VALUATION TO BE FOR-
WARDED TO THE TAX COMMISSION BY CLERK OF BOARD

OF SUPERVISORS.
The clerk of each board of supervisors and in the city of New York the
department of taxes and assessments, shall, on or before the second Mon-
day in December, transmit to the tax commission in the form to be pre-

11. Time of delivery. The provision requiring the assessment-roll and warrant
to be delivered to the collector by the fifteenth (now first) day of December is
directory merely; a delay does not invalidate the warrant. Bradley v. Ward, 58
N. Y. 401; Supervisors of Oswego v. Betts, 6 N. Y. Supp. 934. But the delivery to
the receiver of taxes of a town of a warrant for the collection of taxes, after the
return day of the warrant has passed, vests in him no power to enforce payment of
the tax. Matter of Long, 40 App. Div. 152, 57 N. Y. Supp. 929.

Quasi-judicial duties of board in relation to the completion and delivery of the
roll and warrant cannot be delegated, but merely clerical duties may. Colman v.
Shattuck, 62 id. 348; First Nat. Bank v. Waters, 7 Fed. Rep. 152; Nehasane Park
Assoc. v. Lloyd, 7 App. Div. 359, 40 N. Y. Supp. 58; Village of Upper Nyack v.
Jewett, 86 Id. 254, 83 N. Y. Supp. 838, affd. 181 N. Y. 514.

The board cannot issue a warrant for the collection of taxes in blank authorizing
some person to fill in the proper amounts to be collected. People v. Hagadorn, 36
Hun 610; affd., 104 N. Y. 516.

The rolls must be completed before the warrants for the collection of the tax are
annexed thereto. The insertion of the necssary figures in the assessment- roll to
complete it after the valuations have been determined is clerical. Bellinger v. Gray,
51 N. Y. 610; Bradley v. Ward, 58 N. Y. 401.

12. For form of statement of taxes upon certain corporations, see form No. 53,
post.

References. Provisions similar to those contained in the above section were als
contained in section 3 of the County Law. :
DUTIES OF SUPERVISORS AS TO TAXATION. 571

Tax Law, § 62.

scribed by it a certificate or return showing:

1. The aggregate assessed and equalized valuation of the real estate in
each tax district as corrected by such board.

2. The aggregate assessed valuation of the personal estate in each tax
district as corrected by such board.

3. The amount of tax assessed on such corrected values for special
district, highway, town, city, county and state purposes.

4. The aggregate assessed value of bank stock.

5. The tax rate in each tax district for all purposes except for special
district taxes and school taxes in districts where the same is not included
in the general tax.

6. The name and post-office address of each incorporated company both
domestic and foreign in each tax district in the county, and, except in the
city of New York, the assessed valuation of the real and personal property
of such corporations.

% The rates of equalization of all the cities and towns in the county,
adopted by the board of supervisors in equalizing real estate assessments
under section fifty of the tax law. ,

‘8. The amount of moneys distributed to each tax district in the
county by the county treasurer from the proceeds of the franchise tax
on business corporations and from the personal income tax. For the
purposes of this section it shall be the duty of the county treasurer of
each county to file with the clerk of the board of supervisors not later
than December first in each year a sworn statement of the moneys ap-.
portioned to each tax district in the county from the proceeds of the
franchise tax on business corporations and the personal income tax.
[Subd. 8, as added by L. 1920, ch. 645.]

The tax commission shall certify to the comptroller, on his request, be-
fore the thirty-first of December in each year, such extracts or items,
from the returns above mentioned as he may desire. [Tax Law, § 61,
as amended by L. 1911, ch. 118, L. 1916, ch. 323, and L. 1918, ch,
277; B.C. & G. Cons. L., p. 8382. ]

§ 15. CLERK OF BOARD OF SUPERVISORS TO FURNISH COUNTY TREAS-
URER WITH ABSTRACT OF TAX-ROLLS.

On or before the first day of December in each year, the clerk of the
board of supervisors shall transmit to the treasurer of the county an ab-
stract of the tax-rolls, stating the names of the collectors, the amount of
money which each is to collect, the purpose for which it is to be col-
lected, and the persons to whom and the time when it is to be paid. The
county treasurer, on receiving such account, shall charge to each collector
the amount to be collected by him.” [Tax Law, § 62, as amended by
L. 1916, ch. 323; B. C. & G. Cons. L., p. 8383.]

13, For form of abstract of tax-rolls to be furnished to county treasurer under
this section, see Form No. 54, post. :

 
572 TAXATION.

Tax Law, § 170.

CHAPTER XXXVII.

STATE TAX DEPARTMENT; EQUALIZATION BY STATE BOARD; APPEALS
FROM SUPERVISORS.

SEcTION 1. State tax department.

2. General powers and duties of state tax commission.

3. Official seal.

4. Tax commissioners to visit counties.

4a. Reassessment by commission; procedure.

5. State board of equalization; powers and duties.

6. Supervisor may appeal from equalization of board of supervisors; con-
sent of town board; appeal, how brought.

7. Form of petition; rules of state board; time and place of hearing
appeal.

8. Board of tax commissioners, determination of; how made and what to
contain.

9. Costs on appeal to be fixed by state board; limitation of amount.

10. Transfer of the powers and duties of the comptroller in relation to the
assessment or collection of certain taxes.

11. Transfer of powers and duties of the secretary of state in relation to
motor vehicles.

§1. STATE TAX DEPARTMENT.

The state tax department is continued. The head of the department
shall be the state tax commission. The commission shall consist of three
commissioners appointed by the governor by and with the advice and con-
sent of the senate, one of whom shall be designated by the governor as
president of the commission. Upon the appointment of a successor to
the president of the commission the governor shall designate such snc-
cessor or other member of the commission as president. Of the com-
missioners first appointed one shall hold office until January first, nineteen
hundred and twenty-three, one until January first, nineteen hundred and
twenty-five, and one until January first, nineteen hundred and twenty-
seven. Their successors shall be appointed for full terms of six years from
the expiration of the terms of their predecessors in office. If a vacancy
shall occur otherwise than by expiration of term it shall be filled by ap-
pointment for the unexpired term. No person shall be appointed as a
member of the commission unless at the time of his appointment he be a
resident of the state and known to possess knowledge of the subject of taxa-
tion and skill in matters pertaining thereto. Each commissioner shall devote
his entire time to the duties of his office. Any commissioner may, after
notice and an opportunity to be heard, be removed by the governor for neg-
lect of duty or misfeasance in office, and a commissioner may be removed
for other cause by the senate on the recommendation of the governor.

The president of the commission shall receive an annual salary of twelve
thousand dollars, and each of the other commissioners shall receive an
annual salary of ten thousand dollars.
STATE TAX COMMISSION. 53
Tax Law, §§ 170-a, 170-b, 170-c, 171.

- The president of the commission shall be the executive of the commis-
sion, and shall have sole charge of the administration of the department.
The two other members of the commission shall join with the president in
exercising the powers and performing the duties specifically imposed by
this chapter on the commission as a body. They shall also perform such
other duties in the department as the president of the commission may
prescribe. Each member of the commission, before entering upon
the performance of his duties, shall execute and file an official undertak-
ing in the sum of fifty thousand dollars approved as to form and sufficiency
by the attorney-general. [Tax Law, § 170, as amended by L. 1913, ch.
502, L. 1915, ch. 317, L. 1920, ch. 667, and L. 1921, chs. 90, 445.]

Subordinates. The president of the commission shall appoint and may
remove a secretary. The president of the commission may appoint such
deputy tax commissioners, tax assistants, agents, statisticians, experts or
other assistants or employees as may be necessary for the exercise of the
powers of the commission and the performance of the duties under this
chapter, all of whom shall be in the classified civil service; and the pres-
ident of the commissicn shall prescribe their duties and fix their compen-
sation, including the duties and compensation of the secretary, which
shall not exceed in the aggregate the amount annually appropriated by the
legislature: for that purpose. The president of the commission may trans-
fer officers or employees from their positions to other positions in the de-
partment, or abolish or consolidate such positions. The president of the
commission may remove from office any officer or employee in the depart-
ment. [Tax Law, § 170a, as added by L. 1915, ch. 317, and amended by
L. 1921, ch. 90.]

Divisions or Bureaus. Existing divisions or bureaus in the department
or transferred to the department shall continue until consolidated or abol-
ished pursuant to this section. The president of the commission mav con-
solidate or abolish divisions or bureaus. Each divison or bureau in the de-
partment shall be in charge of a commissioner or deputy commissioner sub-
ject to the supervision and direction of the president of the commission,
and in addition to their respective duties as prescribed in this chapter,
each division and bureau and the persons in charge thereof shall perform
such other duties as may he assigned to them by the president of the
commission. [Tax Law, § 170b, as added by L. 1915, ch. 317, and amended
by L. 1921, ch. 90.]

Expenses. The reasonable and necessary traveling and other expenses
of the commissioners, deputy commissioners and other officers and em-
ployees of the department, while actually engaged in the performance of
their duties, outside of the city of Albany, or if such officer or employee
be in charge or actually employed at a branch office of the department,
the reasonable and necessary traveling and other expenses outside of the
place in which such branch office is located, and the necessary traveling
expenses incurred in the performance of their duties in the place in which
their duties are performed of such officers and employees as are specifi-
cially authorized by order of the president of the commission, shall be
paid by the state treasurer upon the order of the comptroller upon vouch-
ers approved by the president of the commission. [Tax Law, § 170c, as
added by L. 1915, ch. 317, and amended by L. 1916, ch. 323, and L.
1921, ch. 90.]

§2. GENERAL POWERS AND DUTIES OF STATE TAX COMMISSION,

The state tax commission shall:
First. Investigate and examine, from time to time, as to the methods
of assessment within the state, and confer with, advise, assist and direct
ott TAXATION.
Tax Law, §171.

assessors and other officials charged by the statutes of this state with duties
relating to the assessment of property for taxation.

Second. Furnish local assessors with such information and instructions as may
be necessary or proper to aid them in making assessments, Assessors shall comply
with such instructions and their compliance may be enforced by the commission.

Third. Make such reasonable rules and regulations, not inconsistent with law, as
may be necessary for the exercise of its powers and the performance of its duties
under this chapter, and prescribe the form of blanks, reports, assessment-rolls, and
other records relating to the assessment of property for taxation, and furnish such
forms to assessors and other officers at the expense of the state. Local assessors
shall follow the forms so prescribed and the commission shall enforce their use.

Fourth. Assess, determine, revise, readjust and impose the corporation taxes
under articles nine and nine-a of this chapter, and on and after July first, nineteen
hundred and twenty-one, have the power and perform the duties of the state
comptroller in the collection of such taxes and the crediting of such taxes erron-
eously paid, as jurisdiction thereof is vested in such commission by section one
hundred and seventy-nine of this chapter.

Fifth. On and after July first, nineteen hundred and twenty-one, have the powers
and perform the duties of the state comptroller in relation to the assessment,
deicrmination and collection of the tax on transfers of property, as Jurisdiction
thereof is vested in such commission by section one hundred and seventy-nine of
this chapter. ’

Sixth. On and after July first, nineteen hundred and twenty-one, have the powers
and perform the duties of the state comptroller in the collection of the tax on trans-
fers of stock under article twelve of this chapter, as jurisdiction thereof is vested
in such commission by section one hundred and seventy-nine of this chapter.

Seventh. On and after July first, nineteen hundred and twenty-one, have the
power and perform the duties of the state comptroller in the assessment, determin-
ation, review, readjustment and collection of taxes upon and with respect to per-
sonal income, as jurisdiction thereof is vested in such commission by section one
hundred and seventy-nine of this chapter.

Eighth, As provided in article two of this chapter fix and determine the full
value of special franchises and equalize the same with other real property in the
town, city or village in which the special franchises are situated.

Ninth. Administer, supervise and enforce the tax on mortgages as provided in
article eleven of this chapter. :

Tenth. On and after July first, nineteen hundred and twenty-one, have the
powers and perform the duties of the secretary of state under articles eleven and
eleven-a of the highway law, in relation to motor vehicles and motor cycles, as
jurisdiction thereof is vested in such commission by section one hundred and sev-
enty-nine-b of this chapter,

Eleventh. Take testimony and proofs, under oath, with reference to any matter
within the line of its official duty. Any member of such commission may be
designated for that purpose.*

Twelfth. Require from all state and local officers such information as may
be necessary for the proper discharge of its duties.

Thirteenth. Hold meetings at an office to be assigned it in one of the
state buildings at Albany, at such times as may be fixed by the president

 

1. Delegation of powers to deputies. The powers of the state tax commission
to hear evidence, take proof and pass upon legal questions, in the conduct of the
hearings of appeals from equalizations by boards of supervisors, cannot be delegated
to a deputy tax commissioner under any provision of the Tax Law and such duties
must be performed by a member or members of the commission. Opinion of Atty.
Gen. (1221), 26 St. Dept. Rep. 311.
STATE TAX COMMISSION. 575
Tax Law, § § 171-a, 171-b.

or a majority of the commission or by adjournment thereof, or at such
other places as it may designate.

Fourteenth. Compile and publish statistics relating to state and local
taxation and assessments therefor.

Fifteenth. Have general supervision of the assessment of property for
taxation throughout the state, make investigations thereof and of the gen-
eral system of state taxation from time to time.

Sixteenth. Inquire into the provisions of the laws of other states and
jurisdictions; to confer with tax commissioners of other states regarding
the most effectual and equitable methods of assessment and taxation, and
particularly regarding the best methods of reaching all property and avoid-
ing conflicts and duplication of taxation of the same property, and to
recommend to the legislature such measures as will bring about uniformity
of methods of assessment and harmony and co-operation between the dif-
ferent states and jurisdictions in matters of taxation.

Seventeenth. Perform the other powers and duties conferred upon it
by law.

Eighteenth. Prepare an annual report to the legislature and recom-
mend such changes or amendments to the tax laws as it may deem
advisable. [Tax Law, § 171, as amended by L. 1915, ch. 31%, and
L. 1916, ch. 323, and L. 1921, ch. 90.]

Review by commission. The members of the commission, or a majority
of them, shall act as a body in

1. Exercising the powers and performing the duties conferred or im-
posed by sections one hundred and seventy-five to one hundred and seventy-
eight, both inclusive, of this chapter on the tax commission in relation to
appeals from decisions of boards of supervisors in the equalization of as-
sessments and corrections of assessment-rolls;

2, Exercising the powers and performing the duties conferred or im-
posed by sections forty-five-a, forty-five-b, forty-five-c, forty-five-d, forty-
five-e and forty-five-f of this chapter on the tax commission in relation to
* the determination of the final full and equalized valuation of special fran-
chise assessments ;

3. Exercising the powers and performing the duties conferred or im-
posed by articles nine, nine-a and sixteen of this chapter on the tax com-
mission in relation to the revision and resettlement of accounts for taxes
under such article, on applications made therefor;

4, Exercising the powers and performing the duties conferred or im-
posed by section two hundred and sixty of this chapter on the tax com-
mission in relation to the apportionment of mortgage taxes. [Tax Law,
§ 171-a, as added by L. 1921, ch. 90.]

Administer oaths and compel testimony. The members of the tax
commission, their deputies, secretary or other officer or emplovee duly
designated and authorized by the commission for that purpose shall have
power to administer oaths and take affidavits in relation to any matter
or proceeding in the exercise of the powers or duties of the commission
under this article. The commission shall have power to subpoena and
require the attendance of witnesses and the production of books, papers
and documents pertinent to the investigations and inquiries which it is
authorized to conduct, and to examine them in relation to any matter
which it has power to investigate and to issue commissions for the exam-
ination of witnesses who are out of the state or unable to attend before the
tax commission or excused from attendance.

A justice of the supreme court either in court or at chambers shall have
power summarily to enforce by proper proceedings the attendance and
576 TAXATION,
Tax Law, §§ 171le, 172, 173.

testimony of witnesses and the production and examination of books, papers
and documents called for by the commission’s subpoenas.

Any person who shall testify falsely in any material matter pending
before the commission shall be guilty of and punishable for perjury.

The officers who serve the commission’s summons or subpoenas and
witnesses attending in response thereto shall be entitled to the same fees
as are allowed to officers and witnesses in civil cases in courts of record.
[Tax Law, § 171b, as renumbered from § 171a by L. 1921, ch. 90; added
by L. 1915, ch. 317, and amended by L. 1916, ch. 323.]

Conference of local assessors. The commission may request the local
assessors of every tax district in the state to meet with the commission
once in two years, upon a day and at a place designated, for the purpose
of considering matters relating to taxation, Securing more uniformity of
valuation throughout the state, and discussing and formulating desirable
changes in the laws relating to taxation and method of assessment. The
traveling and other necessary expenses incurred by the local assessors
in attending such meeting shall be a charge against the county within
which the district which they represent is located. In counties wholly
within a city such expenses shall be a charge against said city. [Tax
Law, § 171c, as renumbered from § 171b, by L. 1921, ch. 903; added by L.
1915, ch. 317, and amended by L. 1916, ch. 323.]

§3. OFFICIAL SEAL.

The state tax commission shall have and use an official seal; and the
records, its proceedings and copies of all papers and documents in its
possession and custody may be authenticated in the usual form, under
such seal and the signature of any one of the tax commissioners,’ deputy
commissioner or the secretary, and shall be received in evidence in the
same manner and with like effect as deeds regularly acknowledged or
proven. [Tax Law, § 172, as amended by L. 1915, ch. 317, and L.
1916, ch. 823; B. C. & G. Cons. L., 2d Ed., p. 8453.]

§4. TAX COMMISSIONERS TO VISIT COUNTIES.

The tax commission shall cause an official visit to be made in every
county in the state at least once in two years, and inquire into the
methods of assessment and taxation, and ascertain whether the assessors
faithfully discharge their duties and particularly as to their compliance
with the provisions of this chapter requiring the assessment of all prop-
erty not exempt from taxation at its full value. The members of the
board of supervisors of the county and the assessors of the cities, towns
and villages within the county shall meet at the time and place or places
within the county designated by the commission. The clerk of the board
of supervisors shall send notice of such meeting to each of such supervisors
and assessors in the county ten days before the meeting and shall immedi-
ately thereafter advise the commission that such notices have been sent.
Supervisors in addition to the compensation provided by section twenty-
three of the county ‘aw, and assessors, shall be entitled to receive
compensation at the rate of four dollars per day for each calender day
actually and necessarily spent in attending a meeting within the county
held for the purpose of conference with the state tax commission or a
member of such commission and mileage at the rate of eight cents per mile
by the most direct route from his residence, in going to and returning
from the place within the county where such meeting is held. Such com-
pensation and mileage shall be a county charge in reference to the town
officials and a village charge for the village assessors. [Town Law,
§ 173, as amended by L. 1911, ch. 120, L. 1915, ch. 317, L, 1916, ch. 323,
and L. 1922, ch. 321.]
STATE TAX COMMISSION. 5yy
Tax Law, § 173a.

§ 4a. REASSESSMENT BY COMMISSION; PROCEDURE. ;
At any time within thirty days after the completion of posting and pub-
lishing notice of final completion of the assessment-roll by the assessors of
any tax district, if the commission shall have reason to believe from in-
formation furnished by any taxpayer or otherwise that such assessment-roll
shows undervaluations, inequalities, omissions or irregularities, sufficient
to make it inequitable as between owners of real property taxable within

the tax district or as between the tax district and other tax districts in a
county or in a city comprising more than one county, it may apply to any

justice of the supreme court of the judicial district within which such tax dis-
trict is wholly or partly located, for an order directed to the assessor or board
of assessors of such tax district, requiring such assessor or board to show
cause at a time and place specified therein, why such assessment-roll should
not be corrected. Service of a copy of said order and the affidavit upon
which the same was granted on one assessor shall be deemed sufficient serv-
ice. Such order shall be returnable before the justice issuing it, on a day
not later than ten days from the date of the issue thereof. If it shall ap-
pear upon the return day of such order that such assessment-roll shall not
have been prepared and completed in accordance with the provisions of this
chapter, such justice acting summarily may by order direct such assessor
or board to correct such inequalities, irregularities, omissions and under-
valuations, and in his discretion, may cancel such roll and direct that a new
assessment-roll for such tax district be made by such assessor or board and
in either case shall fix and determine the date on which such new or cor-
rected assessment-roll shall be completed, the date on which application for
review of the new or corrected assessment shall be heard, and the date on
which the new or corrected roll shall be filed and delivered to the super-
visors or other lawful authority.

Notice of such hearing for review shall be given one week in advance
in the same manner as the notice of the first completion of the assessment-
roll so corrected or cancelled. After the determination of complaints the
assessor or board shall attach a certificate to the new or corrected assess-
ment-roll that such roll has been completed in conformity with the provi-
sions of the order of the justice, and such roll shall be the assessment-roll
of such tax district in place of the assessment-roll cancelled or corrected
by order of such justice. If such new or corrected assessment-roll cannot
be completed in time to take the place of the original assessment-roll in
such district for the levy and collection of taxes for the current year, said’
taxes shall be levied and collected upon the basis of the original assessment-
roll and when the new or corrected: assessment-roll is completed the in-
578 TAXATION.

Tax Law, § 174.

equalities in the taxes levied on the basis of the original assessment-roll
shall be remedied and compensated in the levy and collection of taxes in
such district for the year next following the completion of the new or cor-
rected assessment-roll by crediting the taxes levied in excess of what they
would have been had the reassessment been made in time, or charging in
addition the difference between the amounts levied on the basis of the orig-
inal assessment-roll and the amounts which would have been levied on the
basis of the new or corrected assessment-roll, as the case may be.

In cities the mayor or a borough president and in towns a supervisor
and in villages the president or a trustee may apply to the tax commis-
sion on behalf of the tax district which he wholly or in part represents,
for a hearing and determination of the question of inequalities or under-
valuations in the assessment of property as between such tax district and
other tax districts in the county or in a city where said city comprises more
than one county. After such application a hearing shall be held and upon
a determination that sufficient inequalities or undervaluations exist there-
for, the commission shall apply to a justice of the supreme court as in this
section provided, for. the correction of the assessment-roll of the tax dis-
trict, or tax districts complained of. For the purposes of this section an
incorporated village shall be deemed a tax district." [Tax Law, § 173a,
as added by L. 1915, ch. 317, and amended by L. 1916, ch. 823, and L.
1917 ch. 94.1

§ 56. STATE BOARD OF EQUALIZATION; POWERS AND DUTIES.

The commissioners of the land office and the members of the tax com-
mission shall constitute the state board of equalization. The state board
of equalization shall meet in the city of Albany on the first Tuesday in
June in each year, for the purpose of examining and revising the valu-
ations of real and personal property of the several counties as returned
to the state tax commission, and shall in accordance with the rules of
equalization set forth in section fifty of this chapter so far as applicable
fix the aggregate amount of assessment for each county, upon which the
comptroller shall compute the state tax. In so fixing such aggregate
amount of assessment for a county the state board of equalization shall
not include the shares of stock of banks or banking associations as-
sessed pursuant to article two of this chapter. The board may increase
or diminish the aggregate valuations of real property in any county by
adding or deducting such sum as in its opinion may be just and neces-
sary to produce a just relation between the valuations of real prop-
erty in the state. But it shall, in no instance, reduce the aggregate

 

da. An assesstext c: pciscn.l pziperty is reviewable uncir tuis section, Matter
of Knapp (1918), 105 Misc, 112, 172 N. Y. Supp. 376.
STATE TAX COMMISSION. 5788

Tax Law, § 175.

valuations of all the counties below the aggregate valuations thereof as
so returned. The comptroller shall immediately ascertain from this
assessment, a copy of which shall be transmitted to him, the proportion
of state tax each county shall pay, and mail a statement of the amount
to the county clerk, and to the chairman and clerk of the board of super-
visors of each county. * [Tax Law, § 174, as amended by L. 1915, ch.
917, L. 1916, chs, 249, 323, and L. 1920, ch. 185.]

§ 6. SUPERVISORS MAY APPEAL FROM EQUALIZATION OF BOARD
OF SUPERVISORS; CONSENT OF TOWN BOARD; APPEAL,
HOW BROUGHT.

The mayor of a city in behalf of said city, a borough president in
behalf of his borough, any supervisor in behalf of a city or town which
he wholly or in part represents, may appeal to the tax commission, from
any act or decision of the board of supervisors, in the equalization of
assessments and the correction of the assessment-rolls. If such appeal
is brought in behalf of a town, a majority of the town board of such
town, if in behalf of a city, a majority of the common council or board
of estimate of such city, shall first consent to and approve the bringing
of such appeal. Such appeal shall be brought within ten days after the
delivery of the assessment-roll to the collector by filing in the office of
the county clerk a notice thereof, with such consent endorsed thereon or
annexed thereto, together with the affidavit of the mayor or supervisor
so appealing, that in his opinion injustice has been done to such city or
town by the act or decision from which the appeal is taken; and also
within such time, by serving personally or by mail, a duplicate or copy
of such notice, consent and affidavit on the chairman or clerk of the board
of supervisors, and by mailing such a copy or duplicate to the tax com-
mission.” [Tax Law, § 175, as amended by L. 1915, ch. 317, and L,
1916, ch. 323; B. C. & G. Cons. L., p. 5940.]

 

la. Action of board is judicial. The action of the state board of equalization
in the discharge of the duty imposed upon it in examining the valuations of the
property of the several counties is judicial in its character, and when it has ac-
quired jurisdiction, any error in its judgment or mistake in its conclusions can be
asserted only in some direct proceeding for review. Mayor, etc. of New York v.
Davenport, 92 N. Y. 604.

2. Duties of commissioners on appeal. Upon the appeal of a town the duty
of the state assessors is to receive evidence and determine: 1. Whether injustice
has been done to the appellant; 2. What deductions, if any, should be made in the
valuations; 3. To what towns the deductions should be added.
578b TAXATION.
Tax Law, § 176.

§ 7. FORM OF PETITION; RULES OF STATE BOARD; TIME AND
PLACE OF HEARING APPEAL.

The tax commission may prepare a form of petition and notice of
appeal from decisions of the board of supervisors in the equalization of
assessments and rules and regulations in relation to bringing such
appeals to hearing or trial. Such rules shall provide for a hearing on
the papers and proofs submitted to the board of supervisors on makiug
the equalization, and also for the taking of additional evidence offered hy
either party. The commission may, by’its deputies, agents or other
assistants, examine and inquire into the equalization appealed from,
and may receive in evidence at such hearing the testimony of its ex-
amining deputies, agents or other assistants. The appeal shall be heard
in the county in which it originated. Such hearing shall be had at a
time and place to be fixed by the commission upon notice of at least
twenty days by mail to the party appealing and to the clerk of the board
of supervisors of the county in which the appeal is taken.* If the appel-
lant or his successor fails to appear at the time and place appointed or
upon any day to which such hearing and trial shall be adjourned, the
commission shall make an order dismissing the appeal, which shall have
the same effect as if the appeal had not been sustained after a hearing on
the merits. [Tax Law, § 176, as amended by L. 1915, ch. 317; B.C.
& G. Cons. L., p. 5942.]

 

For this purpose they should take into consideration the valuation of all the
towns separately in the county. People ex rel. Supervisors of Westchester v.
Hadley, 76 N. Y. 337, revg. 16 Hun 113.

Upon a certiorari to review the action of the state assessors, it was held that
the admission in evidence of records of deeds, the considerations expressed in
which were claimed to be evidence of the value of the property, was not the
...ation of “any rule of law, affecting the rights of the” relators under Code
Civil Procedure, § 2140, subd. 3. (Now Civil Practice Act, § 1304.) People ex rel.
Schabacker v. State Assessors, 47 Hun 450.

The participation of a member of tHe state board who was absent from the
hearing, in the decision—held not to vitiate the proceeding. People ex rel. Supervisors
of Westchester v. Hadley, 14 Hun 183.

Secret session of board of equalization no ground for charge of misconduct,
where party complaining had been fully heard, nor neglect of the assistance of
such party in arriving at result. People ex rel. Mayor, etc., of New York v. McCarthy,
102 N. Y. 630.

The fact that the board, after a short secret session, adopted a schedule of
equalization prepared by one of the assessors—held not to affect the validity of
the decision arrived at. Id.; Mayor, ete., of New York v. Davenport, 92 N. Y. 604.

3. Conduct of hearing. The fact that the state board of equalization, after
giving a county full opportunity to present proof, information and augument,
STATE TAX COMMISSION. 5780

Tax Law, § 176-a.

Commission’s review of equalization by board of supervisors. The
tax commission shall have power on complaint to review the equalization
fixed by the board of supervisors of any county or other lawfully con-
stituted authority. Due notice of the hearing on such review shall
be given by the cqgmmission to the clerk of the board of supervisors of
the county, whose duty it shall be to transmit a copy of such notice to
the mayor of cities in such county and to each supervisor of the county.
In the city of New York such notice shall be given to the secretary of
the board of taxes and assessments. [Tax Law, § 176a, as added by L.
1915, ch. 317, and amended by L. 1916, ch. 323. ]

 

went into secret session when deliberating upon the equalization of assessments,
excluding the representatives of the county from participation therein, and de-
clined their assistance and advice in making such equalization, does not justify
a charge of misconduct against the board. People ex rel. Mayor, etc. v. McCarthy,
102 N. Y. 630; see, also, Mayor, etc, of New York v. Davenport, 92 N. Y.
604.

The state board has power to control the manner of the hearing and to de
termine what proofs shall be presented. They are not confined to the reception
of purely legal evidence, but may receive affidavits. People ex rel. Hunt v.
Priest, 90 App. Div. 520, 85 N. Y. Supp. 481, affd. 180 N. Y. 532.

It was held in the case of People ex rel. Supervisors v. City Assessors, 22 Wk.
Dig. 453, that the rulings of the state board on questions of evidence cannot be
reviewed by certiorari. 3

In the case of People ex rel. Schvacker v. State Assessors, 47 Hun, 450, it
was held that a technical error by the state board in the admission of evi-
dence does not invalidate its decision. In the case last cited the court sustains
the proposition that the state board is governed and controlled by statutory pro-
visions and by the rules and regulations made by it in pursuance of authority
conferred by statute; and that while it has not full power to render a decision
of its own volition and without evidence, yet it is to some extent vested with a
discretionary power to take action without restricting its proceedings to strict
technical rules.

Evidence as to valuation. The state board is confined in making its equaliza-
tion to the valuation of real estate, and it cannot be required to hear testimony
as to the amount of personal property. People ex rel. Supervisors v. Hadley, 76
N. Y. 337.

The price stated in a conveyance to have been paid on a private sale of
real estate, is not competent evidence of value, and a comparison of the differ-
ence between the consideration stated in transfers of real estate, and the as-
sessed valuation of such real estate, in two counties of the state, is not conclusive
evidence to show that the assessed valuation in one county is nearer the real
value than in the other county. People ex rel. Mayor v. McCarthy, 102 N. Y.
630; see, also, People ex rel. Carter v. Williams, 20 N. Y. Supp. 350.

The supervisors have no authority to consider, for the purposes of equaliza-
tion, property upon which no valuation has been fixed by the local assessors,
578d TAXATION.
Tax Law, § 177.

§ 8 TAX COMMISSION, DETERMINATION OF; HOW MADE AND
WHAT TO CONTAIN.

On appeal by any town, city, or borough from the board of supervisors’
or other lawful authority’s equalization or on review thereof by the com-
mission of its own motion or on complaint the commission shall review
the equalization made by the board of supervisors of the county or other
lawful authority and shall determine whether any, and if any, what
deductions or additions ought to be made from or to the aggregate cor-
rected value of the real and personal property of any tax district as made
and to what tax district or districts in such county the amount of such
deductions or additions, if any, shall be added or subtracted; and shall
certify their determination, in writing, to such board of supervisors or
other lawful authority and forward the same by mail within ten days
thereafter to the clerk of the board, directed to him at his post-office
address, and forward a copy thereof to the supervisor or borough presi-
dent appealing, if any. Such determination shall have the same force
and effect as an original equalization made by the board of supervisors
or other lawful authority within the time prescribed by law and shall
be carried into effect by such board or other lawful authority.* In the

 

and the state board has no original jurisdiction in that respect, but merely an
appellate power to review the action of the supervisors. They cannot take into
consideration the question whether personal property was assessed below its true
value, or erroneously exempted. People ex rel. Supervisors v. Hadley, 1 Abb.
N. C. 441,

Decision of commission held not against evidence. People ex rel. Delaware County
v. State Tax Comn, (1918), 184 App. Div. 691, 172 N. Y. Supp. 445.

4. Determination by state board. It is the duty of the state board, upon an
appeal by a town, to determine: (1) Whether the town appealing has suffered
injustice, as compared with other towns in the county; (2) whether such town
shall have a deduction from its valuation, and the amount thereof; (3) upon what
other town or towns such deduction shall be placed, and the portion thereof which
shall be placed on each. The comparison is not between the town appealing and
the residue of the county as an entirety, but between such town and the other towns
as distinct and separate organizations. If, in considering the value of all the towns
of the county, separately, they find that an excessive valuation has been placed upon
the appealing town as compared with some towns in the county, they may remedy
the injustice by imposing the excess upon such towns. People ex rel. Supervisors
v. Hadley, 76 N. Y, 337. See also People ex rel. County of Delaware v. Tax Com-
mission (1918), 185 App. Div. 691, in which a decision of the Commission made in
a proceeding on appeal from a determination of town supervisors fixing the equali-
zation of taxes, was held not to be against the evidence or the weight thereof.

Opinion of witnesses. Where state assessors relied upon the opinion of witnesses
as to value rather than the consideration shown to be paid upon sales of real
estate as shown by the records, decision of assessors was affirmed. People v.
Williams, 48 N. Y. St, Rep. 207, 20 N. Y. Supp. 350.

Evidence as to personalty assessed. Section 3 of Laws 1876, ch. 49, does not
limit the subjects upon which the evidence may be taken by the state assessors.
nor exclude evidence of the real estate aliunde the assessors’ valuation, nor any
inquiry into the value of personalty, though the action of the board may ulti-
STATE TAX COMMISSION. 578e
Tax Law, §§ 177a, 178.

city of New York for the purpose of equalization appeals, reassessment
or reviews each borough shall be deemed a tax district. [Tax Law, §
177, as amended by L. 1915, ch. 317, and L. 1916, ch. 323; B. C. &
G. Cons. L., p. 8459. ]

Method of carrying out commission's equalization. If any such
equalization by the tax commission cannot be completed in time to take
the place of the original equalization by the board of supervisors or
other lawful authority, the commission shall determine the amount of
state and county taxes paid or payable by any town, city or borough in
the county under the original equalization, in excess of or less than that
which suck town, city or borough would have paid under the equaliza- .
tion as made by the commission. Any excess so determined shall be
subtracted with interest, and any deficiency shall be added, with a
proportionate part of such interest allowance, from or to the amount of
county and state taxes charged in the next succeeding year to each such
town, city or borough; provided, however, that the payment of the
amount of state and county tax as determined by the tax commission
to be due by one taxing district or districts to another taxing district
or districts may in the discretion of the governing body of the debtor
taxing district be provided for in the same manner as is the case of a
final judgment against such taxing district. [Tax Law, § 177a, as
added by L. 1915, ch. 317, and amended by L. 1916, ch. 328, and L.
1919, ch. 200.]

§ 9. COSTS ON APPEAL TO BE FIXED BY TAX COMMISSION; LIMI-
TATION OF AMOUNT.

The tax commission shall certify the reasonable expense on every
appeal from an equalization by the county board of supervisors, or other
lawful authority, not exceeding the sum of two thousand dollars for
services of counsel ‘and one thousand dollars for all other expenses, in-
cluding the compensation and expense of the stenographer. If such
appeal is not sustained, the costs and expenses thereof so certified shall
be a charge upon the tax district or districts taking such appeal and shall
be levied thereon by the board of supervisors.” If the appeal is sus-

 

mately be based upon questions concerning the real estate only. People ex rel.
Supervisors of Chenango v. State Assessors, 22 N. Y. Wk. Dig. 453, distinquish-
ing People ex rel. Supervisors of Westchester v. Hadley, 76 N. Y. 337 (1879),
on the ground that in the latter case there was evidence tending to show there
was personal property not assessed, while here the evidence related to personal
property which had been assessed.

Mandamus. A decision certified and forwarded by mail, within ten days af-
ter it was made, but not until after the commencement of the next annual session—
held sufficient to support a mandamus for its execution. People ex rel. Robinson
v. Supervisors of Ontario, 85 N. Y. 323, revg. 17 Hun, 501.

5. Costs upon dismissal of appeal. Where an appeal to the state board is
dismissed, the costs and expenses incurred by the board of supervisors may be
audited by the board and charged against the city or town appealing, and in-
eluded in the amount of tax to be levied upon such city or town; and in case
oTSt TANATION,
Tax Law, §§ 179, 179b.

tained, the amount of such costs and expenses so certified shall be levied by the
board of supervisors upon, and collected from, the county in the assessment and
collection of taxes for the current year, except the tax district or tax districts whose
appeal is sustained.5a If there shall be appeals by more than one tax district in the
county, some of which are sustained and some dismissed, the commission shall decide
what portion of such costs and expenses shall be borne by any tax district whose
appeal is dismissed. Where no hearing is had on an appeal the costs and expenses
shall be in the discretion of the tax commission but in no event shall exceed the
amounts previously set forth in this section. [Tax Law, § 178, as amended by L.
1915, ch, 317, and L. 1916, ch. 323; B, C. & G. Cons. L., p. 59438.]

§ 10. Transfer of the powers and duties of the comptroller in relation to the
assessment or collection of certain taxes.

On and after July first, nineteen hundred and twenty-one, all the powers and
duties now conferred or imposed upon the state comptroller in relation to the
taxation of corporations under articles nine and nine-a of this chapter, in relation to
the taxation of transfers of property, under article ten of this chapter, in relation,
to the taxation of transfers of stock, under article twelve of this chapter, and in
relation to taxation upon and with respect to personal income, under article sixteen
of this chapter, shall be transferred to and thereafter shall be exercised and per-
formed by the state tax commission, except as powers and duties under any such
article are expressly conferred upon or continued in the state comptroller by acts of
the legislature of nineteen hundred and twenty-one, enacted subsequent to chapter
ninety of the laws of nineteen hundred and twenty-one, [Tax Law, § 179, as added
by L. 1921, ch. 90, and amended by L. 1921, ch. 443; old § 179 repealed by L, 1921,
ch. 90.]

§11. Transfer of powers and duties of the secretary of state in relation to
motor vehicles,

On and after July first, nineteen hundred and twenty-one, all the powers and
duties now conferred or imposed upon the secretary of state under articles eleven
and eleven-a of the highway law. in relation to motor vehicles and motor cycles,
shall be transferred to and thereafter shall be exercised and performed by the
state tax commission, except as such powers and duties of the secretary of state
are expressly conferred upon a different officer or officers by acts of the legislature
of nineteen hundred and twenty-one, enacted subsequent to chapter ninety of the
laws of nineteen hundred and twenty-one. [Tax Law, § 179}, as added by L. 1921,
ch. 90, and amended by L. 1921, ch. 443.]

 

of a city where such tax is raised by action of the common council, its levy
and collection may be enforced by mandamus. People ex rel. Supervisors v. Common
Council of Kingston, 101 N. Y. 82.

The words “costs and expenses,” as used in this section, are not given the
same meaning as when used in reference to actions; they are intended to afford
an indemnity and protection against all costs and expenses of whatever nature
which may be incurred by the Board in taking an appeal. People ex rel.
Burhans vy. Supervisors, 32 Hun, 607.

5a. Costs; when county charge. The reasonable costs and expenses incurred
by certain supervisors on an appeal from the decision of a board of supervisors
equalizing assessments are a proper charge against the county, but the bills for
counsel fees must be audited by the board of supervisors before they are paid by the
county treasurer. Opinion of Atty, Genl., Feb. 17, 1913.
COLLECTION OF TAXES. 579

Explanatory note.

CHAPTER XXXVIII.

COLLECTION OF TAXES,

EXPLANATORY NOTE.

Notics of Receipt of Tax-roll and Warrant.

When the collector receives the tax-roll and warrant his first duty is
to post notices in five conspicuous public places in the town, specifying
one or more convenient places where he will attend for at least three
days in each week for thirty days from the date of posting the notices,
to receive taxes. It is proper for the collector to publish the xotice in
one or more newspapers published in the town, but the law does not
require it. A non-resident is entitled to notice by mail if he demands
it and pays the collector a fee of twenty-five cents. A non-resident,
either a person or corporation, may file with the town clerk a statement
containing a description of the premises assessed, and his name, resi-
dence and post-office address, which operates as a request to mail notices
of taxes due. The town clerk must notify the collector of the filing of
such statement, and the collector must mail such notices or lose his five
per cent. fee if the tax is not paid within 30 days. The collector must
attend at the time and place specified to receive taxes.

Collection of Taxes not Paid Within Thirty Days.

The collector must call upon each person, who does not pay within
thirty days, at least once, and demand the tax. If the tax is not paid
the collector may levy on any personal property belonging to the person
taxed, found within the county. He may cause the property levied upon
to be sold at public auction, and take from the proceeds of the sale the
tax, his fees and the expenses of the sale, paying over to the owner any
surplus. The law provides for the trial of conflicting claims to such
surplus. [See Tax Law, § 71, as amended by L. 1916, ch. 323, § 307.]
580 TAXATION.

Explanatory note

Payment of Tax by Certain Corporations.

A railroad, telegraph, telephone or electrie light or gas company may
pay its tax, with one per centum fees, te the county treasurer, within
thirty days after notice received by the county treasurer from the clerk
of the board of supervisors. The fees belong to the collector. If the
tax is not paid within thirty days, the county treasurer must notify the
collector, who must then collect the tax under his warrant. School
taxes may be paid by railroad companies to the county treasurer, who
is required to return the amount paid to the several schoo] districts:
[See Education Law, §§ 427-431, as amended by L. 1918, ch. 216. |

Collection of taxes against telegraph, telephone and electric light
companies may be enforced by the collector by sale of instruments,

wires, ete.

Removal of Person Taxed from County.

Where a person against whom a tax is levied has removed from the
county so that collection of the tax may not be enforced, the collector
may apply to the county court for an order, directed to the sheriff of
the county where the person taxed may be, requiring him to collect such
tax out of the personal property belonging to such person, found in his
county. Such order has the force of an execution on a judgment and
should be executed in the same manner, The sheriff makes his return to
the county treasurer of the county from which the order was issued and
the amount collected is credited to the proper town.

Supplementary Proceedings.

If a collector returns a tax as unpaid for want of personal property
out of which to collect the tax, the county treasurer or supervisor of the
town may apply to the court for the institution of supplementary pro-
ceedings. Such proceedings are to be prosecuted in the same manner
as proceedings supplementary to execution.

Fees of Collector.

The law gives the collector a fee of one per cent. on all taxes col-
lected within the period of thirty days from the date of the notice that
he has received the assessment-roll, unless the aggregate amount of taxes
to be collected is $2000 or less, in which case he is entitled to two per
cent. After the period of thirty days he is entitled to five per cent.
Such fees are added to the taxes, to be paid by the person assessed. The
COLLECTION OF TAXES. 581

Explanatory note.

collector is entitled to two per cent. on all taxes returnd as unpaid, pay-
able by the county treasurer.

Return of Unpaid Taxes.

The collector is credited by the county treasurer with the amount of
taxes returned as unpaid. Such return must be accompanied by an
affidavit to the effect that he has not been able, upon diligent inquiry,
to find any personal property upon which he could make a levy. The
collector may add five per cent. to the taxes returned as unpaid.

The return is attached to the assessment-roll, and is to be in the form
prescribed by the State Board of Tax Commissioners. If a stay or in-
Junction has been issued, the time for making the return is extended
for a period of thirty days beyond the termination of the stay.

Payments by Collector.

The collector must pay over to the officers named in the warrant the
taxes collected by him, within one week after the time prescribed
therein. Such officers are to deliver to the collector duplicate receipts,
one of which should be kept by the collector and the other delivered to
the county treasurer, to be filed by him as evidence that the collector is
discharged from liability, to the extent of such receipts. If the collector
fails to pay over the County Court must make an order, on the applica-
tion of the County Treasurer, directing the sheriff to levy on the prop-
erty of the collector. If after such a levy there is a deficiency still un-
accounted for, the supervisor must sue on the undertaking of the col-
lector.

Extension of Time to Collect Taxes.
The county treasurer, upon the application of the supervisor of a

town, may extend the time for the collection of taxes by a collector to a
day not later than Aprii 1.

Vacancies in Office of Collector.

The town board is required to fill a vacancy in the office of collector.
Upon giving the same bond as required of a collector he succeeds to
the powers of the former collector, and is entitled to the same fees
on all moneys collected by him. The original warrant is delivered to
the new collector. If it has been lost or destroyed a new one is to be
issued by the chairman and clerk of the board of supervisors,
982

TAXATION.

Explanatory note.

Satisfaction of Collector’s Bond.
Upon the settlement of the accounts of a collector by a county

treasurer, he must give to the Collector or his sureties, a written certi-
ficate of such settlement. When such certificate is filed in the office of
the county clerk, the undertaking is satisfied, and the collector and
his sureties are released from all further liability.

SEcTIoN 1.

Collector to give notice of receipt of tax roll and warrant; con-
tents of notice; how posted; notice to non-residents.

. Notice to non-residents; notice of residence of non-residents to b¢€

filed with town clerk; duty of town clerk.

. Collector to call upon taxpayers after expiration of thirty days;

levy on personal property because of failure to pay; sale of per-
sonai property; disposition of proceeds.

. Settlement of conflicting claims to surplus of tax sale; action by

10.
11.

12.

13.

14.

15,

16.

17.

18.
19.
20.

21.

claimant to recover amount of surplus.

. Collection of taxes assessed against stocks in banks and banking

associations; collector may levy on stock.

. Railroad, telegraph, telephone and electric light corporations may

pay tax to county treasurer; duties of county treasurer.

. Payment of school tax by railroad company to county treasurer.
. Railroads in towns bonded for the construction thereof, to pay tax

to county treasurer; investment of money by county treasurer.

. Tax against telegraph, telephone and electric light lines; collectors

may levy on instruments; return of unpaid taxes to county
treasurer; county treasurer may sell lines.

Sequestration of property of corporations for failure to pay taxes.

Taxes on rents reserved; collector may levy on personal property
of owner found in county; when tenant may be compelled to pay.

Collector to return unpaid taxes on debts owing to non-residents of
the United States to county treasurer; county treasurer to issue
a warrant to sheriff to collect amount of tax.

Sheriff to return warrant for collection of taxes on debts owing to
non-residents; neglect to make return; proceedings, if warrant is
returned unsatisfied.

Application to County Court for order directing sheriff to collect
tax when person taxed has removed from county; certified copy
of order to be delivered to sheriff or constable of county to which
person has removed. }

Supervisor or county treasurer may institute supplementary pro-
ceedings for collection of unpaid taxes.

Dismissal of suits or proceedings.

Cancellation of personal tax void for want of jurisdiction.

When tax is paid by tenant he may retain amount from rental.

Payment of taxes on part of lot.

Payment of taxes on state lands in forest preserve.

Fees of collector.
COLKECTION OF TAXES. 583
Tax Law, § 69.

ection 22. Return by collector of unpaid taxes; contents of return; form
prescribed by tax commissioners.
28. Stay by injunction or otherwise of collection of taxes, to operate as
‘an extension of time for making return of taxes affected.
24. Payment by collector of taxes collected; officers to give collector
duplicate receipts; receipts to be filed.
25. Collector failing to make payments; County Court to order sheriff
to levy on property of collector; return of sheriff.
26. County treasurer to make payments to proper officers out of moneys
collected.
27. Supervisors to prosecute collector’s undertaking for deficiency.
28. County treasurer may extend time for collection of taxes; new bond
of collector.
29. Filling vacancy in office of collector; notice of appointment to
county treasurer; warrant to be delivered to new collector.
30. Sheriff to collect taxes in case of collector’s failure to execute bond,
unless vacancy be filled;, duties of sheriff thereunder.
81. Collector’s bond, satisfaction of, by county treasurer; form of satisfac-

tion; filing thereof.
3la. Reassessment of taxes levied on imperfectly described real property.

32. Reassessment of unpaid taxes on resident real property; supervisor
to include in tax roll; rate of interest on unpaid taxes; to be
regarded as non-resident thereafter.

33. County treasurer to pay money to creditors of county.

34. County treasurer to be charged with amount of state tax; when
state tax is to be paid over; county treasure: may borrow money
for payment of state tax; interest on amount withheld.

35. State comptroller to state accounts with county treasurer; to in-
stitute proceedings against county treasurer for failure to pay
over.

36. Losses by default of collector or treasurer, how borne.

37. Collector to give receipts to each person paying a tax; form of re-
ceipts; to be provided by board of supervisors.

38. Obstructing officer in collecting taxes.

$ 1. COLLECTOR TO GIVE NOTICE OF RECEIPT OF TAX-ROLL
AND WARRANT; CONTENTS OF NOTICE; HOW POSTED;
NOTICE TO NON-RESIDENTS.

Every collector, upon receiving a tax-roll and warrant, shall forthwith
cause notice of the reception thereof to be posted in five conspicuous public
places in the tax district, specifying one or more convenient places in such
tax district, where he will attend from nine o’clock in the forenoon until
four o’clock in the afternoon, at least three days, and if in a city, at
least five days, in each week for thirty days from the date of the notice,
which shall be the date of the posting or first publication thereof, which
days shall be specified in such notice, for the purpose of receiving the
taxes assessed upon such roll.* The collector shall attend accordingly,

 

1. For form of notice of collector of receipt of tax roll and warrant, see Form
No. 55, post.
584 TAXATION.
Tax Law, §§ 69-a, 70.

and any person may pay his taxes to such collector at the time and
place so designated, or at any other time or place.” In a city, the
notice in addition to being posted shall be published once in each week,
for two weeks successively, in a newspaper published in such city. [Tax
Law, § 69, as amended by L. 1916, ch. 323; B. C. & G. Cons. L., p.
5886. ]

Nonresidents ; statement of taxes. On the written demand of a non-
resident owner of real property included in such tax-roll, and the pay-
ment by such owner to the collector of the sum of twenty-five cents, the
collector shall within twenty-four hours after the receipt of such demand
mail in a postpaid envelope directed to such nonresident owner, to the
address to be furnished in such demand, a statement of the amount of
taxes assessed against such property with a notice of the dates and places
fixed by him for receiving taxes. [Tax Law, § 69a, as added by L.
1916, ch. 323.]

§ 2. NOTICE BY COLLECTOR TO NON-RESIDENTS IN TOWNS; NO-

TICE OF RESIDENCE OF NON-RESIDENTS TO BE FILED
WITH TOWN CLERK; DUTY OF TOWN CLERK.

A person or corporation who is the owner of, or liable to assessment
for, an interest in real property situated and liable to assessment and
taxation in a town in which he or it is not actually a resident may file
with the town clerk of such town a notice stating his name, residence and
post office address, or in case of a corporation, its principal office, a
description of the property sufficient to identify the same, and if situated
in a village or school district, the name of each such village and number
and designation of each such school district. Such notice shall be
valid and continue in effect until canceled by such person or corporation.
The town clerk shall, within five days after the delivery of the warrants
for the collection of taxes in such tax districts, furnish to the collectors
of the town, and the collector of each village and school district in which
such real property is situated, and such collectors shall within such
time apply for, a transcript of all notices so filed, and each of such
collectors shall within five days after the receipt of such transcripts
mail to each person or corporation filing such notice, at the postoffice
address stated therein, a statement of the amount of taxes due on said
property and the times and places at which the same may be paid. In
case said statement shall not be furnished as herein provided, such
person or corporation shall not be liable for fees for collection in excess
of one per centum. Upon the filing of such notice the town clerk shall
be entitled to receive a fee of one dollar from the person or corporation
offering such notice, which shall be in full for all services rendered
hereunder. [Tax Law, § 70, as amended by L. 1909, ch. 207, and L.
1916, ch. 323; B. C. & G. Cons. L., p. 5888. ]

References. The form and contents of the collector’s warrant are prescribed by
section 59 of the Tax Law, ante; for form of tax warrant, see Form No. 52, post.

Section 70, as amended by L. 1909, ch. 207, and L. 1916, ch. 323, of the Tax Law,
provides for the serving of notice of the receipt of a tax warrant upon non-residents;
see next section.

2. Payment on Sunday. Where last day provided in notice falls on Sunday,
taxes may be paid on Monday. Rept. of Atty. Genl. (1902) 152.

 
COLLECTION OF TAXES. : 585
Tax Law, §§ 70-a, 71.

Notice by collector; nonresidents in cities. A person or corporation
who is the owner of, or liable to assessment for, an interest in real
property situated and liable to assessment and taxation in any city of
this state in which he or it is not actually a resident, may file with the
city clerk of such city a notice stating his name, residence and post office
address, or in case of a corporation, its principal office, and a descrip-
tion of the property sufficient to identify the same. Such notice shall
be valid and continue in effect until canceled by such person or corpora-
tion. The city clerk shall, within five days after the delivery of the
warrants for the collection of any tax in aw such tax district, furnish
to the collector or to the person by whatever name of office charged with
the collection of such taxes, and such collector, or other person, shall
within such time apply for a transcript of all notices so filed and each
such collector or other person, within five days after the receipt of
such transcripts, shall mail to each person or corporation filing such
notice, at the post office address stated therein, a statement of the
amount of taxes due on such property and the times and places at which
the same may be paid. In case said statement shall not be furnished
as herein provided, such person or corporation shall not be liable for
fees for collection in excess of one per centum and in all cases where,
by the provisions of any special law, no fee is charged where such tax
is paid within thirty days or more after the delivery of such tax-roll
and warrant and the publication of such notice, no fee shall be charged
or collected by such collector for the collection of such tax within the
time limited by such special law for the payment of such tax. Upon
the filing of such notice, the city clerk shall be entitled to receive a
fee of one dollar from the person or corporation offering such notice,
which shall be in full for all services rendered herein. [Tax Law,
§ 70a, as added by L. 1915, ch. 485, and amended by L. 1916, ch. 323.]

§ 3. COLLECTOR TO CALL UPON TAXPAYERS AFTER EXPIRATION
OF THIRTY DAYS; LEVY ON PERSONAL PROPERTY BE-
CAUSE OF FAILURE TO PAY; SALE OF PERSONAL PROP-
ERTY; DISPOSITION OF PROCEEDS.

After thé expiration of notice period of thirty days, as provided in section sixty-
nine of this chapter, the collector shall call, at least once, on every person taxed upon
such roll whose taxes are unpaid, at his usual place of residence, if he is an actual
inhabitant of such tax district, and demand payment of the taxes charged to him
on his property.2 If the owner of a parcel or portion of real property is a resident
of the tax district in which such parcel or portion of real property is assessed, and
his name is correctly entered on the assessment-roll, he shall be personally liable for
the tax assessed against such parcel or portion of real property. If any person shall
neglect or refuse to pay any tax imposed on him, the collector shall levy upon any
personal property in the county belonging to or in the possession of any person who
ought to pay the tax, and cause the same to be sold at public auction for the
payment of such tax, and the fees and expenses of collection; and no claim

 

3. The tax roll and warrant constitute one process. If each is regular
upon its face, the process will fully protect the collector in forcing a collection of
the tax. Bennett v. Robinson, 42 App. Div. 412; 59 N. Y. Supp. 197; Chegaray v.
Jenkins, 5 N. Y. 376; Van Rensselaer v. Witbeck, 7 N. Y. 517; Patchin v. Ritter, 27
Barb. 34; Johnson v. Learn, 30 Barb. 616.

In the case of Bradley v. Ward, 58 N. Y. 401, it was held that when a copy of
the assessment-roll with the warrant attached, is delivered to the town collector,
it is not necessary to attach the affidavit of the assessors or a copy of it in order to
protect the collector.
586 TAXATION

Tax Law, § 71.

of property to be made thereto by any other person shall be available to pre-
vent such sale.* The collector shall be entitled to a fee of one dollar for mak-

The fact that the rol’ did not show in express terms that the amount assessed was
a valuation of capital stock, but it was placed under a column headed “ Valuation
of Personal Property,” is not such an indication of error on the part of the as-
sessors as to destroy the protection of the warrant. Niagara Elevating Co. v. Me-
Namara, 50 N. Y. 653.

Liability of collector. The authority conferred upon a tax collector by his
warrant is special and exceptional, and must be pursued according to its tcrms.
First Nat. Bank of Sandy Hill v. Fancher, 48 N. Y. 524.

In Hendrickson v. Brown, ] Caines Cas. 92 (1803), a theatre had been assessed
as a dwelling-house, but as th® assessor had jurisdiction to assess it in some form,
the warrant was held a justification to the collector.

A warrant issued by supervisors of a county for the collection of taxes is valid,
so as to protect the collector, although the persons signing are not described in it
as supervisors, nor designated as such in connection with their signatures. Sheldon
v. Van Buskirk, 2 N. Y. 473. .

Where a warrant for the collection of a poor tax was regular on its face, it being
the duty of the overseer collecting the tax not to act without his colleague’s consent—
held, that it was to be presumed that he acted by authority. Downing v. Ruger,
21 Wend, 178.

Where the warrant is regular on its face, is issued by authorities having juris-
diction, and is directed against the owner and his property, the collector is
protected. Strong v. Walton, 47 App. Div. 114, 62 N. Y. Supp. 353; Hulder v.
Golden, 36 N. Y. 446; Bullis v. Montgomery, 50 Id. 352; Troy & L. R. R. Co. v.
Kane, 72 Id. 614.

If the warrant issued to the collector is regular on its face, he is not bound to
inquire whether the taxes were legally assessed. Wollsey v. Morris, 96 N. Y. 311;
and this is so even though the collector knew of facts which would invalidate the
assessment. Thomas v. Clapp, £0 Barb. 165. But where the illegality of a tax
appears on the face of the warrant the collector who levies under it is liablesto tres-
pass. Bank of Utica v. City of Utica, 4 Paige, 399; Clark v. Hallock, 16 Wend. 607;
Franklin v. Pearsall, 21 J. & S. 271. Where it appears that the tax roll was verified
before the third Tuesday in August, the time fixed for its final review and correction,
it is a nullity, and the defect being apparent upon the face of the process, the col-
lector is not thereby protected. Westfall v. Preston, 49 N. Y. 349.

A warrant to collect tax “in the fifth column,” justifies the collection of a
highway tax in a sixth column. Bennett v. Robinson, 42 App. Div. 412, 59 N. Y.
Supp. 197.

Execution of warrant after return day. Where a warrant is executed after
the return day, the officer issuing it is not liable though it be otherwise invalid.
Nor will the receipt of the money collected make him liable in damages for its
execution, unless he had notice that it was collected after the return day. Van
Rensselaer v. Kidd, 6 N. Y. 331. ‘

Payment of tax by third persons. Mortgagees may pay tax and add the
amount to t!:e mortgage debt. Sidenberg v. Ely, 90 N. Y. 257. The mortgagee can-
not compel an assignee for the benefit of creditors to pay taxes on the property mort-
gaged. Matter of Lewis, 81 N. Y. 421. Unpaid taxcs upon real estate of the testa-
tor must be paid by his executor out of the personalty of the testator. Smith v.
Cornell, 111 N. Y. 554. .

A referee selling real property under a judgment rendered in an action to fore-
close a mortgage, or for partition or dower, must pay all taxes assessed out of the
proceeds of the sale. Civil Practice Act, §§ 1062, 1087; Real Property Law, § 486.

Supplementary proceedings for the collection of taxes may be instituted by
the supervisor or county treasurer. Tax Law, sec. 299, post.

4, Levy on personal property. The authority to proceed by distress and sale
to collect a tax is permissive and not mandatory. United States Trust Co. v. Mayor,
77 Hun 182, 190; 28 N. Y. Supp. 344.

The statute authorizes a levy upon any personal property in the possession of
any person who ought to pay the tax. The possession referred to means an
actual, physical, and not merely a legal or constructive possession, and an actual
possession by the consent of the owner, although unaccompanied’ by an ownership
in the possessor, is a possession within the meaning of the statute. Hersee
v. Porter, 100 N, Y. 403. In this case the constitutionality of such provision was
attacked. The court in declaring the statute to be constitutional said: “The

 
COLLECTION OF TAXES. 587

Tax Law, § 71.

ing such levy in addition to any other fees and expenses of collection if such
tax is paid before the day of sale and to a fee of one dollar for making such
levy and one dollar for conducting the sale in addition to any other fees
and expenses of collection, if such tax is not paid before the day of sale.
Public notice of the time and place of sale of the property to be sold
shall be given vy posting the same in at least three public places in the tax

 

authority to seize and sell any property in the possession of a person taxed for the
payment of the tax has been a part of the statute law of the state since 1801.
eS In view of this long and continued acquiescence by the executive, legisla-
tive and judicial departments of the government in the legislation now in question,
the court would not, we think, be justified in departing from the common under-
standing that the statutory authority to seize any property in the possession of
the person taxed, for the payment of the tax, justifies the seizure and sale of the
property of a third person so situated. Each individual in the community has
notice of the law, and is presumed to understand that if his chattels are by his
consent or permission in the possession of another, they can be taken for a tax
against the person in possession. The law was probably framed to prevent fraud
and collusion and disputes as to title, and each individual in the community may
be assumed to have consented that his property shall be subject to the right of the
state in this way to enforce the, power of taxation.”

The statute refers to actual physical possession, and not to mere legal or con-
structive possession; and an actual possession by the consent of the owner, though
unaccompanied with any ownership in the possessor, is a possession within the
meaning of the statute. Personal property mortgaged, and after default still in
the possession of the mortgagor, is liable to distress and sale for his taxes. Hersee
v. Porter, 100 N. Y. 403.

The collector is not authorized to seize a chair belonging to the husband for a
tax due from the wife, even though occupied by the wife at the time of levy. The
chair is not deemed within her possession sufficient to justify such levy. Hubbell
v. Abbott, 21 Misc. 780, 47 N. Y. Supp. 1129. .

A town collector may seize not only goods and chattels belonging to the person
taxed, but any goods and chattels in his possession. Sheldon v. Van Buskirk, 2
N. Y. 473; Strong v. Walton, 47 App. Div. 114, 62 N. Y. Supp. 353.

The possession of a boarder in a house or hotel of the furniture in the rooms
occupied by him is not such as authorizes seizure for taxes assessed against
such boarder. Denton v. Carroll, 4 App. Div. 532; 40 N. Y. Supp. 19. And
possession of the goods by a firm of which the person tared is a member, would
not bring the case within the statute. Stockwell v. Vietch, 38 Barb. 650,
15 Abb. Pr. 412.

The statute does not apply to property belonging to another person in no
way liable for the tax which is transiently upon the lands assessed, but in
the possession of the owner for his own purposes. Lake Shore & Mich. S. R. k.
Co. v. Roach, 20 N. Y. 329,

Property in the possession of a person taxed which was pyrchased with
nvension money is exempted from levy under this section. Strong v. Walton,
47 App. Div. 114; 62 N. Y. Supp. 353. But the fact that the personal property in
the possession of the taxpayer ‘s in his possession under an agreement that the
title is not to pass to him until its purchase price is paid does not affect the
right of the collector to levy on such property. Pauly v. Wahle, 29 Hun, 116.

Where the owner of the real estate assessed resided on the land with a
tenant. who was working it on shares, it was held that the occupancy and
possession of the tenant was that of the owner for the purpose of taxation,
and that the tenant’s possession of goods liable to distress for taxes, was the
possession of the owner. Coie v. Carl, 82 Hun, 360; 31 N. Y. Supp. 565.

The statute requires that land of a non-resident shall be assessed without
588 TAXATION.
Tax Law, § 71.

district where the sale is to be made, at least six days previous thereto.’ If
the proceeds of such sale shall be more than the amount of such tax, the fees
of the collection and the expenses of the sale, the surplus shall be paid to
the person against whom the tax was assessed. If any other person shall
claim the surplus, on the ground that the property sold belonged to him,
and such claim be admitted by the person for the payment of whose tax
the sale was made, such surplus shall be paid to such other person. If
such claim be contested by the person for the payment of whose tax the
property was sold, such surplus shall be paid over by the collector to the
supervisor of the town, who shall retain the same until the rights of the
parties thereto shall be determined by due course of law, or by agreement

 

naming the owner in the roll; the collector, therefore, cannot levy a tax upon
the personal property of the non-resident. Tht. warrant does not authorize
the seizure and sale of the property of persons not named, or whose names it is
apparent the assessors had no right to set down. N. Y. & Harlem R. R.
Co. v. Lyon, 16 Barb, 651. ,

Possession by husband or wife. A levy upon property owned by the plain-
tiff to satisfy a tax assessed against plaintiff's husband for a farm owned in
fact by her,—held to be void, and the warrant to be no justification to the
collector. Hallock v. Rumsey, 22 Hun, 89.

Where a married woman is in possession of a farm under contract of sale, the
horses belonging to and used by her on the farm are not subject to levy under
a warrant issued for the collection of a tax upon the farm, assessed by the
assessors of the town in which it is situated, against the husband. Van
Nostrand v. Hubbard, 35 App. Div. 201, 54 N. Y. Supp. 739.

The interest of a tenant in common of personalty may be levied upon.
Dinehart v. Wilson, 15 Barb. 595.

Rolling stock of a railroad is liable to seizure and sale to satisfy a tax
against the company. Randall v. Elwell, 52 N. Y. 521.

Bank money. Assessments were made against resident stockholders in a
bank of the town, upon their bank stock, and the collector levied upon money
of the bank to satisfy the taxes. Held, that he was not justified in so doing.
although the bank held funds with which the tax, if its validity was not con-
tested, would have been paid. First Nat. Bank. of Sandy Hill v. Fancher, 48
N. Y. 524.

The personal property of the vendee of land assessed before its conveyance
to him is not liable to seizure to satisfy the tax. Everson v. City of Syracuse,
29 Hun, 485, reversed on another ground, 100 N. Y. 577.

Taxes levied prior to the death of a testator upon real property in which
a trust is created by the testator’s will are not a charge against the trust
estate, but are payable out of the testator’s general estate. Matter of Doheny,
70 App. Div. 370, 75 N. Y. Supp. 24, affd. 171 N. Y. 691.

Tender of part of tax. Where taxes are levie? on both real and personal
estate belonging to a taxpayer, tender of an amount equal to the tax against
the real estate must be accepted by the collector. Rept. of Atty. Genl. (1894)
326.

5. For form of notice of tax sale by collector, see Form No. 5&6, post.
COLLECTION OF TAXES. 589

Tax Law, §§ 307, 72.

in writing made by them and filed with the supervisor. The collector
upon payment of the taxes shall state in the column of the tax-roll pro-
vided therefor, the date of such payment, and shall write his name after
such date. [Tax Law, § 71, as amended by L. 1916, ch. 323, and L. 1917,
ch. 356; B. C. & G. Cons. L., p. 5888.]

§ 4. SETTLEMENT OF CONFLICTING CLAIMS TO SURPLUS OF
TAX SALE; ACTION BY CLAIMANT TO RECOVER AMOUNT
OF SURPLUS.

Whenever a surplus from the sale of any property for unpaid taxes in
the hands of the supervisor of a town shall be claimed by any person
other than the person for whose tax such property was sold, and such
claim shall not be settled by a stipulation filed with the supervisor, as
provided by this chapter, such claimant may maintain an action against
such person, or such person may maintain an action against such claimant,
to recover such money and, for the purposes of such action, the defendant
shall be deemed to be in possession of the surplus in the hands of the
supervisor.© Upon the production of a certified copy of a final judgment,
rendered in favor of either party, the supervisor shail pay such surplus
to the party recovering the same. No other cause of action shall be joined,
nor any set-off or counterclaim be allowed iv an action brought pursuant
to this section, and if an execution issue on a judgment rendered in such
action, it shall direct that the costs only of such judgment be levied there-
on. [Tax Law, § 307; B. C. & G. Cons. L., p. 6055.]

§ 5. COLLECTION OF TAXES ASSESSED AGAINST STOCKS IN
BANKS AND BANKING ASSOCIATIONS; COLLECTOR MAY
LEVY ON STOCK.

Every bank or banking association shall retain any dividend until the
delivery to the collector of the tax-roll and warrant of the current year,
and within ten days after such delivery shall pay to such collector so
much of such dividend as may be necessary to pay any unpaid taxes assessed
on the stock upon which such dividend is declared. In case the owner
of such stock resides in a place other than where the bank or banking
association is located, the same power may be exercised in collecting the

 

6. Duty of supervisor as to surplus moneys. Section 71 of the Tax Law,
aie, requires the collector to pay over to the supervisor of the town the
surplus remaining after the payment of the tax for which the property was
sold as provided in that section, in case there is any controversy as to
the ownership of such property. The supervisor under the above section
is to retain such money until the rights of the contesting parties are
determined.
590 TAXATION.
Tax Law, § 73.

tax so assessed as is given in case a person has removed from a tax district
in which the assessment was made. The tax so assessed shall be and remain
a lien on the shares of stock against which it is assessed till the payment
of such tax, and if the stock is transferred it shall be subject to such lien.
The collector or county treasurer may foreclose such lien in any court of
record, and collect from the avails of the sale of the stock the tax assessed
against the same. In addition thereto, the same remedy may be had for
the collection of the tax on such shares as is now provided by law for
enforcing payment of personal tax against residents.’ [Tax Law, § 72;
B. C. & G. Cons. L., p. 5891.]

§ 6 RAILROAD, TELEGRAPH, TELEPHONE, ELECTRIC LIGHT OR GAS
CORPORATIONS MAY PAY TAX TO COUNTY TREASURER;
DUTIES OF COUNTY TREASURER.

Any railroad, telegraph, telephone, electric-light or gas company in-
cluding a company engaged in the business of supplying natural gas,
may, within thirty days after receipt of notice by the county treasurer
from the clerk of the board of supervisors, pay its tax, with one per
centum fees, to the county treasurer, who shall eredit the same with
such fees to the collector of the tax district, unless otherwise required by
law. If not so paid the county treasurer shall notify the collector of the
tax district where it is due, and he shall then proceed to collect under
his warrant. Until such notice from the treasurer the collector shall not
enforce payment of such taxes, but may receive the same, with the fees
allowed by law, at any time.* [Tax Law, § 73, as amended by L. 1912,
ch, 221; B. C. & G. Cons. L., p. 5892. ]

 

7. Section 24 of the Tax Law (ante), relating to the assessment and taxa-
tion of shares of banks and banking associations, provides that the tax
assessed upon such shares shall be paid by the bank or banking association
to the treasurer of the county wherein it is located. Such section contains
a complete scheme for the assessment, taxation and payment of taxes by banks
and banking associations, and probably supersedes the provisions of the above
section.

8. References. The clerk of the board of supervisors is required to
deliver a statement to the county treasurer, showing the names, valuations
and amount of tax, aS appearing upon the assessment-roll of the several tax
districts, of each railroad, telegraph, telephone and electric light corpora-
tion therein. Tax Law, sec. 60, ante.

If a town or city has unpaid bonds outstanding, issued to aid in the con-
struction of a railroad, the tax collected on account of such railroad in such
town or city is to be paid to the treasurer of the county, to be applied in
the purchase of such bonds. General Municipal Law, sec. 13, post.

Tre demand is a condition precedent to a right of action, and the bringing
of such action is not a demand. McLean, as Receiver, v. The Manhattan
Medicine Co., 22 J. & S. 371 (1887, Gen. T.), revg. 3 N. Y. St. Rep. 550.
COLLECTION OF TAXES. 591
Education Law, §§ 427, 428, 429.

|

7, PAYMENT OF SCHOOL TAX BY RAILROAD, TELEGRAPH, TELE-

: PHONE, ELECTRIC LIGHT AND GAS COMPANIES TO COUNTY
TREASURER,

Notice to railroad companies and certain other corporations of assess-
ment and tar.— 1. It shall be the duty of the school collector in each
school district in this state, within five days after the receipt by such
collector of any and every tax or assessment-roll of his district, to pre-
pare and deliver to the county treasurer of the county in which such
district, or the greater part thereof, is situated, a statement showing
the name of each railroad, telegraph, telephone, electric light or gas
company, including a company engaged in the business of supplying
natural gas, appearing in said roll, the assessment against each of said
companies for real and personal property respectively, and the tax
against each of said companies.

2. It shall thereupon be the duty of such county treasurer, imme-
diately after the receipt by him of such statement from such school
collector, to notify the ticket agent or manager of any such railroad,
telegraph, telephone, electric light or gas company, including a company
engaged in the business of supplying natural gas assessed for taxes at
the station or office nearest to the office of such county treasurer or to
notify the company at its principal office within this state personally
or by mail, of the fact that such statement has been filed with him by
such collector, at the same time specifying the amount of tax to be paid
by such company. [Education Law, § 427, as amended by L. 1913,
ch. 216; B. C. & G. Cons. L., p. 1216.]

Payment within thirty days——Any railroad company heretofore
organized, or which may hereafter be organized, under the laws of this
state, and any telegraph, telephone, electric light or gas company in-
cluding a company engaged in the business of supplying natural gas
may within thirty days after the receipt of such statement by such
county treasurer, pay the amount of tax so levied or assessed against it
in such a district and in such statement mentioned and contained with
one per centum fees thereon, to such county treasurer, who is hereby
authorized and directed to receive such amount and to give proper
receipt therefor. [Education Law, § 428, as amended by L. 1918, ch.
216; B. C. & G. Cons. L., p. 1216.]

Collection if not so paid.—In case any railroad company and any
telegraph, telephone, electric light or gas company including a company
engaged in the business of supplying natural gas shall fail to pay such
tax within said thirty days, it shall be the duty of such county treasurer
to notify the collector of the school district in which such delinquent
railroad company is assessed, of its failure to pay said tax, and upon
receipt of such notice it shall be the duty of such collector to collect such
unpaid tax in the manner now provided by law together with five per
centum fees thereon; but no school collector shall collect by distress and
sale any tax levied or assessed in his district upon the property of any
such company until the receipt by him of such notice from the county
treasurer. [Education Law, § 429, as amended by L. 1918, ch. 216;
B. C. & G. Cons. 1... p. 1217.]
592 TAXATION.
Education Law, § 431; General Municipal Law, § 13.

Amount to be paid over to collector of district—The several amounts
of tax received by any county treasurer in this state, under the pro-
visions of the last three sections, of and from such companies, shall be
by such county treasurer placed to the credit of the school district for or
on account of which the same was levied or assessed, and on demand
paid over to the school collector thereof, and one per centum fees received
therewith shall be placed to the credit of, and on demand paid to, the
school collector of such school district. [Education Law, § 430, as
amended by L. 19138, ch. 216; B. C. & G. Cons. L., p. 1217.]

Companies may pay collector.—Nothing in the last four sections con-
tained shall be construed to hinder, prevent or prohibit any railroad
company or telegraph, telephone, electric light or gas company includ-
ing a company engaged in the business of supplying natural gas from
paying its school tax to the school collector direct, as provided by law.
[Education Law, § 431, as amended by L. 1913, ch. 216; B. C. & G.
Cons. L., p. 1217.]

§ 8 RAILROADS IN TOWNS BONDED FOR THE CONSTRUCTION THERE-
OF, TO PAY TO COUNTY TREASURER; INVESTMENT OF MONEY
BY COUNTY TREASURER.

If a town, village or city has outstanding unpaid bonds, issued or sub-
stituted for bonds issued, to aid in the construction of a railroud therein,
so much of all taxes as shall be necessary to take up such bonds, except
school districts and highway taxes, collected on the assessed valuation of
such railroad in such municipal corporation, shall be paid over to the treas-
urer of the county in which the municipal corporation is located. Such
treasurer shall purchase with such moneys of any town, village or city, such
bonds, when they can be purchased at or below par, and shall immediately
cancel them in the presence of the county judge.’ If such bonds cannot

 

9. By L. 1899, ch. 336, jurisdiction was conferred upon the court of claims
to hear, audit and determine the claim of any county where state taxes collected of
a railroad corporation in towns aiding in the construction of the railroad had been
paid by the county treasurer to the state treasurer.

In the case of County of Ulster v. State of New York, 79 App. Div. 277, the
determination of the court of claims, in a case brought under this act, that the state
was not liable to repay to the counties the amount of tax so paid by county tr. asur.rs
to the state treasurer was reversed. The court in this case held that ch. 907, L.
1869, as amended by ch. 283, L. 1871, from which the above section of the General
Municipal Law was derived. was enacted for the purpose of relieving the county
from the payment of the state tax upon the property of a railroad in a town bonded
for its construction.

Application of taxes on railroad bonds. County treasurers are authorized to
retain any portion of the taxes due from their counties to the state to apply on
railroad bonds, but the proper method for securing such taxes is by application to
the comptroller for repayment of the same. Such application should contain a
statement sufficient to satisfy the comptroller that the amount of money claimed is
really due to the county treasurer. Rept. of Atty. Genl., Feb. 15, 1909.

Application of section; duties of officers. The provisions of the above section
are applicable to any municipality having outstanding bonds issued in aid of the
construction of any railroad. The assessors and boards of supervisors should ascer-
tain the amount required to be paid under the provisions of such section to the
county treasurer and should specify such amount in the tax roll and warrant. If
such amount has been so specified, the collector may make the proper deduction of
COLLECTION OF TAXES. 593
general Municipal Law, § 13.

be purchased at or below par, such treasurer shall invest such moneys in
the honds of the United States, of the state of New York, or of any town
or village or city of such state, issued pursuant to law; and shall hold such
ponds as a sinking fund for the redemption and payment of such outstand-
ing railroad aid bonds. If a county treasurer shall unreasonably neglect
to comply with this section, any taxpayer of the town, village or city
having so issued its bonds may apply to the county judge of the county
in which such municipal corporation is situated, for an order compelling
such treasurer to execute the provisions of this section. Upon application

school and road taxes and pay the balance to the county treasurer. If the duty of
making the separation has not been discharged before payment to the county treas-
urer, it devolves upon him to make the separation and invest the proper amount as
directed by the statute. Matter of Clark v. Sheldon, 106 N. Y. 104.

If the county treasurer neglects to comply with the provisions of this
section and pays the amount that should be apportioned to the discharge of
railroad aid bonds in payment of county and’state taxes an action may
be maintained by the town against the county to recover the money so
misappropriated. Strough v. Board of Supervisors, 119 N. Y. 212; 23 N. B.
552; see, also, Pierson v. Supervisors of Wayne County, 155 N. Y. 105; 49
N. E. 766. The supervisors have no jurisdiction over the fund and cannot
legislate concerning it, nor direct nor control the act of the county treasurer
with reference to it. Nor can a town meeting by its vote authorize the
application of such fund for any other purpose than the payment of such
bonds. In the hands of the county treasurer it is a trust fund upon which
the law has impressed a distinct purpose and any action that diverts it
from that purpose is illegal. Clark v. Sheldon 134 N. Y. 338; 32 N. E. 23.
As to the right of a town to compel a proper application of this fund,
see Kilbourne v. Board of Supervisors, 137 N. Y. 170; 83 N. E. 159; Woods
vy. Supervisors, 136 N. Y. 403; 89 N. E. 1011; People ex rel. McMillan v. Super-
visors, 186 N. Y. 281; 32 N. H. 854; Ackerman v. Board of Supervisors, 72
Hun, 616; 25 N. Y. Supp. 196.

Effect where taxes have been paid into general fund of county. Where
the taxes have been paid by the county treasurer into the general fund of
the county, and are not identifiable, but the general fund had always
exceeded the amount of such taxes, an order requiring their investment as
prescribed by the statute was proper. Spalding v. Arnold, 125 N. Y. 194.

Illegal payment to treasurer. A town may recover moneys paid by railroad
company on account of taxes assessed in such town to the county treasurer,
when it appears that he paid such moneys to the supervisor instead of
applying them to the redemption of outstanding bonds issued to aid in the
construction of such railroad. Town of Walton v. Adair, 111 App. Div. 817,
97 N. Y. Supp. 868, affd. 191 N. Y. 509.

Enforcement of judgment requiring supervisors to invest railroad taxes.
A judgment directing a board of supervisors to deposit with the county
treasurer for the benefit of a town, to be invested by him in pursuance of the
above section, the taxes levied and collected on the assessed valuation of certain
railroad property in such town, is not complied with by merel, levying and
collecting the sum specified without giving any direction for the use of the
money as a sinking fund for the benefit of such town. The town may enforce
the judgment by a writ of peremptory mandamus to compel the board of
supervisors to again levy and collect the sum and pay it over to the county
treasurer for the benefit of the town. People ex rel. Town of Walton v.
Board of Supervisors, 173 N. Y. 297, reversing 75 App. Div. 184, 77 N. Y.
Supp. 676,
594 TAXATION.

Tax Law, § 74.

of the town board of any town, the board of supervisors of the county in
which said town is situated may authorize payment by the county treasurer
of all moneys thus paid to him in any year by the railroads mentioned in
this section, to the supervisor of such town, for its use and benefit; to be
applied either to the purchase of outstanding railroad aid bonds or the
payment of interest thereon, and any payment heretofore made in good
faith by the treasurer of any county to any town or to the supervisor
thereof, of the taxes received, in any year by such treasurer, from railroad
corporations in that town is hereby validated.°** The county treasurer of
any county in which one or more towns therein shall have issued bonds
for railroad purposes, shall when directed by the board of supervisors or
county judge of the county, execute and file in the office of the clerk of the
county an undertaking with not less than two sureties, approved by such
board or judge, to the effect that he will faithfully perform his duties
pursuant to this section. The annual report of a county treasurer shall
fully state, under the head of “railroad sinking fund”, the name and
character of all such investments made by him or his predecessors, and the
condition of such fund. [General Municipal Law, § 13; B. C. & G. Cons.
L., p. 2115.]

§ 9. TAX AGAINST TELEGRAPH, TELEPHONE AND ELECTRIC
LIGHT LINES; COLLECTORS MAY LEVY ON INSTRUMENTS;
RETURN OF UNPAID TAXES TO COUNTY TREASURER;
COUTY TREASURER MAY SELL LINES.

Collection of tax against a telegraph, telephone or electric light line
may be enforced by sale of the instruments and batteries connected with
such line, and in case there is not sufficient personal property, together
with such instruments and batteries, to pay such tax and the per centage
due the collector, he shall return a statement thereof to the county treas-
urer as other unpaid taxes are returned, and the county treasurer shall
proceed to sell such part of the line in the tax district where the tax was
levied as may be necessary to satisfy the unpaid taxes and per centage, in
the manner now provided by law for the sale of lands on execution, and
upon such sale shall execute to the purchaser a conveyance of such part
of said line, and the purchaser shall thereupon become the owner thereof.

 

9a. Constitutionality. The act from which the above section was derived has
been declared constitutional. Matter of Clark v. Sheldon, 106 N. Y. 104.

The part of this section which provides: ‘‘ Any payment heretofore made
in good faith by the treasurer of any county to any town, or to the super-
visor thereof, of the taxes received in any year by such treasurer from rail-
road corporations in that town is hereby validated,” is unconstitutional so
far as it attempts to take from a town an existing cause of action. Town of
Walton v. Adair, 96 App. Div. 75, 89 N. Y. Supp. 23.
_COLLECTION OF TAXES. 595

Tax Law, §§ 306, 75.

Nothing herein contained shall be construed to prevent collection of such
taxes by any procedure now provided by law. [Tax Law, § 74; B.C. &
G. Cons. L., p. 5892.]

10. SEQUESTRATION OF PROPERTY OF CORPORATIONS FOR
FAILURE TO PAY TAXES.

It shall be the duty of the attorney-general, on being informed by the
comptroller, tax commission or by the county treasurer of any county
that any incorporated company refuses or neglects to pay the taxes
imposed upon it, pursuant to articles one and two of this chapter, to
bring an action in the supreme court for the sequestration of the prop-
erty of such corporation, and the court may so sequestrate the property
of such corporation for the purpose of satisfying taxes in arrears, with
the costs of prosecution, and may, also, in its discretion, enjoin such
corporation and further proceedings under its charter until such tax and
the costs incurred in the action shall be paid. The attorney-general may
recover such tax with costs from such delinquent corporation by action
in any court of record.” [Tax Law, § 306, as amended by L. 1916, ch.
323; B. C. & G. Cons. L., p. 8649.] ‘

§ 11. TAXES ON RENTS RESERVED; COLLECTOR MAY LEVY ON
PERSONAL PROPERTY OF OWNER FOUND IN COUNTY;
WHEN TENANT MAY BE COMPELLED TO PAY.

If any tax upon any such tax-roll upon rents reserved is not paid, the
collector shall collect the same by levy and sale of the personal property
of the persons against whom the tax is levied, which may be found within
the county. If no sufficient personal property belonging to such person
can be found in the county, the collector shall collect such tax of the tenant
or lessee in possession of the premises, on which the rent is reserved, in
the same manner as if such tax had been assessed against such tenant or
lessee. Every such tenant or lessee paying any such tax, or of whom any
such tax shall be collected, shall be entitled to have the amount thereof,
with interest, deducted from the amount of rent reserved upon such prem-
ises, which may be due or may thereafter become due thereon, or may
maintain an action to recover the same.’° [Tax Law, § 75; B. C. & G.
Cons. L., p. 5893.]

9b. A proceeding to enforce the tax on a special franchise of a telegraph com-
pany, by sequestration, or by action at law, pursuant to this section, does not violate
the Post Roads Act. People ex rel. Postal Tel.-Cable Co. v. Tax Commissioners
(1918), 181 App. Div. 777.

10. The value of taxable rents reserved is included in the fifth column of the
assessment-roll, and if the name of the person entitled to receive the rent cannot be
ascertained by the assessors the tax is to be assessed against the tenant in possession
of the real property. See Tax Law, sec. 21, sub. 5, ante.

 
596 TAXATION.
Tax Law, §$ 76, 77.

§ 12. COLLECTOR TO RETURN UNPAID TAXES ON DEBTS OWING
TO NON-RESIDENTS OF THE UNITED STATES TO COUNTY
TREASURER; COUNTY TREASURER; TO ISSUE A WAR-
RANT TO SHERIFF TO COLLECT AMOUNT OF TAX.

If it shall appear by the return of any collector that a tax imposed
upon a debt owing to a person residing out of the United States remains
unpaid, the county treasurer shall, after the expiration of twenty days
from such return, issue his warrant to the sheriff of any county in this
state where any debtor of any such non-resident creditor may reside, com-
manding him to make’ of the real and personal property of such non-
resident the amount of such tax, to be specified in a schedule annexed to
the warrant, with his fees and the sum of one dollar for the expense of
issuing such warrant, and to return the warrant to the treasurer issuing
the same, and to pay over to him the money which shall be collected by
virtue thereof, except the sheriff’s fees, by a day therein to be specified
within sixty days from the date thereof. The taxes upon several debts
owing to a non-resident shall be included in one warrant. The taxes upon
several debts owing to different non-residents may be included in the
same warrant, and the sheriff shall be directed to levy the sum specified
in the schedule annexed, upon the real and personal property of the non-
residents, respectively, opposite to whose names, respectively, such sums
shall be written, with fifty cents for the expenses of the warrant. Such
warrant shall be a lien upon and shall bind the real and personal property
of the non-residents against whom issued from the time an actual levy
shall be made upon any property by virtue thereof, and the sheriff to
whom the warrant shall be directed shall proceed upon the same, in all
respects, with like effect, and in the same manner, as prescribed by law
in respect to execution against property issued upon judement rendered
in the supreme court, and shall be entitled to the same fees for his ser-
vices in executing the same, to be collected in the same manner.” [Tax
Law, § 76, as amended by L. 1916, ch. 323; B. C. & G. Cons. L., p.
5893. ]

§ 13. SHERIFF TO RETURN WARRANT FOR COLLECTION OF TAXES
ON DEBTS OWING TO NON-RESIDENTS; NEGLECT TO MAKE
RETURN; PROCEEDINGS IF WARRANT IS RETURNED UN-=
SATISFIED.

If any sheriff shall neglect to return any such warrant as directed

 

11. The use of the word “ make ” in this sentence is apparently an error.
It probably was intended for the word “take.” The same language was used in sec.
6 of L. 1851, ch. 371, and was retained in the revision of 1896.

12. As to assessment of debts owing to non-residents of the United States,
see Tax Law, sec. 31, ante.
COLLECTION OF TAXES. B97

Tax Law, §§ 77, 298.

therein, or to pay over any money collected by him in pursuance thereof,
he shall be proceeded against in the supreme court by attachment in
the same manner, and with like effect, as for a similar neglect in refer-
ence to an execution issued out of the supreme court in a similar action,
and the proceedings therein shall be the same in all respects. If any
such warrant shall be réturned unsatisfied, wholly or partly, the county
treasurer may obtain an order from a judge of the supreme court of the
district, or a county judge of the county, of such treasurer issuing the
warrant, requiring such non-resident or any person having property of
such non-resident or indebted to him, to appear and answer concerning
the property of such nonresident. The same remedies and proceedings
may be had in the name of such county treasurer or comptroller before
the officer granting such order, and with a like effect, as are provided by
law in proceedings against a judgment debtor supplementary to execu-
tion against him, returned wholly or in part unsatisfied. The expenses
of a county treasurer, and such compensation as the board of supervisors
may allow him for his services under this section, and for making and
transmitting to the assessors of the several towns of his county an abstract
or copy of the statements of the agents of non-resident creditors, shall be
a county charge. [Tax Law, § 77, as amended by L. 1916, ch. 323;
B.C. & G. Cons. L., p. 5894. ]

§ 14. APPLICATION TO COUNTY COURT FOR ORDER DIRECTING
SHERIFF TO COLLECT TAX WHEN PERSON HAS REMOVED
FROM COUNTY; CERTIFIED COPY OF ORDER TO BE DE-
LIVERED TO SHERIFF OR CONSTABLE OF COUNTY TO
WHICH PERSON HAS REMOVED.

If it shall satisfactorily appear by affidavit to the county court of any
county that a tax legally levied therein cannot be collected because of the
removal of the person taxed to any other county of the state, such court
shall, upon application of the collector of any tax district or of the county
treasurer of the county, grant an order, directed to the sheriff of the
county where such person may be, to collect the same out of his personal
property with interest at the rate of eight per centum per annum from
the date of said order. Such order shall be filed in the office of the clerk
of the county in which it is granted, and a certified copy thereof delivered
to the constable or sheriff of the county where the person liable for the
tax may be, and such constable or sheriff, on receiving the same shall
execute it, and make a like return, and be entitled to the same fees and
subject to the same liabilities and penalties for neglect as upon execution
from any court of record. The sheriff receiving such moneys shall pay
598 TAXATION.

Tax Law, § 299.

the same to the county treasurer of the county where it was levied, to the
credit of the town in which it was assessed. [Tax Law, § 298, as
amended by L. 1916, ch. 323; B. C. & G. Cons. L., p. 6051.]

§ 15. SUPERVISOR OR COUNTY TREASURER MAY INSTITUTE
SUPPLEMENTARY PROCEEDINGS FOR COLLECTION OF
UNPAID TAXES.

If a tax exceeding ten dollars in amount levied against a person or
corporation is returned by the proper collector uncollected for want of
personal property out of which to collect the same, the supervisor of the
town or ward, or the county treasurer or the president of the village, if it
is a village tax, within one year thereafter, apply to the court for the
institution of proceedings supplementary to execution, as upon a judgment
docketed in such county, for the purpose of collecting such tax and fees,
with interest thereon from the fifteenth day of February after the levy
thereof. Such proceedings may be taken against a corporation, and the
same proceedings may thereupon be had in all respects for the collection
of such tax as for the collection of a judgment by proceedings supplemen-
tary to execution thereon against a natural person, and the same costs and
disbursements may be allowed against the person or corporation examined
as in such supplementary proceedings, but none shall be allowed in his
or its favor.!? The tax, if collected in such proceeding, shall be paid to

 

13. Supplementary proceedings. The proceedings authorized by this section for
the collection of unpaid taxes are the same as those provided for the collection of
a judgment by proceedings supplementary to execution as contained in sections
(73-813 of the Civil Practice Act. Under sec. 777 of the Civil Practice Act corpo-
rations are not subject to supplementary proceedings “except in those actions
or special proceedings brought by or against the people of the state.’ But by the
above provision corporations may be proceeded against in the same manner as a
natural person.

Section applies to a foreign corporation licensed to do business in this state.
Matter of Bruerg (1916), 174 App. Div. 298, 160 N. Y. Supp. 96.

The jurisdiction to issue the order does not rest upon a corporation’s failure to
appear before the assessors, but upon the fact that a tax has been returned by the
collector uncollected for want of personal property out of which to enforce it.
Matter of Maltbie (1917), 179 App. Div. 395, 165 N. Y. Supp. 550.

In general. A dissolution of an order for examination in supplementary pro-
ceedings may be moved for on the ground that the order was improvidently
granted. Bassett v. Wheeler, 84 N. Y. 466.

Upon an appeal from a motion to set aside supplementary proceedings, the
question whether the person proceeded against was a resident will not be viewed
in the court of appeals if the evidence is conflicting. Id.

A payment made as directed in supplementary proceedings,— held a voluntary
one, in an action against the assessors for lack of jurisdiction, the order itself not
authorizing seizure. Drake v. Shurtliff, 24 Hun 422.

The fact of ownership of sufficient personal property out of which the collector
could have taken the tax is not a defense to supplementary proceedings for its
collection. Matter of Hartshorn, 44 N. Y. St. Rep. 16, 17 N. Y. Supp. 567.

The provisions of this section exempting a county treasurer from the
COLLECTION OF TAXES. ‘599
Tax Law, §§ 301, 302.

the county treasurer or to the supervisor of the town, and if a village tax,
to the treasurer of the village. The costs and disbursements collected shall
belong to the party instituting the proceedings, and shall be applied to the
payment of the expense of such proceedings. The president of a village
and a county treasurer shall have no compensation for any such proceeding.
A supervisor shall have no other compensation except his per diem pay for
time necessarily spent in the proceeding.** [Tax Law, § 299; B. C. & G.
Cons. L., p. 6051.]

§ 16. DISMISSAL OF SUITS OR PROCEEDINGS.

Where the person or corporation against whom a proceeding or suit is
brought to collect a personal tax in arrears is unable for want of property
to pay the tax in whole or in part, or where for other reasons upon the
facts as they existed either before or after the assessment was made it
appears to the court just that said tax should not be paid, the court may
dismiss such suit or proceeding absolutely, without costs, or on payment
of such part of the tax as may be just or on payment of costs, and may
direct the cancellation or reduction of the tax.%® [Tax Law, § 301, as
amended by L., 1909, ch. 874; B. C. & G. Cons. L., p. 6052.]

§ 17. CANCELLATION OF PERSONAL TAX VOID FOR WANT OF
JURISDICTION.

If a personal tax, levied against a person or corporation, or the property
of a person or corporation, is void for want of jurisdiction of such person

 

payment of costs do not apply to an unsuccessful appeal by him from an order
dismissing the proceeding. Matter of Pryor, 67 App. Div. 316, 73 N. Y.
Supp. 961.

Sufficiency of application. The application need only allege the facts
stated in the above section and need not allege facts sufficient to show that
the assessors and board of supervisors had jurisdiction to impose the tax
in question. Matter of Conklin, 36 Hun, 588.

When order cannot be vacated. An order under this section directed to the
treasurer of a corporation cannot be vacated on the ground that tax was excessive,
where no objection was presented to assessors; nor for immaterial error in the
warrant. Matter of Adler & Co., 174 N. Y. 287, affg. 76 App. Div. 571, 78 N. Y.
Supp. 690.

14, Punishment for non-payment of tax. Neglect or refusal to pay any tax
she'l not be punishable as a contempt or as misconduct; and no fine shall be imposed
for sxch non-payment nor shall any person be imprisoned or otherwise punishable
on account of non-payment of any tax or of any fine imposed for refusal or neglect
to pay such tax. This section shall not apply to proceedings supplementary to execu-
tion upon judgments recovered for taxes. Tax Law, § 300.

This section is an extension of the supplementary proceeding provided for by
the Code, which is dependent upon a judgment acquired after obtaining jurisdiction
of the person of the judgment debtor. So the proceeding under this section should
be and is dependent upon a tax against a resident tax payer. Matter of Maltbie v.
Lobsitz Milk Co. (1918), 223 N. Y. 227, revg. 179 App. Div. 395, 165 N. Y. Supp. 550.

15. In Oity of New York v. Assurance Co. of America, 129 App. Div. 904,
600 TAXATION.
Tax Law, §§ 78, 79.

or corporation and has been returned by the proper collector uncollectible
for want of personal property out of which to collect the same, the person
or corporation against whom or against whose property the said tax was
levied may then apply to the supreme or county court in the county in
which is located the tax district where said tax was levied, for an order
cancelling the said tax, and upon notice to the president of the village,
county treasurer, supervisor of the town or, in the case of a city, upon notice
to its attorney or to the corporation counsel, and upon satisfactory proof by
affidavit, the court shall make an order directing the cancellation of said
tax from the assessment-roll by the county treasurer, comptroller, or other
officer in whose custody and control the said roll may be.** [Tax Law,
§ 302, as amended by L. 1916, ch. 323, and L. 1918, ch. 530; B.C. & G,
Cons. L., p. 6053.]

§ 18. WHEN TAX IS PAID BY TENANT HE MAY RETAIN AMOUNT
FROM RENTAL.

If a tax upon real property shall have been collected of any occupant
or tenant, and any other person, by agreement or otherwise, ought to
pay such tax, or any part thereof, such occupant or tenant shall be en-
titled to recover, by action, the amount which such person ought to have
paid; or to retain the same from any rent due or accruing from him to
such person for the land so taxed. [Tax Law, § 78; B. C. & G. Cons.
L., p. 5894.] :

§ 19. PAYMENT OF TAXES ON PART OF PROPERTY.

The collector shall receive the tax on personal property, or on part of
any lot, piece or parcel of land charged with taxes, provided the person
paying such tax shall furnish such particular specification of such part,
and in case the tax on the remainder thereof shall remain unpaid the
collector shall enter such specification on his return to the county treas-
urer, clearly showing the part on which the tax remains unpaid, and if
the part on which the tax shall be so paid shall be an undivided share,
the person paying the same shall state to the collector who is the owner
of such share, and the collector shall enter the name of such owner on
his account of arrears of taxes, and such share shall be excepted in case

 

115 N. Y. Supp. 1115, affirming opinion of Bischoff, J., it was held that the statute
was not intended to cover a case in which proceedings to review by certiorari had
not been instituted in time.

This section adequately guards the rights of foreign corporations. Matter of
Maltbie (1917), 179 App. Div. 395, 165 N. Y. Supp. 550, revd. 223 N. Y. 227.

16, A tax on personal estate levied against a non-resident is not a tax against
the person but upon the property within the state, and it cannot be canceled upon
proof that the tax has been found uncollectible for want of personal property. Mat-
ter of Adams, 60 Misc. 333, 113 N. Y. Supp. 293.
COLLECTION OF TAXES. 601

Tax Law, §§ 80, 81, 82.

of a sale for the tax on the remainder. [Tax Law, § 79, as amended
by L. 1916, ch. 323; B. C. & G. Cons. L., p. 5894. ]

§ 20. PAYMENT OF TAXES ON STATE LANDS IN FOREST PRE-
SERVE.

The treasurer of the state, upon the certificate of the comptroller as
to the correct amount of such tax, shall pay the tax levied upon state
lands in the forest preserve, by crediting to the treasurer of the county
in which such lands may be situated, such taxes, upon the amount pay-
able by such county treasurer to the state for state tax. No fees shall
be allowed by the comptroller to the county treasurer for such portion
of the state tax as is so paid. [Tax Law, § 80; B. C. & G. Cons. L.,
p. 5895. ]

§ 21. FEES OF COLLECTOR. :

On all taxes paid within thirty days from the date of notice that he
has received the roll, the collector shall be entitled to receive, if the
aggregate amount shall not exceed two thousand dollars, two per centum,
and otherwise one per centum, in addition thereto. On all taxes col-
lected after the expiration of such period of thirty days, the collector
shall be entitled to receive five per centum in addition thereto. The
collector shall be entitled to receive from the county treasurer two per
centum as fees for all taxes returned to the county treasury as unpaid.
In Suffolk and Herkimer counties no fees shall be paid by the county
treasurer on returned taxes. [Tax Law, § 81, as amended by L. 1909,
ch, 240, L. 1916, ch. 332, and L. 1921, ch. 182.]

§ 22. RETURN BY COLLECTOR OF UNPAID TAXES; CONTENTS OF
RETURN; FORM PRESCRIBED BY TAX COMMISSIONERS.

Each collector shall immediately upon the expiration of his warrant
make and deliver to the county treasurer an account of unpaid taxes,
upon the tax-roll annexed to his warrant, which he shall not have been
able to collect, verified by his affidavit, that the sums mentioned therein
remain unpaid, and that -he has not, upon diligent inquiry, been able
to discover any personal property out of which the same could be col-
lected by levy and sale, and upon the verification of the said account
by the county treasurer he shall be credited by the county treasurer
with the amount of such account.’ In making such return of unpaid

 

17%. For form of affidavit to be attached to a collector’s return of unpaid taxes,
see Form No. 57, post.

The form of the return of the collector is prescribed by the state board of
tax commissioners.

A return by a collector, the affidavit to which has no venue, is a nullity. A
return which does not state that the account is a transcript of the assessment-roll,
nor that the figures were taken from the assessment-roll, nor that the sums claimed
to be due were for the taxes assessed against the property, is insufficient. Where
602 TAXATION.
Tax Law, §§ 82, 83.

taxes, the collector shall add thereto five per centum of the amount thereof1s In
ease such tax is uncollected upon lands assessed to a resident he shall also state
the reason why the same was not collected. In the county of Suffolk such return
shall consist of the tax-roll and warrant together with the affidavit of the collector
known also as the receiver of taxes that the taxes therein appearing, not marked
paid, remain unpaid and that he has not upon diligent inquiry been able to dis-
cover any personal property out of which the same could be collected by levy and
sale, together with a statement of the total amount of such unpaid taxes, and that
he has in an appropriate column in said tax-roll opposite the tax levied upon each
separate parcel, or person therein named or described, inserted five per centum of
the amount of the unpaid tax, and no separate copy or account of such unpaid
taxes shall be made or required of collectors, or receivers in such county. Any
collector who has heretofore failed in making such return of unpaid taxes, may
make such return, whether his term of office has expired or not, verified by his af-
fidavit, to the county treasurer any time within eight years after such failure and
before the lands against which said taxes are assessed are advertised for sale pur-
suant to this chapter, and in case any collector shall heretofore or hereafter fail to
add said five per centum the county treasurer shall add the same. Such return
shall be indorsed upon or attached to said roll, and shall, subject to the provisions
of this section, be in the form to be prescribed by the state tax commission. Such
tax and percentage may be paid to the county treasurer at any time before a re-
turn is made to the comptroller, or in the county of Suffolk such tax, percentage
and interest at the rate of ten per centum per annum computed from the first
day of February after the same was levied may be paid to the county treasurer at
any time before the first day of August succeeding the date of the warrant and
thereafter at any time before the sale of the land for such unpaid tax, upon the
payment of such tax, percentage and interest at the rate of ten per centum per
annum, computed from the first day of February after the same was levied and
the cost of advertising the land for sale for such unpaid taxes as apportioned
by the county treasurer among the several parcels liable to be sold. The county
treasurer in counties in which lands are sold by him for the nonpayment of taxes,
is hereby authorized to incur and pay for such expenses as he may deem necessary
for the examination of collector’s returns and descriptions of property to be sold
pursuant to this chapter, and the procurement of proper collector’s returns and the
examinations and procurement of matters and facts as he may deem necessary to
make a valid tax sale hereunder, but such expense shall not exceed the amount of
the five per centum added as aforesaid. [Tax Law, § 82, as amended by L. 1916,
chs. 323, 332, and L. 1917, ch. 39; B. C. & G. Cons. L., p. 5859.]

§ 33. STAY BY INJUNCTION OR OTHERWISE OF. COLLECTION OF
TAXES, TO OPERATE AS AN EXTENSION OF TIME FOR
MAKING RETURN OF TAXES AFFECTED.

Any stay, lawfully granted by any court of record by injunction or other order or
proceeding, of the collection of any tax existing at the expiration of the period for
the collection of the tax under any warrant or process in the hands of the collector
or other officer for the collection thereof, or existing at the time of the expiration
of the term of office of the collector or officer holding such warrant, shall operate
as an extension of the time within which such collector or other officer may collect

there was nothing in the return of the collector or in the return of the county
treasurer showing that the taxes unpaid were assessed upon non-resident lands, they
oe not lay a foundation for a sale by the comptroller. Thompson v. Burhans, 61

» Y¥. 52.

Sufficient statement. A collector of taxes sufficiently states the reason why the
tax was not collected where he states that he has not been able with diligent in-
quiry to discover any personal property out of which the tax could be collected
by levy and sale. Smith v. Russell (1916), 172 App. Div. 793, 159 N. Y. Supp. 169.

18. The addition of five per cent. to the amount of unpaid taxes by the collector
in making his return of unpaid taxes on nonresident lands is no error; the section
applies to nonresident as well as other lands. Coleman v. Shattuck, 62 N. Y. 348.
It was also held in this case that it was immaterial whether the percentage was
made a separate item or added to the tax and the sum total returned.
COLLECTION OF TAXES. 603
Tax Law, § 84.

such tax until such stay is terminated and for the period of thirty days thereafter.
As to all other taxes to be collected under any such warrant or process the col-
lector or officer holding the warrant or process shall make a return thereof within
the time prescribed by law. [Tax Law, § 83; B. C. & G. Cons. L., p. 5896.]

§ 24, PAYMENT BY COLLECTOR OF TAXES COLLECTED; OFFICERS
TO GIVE COLLECTOR DUPLICATE RECEIPTS; RECEIPTS
TO BE FILED.

Every collector shall, within one week after the time prescribed in his
warrant for the payment of the moneys directed therein to be paid, pay
to the officers and persons specified therein, the sums required in such
warrant to be paid to them respectively.® The officers and persons other
than the county treasurer, to whom any such money shall be paid, shall
deliver to the collector duplicate receipts therefor, one of which duplicates
shall be filed by the collector with the county treasurer and shall entitle
him to a credit in the books of the county treasurer for the amount therein
stated to have been received, and no other evidence of such payment
shall be received by the county treasurer. If any greater amount of taxes
shall be levied in any town than the town charges thereof, and its pro-
portionate share of the state taxes and county charges, the surplus shall
be paid by the collector to the county treasurer, who shall place it to the
eredit of such town, and it shall go to the reduction of the tax upon the
éown for the succeeding year. [Tax Law, § 84; B. C. & G. Cons. L., p.
5897. ]

:

19. Payments by collector. The collector cannot pay claims against the
county and credit himself with the amount thereof. Matter of Boyce, 2 Cow.
444, The statute requires that the warrant should direct the payments
to be made to the commissioner of highways of such moneys as are raised
for highway purposes, and to the overseer of the poor such as are raised
for the support of the poor. Notwithstanding the warrant directs a payment
to be made contrary to the provisions of the statute, the collector must
pay the money raised for such purposes to the highway commissioner
and to the overseer of the poor respectively. People v Pennock, 60 N. Y.
421. Section 104 of the Highway Law makes the supervisor the custodian of
highway moneys, and directs all such moneys to be paid to him.

The presumption is that taxes received by the collector are paid over to
persons to whom they are directed to be paid by law. Bank of Commonwealth
v. Mayor, 43 N. Y. 184.

Moneys collected under L. 1874, ch. 296, appropriating the amount of county
taxes on a railroad to the payment of bonds,—held, that the taxes should
be paid to the railroad commissionevs direct ard not to the county treasurer.
Bridges v. Supervisors of Sullivan, 92 N. Y. 570.

Duties of supervisor. Under section 98 of the Town Law, ante, the super-
visor of each town is to receive and pay over all moneys raised therein for
defraying town charges, except those raised for the support of highways and
bridges, and of the poor.
604 TAXATION.
Tax Law, §§ 303-305.

§ 25. COLLECTOR FAILING TO MAKE PAYMENTS; COUNTY COURT
TO ORDER SHERIFF TO LEVY ON PROPERTY OF COLLEC-
TOR; RETURN OF SHERIFF.

If any collector shall neglect or refuse to pay over the moneys collected
by him, to any of the persons to whom he is required to pay the same by
his warrant, or to account for the same as unpaid, the County Court, on
proof of such fact by affidavit, on application of the county treasurer, shall
make an order directed to the sheriff of the county, commanding him tc.
levy such sum as shall remain unpaid by such collector out of his property,
personal and real, and pay the same to the county treasurer, within sixty
days from the date of such order. The sheriff shall cause the same to be
executed, and pay to the county treasurer the money levied by virtue
thereof, deducting for his fees the same compensation that the collector
would have been entitled to retain. If the whole sum due from the collec-
_tor, or if a part only, or if no part thereof, shall be collected, the sheriff
shall state the fact in his return, which shall be made as in case of an
execution, and the county treasurer shall give notice to the supervisor of
the town, city or division thereof, of any amount which may remain due
from such collector. If the sheriff shall neglect to execute the order, or to
pay over the money collected thereon, within the time limited thereby, he
shall be liable therefor as in case of an execution, and the county treasurer
shall immediately prosecute such sheriff and his sureties for the sum
due from him, which sum when collected shall be paid into the county
treasury. [Tax Law, § 303; B. C. & G. Cons. L., p. 6053.]

§ 26. COUNTY TREASURER TO MAKE PAYMENTS TO PROPER
OFFICERS OUT OF MONEYS COLLECTED.

The county treasurer shall pay over the moneys received from the sheriff
upon such order in the manner directed by the warrant to the collector.
If the whole amount of moneys due from the collector shall not be col-
lected on such warrant, or otherwise, the county treasurer shall first retain
the amount which ought to have been paid to him before making any
payment to the town officers. [Tax Law, § 304; B. C. & G. Cons. L., p.
6054.]

§ 27. SUPERVISORS TO PROSECUTE COLLECTOR’S UNDERTAK-
ING FOR DEFICIENCY.

If it appears that the whole or any part of the moneys due from the

 

20. A warrant issued by the county treasurer against a delinquent town
collector after the time specified in the statute is valid, since the provision is
merely directory. J-ooney v. Hughes, 26 N. Y. 514.
COLLECTION OF TAXES. 605

Tax Law, §§ 305, 85.

collector has not been thus collected, the county treasurer shall forthwith
give notice to the supervisor of the town or ward of the amount still due
from such collector. The supervisor shall forthwith cause the under-
taking of the collector to be prosecuted, and shall be entitled to recover
thereon the sum due from the collector with costs of the action. The
moneys received shall be applied and paid by the supervisor in the same
manner as they should have been by the collector. [Tax Law, § 305;
B. C. & G. Cons. L., p. 6054. ]

§ 28. COUNTY TREASURER MAY EXTEND TIME FOR COLLECTION
OF TAXES; NEW BOND OF COLLECTOR.

The county treasurer, upon application of the supervisor of any town
or common council of any city in his county, may extend the time for.
collection of taxes remaining unpaid to a day not later than April first,
following, in case the collector shall pay over all moneys collected by
him, and renew his bond in a penalty twice the amount of the taxes re-
maining uncollected, approved by the proper officer upon filing the same,
as the original bond is required to be filed, and delivering a certified copy
thereof to such treasurer. Collectors and receivers of taxes who have
filed a bond as required by statute, shall not be required to renew their
bonds. This section shall not affect any special law relating to the
extension of time for the collection of taxes, nor be construed to extend
the time for the payment of the state tax by the county treasurer, as
required by this chapter.* [Tax Law, § 85, as amended by L. 1910,
ch, 332, and L, 1916, ch. 323; B. C. & G. Cons. L., p. 5897. ]

 

Provision does not apply to city or village collectors unless specially so
provided. Village of Warren v. Phillips, 30 Barb. 646.

21. Provision of County Law, applicable to extensions. The following
section of the County Law (sec. 150) covers the same ground as the above
section of the Tax Law. The Tax Law is a later enactment and will control
if inconsistent with the provisions of such section of the County Law:
“The county treasurer may extend the time for the collection of taxes in
any town or ward, but no extension shall be permitted until the collector of
taxes of the town, city or ward in which such extension shall’ be asked shall
pay over to the county treasurer all the taxes collected by him, and renew:
his undertaking as the supervisor of his town shall approve, and furnish
evidence by his oath, and other competent testimony, if any, as such treasurer
shall require, that he has been unable, for cause stated, to collect all the
taxes within the time required by his warrant; but such extension shall not
in any case be made beyond the first day of April in any year, unless ninety
per cent. of such taxes shall have been collected and paid over to him.”
(County Law, sec. 150.) ‘

For form of application of supervisor for extension of time for collection
606 TAXATION.
Tax Law, §§ 86, 87.

§ 29. FILLING VACANCY IN OFFICE OF COLLECTOR; NOTICE OF
APPOINTMENT TO COUNTY TREASURER; WARRANT TO
BE DELIVERED TO NEW COLLECTOR.

If a person chosen to the office of collector of a town shall refuse to
serve or be disabled from entering upon or completing the duties of his
office from any cause, the town board shall forthwith appoint a collector
for the remainder of the year, who shall give the same undertaking, be
subject to the same duties and penalties and have the same powers and
compensation as the collector in whose place he was appointed.” The
supervisor of the town shall forthwith give notice of such appointment
to the county treasurer. Such appointment shall not exonerate the
former collector or his sureties from any liability incurred by him or
them. Ifa warrant shall have been issued by the board of supervisors
before the appointment of a collector to fill a vacancy or before the
appointment of a collector under this section, the original warrant, if
obtainable, shall be delivered to the collector so appointed and shall
give him the same powers as if originally issued to him. If such war-
rant is not obtainable, a new one shall be issued by the chairman and
clerk of the board of supervisors of the county, directed to the collector
appointed, with the same force and effect as if originally issued to him.
Upon any such appointment, the supervisor of the town, if he shall
deem it necessary, may extend the time limited for the collection of
taxes, for a period not exceeding thirty days, and forthwith give notice
of such extension to the county treasurer. [Tax Law, § 86, as amended
by L. 1916, ch. 323; B. C. & G. Cons. L., p. 5898.]

§ 30. SHERIFF TO COLLECT TAXES IN CASE OF COLLECTOR’S
FAILURE TO EXECUTE BOND, UNLESS VACANCY BE
FILLED; DUTIES OF SHERIFF THEREUNDER.

If the collector of any tax district in the state sha!l neglect or refuse
to execute an official bond or undertaking as required by law, or the
supervisor of the town shall refuse or neglect to approve and file the same,
within the time prescribed by law, and a new collector shall not have been
appointed within ten days after the time when such bond or undertaking
should have been filed, the board of supervisors shall deliver the tax-roll

 

of taxes, see Form No. 58, post. For form of order of treasurer granting
extension, see Form No. 59, post.

Vacancies are created in the manner prescribed by section 30 of the
Public Cfficers Law, ante.

As to filling vacancies generally in town offices, see section 130 of the Town
Law, ante. .

For provisions respecting collector’s undertaking, see sections 114 and 115
of the Town Law and notes thereunder, ante.
COLLECTION OF TAXES. 607

Tax Law, § 88.

or a copy thereof with the warrant annexed, to the sheriff, who shall give
a like, undertaking as is required from the collector, and who shall
then proceed with the collection of the taxes levied therein in like manner
as collectors are authorized by law to do, and with like powers and subject
to the same duties and obligations, Every such warrant shall require all
payments therein specified to be made by the sheriff within sixty days
after the receipt of the warrant by him. The expense of the collection of
such taxes by him, if any, over and above the fees lawfully chargeable by
the collector, shall be audited by the board of supervisors and shall be
a charge upon the town. [Tax Law, § 87; B. C. & G. Cons. L., p. 5898.]

§ 31. COLLECTOR’S BOND, SATISFACTION OF, BY COUNTY TREAS-
URER; FORM OF SATISFACTION; FILING THEREOF.

Upon the settlement of the account of taxes directed to be collected
by a collector in any town or city, except in the city of New York, the
county treasurer shall, if requested, and if the collector shall have fully
paid or duly accounted for all the taxes which he was by law to collect,
give to such collector or any of his sureties, a written certificate of such
settlement, duly acknowledged, and upon the filing thereof in the office
of the clerk where the undertaking is recorded, the clerk shall enter
satisfaction of such undertaking which shall thereby be discharged,?? ex-
cept that in counties containing cities of the first class such satisfaction
when so entered shall only discharge the lien of said bond or undertaking
upon the real estate of the collector and his sureties, but the liability of
the collector. and his sureties upon such bond or undertaking for a failure
upon the part of such collector to pay over moneys collected by him shall be
in no wise impaired. [Tax Law, § 88; B. C. & G. Cons. L., p. 5899.]

 

22. Satisfaction of collector’s undertaking. By section 115 of the Town
Law, ante, p. 308, the undertaking of a collector must be filed by the super-
visor in the office of the county clerk, and it is to be entered in a book
provided for that purpose in the same manner as judgments are entered of
record; and every such undertaking is a lien on the real estate of the col-
lector and his sureties until it is satisfied. The certificate of the county clerk
that the taxes collected by the collector have been fully paid over or duly
accounted for constitutes, when filed in the office of the county clerk, a
satisfaction of the undertaking of the collector.

How collector can be released. There are but two ways in which a col-
lector receiving a valid warrant can be released. 1. By paying the proper
officer the gross sum he is required to collect; 2. By returning warrant with
an itemized account of unpaid taxes duly verified. The alleged loss of the
assessment-roll will not excuse him. Village of Olean v. King, 5 N. Y. St
Rep. 169, affd. 116 N. Y. 355.
608 TAXATION.
Tax Law, §} 88-a, 89.

§ 3l-a. REASSESSMENT OF TAXES LEVIED ON IMPERFECTLY DE-
SCRIBED REAL PROPERTY.

The county treasurer of any county from which accounts of unpaid taxes are not
returned to the comptroller shall examine the accounts of arrears of taxes received
from the collector of each tax district and shall reject all taxes charged on real
property deemed to be so imperfectly described or erroneously assessed, in form or
substance, that the collection of the same by the sale of such real property cannot
be enforced, and shall, on or before May first, deliver a transcript thereof to the
supervisor of the tax district in which the real property on which taxes have been
so rejected shall be located. Such supervisor shall, if in his power, within thirty
days thereafter, cause an accurate description of such real property to be made and
returned to such treasurer, with the correct amount of taxes thereon, each kind of
tax being stated separately, and if necessary, he may cause a survey and map of
any of such real property to be made, and the expense of such survey and map on or
for each lot or parcel shall be returned to such treasurer and be a legal charge upon
such real property and be collected with the taxes thereon. A statement of the
taxes on real property in each tax district remaining so rejected on the first day of
July, including the amount of taxes, fees and interest thereon, shall be forwarded
by the treasurer to the supervisor of the tax district in which such real property
was assessed, and such supervisor shall, prior to the first day of the annual meet-
ing of the board of supervisors in such county, add to the assessment-roll of the
tax district in which the real property is situated, for the then current year, an
accurate description of such real property, the correct amount of taxes thereon,
the tax of each year and kind of tax separately, stating that it is a reassessment,
and charge the same therewith. The board of supervisors shall direct the collec-
tion of such taxes so added to the assessment-roll, and they,shall be considered the
taxes of the year in which the description shall be perfected. If such tax be not
levied upon such real property as herein required, the board of supervisors shall
cause the same with interest thereon at the rate of ten per centum per annum, to
be levied upon the tax district in which originally assessed and collected with the
other taxes of the same year. [Tax Law, § 88-a, as added by L. 1913, ch. 666, and
amended by L. 1916, ch. 323.]

§ 32. REASSESSMENT OF UNPAID TAXES ON RESIDENT REAL
PROPERTY; SUPERVISOR TO INCLUDE IN TAX-ROLL;
RATE OF INTEREST ON UNPAID TAXES; TO BE REGARDED
AS NON-RESIDENT THEREAFTER.

When the tax on any real property, not assessed as nonresident, is returned as
unpaid and so remains, the county treasurer siall, unless such tax shall have been
rejected as provided by section eighty-eight-a, immediately deliver a transcript
thereof to the supervisor of the tax district in which such tax was assessed. Such
supervisor shall, if in his power, within thirty days thereafter, cause an accurate
description of such real property to be made and returned to said treasurer, witl.
the correct amount of taxes thereon, each kind of tax being stated separately, and
if necessary, he may cause a survey and map of any of said real property to be made,
and the expense of such survey and map on or for each lot or parcel shall be r:-
turned to said treasurer, and be a legal charge upon such real property and be col-
lected with the taxes thereon. The amount of such tax shall bear interest at the
rate of ten per centum per annum from the first day of February until paid, or
until the sale of such property to satisfy such tax by the county treasurer, or if the
property is located in a county embracing a portion of the forest preserve until the
return of such unpaid tax to the comptroller. And such real property and the tax
thereon shall be regarded for all purposes of assessment, collection and sale as
nonresident, and subject to all the provisions of the tax law in relation to non-
resident real property and nonresident taxes.28 [Tax Law, § 89, as amended by
L. 1913, ch. 666, and L. 1916, chs. 323, 332; B. C. & G. Cons. L., p. 5899.]

 

23. Sale for unpaid taxes. Where taxes on resident real property were re-
turned as unpaid, an assessment must first be made against the land as such in
the part of the assessment-roll relating to non-resident lands before a sale for such
unpaid taxes can be made. People ex rel. McGuinness v. Lewis, 127 App. Div. 107,
111 N. Y. Supp. 398.

Tax on resident real property returned by the collector as unpaid should be trans-
mitted to the comptroller without reassessment (since the amendment of this sec-
tion in 1902). Rept. of Atty. Genl., June 1, 1911.
COLLECTION OF TAXES. 609
Tax Law, §§ 90, 91.

§ 33. COUNTY TREASURER TO PAY MONEY TO CREDITORS OF COUNTY.

Each county treasurer shall pay to the creditors of the county from the moneys
paid to him by the collectors of taxes of the several towns therein, such sums and in
such manner as the board of supervisors of the county direct. [Tax Law, § 90;
B.C. & G. Cons. L., 2d Ed., p. 8402.]

§ 34. COUNTY TREASURER TO BE CHARGED WITH AMOUNT OF STATE
TAX; WHEN STATE TAX IS TO BE PAID OVER; COUNTY
TREASURER MAY BORROW MONEY FOR PAYMENT OF STATE
TAX; INTEREST ON AMOUNT WITHHELD.”

The comptroller shall charge each county treasurer with the amount of the state
tax levied on his county, crediting him with his fees, if any, but no fees shall be
allowed by the comptroller for such portion of the state tax as is credited by him
for unpaid non-resident taxes. The county treasurer of each county shall, after
retaining his fees thereon, at the rate of one per centum thereof, which shall not,
however, in any case exceed fifteen hundred dollars, for all taxes for state purposes,
pay the state tax to the treasurer of the state, as follows: One-third of the state
tax on or before the fifteenth day of February, one-third thereof on or before the
fifteenth day of April, the balance thereof on or before the fifteenth day of May,
in each year, and notify the comptroller of such payments.25 If there are not suffi-
cient funds in the county treasury standing to the credit of any tax district to pay
the state tax chargeable thereto, the treasurer shall borrow sufficient money upon the
credit of the county and charge the same against such tax district, with interest there-
on until the same is paid.2¢ If any county treasurer shall not pay over the state tax

 

24. References. This section probably supersedes sub. 5 of sec. 142 of
the County Law (see ante), which authorizes the county. treasurer to pay
over one-half of the state tax on or before April 15th, and the other half
on or before May 15th.

25. Manner of payment. Any mode which brings the money into the state
treasurer’s hands is lawful. The county treasurer is not confined to the
methods indicated by the statute. Phelps v. People, 72 N. Y. 334.

Liability of county for uncollected state taxes. Under the system of
taxation in force in this state, the state deals not with individuals, but with
counties as representing divisions or areas of taxation. The share or quota
of each county is charged against it, and it is for each county to make up
any deficiency in the collections, save that the counties outside of New York
are credited for uncollected taxes on non-resident lands. Mayor, etc., of New
York v. Davenport, 92 N. Y. 604. See, also, Wood v. Supervisors, 50 Hun 1,
2.N. Y. Supp. 369.

But a county’s proportion of the state tax is payable by the county
treasurer. In case of his failure or neglect to pay to the state the tax due,
or to render an account thereof to the comptroller, it is not until the remedies
against him and against his bondsmen have been exhausted and the loss
by reason of that default has been thus ascertained, that the county is
required to act or any duty is attached to it. National Bank of Ballston
Spa v. Board of Supervisors, 106 N. Y. 488; 138 N. B. 439.

26. Liability of county for money borrowed. A county treasurer can only
610 TAXATION.
Tax Law, § 92.

as herein directed, the comptroller shall charge on all sums withheld such
rate of interest as shall be sufficient to repay all expenditures incurred
by the state in borrowing money equivalent to the amount so withheld, and
such additional rate as he shall deem proper, not exceeding ten per centum,
from the dates hereinbefore provided for such payments in each year,
which shall be regarded as funds in the hands of the county treasurer be-
longing to the state and for which his sureties and county shall be liable.

This section, as amended, shall be deemed to supersede any other pro-
vision of this chapter or of any other general or special law inconsistent
therewith.2* [Tax Law, § 91, as amended by L. 1919, cha. 55, 249, and L.
1922. ch. 428.]

§ 35. STATE COMPTROLLER TO STATE ACCOUNTS WITH COUNTY
TREASURER; TO INSTITUTE PROCEEDINGS AGAINST
COUNTY TREASURER FOR FAILURE TO PAY OVER.

The comptroller shall state annually on June first, the account of each
county treasurer, and if any part of the state tax is unpaid at that date,
the comptroller shall transmit by mail to the county treasurer a copy
of such accounts and requisition that he must pay tne balance due the
state within thirty days, and if the tax is not paid within such time, the
comptroller shall, unless he is satisfied by due proof that the treasurer
has not received such balance, and has used due diligence in collecting the
same, forthwith deliver a copy of the account to the attorney-general, who
shall take the necessary proceedings to collect the same of the county
treasurer or his sureties or otherwise, with interest as provided by the
last preceding section. The comptroller may also, in his discretion, direct
the board of supervisors of the county to institute the necessary proceedings
on the undertaking of such county treasurer and sureties. The comp-
troller shall also transmit to the board of supervisors on or before October
tenth, a statement of account between his office and the county treasurer.
[Tax Law, § 92; B. C. & G. Cons. L., p. 5902.]

 

borrow money upon the credit of the county to the extent of the deficiency appearing
in the county treasury against the several towns of the county. An amount bor-
rowed in excess of this deficiency is upon the responsibility of the county tri asurer
alone, the county cannot be held liable therefor. Hathaway v. County of Delaware,
103 App. Div. 179, 93 N. Y. Supp. 436, modf. 185 N. Y. 368.

Interest chargeable to county for failure to pay. People v. Fitch, 89 Hun,
310, 35 N. Y. Supp. 191, modf. 148 N. Y. 71; People v. Myers, 66 Hun, 167, 21 N. Y.
Supp. 79, ald. 138 N. Y. 590

27. Fees provided by this section may be retained by the county treasurers
in addition to their salari.s. Rpt. of Atty Genl. (1900) 204. In allowing f es
to a county treasurer the comptroller shuuld deduct from the total state tax received,
the portion of the state tax credited for all ncn-resident taxes and also the portion
of the state tax which is credited for the amount of taxes levied against the state
upon forest preserve lands. Rept. of Atty. Genl., 1912, vol. 2, p. 439.
COLLECTION OF TAXES. 611
Tax Law, §§ 93, 94.

§ 36. LOSSES BY DEFAULT OF COLLECTOR OR TREASURER, HOW
BORNE.

All losses sustained, and all deficiences in any taxes, or in the payments
to be made therefrom, by reason of the default of any collector, shall be
chargeable to the town, or city, of which he is collector. If occasioned
by the default of the treasurer of any county in the discharge of his official
duties, such losses shell be chargeable to such county. Any judgment '
against such treasurer for any such loss or deficiency on account of the
state tax upon which an execution shall. have been issued and returned
unsatisfied shall be conclusive as to the tact of such loss or deficiency,
and the amount of such deficiency shall thereupon become a charge against
such county, and the board of supervisors thereof shall add all such losses
or deficiencies to the next year’s taxes of such town, city or county, and
levy the same thereon.** [Tax Law, § 93; B. C. & G. Cons. L, p. 5902.]

§ 37. COLLECTOR TO GIVE RECEIPTS TO EACH PERSON PAYING
A TAX; FORM OF RECEIPTS; TO BE PROVIIED BY BOARD
OF SUPERVISORS.

Every collector of taxes shall deliver, or upon request forward by
mail, a receipt wholly written with ink or partly printed and filled out
with ink to each person paying a tax, specifying the date of such pay-
nent, the name of such person, the description of the property as shown
on the assessment-roll, the name of the person to whom the same is
assessed, the amount of such tax, and the date of the delivery to him of
ihe assessment-roll on account of which such tax was paid. For the
purpose of giving such receipt, each collector shall have a book of blank
receipts, so arranged that when a receipt is toru therefrom a correspond-
ing copy or stub will remain. The tax commission shall prescribe the
form of such receipts, stubs and books and they shall be furnished to
the town collector by the board of supervisors, at the expense of the
county; to the city collector by the common council, at the expense of
the city; to the village collector by the village trustees at the expense of
the village; to the school collector by the trustee or trustees at the
expense of the school district. The expense of mailing receipts shall be
a proper charge against the city, town, village or school district. At

 

28. Liability of county. County is surety, but is not called upon to act until
state has exhausted its remedy against the treasurer and his sureties. Wood v.
Supervisors of Monroe, 50 Hun, 1, 2 N. Y. Supp. 369, The treasurer’s duties have
the nature of an agency. Denton v. Merrill, 43 Hun, 224, affd. 118 N. Y. 187; Super-
visors v. Otis, 62 Id. 88. It is the losses which are to be charged to the county, not
the amount of tax authorized to be levied on the taxable property of the county.
Bank v. Supervisors, 106 Id. 488; Bridges v. Supervisors, 92 Id. 571. The share
or quota of each county is charged against it, and it must make up any deficiency
in the collections. Mayor, etc., of New York v. Davenport, 92 Id. 604.
612 TAXATION.
Penal Law, § 1870.

the time of giving such a receipt the collector shall make the same entries
on the corresponding copy or stub as are required to be made on the
receipt. Such book shall be subject to public inspection and shall be
filed by the collector with his return, together with the assessment-roll
in the office of the county treasurer, or such officer or board to which sucb
collector makes his return. [Tax Law, § 94, as amended by L. 1911,
ch. 579, and L. 1914, ch. 483, and renumbered § 70b, and amended by
L. 1916, ch. 323; B. C. & G. Cons, L., p. 5903.]

§ 38. OBSTRUCTING OFFICER IN COLLECTING TAXES.

A person who wilfully obstructs or hinders a public officer from
collecting any revenue, taxes or other sum of money in which, or in any
part of which the people of this state are directly or indirectly inter-
ested, and which such officer is by law empowered to collect, is guilty
of a misdemeanor. [Penal Law, § 1870; B. C. & G. Cons. L., p. 4052. ]
SALES BY COUNTY TREASURER FOR UNPAID TAXES. 613

Explanatory note.

CHAPTER XXXIX.

SALES BY COUNTY TREASURER FOR UNPAID TAXES AND REDEMP.
TION OF LANDS SOLD.

EXPLANATORY NOTE.

Sales by County Treasurer.

In counties embracing any portion of the forest preserve, the county
treasurer certifies as to the correctness of collectors’ returns of unpaid
taxes and transmits the same to the state comptroller. The lands upon
which such taxes were assessed are then sold by the state comptroller.
In all other counties, and also in St. Lawrence, Essex, Franklin, Fulton,
Hamilton, Lewis, Clinton, Warren, Washington and Oneida Counties,
lands, upon which unpaid taxes are assessed and returned, are sold by the
county treasurer as provided in this chapter.

Section 1. Assessment-roll to be returned by collector to county treasurer;
county treasurer to transmit accounts, etc., if his county em-
braces a part of the forest preserve.

2. Sale of lands by county treasurer for unpaid taxes in counties
embracing no portion of the forest preserve.

3. List of property to be sold and notice of a sale to be published; sale.

3a. New certificate upon setting aside sale.

4. Owner may redeem within one year.
5. Redemption of real property stricken from tax rolls.

6. Conveyance by county treasurer, if real property sold be not
redeemed.

%. Effect of conveyance.

8. Purchase money, when to be refunded by boards of supervisors.

9. County treasurer to transmit to comptroller list of lands to be
sold; sale of lands owned by the state or upon which it has a
lien.

10. Provisions relative to comptroller to apply to treasurer.

11. Expense of publishing notice to redeem.

§ 1. ASSESSMENT-ROLL TO BE RETURNED BY COLLECTOR TO
COUNTY TREASURER; COUNTY TREASURER TO TRANSMIT
ACCOUNTS, ETC., IF HIS COUNTY EMBRACES A PART OF
THE FOREST PRESERVE.

The collector shall return the original assessment-roll to the county
Git TAXATION,
Tax Law, § 150.

treasurer, and when the treasurer finds an account of unpaid taxes on real property
or unpaid taxes on corporations, received from a collector to be a true transcript
of such original assessment-roll to which the collector’s warrant is attached with the
descriptions furnished by the supervisor as provided in section eighty-nine, he shall
add to it a certificate that he has examined and compared the account with such roll
and found it to be correct, and after crediting the collector with the amount thereof,
he shall, except in Saint Lawrence, Essex, Franklin, Fulton, Hamilton, Lewis, Clinton,
Warren, Washington and Oneida counties, in case his county embraces a portion of
the forest preserve, before the first day of May next ensuing, transmit such account,
affidavit and certificate to the comptroller who may, before acting thereon, return any
such account to the county treasurer for correction, who shall make such correction
and return to the comptroller in one month thereafter or as the comptroller may
otherwise direct.*_ [Tax Law, § 100, as amended by L. 1918, chs. 377, 642, L, 1915, ch.
328, L. 1918, ch. 159, and L. 1922, ch. 602.]

§ 2. SALE OF LANDS BY COUNTY TREASURER FOR UNPAID TAXES IN
COUNTIES EMBRACING NO PORTION OF THE FOREST PRESERVE,

Whenever any tax charged on real estate, in the counties of Saint Lawrence, Essex,
Franklin, Fulton, Hamilton, Lewis, Clinton, Warren, Washington and Oneida, or in a
county not including a portion of the forest preserve, is returned to the county
treasurer, he shall not return the same to the comptroller, but if such tax, with
interest thereon at the rate of ten per centum per annum, computed from the first
day of February, after the same is levied, shall remain unpaid for six months from
that date, such county treasurer shall advertise and sell such real estate as herein
provided for the payment of such tax and interest and the expenses of such sale,
‘The expense of publication of the notice of sale and the list of lands to be sold and
the expense of conducting the sale, and the expense of publication of the notice of
unredeemed lands, if thereafter redeemed, shall be a charge on the land liable to
be sold and shall be added to the tax and interest. The county treasurers of the
counties of Rockland and Suffolk may defer the sale of any parcel of nonresident
real estate in their respective counties for unpaid taxes, until the unpaid taxes
thereon with accrued interest shall amount in the aggregate to the sum of two
dollars.1a The county treasurer of Suffolk county on the order of the board of super-
visors of said county may defer for not exceeding two years from the date of the
levy of the tax, the sale for unpaid taxes of such properties subject thereto as
such board may specify, and the unpaid taxes on such parcels shall meantime

 

1, Application of the provision requiring a certificate of the county treasurer to
the effect that he has compared the account of unpaid taxes with the assessment
roll and found it to be correct, relates only to proceedings to sell by the State
Comptroller and has no application to a sale by the county treasurer. Smith v.
Russell (1916), 172 App. Div. 798, 159 N. Y. Supp. 169.

1a, Delay in selling land for unpaid taxes. An unexplained delay of thirteen
months by county treasurer in selling real estate for unpaid taxes is unreasonable;
a delay of one month, cannot, however, be said to be unreasonable. The question as
to what constitutes a reasonable time will be determined by the circumstances of
each case. People ex rel. Carman v. Lewis, 102 App. Div. 408, 92 N. Y. Supp. 642.

Purchase of land at tax sale by county. Where land offered for sale at a tax sale
is bought in by the county because of the failure of other parties to bid for it,
the same payments are to be made by the county that would have been required of
an individual; for instance, the county must pay a pronortionate share of the
expenses of sale, including the expense of publishing the notice of sale, and charge
the same pro rata on the real property sold. Armstrong v. County of Nassau. 101
App. Div. 116, 91 N. Y. Supp, 867.

Collection of taxes in Suffolk county. Chapter 620 of the Laws of 1873, as
amended by ch. 80 of Laws of 1875, which is a special statute governing the col-
lection of taxes in Suffolk county, has not been specifically or impliedly repealed
or superseded, and is still in force. Welstead v. Jennings, 104 App, Div. 179, 93
N. Y. Supp. 339, affd. 185 N. Y. 588.
SALES BY COUNTY TREASURER FOR UNPAID TAXES. 615
Tax Law, § 151.

be charged with interest at the rate of ten per centum per annum.Jb [Tax
Law, § 150, as amended by L. 1913, chs. 377, 642, L. 1914, ch. 417, L. 1915, ch. 328,
L. 1918, ch. 159, and L. 1922, ch. 602.]

§3. LIST OF PROPERTY TO BE SOLD AND NOTICE OF A SALE TO BE
PUBLISHED; SALE.

The county treasurer shall immediately after the expiration of such six months
cause to be published at least once in each week for six weeks, in two newspapers
designated for the publication of the session laws, a list of real estate so liable to be
sold, together with a notice that such real estate will, on a day at the expiration of
said six weeks specified in such notice, and the succeeding days, be sold at public
auction at the courthouse in the county where the same is situated, to discharge the
taxes, interest and expenses that may be due thereon, at the time of such sale.?
Such list shall contain the name of the owner or occupant of each piece of real estate
to be sold, as the same appears upon the assessment-roll of the year in which unpaid
taxes were assessed, a brief description of such real estate, and the total amount of
such unpaid taxes for the year advertised, which said total amount shall incluie all
taxes, interest, expenses and other charges against the property for the year adver-
tised. The comptroller may prescribe the form and manner of preparing such list,
which when so prescribed shall be followed so far as possible by the several counties
of the state. No such list shall be published until the same shall have been sub-
mitted to and approved by the state comptroller. On the days mentioned in such
notice the county treasurer shall begin the sale of said real estate and continue the
same from day to day. The charges for publishing such notice shall be seventy-five
cents per folio for the first insertion, and fifty cents per folio for each subsequent
insertion. The counties of Essex, Saint Lawrence, Franklin, Fulton, Hamilton, Lewis,
Clinton, Warren, Washington and Oneida, and the counties of the state other than
those in the forest preserve are empowered to acquire and hold such lands. Within
twenty days after the time for redemption has expired the county treasurer of each
of the counties of Essex, Saint Lawrence, Franklin, Fulton, Hamilton, Lewis, Clinton,
Warren, Washington and Oneida shall file with the comptroller a certified statement

 

1b. L. 1902, ch. 559 relating to taxes in Oneida County was not repealed by

the General Tax Law, enacted in 1909. Budd v, Franco (1920), 194 App. Div.
808, 185. N. Y. Supp. 797.
_ 2, Publication of notice. It is not required that the notice be in the body of
the newspaper and not in the supplement, as in the case of sales by the comptroller
(§ 120), and therefore it is not essential that the publication shall be in any par-
ticular part of the newspaper, Morton v. Horton, 189 N. Y. 398, revg. 101 App.
Div, 322, 91 N. Y¥. Supp. 950.

In order to render a sale valid and effectual, there must be first, a posting of
the notice at least forty-two days; and second a publication thereof at least a full
six weeks before the date of sale. It is not necessary to publish the notice
more than six weeks (six insertions). Opinion of Atty. Genl. (1917), 11 State
Dept. Rep. 536.

A tax sale notice is defective, insufficient and void which mentions no map and
gives no description by which the properiy can be identified. McCoun v. Pierpont
(1921), 195 App. Div. 726, 187 N. Y. Supp. 856. ;

Where the objections made to the adequacy of a description of property sold
for taxes were first, that the description of the property on the assessment roll
appeared only once, at the top of the column, and was not repeated by ditto
marks; and second, that the impression left by the stamping machine through
which the entry was made, was not perfect on this page with the result that
instead of the words, “Map No. 1, dated March 1907,” there were the words “Map~
No. 1907,” the space between the word ‘‘No.” and the figures “1907” being blank
except for a faint blur, neither of such supposed defects was sufficient under this
section, to invalidate the tax. McCoun v. Pierpont (1921), 232 N. Y. 66, 133 N. E.
355, revg. 195 App, Div. 726, 187 App. Div. 726, 187 N. Y. Supp. 856.

In proceedings to sell lands of a non-resident for taxes, failure to return the tax
to the county treasurer as unpaid constitutes a defect, as does also the inclusion
of three Jots in a single assessment. Howell v. Rowe (1914), 85 Misc. 560, 147
N. Y. Supp. 482.
616 TAXATION.

Tax Law, §§ 151-a, 152.

of all tracts or parcels of land situated in the forest preserve which have
been bid in by the county and have not been redeemed, and shall sell and
convey to the state any tract or parcel of land specified in such statement
which the comptroller shall designate within six months after such state-
ment is filed, upon the payment of the taxes, interest and expenses due
thereon at the time of the sale, and also all taxes assessed thereon since
such sale, and the comptroller shall draw his warrant on the state treasurer
for the amount thereof or credit the county with such amount on the books
of his office. After the expiration of such six months, in the counties of
Essex, Saint Lawrence, Franklin, Fulton, Hamilton, Lewis, Clinton, Warren,
Washington and Oneida, and after the time for redemption has expired in
any other county, the county treasurer is authorized in the name of the
board of supervisors of the county to sell and convey under his hand and
seal such lands as have not been conveved to the state in the manner and
upon such terms as the board of supervisors of the county may direct.
[Tax Law, § 151, as amended by L. 1913, chs. 377%, 642, L. 1915, 328,
L. 1918, ch. 159, and L. 1922, ch. 602.]

§ 3-a. NEW CERTIFICATE UPON SETTING ASIDE SALE.

If a purchaser shall not have paid his bid, or the same shall not have
been collected from him at the expiration of one month from the conclu-
sion of the sale at which the bid was made, the county treasurer may set
aside the sale of land for which the bid is made and all rights of the
purchaser under such bid shall thereby be extinguished. A certificate
of such sale may thereupon be issued by the county treasurer to any
person who will pay the same amount as would have been payable by
the original purchaser if the sale had not been set aside. If such certifi-
cate shall not have been sold within three months from the date of such
sale the county treasurer shall transfer the same to the county, in which
case the whole quantity of land liable to sale for the purchase money
nientioned in the certificate shall be covered by such purchase, the same
as if no person had offered to bid therefor at the sale. The change of
purchaser made pursuant to this section and the time when made shall
be noted in the sales bock, and the certificate issued shall confer upon
the county the same rights as it would have acquired had the land been
bid in for it at the sale. [Tax Law, § 151-a, as added by L. 19138, ch.
369. ]

§ 4. OWNER MAY REDEEM WITHIN ONE YEAR.

The owner, occupant or any other person having an interest in any
real estate sold for taxes as aforesaid may except in the county of Suf-
folk redcem the same at any time within one year after the last day
of such sale, by paving to the county treasurer of the county, for the
use of the purchaser, the sum mentioned in his certificate, together with
interest thereon at the rate of ten per centum per annum, to be com-
puted from the date of such certificate, and any tax which the holder of
said certificate shall have paid between the days of sale and redemption,
provided such purchaser shall have notified the county treasurer thereof
immediately upon the payment of such tax, together with the share of the
expense of the publication of notices to redeem the real estate sold in
such county for unpaid taxes, as apportioned by the county treasurer to
the real estate so redeemed, which expense shall be in the first instance

e
SALES BY COUNTY TREASURER FOR UNPAID TAXES, 617
Tax Law, §§ 152a, 152b, 153.

a county charge and shall be at the same rate as that provided for the
publication of notices of tax sales. In case any parcel of real estate men-
tioned in such notice to redeem shall not be redeemed within the one
year allowed by law for such redemption then and in that event the
share of the expense of the publication of notices to redeem such un-
redeemed real estate sold in any such county for unpaid taxes, as ap-
portioned by the county treasurer, together with interest thereon for
one year at the rate of ten per centum per annum, shall be laid before
the board of supervisors of such county for reassessment as are other
taxes and shall be by such board of supervisors re-assessed upon the
assessment-roll of the currert year against such real estate and shall be
alien thereon. In the county of Suffolk such redemption may be made
by the same persons and in all respects in the same manner and sub-
ject to all the provisions as above provided, except that the time within
which such redemption may be made shall be any time within three
years after the last day of such sale, and that the interest to be paid
upon such redemption shall be calculated at the rate of twelve per
centum per annum from the date of sale if the redemption be made
within the first year, and at the rate’ of twenty-four per centum per
annum from the date of sale if the redemption be made within the
second year, and at the rate of thirty-six per centum per annum from the
date of sale {f the redemption be made in the third year. [Tax Law, §
152, as amended by L. 1916, ch. 332, and L. 1919, ch. 443.]

Notice of unredeemed lands in Suffolk county. In the county of
Suffolk notice of unredeemed lands shall be given and published by
the county treasurcr at least three months before the expiration of the
three years allowed for the redemption of lands sold by him for taxes,
the last publication to be at least six weeks before the expiration of
said three years and in all other respects shall be as provided bv this
chapter. [Tax Law, § 152a, added by L. 1919, ch. 443.]

Notice to redeem in Suffolk county. Whenever by any provision of
this chapter it is provided that any notice may or shall be given or
filed within a period measured by reference to the time allowed for the
redemption of lands sold for taxes or by reference to the time of the
sale, such provisions shall be construed as respects sales for taxes in
Suffolk as intending and referring to the three year period for re-
demption herein provided as respects such sales in Suffolk county.
[Tax Law, § 152b, added by L. 1919, ch. 443.]

§ 5. REDEMPTION OF REAL PROPERTY STRICKEN FROM TAX-ROLLS.

The real property struck down to a county at said tax sale and
omitted from the tax rolls as provided in section fifty of this chapter
shall not be subject to further sale after having been once so sold for
taxes. The real property so omitted from the tax rolls may be re
deemed by the owner, occupant or any person having an interest in the
same, provided the county has not acquired a title in fee to such prop-
erty, upon the payment to the county treasurer for the use and benefit
of the county of a sum equal to the gross amount of the taxes, expenses
of such sale, penalty and interest thereon, together with the tax and
618 TAXATION.
Tax Law, §§ 154, 155.

interest thereon which would have been due on said real property had

it been taxed during each of the years it was omitted from the tax

rolls. The said taxes for each of the years during which said real

estate is so omitted from the tax rolls shall be computed on the basis

of the assessed valuations returned on said real property by the asses-

sors of the several tax districts and at the rate fixed by the board of .
supervisors as the tax rate for the tax district within which such real

estate is situated. [Tax Law, § 153; B.C. & G. Cons. L., p. 8445.]

§ 6. CONVEYANCE BY COUNTY TREASURER, IF REAL PROPERTY SOLD BE

NOT REDEEMED.

If such real estate, or any portion thereof, be not redeemed as herein
provided, the county treasurer shall execute to the purchaser a convey-
ance of the real estate so sold, the description of which real estate shall
include a specific statement of whose title or interest is hereby con-
veyed, so far as appears on the record, which conveyance shall vest in
the grantee an absolute estate in fee, subject, however, to all claims the
county or state may have thereon for taxes or liens or incumbrance.
The county treasurer shall receive from the purchaser fifty cents for
preparing such conveyance and ten cents additional for each piece or
parcel of land described therein exceeding the first. All purchases made
for the county shall be included in one conveyance, and for which the
county treasurer shall receive ten dollars. Every such conveyance shall
be executed by the treasurer of the county, under his hand and seal,
and may be recorded in the same manner and with like effect as a con-
veyance of real estate properly acknowledged or proven.** The money
received by the county treasurer on every such sale shall be applied by
him, after deducting the expenses thereof, in like manner as if the same
had been paid to him by the collectors of the several towns. In the
county of Suffolk the conveyance shall run to and name the county as
grantee and the title thus acquired by such county may be disposed of
at such times and upon such terms as shall be determined by a majority
of the board of supervisors at any regular or special meeting thereof.
[Tax Law, § 154, as amended by L. 1920, ch. 178.]

§ 7. EFFECT OF CONVEYANCE.

A purchascr or his legal representative may, upon receiving a con-
veyance under and by virtue thereof, possess and enjoy for his own
use the real estate described in such convevance, unless redeemed as
herein provided, and after the expiration of the time to redeem the
same, may cause the occupant of such real estate to be removed there-
from, and the possession to be delivered to him in the same manner

 

2a, Application. This section has no reference to tax deeds or certificates
executed by the state comptroller under § 131 of the Tax Law. Sheldon v. Rus-
sell, 91 Misc, 278, 154 N. Y. Supp. 632.

The provisions of section 154 to the effect that if real estate sold by a county
treasurer is not redeemed the title of the purchaser shall hecome absolute and that
the description of lands shall include a specific statement of whose title is con-
veved “so far as appears from the record” related only to the record in the county
treasurer’s office, not to the county clerk’s records, Smith v. Russell (1916), 172
App. Div. 793, 159 N. Y. Supp. 169.

Sufficiency of description of property in tax deed. An assessment-roll omitted
from its first column ditto marks, referring to the name and subdivision of prop-
SALES BY COUNTY TREASURER FOR UNPAID TAXES. 19
Tax Law, §§ 156, 157.

and by the same proceedings, and before the same officers as in case of
a tenant holding over after the expiration of his term without permis-
sion of his landlord.* [Tax Law, § 155; B. OC. & G. Cons. L., p.
8447. ]

§ 8. shee rag MONEY, WHEN TO BE REFUNDED BY BOARDS OF SUPER-

Whenever any purchaser under such sale shall be unable to regain
possession of the real estate purchased by him, or when the county
treasurer shall have canceled any such sale, or when any such sale shall
have been canceled by a judgment of a court of competent jurisdiction,
in either case by reason of an error or irregularity in the assessment
or levying of a tax, or in proceedings for the collection thereof, the
board of supervisors of the county shall refund the purchase money so
paid, with interest upon the same being presented and audited as other
county charges, and such money shall be charged to the tax district
from which the tax was returned, and the same shall be levied and col-
lected in the succeeding year and paid to the county treasurer.t [Tax
Law, § 156, as amended by L. 1912, ch. 268; B. C. & G. Cons. L.,
p. 8447. ]

§ 9. COUNTY TREASURER TO TRANSMIT TO COMPTROLLER LIST OF

LANDS TO BE SOLD; SALE OF LANDS OWNED BY STATE OR UPON
WHICH IT HAS A LIEN.

The county treasurer of any county not embracing a portion of the
forest preserve shall, at least two months prior to any tax sale to be held
by him, transmit to the comptroller an accurate and complete list of
all the lands in such county to be sold thereat. The state comptroller
shall, at least two weeks prior to any such tax sale, transmit to such
county treasurer a list of all lands advertised to be sold at such tax
sale, belonging to the state, or which shall then be mortgaged to the
commissioners for loaning certain moneys of the United States, or
against which the state holds a bond or lien, for any part of the pur-
chase money thereof, or for which the state may then hold a tax sale
certificate. The county treasurer conducting such sale shall bid in for
the state all lands described in the list transmitted to him by the comp-

 

erty, but correctly used them in the column for owners. Held, that such imper-
fect entry did not warrant the county treasurer to execute a tax deed which
described certain lots as on “Map No, 1,” where it appeared that the top of the
page of the assessment-roll referred to “Map No. ...... 1907,” and that there
was no map with that number, and that the only map of any kind wag filed in
1911. McCoun v. Pierpont (1921), 195 App. Div. 726, 187 N. Y. Supp. 856.

Limitation upon actions to vacate sale. The Tax Law of 1896 repealed chapter
442 of the Laws of 1855 which prescribed a limitation upon actions to vacaiz a
sale of land for unpaid taxes, also chapter 217 of the Laws of 1821 which extended
the operation of said statute to 1885; but rights which had become vested and
fixed by said statute before repeal remain unaffected thereby. Howell v, Rowe
(1914), 85 Mise. 560, 147 N. Y. Supp. 482.

3. Title of purchaser. Where taxes are regularly assessed against parties in
possession of land and claiming title thereto, and the right of possession, and the
land is sold for non-payment of the taxes, the purchaser gets a good title as
against those in possession and all claiming under them. Croner v. Cowdrey, 139
N.Y. 471, 54 N. Y. St. Rep. 728.

Equity cannot give relief, in a suit for the partition of certain real estate
bought at a tax sale which was void because of false and misleading descriptions
in the assessment-rolls. McCoun v. Pierpont (1921), 195 App. Div. 726, 187 N. Y.
Supp. 856,

4. Assignment by county treasurer of certificate of sale. Where, prior to the
expiration of the time to redeem from a tax sale property which has been bid in by
620 TAXATION.
Tax Law, §§ 158, 159.

troller, and shall, at the close of such sale, transmit to the comptroller a
verified and itemized statement showing the amount of each bid made
in the name of the state thereat, and the state comptroller shall, within
ten days after the receipt by him of such statement, draw his warrant
on the state treasurer for the amount thereof or credit the county with
the amount of such statement on the books of his office.® [Tax Law,
§ 157; B. C. & G. Cons. L., p. 8448.]

§ 10. PROVISIONS RELATIVE TO COMPTROLLER TO APPLY TO TREASURER.

The provisions of article six of this chapter, entitled “ sales by comp-
troller for unpaid taxes and redemption of lands” shall, in go far as it
is not otherwise herein provided, govern and control the action of the
county treasurer, who shall perform the duties therein devolved upon
the comptroller and the same rights and remedies shall be deemed to
exist under the provisions of this article as are provided for in said
article six. [Tax Law, § 158; B. C. & G. Cons. L., p. 8448.]

§ 11. EXPENSES OF PUBLISHING NOTICE TO REDEEM.

Where a tax sale has been held by a county treasurer pursuant to this
article, the expenses of publishing the notice to redeem as required by
section one hundred and thirty of this chapter shall be apportioned as
equitably as may be between the several pieces or parcels included
therein. The amount so apportioned to any parcel shall be paid to the
county treasurer by the purchaser at the tax sale upon the execution
of a conveyance to him. Ifa parcel of land is redeemed subsequent to
the publication of the notice, the person redeeming shall pay to the
county treasurer, in addition to the amount required by section one
hundred and fifty-two, the expense of publishing the notice to redeem the
same. Ifa parcel of land is bid in by the county and is not redeemed,
the expense of publishing the notice to redeem shall be a county charge.
The money received by a county treasurer for the expense of publishing
the redemption notices shall be applied by him to pay the publishers
thereof. [Tax Law, § 159; B. C. & G. Cons. L., p. 8449.]

the county, a person claiming an interest in the property, for the purpose of pro-
tecting such interest, pays the amount of the unpaid taxes and receives from the
county treasurer an assignment of the certificate of sale, such assignee is entitled,
under this scction, if the assessment under which the sale was made proves to be
void, to have refunded to him the money paid by him to the county treasurer.
People ex rel. Stephens v. Supervisors, 104 App. Div. 176, 93 N. Y. Supp. 844.

A refund of what was paid for deeds on a void tax sale may be claimed under
this section, but the owner should not be required to lose the property because
of defects in the method of assessment, McCoun v. Pierpont (1921), 195 App. Div.
726, 187 N. Y. Supp. 856.

5, Application. County Treasurer of Rensselaer county upon sale of land in
city of Troy for taxes is not bound to comply with this section, but as to lands in
said county outside of said city he is required to give the notice to the state
comptroller called for by this section. Matter of Albany Syndicate v. Runkle
(1917), 101 Mise. 41, 166 N. Y. Supp. 488.

County treasurer of Oswego county, on sale for non-payment of taxes, under
Laws, 1878, ch, 65, and Laws 1882, ch. 322, bid in the lands for the county, and
after the expiration of the time to redeem, delivered deed thereof to the plaintiffs.
On proof of compliance with all the requirements of the statutes and that the time
to redeem after delivery of the deed had also expired, and that the lands were
not redeemed,—held, that plaintiff was entitled to recover possession. Supervisors
v. Betts, 25 N. Y. St. Rep. 660.

 
MORTGAGES OF REAL PROPERTY. 631

Tax Law, § 250.

CHAPTER Xl.
MORTGAGES OF REAL PROPERTY WITHIN THIS STATE.

Srcrion 1. Definitions.
2. Exemptions from local taxation.
3. Exemptions.
4. Recording tax
5. Optional tax on prior mortgages.
6. Supplemental mortgages.
7. Mortgages for indefinite or for contract obligations.
8, Payment of taxes.
9. Effect of non-payment of tax.
10. Trust mortgages.
11. Apportionment by state board of tax commissioners.
12. Payment over and distribution of tax.
13. Expenses of officers.
14. Supervisory power of state board of tax commissioners and state
comptroller,
15. Tax on prior advance mortgages.

§ 1. DEFINITIONS.

The term “ real property ” as used in this article, in addition to the
definition , thereof contained in section two of this chapter, includes
everything a conveyance or mortgage of which can be recorded as a
conveyance or mortgage of real property under the laws of the state.
The term “ mortgage” as used in this article includes every mortgage
or deed of trust which imposes a lien on or affects the title to real prop-
erty, notwithstanding that such property may form a part of the security
for the debt or debts secured thereby. Executory contracts for the sale
of real property under which the vendee has or is entitled to possession
shall be deemed to be mortgages for the purposes of this article and
shall be taxable at the amount unpaid on such contracts. A contract or
agreement by which the indebtedness secured by any mortgage is in-
creased or added to, shall be deemed a mortgage of real property for
the purpose of this article, and shall be taxable as such upon the amount
622 TAXATION.

Tax Law, § 251.

of such increase or addition. [Tax Law, § 250, as amended by L.
1916, ch. 323; B. C. & G. Cons. L., p. 6017.]

§ 2. EXEMPTION FROM LOCAL TAXATION.

All mortgages of real property situated within the state which are
taxed by this article and the debts and the obligations which they
secure, together with the paper writings evidencing the same, shall be
exempt from other taxation by the state, counties, cities, towns, vil-
lages, school districts and other local subdivisions of the state, except
that such mortgage shall not be exempt from the taxes imposed by sec-
tions twenty-four to twenty-four-g, both inclusive, one hundred and eighty-
seven, one hundred and eighty-eight, one hundred and eighty-nine and

 

1. Mortgages executed before act of 1906. The repeal of the provisions of
the act of 1905, ch. 729, which provided for an annual tax on mortgages by the
provision of the act of 1906, ch. 532, providing for a recording tax on mortgages,
leaves mortgages executed before the passage of the latter act open to taxation
under §§ 2 and 3; the law of 1905 created no contract between the state and
individuals, and taxation of such prior mortgages is not unconstitutional as im-
pairing contracts. People ex rel. Cassavoy v. Dimond, 121 App. Div. 559, 106
N. Y. Supp. 277.

A lease for five years is real property within the meaning of this section,
and does not lose its character after the expiration of two years of the term,
People ex rel. Elias Brewing Co. v. Gass, 53 Misc. 363, 104 N. Y. Supp. 884, affd.
120 App. Div. 147, 104 N. Y. Supp. 185, affd. 190 N. Y. 565. A lease for three
years is real property within the definition herein included. Atty. Genl. Opin.
(1915) 4 State Dept. Rep. 524.

Effect of law on contracts of sale. A vendee under a contract to purchase
lands cannot reject the title because a mortgage, though having one year to run,
contained «a provision that should the law for the taxation of mortgages
be changed so as to increase the tax thereon, and the owner fail to pay, the
mortgagee might declare the mortgage due on thirty days’ notice. Frank v. Frank,
123 App. Div. 802, 108 N. Y. Supp. 549.

A contract of sale under which, before the execution of the deed, the vendee
may come into possession, should be taxed as a mortgage on presentation for
record, unless affidavit is made that the vendor is in possession. Rept. of Atty.
Genl., March 22, 1912.

A contract for the sale of real estate may be assessed and taxed as per-
sonal property, and is subject to a recording tax the same as a real estate
mortgage. Matter of Boshart (1919), 107 Misc. 697, 177 N. Y. Supp. 567.

A trust deed may be a mortgage subject to a recording tax. Rept. of Atty.
Genl., April 15, 1909. And an instrument granting and releasing real prop-
erty in trust, which secures to the trustees a lien upon said real property for
advances made by them, is taxable. Opinion of Atty. Genl., Jan. 8, 1913.

A conveyance of lands to trustees for the benefit of creditors of the gran-
tor’s deceased husband, made pursuant to an agreement whereby the trustees,
MORTGAGES OF REAL PROPERTY. 623
Tax Law, §§ 252, 253.

article ten of this chapter. [Tax Law, § 251, as amended by L. 1916,
ch, 323, and L. 1917, ch. 485; B. C. & G. Cons. L., 2d ed., p. 8583.]

§ 3. EXEMPTIONS.

No mortgage of real property situated within this state shall be ex-
empt, and no person or corporation owning any debt or obligation
secured by mortgage of real property situated within this state shall be
exempt from the taxes imposed by this article by reason of anything

contained in any statute, or by reason of any provision in any private
act or charter which is subject to amendment or repeal by the legisla-

ture, or by reason of non-residence within this state or for any other
cause.* [Tax Law, § 252; B. C. & G. Cons. L., 2d ed., p. 8584.]

§ 4. RECORDING TAX.

A tax of fifty cents for each one hundred dollars and each remaining:
major fraction thereof of principal debt or obligation® which is, or un-
der any contingency may be secured at the date of the execution there-

 

endowed with a power of sale, were to pay the creditors of the deceased hus-
band from the proceeds of the sale after deducting expenses, interest on
mortgages, etc., the balance to be returned to the grantor, does not create a
mortgage, there being no agreement for a reconveyance to the grantor, or
for a defeasance. Hence, such agreement is entitled to record without pay-
ment of the mortgage recording tax. Dryer v. Hopper (1914), 162 App. Div.
590, 147 N. Y. Supp. 1028.

Payment of tax. It was the intent of the legislature to permit the parties
to agree as to who should pay the tax. Seaman’s Bank v. Fell, 162 App. Div.
223, 147 N. Y. Supp. 465.

2. Exemption may be claimed at any time before the assessors complete
their assessment. Matter of Pullman, 52 Misc. 1, 102 N. Y. Supp. 356.

The re-examination of an assessment, made by a town board of assessors,
may be had on certiorari only where the prior examination before the board
involved a dispute and a doubt, and not where such examination was entirely
conclusive permitting the assessors but one course of action. People ex rel.
Glen Telephone Co. v. Hall, 57 Misc. 308, 109 N. Y. Supp. 402.

Income tax. Interest on mortgages on which the recording tax has been
paid is not exempt from the state income tax. People v. Wendell (1921),
197 App. Div. 131, 188 N. Y. Supp. 344.

2a. Effect on special exemptions. Where a charitable education institu-
tion is exempted by its charter from paying the recording tax provided for
by this section, such exemption, so far as mortgages belonging to it are con-
cerned, must be deemed to have been repealed by this section. People ex
rel, Cooper Union v. Gass, 190 N. Y. 328, revg. 119 App. Div. 280, 104 N. Y.
Supp. 643.

The exemption clause goes only to the extent to which the mortgage in
question is taxable and has been taxed. Hence, the owner of a bond of a
foreign corpdration, secured by real estate, the greater part of which is situ-
ated in this state, is entitled to an exemption only to the extent to which
such property has been taxed by recording the mertgage in other counties of
624 TAXATION.

Tax Law, § 254.

of or at any time thereafter by a mortgage on real property situated
within the state recorded on or after the first day of July, nineteen

hundred and six, is hereby imposed on each such mortgage, and shall
be collected and paid as provided in this article. If the principal debt

or obligation which is or by any contingency may be secured by such
mortgage recorded on or afier the first day of July, nineteen hundred

and seven, is less than one hundred dollars, a tax of fifty cents is hereby
imposed on such mortgage, and shall be collected and paid as provided
in this artiele2* [Tax Law, § 258, as amended by L. 1916, ch. 323; B.
C. & G. Cons. L., p. 8585.]

§ 5. OPTIONAL TAX ON PRIOR MORTGAGES.

‘Whenever any mortgage other than a mortgage specified in section
two hundred and sixty-four has been recorded prior to July first, nine-
teen hundred and six, the record owner thereof may file with the record-
ing officer of the county in which the real property, or any part thereof,
on which said mortgage is a lien, is situated, a written statement under
oath verified by the record owner or the agent or officer of such record
owner describing such mortgage by giving the date of the same and the
liber and page of the record thereof together with the names of the
parties thereto, specifying the amount then remaining unpaid on the
debt or obligation secured thereby, and electing that it shall become
subject to the tax prescribed by section two hundred and fifty-three of
this chapter. Whenever any unrecorded mortgage has been executed
and delivered prior to July first, nineteen hundred and six, the owner
thereof may record the same upon filing with the recording officer a
similar statement and paying the tax as herein prescribed. A tax shall
thereupon be computed, levied and collected upon the amount of the
principal debt or obligation unpaid at the time of the filing of such
statement, or of the recording of such mortgage and filing of such state-

ment. On the payment of such tax as herein provided, the recording
officer shall note on the margin of the record of such mortgage the
fact of such statement and of the amount of the tax paid, attested by
his signature, whereupon such mortgage and the debt or obligation

 

the state, where a portion of the real property is situated. People ex rel.
Braeburn Assn. v. Hanking, 154 App. Div. 679.

Mortgages refunding prior mortgages and wiping them out of existence,
are not entitled to any exemption from the recording tax imposed by this
section, as they are not additional or supplemental mortgages within the
meaning of section 255. Atty. Genl. Opin., 6 State Dept. Rep. 445 (1915).

8. “Principal debt or obligation.” As to savings and loan mortgage, see
Opinion of Atty. Genl. (1919), 19 St. Dept. Rep. 320. As to mortgage
securing repayment of money loaned by insurance company upon “home pur-
chase” plan, see Opinion Atty. Genl. (1919), 19 St. Dept. Rep. 354.

3a. Construction and application of section. Opinion Atty. Genl. (1918),
18 State Dept. Rep. 441.

Tax to be measured by total debt secured. People ex rel. U. S. Title Guar-
anty Co. v. State Tax Commission (1920), 230 N. Y. 102, 129 N. EB. 222, reve.
193 App. Div. 920, 183 N. Y. Supp. 955.
MORTGAGES OF REAL PROPERTY. 625

Tax Law, § 254.

secured thereby shall be entitled to the exemptions and immunities
conterred by this article, and all of the provisions of this article shall
thereafter be applicable to said mortgage. Whenever the original mort-
gage is presented to the clerk together with the statement he shall also
note on said original mortgage the fact of the filing of the said state-
ment and also the amount of the tax paid duly attested by his signa-
ture, which endorsement shall be conclusive evidence of the payment of
such tax. [Tax Law, § 254; B. C. & G. Cons. L., 2d ed., p. 8586. ]

§ 6. SUPPLEMENTAL MORTGAGES.

If subsequent to the recording of a mortgage on which all taxes, if
any, accrued under this article have been paid, a supplemental instru-
ment or mortgage is recorded for the purpose of correcting or perfect-
ing any recorded mortgage, or pursuant to some provision or covenant
therein, or an additional mortgage is recorded imposing the lien thereof
upon property not originally covered by or not described in such re-
corded primary mortgage for the purpose of securing the principal
indebtedness which is or under any contingency may be secured by
such recorded primary mortgage, such additional instrument or mort-
gage shall not be subject to taxation under this article, unless it creates
or secures a new or further indebtness or obligation other than the prin-
cipal indebtedness or obligation secured by or which under any con-
tingency may be secured by the recorded primary mortgage, in which
case, a tax is imposed as provided by section two hundred and fifty-
three of this chapter on such new or further indebtedness or obligation,
and shall be paid to the proper recording officer at the time such instru-
ment or additional mortgage is recorded. If at the time of recording
such instrument, or additional mortgage any exemption is claimed
under this section, there shall be filed with the recording officer and
preserved in his office a statement under oath of the facts on which
such claim for exemption is based. The determination of the recording
officer upon the question of exemption shall be reviewable by the tax
commission.» [Tax Law, § 255, as amended by L. 1916, ch. 323;
B.C. & G. Cons. L., p. 8586. ]

 

8b. Application of section. People ex rel. Home Mortgage Investment Co.
v. Tax Commissioners (1918), 182 App. Div. 699, 169 N. Y. Supp. 978.

Construction of section. The tax is upon the debt secured. Only where
the debt is indefinite does the value of the security enter into the computa-
tion of the tax. Opinion of Atty. Genl. (1919), 18 State Dept. Rep. 472.

When a mortgage is recorded and the recording tax paid, and thereafter a
portion of the premises covered is released from the lien of the mortgage,
an instrument subiccting the released portion anew to the lien of the original
mortgage, but without increasing the mortgage debt, should be recorded
without the payment of a new mortgage tax. Opinion of Atty. Genl. (1919),
18 State Dept. Rep. 472.

New mortgage executed for larger amount and for longer term pursuant
to covenant in old mortgage which was satisfied, is not a “‘supplemental’’ one‘
within the meaning of this section and the recording tax thereon is to be
measured by the total debt secured thereby. People ex rel. U. S. Title Guar-
anty Co. v. State Tax Comrs. (1920), 230 N. Y. 102, 129 N. E. 222, revg.
193 App. Div. 920, 183 N. Y. Supp. 955.

Recording of lease after contract therefor. Where a contract for a lease
is assigned to secure an indebtedness and on its reeording is taxed as a mort-
gage, no further tax accrues or is due upon the lease itself when it is de-
livered and recorded. Report of Atty. Genl., March 22, 1912.
626 TAXATION.

Tax Law, § 256.

§ 7. MORTGAGES FOR INDEFINITE AMOUNTS OR FOR CONTRACT OBLIGA-
TIONS.

If the principal indebtedness secured or which by any contingency
may be secured by a mortgage is not determinable from the terms of the
mortgage, or if a mortgage is given to secure the performance by the
mortgagor or any other person of a contract obligation *° other than the
payment of a specific sum of money and the maximum amount secured
or which by any contingency may be secured by the mortgage is not ex-
pressed therein, such mortgage shall be taxable under section two hun-
dred and fifty-three of this chapter upon the value of the property
covered by the mortgage, which shall be determined by the recording
officer to whom such mortgage is presented for record, unless at the time
of presenting such mortgage for record the owner thereof shall file with
the recording officer a sworn statement of the maximum amount se-
cured or which under arly contingency may be secured by the mortgage.
If such maximum amount is expressed in the mortgage or in a sworn

 

Claim of exemption. In order that « supplemental mortgage be exempt from
the payment of a mortgage tax upon recording a statement under oath of the facts
on which a claim for exemption is based must be filed with the recording officer
at the time of recording such mortgage in accordance with the provisions of this
section. Opinion of Atty. Genl., June 17, 1914.

3c. Indeterminate amount. If it clearly appears that intention of the grantor
or other person desjgnated by him is to be supported and maintained by the
grantee as part or full consideration for or as a condition of the making of the
grant, the instrument is in effect an equitable mortgage or executory contract for
sale, and should be treated as a mortgage for an indeterminate amount under
this section.. Opinion of Atty. Genl. (1917), 12 State Dept. Rep. 496.

To ascertain the value of real estate in fixing the mortgage tax on a mortgage
securing unlimited future advances, a prior mortgage should not be deducted, where
the statement provided for by this section, showing the limit of the advances, has
not been filed. Absence of such a statement shows that the amount to be
advanced was not limited to the then value of the equity of redemption.
Such tax is not upon the real estate, but upon the debt secured by the mort-
gage. If the mortgage fails to show the amount of the debt secured, the
value of the mortgaged property is made the measure for computing the
tax. People ex rel. Park Row Realty Co. v. Saxe (1917), 180 App. Div. 103,
167 N. Y. Supp. 509, affd. 222 N. Y. 659. Where the maximum total of
premuims paid upon an insurance policy which, under any contingency may
become secured by a mortgage, is not determinable from the terms of the
mortgage, the mortgagee should be permitted to file a statement under this
section, limiting the maximum secured. Opinion of Atty. Genl. (1919),
19 State Dept. Rep. 354,
MORTGAGES OF REAL PROPERTY. 627
Tax Law, § 256.

statement filed as required by this section, such amount shall be the basis
for assessing the tax imposed by this article. A statement filed by
the owner of a mortgage pursuant to this section shall thereafter at
all times be binding upon and conclusive against such owner, the holders
of any bonds or obligations secured by such mortgage and all persons
claiming through the mortgagee any interest in the mortgage or the mort-
gaged premises. If the maximum amount secured or which by any con-
tingency may be secured by the mortgage is not expressed in the mort-
gage or in a sworn statement as authorized by this section, the record-
ing officer at the time such mortgage is offered for record may require
the mortgagor or mortgagee to furnish him with proofs as to such facts
as he deems necessary for the purpose of computing the value of the
property covered by the mortgage and such proofs shall include an
affidavit of appraisal of the value of the property made by at least two
competent, disinterested persons and shall be preserved in his office. His
determination and copies of the proofs as to the basis for computing the
tax on such mortgage shall be forwarded to and subject to review by
the state tax commission. Such mortgage shall not be recorded until
the statement is filed or the proofs are furnished as required by this
article.

Whenever any such mortgage shall have been recorded without the
payment of the tax as herein provided, and it shall thereafter be de
termined by the tax commission, after an opportunity to be heard by
the parties in interest, that the failure to pay such tax was due to an
honest misconception on the part of the recording officer or the owner
of the instrument as to the nature of such instrument and its taxability
under this article, the tax commission may make an order permitting
the recording officer to file the aforesaid statement nunc pro tunc as of
the date of the recording of the mortgage. The payment of the tax
may be made on the basis of such statement with interest thereon at the
rate of six per centum per annum as provided in section two hundred
and fifty-eight of this article. [Tax Law, § 256, as amended by L. 1913,
ch. 665, L. 1916, ch. 323, and L. 1920, ch. 75.]
62%a TAXATION.
Tax Law, §§ 257, 258a,

§ 8. PAYMENT OF TAXES.

The taxes imposed by this article shall be payable on the recording
of each mortgage of real property subject to taxes thereunder. Such
taxes shall be paid to the recording officer of any county in which the
real property or any part thereof is situated. It shall be the duty of
such recording officer to indorse upon each mortgage a receipt for the
amount of the tax so paid. Any mortgage so indorsed may thereupon
or thereafter be recorded by any recording officer and the receipt for
such tax indorsed upon each mortgage shall be recorded therewith. The
record of such receipt shall be conclusive proof that the amount of tax
stated therein has been paid upon such mortgage.* [Tax Law, § 257;
B. C. & G. Cons. L., p. 8589.]

Payment of tax on contract which is not acknowledged, for record.
An executory contract, heretofore or hereafter made, for the sale of
real property, though not proved or acknowledged so that such instru-
ment may be recorded, may nevertheless be presented to the recording
officer of the county in which the real property or any part thereof is
situated, accompanied with the payment to such officer of the amount of
the tax which would be payable under this article on the recording of
such instrument if the same were entitled to be recorded. Such officer
shall receive such amount, and it shall be deemed moneys received on
account of taxes under this article. It shall be the duty of the recording
officer to indorse upon the contract a receipt for the amount of the tax
so paid. If such amount be paid as herein provided, such contract shall
not be excluded from admission in evidence in any action or proceeding,
nor shall judgment or final order in an action or proceeding to foreclose
or enforce the contract be withheld, upon the ground that the taxes im-

 

4. A lease of real property is a chattel real and creates an interest in real prop-
erty, and a mortgage thereon comes within the recording act and may not be re-
corded without payment of the recording tax. People ex rel. Elias Brewing Co. v.
Gass, 120 App. Div. 147, 104 N. Y. Supp. 885, affd. 190 N. Y. 565.
MORTGAGES OF REAL PROPERTY. 627b

Tax Law, § 258.

posed thereon by this article have not been paid. The receipt so in-
dorsed on the contract shall be conclusive proof of payment of the tax
authorized by this section to be paid. [Tax Law, § 258-a, as added
by L. 1920, ch. 641.]

§ 9. EFFECT OF NON-PAYMENT OF TAXES.

No mortgage of real property shall be recorded by any county clerk
or register, unless there shall be paid the tax imposed by and as in this
article provided. No mortgage of real property which is subject to the
taxes imposed by this article shall be released, discharged of record or
received in evidence** in any action or proceeding, nor shall any as-

signment of or agreement extending any such mortgage be recorded un-
less the taxes imposed thereon by this article shall have been paid as
provided in this article. No judgment or final order in any action or
proceeding shall be made for the foreclosure or the enforcement of any
mortgage which is subject to the tax imposed by this article or of any
debt or obligation secured by any such mortgage, unless the taxes im-
posed by this article shall have been paid as provided in this article;
and whenever it shall appear, that any mortgage has been recorded
without payment of the tax imposed by this article there shall be
added to the tax a sum equal to one-half of one per centum thereof for
each month or fraction of a month for the period that the tax remains
unpaid, except where it could not be determined from the face of the
instrument that a tax was due, or where an advance has been made on
a prior advance mortgage or a corporate trust mortgage without pay-
ment of the tax, in which case there shall be added to the tax a sum
equal to one per centum thereof for each month or fraction of a month
for the period that the tax remains unpaid. In any case where a
mortgage of real property subject to the tax imposed by this article
has heretofore been recorded or is hereafter recorded in good faith,
and the county clerk or register has held such mortgage nontaxable
or taxable at one amount, and it shall later appear that it was taxable
or taxable at a greater amount, the state tax commission may remit
the penalties in excess of one-half of one per centum per month.
[Tax .Law, § 258, as amended by L. 1913, ch. 665, L. 1916, ch. 323,
L. 1920, ch. 51, and L. 1921, ch. 532.]

 

4a. Provision as to evidence does not apply to actions in the federal courts.
Marsh v. Leseman (1917), 242 Fed. 484.

L. 1920, ch. 51, should not be deemed retrospective, and accrued penalties
are not effected thereby. Opinion of Atty. Genl. (1920), 23 State Dept.
Rep. 49.
628 TAXATION.
Tax Law, § 259.

§ 10. TRUST MORTGAGES.

In the case of mortgages made by corporations in trust to secure
payment of bonds or obligations issued or to be issued thereafter, if
the total amount of principal indebtedness which under any contingene
may be advanced or accrue or which may become secured by any such
mortgage which is subject to this article has not been advanced or
accrued thereon or become secured thereby before such mortgage is re-
corded, it may contain at the end thereof a statement of the amount
which at the time of the execution and delivery thereof has been ad-
vanced or accrued thereon, or which is then secured by such mortgage;
thereupon the tax payable on the recording of the mortgage shall be
computed on the basis of the amount so stated to have been so advanced
or accrued thereon or which is stated to be secured thereby. Such state
ment shall thereafter at all times be binding upon and conclusive against
the mortgagee, the holders of any bonds or obligations secured by such
mortgage and all persons claiming through the mortgagee any interest
in the mortgage or in the mortgaged premises. Whenever a further
amount is to be advanced under the original mortgage, or shall accrue
thereon or become secured thereby, the corporation making such mort-
gage shall pay the tax on such amount at or before the time when such
amount is to be advanced, accrues or becomes secured and shall, at the
time of paying such tax, file in the office of the recording officer where
such mortgage has been or is first recorded and with the tax commission
a statement, verified by the secretary, treasurer or other proper officer,
of said corporation of the amount of principal indebtedness to be so
advanced, accruing or becoming secured, and the certification of any
bond or bonds by the trust mortgagee shall be deemed an advance under
this article. Such additional tax shall be paid to the recording officer
where such mortgage has been or is first recorded and a receipt therefor
shall be indorsed upon the mortgage and payment therefor shall be
noted in the margin of the record of such mortgage and if requested a
duplicate receipt for such payment shall also be given to the party pay-
ing such tax and the note of such payment or additional payment or
such receipt shall have the same force and effect as the record of receipt
of the tax which under this article is payable at or before the recording
of the mortgage. If such additional tax is not paid as required by this
section, the trust mortgagee shall not certify any bond or other obliga-
tion issued on account thereof. The corporation making such mortgage
MORTGAGES OF REAL PROPERTY. 629

Tax Law, § 260.

or the owner of the property which secures the mortgage debt shall
annually within thirty days after July first, and until it shall appear
by such statement that the maximum amount of principal indebtedness
secured, by such mortgage has been advanced, has accrued or become
secured and the tax thereon paid, file in the office of the tax commission
and the recording officer where such mortgage has been or is first re-
corded a statement, verified by the secretary, treasurer or other proper
officer of said corporation showing:

1. The name of the mortgagor and the mortgagee ;

2. The date of the mortgage and the county where first recorded ;

3. The maximum amount of principal debt or obligation which under
any contingency may be secured by such mortgage;

4. The amount advanced on such mortgage during the year ending
June thirtieth preceding, with the date and amount of each advance
ment ;

5. In the case of a mortgage recorded prior to July first, nineteen hun-
dred and six, the first annual statement filed under this section as hereby
amended, shall state the total amount advanced prior to July first, nine-
teen hundred and six, and the date and the amount of each subsequent ad-
vancement to the end of the period covered by the statement.

A failure to file any statement required by this section within the speci-
fied time shall subject the corporation or other person required to file such
statement to a penalty of not less than one dollar nor more than one hun-
dred dollars for each one thousand dollars of the maximum amount of
principal indebtedness which is or under any contingency may become
secured by the mortgage, which penalty in the aggregate shall not exceed
the sum of five thousand dollars, recoverable by the attorney-general in an
action brought in the name of the people of the state of New York. [Tax
Law, § 259, as amended by L. 1909, ch. 412, L. 1913, ch. 665, L. 1916,
ch. 823, and L. 1917, ch. 573; B. C. & G. Cons, L., p. 6021.]

§ 11. DETERMINATION AND APPORTIONMENT BY STATE TAX
COMMISSION.

When the real property covered by a mortgage is situated in more than
one tax district, the state tax commission shall deduct from the relative
assessments of such real property in the respective tax districts covered
by such mortgage any prior existing mortgage liens and shall then appor-
tion the tax paid on such mortgage between the respective tax districts
upon the basis of the relative assessments of such real property
as the same appear on the last assessment-rolls less the deduc-
tion, if any. If, however, the whole or any part of the property
630 TAXATION.

Tax Law, § 260.

covered by such a mortgage is not assessed upon the last assessment-roll
or rolls of the tax district or districts in which it is situated, or is so
assessed, as a part of a larger tract, that the assessed value cannot be
determined, or if improvements have been made to such an extent as
materially to change the value of the property so assessed, the tax com-
mission may require the local assessors in the respective tax districts,
or the mortgagor, or mortgagee, to furnish sworn appraisals of the prop-
erty in each tax district, and upon such appraisals shall determine the
apportionment. If such mortgage covers real property in two or more
counties, the tax commission shall determine the proportion of the tax
which shall be paid by the recording officer who has received the same
to the recording officers of the other counties in which are situated the
tax districts entitled to share therein. When any recording officer shall
pay any portion of a tax to the recording officer of another county, he
shall forward with such tax a description sufficient to identify the mort-
gage on which the tax has been paid, and the recording officer receiving
such tax shall note on the margin of the record of such mortgage the
fact of such payment, attested by his signature. The tax commission
shall make an order of determination and apportionment in respect to
each such mortgage and file a certified copy thereof with the recording
officer of each county in which a part of the mortgaged real property is
situated.

When the real property covered by a mortgage is partly within the
state and partly without the state it shall be the duty of the tax com-
mission to determine what portion of the mortgage or of advancements
thereon shall be taxable under this article.” Such determination shall

 

5. Mortgage covering real property in this state and real and personal
property in foreign state; method of assessing tax.—Where a trust mort-
gage, covering lands in this state together with lands in a foreign state and
also personal property of large value in the foreign state, is offered for re-
cord in this state as required by the statute, the amount of the mortgage tax
to be paid in this state should not be determined upon the ratio between the
value of the real property in this state and the real property in the foreign
state, excluding the value of the foreign personal property covered by the
mortgage. On the contrary, it should be determined by the ratio between the
value of the real property in this state and the value of the real and personal
property, taken together, situated in the foreign state. The fact that the stat-
ute states that in assessing such tax the commissioner shall consider only the
value of ‘‘tangible’’ property covered by the mortgage does not mean that
the value of personal property covered is to be excluded. People ex rel.
ne B. Transit Co. v. Byrnes (1914), 162 App. Div. 223, 147 N. Y. Supp.

As to valuation of leaseholds by State Tax Commission, see, People v. State
Tax Comrs, (1921), 197 App. Div. 852, 189 N. Y. Supp. 241; People v.
Knapp (1921), 232 N, Y. 158, 133 N. E. 429, revg. 197 App. Div. 913, 187
N. Y. Supp. 949.
MORTGAGES OF REAL PROPERTY. 631
Tax Law, § 260.

be made in the following manner: First: Determine the respective values of
the property within and without the state, and deduct therefrom the amount
of any prior existing mortgage liens, excepting such liens as are to be re-
placed by prior advancements and the advancement under consideration.
Second: Find the ratio that the net value of the mortgaged property within
the state bears to the net value of the entire mortgaged property. Third:
Make the determination of the portion of the mortgage or of the advance-
ment thereon which shall be taxable under this article by applying the ratio
sofound. If a mortgage covering property partly within and partly without
the state is presented for record before such determination has been made, or
at the time when an advance is made on a corporate trust mortgage or on a
prior advance mortgage, there may be presented to the recording officer a
statement in duplicate verified by the mortgagor or an officer or duly author-
ized agent of the mortgagor, in which shall be specified the net value of the
property within the state and the net value of the property without the
state covered by such mortgage. One of such statements shall be filed by
the recording officer and the other shall be forthwith transmitted by him
to the state tax commission. The tax payable under this article before the
determination by the tax commission shall be computed upon such portion
of the principal indebtedness secured by the mortgage, or of the sum ad-
vanced thereon, as the net value of the mortgaged property within the
state bears to the net value of the entire mortgaged property as set forth in
such statement. The tax commission shall on receipt of the statement from
the recording officer and on not less than ten days’ notice served per-
sonally or by mail upon the mortgagor, the mortgagee and the state comp-
troller, proceed to make the required determination. In determining the
separate values of the property within and without the state the tax com-
mission shall consider only the tangible property, real and personal, except
that leases of real property shall be deemed tangible property. For the
purpose of determining such value the tax commission may require the

mortgagor or mortgagee to furnish by affidavit or verified report such
632 TAXATION.
Tax Law, § 260.

information or data as it may deem necessary, and may require and take
the testimony of the mortgagor, mortgagee or any other person. A certi-
fied copy of the order of determination and apportionment shall be delivered
personally or by mail to the mortgagor, the mortgagee and the state comp-
troller, and any tax under such determination which has not been paid shall
be paid within ten days after service of such certified copy; if, however, the
tax paid at the time of filing the statement hereinbefore specified with the
recording officer is in excess of the tax determined to be payable, the certifi-
cate of determination and apportionment shall direct the recording officer
to refund to the person paying such tax the amount of such excess; provided
that no refund shall be made of any taxes paid pursuant to a previous
determination.

The tax commission shall adopt rules to govern the procedure and the
manner of taking evidence in all the matters provided for by this section
and may require verified statements to be furnished either by boards of
assessors, recording officers or other persons having knowledge in relation
to such matters. Failure on the part of any person or officer to furnish a
statement or other data when required so to do pursuant to the provisions
of this section shall render such person or officer liable to a penalty of one
hundred dollars, to be recovered by the attorney-general in an action brought
in the name of the people of the state of New York.

In making determination and apportionment under this section the tax
commission shall consider each advancement made upon a mortgage after
July first, nineteen hundred and six, as a new mortgage. In all cases under
this section in which it shall appear that the prior incumbrances exceed
the assessed or appraised value of the property in one or more tax dis-
tricts the commission may, by a process of equalization or otherwise, estab-

lish a basis of apportionment that will be equitable and fair. [Tax Law,
MORTGAGES OF REAL PROPERTY. 633
Tax Law, § 261.

§ 260, as added by L. 1916, ch. 335, amended by L. 1917, ch. 72, and L..
1918, ch. 204; B. C. & G. Cons. L., p. 6023.]

§ 12. PAYMENT OVER AND DISTRIBUTION OF TAXES.

Upon the first day of each month the recording officer of each county
shall pay over to the county treasurer all moneys received during the pre-
ceding month upon account of taxes paid to him as herein prescribed, after
deducting the necessary expenses of his office as provided in section two
hundred and sixty-two, except taxes paid upon mortgages which under the
provisions of section two hundred and sixty are to be apportioned by the tax
commission between several counties, which taxes and money shall be paid
over by him as provided by the determination of said tax commission within
five days after the filing of said determination in his office. The county
treasurer of each county shall on the first day of January, April, July and
October in each year, after having deducted the necessary expenses of his
office provided in two hundred and sixty-two, transmit one-half of this net
amount collected under the provisions of this article to the state treasurer
and shall receive from the state treasurer a receipt therefor countersigned
by the comptroller. The remaining portions thereof in the counties of
New York, Kings, Queens, Richmond and Bronx shall be paid into the
general fund of the city of New York and be applied to the reduction
of taxation, and in the other counties of the state the remaining portion
shall be held by the respective county treasurers subject to the order
of the board of supervisors as hereinafter provided. Prior to the first
day of November in each year the recording officer shall cause to be
prepared a statement containing a description of all mortgages upon
which taxes have been paid by a reference to the date of each mortgage,

the name of the mortgagor and mortgagee, the amount of the principal
634 TAXATION.

Tax Law, § 262.

debt upon which the tax was paid together with the book and page
where said mortgage is recorded, together with the tax district in which
the mortgaged property is situated, and if situated in two or more tax
districts the amount apportioned to each tax district by the tax com-
mission, and the amount deducted for his necessary expenses as ap-
proved by the tax commission and shall file the statement with the
clerk of the board of supervisors, and a copy thereof with the tax com-
mission. The boards of supervisors of the several counties shall, on or
before the fifteenth day of December in each year, ascertain from the
statement filed with their clerk by the recording officer the location
of the mortgaged property with respect to the several tax districts
and the amount of tax properly to be credited to each tax district,
which shall be applicable to the payment of state, county and city, or
town expenses; except that where a town contains within its limits an
incorporated village, or portion thereof, the supervisor shall apportion
to the village or villages so much of the share credited to the said town
as the assessed value of said village or portion thereof bears to twice
the total assessed valuation of the town, and the remaining balance
shall be applicable to the payment of state, county and town taxes.
The board of supervisors of each county, on or before the fifteenth day
of December each year, shall determine the respective sums applicable
hereunder to each of the foregoing purposes and shall issue their war-
rant for the payment to the city treasurer or town supervisor, of the
amount payable to the said city or town, and their warrant for the
payment to the village treasurer of the sum of money to which the
village shall be entitled, which sum shall be eredited to the general
fund of the village." [Tax Law, § 261, as amended by L. 1914,
ch. 399, and L. 1916, ch. 323; B. C. & G. Cons. L., 2d ed. p. 8598.]

§ 13. EXPENSES OF OFFICERS,

Recording officers and county treasurers shall severally be entitled
to receive all their necessary expenses for the purposes of this article,
including printing, hire of clerks and assistants, being first approved
and allowed by the tax commission, which shall be retained by them
out of the moneys coming into their hands. In counties wholly within
the city of New York for the purposes of retirement the recording
officers, clerks and assistants shall be considered as in the city service
to the same extent as though their salaries had actually been paid
by the city of New York® [Tax Law, § 262, as amended by L. 1916,
ch. 323. and L. 1921, ch. 271.]

 

5a. Interest received by county officers on mortgage tax moneys in their
possession should be distributed in the same proportion as the principal.
Opinion of Atty. Genl. (1920), 22 State Dept. Rep. 497.

6. The expenses incident to the duty imposed upon recording officers which
are allowed in connection with the collection of the tax upon a mortgage pre-
MORTGAGES OF REAL PROPERTY. 634a
Tax Law, § 263.

§ 14. SUPERVISORY POWER OF TAX COMMISSION AND COMP-
TROLLER.

The tax commission shall have general supervisory power over all
recording officers in respect of the duties imposed by this article and
they may make such rules and regulations for the government of record-
ing officers in respect to the matters provided for in this article as they
may deem proper, provided that such rules and regulations shall not be
inconsistent with this or any other statute. Whenever a duly verified
application for a refund of mortgage taxes, erroneously collected by a
recording officer, is made to the tax commission it shall be the duty of
such commission to determine the amount that has been erroneously
collected and make an order directing such recording officer to refund the
amount so determined from mortgage tax moneys in his hands, or which
shall come to his hands, to the party entitled to receive it and charge
such amount back to the tax district that may have been credited with
the same. If any recording officer shall have collected and paid over to
the treasurer of any county, a tax paid upon a mortgage which under
the provisions of section two hundred and sixty of this chapter is to be
apportioned by the tax commission between several counties before such
apportionment has been made, or if any recording officer shall have paid
over to such treasurer more money than required on account of mort-
gage taxes such recording officer shall make a report to the tax commis-
sion in the form of a verified statement of facts and said commission
shall determine the method of adjustment and issue its order accord-
ingly. The comptroller shall have general supervisory power over all
county treasurers in respect to the duties imposed upon them by this
article, and may make such rules and regulations, not inconsistent with
this or any other statute, for the government of said county treasurer

 

cented for record, are limited in their scope by this section to the ‘‘neces-
sary expenses for the purposes” of the article of which it forms a part. The
word ‘‘necessary’ may express something indispensable, or it may be con-
strued as reasonable, useful and proper, dependable upon the character of
its application. When used with reference to the public, it should be con-
strued strictly for the benefit of the public. People ex rel. Frost v. Wood-
bury (1914), 213 N. Y. 51.

Employment of counsel.—In the absence of specific authority, the funds
received by the recording officer cannot be ordered by the court to be paid
for any purpose, except by express authority of the legislature. Construc-
tion should not be given to this statute which would admit of the employ-
ment of counsel by a recording officer, and thus empower him to create a
liability for payment therefor against the state and county, and the funds
ita ey ae respectively. People ex rel. Frost v. Woodbury (1914),

.Y. 51,

 
634b TAXATION.

Tax Law, § 264.

as he deems proper to secure a due accounting for all taxes and moneys
collected or received pursuant to any provision of this article. All
recording officers and county treasurers shall furnish such bond, con-
ditioned for the faithful and diligent discharge of the duties required
of them respectively by this article, to the people of the state, within
such time, with such sureties and in such penal amount, not exceeding
twenty-five thousand dollars, as the comptroller may prescribe. The
provisions of this section shall cover all transactions subsequent to July
first, nineteen hundred and five. [Tax Law, § 263, as amended by L.
1914, ch. 398, L. 1915, ch. 447, and L. 1916, ch. 336; B. C. & G. Cons.
L., p. 6027.]

§ 15. TAX ON PRIOR ADVANCE MORTGAGES.

Whenever any part of the amount of the principal indebtedness which
is or under any contingency may be secured by a mortgage recorded
prior to July first, nineteen hundred and six, is advanced after July
first, nineteen hundred and six, the tax prescribed by section two hun-
dred and fifty-three of this article is hereby imposed on the amount of
principal indebtedness so advanced, which tax shall be payable at the
same time and in the same manner as taxes imposed by section two hun-
dred and fifty-nine of this article, and all the provisions of section two
hundred and fifty-nine in relation to the time and manner of paying
such tax, the filing of statements in relation to the time and amount of
such advances, and penalties for failure to file the same shall apply to
advances made under this section and the payment of a tax thereon,
except that if the mortgagor is not a corporation, such statement shall
be filed by the owner of the mortgage, who, for failure to do so, shall
be subject to the penalties prescribed by such section. In case said
mortgage was given to secure the payment of a series of bonds, the mort-
gagor may, at the time of paying such tax, present to the recording
officer, the bonds representing the portion of the principal indebtedness
secured by said mortgage upon which the tax is to be paid, and also
filed with said recording officer a statement verified by the mortgagor or
an officer or duly authorized agent or attorney of the mortgagor specify-
ing that said bonds, so presented, are the bonds representing that portion
of the principal indebtedness secured by said mortgage upon which the
tax is to be paid and that said bonds are secured by a mortgage recorded
in said office stating the date of said mortgage and the liber and page of
the record of the same. It shall be the duty of such recording officer to
indorse upon each of said bonds, so presented to him, a statement signed
MORTGAGES OF REAL PROPERTY. 634¢

Tax Law, § 264.

by him to the effect that the tax imposed by this article on that portion
of the principal indebtedness secured by said mortgage represented by
said bonds has been paid, and said statement shall be conclusive proof
of such payment. Notwithstanding the exception contained in section
two hundred and fifty-four, the record owner of any mortgage recorded
prior to July first, nineteen hundred and six, other than a corporate
trust mortgage, may file in the office of the recording officer where such
mortgage is first recorded a statement in form and substance as required
by section two hundred and fifty-four of this article, except that it shall
specify and state the amount of all advancements made thereon prior
to said date, giving the date and amount of each advancement and the
amount of such prior advancements remaining unpaid, and thereby elect
that the same be taxed under this article; and any mortgagor or mort-
gagee under a corporate trust mortgage given to secure a series of bonds
or the owner of any such bond or bonds secured thereby may file in the
office of the recording officer where such mortgage is first recorded a
statement in form and substance as required by section two hundred and
fifty-four of this article, except that it shall specify the serial number,
the date and amount of each bond and otherwise sufficiently describe
the same to identify it as being secured by such mortgage, and thereby
elect that such bond or bonds be taxed under this article, and such bond
or bonds shall be taxed upon the whole amount thereof notwithstanding
the provisions of section two hundred and sixty of this article. A tax
shall thereupon, in the case of mortgages other than corporate trust
mortgages, be computed, levied and collected upon the amount of the
principal debt or obligation represented by said unpaid prior advance-
ments at the time of filing such statement, or, in the case of a corporate
trust mortgage, upon the amount of the bond or bonds specified in the
statement filed, at the rate prescribed by section two hundred and fifty-
three of this article. Said bonds representing prior advancements
under corporate trust mortgages and taxed as herein provided may be
presented to the recording officer, whose duty it is to collect said tax,
for indorsement and he shall thereupon indorse upon each of said bonds
a statement, attested by his signature, of the payment of the tax as pro-
vided in this section in respect to bonds representing subsequent ad-
vancements, and the record owner of any other mortgage taxed upon
prior advancements as herein provided may present said mortgage to
the recording officer and thereupon such officer shall note upon the same
the filing of the statement and the amount of the tax paid, attested by
634d TAXATION.

Tax Law, § 264.

his signature. In all such cases the recording officer shall note on the
margin of the record of such mortgage the filing of such statement and
the amount of the tax paid, and, in case of bonds secured by corporate
trust mortgages, the serial number of each such bond. The words
“bond” and “bonds” as used in this section shall be deemed to em-
brace all notes or other evidences of indebtedness secured by mortgages
taxable under this section. In case of any mortgage taxable under this
section, the portion of the indebtedness secured thereby upon which the
tax imposed by this section is paid, and such portion only, shall be
exempt from taxation under the provisions of section two hundred and
fifty-one of this article. Whenever the tax imposed by section two
hundred and sixty-four of this article as said section existed prior to
May thirteenth, nineteen hundred and seven, has been paid with respect
to any mortgage, no additional tax shall accrue on such mortgage under
this section as hereby enacted and such mortgage and the debt or obliga-
tion secured thereby, shall continue to be entitled to the exemptions and
immunities conferred by this article and all of the provisions of this
article shall remain applicable to such mortgage.

All taxes imposed by or which became due, payable or collectible on
or before the thhirtieth day of June, nineteen hundred and six, pur-
suant to chapter seven hundred and twenty-nine of the laws of nineteen
hundred and five, and all taxes which under section two hundred and
fifty-eight of this chapter became due and payable on the thirtieth day
of July, nineteen hundred and six, and all other taxes, if any which
were imposed by chapter seven hundred and twenty-nine of the laws of
nineteen hundred and five on any mortgage recorded prior to the first
day of July, nineteen hundred and six, in respect to any period ending
on or before the first day of July, nineteen hundred and six, shall be
imposed, become due, be payable and collectible and shall be paid over
and distributed in the same manner, and with the same force and effect
as if this article had not been enacted; and for the purpose of collecting,
paying over, distributing and enforcing any such taxes, chapter seven
hundred and tweny-nine of the laws of nineteen hundred and five shall
be deemed to be in force, and the lien for such taxes shall attach and
such taxes shall be levied and collected as provided in chapter seven
hundred and twenty-nine of the laws of nineteen hundred and five, any-
thing herein contained to the contrary notwithstanding.” [Tax Law,
§ 264, as amended by L. 1910, ch. 601, and L. 1916, ch. 337; B. C.
& G. Cons. L., p. 8602. ]

7. L. 1917, ch. 700 (tax on investments), did not repeal this section or modify
it, except as it is modified by the insertion of new § 221b, and therefore with §§ 214
and 331 may apply to the same investment, the difference being that if the owner
shall desire to exempt his securities from the 5% transfer tax under § 221b, he

must pay the higher tax under § 331. Opinion of Atty. Genl. (1917), 13 State Dept.
Rep. 455.

 
PART VI.

DiVISION FENCES; STRAYED ANIMALS; DOGS.

CHAPTER XLI.

DIVISION FENCES; DUTIES OF FENCE VIEWERS.

EXPLANATORY NOTE.

Controversies as to Division Fences.

All controversies arising in a town relative to the erection and mainte-
nance of division fences are to be settled by the assessors and superin-
tendent of highways acting as fence viewers. The powers and duties
of such fence viewers in respect to such controversies are prescribed by
the several sections of the Town Law included in this chapter.

Maintenance of Division Fences.

Division fences between adjoining tracts of land owned by different
owners are to be erected and maintained by such owners, on an equitable
and just basis. This does not necessarily mean that each owner must
erect and maintain an equal portion of the fence. The conditions may
be such as to make it “ equitable and just ” for.one owner to maintain
more than one-half of the fence. Either one of the owners may choose
to let his lands lie open. In such case he can have no remedy for dam-
ages incurred from the animals of his neighbor coming upon his lands.

Proceedings to Settle Disputes.

If any dispute arises as to the portion of the fence to be erected by
each owner, it shall be settled by any two of the fence-viewers, one to
be selected by each owner. All parties interested are to be notified of
the proceedings. If the two fence-viewers cannot agree, they shall select

a third. The decision must be in writing, describe the fence to be
635
636 DIVISION FENCES; STRAYED ANIMALS; DOGS.

Explanatory note.

erected, and state the proportion to be maintained by each; such decision
must be filed in the office of the town clerk.

Witnesses may be subpeenaed, and examined. Each fence-viewer is
entitled to compensation at the rate of one dollar and a half per day.

Damages for Failure to Maintain Division Fence.

If any person liable to contribute to the erection and maintenance of
a fence shall permit the same to be out of repair, he shall be liable to
pay the party injured all damages which shall thereby aecrue. The
amount of the damages is to be ascertained by the fence-viewers in
much the same manner, as the portion of the fence to be erected by each
owner, is to be ascertained.

Regulations as to Division Fences.

Electors of a town at a biennial town meeting may make rules for as-
certaining the sufficiency of all fences in the town. Where such rules
are adopted any person who shall neglect to keep a fence as therein
directed cannot recover for damages incurred by animals coming upon
his lands from adjoining lands.

 

Section 1. Who are fence viewers.

2. Division fences to be maintained by owners; lands bordering on
navigable lakes and rivers.

3. When lands may lie open; owner may, upon notice, enclose lands
lying open.

4. Division fences on change of title; duties of fence viewers in
case of disagreement.

5. Settlement of disputes between owners; proceedings of fence
viewers; decision.

6. Subpena and examination of witnesses by fence viewers; fees
and compensation of fence viewers.

7. Damages for failure to erect or repair division fence, to be ascer-
tained by fence viewers; appraisal of damages; one owner may
erect or repair fence at expense of other.

8. Division fence destroyed by accident; notice to rebuild; Effect
of failure to rebuild.

9. Damages done by animals where fence is not maintained as pro-
vided by town rules and regulations.

10. Damages when person fails to build or repair fence; appraisal by fence
viewers.

11. Use of barbed or other wire in the construction of division fences; fence
viewers to prescribe kind of wire and how to be built.
DIVISION FENCES; DUTIES OF FENCE VIEWERS. 637
Town Law, §§ 121, 360.

§ 1. WHO ARE FENCE VIEWERS.

The assessors and town superintendent of highways elected in every
town shall, by virtue of their offices, be fence viewers of their town.’
[Town Law, § 121, as amended by L. 1909, ch. 491; B. C. & G. Cons. L.,
p. 6179.]

§ 2. DIVISION FENCES TO BE MAINTAINED BY OWNERS; LANDS
BORDERING ON NAVIGABLE LAKES AND RIVERS.

Each owner of two adjoining tracts of land, except when they other-
wise agree, shall make and maintain a just and equitable portion
of the division fence between such lands, unless both of said
ad‘oining owners shall agree to let their said lands lie open, along
the division line, to the use of all animals which may be lawfully
upon the lands of either.” When the adjoining lands shall border

 

1. Assessors and superintendents of highways of the several towns in the
state are authorized to act as fence viewers only by force of the statute. Such
officers of a city have no such powers. Armbuster v. Wilson 43 Hun 261.

2. Maintenance of division fences. At common law, adjoining owners were
not bound as between each other, to maintain division fences unless the right
to compel their maintenance had been acquired by prescription or agreement.
But under this statute each owner of two adjoining tracts of land are re-
quired to build and maintain a just and equal proportion of the division fence.
Roney v. Aldrich, 44 Hun, 320. The statute applies as well where lands have
been partially fenced as where the owner has electxd to let his land lie
altogether open. Chryslar v. Westfall, 41 Barb. 159.

Kind of fence. The law touching division fences does not prescribe the
kind of fence that shall be made. Ferris v. Van Buskirk, 18 Barb, 397,
400.

For whose benefit fence to be maintained. The statute was only enacted
for the benefit of the owners or occupants of adjacent lands. Crandall v.
Eldridge, 46 Hun, 411. But one occupying land as a tenant at will or at
sufferance, is entitled to the benefit of the statute, and may maintain an
action for the expense of repairing the portion of the adjoining owner. The
statute is for the benefit of occupants without respect to the particular estate
enjoyed. Bronk v. Brecker, 17 Wend. 320.

A “ just and equitable portion ” of the division fence, as used in the statute
does not necessarily mean an equal portion of the fence, but a portion just and
equal with reference to the cost of its construction and maintenance. People
ex rel. Foote v. Dewey, 1 Hun, 259; 3 T. & C. 638.

2. Lands lying open. Owner must notify fence viewers that he elects to
let his lands lie open before he can escape liability for maintenance of his
portion of the fence. Perkins v. Perkins, 44 Barb. 134.

Liability for damages. Where the cattle of one of two adjoining proprietors
are found trespassing upon the land of the other, the owner of the cattle, t>
638 DIVISION FENCES; STRAYED ANIMALS; DOGS.

Town Law, § 361.

upon any of the navigable lakes, streams or rivers of the state, the owners
of the lands shall make and maintain the division fence between them
down to the line of low water mark, in such lakes, streams or rivers,
except those lands which overflow annually so as to be so submerged with
water that no permanent fence can be kept thereon, and known as low
flatlands; and when adjoining lands shall be bounded by a line between
the banks of streams of water not navigable, and the owners or occupants
thereof cannot agree upon the manner in which the division fence between
them shall be maintained, the fence viewers of the town shall direct
upon which bank of the stream, and where the division fence shall be
lecated, and the portion to be kept and maintained by each adjoining

owner. [Town Law, § 360, as amended by L. 1911, ch. 86; B.C. &G.
Cons. L., p. 6231.]

§ 3. WHEN LANDS MAY LIE OPEN; OWNER MAY, UPON NOTICE, EN-
CLOSE LANDS LYING GPEN.

When the owners of adjoining lands shall choose to let them lie open,
as provided in section three hundred and sixty, neither of such owners
shall be liable to the other in any action or proceeding for any damages
done by animals lawfully upon the former’s premises going upon the
lands so lving open or upon any other lands of the owner thereof through
such lands so lying open. Either owner of any lands so lying open and
adjoining, may, unless the agreement is for a specified period. and after
such agreement has expired may then have the same inclosed, by giving
written notice to that effect to the owners or occupants of the adjoining
lands, whereupon it shall be the duty of both parties to build and main-
tain their several proportions of a division fence.* [Town Law, § 361,
as amended by L. 1911, ch. 86; B. C. & G. Cons. L., p. 6282. ]

 

excuse himself, must show not only that the fences which the proprietor was
bound to maintain were out of repair, but also that the cattle passed over such
defective fences. Angell v. Hill, 45 N. Y. St. Rep. 83, 18 N. Y. Supp. 824; Deyo
v. Stewart, 4 Den. 101.

3. Removal of fence. The effect of removing a division fence and permit-
ting the lands to lie open is to remit the parties to their common law rights
and duties. Holladay v. Marsh, 3 Wend. 142. In such case the owner of the
adjoining lands is not liable for any damages done by animals going upon the
lands so lying open. See Van Slyck v. Snell, 6 Lans. 299. Thus, where a party
removes a division fence without notice, he is liable for all damages sustained.
Richardson v. M’Dougall, 11 Wend. 46.

Notice may be by parol. Holliday v. Marsh, 3 Wend. 142; Perkins v. Perkins,
44 Barb. 134.
DIVISION FENCES; DUTIES OF FENCE VIEWERS. 639
Town Law, §§ 362, 363.

§ 4, DIVISION FENCES ON CHANGE OF TITLE; DUTIES OF FENCE
VIEWERS IN CASE OF DISAGREEMENT.

Whenever a subdivision, or new apportionment of any division fence
shall become necessary by reason of transfer of the title of either of the
adjoining owners, to the whole, or any portion of the adjoining lands, by
conveyances, devise or descent, such subdivision or new apportionment shall
thereupon be made by the adjoining owners affected thereby ; and either
adjoining owner shall refund to the other a just proportion of the value
at the time of such transfer of title, of any division fence that shall there-
tofore have been made and maintained by such other adjoining owner, or
the person from whom he derived his title, or he shall build his proportion
of such division fence. The value of any fence, and the proportion
thereof to be paid by any person, and the proportion to be built by him,
shall be determined by any two of the fence viewers of the town, in case of
disagreement. [Town Law, § 362; B. C. & G. Cons. L., p. 6232.]

§ 5. SETTLEMENT OF DISPUTES BETWEEN OWNERS; PROCEED-
INGS OF FENCE VIEWERS; DECISION.

If disputes arise between the owners of adjoining lands, concerning the
ability of either party to make or maintain any division fence, or the
proportion or particular part of the fence to be made or maintained by
either of them, such dispute shall be settled by any two of the fence
viewers of the town, one of whom shall be chosen by each party; and if
either neglect, after eight days’ notice to make such choice, the other party
may select both.2 The fence viewers, in all matters heard by them, shall

‘

 

Effect of statute. Under the common law the owner of domestic animals is
liable for their trespass upon the lands of others even though such lands are not
inclosed. This section modifies the common law in this respect. Wood v.
Snider, 187 N. Y. 28, revg. 108 App. Div. 168, 95 N. Y. Supp. 508. See also
Stafford v. Ingersoll, 3 Hill, 38.

4, Effect of subdivision or new apportionment. New obligations arise
when, by sub-division or otherwise, there is a change in the extent to which
the adjoining lands of one owner borders upon the lands of the other. The
statute which empowers fence viewers to fix the just proportion of fence to be
maintained refers to the state of things existing when they are called upon to
act, and has no relation to any former ownership of the adjoining possessions.
Adams v. Van Alstyne, 25 N. Y. 282. ;

For form of decision of fence viewers when a transfer of title has been
made, see Form No. 60, post.

5. Jurisdiction of fence viewers. If there be a valid prescription binding
the owner of land to maintain perpetually the fence between him and the
adjoining proprietor, fence viewers have no jurisdiction under our statutes.
The maintenance of a fence by one of the adjoining proprietors exclusively for
640 DIVISION FENCES; STRAYED ANIMALS; DOGS.
Town Law, §§ 364, 365.

see that all interested parties have had reasonable notice thereof, and shall
examine the premises and hear the allegations of the parties. If they
cannot agree, they shall select another fence viewer to act with them,
and the decision of any two shall be reduced to writing, and contain a
description of the fence, and the proportion to be maintained by each,
and shall be forthwith filed in the office of the town clerk, and shall be
final upon the parties to such dispute, and all parties holding under
them.° [Town Law, § 363; B. C. & G. Cons. L., p. 6233.]

§ 6. SUBPOENA AND EXAMINATION OF WITNESSES BY FENCE
VIEWERS; FEES AND COMPENSATION OF FENCE VIEWERS.
Witnesses may be examined by the fence viewers on all questions sub-
mitted to them; and either of such fence viewers may issue subpoenas
for witnesses, who shall receive the same fees as witnesses in a justice’s
court.” Each fence viewer thus employed shall be entitled to one dollar
and fifty cents per diem. The party refusing or neglecting to pay the
fence viewers or either of them, shall be liable to an action for the same
with costs. [Town Law, § 364; B. C. & G. Cons. L., p. 6233.]

§ 7 DAMAGES FOR FAILURE TO ERECT OR REPAIR DIVISION
FENCE, TO BE ASCERTAINED BY FENCE VIEWERS; AP-
PRAISAL OF DAMAGES; ONE OWNER MAY ERECT OR RE-
PAIR FENCE AT EXPENSE OF OTHER.

If any person who is liable to contribute to the erection or repair of a
division fence, shall neglect or refuse to make and maintain his propor-
tion of such fence, or shall permit the same to be out of repair, he shall
be liable to pay the party injured all such damages as shall accrue there-
by, to be ascertained and appraised by any two fence viewers of the town,
and to be recovered with costs. The appraisement shall be reduced to

 

more than twenty years, when he might have compelled the other to maintain
a part, warrants the presumption of a grant or covenant compelling him to do
so. Adams v. Van Alstyne, 25 N. Y. 232.

6. For form of notice to choose fence viewer, see Form No. 61, post. For
form of certificate of apportionment of division fence, see Form No. 62, post.

The decision of fence viewers having jurisdiction of the subject matter and
the parties is final. People ex rel. Foote v. Dewey, 1 Hun, 529; 3 T. & C. 638.

7. References. Fence viewers being authorized to take testimony in regard
to matters before them are authorized to administer an oath for that purpose.
See Code Civ. Proc., sec. 843. Fence viewers, being also authorized to subpena
witnesses, may compel such witnesses to attend and give testimony. See Code
Civ. Proc., secs. 852-862.

For form of subpcena by fence viewer, see Form No. 63, post.
DIVISION FENCES; DUTIES OF FENCE VIEWERS. 641

Town Law, §§ 366, 367.

writing, and signed by the fence viewers making it.® If such neglect or
refusal shall be continued for the period of one month after request in
writing to make or repair the fence, the party injured may make or repair
the same, at the expense of the party so neglecting or refusing, to be
recovered from him with costs.®° [Town Law, § 365; B. C. & G. Cons. L.,
p. 6233.]

§ 8. DIVISION FENCE DESTROYED BY ACCIDENT; NOTICE TO RE-
BUILD; EFFECT OF FAILURE TO REBUILD.

Whenever a division fence shall be injured or destroyed by floods, or
other casualty, the person bound to make and repair such fence, or
any part thereof, shall make or repair the same, or his just proportion
thereof within ten days after he shall be so required by any person inter-
ested therein. Such requisition shall be in writing, and signed by the
party making it.*° If the person so notified shall refuse or neglect to make
or repair his proportion of such fence, for the space of ten days after such
request, the party injured may make or repair the same at the expense of
the party so refusing or neglecting, to be recovered from him with costs.
[Town Law, § 366; B. C. & G. Cons. L., p. 6234.]

§ 9. DAMAGES DONE BY ANIMALS WHERE FENCE IS NOT MAIN-
TAINED AS PROVIDED BY TOWN RULES AND REGULA-
TIONS.

Whenever the electors of any town shall have made any rule or regula-
tion prescribing what shall be deemed a sufficient division fence in such
town, any person who shall thereafter neglect to keep a fence according
to such rule or regulation shall be precluded from recovering compensation
for damages done by any beast lawfully kept upon the adjoining lands
that may enter therefrom on any lands of such person, not fenced in con-
formity to the said rule or regulation, through any such defective fence."

 

8. For form of appraisement of damages by fence viewer for neglect to build
or repair a division fence, see Form No. 64, post.

Appraisement of damages is not’ necessary before beginning an action.
Bronk v. Becker, 17 Wend. 320. Amount of damages, how ascertained. Clark
v. Brown, 18 Wend. 213; Richardson v. McDougall, 11 Wend. 46; Stafford v.
Ingersol, 3 Hill 38; Crandall v. Eldridge, 46 Hun, 411, 413.

9. For form of notice to build or repair a division fence, see Form No. 65,
post.

10. For form of notice to build a fence destroyed by accident, see Form No.
66, post. :

11. Reference. Electors of a town at a biennial town meeting may make
642 DIVISION FENCES; STRAYED ANIMALS; DOGS.

Town Law, § 368.

When the sufficiency of a fence shall come in question in any action, it shall
be presumed to have been sufficient until the contrary be established.
[Town Law, § 367; B. C. & G. Cons. L., p. 6234.]

§ 10. DAMAGES WHEN PERSON FAILS TO BUILD OR REPAIR
FENCE; APPRAISAL BY FENCE VIEWERS.

If any person liable to contribute to the erection or repair of a division
fence shall neglect or refuse to make and maintain his proportion of such
fence, or shall permit the same to be out of repair, he shall not be allowed
to have and maintain any action for damages incurred by beasts coming
thereon from adjoining lands where such beasts are lawfully kept, by
reason of such defective fence, but shall be liable to pay to the party in-
jured all damages that shall accrue to his lands, and the crops, fruit trees
and shrubbery thereon, and fixtures connected with the land, to be
ascertained and appraised by any two fence viewers of the town, and to be
recovered, with costs; which appraisement shall be reduced to writing and
signed by the fence viewers making the same, but shall be only prima facie
evidence of the amount of such damages.!? [Town Law, § 368; B. C. & G.
Cons. L., p. 6235.]

 

rules and regulations for ascertaining the sufficiency of all fences in such town.
See Town Law, sec. 438, ante.

Application. Statute only applies where electors have prescribed as to what
constitutes a sufficient fence. Tonawanda R. R. Co. v. Munger, 5 Den. 255.

Kind of fence. <A fence, erected and maintained upon or near the division
line of such a dangerous character as to cause serious injury and damage to
the animals of an adjoining owner, is a nuisance. Rowland v. Blaird, 18 Abb.
N. C. 256.

A crooked or Virginia fence is a proper division fence. Ferris v. Van Buskirk,
18 Barb. 397.

Proof of insufficiency of the fence should be made, for in no case is it to be
presumed. White v. Scott, 4 Barb. 56.

Recovery of damages. The rule of damages contained in this section is
declaratory of the common law. Griffin v. Martin, 7 Barb. 297.

In an action against a railroad company for an injury to a cow escaping
through an insufficient fence on to the track of such company, it was held that
in the absence of action by a town meeting establishing the height or strength
of division fences, that it was competent to show what in that town the height
and strength of such fences generally were. Leyden v. N. Y. C. & H. R. R. R.
Co., 55 Hun, 114, 117.

12. Action for damages. The word “incurred” means brought on, and by
this statute the party in default is to have no action for damages brought on
himself in some manner., Deyo v. Stewart, 4 Denio 101, 103; Stafford v. Inger-
sol, 3 Hill 40; Clark v. Brown, 18 Wend. 213.
DIVISION FENCES; DUTIES OF FENCE VIEWERS. 643
Town Law, § 369.

$ 11. USE OF BARBED OR OTHER WIRE IN THE CONSTRUCTION
OF DIVISION FENCES; FENCE VIEWERS TO PRESCRIBE
KIND OF WIRE AND HOW TO BE BUILT.

Barbed or other wire may be used in the construction of any division fence, pro-
vided, however, that the person or corporation desiring to use such material shall
first obtain from the owner of the adjoining property his written consent that it may
be so used. If the owner of the adjoining property refuses to consent to the building
of such a fence, it may nevertheless be built in the following manner: The fence
shall be of at least four strands of wire with a sufficient bar of wood at the top;
and the size of such top bars and of the posts and supports of such fence, and their
distances apart, shall be such as the fence viewers of tae town may prescribe and
with the posts no further apart than fourteen feet; and such fence shall be otherwise
supstantially built and a reasonably sufficient inclosure for holding the particular
kind or class of cattle or animals usually pastured on either side of the fence. Noth-,
ing contained in section three hundred and sixty-seven shall be construed to author-
ize the electors of any town to prohibit the use of wire fences, for division fences, if
such fences comply with the requirements of this section. Whenever such fence shall
become so out of repair as to be unsafe, it shall be the duty of the owner or owners
to immediately repair the same. But any person building such a fence without the
written consent of the owner of the adjoining property shall be liable to all damages
that may be occasioned by reason of such fence. But this section shall not be so
construed as to permit railroad corporations to use barbed wire in the construction
of fences along their lines contrary to the provisions of section 52 of the railroad
law.13 [Town Law, § 369, as amended by L. 1911, ch. 86; B. C. & G. Cons. L., p.
6235.]

 

13. Use of barbed wire. The provision of the statute prohibiting or regulating
the use of barbed wire in the construction of fences does not apply to fences con-
structed before the enactment of the statute. Stissner v. N. Y. C. & H. R. R. R. Co.,
32 App. Div. 98; 52 N. Y. Supp. 861. In this case it was held that a flat iron ribbon
one-half inch wide, with saw teeth cut in one-fourth of an inch on one side of the
ribbon, one and one-half inches apart, was not a barbed wire within the prohibition of
tne use of such material in railroad fences under section 52 of the Railroad Law.

Where a barbed wire fence has been constructed without the consent of the adjoin-
ing owner by a tenant occupying the land, he will be liable for the resulting damages,
although the statute imposes a duty upon the owner of the land to construct
and maintain proper division fences. Buckley v. Clark, 21 Misc. 138; 47 N. Y.
Supp. 42.

Liability. It is immaterial to defendant’s liability that the fence was not built
upon the division line, but was built near the line and on defendant’s property.
Rowland v. Baird, 18 Abb. N. C. 256.

Whether it is or is not negligence to erect barbed-wire fence is a question of fact;
effect of statute relating to such fences. Although this section forbids the use of
barbed wire in the construction of a division fence, except in the manner therein pre-
scribed, without the written consent of the owner of tne adjoining property, and
provides that the person building a fence as therein authorized without such con-
sent shall be liable for all damages that-may be occasioned thereby, yet a barbed-
wire fence is not a nuisance as a matter of law. Whether it is or not negligence to
erect and maintain one is a question of fact, and the statute is to be considered in
determining that question. The owner of a farm adjoining and surrounding a
schoolhouse lot erected a fence on the division line between his land and the lot by
setting posts on such line, on which he fastened, about four feet from the ground,
a barbed wire, with barbs about six inches apart. The next day, and while the fence
was incompleted, a child eleven years of age, who was not aware that the wire had
been fastened to the posts, ran from the door of the schoolhouse ‘toward the fence,
looking over her shoulder and calling to a schoolmate, and while so running her neck
came in contact therewith and was lacerated thereby. Upon the trial of the action
to recover for the injuries the court dismissed the complaint. Held, error; that the
questions of the negligence of the defendant and that of the contributory negligence
of the plaintiff were for the jury. Barr v. Green (1914), 210 N. Y. 252,104 N. E. 619.
644. DIVISION FENCES; STRAYED ANIMALS; DOGS.

Town Law, § 380.

CHAPTER XLII.
STRAYED ANIMALS DOING DAMAGE; DUTIES OF FENCE VIEWERS.

Section 1. Lien upon strayed animals doing damage.
2. Notice of lien to be filed with town clerk; fees for recording.
3. Impounding strayed animals; if not impounded to be properly
cared for.
4. Owner or occupant of the lands to notify the owner of the ani-
mals of the impounding of such animals.

5. Charges for notice; fence viewers to determine damages in case
of disagreement.

6. Fence viewers’ fees.

7. Foreclosure of lien; effect of failure to establish lien.

8. Sale of animals by fence viewers; notice of sale.

§. Disposition of proceeds of sale.

10. Notice of fence viewers’ meeting for assessment of damages to

be given to owner of animals.

11. Fence viewers to view premises damaged; subpcnas; examina:
tion of witnesses.

12. Foreclosure of lien by action.

18. Duties and fees of pound-masters,

14. Surplus moneys arising from sale of animals, if unclaimed, to
be paid to overseers of the poor.

15. Villages and cities deemed towns, for purposes of assessing damages
for stray animals.

16. Assessment of damages occasioned by inanimate goods or chattels.

§ 1. LIEN UPON STRAYED ANIMALS DOING DAMAGE.

Whenever any person shall have any strayed horses, cattle, sheep, swine or
other beasts upon his inclosed land, or shall have any such beast on land
owned or occupied by him doing damage, and such beast shall not have
come upon such lands from adjoining lands, where they are lawfully kept,
by reason of his refusal or neglect to make or maintain a division fence
required of him by law, such person may have a lien upon such beasts for
the damages sustained by reason of their so coming upon his lands and
doing damage, for his reasonable charges for keeping them and all fees
and costs made thereon, and he may keep such beasts until such damages,
charges, fees and costs are paid, or such lien is forclosed, upon complying
STRAYED ANIMALS DOING DAMAGE. 645

Town Law, § 381.

with the provisions of this article relating thereto.1 [Town Law, § 380;
B. C. & G. Cons. L., p. 6236.]

§ 2. NOTICE OF LIEN TO BE FILED WITH TOWN CLERK; FEES
FOR RECORDING.

If such beasts are not redeemed within five days after coming upon
such lands, the person entitled to such lien, shall deliver to the town clerk
of the'town, within which such lands or some part thereof shall be, a written
notice subscribed by him, containing his residence, and a description of
the beasts so strayed or coming upon his lands, as near as may be, and
that he claims a lien on such beasts for such damages, charges, fees and
costs.2. The town clerk shall record the notice in a book to be kept by him
for that purpose, for which he shall receive ten cents for each beast, to
be paid by the person delivering the notice. Such book shall always be

 

1. Strays upon highways. The Justice Court Act, §§ 345-378, provides
a penalty for allowing animals to run at large in public streets and high-
ways, authorizes the seizure of such animals by overseers of the highways
in towns, and street-commissioners in villages, or by the owner of the land
upon which such animals have strayed from a street or highway, and pro-
vides procedure before a justice of the peace for the sale of such animals
and the disposition of the proceeds of such sale.

Strayed animals coming upon lands owned or occupied by any person,
from lands adjoining, because of insufficient or improperly maintained
division fences are to be disposed of as provided in this chapter. The sec-
tions of the Justice Court Act above referred to, do not apply to animals
escaping through a division fence upon an adjoining owner, nor do tHey au-
thorize the trial of the sufficiency of such a fence. Cowles v. Balzer, 47 Barb.
562; Cropsey v. Perry, 1 How. Pr. N. S. 40; Jones v. Sheldon, 50 N. Y, 477.

Lien upon horses found upon premises. Where horses have strayed from
highway upon premises, the owner of the premises may take possession of
the horse and have a lien thereon under the provisions of the above section.

The fact that after the owner of the land took possession of the horses
the owner of the horses demanded the return thereof, but made no legal

offer to redeem does not affect the right of lien. Lynch v. Ford, 72 App. Div.
536, 76 N. Y. Supp. 546.

Liability for damages, Where cattle cross unfenced land abutting upon
a highway and trespass upon other unfenced lands adjacent thereto but not
abutting upon the highway, the owner of such animals is liable for the dam-
ages caused thereby, notwithstanding the absence of a fence. Wood v.
Snider, 187 N. Y. 28, revg. 108 App. Div. 168, 95 N. Y. Supp. 508.

Damages awarded measured by injuries caused by animals and the cost
of keeping them. Cook v. Gregg, 46 N. Y. 439. And see Armbruster v.
Wilson, 43 Hun 261.

2. For form of notice that person has animals in his possession found
upon his lands, and that he claims a lien on such animals, see Form No.-67,
- post,
645 DIVISION FENCES; STRAYED ANIMALS; DOGS.

Town Law, §§ 382, 388, 384.

kept open for inspection, and no fees shall be taken by the clerk therefor.
[Town Law, § 381; B. C. & G. Cons. L., p. 6238. ]

§ 3. IMPOUNDING STRAYED ANIMALS; IF NOT IMPOUNDED TO BE
PROPERLY CARED FOR.

Within six days after such beasts shall have come upon such lands,
such owner or occupant may cause them to be put in the nearest pound in
the same town, if there be one, there to remain until they are redeemed,
sold or reclaimed aceording to law. If there be no such pound, or he
elect to keep such beasts, he shall cause them to be properly fed and cared
for until they are redeemed, sold or reclaimed according to law. [Town
Law, § 882; B. C. & G. Cons. L., p. 6237.]

§ 4. OWNER “%R OCCUPANT OF THE LANDS TO NOTIFY THE
OWNER OF THE ANIMALS OF THE IMPOUNDING OF SUCH
ANIMALS.

Within thirty days after any such beasts may have come or been found
upon any lands, the owner or occupant of the lands shall serve a written
notice, either personally or by mail, upon the owner of the beasts, if known,
that they are upon his lands, or in pound as the case may be, and are held
by him as strays or beasts doing damage, as the case may be; and if such
owner is not known, he shall publish such notice, within such time, in the
nearest newspaper of the county for at least two successive weeks. [Town
Law, § 383; B. C. & G. Cons. L., p. 6237]

§ 5. CHARGES FOR NOTICE; FENCE VIEWERS TO DETERMINE
DAMAGES IN CASE OF DISAGREEMENT,

The person delivering the notice to the town clerk shall be entitled to
receive therefor, in addition to the fees paid the town clerk, fifteen cents
each for all horses, mules, cattle and swine, and five cents for each other
beast described in the notice. If the charges, damages, costs and fees are

 

8. Pounds. The electors of a town at a biennial town meeting may vote
to establish and maintain pounds at convenient places within the town. See
Town Law, sec. 43, sub. 6, ante.

Definition of pound. See Chenango County Humane Society v. Polmatier
(1919), 188 App. Div. 419, 177 N. Y. Supp. 101.

Failure to provide food and drink. The Penal Law, § 187, provides that:
“A person who, having impounded any animal, refuses or neglects to supply
to such animal during its confinement a sufficient supply of good and whole-
some air, food, shelter and water, is guilty of a misdemeanor.”

4. For form of notice to owner of animals held as a stray, see Form No.
68, post.
STRAYED ANIMALS DOING DAMAGE. G47
Town Law, §§ 385, 386, 387, 388.

not agreed upon between the person delivering the notice and the owner of
the beasts, they shall be determined by two fence viewers of the town, one
of whom shall be selected by the person claiming the lien, the other by the
fence viewer so selected. If such fence viewers cannot agree, they shall
select another to act with them, and the decision of any two of them shall
be final. [Town Law, § 384; B. C. & G. Cons. L., p. 6238.]

§ 6. FENCE VIEWERS’ FEES.

Each fence viewer shall be entitled to receive ten cents for every mile
he shall be obliged to travel from his residence to the place where the beasts
are kept, and seventy-five cents for certificate of the charges as ascertained
by them. [Town Law, § 385; B. C. & G. Cons. L., p. 6238.]

§ 7. FORECLOSURE OF LIEN; EFFECT OF FAILURE TO ESTABLISH
LIEN. i

If the owner of such beasts shall not redeem the same within three
months after delivery of the notice to the town clerk, the person delivering
the notice may foreclose his lien by action, or by a sale of the beasts, as
herein provided. When a person claiming a lien, as herein provided, shall
fail to establish the same, he shall not be entitled to receive anything for
damages, charges, fees or costs, but shall be liable to pay all fees, costs and
expenses incurred by reason of his keepiing such beasts and the proceedings
thereon. [Town Law, § 386; B. C. & G. Cons. L., p. 6238.]

§ 8 SALE OF ANIMALS BY FENCE VIEWERS; NOTICE OF SALE.

After such three months, a fence viewer of the town, on application of
the person delivering the notice, shall give at least ten days’ previous
notice of the time and place of the sale of such beasts, by advertisement
posted up in at least five public places in the town where such beasts may
have been kept, one of which shall be at or near the outside door of the
town clerk’s office.5 At the time and place mentioned, such fence viewers
shall sell such beasts to the highest bidder, unless redeemed by the owner.
[Town Law, § 387; B. C. & G. Cons. L., p. 6238.]

§ 9. DISPOSITION OF PROCEEDS OF SALE.
Out of the proceeds from such sale, the fence viewer shall retain and

 

5. For form of a notice of sale by a fence viewer, see Form No. 69, post.
648 DIVISION FENCES; STRAYED ANIMALS; DOGS.

Town Law, §§ 388, 389, 390.

pay the sums charged for such notices, fees and costs, together with the
sums specified in the certificate for keeping the beasts and damages
done by them; and the like charges for the sale, as are allowed on sales
under executions issued out of Justices’ Courts, and he shall pay the
residue to the owner of the beasts, if he shall appear and demand the
same. [Town Law, § 388; B. C. & G. Cons. L., p. 6239.]

§ 10. NOTICE OF FENCE VIEWERS’ MEETING FOR ASSESSMENT
OF DAMAGES TO BE GIVEN TO OWNER OF ANIMALS.

When the owner of such beasts is known and resides in the same town
where such beasts are kept, five days’ notice of the time and place of
the meetings of the fence viewers to determine the damages done by such
beasts, and the charges for keeping them, shall be personally served on
him; if he resides elsewhere, and his post-office address is known, such
notice shall be served by mail or personally. [Town Law, § 389; B. C.
& G. Cons. L., p. 6239.]

§ 11. FENCE VIEWERS TO VIEW PREMISES DAMAGED; SUB-
POENAS; EXAMINATION OF WITNESSES.

The fence viewers shall view the premises where damages are claimed
to have been done, and they may issue subpoenas, examine witnesses and
take any competent evidence of the facts and circumstances“ necessary to
enable them to determine the matter submitted to them, and shall deter-
mine any dispute that may arise touching the sufficiency of any division
fence around the premises where such damage was done, and from where
and how the beasts came upon the lands of the person claiming such dam-
ages and charges; if they determine that for any cause the claimants’
lien is not enforceable, they shall so certify, and the owner of the beasts
shall thereupon be entitled to them without paying any charges thereon.®
[Town Law, § 390; B. C. & G. Cons. L., p. 6239.]

 

6. For form of notice to owner, of fence viewers’ meeting, see Form No.
70, post. :

7. Administering oath by a fence viewer, authorized by section 843 of the
Code of Civ. Proc.

Witnesses. Fence viewers may compel witnesses to attend and testify, Code
Civ. Proc., secs. 854-862.

8. For form of certificate of fence viewers showing their determination of
the dispute, see Form No. 71, post.
STRAYED ANIMALS DOING DAMAGE. 649
Town Law, §§ 391, 392, 393.

$ 12. FORECLOSURE OF LIEN BY ACTION.

When such lien is foreclosed by action,® all questions relating to damages,
charges, sufficiency of fence, and from where and how such beasts came
upon the lands of the person claiming such damages and charges, shall be
proven upon the trial of such action, and no certificate of fence viewers
upon such questions shall then be necessary. [Town Law, § 391; B. C. &
G. Cons. L., p. 6239.]

§ 13. DUTIES AND FEES OF POUND MASTERS.

Every pound master shall receive and keep all beasts delivered to him
as herein provided, until they shall be redeemed, sold or reclaimed, for
which he shall be entitled to a reasonable compensation, not exceeding:
fifty cents per day for a horse or mule, twenty-five cents per day for each:
head of cattle, and fifteen cents per day for all other beasts, to be deter-
mined by the fence viewer making the sale, or the court before whom the
action is tried, besides his fees for taking and discharging the beasts,
to be paid by the owner of the beasts, if the lien is established, otherwise
by the person claiming a lien thereon. [Town Law, 392; B. C. & G.
Cons. L,. p. 6240.]

§ 14. SURPLUS MONEY ARISING FROM SALE OF ANIMALS, IF
UNCLAIMED, TO BE PAID TO OVERSEERS OF THE POOR.

If the owner of the beasts shall not appear and demand the residue of
such moneys within one year after the sale, he shall be thereafter pre-
cluded from recovering any part thereof, and the same shall be paid
by the officer making the sale to the overseers of the poor of the town, or,
in cities, to the officers having their powers, for the use of the poor there-
of, and their receipt shall be a legal discharge to the keeper of such beasts
and the officer selling the same. If the officer who shall have sold such
beasts shall not, within thirty days after the expiration of the year, pay
such moneys to the overseers of the poor of the town, or, in cities, to
officers having their powers, he shall forfeit to the town or city double

 

9. Foreclosure by action. A lien on strayed animals created pursuant to
this chapter may be foreclosed by action in the manner provided by secs.
206-210 of the Lien Law.

10. Lien a defense in action for replevin. A defense, in an action for re-
plevin of animals, that the defendant distrained them while trespassing on
his lands, and detains them under the lien thereby created for the damage
done, is good and sufficient. Boyce v. Perry, 26 Mise. 355, 57 N. Y. Supp.
214. }
650 DIVISION FENCES; STRAYED ANIMALS; DOGS.
Town Law, §§ 396, 394.

the sum so remaining in his hands, together with the amount of such
moneys. [‘Town Law, § 393; B. C. & G. Cons. L., p. 6240.]

§ 15. VILLAGES AND CITIES DEEMED TOWNS, FOR PURPOSES OF
ASSESSING DAMAGES FOR STRAY ANIMALS.

The villages and cities of this state shall be considered towns for the
purposes of this article; and the trustees of the village and’ the aldermen

of the city shall be fence viewers therein for the purposes of this article.
[Town Law, § 396; B. C. & G. Cons. L., p. 6241.]

§ 16. ASSESSMENT OF DAMAGES OCCASIONED BY INANIMATE
GOODS OR CHATTELS.

When any person shall be authorized to distrain inanimate goods or
chattels doing damage, or whenever any logs, timbers, boards or plank,
in rafts or otherwise, or other personal property shall have drifted upon
his lands, he shall be entitled to the same remedies, and shall proceed
therein in the same manner and with the same powers as herein provided
with respect to beasts found doing damage, so far as such provisions are
applicable. He must deliver his notice of lien to the town clerk,
describing the property, within thirty days after it lodges upon his
lands, and he shall keep the same in some convenient place, without
removal to a pound, until the property is sold or reclaimed. The same
officer shall conduct proceedings therein as in proceedings where beasts
are found doing damage, and all proceeds of sale shall be, in like man-
ner, paid over and applied, subject to the same penalties and liabilities,
and with the same force and effect. The fee of the town clerk for
filing and recording such notices of lien pursuant to section three hun-
dred and: eighty-one of this chapter, shall be one dollar and the charges
of the land owner claiming such lien and delivering such notice to the
town clerk, pursuant to this section, shall be at the rate of five cents
for each such stray, but shall in no event exceed the sum of fifty dollars
upon any one lien. Any lien for logs, timber, boards or plank, in rafts
or otherwise, filed herein may be discharged in the manner provided in
sections nineteen and twenty of the lien law, with reference to the dis-
charge of mechanics’ liens, so far as such provisions are applicable.
[Town Law, § 394, as amended by L. 1915, ch. 439; B. C. & G. Cons.
L., p. 6240. ] :
DOGS, DUTIES OF TOWN AND COUNTY OFFICERS. 651

Farms and Markets Law, § 296.

CHAPTER XLIII.
DOGS; DUTIES OF TOWN AND COUNTY OFFICERS RELATIVE TO DOGS.

Section 1. Licensing of dogs; former laws repealed.

2. Definitions.

3. Licensing of dogs and kennels, fees.

4. Assessors to prepare lists of dogs.

5. Issuance of licenses; penalty for failure to obtain; registry of

licenses.

Tags; how furnished and attached; blanks and forms.

. Killing unlicensed dog; killing dog for attacking animals; dogs
running at large; dog killed on court order.

8. Town and city clerks to report failure to pay; penalties; fees of

officers and magistrates.
9. Damages for injuries caused by dogs; assessors to ascertain dam-
ages; payment of claim by state.

10. Report as to dog Killed.

11. Disposition of fees; penalties and damages recovered.

12. Recovery of penalties; actions for damages.

13. Apportionment to towns and cities of surplus moneys.

14. Enforcement of provisions of chapter.

15. Pounds and dog catchers in certain counties.

15a. Article to be enforced by village authorities.

16. Dogs running at large in forest preserve.

AD

§ 1. LICENSING OF DOGS; FORMER LAWS REPEALED.

The laws relative to licensing dogs, the assessment and payment of
damages, caused by dogs, and the imposing of penalties for failure to
obtain licenses, were repealed by L. 1922, ch. 48. By this act, the
licensing of dogs and the payment of claims for damages caused by
dogs are placed under the control of the State Department of Farms
and Markets. Town officers, including town clerks, assessors, justices
of the peace and constables, are required to perform many important
duties as to licensing dogs, that are not licensed or are running at
large and the assessment of damages. All fees are paid to the county
treasurer, and claims when adjusted are paid out of the county trea-
sury.

All local laws and laws regulating the keeping of dogs in towns,
villages and cities are repealed. It is provided in section 296 of L.

1922, ch. 48, that ‘‘Chapter nine of the laws of nineteen hundred and
nine, entitled ‘an act in relation to agriculture, constituting chapter

one of the consolidated laws,’ and acts and all parts of acts amendatory
thereof or supplemental thereto, are hereby repealed.’’ [See Farms and
Markets Law, § 296.]
652 DIVISION FENCES; STRAYED ANIMALS; DOGS.

Farms and Markets Law, §§ 106, 107.

§ 2. DEFINITIONS.

When used in this act, the word ‘‘owner,’’ referring to the owner
of a dog, includes a person harboring or keeping such dog.! The word
“‘kennel,’? when so used, means a place where five or more dogs over
six months old are harbored or kept, which dogs are registered in or
by a recognized registry association. The word ‘‘dog,’’ when so used,
shall include a bitch, except where provision is made for the licensing
of dogs and the payment of license fees. [Farms and Markets Law,
§ 106.]

§ 3. LICENSING OF DOGS, AND DOG KENNELS; FEES.

Dogs to be licensed; fees—A person who owns, harbors or keeps
a dog shall obtain a license therefor, as provided herein, and shall
pay the folowing fees: (1) two dollars for each male dog and spayed
female dog; (2) five dollars for each bitch; (3) twenty dollars for a
kennel of dogs, or such sum not in excess of such sum of twenty dollars
as will equal two dollars for each dog over six months old harbored
or kept in such kennel, for which a kennel license shall be given as
hereinafter provided. Before any person shall be entitled to obtain a
license for a spayed female dog at the reduced fee herein provided,
he shall produce and deliver to such town or city clerk an affidavit
made by the owner or a certificate in writing signed by a duly licensed
veterinary surgeon showing that such female dog has been spayed.
There shall be paid to the town or city clerk, in addition to each

license fee, the sum of twenty-five cents as a registration fee, for the
services of such clerk.

Application for a license shall be made to the clerk of the town or
city in which the dog is harbored or kept. Such application shall be in
writing and shall state the name, sex, breed, age, color and marking of
the dog for which a license is sought.

When the applicant for such license shall have complied with the

 

1, What constitutes harboring a dog. Affording shelter or protection to a dog,
temporarily or permanently, is “harboring” within the meaning of this section.
Robinson v. Rowland, 26 Hun 501,

The situs of a dog for the purpose of taxation, under the above section, is the
place or town where he is kept or harbored, and not the residence of his owner.
Arnold v. Ford, 53 App. Div. 25; 65 N. Y. Supp. 528. The court (per Kellogg, J.),
says in this case: “The entire law seems to form a scheme of taxation wholly dif-
ferent from the general scheme of taxation of personal or real property, and the tax
when collected forms a special fund to defray the depredations of dogs upon sheep.
A fair construction of the law, it seems to me, discloses a clear intention to compel
the owner or possessor of a dog to pay the tax into this sheep fund in the town
where the dog is kept, and to pay the tax once each year. If the payment cannot
be enforced, then it is made the duty of the collector to kill the dog. This clearly
shows the intention of the legislature to make the situs of the dog, for the purposes
of this tax, to be the place or town where he is kept or harbored.
DOGS; DUTIES OF TOWN AND COUNTY OFFICERS. 653

Farms and Markets Law, § 109.

provisions of this section, the town or city clerk shall thereafter issue
a license to such applicant and shall deliver to such applicant a tag

bearing the same number that the license bears.

Licenses obtained hereunder subsequent to the-year beginning March
first, nineteen hundred and twenty, shall be applied for on or before
July first and shall be for a period of one year. Licenses thereafter
issued shall be for the period from July first until June thirtieth in
each following year. Licenses shall not be required for dogs under
the age of four months that are not allowed to run at large, or under
the age of six months if kept in a kennel owned by the breeder thereof,
providing such dogs are not allowed to run at large. If such dog shall
become of the age of six months if kept in a kennel, after the first day
of March, nineteen hundred and eighteen, then such dog shall be sub-
ject to a license as herein provided. Each license of a dog first issued
shall take effect when issued, and shall expire on the last day of June
following its issuance. Hach license in renewable of a license already
issued shall be for a term of one year beginning on July first, except as
otherwise herein provided. [Farms and Markets Law, § 107.]

Kennel licenses.—The owner of a kennel may apply for and obtain
a kennel license, which shall be in lieu of the license, issued under this
chapter for each dog harbored or kept in such kennel: Upon the pro-
curing of such license for a kennel, the owner or owners thereof shall
be exempt from any further license fee in respect to such dogs for
the year for which such license is issued. The applicant shall present
with his application for a kennel license a registry certificate of the
registry association registering the dogs in such kennel. A copy of
such certificate shall be filed with the city or town clerk. If the owner
of a kennel shall harbor or keep a dog which is not covered by such a
certificate, such dog shall be licensed separately and the same fee paid
as in the case of other dogs. A kennel license shall continue for the

same period as licenses issued under the preceding section. [Farms
and Markets Law, § 108.]

§ 4. ASSESSORS TO PREPARE LISTS OF DOGS.

The assessors of each town or police department of a city shall
annually in the month of June ascertain by due inquiry the dogs
owned, harbored or kept in such town or city. Each owner of a dog
shall answer all questions relative to ownership of such dog, and if
he answers falsely or refuses to answer such questions, he shall be sub-
ject to a penalty of ten dollars, to be recovered in an action brought
therefor as hereinafter provided. The assessors of each town and the
‘police department of each city shall prepare a list contaiming the
names and addresses, by street and number, if any, of the owners of
654 DIVISION FENCES; STRAYED ANIMALS; DOGS.

Farms and Markets Law, §§ 110, 112.

dogs in such town or city, and the number and sex of dogs owned,
harbored or kept by each owner, and whether such dogs are kept or

harbored in kennels. There shall be appended to such list the
affidavit of the assessors to the effect that they have ascertianed by
due inquiry the dogs owned, harbored or kept in such town or city

and that such list is a true list of the owners of dogs in such town or
city and the number and sex of dogs owned, harbored or kept by each
owner, so far as the assessors have been able, by the exercise of due
diligence, to ascertain the same. Such list shall be prepared in dupli-
cate, one of which shall be filed with the town or city clerk and the
other with the department of farms and markets, on or before the
tenth day of July following. The assessors shall receive as compen-
sation for their services the sum of twenty cents for each dog listed
by them, which shall be paid by the county treasurer from moneys
collected under this article, when such bills have been duly certified
to the said county treasurer by the commissioner. [Farms and Markets
Law, § 109.] ;

§ 5. ISSUANCE OF LICENSES; PENALTY FOR FAILURE TO OBTAIN;
REGISTRY OF LICENSES.

Issuance of licenses; penalty for failure to obtain.—A license shall
be issued upon application being made therefor and upon payment of
the fee hereinbefore prescribed. Such license shall be in the form
prescribed by the department of farms and markets, and shall be
executed by the town or city clerk. Each license shall state the year

for which it was issued and shall bear a serial number. An owner of a
dog, who fails or refuses to obtain a license for such dog within thirty

days after he is required to do so under the provisions of this chapter,

shall be subject to a penalty of ten dollars. [Farms and Markets Law,
§ 110.]

Registry of licenses.—The town or city clerk shall register the dogs
and kennels licensed under the provisions of this chapter, in a book to
be provided for such purpose. The books, for the registry of such
licenses shall be furnished by the department of farms and markets
and shall be kept in the manner prescribed by it. Such registry shall

contain the name of the owner of the dog or kennel licensed, the date of
the license, and the number of the tag or tags issued for each licensed

dog or kennel. Such clerk shall furnish, upon the demand of the de-
DOGS, DUTIES OF TOWN AND COUNTY OFFICERS. 655

Farms and Markets Law, §§ 111, 112.

partment of farms and markets, transcripts of the whole or any part

of such registry, and of any other records required to -be kept by. this
chapter, and shall receive therefor compensation to be fixed by the de-
partment. [Farms and Markets Law, § 112.]

§ 6. TAGS; HOW FURNISHED AND ATTACHED; BLANKS AND FORMS.

Tag to be furnished; how attached The city or town clerk is-
suing such license shall at the time of the issuance thereof deliver to
the owner a metal tag. Such tag shall bear the same date and serial
number as the license. The owner of the dog so licensed shall place

and keep around the neck of such dog a collar of leather or other
suitable material and shall attach such tag to such collar by means of
rivets, metal bands or other suitable devices. An owner of a dog

shall not permit a licensed dog to be without such collar and tag
during the period of the license.

And where the license thus issued is the kennel license hereinbefore
provided for, it shall be the duty of the city or town clerk to deliver
to the person to whom the kennel license is delivered as many metal
tags as there are dogs over six months of age covered by such license.
The town or city clerk shall also be paid by the person to whom the
same is issued a tag fee of twenty-five cents for each tag issued.

A new tag with a new number shall be furnished to the owner of a
licensed dog by the city or town clerk, in place of the original tag,
upon presentation of the license and proof of the loss of such original
tag. The clerk shall endorse the new number of such tag on such
license and shall enter it upon the registry. The clerk shall receive
for his services in issuing such new tag the sum of twenty-five cents.
[Farms and Markets Law, § 111.]

Tags and blanks to be furnished by department of farms and
markets; forms.—The forms of applications for licenses and of other
statements, reports, certificates and papers required to be filed or
presented under the provisions of this chapter shall be prescribed
by the department of farms and markets. The department shall
furnish to each town or city clerk (1) a sufficient number of blank
applications for licenses and licenses for use of such clerk in licensing
dogs as provided herein; (2) blank statements, reports, certificates
and other documents required for the purposes of this chapter; (3)
656 DIVISION FENCES; STRAYED ANIMALS; DOGS.

Farms and Markets Law, § 114.

a sufficient number of suitable metal tags required to be worn by dogs

licensed as provided in this chapter. The cost of such blanks and tags

shall be paid by the department out of moneys appropriated there

for. [Farms and Markets Law, § 113.]

§ 7. KILLING UNLICENSED DOG; KILLING DOG ATTACKING ANIMALS;
DOGS RUNNING AT LARGE; DOG KILLED ON COURT ORDER.

Killing unlicensed dog.—The fact that a dog is without a tag at-
tached to a collar, as hereinbefore required, shall be presumptive evi-
dence that such dog is unlicensed and that a tag was not issued and at-
tached as so required. An action shall not be maintained for an injury
to or destruction of a dog without a tag.

A representative designated by the department of farms and markets,
or any peace officer, shall seize an unlicensed dog, either on or off the
owner’s premises, or if the dog be not delivered to him by the owner
on request and he cannot with reasonable effort secure him, he may,
after pursuit, kill the dog. If the owner of the dog so seized does not,
within five days after such seizure, obtain a proper license, and pay
the sum of two dollars as the cost of seizure, such dog may be
killed or sold by such representative or peace officer. The proceeds of
the sale and the charge made for such seizure shall be paid into the
county treasury. Peace officers either seizing or killing or both seizing
and killing dogs under the provisions of this section shall be paid by
the county treasurer two dollars for each dog seized and two dollars for
each dog killed, after the claim therefore has been duly allowed by the
board of supervisors.

Incorporated societies for the prevention of cruelty to animals,
humane, or other like associations or corporations, now performing
duties or exercising functions with reference to dogs in cities, under
existing provisions of law or contracts entered into by them with the
several cities of the state in which such duties or functions are per-
formed or exercised, shall continue to perform such duties or exercise
such functions in accordance with such provisions of law or the terms
of such contract. A city may designate a humane or other like associ-
ation or corporation, or any of the officers or agents thereof, or any city
officer or officers to enforce the provisions of this article in such city,
and may fix the compensation or salary of the person or persons, as-
sociation or corporation performing the services, and may provide for
the disposition of fees earned in the performance of such duties, either
by payment into the city treasury or otherwise. But the department
of farms and markets may by an order revoke the right of any such
society, association or corporation, or officer or agent thereof to perform
such duties or exercise such functions, if after notice to such society,
DOGS, DUTIES OF TOWN AND COUNTY OFFICERS. 657

Farms and Markets Law, §§ 115, 116.

association, corporation, or officer or agent thereof, and a hearing
thereon, it shall appear that such society, association, corporation,

officer or agent, has failed to discharge properly its duties or functions

under such provisions of law or contracts, and may designate any such
association, corporation, officer or agent or a representative of the
department to enforce the provisions of this article in the place of the

association or corporation, officers or agents whose authority is so
revoked. Such order shall not be effective until approved by the
governor. Whenever requested by any municipality, it shall be the
duty of the department of farms and markets to permit impounded
dogs required to be killed under this chapter, to be killed by or under
the direction of such a society, association or corporation. Contracts
hereafter entered into between an incorporated society for the preven-
tion of cruelty to animals and the mayor of a city of the second class, un-
der the provisions of section two hundred and thirty of the second class

cities law, shall be subject to the approval of the department of farms
and markets and shall when so approved be in full force and effect,
subject to the provisions of this article, provided that the compensation
to be paid under such contracts shall not exceed the amount of the sur-
plus apportioned to such cities as provided in this article. Any city
or town may impose restrictions and limitations upon the keeping and
running at large of dogs within such city or town, although such limita-
tions or restrictions are not otherwise imposed by this article. [Farms
and Markets Law, § 114.]

Dog to be killed for attacking animals—Any person may kill a
dog while it is attacking, chasing or worrying any domestic animal
having a commercial value, or attacking fowls, or while such dog is
being pursued thereafter. [Farms and Markets Law, § 115.]

Dogs running at large; order of department of farms and markets.—
The department of farms and markets of its own motion or on the
application of at least two residents, may issue an order restraining.
the owner of a dog, to be described in such order as dangerous to
persons, domestic animals or fowls, from permitting such dog to run
at large outside of and away from the premises of the owner, during
a time to be specified in such order. Such order shall be served per-
sonally or by registered mail on the owner, or in case of his absence
on an adult member of the family or person in charge of the premises
where such dog is harbored.

An owner of a dog who, after the service of such order, causes or
658 DIVISION FENCES; STRAYED ANIMALS; DOGS.

Farms and Markets Law, § 116.

permits such dog to run at large in violation of such order, shall be
subject to a penalty of twenty-five dollars for each offense.

Whenever in the judgment of the department of farms and markets
other regulations in this article for the supervision of dogs and the pro-
tection of domestic animals and fowls have proved inadequate for such
purposes in a town or county or part thereof, the said department may
make and publish an order that the dogs in such town or county, or
part thereof, shall be securely confined between sunset and one hour after
sunrise during such portion of the year as may be deemed necessary
by the department; and whenever the damage done by dogs to domestic
animals in any county in any license year shall exceed eighty per
centum of the fees collected for licenses in such year, such department
shall make and publish an order that the dogs in such county shall be
securely confined between sunset and one hour after sunrise during
the next succeeding license year. Such order shall be posted in at least
three publie places in such town and published in a newspaper, if any,
published in such town, and if there be no such paper, in a newspaper, if
any, published in the county in which such town is located; provided,

that, if such order shall apply to a county or part thereof, it shall
be posted in three public places in each town of such county or

part thereof and published in three newspapers published in such
county, if so many newspapers are published in such county, and if not,
in such newspapers as are published in the county. If any owner of
a dog or person harboring the same, refuse or neglect to confine his dog
as required by such order he shall forfeit the sum of ten dollars to be
recovered by the department of farms and markets, and any representat-
tive of the department or other peace officer shall seize and impound a
dog permitted to run at large in violation of said order and hold the same
until said penalty is paid, and if not paid within five days, sell or kill
said dog in the same manner as if the dog had not been licensed and
tagged under the provisions of this article, for which services he shall
be paid two dollars for seizure and two dollars for killing and disposing
of the carcass of such dog.

The duly designated representative of the department or any peace
officer shall, and any other person may, kill on sight any dog running
at large in violation of this section, provided he shall first have made
reasonable effort to secure said dog and failed.

When seizure of a dog is made under any of the provisions of this
article notice of such seizure shall be immediately given to the owner
thereof if he may be found upon reasonable inquiry within the time dur-
ing which such dog is required to be held prior to his disposal as provided
DOGS, DUTIES OF TOWN AND COUNTY OFFICERS. 659

Farms and Markets Law, §§ 117, 118.

herein. Such notice may be served upon the owner either personally,
by registered mail, or in case of the absence of the owner from home,
by leaving a copy thereof with the person in charge of the premises
where such dog was harbored. Every dog seized under the provisions
of this article shall be properly fed and cared for by and at the expense
of such town or city until disposition thereof be made as herein pro-
vided. [Farms and Markets Law, § 116.]

Dog killed on order of court or justice.—If a dog shall attack a per-
son who is peaceably traveling upon a street or highway or is other-
wise peaceably conducting himself on premises where he may lawfully
be, or shall attack his horse or.team or any domestic animal having a
commercial value, which is peaceably traveling on a street or highway
in charge of such person, or on premises where it may lawfully be, and
complaint thereof be made by the person attacked, or if a child, by his
parent or guardian, or in case of an animal, by the owner or person
in charge of the same, or by a duly designated representative of the de-
partment of farms and markets, or any peace officer, to a justice of the
peace of the town or, within the city, to a justice of the peace of the
town or, within the city, to a police justice or judge of a municipal
court having the general jurisdiction of a justice of the peace, such
justice or court shall inquire into the complaint, upon notice of not
less than three days to the owner of the dog. Upon the hearing of
any such complaint the justices, magistrates, constables and other
officers shall be entitled to receive the same fees as provided by the
justice court act in the trial of civil actions in courts of justices
of the peace. If upon investigation of the facts he is satisfied of
the truth of the complaint, such justice or court shall order the
owner to kill the dog immediately. An owner who fails to kill such
dog within forty-eight hours after the service, either personally or by
registered mail, upon him of such order, shall be subject to a penalty of
twenty-five dollars, and the further penalty of two dollars for each
twenty-four hours thereafter until the dog is killed. If such order be
issued and the owner fails to kill such dog as required therein, a duly
designated representative of the department of farms and markets or
any peace officer shall kill such dog on or off the premises of the owner,
and any person may kill such dog if running at large off the premises
of the owner. [Farms and Markets Law, § 117.]

§ 8. TOWN AND CITY CLERKS TO REPORT FAILURE TO PAY; PEN-
ALTIES; FEES OF OFFICERS AND MAGISTRATES.

If any owner of a dog in a town or city neglects or refuses to obtain
a license and pay the license fee to the town or city clerk as herein
required, the town or city clerk shall, within ten days from the date
upon which such payment is required to be made, report such fact to
a justice of the peace or other magistrate in the town or city where
such owner resides, to the department of farms and markets and to
the county treasurer of the county. Such justice of the peace or
magistrate shall forthwith issue a summons in the name of the people
of the state of New York, as plaintiff, against each of the dog
owners so reported to: him by the town or city clerk and shall
give the same to a constable or peace officer to be served upon the
defendant named therein; such summons to be returnable within
six days’ time, Sundays excepted, and said summons shall be in
form as follows:
660 DIVISION FENCES; STRAYED ANIMALS; DOGS.

Farms and Markets Law, § 118

 

eae Re 2 Wee euicedsees Court: Of gai scwew ee ase wwe
TOW OE, 6.55 5 591 205 Says felons ad Steationes uate lax Sd
County Of 524.2 hee eed eee ee
People of the State of New York,
Plaintiff,
against
Summons,
aishepay doana wahauahebetaratorarsece eine

 

To the above named defendants and each of them:
You are hereby summoned and required to appear in this action in the

Say eb gd Weeds court of ........, at ........ im the town of ............
on the ........ day of ........ ...., Hineteen hundred and ........
BG. aecaenvas ts o’clock in the ....... , to answer the complaint of the

plaintiff in this action, which is an action tor the collection of a penalty of
ten dollars for a violation of the provisions of the agricultural law in not
procuring a license for a dog or dogs owned or harbored by you during the
dog license year ending June thirtieth, nineteen hundred and ........
and that if you fail to appear and answer, judgment will be taken against
you by default for the penalty together with the costs of this action.

Dated at...... Spader aye jr TRIS eee es
May Ofc. a ca «a ¥ in the year of our
Lord one thousand nine hundred
ANG 5 su avisrg o aheap is

If the said defendant shall, before the return day, procure a license for
the dog or dogs he is harboring and present receipt therefor from the town
clerk to the justice of the peace on the return day, then no judgment shall
be rendered against such defendant. But if said defendant does not pro-
cure such license and present the receipt and evidence to show that he has
procured license for such dog or dogs on or before the return day, then the
said justice shall cause the town clerk, and such other witnesses as may be
deemed necessary, to be examined under oath on the said return day as to
the correctness of the report made to the said justice that the defendant is
harboring or has harbored during the current deg license year ending June
thirtieth, nineteen hundred and ... ...., a dog or dogs for which he had™
not procured a license as required by statute. The defendant shall be per-
mitted to introduce evidence to show that he had not so harbored a dog or
dogs during such time. If after such trial it shall be found that the said
defendant has so harbored a dog or dogs and has not procured a license
as required by statute, judgment shall be rendered against the defendant for
the sum of ten dollars and costs of the action. A peace officer to whom
shall be delivered such summons shall be paid the fees provided by law
for the service of such summoms and shall also be paid five cents per mile
for each mile necessarily traveled in serving such summons. The justice
of the peace or the magistrate shall be entitled to receive as a fee for each
summons so issued the sum of fifty cents and for each witness sworn in
said action the sum of twenty-five cents. The justice of the peace or the
magistrate and the peace officer entitlcd to such fees shall make out and
file with the board of supervisors of their county or other county auditing
officers vouchers, in the form and manner prescribed Ly the department
of farms and markets, showing the fees to which they are entitled under
this section, and upon the allowance thereof the same shall be paid by the
county treasurer. The justice of the peace or the magistrate shall on or
before the fifth day of each month remit to the county treasurer all sums of
moneys received as judgments and costs in such actions during the preceding
month. If a town or city clerk fail to make within the specified time a re-
port containing the names of the owners of dogs who have neglected or
refused to obtain licenses for such dogs and pay the license fee as herein
provided within ten days after such neglect or refusal, he shall forfeit the
sum of ten dollars to be collected by the county treasurer. [Farms and
Markets Law, § 118.]
DOGS, DUTIES OF TOWN AND COUNTY OFFICERS. 661
Farms and Markets Law, §§ 119, 120.
§ 9. DAMAGES FOR INJURIES CAUSED BY DOGS; ASSESSORS T
ASCERTAIN DAMAGES; PAYMENT OF CLAIM BY STATE. ”

Damages for injuriries caused by dogs.—The owner of a dog which
shall attack, chase, worry, injure or kill domestic animals or fowls
shall be liable for double the damages caused thereby to the owner of
such domestic animals or fowls. Such damages shall equal the value
of the animals or fowls killed, or if not killed, the amount of the

damages caused by the injury of sueh animals or fowls. [Farms and
Markets Law, § 119.]

Amount of damages to be paid by the county ; assignment of claim to
county.—The owner of horses, cattle, sheep or swine attacked, chased,
worried, injured or killed by a dog or dogs shall within ten days after
discovery thereof and before such animal shall have been disposed of
or buried give notice of claim to any assessor of the city or town where
such animals were so attacked, chased, worried, injured or killed,
that he will make a claim therefor and request that the damages
be ascertained. Such notice of claim when filed shall set forth the facts,
as claimed, including a description of such animals, the time and place
where the claimant believed they were attacked, chased, worried, in-
jured or killed, and such other circumstances in connection therewith
as may be within his knowledge. The assessor receiving such notice of
claim shall immediately give notice thereof to the other assessors of
such claim so made. The assessors, or a majority of them, shall,
within three days, at a time and place to be designated by them, inquire
into the matter, and shall examine the animal or animals alleged to
have been injured or killed and, if necessary, examine witnesses in re-
lation thereto. If after such inquiry they shall determine that such
animals were so attacked, chased, worried, injured or killed by a
dog or dogs, they shall make a report of such fact, the number and
kind of such animals, and the amount of damages, if any, caused
thereby. Such report shall also specify the amounts of their fees,
which shall not exceed three dollars each for all services and five cents
for each mile necessarily traveled in connection with one claim. The
difference between the value of the animals before and such value after
the occurrence of the acts on which the claim is based, shall be the
measure of damages. Such report shall be filed immediately in the
office of the county treasurer. Upon receipt of such assessors’ report the
county treasurer shal] transmit a copy thereof to the claimant by mail.
Within twenty days after the date of the mailing of such copy of such
report the claimant or the county treasurer may file a petition with the
clerk of the board of supervisors for a review by the board of super-
662 DIVISION FENCES; STRAYED ANIMALS; DOGS.
Farms and Markets Law, § 120.

visors of the determination of the assessors. The board of supervisors
shall cause an investigation to be made of the facts upon which such
determination was based. It may appoint a committee to conduct such
investigation, The board of supervisors, or such committee if ap-
pointed, shall cause reasonable notice of the time and place at which the
hearing on such investigation will be held to be given to the claimant
and the county treasurer in such manner as it may direct. The said
board of supervisors may approve, reject or modify the determination
of the assessors. The board of supervisors shall render a decision on
such review and cause a copy of such decision to be filed with the
county treasurer and a copy thereof to be transmitted by mail to the
claimant. If at the expiration of the period of twenty days after the
mailing by the county treasurer to the claimant of such copy of such
report of the assessors no petition for review has been filed in his office,
or if a petition for review shall have been so filed, then upon the filing
in his office of the decision of the board of supervisors, the county
treasurer shall execute a certificate in triplicate containing the name of
the owner of such animals and the amount of the damages which have
been ascertained as herein provided. One of such certificates shall be
filed in the office of the county treasurer, one transmitted to the de
partment of farms and markets and one transmitted immediately by
mail to the claimant. If additional or increased damages are claimed
on account of a flock of sheep being attacked, chased or worried, ac-
cruing subsequent thereto and not apparent at the time of the first ap-
praisal of damages to the flock, a supplemental notice of claim for
such damages may be given to one of the assessors who had jurisdiction
of the original claim, at any time within six months from the discovery
of the original damages. Such supplemental notice of claim shall
set forth the facts required to be specified in the original notice and
also the facts upon which such additional or increased damages are
based. The same proceedings shall be had thereon as in the case of an
original claim. The person to whom a certificate allowing any damages
shall be issued, or his assignee or legal representative, may present the
same for payment and the amount thereof shall be paid to such per-
son or his assignee or legal representatives, by such county treasurer,
and the county treasurer shall also pay the assessors their fees as pro-
vided herein for passing upon such claim, out of any moneys available
therefor, upon a proper receipt being signed by the person or assessor
entitled to such payment and upon the presentation of an assignment to
the county of the claim for damages against the owner or owners of the
dog or dogs causing such damages. The form of such assignment shall
DOGS; DUTIES OF TOWN AND COUNTY OFFICERS. 663
Farms and Markets Law, §§ 121, 122.

be prescribed by the department of farms and markets. If the
owner of such animals attacked, chased, worried, injured or killed shall
not present to such county treasurer the certificate above mentioned
within six months after the execution thereof, he shall be deemed to
have waived compensation from the county for the damages incurred,
and shall be liable to the assessors for their fees, and the amount
thereof shall not be paid by the county; except that such fees shall
be paid by the county if such person fails to pay the same within
one year from the time such certificate is filed with such county trea-
surer* [Farms and Markets Law, § 120.]

§ 10. REPORT AS TO DOG KILLED.

Any person who shall kill a dog under the provisions of this article
shall forthwith report in writing such fact to the town or city clerk
or to a justice of the peace, police justice or other magistrate having
jurisdiction of the town or city in which such killing took place.
Such report shall state the name and address of the person who killed
the dog, a description of the dog killed, together with the time, place
and circumstances of the killing and the disposition made of the
carcass of the dog. Such reports shall be open to public inspection
at any reasonable time during the regular office hours of the office
in which they are filed. A person killing a dog under the provisions
of this article shall dispose of the carcass. Any person failing to
make a report shall be subject to a penalty of five dollars to be re-
covered in an action brought therefor as provided in this article.
[Farms and Markets Law, § 121.]

§ 11. DISPOSITION OF FEES, PENALTIES AND DAMAGES RECOVERED,

On or before the fifth day of each month the town clerk of each town
and the city clerk of each city, except a city within a county embrac-
ing a city of the first or second class which is subject to the provisions
of this article, shall remit to the county treasurer all license fees and
other funds from any source received by him under the provisions
of this article, except the amounts provided to be paid to a police
pension fund and the fees herein provided to be retained by him
or by the city, together with a license stub representing each license
which he has duly issued to owners of dogs. On or before the fifth
day of each month the city clerk of each city within a county em-
bracing a city of the first or second class subject to the provisions
of this article shall remit to the state treasurer ten per centum of

 

1a. Former section 139f of Agricultural Law construed. See People vy.
Wilson (1921), 198 App. Div. 158, 189 N. Y. Supp. 585.
664 DIVISION FENCES; STRAYED ANIMALS; DOGS.

Farms and Markets Law, § 122.

all license fees and other funds from any source received by him
under the provisions of this article, except the fees herein provided
to be retained by him or by the city and at the same time shall trans-
mit to the county treasurer forty-five per centum of such license fees

and funds, less such retained fees, together with a license stub repre-
senting each license which he has duly issued to owners of dogs. The

remaining forty-five per centum of such license fees and funds, less

such retained fees, shall be paid into the treasury of such city, and so
much thereof as such city shall provide be used to enforce the provisions

of this article in such city. Each such town or city clerk shall also
transmit to the department of farms and markets on or before the
fifth day of each month another copy of each of such license stubs;
provided, that in a city or village where under the laws existing on
June eighth, nineteen hundred and seventeen, any portion of the
license fees for licensing dogs was paid into the police pension fund,
in such city or village, an amount per license fee equal to the amount

which was payable from license fees to such pension fund under the
laws existing on June eighth, nineteen hundred and seventeen, shall

be deducted from such license fees before remittance to said state
or county treasurer and be paid into such police pension fund. The
town or city clerk shall at the same time transmit to the county treas-
urer a statement showing the number of dogs of each sex licensed
and the total amount of license fees received for each sex. Such
statement shall be in the form prescribed by the department and shall
contain such other information as it may require. The amount re-
mitted shall not include the tag fees collected by such clerk as com-
pensation for his services. Such tag fees shall be retained by the
clerk unless his office be salaried, in which case such fees shall be
paid to the town or city represented by such clerk. On the fifteenth
day of each month, the county treasurer shall remit ten per centum
of all moneys received by him prior thereto under the foregoing
provisions of this section, except any such moneys which were re-
ceived from a city within a county embracing a city of the first or
second class, to the state treasurer, with a statement of the sources
from which they were derived, and at the same time shall transmit
to the department of farms and markets copies of all statements
received from town and city clerks prior thereto, except copies of the

stubs from which licenses were issued. All penalties recovered under
this article, all moneys recovered by the county in actions brought

against owners of dogs on account of assigned claims for damages
to domestic animals, and all moneys realized on the sale of dogs, as
provided in this article, shall be paid into the county treasury. The
moneys paid into the state treasury under this article shall so far as
DOGS; DUTIES OF TOWN AND COUNTY OFFICERS. 665
Farms and Markets Law, §§ 123, 124.

necessary be appropriated by the legislature to be expended for the
enforcement of the provisions of this article in so far as such enforce-
ment shall devolve upon the department of farms and markets. [Farms
and Markets Law, § 122.]

§ 12, RECOVERY OF PENALTIES; ACTIONS FOR DAMAGES.

Penalties imposed by this article shall, except as otherwise pro-
vided in section one hundred and eigtheen of this chapter, be recovered
in actions brought by the county treasurer of the county in which
such penalties are incurred, in the name of the county, in a court
of competent jurisdiction. A county treasurer shall, when he deems
it for the best interests of the county, cause an action to be brought
in the name of the county against the proper parties upon a claim
for damages assigned by the owner of domestic animals to such county
as provided in this article. If any such action to recover such a
penalty or any such action on such an assigned claim shall be brought
in a justice’s court, the town in which the office of the county treasurer
is located shall be deemed the residence of the plaintiff for all the
purposes of such action. It shall be the duty of the district attorney
to prosecute all such actions to recover such penalties and all such
actions upon such assigned claims for damages as shall be referred
to him for prosecution by the county treasurer. A county treasurer
may in his discretion discontinue, compromise or settle any such
claim for a penalty or any such assigned claim for damages. [Farms
and Markets Law, § 123.]

§ 18. APPORTIONMENT TO TOWNS AND CITIES OF SURPLUS MONEYS,

In the month of September in each year, each county treasurer
shall report to the board of supervisors of his county the total amount
paid into the county treasury pursuant to this article during the preced-
ing license year, exclusive of any money received by him for licenses for
the current license year, the total amount expended for fees of assess-
ors and peace officers and the amount paid out as compensation for
damages to owners of domestic animals killed, injured or damaged
by dogs, or otherwise disbursed by him. Seventy-five per centum of
the surplus moneys in such fund, exclusive of ny moneys received
for licenses for the current license year, shall be apportioned by the
board of supervisors at its annual session in each year, after the
year nineteen hundred and twenty, among the several towns and cities
of the county, on the basis of and in proportion to the contributions
made by such towns and cities on account of the provisions of this
article. [Farms and Markets Law, § 124.]
C5da DIVISION FENCES; STRAYED ANIMALS; DOGS.

Farms and Markets Law, §§ 125, 126.

§ 14. POUNDS AND DOG CATCHERS IN CERTAIN COUNTIES.

The board of supervisors of any county having a population of over
one hundred thousand, according to the last preceding federal or
state census or enumeration, exclusive of the population of any city
or cities in such county, may establish and maintain a pound or pounds
therein, for the impounding of dogs under the provisions of this article.
The board of supervisors of any such county may also create the posi-
tion of dog catcher and appoint one or more persons thereto, to be
removable at the pleasure of the buard. Any such dog catcher shall
have all the powers of a constable, policeman or police officer with res-
pect to seizing, killing or impounding dogs under the provisions of this
article, and the order provided for in section one hundred and seven-
teen may be directed and issued to any such dog catcher with the same
force and effect as though issued to a constable, policeman or police
officer. The board may provide either that the compensation of such
dog catchers shall consist of the fees provided for a constable, police-
man or police officer under this article or that they receive monthly or
annual salaries. The expense of establishing and maintaining a pound
or pounds shall be a general county charge, and provided for by tax,
in the same manner as other county charges. [Farms and Markets
Law, § 125.]

§ 15. APPLICATION OF ACT; SAVING CLAUSE.

Application of act; saving clause.—1. The provisions of this chapter
relating to the licensing of dogs in a city shall not apply to the city
of New York. The other provisions of this chapter shall not apply
to dogs kept or harbored within the city of New York while they
remain within the bounderies thereof.

2. A dog duly licensed under existing laws when this act takes
effect is not required to be licensed under this chapter before the
expiration of such license, and a dog wearing a tag issued upon such
license shall be deemed duly tagged under this chapter.

3. The provisions of this article shall not apply to a dog owned
by the nonresident passing through any village, town or city to which
this article relates nor to dogs brought to any such village, town or
city and entered for exhibition at any dog show, if confined or in
immediate charge.

4. The provisions of this article shall not apply to dogs actually
confined to the premises of incorporated societies devoted to the care
or hospital treatment of lost, strayed or homeless animals, or con-
fined to the premises of public or private hospitals devoted to the
treatment of sick or diseased animals. [Farms and Markets Law,
§ 126.]
DOGS; DUTIES OF TOWN AND COUNTY OFFICERS. 665b
Farms and Markets Law, § 127; Conservation Law, § 193.

§ 15-a. ARTICLE TO BE ENFORCED BY VILLAGE AUTHORITIES.

Within the limits of any incorporated village in counties adjoining
a city of the first class having a population of one million or more, the
provisions of this article shall be enforced by proper authorities of
such village. Whenever in this article powers or duties are conferred
or imposed on a town, a board of supervisors or a town clerk, such
powers and duties in respect to and within the limits of such incorpor-
porated village, shall be deemed to be conferred and imposed on such
village and the officers of such village corresponding therein to a town
clerk. [Farms and Markets Law, § 127.]

§ 16. DOGS RUNNING AT LARGE IN FOREST PRESERVE.

No dog of either sex shall be taken into the Adirondack or the Cat-
skill Park, or into forests inhabited by deer, or harbored or possessed
therein, unless the owner shall first obtain a license for such dog from
the commission, and pay a fee of one dollar therefor. The license
shall be issued by the commission in its discretion and under such rules
and regulations as it may deem advisable, and shall terminate with the
calendar year in which issued. A metal tag marked with a number
corresponding to the number of the license shall be issued with said
license, and shall be attached to a collar and shall be at all times worn
by the dog so licensed.2_ [Conservation Law, § 193, as added by L.
1912, ch. 318, and amended by L. 1915, ch. 176, and L. 1916, ch. 521.]

 

2, Constitutionality; action to recover penalty. The enactment of the pro-
vision of this section, as it existed prior to the amendment, which prohibited
the keeping or possession of dogs in the Adirondack park and requiring
every game protector to kill any dog found therein, was within the power of
the legislature. The complaint, in an action to recover a penalty for a
violation of said section which alleges that defendant on or about a certain
date wrongfully and unlawfully kept and possessed a dog which he owned
or harbored and permitted to run at large in the public highway in the town
of Lake Pleasant, Hamilton county, in this state, within the Adirondack
park, as defined by section 51 of chapter 444 of the Laws of 1912, states
a cause of action. People v. Call (1914), 86 Misc. 246, 149 N. Y. Supp. 168.
PART VII.

RELIEF OF POOR.

CHAPTER XLIV.

SUPERINTENDENT OF THE POOR; ALMS-HOUSES.

EXPLANATORY NOTE.

Superintendents of the Poor.

Superintendents of the poor are county officers. They are elected by
the electors of the county in the same manner as other county officers.
The number of superintendents varies in the several counties. Nearly
all counties have but one. If there are three or more superintendents,
the board of supervisors may determine that thereafter there shall be
but one; so also where there is one superintendent the number may be
changed to three. All vacancies are filled by the board of supervisors
until the thirty-first day of December following the appointment, or
until successors are elected and have qualified.

Powers and Duties of Superintendents of the Poor.

If there are three or more superintendents of the poor a majority
may act. Such superintendents have the general supervision and care
of poor persons in the county, either in or out of alms-houses. They do
not supersede town overseers of the poor, but may, unless otherwise
provided by law, direct and advise them in the performance of their
duties. The superintendent is directly responsible for the maintenance
of the county alms-house and the care and government of the inmates
thereof. His chief duties pertain to such alms-house, and unless the
board of supervisors has provided for a keeper thereof, he occupies

that position.
666
SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 667

Explanatory note.

The county superintendent is to settle all disputes as to the settle-
ment of poor persons, and may conduct hearings for such purpose. The
procedure on such hearings is regulated by statute, and is considered in
the chapter entitled “ Settlement and Place of Relief of Poor Persons,”
post.

Where poor persons are maintained at the entire expense of the
county, the superintendent must andit and settle all accounts for serv-
ices relating to their support, relief or transportation. County poor
are as a general rule to be supported at the alms-house. But temporary
assistance may be afforded by the superintendent, and such poor persons
may, when they may be properly provided for elsewhere, be supported
outside of the alms-house but not at a greater expense than they may be
supported at the alms-house.

The superintendent may direct the overseers of the poor of the sev-
eral towns to support county poor persons within their towns, where no
alms-house is provided.

Alms-houses.

The county superintendent of the poor is responsible for the main-
tenance of the county alms-house, and for the care and control of the
inmates thereof. County poor persons are maintained therein at the
expense of the county. Where poor persons residing in towns are sup-
ported at the expense of towns, the superintendent must keep accounts
of the expense of maintaining such persons in the alms-house, and the
cost thereof is chargeable against the several towns. Only the amount
actually expended can be charged to the towns. No charge may be
made for the products of the county farm. The farm and buildings
are for the benefit of the towns as well as the county. The superintend-
ent must annually account to the board of supervisors for the amounts
expended in behalf of the town poor, and the towns are chargeable with
their just proportion thereof, which amount must be added to the taxes
to be levied and collected in each town.

Temporary or Out-Door Relief of Poor Persons.

The board of supervisors may make rules and regulations in regard
to the manner of furnishing temporary or out door relief to the poor in
the several towns. If the board of supervisors has failed to make such
668 4 RELIfF OF POOR.

County Law, § 220.

rules and regulations, the town board may make them. Such rules and
regulations may specify he amount which overseers of the poor may
expend for the relief of es ‘1 person or family. Where such prevision
is made it is unnecessary ror the overseer of the poor to procure av
order for the supervisor of the town for relief of such person or family.

Section 1. Election, appointment, qualifications and terms of office of super-
intendent of the poor.
2. Undertaking, how executed and approved; contents.
3. Powers and duties of county superintendents of the poor.
4. One of superintendents of the poor may be appointed as keeper of
One of superintendents of the poor may be appointed as keeper of
almshouse; compensation.
5. County superintendent may direct overseers of the poor to take
charge of county poor.
6. Superintendents to provide for support of idiots and lunatics.
. Pestilence in almshouse; inmates to be removed.
8. County treasurer to keep accounts with towns for moneys paid on
account of poor; superintendent to furnish statement.
9. Superintendents to make annual apportionment to towns of amount
expended for support of poor.
10. Amount chargeable to towns to be added to tax levy.
11. Superintendent’s estimate for expense of maintaining county poor;
supervisors to cause sufficient amount to be raised.
12. Superintendent to make report to state board of charities; contents
of report.
13. Almshouse register; what to contain; officers to furnish information.
14. Board of supervisors or town board may make rules and regulations
as to furnishing temporary relief.
15. Failure of officer required to make statement or report as to the
poor, how punished.
16. Poor children not to be committed to almshouse as vagrants; truants
or disorderly persons; support of poor children in families or
charitable institutions.

«2

§ 1. ELECTION, APPOINTMENT, QUALIFICATIONS AND TERMS OF
OFFICE OF SUPERINTENDENT OF THE POOR.

There shall continue to be elected or appointed in each of the counties
except Kings, Queens, and Richmond, one or more superintendents of the
poor as heretofore ; but no supervisor of a town, or county treasurer, shall
be elected or appointed to such office. The board of supervisors of any

 

1, Removal of superintendents. A county superintendent of the poor is
SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 669
County Law, § 220.

county having, or entitled to have three or more superintendents of the
poor, may, at an annual meeting thereof, determine by resolution that
thereafter only one county superintendent of the poor shall be elected;
but no superintendent of the poor shall be elected or appointed in such
county until the general election next preceding the expiration of the
terms of the superintendents in office, or the office shall be vacant.? The
term of any superintendent in office, or of any person duly elected thereto
on the passage of such resolution, shall not be affected thereby. Such
board may also, in counties having and entitled to have but one superin-
tendent of the poor, in like manner determine that thereafter three
superintendents of the poor be elected for such county. After the passage
of a resolution, as herein provided, the powers herein conferred shall not
be again exercised within a period of five years. Such resolution shall not.
take effect until the next calendar year succeeding its adoption.

 

removable by the governor after an opportunity has been given him to be heard
in his defense. Public Officers Law, sec. 33, ante. ;

The expense of such removal is a county charge. See County Law, sec. 240,
sub. 16, ante.

As to proceedings before the governor for removal, see Public Officers Law,
secs. 34, 35, ante.

Supervisor not to be superintendent of the poor. The disqualification of a
supervisor to the office of a superintendent of the poor applies to supervisors of
wards of cities. People ex rel. Furman v. Clute, 50 N. ¥. 451.

In this case it was also held that the prohibition makes a supervisor not only
ineligible to hold office of superintendent, but also ineligible to an election or
appointment thereto. It was also contended in this case that the restriction
imposed upon a supervisor and a county treasurer was unconstitutional, since
it impairs the right of suffrage by limiting the right of the elector to select and
vote for a candidate from the whole body of electors, and thus interfered with
his constitutional right to vote; but the court held that the act permitting the
election of superintendents of the poor having been passed after the adoption
of the constitutional provision, the right to vote for such officers was a privilege
granted by the legislature, and could be limited by it.

Provision of the Constitution (§ 5, art. 10) declaring that “in case of elective
officers no person appointed to fill a vacancy shall hold his office longer than the
commencement of the political year, next succeeding the first annual election
after the happening of the vacancy” has no application to office of superin-
tendent of the poor. People ex rel. Hatfield v. Comstock, 78 N. Y. 356; People
ex rel. Furman v. Clute, 50 N.Y. 451.0 7

2. Determining number of superintendents. In the case of People ex rel.
Hatfield v. Comstock, 78 N. Y. 356, it was held that superintendents of the poor
are county officers whose appointment or election may be provided for by the
board of supervisors as the legislature shall direct, under art. 10, sec. 2 of the
Constitution. The delegation to the board of supervisors of the power of
determining the number of superintendents and of filing vacancies is con-
stitutional.
670 RELIEF OF POOR.
County Law, § 220.

There shall continue,

1. To be elected annually in each of the counties so having and being
entitled to three county superintendents, one county superintendent. of
the poor, who shall hold his office for three years from and including the
first day of January succeeding his election, and until his successor is
duly elected and qualifies ;

2. To be appointed by the board of supervisors, if in session, otherwise
by the county judge, a county superintendent of the poor, when a vacancy
shall occur in such office, and the person so appointed shall hold the office
until and including the last day of December succeeding his appointment,
and until his successor shall be elected and qualifies ;

3. To be elected a county superintendent of the poor in a county when
a vacancy shall occur in such office, and the term of which shall not expire
on the last day of the next succeeding December, and the person so
elected shall hold the office for such unexpired term, which shall be
designated upon the ballots of the electors, or until his successor shall be
elected and qualifies;

4. To be elected in each of the counties so having, and entitled to have
but one superintendent, a superintendent of the poor, who shall hold his
office for three years from and including the first day of January succeeding
his election, and until his successor is duly elected and qualifies ;

5. To be appointed by the board of supervisors, if in session, otherwise
by the county judge, a superintendent of the poor, in a county having
and being entitled to but one superintendent, when a vacancy shall occur
in such office; and the person so appointed shall hold the office until and
including the last day of December succeeding his appointment, and until
his successor shall be elected and qualifies ;

6. To be elected in the succeeding year after the board of supervisors
of a county having but one superintendent of the poor, shall have adopted
a resolution to have three superintendents, if the term of the superinten-
dent in office expires with such year, three superintendents of the poor
for such county, for the terms of one, two and three years respectively,
which terms shall be respectively designated upon the ballots of the
electors voting for such officers. If the term of the superintendent in
office will not expire with such succeeding year, there shall be elected
two superintendents of the poor for such county, for such terms, to be so
designated upon the ballots of the electors voting for such officers, as will
make the terms of one of the three superintendents expire with each
succeeding year, and one superintendent of the poor shall thereafter be
annually elected. Such persons so elected shall hold the office from and
including the first day of January succeeding his election, and until and
including the last day of December of the year in which his term shall
so expire, and until his successor is duly elected and qualifies. When
SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 671

County Law, § 221.

ballots are voted without designating the term, the first name on the
ballot shall be deemed as intended for the full or longer term of the
officer voted for; the second name for the next longer term, and the
third ‘name for ‘the shorter term. [County Law, § 220; B. C. & G.
Cons. L., p. 814.]

§ 2. UNDERTAKING, HOW EXECUTED AND APPROVED; CONTENTS.

Every person elected or appointed to the o‘lice of superintendent of the
poor shall, before he enters upon the duties of his office, and if appointed,
within fifteen days after notice thereof, éxecute and deliver to the clerk
of the county, to be filed in his office, his undertaking to the county,
with two or more sufficient sureties, with the approval of the board of
supervisors, if in session, indorsed thereon by the clerk; otherwise by
the county judge of his county, or a justice of the Supreme Court of his
judicial district, and in such sum as such board, judge or justice app~ov-
ing the same shall direct, to the effect that he will faithfully discharge
the duties of his office as such superintendent of the poor. and pay
according to law all monevs that shall come into his hands as such
superntendent, and render a just and true account thereof to the board
of supervisors of his county.’ [County Law, § 221, as amended by L.
1914, ch. 62; B. C. & G. Cons. L., p. 816.]

§ 3. POWERS AND PUTIES OF COUNTY SUPERINTENDENTS OF
THE POOR.
The county superintendents of the poor shall: *
1. Have the general superintendence and care of poor persons who may
be in their respective counties.®

 

8. As to other statutory requirements of official undertakings, see Public
Officers Law, secs. 11, 12, ante. The requirements of the above section are con-
trolling in so far as they are inconsistent with the general provisions of the
Public Cfficers Law, but the other provisions of those sections are applicable.

4. Powers of a majority of board of superintendents. Where there are three
superintendents a majority can perform and exercise any power, authority or
duty imposed by statute or otherwise upon them. See General Construction
Law, sec. 41.

The powers of a majority of the superintendents to transact business was
considered in the case of Johnson v. Dodd, 56 N. Y. 76. It was there decided
that the majority could exercise the power of the board irrespective of and
without consultation with the minority.

5. General superintendence of poor persons. By sub. 1 of the above section
superintendents are now given the general superintendence of all matters relat-
ing to the poor. Under the old law they only had control of county poor persons,
and a general supervisory jurisdiction over all questions relating to the settle-
ment of the poor and of the respective liabilities of the towns and counties; and
all the powers conferred upon county superintendents to support and maintain
the county poor, were required to be exercised at the county poorhouse, or at
672 RELIEF Os POOR.

Poor Law, § 3.

2. Provide and keep in repair suitable alms-houses when directed by
the board of supervisors of their county.

3. Establish rules and by-laws for the government and good order of
such alms-houses, and for the employment, relief, management and govern-
ment of the poor therein; but such rules and regulations shall not be
valid until approved by the county judge of the county, in writing.

4. Unless a keeper be appointed by the board of supervisors, as provided
by section four of this article, employ suitable persons to be keepers of
such houses, and physicians, matrons and all other necessary officers and
servants, and vest such power in them for the government of such houses,
and the poor therein, as shall be necessary, reserving to such poor persons
who may be placed under the care of such keepers, matrons, officers or serv-
ants, the right of appeal to the superintendents.®

5. Purchase all necessary furniture, implements, food and materials for
the maintenance of the poor in such houses, and for their employment in
labor, and use, sell and dispose of the proceeds of such labor as they shall
deem expedient.

 

such other places as might have been provided for that purpose by the direction
of the board of supervisors. People ex rel. Commissioners of Emigration, 27
Barb. 562.

Employment of agent by superintendent of poor togplace out children. An
agent employed by a superintendent of the poor, under’ a resolution adopted by
the board of supervisors, to place out or provide homes for indigent children,
need not be licensed by the state board of charities under L. 1898, ch. 264; and
his experses are a proper charge against the county. People ex rel. Spaulding
v. Supervisors, 66 App. Div. 117, 72 N. Y. Supp. 782, modf. 170 N. Y. 93.

Action may be brought by superintendents of the poor, in their individual
names with the addition of their name ef office. Alger v. Miller, 56 Barb. 227.

6. Appointment of keeper by board of supervisors. Section 4 of the Poor
Law, post, authorizes the board of supervisors to appoint one of the superin-
tendents of the poor as keeper of the county almshouse. Unless one of such
superintendents has been appointed by the board of supervisors as provided
in that section, the above sub-division authorizes the county superintendents
to employ such a keeper.

Whenever the board of supervisors exercises this power and appoints one of
the superintendents as such keeper, the term of office of the keeper previously
appointed by the superintendents terminates, although the year for which he
was employed has not expired. People ex rel. McCormick v. Weldon, 14 N. Y.
Supp. 447; 39 N. Y. St. Rep. 49.

Term of office of keeper. The superintendents of the poor have no power to
fix by contract the duration of the keeper’s term. He holds his position only
during the pleasure of the appointing power. Abrams v. Horton, 18 App. Div.
208, 45 N. Y. Supp. 887. A keeper of the almshouse appointed by the super-
intendents of the poor, is removable at their pleasure; and such superintendents
have no power to fix by contract the duration of his term. Abrams v. Horton,
18 App. Div. 208, 45 N. Y. Supp. 887.
SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 673
Poor Law, § 3.

6. Prescribe the rate of allowance to be made for bringing poor persons
to the county alms-house, subject to such alterations as the board of
supervisors may by general resolution make.

7. Authorize the keepers of such houses to certify the amount due for
bringing such poor persons; which amount shall be paid by the county
treasurer on the production of such certificate, countersigned and allowed
by the county superintendents of the poor.

8. Summarily decide any dispute that shall arise concerning the settle-
ment of any poor person, upon hearing of the parties, and for that purpose
may issue subpoenas to compel the attendance of witnesses, with the like
powers to enforce such process, as is given to a justice of the peace in an
action pending before him; their decisions shall be filed in the office of
the county clerk within thirty days after they are made, and shall be
conclusive and final upon all parties interested, unless an appeal therefrom
shall be taken, as provided in this chapter.

9. Direct the commencement of suits by any overseer of the poor who
shall be entitled to prosecute for any penalties, or upon any recognizance,
bonds or securities taken for the indemnity of any town and in the case of
the neglect of any such overseer, to commence and conduct such suits, with-
out the authority of such overseer, in the name of such superintendents.

10. Draw on the county treasurer for all necessary expenses incurred
in the discharge of their duties, including their necessary personal ex-
penses while in the discharge of such duties and their necessary expenses
in attending the midwinter and annual state conventions of county
superintendents of the poor, which draft shall be paid by such treasurer
out of the moneys placed in his hands for the support of the poor.’
[Subd. as amended by L. 1916, ch. 275.]

11. Audit and settle all accounts of overseers of the poor, justices of
the peace, and all other persons, for services relating to the support, relief

 

7. Draft on county treasurer. The board of supervisors of « county have
no right to direct a county treasurer not to recognize the draft of a superin-
tendent of the poor payable to his order, nor to pay any such draft unless the
object for which the money was to be paid was specified in the order. People ex rel.
Serven v. Demarest, 16 Hun, 123. The court in this case said: “ The superintendents
give security that they will render a true account of all moneys received and expended
to the supervisors, and the supervisors audit the account. It will be seen that the
superintendents are an independent board. They can purchase independently, and
draw moneys from the county treasurer independently. The expenditure is to be
submitted to the board of supervisors. If, after the settlement of the accounts, there
is any sum due to the people from the superintendents, the bond will be enforced.”

The above sub-division should be considered in connection with the provision con-
tained at the end of this section to the effect that the board of supervisors may
fix the maximum sum which may be expended by the superintendent during the
year, and that when such limitation is fixed, the county treasurer cannot pay orders
in excess of such sum without the approval of the chairman of the board of super-
674 RELIEL OF POOR.

Poor Law, § 3.

or transportation of the county poor; and draw on the county treasurer
for the amount of the accounts which they shall so audit and settle.*

12. Furnish necessary relief to such of the county poor as may require
only temporary assistance, or are so disabled that they cannot be properly
provided for elsewhere than at the county alms-house at an expense not
exceeding that of their support at such alms-house.°

 

8. Audit of accounts. It was intimated in the case of Hayes v. Simonds, 9
Barb. 266, that the purchase of material and employment of labor by super-
intendents, for which they are authorized to contract, were not the class of
accounts to which the statute from which the above sub-division was taken had
reference. It is not reasonable to suppose that the statute can be so interpreted
as to allow the superintendents to audit accounts arising from their own con-
tracts and so make them sit as judges upon questions relating to their own
conduct, and their own corporate liability. Neary v. Robinson, 98 N. Y. 84.

In the latter case it was held that the superintendents could not audit the
account of an attorney retained by them for services rendered in bastardy pro-
ceedings instituted by them. The superintendent may properly employ profes-
sional assistance in such cases, but the costs incurred are a charge against the
county and must be audited by the board of supervisors.

Superintendents of the poor are not bound to audit the accounts of physicians
and others for services rendered in aid of county paupers by request of over-
seers of the poor of the several towns, although the services were rendered in
pursuance of orders fcr temporary relief. Such accounts may be very numerous,
and occasionally very trifling; and it is peculiarly fit that they should first be
adjusted by the overseer, and charged by him in a general account. Ex-parte
Green and Brown, 4 Hill, 558.

If superintendents refuse to audit and settle the accounts specified in this
sub-division the proper remedy is by writ of certiorari. It follows then that the
proceedings to determine such accounts are judicial in their nature. Vedder v.
Superintendents of Schenectady County, 5 Denio, 564.

Accounts of superintendents. Superintendents must account to board of
supervisors for all moneys received and paid out. City of Rochester v. Super-
visors of Monroe, 22 Barb. 248.

County poor are defined ir section 2 of the Poor Law as such persons as are
required by law to be supported at the expense of the county. The distinction
between town and county poor may be abolished by a resolution of the board of
supervisors; in such case the poor of the county are to be maintained at the
expense of the county and thus become county poor; see Poor Law, sec. 138,
post. If a poor person has not gained a settlement in a town or city, he is a
county poor person, and maintainable at the expense of the county. Poor Law,
sec. 42, sub. 2, post.

9. Temporary relief. Under the law as it existed prior to the Poor Law of
1896, the county poor requiring temporary relief could not be supported by the
superintendents at a place other than the county almshouse. Galup v. Bell, 20
Hun, 172; People v. Commissioners of Emigration, 27 Barb. 562. This rule is
changed by the provisions of the above sub-division, and now the superin-
tendent may furnish support, in certain cases, to poor persons at their homes.
SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 675
Poor Law, § 4.

13. Render to the board of supervisors of their county, at their annual meeting,
a verified account of all moneys received and expended by them, or under their direc-
tion, and of all of their proceedings in such manner and form as may be required
by the board

14, Pay over to the county treasurer on the first day of each month all moneys
received by him from any source in his official capacity, or otherwise received by him
and belonging to the county since the date of the preceding payment, except such
moneys as are paid out by him for incidental expenses in connection with the duties
of his office, for which expenditure he shall present with such monthly report vouchers
and itemized statements showing dates and purposes of such expenditures. All pay-
ment which he is authorized to make under this chapter, except as herein specified,
shall be made only by orders drawn on the county treasurer, payable to the person
entitled thereto and showing upon the face thereof the purpose for which the order
is given.!a [Subd. amended by L. 1912, ch. 75, and L. 1916, ch. 275.]

15. Administer oaths and take affidavits in all matters pertaining to their office,
and elicit, by examination under oath, statements of facts from applicants for re-
lief. Expenditures by the superintendent of the poor in the administration of his
department are subject to the following limitations: The board of supervisors, at
its annual meeting, may fix the maximum sum which may be expended by the su-
perintendent, at his discretion, during the next ensuing year, and may provide that
expenditures in excess of that sum shall be made only with the written approval
of the chairman of the board of supervisors, or of « committee of the board, com-
posed of not exceeding three members. If such limitation is fixed and such pro-
vision made the county treasurer shall not pay any draft or order of the super-
intendent in excess of the sum so fixed by the board, unless it is accompanied with
the written approval of such chairman or committee. [Poor Law, § 3; B. C. & G.
Cons. L., p. 4231.]

§ 4. ONE OF SUPERINTENDENTS OF THE POOR MAY BE AP-
POINTED AS KEEPER OF ALMS-HOUSE; COMPENSATION.

The board of supervisors of any county may, by resolution, appoint as keeper of
its county alms-house one of the superintendents of the poor of such county, who
shall hold such office until the expiration of his term as superintendent or until the
board of supervisors, by resolution, shall determine that he shall no longer act in such
capacity.10 The board of supervisors may fix the compensation such superintendent
shall receive for acting as such keeper and such compensation shall be
a county charge.11 While a resolution of the board of supervisors directing such

 

Matter of Connellan, 25 Misc. 592, 56 N. Y. Supp. 157; County of Herkimer v. Town
of Sangerfield, 29 Misc. 213, 61 N. Y. Supp. 114; People ex rel. French v. Lyke,
159 N. Y. 149, 153.

9-a. The right of a superintendent of the poor to draw drafts on the
county treasurer for his personal expenses, if it ever existed, has been taken
away by chapter 75 of the Laws of 1912 (amending this section), providing that the
superintendent of the poor shall pay over to the county treasurer all moneys received
by him, etc., and make payments only by orders drawn on the county treasurer payable
to the person entitled thereto and showing upon the face thereof the purpose for
which the order is given. Said statute makes it unlawful for the superintendent tc
disburse moneys himself directly and he cannot draw a draft to his own order for
personal expenses. A superintendent of the poor asking a writ of mandamus to
compel the payment of the draft drawn by him on the county treasurer for per-
sonal expenses is under the burden of showing that such expenses were a county
charge. Strong v. Williams (1915), 167 App. Div. 714, 153 N. Y. Supp. 175.

10. A keeper of a county alms-house may be appointed by the superin-
tendents of the poor in case the supervisors do not appoint one of such super-
intendents as keeper as provided in the above section. See Poor Law, sec. 3,
sub. 4, ante.

11. Compensation of all superintendents of the poor is to be fixed by the
676 RELIEF OF POOR.

Poor Law, §§ 5, 6.

superintendent to act as keeper of the county alms-house is in force,
the superintendents shall not employ a keeper thereof. [Poor Law, §
4; B.C. & G. Cons. L., p. 4234.]

§ 5. COUNTY SUPERINTENDENT MAY DIRECT OVERSEERS OF
POOR TO TAKE CHARGE OF COUNTY POOR.

Whenever the county superintendents take charge of the support of any
county poor person, in counties where no alms-house is provided, they
may authorize the overseers of the poor of the town in which such poor
person may be, to continue to support him, on such terms and under such
regulations as they shall prescribe; and thereafter no moneys shall be
paid to such overseers for the support of such poor person, without the
order of the superintendents; or the superintendents may remove such
poor person to any other town, and there provide for his suppert, in
such manner as they shall deem expedient. [Poor Law, § 5; B. C. & G.
Cons. L., p. 4234.]

§ 6. SUPERINTENDENTS TO PROVIDE FOR SUPPORT OF IDIOTS
AND LUNATICS.

The superintendents of the poor shall provide for the support of poor
persons that may be idiots or lunatics, at other places than in the aims-
house, in such manner as shall be provided by law for the care, support
and maintenance of such poor persons.72 [Poor Law, § 6; B. C. & G.
Cons. L., p. 4235.]

 

board of supervisors as provided in sec. 12, sub. 5, of the County Law. If the
superintendent is also keeper of the almshouse, his compensation may be made
to include his compensation as such keeper.

12. Support of insane. Lunatics cannot now be maintained at an almshouse.
All pauper insane must be transferred to a state hospital. The superintendents
of the poor are bound to see that all such insane are so transferred. People ex
rel. State Commission v. Superintendents, 20 N. Y. Supp. 10; 47 N. Y. St. Rep.
367.

By the Insanity Law, the poor and indigent insane of the county are to be
committed to the state hospitals for the insane and there maintained at a state
expense. Incanity Law, sec. 85, post.

If an applicant for relief as a poor person, is, in the opinion of the super-
intendent insane, it would be his duty to investigate the facts and take pro-
ceedings under secs. 80-82 of the Insanity Law, post, for his commitment to a
state hospital for the insane. If an inmate of an almshouse becomes insane,
the superintendent should take the necessary steps to secure his transfer to a
state hospital.

Maintenance of idiots. There »re three state institutions for the care and
SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 677

Poor Law, §§ 7, 8.

§ 7. PESTILENCE IN ALMS-HOUSE; INMATES TO BE REMOVED.

Wherever any pestilence of infectious or contagious disease shall exist
in any county alms-house or in its vicinity, and the physician thereof shall
certify that such pestilence or disease is likely to endanger the health of
the persons supported thereat, the superintendents of the poor of such
county shall cause the persons supported at such alms-house or any of
them, to be removed to such other suitable place in the same county as
shall be designated by the board of health of the city, town or village
within which such alms-house shall be, there to be maintained and pro-
vided for at the expense of the county, with all necessary medical care and
attendance, until they can be safely returned to the county alms-house
from which they were taken, or otherwise discharged. [Poor Law, § 7;
B. C. & G. Cons. L., p. 4235.]

§ 8. COUNTY TREASURER TO KEEP ACCOUNTS WITH TOWNS FOR
MONEYS PAID ON ACCOUNT OF POOR; SUPERINTENDENT
TO FURNISH STATEMENT.

Tn counties where there are town poor, the county treasurer thereof shall
open and keep an account with each town, in which the town shall be
credited with all the moneys received from the same, or from its officers,
and shall be charged with the moneys paid for the support of its poor.
If there be a county alms-house in such county, the superintendents of
the poor shall, each year, before the annual meeting of the board of
supervisors, furnish to the county treasurer a statement of the sums charged
by them as herein directed, to the several towns for the support of their
poor, which shall be charged to such towns, respectively, by the county

 

custody of idiots; the Syracuse State Institution for Feeble Minded Children
(State Charities Law, sec. 60); State Custodial, Asylum for Feeble Minded
Women at Newark (State Charities Law, sec. 80); and the Rome State Custodial
Asylum (State Charities Law, sec. 90). Idiots who are residents in a county
may be transferred to such institutions and either supported as a state charge,
or at a county expense as provided by law, or the rules and regulations of the
institution. See Cumming & Gilbert’s Poor, Insanity and State Charities Laws,
pp. 278-289. See, also, post, Chapter XLVI.

Epileptics. The Craig Colony for Epileptics, established at Sonyea, Livings-
ton county, and Letchworth Village, established at —__—_—_———. by L. 1909,
ch. 446, are for the purpose of caring for and treating poor and indigent persons
suffering from epilepsy to the extent of the accommodations there provided. See
State Charities Law, secs. 100-115. It is the duty of the county superintendent to
provide for the commitment of such persons to such colony. Application may be
made to the county superintendent of the poor for placing a child in such colony

and, upon compliance with the terms of the statute it is the duty of the superin-
tendent to place such child therein.
678 RELIEF OF POOR.

Poor Law, § 9.

treasurer in his account. [Poor Law, § 8; B. C. & G. Cons. L., p.
4235. ]

§ 9. SUPERINTENDENTS TO MAKE ANNUAL APPORTIONMENT TO
TOWNS OF AMOUNT EXPENDED FOR SUPPORT OF POOR.

In counties having an alms-house, and where there are town poor, the
superintendents shall annually, and during the week preceding the annual
meeting of the board of supervisors, make out a statement of all the
expenses incurred by them the preceding year for the support of the town
poor, and of the moneys received therefor, exhibiting the deficiency, if
any, in the funds provided for defraying such expenses, and they shall
apportion the deficiency among the several towns in proportion to the
number and expenses of the town poor of such towns, respectively, who
shall have been provided for by the superintendents, and shall charge the
towns with such proportion, which statement shall be by them delivered
to the county treasurer.* [Poor Law, § 9; B. C. & G. Cons. L., p.
4236. ]

§ 10. AMOUNT CHARGEABLE TO TOWNS TO BE ADDED TO TAX
LEVY.

At the annual meeting of the board of supervisors, the county treasurer

 

13, Town accounts. The money to be credited to the towns is the money which
is received from the county or its officers. People v. Harris, 16 How. 256.

The amount to be charged to the towns on account of their poor maintained at
the county almshouse is to be determined by the amount actually expended by the
county for such maintenance. The statute contemplates that the benefits resulting
from the almshouse and the property connected therewith, shall be given to the
county and towns, in respect to the poor supported at such almshouses without regard
to the general obligation of the towns to support their own poor. The towns cannot
be charged with the products of the almshouse farm, the labor of the poor in earry-
ing on the business of the almshouse and the occupancy by the town poor. They
are only chargeable with their pro rata of the deficiency. City of Rochester v.
Supervisors of Monroe County, 22 How. Pr. 248.

All orders made for the payment of expenses incurred in the maintenance
of the county poor should be’drawn upon the fund created by this section. No
action will lie against the superintendents for failure to pay such expenses until a
demand is made of them for such an order.

14, Statement of expenses to be made out annually. City of Rochester v.
Supervisors, 22 Barb. 248, 252.

It is the duty of the county superintendent of the poor to ascertain the rate per
week necessarily expended by him in support of the inmates of the county alms-
houses, and that amount is charged to the several towns on the basis of the number
of inmates in the alms-houses chargeable to the town. There is no distinction in the
law as between ‘‘special medicine and care’’ and the ordinary treatment and care
afforded to all inmates. The extra expense, if any, is added to the total and appor-
tioned and cannot in any event be made a special charge against the town, liable
for the support of the particular inmate. Opinion of State Comptroller (1917), 13
State Dept. of Rep. 477.

Review. The acts of supervisors in assessing a town for the support of its
poor are legislative and not judicial, and cannot be reviewed by certiorari.
SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 679

Poor Law, §§ 10, 11, 12.

shall lay before them the account kept by him; and if it shall appear
that there is a balance against any town, the board shall add the same
to the amount of taxes to be levied and collected upon such town, with
the other contingent expenses thereof, together with such sum for interest
as will rermburse and satisfy any advances that may be made, or that may
have been made, by the county treasurer for such town, which moneys,
when collected, shall be paid to the county treasurer.’® [Poor Law, § 10;
B. C. & G. Cons. L., p. 4236.]

§ 11. SUPERINTENDENT’S ESTIMATE FOR EXPENSE OF MAIN-
TAINING COUNTY POOR; SUPERVISORS TO CAUSE SUF-
FICIENT AMOUNT TO BE RAISED.

The superintendents of the poor shall annually present to the board of
supervisors, at their annual meeting, an estimate of the sum which, in
their opinion, will be necessary during the ensuing year for the support.
of the county poor; and such board of supervisors shall cause such sun»
as they may deem necessary for that purpose, to be assessed, levied and
collected, in the same manner as other contingent expenses of the county,
_ to be paid to the county treasurer and to be by him kept as a separate
fund, distinct from the other funds of the county.1* [Poor Law, § 11;
B. C. & G. Cons. L., p. 4236. ]

§ 12. SUPERINTENDENT TO MAKE REPORT TO STATE BOARD OF
CHARITIES; CONTENTS OF REPORT.

The superintendents of the poor of every county shall, on or be-
fore the first day of August in each year, make reports covering
the year ending June thirtieth, to the state board of charities in
such form as the board shall direct, showing the number of the town
poor and the county poor that have been relieved or supported
in their county the year preceding July first; the whole expense of
such support, the amount paid for transportation of poor persons,
and any other items not part of the actual expenses of main-
taining the poor, and the allowance made to superintendents, overseers,

People ex rel. Allen v. Supervisors of Westchester Co., 113 App. Div. 773, 99
N. Y. Supp. 348.

As to apportionment of expense of maintenance of almshouse and support
of poor persons between county of Suffolk and towns therein, and as to right
of town to recover alleged excess payments, see Town of Islip v. County of
Suffolk (1920), 191 App. Div. 284, 181 N. Y. Supp. 203.

15. Balance against any town shall be added to the taxes. City of Roches-
ter v. Supervisors, 22 Barb. 248, 253. i .

16. Estimates to be furnished by superintendents. City of Rochester v.
Supervisors, 22 Barb. 248.

__ Fund for support of county poor. Orders for support of county poor must
be drawn upon fund created as provided in this section for such support.
Hayes v. Symonds, 9 Barb. 260, 269.

Contingent fund. Cassidy v. City of Little Falls (1919), 189 App. Div.

527,179 N. Y. Supp. 493.
680 RELIEF OF POOR.

Poor Law, §§ 142, 18.

justices, keepers, matrons, officers and other employes of the superintedents ;
the actual value of the labor of the poor persons maintained, and the esti-
mated amount saved in the expense of their support in consequence of their
labor ; the sex and native country of every such poor person, with the causes,
either direct or indirect, which have operated to render such persons poor,
so far as the same can be ascertained; and shall include in such reports a
statement of the name and age of, and of the names and residence of the
parents of, every poor child who has been placed by them in a family during
the year, with the name and residence of the family with whom every such
child was placed, and the occupation of the head of the family, together with
such other items of information in respect to their character and condition
as the state board of charities shall direct.17 [Poor Law, § 12, as amended
by L. 1917, ch. 570; B. C. & G. Cons. L., p. 4237.]

§ 13. ALMS-HOUSE REGISTER; WHAT TO CONTAIN; OFFICERS TO
FURNISH INFORMATION.

In addition to the general register of the inmates of the various alms-
houses, there shall be kept a record of the sex, age, birth place, birth of
parents, education, habits, occupation, condition of ancestors and family ,
relations, and cause of dependence of each person at the time of admission,
with such other facts and particulars in relation thereto as may be re-
quired by the state board of charities, upon forms prescribed and furnished |
by such board. Superintendents and overseers of the poor, and other
officers charged with the relief and support of poor persons, shall furnish
to the keepers or other officers in charge of such alms-houses, as full
information as practicable in relation to each person sent or brought by
them to such alms-house, and such keepers or other officers shall record
the information ascertained at the-time of the admission of such person,
on the forms so furnished. All such records shall be preserved in such
alms-houses, and the keepers and other officers in charge thereof shall
make copies of the same on the first day of each month, and immediately
forward such copies to the state board of charities. [Poor Law, § 142;
B. C. & G. Cons. L., p. 4282.]

§ 14. BOARD OCF SUPERVISORS OR TOWN BOARD MAY MAKE
RULES AND REGULATIONS AS TO FURNISHING TEMPO-
RARY RELIEF.

The board of supervisors of any county may make such rules and

 

17. Forms of reports to be made by superintendent to the state board of
charities are prescribed and furnished by such board.
SUPERINTENDENT OF THE POOR; ALMS-HOUSES, 681

Poor Law, §§ 138, 14.

regulations as it may deem proper in regard to the manner of furnishing
temporary or out door relief to the poor in the several towns in said
county, and provided the board of supervisors shall have failed to make
any such rules and regulations, the town board of any town may make
such rules and regulations as it may deem proper in regard to furnishing
temporary or out door relief to the poor in their respective towns, by the
overseer or the overseers of the poor thereof, and also in regard to the
amount such overseer or overseers of the poor may expend for the relief
of each person or family, and after the board of supervisors of any county,
or the town board of any town, shall have made such rules and regulations,
it shall not be necessary for the overseers of the poor of the towns in said
county, where such rules and regulations were made by the board of
supervisors, or if in a town, by the said town board, to procure an order
from the supervisor of the town, or the sanction of the superintendent of
the poor to expend money for the relief of any person or family, unless
the board of supervisors of such county or the town board of such town
shall so direct ; but this section shall not apply to the counties of New York
and Kings. [Poor Law, § 13; B. C. & G. Cons. L., p. 4237.]

§ 15. FAILURE OF OFFICER REQUIRED TO MAKE STATEMENT OR
REPORT AS TO THE POOR, HOW PUNISHED.

Any superintendent of the poor or other officer or person having been
an officer, who shall neglect or refuse to render any account, statement
or report required by this chapter [the Poor Law], or shall wilfully make
any false report, or shall neglect to pay over any moneys within the time
required by law, shall forfeit two hundred dollars to the town or county
of which he is or was an officer, and shall be liable to an action for all
moneys which shall be in his hands after the time the same should have
been paid over, with interest thereon at the rate of ten per centum per
annum from the time the same should have been paid over. The state
board of charities shall give notice to the district attorney of the county
of every neglect to make the report required to be made to that board,
and every officer or board to whom any such account, statement, report or
payment should have been made, shall give notice to such district attorney
of every neglect or failure to make the same; and such district attorney
shall, on receiving such notice or in any way receiving satisfactory evidence
of such default, prosecute for the recovery of such penalties or moneys
in the name of the town or county entitled thereto, and the sum recovered,
if for the benefit of the town, shall be paid to the overseer of the poor

‘ thereof, and if for the benefit of the county, shall be paid into the county
treasury, to be expended by the overseer or superintendent of the poor for the
682 RELIEF OF POOR.

Poor Law, § 56.

support of the poor of such town or county.’® [Poor Law, § 14; B. C.
& G. Cons. L., p. 4238.]

§ 16. POOR CHILDREN NOT TO BE COMMITTED TO ALMS-HOUSE
AS VAGRANTS, TRUANTS OR DISORDERLY PERSONS;
SUPPORT OF POOR CHILDREN IN FAMILIES OR CHAR-
ITABLE INSTITUTIONS.

No justice of the peace, board of charities, police justice, or other magis-
trate or court, shall commit any child under sixteen years of age, as a
vagrant, truant or disorderly person, to any jail or county alms-house,
but to some reformatory, or other institution, as provided for in the case
of juvenile delinquents; and when such commitments are made, the jus-
tice of the peace, board of charities, police justice, or other magistrate or
court making the same, shall immediately give notice to the superintendents
of the poor or other authorities having charge of the poor of the county
in which the commitment was made, giving the name and age of the
person committed, to what institution, and the time for which committed ;
nor shall any county superintendents, overseers af the poor, board of charity,
or other officer, send any child under the age of sixteen years, as a poor
person, to any county alms-house, for support and care, or retain any such
child in such alms-house, but shall provide for such child or children in
families, orphan asvlums, hospitals, or other appropriate institutions for
the support and care of children as provided by law, except that a child
under two years of age may be sent with its mother, who is a poor person,
to any county alms-house, but not longer than until it is two years of age.'®
The boards of supervisors of the several counties, and board of estimate
and apportionment of the city of New York, and the appropriate board

 

18. Application of section. This section applies to all officers required under
the Poor Law to make an account, statement or report. The statements, ac-
counts and reports of superintendents are required by sec. 3, sub. 1, 3, 8, 14, ante,
p. 671, sec. 8, ante, p. 677, sec. 9, ante, p. 677, sec. 11, ante, p. 679, and sec, 12,
ante, p. 679. Those of overseers of poor are prescribed under sec. 25, post, p.
679, sec. 26, post, p. 721, sec. 27, post. p. 722. By this section the penalty is
made uniform and applies to all violations of the sections specified.

19. No proceedings necessary. Pauper children between the ages of three
and sixteen years may be committed to an orphan asylum or other charitable or
reformatory institution by the supervisor’of a town on the recommendation of
the overseer of the poor of the town, and no judicial proceeding before a magis-
trate is necessary. People ex rel. Horton vy. Fuller, 41 App. 404, 58 N. Y.
Supp. 835.

Children between two and sixteen years cannot be sent to a county poorhouse.
Nuns of St. Dominick v. Long Island City, 48 Hun 306, 1 N. Y. Supp. 415.
SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 683
Poor Law, § 56,

or body in other cities and towns shall take such action in the matter
as may be necessary to carry out the provisions of this section. When
any such child is committed to an orphan asylum or reformatory, it shall,
when practicable, be committed to an asylum or reformatory that is gov-
erned or controlled by persons of the same religious faith as the parents
of such child. When any child who shall have been placed in an asylum,
or other institution, as a poor person, in pursuance of this section, shall
remain therein at the expense of the county or town to which such poor
child is chargeable, the superintendents of the poor of such county, or the
overseer of the poor of such town, may remove such child from such
asylum or other institution and place such child in some similar institu-
tion or make such other disposition of such child as is provided by law.*°
[Poor Law, § 56, as amended by L. 1909, ch. 347; B. C. & G. Cons. L., p.
4256.]

 

%#%. Placing out destitute children by poor officer. A local officer chareed
with the relief of the poor cannot place out a destitute child unless duly licensed by
the State Board of Charities. State Charities Law, § 301, as amended by L. 1909,
eh 258. and L. 1910, ch. 449.
684 RELIEF OF POOR.

Explanatory note.

CHAPTER XLIV.

ALMS-HOUSES; POWERS OF STATE BOARD OF CHARITIES.

EXPLANATORY NOTE.

State Board of Charities.

The state board of charities have certain statutory powers and.
duties relative to the relief of poor persons, which must be recognized
by local officers. They are required to advise with officers having
charge of alms-houses in respect to their official duties. Such board
or any of its officers may visit and inspect alms-houses, and are to be
given full and free access to the grounds, buildings, books and papers
relating thereto, and may compel the giving of information by the
officers and persons in charge of such alms-houses.

The board may investigate the officers of such alms-houses and their
conduct of the affairs of such alms-houses, and may subpcena and swear
witnesses upon any such investigation. If inmates appear, upon such
investigation, to have been improperly treated, the board may direct
the modification of such treatment, and its orders in respect thereto
are enforceable, when approvel by the supreme court.

Section 1. Duties of the state board of charities relating to the poor.

2. Visitation and inspection of almshouses by state board; commis-
sioners and officers to be admitted. c

3. Investigation by beard or committee; orders thereon as to treatment
of inmates, &c.

4. Almhouse construction and administration; approval of plans by
board.

5. Attorney general and district attorneys to aid board in legal
investigations.

6. State, non-resident and alien poor in county almshouses.

7. Visit of almshouses by the state charities aid association.
ALMS-HOUSES; POWERS OF STATE BOARD OF CHARITIES. 685
Poor Law, §§ 115, 116.

§ 1. DUTIES OF THE STATE BOARD OF CHARITIES RELATING TO
THE POOR.

The State Board of Charities shall:

1. Investigate the condition of the poor seeking public aid and devise
measures for their relief.

2. Administer the laws providing for the care, support and removal of
state and alien poor and the support of Indian poor persons.

3. Advise the officers of alms-houses in the performance of their official
duties.

4. Collect statistical information in respect to the property, receipts and
expenditures of all alms-houses, and the number and condition of the
inmates thereof. [Poor Law, § 115; B. C. & G. Cons. L., p. 4273.]

§ 2. VISITATION AND INSPECTION OF ALMS-HOUSES BY STATE
BOARD; COMMISSIONERS AND OFFICERS TO BE AD-
MITTED.

Any commissioner or officer of the State Board of Charities, or any
inspector duly appointed by it for that purpose, may visit and inspect any
alms-house in this state. On such visits inquiry shall be made to ascertain -

1. Whether the rules and regulations of the board, in respect to such
alms-house, are fully complied with.

2. Its methods of industrial, educational and moral training, if any.
and whether the same are best adapted to the needs of its inmates.

3. The condition of its finances generally.

4. The methods of government and discipline of its inmates.

5. The qualifications and general conduct of its officers and employes.

6. The condition of its grounds, buildings and other property.

% Any other matter connected with, or pertinent to, its usefulness and
good management.

Any commissioner or officer of the board, or inspector duly appointed
by it, shall have free access to the grounds, buildings, books and papers
relating to such alms-house, and may require from the officers and persons
in charge, any information it may deem necessary. Such board may
prepare regulations according to which, and provide blanks and forms
upon which such information shall be furnished, in a clear, uniform and
prompt manner for the use of the board; any such officer or inspector who
shall divulge or communicate to any person without the knowledge and
consent of such board, any facts or information obtained in pursuance of
the provisions of this chapter, shall be guilty of a misdemeanor, and shall
at once be removed from office. The annual reports of each year shall give
the results of such inquiry, with the opinion and conclusions of the board
relating to the same. Any officer, superintendent or employe of any such
686 RELIEF OF POOR.

Poor Law, §§ 117, 118.

alms-house who shall wilfully refuse to admit any member, officer or
inspector of the board, for the purpose of visitation and inspection, and who
shall refuse or neglect to furnish the opinion required by the board, or
any of its members, officers or inspectors, shall be guilty of a misdemeanor,
and subject to a fine of one hundred dollars for each such refusal or
neglect. The rights and powers hereby conferred may be enforced by an
order of the Supreme Court after such notice as the court may prescribe,
and an opportunity to be heard thereon, or by indictment by the grand
jury of the county, or both. [Poor Law, § 116; B. C. & G. Cons. L., p.
4274.]

§ 3. INVESTIGATION BY BOARD OR COMMITTEE; ORDERS
THEREON AS TO TREATMENT OF INMATES, ETC.

The board may, by order, direct an investigation by a committee of
one or more of its members, of the officers and managers of any alms-
house, or of the conduct of its officers and employees; and the commissioner
or commissioners so designated to make such investigation may issue
compulsory process for the attendance of witnesses and the production of
books and papers, administer oaths, examine persons under oath, and
exercise the same powers in respect to such proceeding as belong to referees
appointed by the Supreme Court.

If it shall appear, after such investigation, that the inmates of the
alms-house are cruelly, negligently or improperly treated, or inadequate
provision is made for their sustenance, clothing, care and supervision, or
other condition necessary to their comfort and well being, such board may
issue an order in the name of the people, and under its official seal, directed
to the proper officer of such alms-house, requiring him to modify such
treatment or apply such remedy, or both, as shall therein be specified.
Before such order is issued it must be approved by a justice of the Supreme
Court, after such notice as he may prescribe, and an opportunity to be
heard thereon, and any person to whom such an order is directed who shall
wilfully refuse to obey the same shall, upon conviction, be deemed guilty
of a misdemeanor. [Poor Law, § 117; B. C. & G. Cons. L., p. 4275.]

§ 4. ALMS-HOUSE CONSTRUCTION AND ADMINISTRATION; AP-
PROVAL OF PLANS BY BOARD.

No alms-house shall be built or reconstructed, in whole or in
except on plans and designs approved in writing by the state board of
charities, provided, however, that such approval in writing as to alms-
houses to be constructed by the city of New York shall be by the board
of estimate and apportionment of said city. It shall be the duty of such
board to call the attention, in writing or otherwise, of the board of sa-
pervisors and the superintendent of the poor, or other proper officer, in
any county, of any abuses, defects or evils, which, on inspection, it may
ALMS-HOUSES; POWERS OF STATE BOARD OF CHARITIES. 687
Poor Law, §§ 119, 120.

find in the alms-house of such county, or in the administration thereof,
and such county officer shall take proper action thereon, with a view
to proper remedies, in accordance with the advice of such board. [Poor
Taw. § 118, as amended bv L. 1913, ch. 251; B. C. & G. Cons. L.,
p. 4275.]

§ 5. ATTORNEY-GENERAL AND DISTRICT ATTORNEYS TO AID
BOARD IN LEGAL INVESTIGATIONS.

If, in the opinion of the state board of charities, or any three members
thereof, any matter in regard to the management or affairs of any such
alms-house, or any inmate or person in any way connected therewith,
require legal investigation or action of any kind, notice thereof may be
given by the board, or any three members thereof, to the attorney-general,
who shall thereupon make inquiry and take such proceedings in the
premises as he may deem necessary and proper. It shall be the duty of the
attorney-general and of every district attorney when so required to furnish
such legal assistance, counsel or advice as the board may require in the
discharge of its duties under this chapter. [Poor Law, § 119; B. C.
& G. Cons. L., p. 4275.]

§ 6. STATE, NONRESIDENT AND ALIEN POOR IN COUNTY ALMS-
HOUSES.

The state board of charities, and any of its members or officers, may,
at any time, visit and inspect any alms-house to ascertain if any inmates
are state charges, nonresidents, or alien poor; and it may cause to be
removed to the state or country from which he came, any such nonresident
or alien poor found in any such alms-house. [Poor Law, § 120; B. C.
& G. Cons. L., p. 4276.]

§ 7. VISIT OF ALMS-HOUSES BY THE STATE CHARITIES AID
ASSOCIATION.

Any justice of the Supreme Court, on written application of the state
charities aid association, through its president or other officer designated
by its board of managers, may grant to such persons as may be named in
such application, orders to enable such persons, or any of them, as visitors
of such association, to visit, inspect and examine, in behalf of such asso-
ciation, any alms-house within the state. The person so appointed to visit,
inspect and examine such alms-house or alms-houses, shall reside in the
county or counties from which such alms-house or alms-houses receive their
or some of their inmates, and such appointment shall be made by a justice
of the Supreme Court of the judicial district in which such visitors reside.
Each order shall specify the alms-house to be visited, inspected and ex-
amined, and the name of each person by whom such visitation, inspection
688 RELIEF OF POOR.
Poor Law, § 121.

and examination shall be made, and shall be in force for one year from the
date on which it shall have been granted, unless sooner revoked.

All persons in charge of any such alms-house shall admit each person
named in any such order into every part of such alms-house, and render
to such person every possible facility to enable him to make in a thorough
manner such visit, inspection and examination, which are hereby declared
to be for a public purpose and to be made with a view to public benefit.
Obedience to the orders herein authorized shall be enforced in the same
manner as obedience is enforced to an order or mandate of a court of
record.

Such association shall make an annual report to the state board of
charities upon matters relating to the alms-house subject to its visitation.
Such reports shall be made on or before the first day of November for each
preceding fiscal year. [Poor Law, § 121; B. C. & G. Cons. L., p. 4276.]
SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 689

Insanity Law, § 82.

CHAPTER XLVI.
SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS.

Section 1. Application by poor officers for commitment of the insane.

2. Costs of commitment of insane persons charge on county, city or
town securing commitment; care and treatment prior to transfer.

8. Poor and indigent insane supported by state; patients committed
py order of criminal court charge on county.

4, Relatives to support insane other than the poor and indigent; duties
of poor officers.

5. Superintendent and overseers of the poor to see that insane poor be
granted relief; hospitals to which insane to be committed.

6. Apprehension and confinement of dangerous insane; duties of
superintendents and overseers of the poor.

6a. Expenses where patient is found sane or not committed.

%. Discharge of patients; duties of superintendents of the poor.

8. Expense of clothing state pupils to be paid by county; support of
pupils to be paid by parents and relatives; expense of removal.

9. Admission of patients to Craig Colony for Epileptics; applications by
superintendents of the poor; poor epileptics to be placed in colony.

10. Support of state patients at Craig Colony; payment of expense of cloth-
ing by counties.

11. Apportionment of state patients among counties.

12. State, non-resident and alien poor not to be admitted to certain in-
stitutions.

§ 1. APPLICATION BY POOR OFFICERS FOR COMMITMENT OF THE
INSANE.

An overseer of the poor of a town or a superintendent of the poor of a
county in which an alleged insane person mav be, may apply to a judge
of a court of record for an order committing such person to a state hos-
pital for the insane. Notice of an application for such commitment by
such officer must be served personally on the alleged insane person, and
690 RELIEF OF POOR.
Insanity Law, § 84.

upon ‘‘the husband or wife, father or mother or next of kin of such
alleged insane person, if there be any such known to be residing within
the county, and if not, upon the person with whom such alleged insane
person may reside, or at whose house he may be.’’ The proceedings
to determine the question of insanity of the person alleged to be insane
are then to be conducted the same in all respects as where the com-
mitment is sought by other persons.! [See Insanity Law, § 82, as
amended by L. 1912, ch. 121, L. 1914, ch. 807, L. 1919, ch. 506, and L.
1921, ch. 673.]

§ 2. COSTS OF COMMITMENT OF INSANE PERSONS CHARGE ON
COUNTY, CITY OR TOWN SECURING COMMITMENT; CARE
AND TREATMENT PRIOR TO TRANSFER.

The costs necessarily incurred in determining the question of the in-
sanity of a poor or indigent or other person under this chapter, or under
section twenty-six of chapter four hundred and forty-six of the laws of
eighteen hundred and seventy-four, including the fees allowed by the judge
ot justice ordering the commitment to the medical examiners or medical
witnesses called by him and other necessary expenses, and in securing the
admission of such person into a state hospital and the expense of providing
proper clothing and proper medical care and nursing, for such person in
accordance with the rules and regulations adopted by the commission, shall
be a charge upon the town, city or county securing the commitment;
but in the city of New York all fees of medical examiners and medical
witnesses appointed or called by a judge of any court in said city for
the purpose of determining the question of the insanity of any such person,
and not heretofore paid, may be audited and allowed in the first instance
either by the judge or justice appointing the medical examiners or by the
comptroller of said city and shall be paid by the chamberlain of said
city on the warrant of the comptroller from the court fund and charged
to the proper county within said city. If the person sought to. be com-
mitted is not a poor or indigent person, the costs and expenses of the
proceeding to determine his insanity and secure his commitment paid
by any town, city or county may be collected by it from the estate of
such person, or from the persons legally liable for his maintenance,
and the same shall be a charge upon the estate of such person, or
the same shall be paid by the persons legally liable for his maintenance.
The compensation or fees and expenses of health officers for duties per-
formed in respect to the examination, confinement, care and treatment of
insane or alleged insane persons, as required by this act, shall in each
case be determined and allowed by the judge or justice ordering the com-
mitment or hearing the application, and shall be a charge upon the town
city or county in which such persons reside or may be. If the fees and

 

1, Section cited in Matter of Cross (1917), 99 Misc. 199, 165 N. Y. Supp. 710.
SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 691

Insanity Law, § 85.

expenses so determined and allowed are a charge upon the county or
town, such judge or justice shall issue a certificate stating the amount
thereof, to whom to be paid, and whether a charge upon the county or
town, and if the latter, the name of the town, which shall be presented
to the county treasurer and be paid by him out of any moneys avail-
able for such purpose. The county treasurer shall report the amount
paid by him on account of such fees and expenses to the board of
supervisors, and the amount thereof which is chargeable against any
town in the county shall be levied against the taxable property thereof
in the same manner as other town charges are levied. If there is no
money in the county treasury available for the payment of such fees
and expenses, the county treasurer is hereby authorized and directed
to borrow on the credit of the county a sum sufficient to pay such fees
and expenses, and may issue certificates of indebtedness therefor,
the principal and interest of which, at a rate not exceeding six
per centum, shall be binding upon the county, and shall be paid
in the same manner as other county obligations. If the compen-
sation or fees and expenses of health officers as so determined and
allowed are a charge upon a city they shall be paid in the same man-
ner as the other expenses of the health department or bureau in such
city." [Insanity Law, § 84, as amended by L. 1910, ch. 608, in effect
October 1, 1910.]

§ 3. POOR AND INDIGENT INSANE SUPPORTED BY STATE; PATIENTS
COMMITTED BY ORDER OF CRIMINAL COURT CHARGE ON
COUNTY.

All poor and indigent insane persons not in confinement under
criminal proceedings, shall, without unnecessary delay, be transferred
to a state hospital and there wholly supported by the state. The costs
necessarily incurred in the transfer of patients to state hospitals shall
be a charge upon the state. The commission shall, except as herein-
after provided, secure from the patient’s estate and from relatives or
friends who are liable or may be willing to assume the costs of support
of inmates of state hospitals supported by the state, reimbursement
at the rate fixed by the commission, in whole or in part, of the money
thus expended, either directly or through the superintendents or treas-
urers of the respective hospitals, as provided in section fifty-four of
this chapter. The commission may, in its discretion, waive the whole
or a portion of the claim of the state for the cost of the support of a
patient against the estate of such patient, whenever the court
by which a committee was appointed shall have directed such
committee to apply any part of the patient’s estate for the
maintenance of his family. The commission may appoint agents,
whose duty it shall be to secure from relatives and friends
who are liable therefor, or who may be willing to assume the

la. Fees specified in this section may be allowed to a health officer in addi-
tion to his salary. Rept. of Atty. Genl., March 27, 1911.

Stenographer’s fees at the rate of twenty cents a folio for taking and tran-
scribing 1,984 folios of testimony will be approved. Matter of Murtaugh,
71 Misc. 513.

A county has a claim against the estate of a person confined under indict-
ment or a criminal charge, for the fees and expenses necessarily incurred
in his examination. Opinion of Comptroller (1917), 13 St. Dept. Rep. 486.

Payment of constable’s charge for watching, care and transportation of a
prospective insane person upon the order of the town health officers in an
emergency case. Opinion of State Comptroller (1919), 20 St. Dept. Rep. 265.
692 RELIEF OF POOR.
Insanity Law, § 86.

cost of support of any inmate of a state hospital who is being supported
by the state, reimbursement in whole or in part, of the money so ex-
pended. The compensation of each agent shall be fixed by the commis-
sion on either an annual or per diem basis, provided that the annual com-
pensation shall not exceed twenty-five hundred dollars, nor the per
diem compensation eight dollars a day. Each agent shall receive his
necessary traveling and other incidental expenses incurred by him, to
be approved by the comptroller. The commission may fix the rate to
be paid for the support of an inmate of a state hospital by the commit-
tee of such inmate or by relatives liable for such support or by those
not liable for such support, but willing to assume the cost thereof; but
such rate shall be sufficient to cover a proper proportion of the cost of
maintenance and of necessary repairs and improvements. The main-
tenance of any inmate of a state hospital committed thereto upon a
court order arising out of a criminal action, shall be paid by the
county from which such inmate was committed.” [Insanity Law, §
85, as amended by L. 1910, ch. 389, L. 1911, ch. 768, L. 1917, ch. 355,
L. 1918, ch. 568, and L. 1919, ch. 488.]

§ 4, RELATIVES TO SUPPORT INSANE OTHER THAN THE POOR AND IN-
DIGENT; DUTIES OF POOR OFFICERS.

The father, mother, husband, wife and children of an insane person, if of sufficient
ability, and the committee or guardian of his person and estate, if his estate is suf-
ficient for the purpose, shall cause him to be properly and suitably cared for and
maintained.2 The commission and the health officer of the city, town or village where
any such insane person may be, or in the city of New York and in the county
of Albany, the commissioners of public charities, may inquire into the

 

lb. Recovery for past support. A person receiving aid as a poor person from the
officers of the poor, in the absence of representation on his part as to his responsi-
bility or physical condition, incurs no liability to repay the amount expended in
his behalf; but after commitment to a state hospital for the insane, the state may
recover for cost of his maintenance, from time of his reception at such institution
from a committee appointed subsequent to such commitment. City of Albany v.
McNamara, 117 N. Y. 168; County of Oneida v. Bartholomew, 82 Hun, 80, 31 N. Y.
Supp. 106, affd. 151 N. Y. 655; Agricultural Ins. Co. v. Barnard, 96 N. Y. 525.

The intent of this section is to give the commission a diserction to waive in whole
or in part the claim for support as against relatives who could possibly contribute
but to whom such enforced contribution would be a great hardship and injustice.
Matter of Cross (1917), 99 Misc. 199, 165 N. Y. Supp. 710.

2. Relatives of poor and indigent persons who are insane may be com-
pelled to support such insane persons. Code Criminal Proe., sec. 914-920, post,
p. 755. But in Long Island Hospital v. Stuart, 22 Misc. 48, 49 N. Y. Supp. 372, it
was held that the Insanity Law does not make the relative liable for the cost of
the support and maintenance of an insane person in a state hospital. By the preced-
ing section of the Insanity Law, sec. 85, the commission in lunacy or the treasurer
of each state hospital are authorized to secure from the patient’s estate or from his
relatives, reimbursement for the whole or a part of the money expended by the state
in the care and maintenance of such patient.

Contract for support. Where the father of a lunatic who was not a pauper
for whose support the county was chargeable, but whom he was himself bound to
support and maintain, took her to the county poorhouse, under an agreement made
by him with the superintendents of the poor to pay them a specified sum per week,
for her board, it was held that this was a valid contract enforceable against the
father. Alger v. Miller, 56 Barb. 227.
SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 693

Insanity Law, § 87.

manner in which any such person is cared for and maintained: and if, in
the judgment of any of them, he is not properly or suitably cared for,
may apply, or cause application to be made, to a judge of a court of
record for an order to commit him to a state hospital under the provisions
of this article, but such order shall not be made unless the judge finds and
certifies in the order that such insane person is not properly or suitably
cared for by such relative or committee, or that it is dangerous to the
public to allow him to be cared for and maintained by such relative or
committee. The costs and charges of the commitment and transfer of such
insane person to a state hospital shall-be paid by the committee, or the-
father, mother, husband, wife or children of such person, to be recovered
in an action brought in the name of the people by the commission, or in
the name of the county, city or town, where such insane person resides
or may be, by the proper officer thereof, or in the city of New York or in the
county of Albany in the name of the commissioner of public charities.
In all claims of the state upon relatives liable for the support of a
patient, or upon moneys or property held by said patient, the state shall
be deemed a preferred creditor. [Insanity Law, § 86, as amended by L.
1910, ch. 608, in effect Oct. 1, 1910.]

§& SUPERINTENDENTS AND OVERSEERS OF THE POOR TO SEE THAT
INSANE POOR BE GBANTED RELIEF; HOSPITALS TO WHICH
INSANE TO BE COMMITTED.

All county superintendents of the poor, overseers of the poor, health offi-
cers and other city, town or county authorities, having duties to perform
relating to the poor, are charged with the duty of seeing that all poor and
indigent insane persons within their respective municipalities, are timely
granted the necessary relief conferred by this chapter. The poor officers or
authorities above specified, except in the city of New York,and in the county
of Albany, shall notify the health officer of the town, city or village of any
poor or indigent insane or apparently insane person within such municipality
whom they know to be in need of the relief conferred by this chapter.2a
When so notified, or when otherwise informed of such fact, the health officer
of the city, town or village, except in the city of New York and the county
of Albany, where such insane or apparently insane person may be, shall see
that proceedings are taken for the determination of his mental con-
dition and for his commitment to a_ state hospital. Such health
officer may direct the proper poor officer to make an application for
such commitment, and, if a qualified medical examiner, may join in
making the required certificate of lunacy. When so directed by such
health officer it shall be the duty of the said poor officer to make
such application for commitment. When notified or informed of any poor

2a. Designation of examiners of alleged insane; duty to notify health offi-
cer of existence of indigent insane. This section does not compel the desig-
nation of a health officer, who is a qualified examiner in lunacy, as one of
the physicians to examine a person alleged to be insane and make the re-
quired certificate of lunacy. All city, town or county authorities, having
duties to perform relating to the poor, except in the city of New York and
the county of Albany, must notify the health officer of the town or of the
village of any poor or indigent insane or apparently insane person within
such municipality whom they know to be in need of the relief conferred by
the Insanity Law. Rept. of Atty. Genl. (1912), vol. 2, p. 431.
694 RELIEF OF POOR.

Insanity Law, § 87.

or indigent insane or apparently insane person in need of the relief
conferred by this chapter, such health officer shall provide for the proper
care, treatment and nursing of such person, as provided by law and the
rules of the commission, pending the determination of his mental con-
dition aud his commitment and until the delivery of such insane person
to the attendant sent to bring him to the state hospital, as provided in
this chapter. In the boroughs of Manhattan and the Bronx, in the city
of New York, it shall be the duty of the trustees of. Bellevue and allied
hospitals, and in the boroughs of Brooklyn, Queens and Richmond, in
the city of New York and also in the county of Albany, it shall be the
duty of the commissioner of public charities to see that all poor and
indigent insane or apparently insane persons in such boroughs or
county, respectively, are properly cared for and treated. It shall also
be the duty of such trustees of Bellevue and allied hospitals, or the
commissioner of public charities of the city of New York or the county
of Albany, to see that proceedings are taken for the determination of
the mental condition of any such person in the boroughs or county
mentioned, who comes under their observation or is reported to them as
apparently insane, and when necessary, to see that proceedings are insti-
tuted for the commitment of such person to an institution for the care
of the insane; provided that such report is made by any person with
whom such alleged insane person may reside, or at whose house he may
be, or by the father, mother, husband, wife, brother, sister, or child of
any such person, or next of kin available, or by any duly licensed physi-
cian, or by any peace officer, or by a representative of an incorporated
society doing charitable or philanthropic work. When the trustees of
Bellevue and allied hospitals are thus informed of an apparently in-
sane person, residing in the boroughs of Manhattan or the Bronx, or
when the commissioner of public charities of the city of New York is
thus informed of an apparently insane person residing in the boroughs
of Brooklyn, Queens or Richmond, it shall be the duty of these authori-
ties, respectively, to send a nurse or a medical examiner in lunacy, at-
tached to the psychopathic wards of their respective institutions, or both,

 

8. New clothing. A regulation adopted by the state commission in lunacy that
each patient be furnished by the county with new clothing before his admission into
a state hospital is reasonable and must be obeyed. People ex rel. Croft v. Man-
hattan State Hospital, 5 App. Div. 249; 39 N. Y. Supp. 158.

Cost of new clothing is a charge upon the county, or town securing the patient’s
commitment. Insanity Law, sec. 84, ante. The cost of transfer is a state charge.
Insanity Law. sec. 85, ante.
SUPPORT OF THE INSANE, IDIOTS AND: EPILEPTICS. 695

Insanity Law, § 87.

to the place where the alleged insane person resides or is to be found.
If, in the judgment of the chief resident alienist of the respective
psychopathic wards or of the medical examiner thus sent, the person is
in immediate need of care and treatment or observation for the pur-
pose of ascertaining his mental condition, he shall be removed to such
psychopathic ward for a period not to exceed ten days, and the person
or persons most nearly related to him, so far as the same can be readily
ascertained by such trustees, or commissioners, shall be notified of such
removal.

When an order of commitment has been made as provided in this
chapter, such health officer, or, in the city of New York and in the
county of Albany, the authorities above specified in their respective
boroughs or county, shall see that such insane persons are, without un-
necessary delay, transferred to the proper institutions provided for their
care and treatment as the wards of the state. Before sending a person
to any such institution, they shall see that he is in a state of bodily clean-
liness and comfortably clothed with suitable or new clothing, in accord-
ance with the regulations prescribed by the commission. Each patient
shall be sent to the state hospital, within the district embracing the
county from which he is committed, except that the commission may,
in its discretion, direct otherwise, but private or public insane patients,
for whom homeopathic care and treatment may be desired by their rela-
tives, friends or guardians, may be committed to the Middletown state
homeopathic hospital, or the Gowanda state homeopathic hospital, from
any of the counties of the state, in the discretion of the judge granting
the order of commitment; and the hospital to which any patient is or-
dered to be sent shall, by and under the regulations made by such com-
mission, send a trained attendant to bring the patient to the hospital.
Each female committed to any institution for the insane shall be accom-
panied by a female attendant, unless accompanied by her father,
brother, husband or son. The commission may, by order, direct that
any person it deems unsuitable therefor shall not be so employed or act
as such attendant. After the patient has been delivered to the proper
officers of the hospital, the care and custody of the municipality from
which he is sent shall cease.

In no case shall any insane person be confined in any other place
than a state hospital or duly licensed institution for the insane, for a
period longer than ten days, nor shall such person be committed as a
disorderly person to any prison, jail or lock-up for criminals. Except
in the city of New York and the county of Albany, the health officer of
the town, village or city wherein an insane or alleged insane person may
696 RELIEF OF POOR.

Insanity Law, § 87.

be shall see that such person is cared for in a place suitable for the com-
fortable, safe and humane confinement of such person, pending the de-
termination of the question of his sanity and until his transfer to a
state hospital or some other proper institution for the insane as pro-
vided in this chapter. Such person shall not be confined in any such
place without an attendant in charge of him, and the said health officer
shall select some suitable person to act as such attendant.

The proper authorities of any such town, city or county may provide
a permanent place for the reception and temporary confinement, care
and nursing of insane or alleged insane persons which shall conform in
all respects to the rules and requirements of the commission; all poor
and indigent insane persons received at any such place for investigation
of their mental condition or pending commitment and transfer to a state
hospital shall be maintained therein at the expense of such town, city or
county. Any person apparently insane, and conducting himself in a
manner which in a sane person would be disorderly, may be arrested by
any peace officer and confined in some safe and comfortable place until
the question of his sanity be determined, as prescribed by this chapter.
The officer making such arrest shal] immediately notify the health officer
of the town, village or city, except in the city of New York and in the
county of Albany, who shall forthwith take proper measures for the de-
termination of the question of the insanity of such person, and for his
proper care and treatment as provided in this section, pending his trans-
fer to an institution for the insane. Whenever in the city of New York
an information is laid before a magistrate that a person is apparently
insane the magistrate must issue a warrant directed to the sheriff of the
county in which the information is made, or any marshal or policeman
of the city of New York, reciting the substance of the information, and
commanding the officer forthwith to arrest the person alleged to be in-
sane, and bring him before the magistrate’s court out of which the war-
rant was issued. If upon arraignment it appcars to the magistrate pre-
siding that the person so arraigned before him is apparantly insane it
shall be the duty of the magistrate, if such infromation is laid in the
boroughs of Manhattan and the Bronx, to commit such apparently in-
sane person to the care and custody of the board of trustees of Bellevue
and allied hospitals at Bellevue hospital, and therein kept in a safe and
comfortable place until the question of his sanity be determined as pre-
scribed by this chapter, and in the boroughs of Brooklyn, Queens and
Richmond the said magistrate shall commit such apparently insane per-
son to the care of the commissioner of public charities who shall keep
such person in a safe and comfortable place until the question of his
sanity be determined as herein prescribed. Whenever in the city of New
SUPPORT OF THE INSANH, IDIOTS AND EPILEPTICS.

Co:
oO
3

Insanity Law, § 88.

York a person is committed as apparently insane as above provided it shall
be the duty of the board of trustees of Bellevue and allied hospitals or the
commissioner of public charities, as the case may be, to forthwith take
proper measures for the determination of the question of the insanity of
such person,

When a veteran of the world war is arraigned according to law before a
magistrate in the city of New York as an alleged insane person and it appears
that the veteran is apparently insane, the magistrate shall, upon the request
of the director of the United States veterans’ bureau or his accredited repre-
sentative, or person authorized by law to make such a request, commit the
alleged insane veteran for examination for a period not exceeding ten days
direct to the veterans’ hospital, Kingsbridge road and Sedgwick avenue,
borough of the Bronx, New York city. Such commitment shall be for the
purpose of observation and for rendering of such care and treatment as shall
be deemed for the best interests of the person so committed.

Veterans of the world war who have been duly committed to a state
hospital for the insane within the state of New York prior to the passage of
this act and who may be either actually confined in a state hospital for the
insane within the state of New York, or on parole, may be transferred to the
said veterans’ hospital, borough of the Bronx, New York city, by order of
the state hospital commission. [Insanity Law, § 87, as amended by L. 1910,
ch. 608, L. 1912, ch. 121, L. 1919, ch. 380, and L. 1922, ch. 420.]

§ 6. APPREHENSION. AND CONFINEMENT OF DANGEROUS INSANE;
DUTIES OF SUPERINTENDENTS AND OVERSEERS OF THE
POOR.

When an insane person is possessed of sufficient property to maintain
himself, or his father, mother, husband, wife or children are of sufficient
ability to maintain him, and his insanity is such as to endanger his own
person, or the person and property of others, the committee of his per-
son or estate, or such father, mother, husband, wife or children must
provide a suitable place for his confinement, and there maintain him in
such manner as shall be approved by the health officer of the town, vil-
lage or city where he is confined, and in accordance with the rules of the
commission.3a The health officers of towns, villages and cities, or in the
boroughs of Manhattan and the Bronx in the city of New York the
board of trustees of Bellevue and allied hospitals, and in the boroughs
of Brooklyn, Queens and Richmond, in said city, and also in the county
of Albany, the commissioner of public charities are required to see that
the provisions of this section are carried into effect in the most humane
and speedy manner.

Upon the refusal or neglect of a committee, guardian or relative of an
insane person to cause him to be confined, as required in this chapter, the
officers named in this section shall apply, or cause application to be
made, to a judge of a court of record of the city or county, or to a justice
of the supreme court of the judicial district in which such insane per-
son may reside or be found, who, upon being satisfied; upon proper
proofs, that such person is dangerously insane and improperly cared for
or at large, shall issue a precept to one or more of the officers named,
commanding them to apprehend and confine such insane person in some
comfortable and safe place; and such officers in apprehending such in-
sane person shall possess all the powers of a peace officer executing a
warrant of arrest in a criminal proceeding.4 Unless an order of commit-

3a. Where the insane person is, or has responsible relatives, of sufficient
ability to maintain him, the State Commissioner in Lunacy and the local
health officer, having upon inquiry concluded that he is being improperly
cared for, may apply to a judge of a court of record for his commitment to
a state hospital for the insane. The expense, fees and compensation in the
performance of these duties shall be allowed by the judge before whom the
application is heard. Rept. of Atty. Genl., Feb. 7, 1912.

4. Arrest of a dangerous insane person, force may be used. Penal Law,
§ 246, sub. 6.
698 RELIEF OF POOR,

Insanity Law, §§ 88a, 94.

ment has been previously granted, such officers shall forthwith make, or
cause to be made, application for the proper order for his commitment
to the proper institution for the care, custody and treatment of the in-
sane, as authorized by this chapter, and if such order is granted, such
officer shall take the necessary legal steps to have him transferred to such
institution. Pending such transfer the health officer of the proper town,
village or city, and, in the city of New York and the county of Albany,
the officers above namcd for the respective boroughs, or county. shall
see that such insane person is cared for in a suitable place and is pro-
vided with proper medical care and nursing.» The cost and expense
incurred by the health officer ia the performance of his duties under this
section shall, when allowed by the judge or justice ordering the commit-
ment, be a charge against the town, city or county liable for the costs of
the commitment of an insane person under this chapter and shall be
paid in the manner prescribed by section eighty-four of this chapter.
[Insanity Law, § 88, as amended by L. 1910. ch. 608, and L. 1912, ch.
121; B.C. & G. Cons. L., p. 2483.]

§ 6a. EXPENSES WHERE PATIENT IS FOUND SANE OR NOT COMMITTED.

All costs, expenses, compensation and examiners’ or medical fees,
together with the fees of health officers, incurred under the foregoing
sections eighty-two, eighty-four, eighty-seven and eighty-eight shall be
determined, allowed and paid in the manner therein specitied whether
the patient be found sane or insane and whether or not the patient be
committed. [Insanity Law, § 88a, as added by L. 1920, ch. 598.]
§ 7. DISCHARGE OF PATIENTS; DUTIES OF SUPERINTENDENT OF THE

The superintendent of a state hospital, on filing his written certifi-
cate with the commission, may discharge any patient, except one held
upon an order of a court or judge having criminal jurisdiction in an
action or proceeding arising out of a criminal offense at any time, as
follows:

1. A patient who, in his judgment, is recovered.

2. A patient who, in his opinion, is a dotard, not insane.

 

5. Unlawful confinement; harsh treatment. A person who confines an
idiot, lunatic or insane person, in any other manner or in any other place
than as authorized by law, and a person guilty of harsh, cruel or unkind
treatment of or any neglect of duty towards any idiot, lunatic or insane
person under confinement, whether lawfully or unlawfully confined, is guilty
of a misdemeanor. Penal Law, § 1121.

6. Application of section. The above section relates to dangerously insane
persons. The father is therein required to provide a suitable place for his
lunatic son’s confinement, and upon his refusal or neglect so to do, legal pro-
ceedings may be instituted, and a commitment ordered on proper proof.
Long Island State Hospital v. Stuart, 22 Misc. 48, 51; 49 N. Y. Supp. 372.

It is the duty of the committee or relatives of a lunatic to provide for his
confinement if he be dangerously insane; and in case of their neglect the
any . gee on certain public officers. Perkins v. Mitchell, 31 Barb.

Payment of constable’s charge for watching, care and transportation of a
prospective insane person upon the order of the town health officers in an
emergency case. Opinion of Comptroller (1919), 20 St. Dept. Rep. 265.
SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS, 699.
Insanity Law, § 94.

3. Any patient who is not recovered but whose discharge in the judg
mert of the superintendent, will not be detrimental io te public wel-
fare, or injurious to the patient; provided, however, that before making
such certificate, the superintendent shall satisfy himself, by sufficient
proof, that friends or relatives of the patient are willing and financially
able to receive and properly care for such patient after his discharge.
When the superintendent is unwilling to certify to the discharge of an
unrecovered patient upon request, and so certifies in writing, giving his
reason therefor, any judge of a court of record in the judicial district
in which the hospital is situated may, upon such certificate and an op-
portunity of a hearing thereon being accorded the superintendent, and
upon such other proofs as may be produced before him, direct, by order,
the discharge ot such patient, upon such security to the people of the
state as he may require, for the good behavior and maintenance of the
patient. The certificate and the proof of the order granted thereon
shall be filed in the clerk’s office of the county in which the hospital is
situated, and a certified copy of the order in the hospital from which
the patient is discharged. The superintendent may grant a parole to a
patient, not exceeding one year, under general conditions prescribed by
‘the commissioner. The hospital paroling a patient shall not be liable
for his expenses while on parole. Such liability shall devolve upon the
telative, committee or person to whose care the patient is paroled, or
the proper poor official of the town or county in which he may have found
domicile.

The commission may, by order, discharge any patient in its judgment
improperly detained in any institution. A poor and indigent patient
discharged by the superintendent, because he is an idiot, or a dotard not
insane, or an epileptic, not insane, or because he is not a proper case for
treatment within the meaning of this chapter, shall be received and
cared for by the superintendent of the poor or other authority having
similar powers, in the county from which he was committed. A patient,
held upon an order of a court or judge having criminal jurisdiction, in
an action or proceeding arising from a criminal offense, may be dis-
charged upon the superintendent’s certificate of recovery, approved by
any such court or judge.” :

4, Discharge of patients from licensed institutions. The superin-

 

7. The committee of the person of an incompetent may obtain her custody by a
writ of habeas corpus pursuant to this section, although she has not been declared
sane. Matter of Andrews, 126 App. Div. 794, 800, 111 N. Y. Supp. 417.
700 RELIEF OF POOR.
State Charities Law, § 70.

tendent or physician in charge of a licensed private institution, on filing
his written certificate with the commission, may discharge any patient
who is recovered, or if not recovered, whose discharge will not be detri-
mental to the public welfare, or injurious to the patient. The superin-
tendent or physician in charge of such institution may, subject to the
approval of the commission, refuse to discharge any patient, if, in his
judgment, such discharge will be detrimental to the public welfare or
injurious to the patient, and if the committee or relatives of such pa-
tient to provide properly for his care and treatment, the superintendent
or physician in charge of such institution may apply to the commission
for the transfer of the patient to a state hospital, provided the patient
so sought to be transferred is a legal resident of the district in which the
hospital is located, to which the transfer is sought.

The superintendent or physician in charge of a licensed private insti-
tution may grant a parole to a patient not exceeding six months, under
general conditions prescribed by the commission. [Insanity Law, § 94,
as amended by L. 1912, ch, 121, and L. 1917, ch. 335; B. C. & G. Cons.
L., p. 3820. ]

§ 8. EXPENSE OF CLOTHING STATE PUPILS TO BE PAID BY COUNTY;
SUPPORT OF PUPILS TO BE PAID BY PARENTS AND RELATIVES;

EXPENSE OF REMOVAL.

The supervisors of any county from which state pupils may have been
received shall cause to be raised annually, while such pupils remain in
the institution, the sum of twenty dollars for each pupil, for the purpose
of furnishing suitable clothing, which shall be paid to the treasurer of
the institution on or before the first day of April.2 The superintendent
may agree with the parent, guardian or committee of a feeble-minded
child, or with any person, for the support, maintenance and clothing
of such a child at the institution, upon such terms and conditions as may
be prescribed, in the by-laws, or approved by the managers. Every
parent, guardian, committee, or other person applying for the admission
into the institution of a feeble-minded child who is able, or whosa
parents or guardians are of sufficient ability to provide for his main-
tenance therein, shall at the time of his admission, deliver to the super-

 

8. Craig Colony for Epileptics was established and is managed pursuant to State
Charities Law. See B. C. & G. Cons. Law, p. 7835.
SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 701
State Charities Law, § 109.

intendent an undertaking, with one or more sureties, to be approved by
the managers, conditioned for the payment to the treasurer of the insti-
tution of the amount agreed to be paid for the support, maintenance
and clothing of such feebleminded child, and for the removal of such
child from the institution without expense thereto, within twenty days
after the service of the notice hereinafter provided. If such child, his
parents or guardians are of sufficient ability to pay only a part of the
expense of supporting and maintaining him such undertaking shall be
only for his removal from the institution as above mentioned; and the.
superintendent may take security by note or other written agreement,
with or without sureties, as he may deem proper, for such part of such ex-
penses as such child, his parents or guardians are able to pay, subject,
however, to the approval of the managers in the manner that shall be pre-
scribed in the by-laws. Notice to remove a pupil shall be in writing,
signed by the superintendent and directed to the parents, guardians, com-
mittee or other person upon whose request the pupil was received at the
institution, at the place of residence mentioned in such request, and de-
posited in the post-oftice at Syracuse with the postage prepaid. If the
pupil shall not be removed from the institution within twenty days after
service of such notice, according to the conditions of the agreement and
undertaking, he may be removed and disposed of by the superintendent
as herein provided, in relation to state pupils, and the provisions of this
article respecting the payment and recovery of the expenses of the re-
moval and disposition of a state pupil, shall be equally applicable to ex-
penses incurred under this section. This section, as amended, shall
supersede and control any other provision of this chapter inconsistent
herewith in its application to such institution. [State Charities Law,
§ 70, as amended by L. 1911, ch. 609; B. C. & G. Cons. L., p. 7828.]
§ 9. ADMISSION OF PATIENTS TO CRAIG COLONY FOR EPILEPTICS; AP-

PLICATIONS BY SUPERINTENDENTS OF THE POOR; POOR EPILEP-
TICS TO BE PLACED IN COLONY.

1. The superintendent of the poor or the proper city poor law officer
shall have two qualified physicians examine each eligible candidate for
admission to the Craig Colony for Epileptics as to mental competency
and have them state in writing, under affidavit on prescribed forms the
results of such examination of the applicant. Such examiner shall not
702 RELIEF OF POOR.
State Charities Law, § 109.

be a relative of the applicant or a manager, superintendent or be other
wise connected with the Craig Colony for Epileptics and shall be a
reputable physician, a graduate of an incorporated medical school and
shall be in the actual practice of his profession for at least three years.
The superintendent of the poor or city poor law officer mentioned under
the laws governing the colony shall thon if the applicant appears in-
competent make application to a judge of a court of record of the county
or a justice of the supreme court of the judicial district in which the
alleged incompetent epileptic resides or may be, for the purpose of
having the incompetency of such applicant determined in the usual
manner. If the applicant is adjudged incompetent he shall then be
committed by the court to the Craig Colony for Epileptics under the
provisions of this act.

2. All applicants for admission to the Craig Colony for Epilepties,
who are alleged to be incompetent mentally shall have an opportunity
for a hearing before the court to whom the application is to be made
for the commitment of the applicant to the said Craig Colony for
Epilepties.

Notice of the application for commitment shall be served per-
sonally at least three days before making such application, upon the
epileptic alleged to be incompetent and also upon the husband or wife,
father or mother or next of kin to such alleged incompetent epileptic,
it there be any such known to be residing within the county and if not,
upon the person with whom such alleged incompetent epileptic may at
the time reside.

The judge, to whom the application is to be made, may dispense
with such personal service or mav direct substitute service to be made
upon some person to be designated by him. He shall in the certificate
to be attached to the application form state his reason for dispensing
with personal service, if such service is not deemed necessary or advis-
able. The judge to whom such application is made, may if no demand
is made for a hearing in behalf of the alleged incompetent, proceed
forthwith to ‘|-termine the question of incompetency and if satisfied
that the alleged epileptic is incompetent mav issue an order for the
commitment of such person to the custody of the Craig Colony for
Epileptics. Such judge may in his discretion require other proofs in
addition to the petition and certificate of the medical examiner and
before mentioned poor law officer.
SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS, [02a

State Charities Law, § 109.

3. The order of commitment shall be accompanied by a written state-
ment of the judge as to the financial condition of the incompetent epi-
leptic and of the persons legally liable for his maintenance as far as
can be ascertained. The superintendent of the Craig Colony for Epi-
leptics shall, whenever a vacancy exists in the quota allowed the county
of which the applicant is a legal resident, admit the applicant. The
petition of the applicant, the certificate of the medical examiners, the
. order directing a further hearing as provided in this section, if one be
issued, and the decision of the judge or referee, and the order of commit-
ment shall be presented at the time of the commitment to the superin-
tendent of Oraig Colony for Epileptics and verbatim copies shall be
forwarded by such superintendent and filed in the office of the state
board of charities. The superintendent of Craig Colony for Epileptics
may refuse to receive any person upon any such order, if the papers
required to be presented shall not comply with the provisions of this
section, or if in his judgment, such person is not epileptic within the
meaning of this statute, or if received, such person may be discharged.

If a person ordered to be committed, pursuant to this chapter, or
any friend in his behalf, is dissatisfied with the final order of a judge
or justice committing him, he may within ten days after the making of
such order appeal therefrom to a justice of the supreme court other than
the justice making the order, who shall cause a jury to be summoned
as in case of proceedings for the appointment of a committee for the
incompetent person, and shall try the question of such incompetency
in the same manner as in proceedings for the appointment of a com-
mittee. If the verdict of the jury be that such person is incompetent,
the justice shall certify that fact and make an order of commitment as
upon the original hearing. Such order shall be presented, at the time
of the commitment of such incompetent epileptic, to the superintendent
in charge of said colony to which the person is committed, and a copy
thereof shall be forwarded to the state board of charities by such super-
mtcndent or person in charge and filed in the office thereof. Proceed-
ings under the order shall not be stayed pending an appeal therefrom,
except upon an order of a justice of the supreme court, and made upon
a notice, and after a hearing, with provisions made therein for such
temporary care or confinement of the alleged incompetent epileptic as
may be deemed necessary. If a judge shall refuse to grant an appli-
cation for an order of commitment of an incompetent epileptic proved
to be dangerous to himself or others, if at large he shall state his reason
%02b RELIEF OF POOR.
State Charities Law, § 109.

for such refusal in writing, and any person aggrieved thereby may ap-
peal therefrom in the same manner and under like conditions as from
an order of commitment.

4. The costs necessarily incurred in determining the question of the
incompetency of a poor or indigent epileptic under this chapter includ-
ing the fees allowed by the judge or justice ordering the commitment
to the medical examiner or medical witnesses called by him and other
necessary expenses, and in securing the admission of such person into
said colony and the expense of providing proper clothing for such person
in accurdance with the rules and regulations adopted by the state board
of charities, shall be a charge upon the town, city or county in which
the alleged incompetent epileptic shall have gained a legal settlement
under the provisions of the poor law and in case such person has gained
uo such legal settlement, then such expense shall be a charge upon the
county in which the incompetent person may be at the time of the
eommitment; but in the city of New York all fees of medical examiners
aod medical witnesses appointed or called by a judge of any court of
said city for the purpose of determining the question of the incvmpe-
tency of such person, and not heretofore paid, may be audited and
allowed in the first instance either by the judge or justice appointing
the medical examiners or by the comptroller of said city and shall be
paid by the chamberlain of said city on the warrant of the comptroller
from the court fund and charged to the proper county within said city.
If the person sought to be committed is not a poor or indigent person,
the costs and expenses of the proceeding to determine his incompetency
and secure his commitment paid by any town, city or county may be
collected by it from the estate of such person, or from the persons legally
liable for his maintenance.

5. It shall be the duty of said colony, and for that purpose it is hereby
vested with the authority to detain all such mentallv incompetent epilep-
tics as shall be duly committed: thereto in accordance with the provi-
sions of law and the rules and regulations of said colonv including the
right to arrest and return anv who may escape therefrom, until duly
discharged by the board of managers of said colony, or by an order of
the supreme court.

6. The supcrintendent of the Craig Colony for Epileptics shall be
given power under this act to secure the commitment of such of its in-
mates who, after being admitted in any other manner than by commit-
SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 703
State Charities Law, § 109.

ment, prove after examination to be mentally incompetent, after an op-
portunity has been given the relatives or legal guardian of such patient
to be heard, such commitment to be made by the court in the case of such
an individual the same as in case of a person regularly committed at the
time of admission to the colony.

7. It shall be the duty of the superintendent of the poor in every
county and of the poor authorities of every city to furnish annually to
the state board of charities, a list of all epileptics in their respective jur-
isdictions, so far as the same can be ascertained with such particulars
as to the condition of such epileptic as sall become a charge for his or
her maintenance on any of the towns, cities or counties of this state. It
shall be the duty of all poor authorities of such city, and of the county
superintendent of the poor, and of the supervisors of such county, to
place such epileptics in the said colony, as soon as accommodations are
available. Any parent, guardian or friend of an epileptic within this
state may make application to the poor authorities of any city or the
superintendent of the poor of any county where such epileptic resides,
showing by satisfactory affidavit or other proof, that the health, morals,
comfort or welfare of such epileptic may be endangered or not properly
eared for, if not placed in such colony; and thereupon it shall be the
duty of such officer or board to wom such application may be made to
place such epileptic in said colony when accommodations are available.
The board of supervisors shall provide for the support of such patients,
except those properly supported by the state, and may recover for the
same from the parcnts or guardians. Preference shall always be given
to poor or indigent epileptics, or the epileptic children of poor or indi-
gent persons, over all others; and prefcrence shall always be given to
such as are able to support themselves only in part, over those who are
able or who have parents who are able wholly to furnish such support.

8. There shall be received and gratuitously supported in the colony,
epileptics of normal mentality residing in the state, who, if of age, are
unable, or if under age whose parents or guardians are unable to provide
for their support therein. They shall be designated state patients. All
such epileptics of normal mentality shall be received into the colony,
only upon the official application of a county superintendent of the poor,
or the poor authorities of any city upon forms approved by the state
board of charities containing the written request of the persons desiring
to send them, stating the name, age, place of nativity, if known, the
town, city or county in which such applicants respectively reside and
the ability of their respective parents or guardians or others to provide
for their support in whole or in part, and if in part only, stating what
part; and stating also the degree of relationship or other circumstances
of connection between the applicant and the persons requesting their ad-
mission; which statement in all cases must be verified by the affidavits

 

13, Accounts for support of patients chargeable to a county should be sub-
mitted to the clerk of the board of supervisors in the manner prescribed by the State
Charities Law, § 47, as amended by L. 1911, ch. 405.

As to the audit of such accounts by the board of supervisors, see County Law, sec.
12, ante, p. 24.
r04 RELIEF OF POOR.
State Charities Law, §§ 110, 111, 1%.

of the petitioners and accompanied by the opinions regarding epilepsy
and mental competency, with affidavit, of a qualified physician; all re-i-
dents of the same county with the epileptic patient and all acquainted
with the facts and circumstances stated. An epileptic of proved normal
mentality thus received shall not be detained after he or his relative
nearest of kin or legal guardian, if a minor, shall have given due notice
in writing of his or their intention to leave or remove him from the
colony. Such additional number of epilepties as can be conveniently ac-
commodated shall be received into the colony by the managers on such
terms as shall be just and shall be designated as private patients. [State
Charities Law, § 109, as added by L. 1914, ch. 39; B. C. & G. Cons.
L., p. 7840.]

§ 10. SUPPORT OF STATE PATIENTS AT CRAIG COLONY; PAYMENT OF
EXPENSE OF CLOTHING BY COUNTIES.

State patients shall be provided with proper board, lodging, medical
treatment, care and tuition; and the managers of the colony shall receive
for each state patient supported thercin a sum not execeding two hun-
dred and fifty dollars per anntm; which payments, if any, shall be made
by the treasurer of the state, on the warrant of the comptroller, to the
treasurer of the said colony, on his presenting the bill of the actual time
and number of patients in the colony, signed and verified by the super-
intendent and treasurer of the colony and by the president and secretary
of its board of managers, aud approved by the fiscal supervisor. The
supervisors of any county from which such patients may have been re-
ceived into the colony shall cause to be raised annually while such pa-
tients remain in the colony, the sum of thirty dollars for each of such
state patients for the purpose of furnishing suitable clothing and the
same shall be paid to the treasurer of the colony on or before the first
day of April of each year.! [State Charities Law, § 110, as amended
by L. 1909, ch. 149, B. C. & G. Cons, L., p. 7844.]

§ 11. APPORTIONMENT OF STATE PATIENTS AMONG COUNTIES.

Whenever applications are made at one time for admission of more state patients
than can be properly accommodated in the colony, the managers shall so apportion
the number received, that each county may be represented in a ratio of its depend-
ent epileptic population to the dependent epileptic population of the state, as
shown by statistics furnished by the state board of chartiies. [State Charities
Law, Ԥ 111; B. C. & G. Cons, L., p. 7845.]

§ 12. STATE, NONRESIDENT AND ALIEN POOR NOT TO BE ADMITTED TO
CERTAIN INSTITUTIONS.

A poor person shall not be admitted as an inmate into a state institution for the
feeble-minded, or epileptics, unless a resident of the state for one year next
preceding the application for his admission. The state board of charities, and
any of its members or officers, may at any time, visit and inspect any institution
subject to its supervision to ascertain if any inmates supported therein at a state,
county or municipal expense are state charges, non-residents, or alien poor; and
it may cause to be removed to the state or county from which he came any such
non-resident or alien poor found in any such institution. [State Charities Law,
§ 17; B.C. & G. Cons. L., p. 7809.]

14. Clothing accounts. The superintendent of the colony is required by section
46 of the State Charities Law to report to the clerk of the hoard of supervisors of
each county the number of patients committed to such colonv from such county.
The accounts for such clothing are to be itemized and verified as provided in
sec, 24 of the County Law, post, p. 27. Such accounts are then to be audited by
the board of supervisors.

 
THE BLIND AND THE DEAF AND DUMB.

x
cS
co

Education Law, §§ 971, 972.

CHAPTER XLVIL.

EDUCATION, SUPPORT AND RELIEF OF THE NEEDY BLIND, AND THE
DEAF AND DUMB.

Section 1. Appointment as state pupils in schools for the blind and the deaf
and dumb.
. Clothing for state pupils admitted to deaf and dumb institutions.
. Admission of pupils to New York State School for the Blind at
Batavia; application for admission.
. Clothing and traveling expenses of those admitted to State School
for the Blind; when to be furnished or paid for by the county.
Itemized accounts against counties, payment of such accounts.
. Indigent deaf-mutes to be placed in institutions; application for
admission; when expense a charge against county.
. Pupils may be sent to Western New York Institution for Deaf-
Mutes.
Admission of pupils to Northern New York Institution for Deaf-
Mutes at Malone.
. Verification of bills for support of pupils at New York Institution
for the Instruction of the Deaf and Dumb.
10. Relief of the needy blind.

wo 00 oo | Dor ~ wp

§ 1. APPOINTMENT AS STATE PUPILS IN SCHOOLS FOR THE BLIND
AND THE DEAF AND DUMB.

Persons eligible as pupiis to institutions for instruction of the deaf and dumb.—
All deaf and dumb persons resident in this state, of the age of five years and
upwards, who are not now under appointment as county pupils in one of the
deaf and dumb institutions of the state in pursuance of sections nine hun-
dred and seventy-seven, nine hundred and seventy-eight and nine hundred
and seventy-nine of this article, and who shall have been resident in this
state for one year immediately preceding the application, or, if a minor,
whose parent or parents, or, if an orphan, whose nearest friend shall have
been resident in this state for one year immediately preceding the applica-
tion, shall be eligible to appointment as state pupils in one of the deaf
and dumb institutions of this state, authorized by law to receive such pupils.
[Education Law, § 971, as amd. by L. 1910, ch. 140, and L. 1922, ch. 327.]

All blind persons of suitable age and possessing the other qualifications
prescribed for deaf and dumb state pupils under section nine hundred sev-
enty-one shall be eligible to appointment to the Institution for the Blind in
the city of New York, or in the village of Batavia, as follows:

1. All such as are. residents of the counties of New York, Kings, Queens,
Suffolk, Nassau, Richmond, Westchester, Putnam and Rockland, shall be
sent to the Institution for the Blind in the city of New York.

2. All such who reside in other counties of the state shall be sent to the
institution for the blind in the village of Batavia. Blind babies and children,
not residing in the city of New York, of the age of twelve years and under
and possessing the other qualifications prescribed in the preceding section
of this chapter and requiring kindergarten training and instruction shall be
eligible to appointment as state pupils in one of the homes for blind babies
and children maintained by the International Sunshine Society, Brooklyn
Home for the Blind, Crippled and Defective Children and the Catholic Insti-
706 RELIEF OF POOR.
Education Law, § 975.

tute for the Blind and any such child may be transferred to the institution
for the blind in the city of New York or village of Batavia, to which he or she
would otherwise be eligible to appointment, upon arriving at suitable age,
in the discretion of the commissioner of education. All such appointments,
with the exception of those to the institution for the blind in the village of
Batavia, shall be made by the commissioner of education upon application,
and in those cases in which, in his opinion, the parents or guardians of the
applicants are able to bear a portion of the expense, he may impose con-
ditions whereby some proportionate share of expense of educating and cloth-
ing such pupils shall be paid by their parents, guardiaus or friends in such
ing such pupils shall be paid by their parents, guardians or friends in such
Asti-~- ha mov modify from time to time, if he shall deem it exnedient to do
so. [Education Law, § 972, as amd. by L. 1910, ch. 140, and L. 1912, ch. 60.]

§ 2. CLOTHING FOR STATE PUPILS ADMITTED TO DEAF AND
DUMB INSTITUTIONS.

1. The supervisors of any county in this state from which county
state pupils may be hereinafter appointed to any institution for the
instruction of the deaf and dumb, whose parents or guardians are un-
able to furnish them with suitable clotLing, are hereby authorized and
required to raise in each year for each such pupil from said county, the
sum of fifty dollars. [Subd. 1, as amended by L. 1920, ch. 110.]

2. The supervisors of any county in this state from which state pupils
shall be sent to and received in the New York institution for the blind,
whose parents or guardians shall, in the opinion of the commissioner of
education, be unable to furnish them with suitable clothing are hereby
authorized and directed, in every year while such pupils are in said insti-
tution, to raise and appropriate thirty dollars for each of said pupils, and
to pay the sum so raised to the said institution, to be by it applied to fur-
nishing such pupils with suitable clothing while in said institution.

3. If in any case all or any of said moneys are not expended before the
expiration of the periods of appointment of such pupils, as provided in the
foregoing subdivisions of this section, then the unexpended residue shall go
into the general clothing fund of the said institutions, to be devoted to fur-
nishing state pupils with suitable clothing. [Subd. amended by L. 1917, ch.
179.]

4. If said sums shall not be paid to the said institutions, as required in
subdivisions one and two of this section, within six months after the annual
meeting of the supervisors of any of said counties, the sums so unpaid shall
bear interest at the rate of seven per centum per annum, from the expira-
tion of said six months until the same be paid. [Subd. amended by L. 1917,
ch. 179.]

5. The supervisors of any county in this state from whose pauper institu-
tions pupils shall be sent to the said institution for the blind, shall raise,
appropriate and pay to the order of the comptroller of the state, towards
the expense of educating and clothing such pupils, a sum equal to that which
the county would have to pay to support the pupils as paupers at home.
This subdivision does not apply to the counties of New York, Kings, Queens,
Nassau and Suffolk.
THE BLIND AND THE DEAF AND DUMB. . 707

Education Law, §§ 975, 991-993.

6. The supervisors, or officers corresponding thereto, of the counties of
New York, Kings, Queens, Nassau and Suffolk, from which state pupils
shall be sent to and received in the New York institution for the blind,
whose parents or guardians shall, in the opinion of the commissioner of
education, be unable to furnish them with suitable clothing, are hereby
authorized and directed, in every year while such pupils are in said insti-
tution, to raise and appropriate fifty dollars for each of said pupils from
said counties respectively, and to pay the sum so raised, to the said in-
stitution, to be by it applied to furnishing such pupils with suitable cloth-
ing while in said institution.

%. If in any year hereafter there shall be any surplus of the amount
above required to.be paid yearly by the said counties for clothing for pupils
from said counties, respectively, then such surplus shall be deducted pro
rata the ensuing year from the amount above required to be paid by the
said counties respectively. [Education Law, § 975, as amended by L.
1910, ch. 140.]

§ 3. ADMISSION OF PUPILS TO NEW YORK SCHOOL FOR THE
BLIND APPLICATION FOR ADMISSION.

All blind persons of suitable age and capacity for instruction, who are
legal residents of the state, shall be entitled to the privileges of the New
York state school for the blind, without charge, and for such a period of
time in each individual case as may be deemed expedient by the board of
trustees of said school; provided, that whenever more persons apply for ad-
mission at one time than can be properly accommodated in the school, the
trustees shall so apportion the number received, but each county may be
represented in the ratio of its blind population to the total blind population
of the state; and provided further, that the children of citizens who died
in the United States service, or from wounds received therein during the
late rebellion, shall take precedence over all others. [Education Taw,
§ 991, as amended by L. 1910, ch. 140.]

Blind persons from without the state may be received into the school
upon the payment of an adequate sum, fixed by the trustees, for their board-
ing and instruction; provided that such applicant shall in no case exclude
those from the state of New York. [Education Law, § 992, as amended
by L. 1910, ch. 140.]

Applications for admission into the school shall be made to the board
of trustees in such manner as they may direct, but the board shall require
such application to be accompanied by a certificate from the county judge
or county clerk of the county or the supervisor or town clerk of the town,
or the mayor of the city where the applicant resides, setting forth that
208 RELIEF OF POOR.

Education Law, §§ 1004-1006.

the applicant is a legal resident of the town, county and state claimed as
his residence. [Education Law, § 993, as amended by L. 1910, ch. 140.]

§ 4. CLOTHING AND TRAVELING EXPENSES OF THOSE ADMITTED
TO STATE SCHOOL FOR THE BLIND; WHEN TO BE
FURNISHED OR PAID FOR BY THE COUNTY.

1. When any blind person shall, upon proper application, be admitted
into the school, it shall be the duty of his parents, guardians or other
friends, to suitably provide such person with clothing at the time of entrance
and during continuance therein, and likewise to defray his traveling ex-
penses to and from the school, at the time of entrance and discharge, as
well as at the beginning and close of each session of the school, and at
any other time when it shall become necessary to send such person home on
account of sickness or other exigency.

2. And whenever it shall be deemed necessary by the trustees to have such
person permanently removed from the school, in accordance with the by-
laws and regulations thereof, the same shall be promptly removed upon their
order, by his parents, guardians or other friends. [Education Law, § 1004,
as amended by L. 1910, ch. 140.]

1. If the friends of any pupil from within the state of New York shall
fail through neglect or inability to provide the same with proper clothing or
with funds to (defray his necessary traveling expenses to and from the school,
or to remove him therefrom, as required in the preceding section, the trus-
tees shall furnish such clothing, pay such traveling expenses, or remove such
pupil to the care of the overseers of the poor of his township, and charge
the cost of the same to the county to which the pupil belongs, provided that
the annual amount of such expenditures on account of any one pupil shall
not exceed the sum of sixty dollars.

2. And in case of the death of any pupil at the school, whose remains
shall not be removed or funeral expenses borne by the friends thereof, the
trustes shall defray the necessary burial expenses, and charge the same to
his county as aforesaid,

3. Upon the completion of their course of training in the industrial de-
partment, the trustees may furnish to such worthy poor pupils as may need
it, an outfit of machinery and tools for commencing business, at a cost not
exceeding seventy-five dollars each, and charge the same to the proper
county as aforesaid. [Education Law, § 1005, as amended by L. 1910, ch.
140.]

§ 5. ITEMIZED ACCOUNTS AGAINST COUNTIES, PAYMENT OF
SUCH ACCOUNTS.

On the first day of October in each year, the trustees shall cause to b>
made out against the respective counties concerned, itemized accounts,
THE BLIND AND THE DEAF AND DUMB. 709

Education Law, §§ 1007, 977, 978.

separate in each case, of the expenditures authorized by the preceding
section, and forward the same to the board of supervisors chargeable
with the account.t' The board shall thereupon direct the county trea-
surer to pay the amount so charged to the treasurer of the institution
for the blind, on or before the first day of March next ensuing. [Edu-
cation Law, § 1006, as amended by L. 1910, ch. 140.]

The counties against which said accounts shall be made out as afore-
said, shall cause their respective treasurers, in the name of their respec-
tive counties, to collect the same, by legal process, if necessary, from
the parents or estates of the pupils who have the ability to pay, on
whose account the said expenditures shall have been made; provided
that at least five hundred dollars’ value of the property of such parents
or estate shall be exempt from the payment of the accounts aforesaid.”
[Education Law, § 1007, as amended by L. 1910, ch. 140.]

§ 6. INDIGENT DEAF-MUTES TO BE PLACED IN INSTITUTIONS; AP-
PLICATION FOR ADMISSION; WHEN EXPENSE A CHARGE
AGAINST COUNTY.

Whenever a deaf-mute child under the age of five years shall become

a charge for its maintenance on any of the towns or counties of this

state, or shall be liable to become such charge, it shall be the duty of

the overseers of the poor of such town or of the board of supervisors
of such county to place such child in one of the institutions enu-
merated in the next section. The pupils provided for in this section
and sections nine hundred and seventy-eight and nine hundred and
seventy-nine of this article shall be designated county pupils. [Edu-

cation Law, § 977, as amended by L. 1910, ch. 140, and L. 1922, ch. 327.]

Upon the application of any parent, guardian or friend of a deaf-
mute child, within this state, the overseer of the poor or the supervisor
of the town where such child may be, shall proceed as follows: If the
child be under the age of five years and shall have become a charge on
the town or county for its maintenance, or shall be liable to become
such charge, they shall place such child in one of the institutions here-
inafter named or described. In the case of any deaf-mute child of the
age of five years and upwards, and under the age of eighteen years,
they shall report the facts to the commissioner of education. The
commissioner of education may place in one of such institutions the
child so reported, if found to be eligible under the provisions of section
nine hundred and seventy-one, or any other child found by him to be
so eligible. Such institutions are as follows:

1. The New York institution for the deaf and dumb; or,

2, The institution for the the improved instruction of deaf-mutes; or,

 

1. As to presentation of accounts against a county, and the audit thereof
by the board of supervisors, see Ch. III, ante.

2. Money raised by towns and counties for the care and support of inmates
of charitable institutions, see General Municipal Law, § 87, post.
710 RELIEF OF POOR.

Education Law, §§ 979, 980.

3. The Le Couteulx Saint Mary’s institution for the improved in-
struction of deaf-mutes in the city of Buffalo; or,

4. The central New York institution for deaf-mutes in the city
of Rome; or,

5. The Albany home school for the oral instruction of the deaf at
Albany; or,

6. The northern New York institution for deaf-mutes in the village
of Malone; or,

7. Saint Joseph’s institute for the improved instruction of deaf-
mutes, Westchester, in the city of New York; or,

8. Rochester school for the deaf, in the city of Rochester; or,

9. Any other institution in the state for the education of deaf-mutes
as to which the state board of charities shall have filed with the com-
missioner of education a certificate to the effect that said institution
has been duly organized and is prepared for the reception and instruc-
tion of such pupils. [Education Law, § 978, as amended by L. 1910,
ch. 140, and L. 1922, ch. 327.]

The children placed in said institutions, in pursuance of the last
two sections, shall be maintained therein as follows: those of the age
of five years and upward, at the expense of the state; those under the
age of five years, at the expense of the county from where they came,
until they attain the age of five years,,at the same annual per
capita rate as is paid by the state of New York for the support and
instruction of state pupils in said institutions, unless the directors of
the institution to which a child has been sent shall find that such child
is not a proper subject to remain in said institution; but such expense
for each child shall not exceed four hundred dollars per year, provided,
however, that all deaf and dumb children over the age of five years
and under the age of twelve years, appointed as county pupils prior to
the passage of this act, in pursuance of this section and sections nine
hundred and seventy-seven and nine hundred and seventy-eight of this
article, shall be maintained as such at the expense of the county from
where they came until they attain the age of twelve years, at the same
rate of expense and under the same conditions as other county pupils
placed in said institutions. [Education Law, § 979, as amended by L.
1910, chs. 140, 322, L. 1917, ch. 179, L. 1918, ch. 243, L. 1919, ch. 164,
L. 1920, ch. 108, L. 1921, ch. 382, and L. 1922, ch. 327.]

The expenses for the board, tuition and clothing for such deaf-mute
children, placed as aforesaid in said institutions not exceeding, for
each child, the amount of expense for maintenance allowed by the
preceding section, shall be raised and collected as are other expenses
THE BLIND AND THE DEAF AND DUMB. 711

L. 1876, ch. 331, § 2; L. 1884, ch. 275, §§ 1, 2.

of the county from which such children shall be received; and the
bills therefor, properly authenticated by the principal or one of the
officers of the institution, shall be paid to said institution by the said
county; and its county treasurer or chamberlain, as the case may be,
is hereby directed to pay the same on presentation, so that the amount
thereof may be borne by the proper county. [Education Law, § 980,
as amended by L. 1910, chs. 140, 322, L. 1917, ch. 179, and L. 1918,
ch, 243.]

§ 7. PUPILS MAY BE SENT TO WESTERN NEW YORK INSTITUTION
FOR DEAF-MUTES.

Supervisors of towns and wards and overseers of the poor are hereby
authorized to send to the Western New York Institution for Deaf-
Mutes, deaf and dumb persons between the age of six and twelve years,
in the same manner and upon the same conditions as such persons
may be sent to the New York Institution for the Instruction of the
Deaf and Dumb, under the provisions of chapter three hundred and
twenty-five of the laws of eighteen hundred and sixty-three. [L. 1876,
ch, 331, § 2.]

§ 8. ADMISSION OF PUPILS TO NORTHERN NEW YORK INSTITUTION
FOR DEAF-MUTES AT MALONE.

The Northern New York Institution for Deaf-Mutes at Malone, is
hereby authorized to receive deaf and dumb persons, between the ages
of twelve and twenty-five years, eligible to appointment as state pupils,
and who may be appointed to it by the superintendent of public in-
struetion, and the superintendent of public instruction is authorized
to make appointments to the aforesaid institution. [L. 1884, ch. 275,
§ iL]

Supervisors of towns and wards and overseers of the poor are hereby
authorized to send to the Northern New York Institution for Deaf-
Mutes, deaf and dumb persons between the ages of six and twelve
years, under the provisions of chapter three hundred and twenty-five
of the laws of eighteen hundred and sixty-three, as amended by chapter
two hundred and thirteen of the laws of eighteen hundred and seventy-
five. Provided that before any pupils are sent to said institution the
board of state charities shall have made and filed with the superinten-
dent of public instruction a certificate to the effect that said institu-
tion. has been duly organized and is prepared for the reception and
instruction of such pupils. [Idem, § 2.]
T1lla RELIEF OF POOR.
L. 1894, ch. 93, § 1; L. 1922, ch. 185, §§ 1-5.

§ 9. VERIFICATION OF BILLS FOR SUPPORT OF PUPILS AT NEW
YORK INSTITUTION FOR THE INSTRUCTION OF THE DEAF
AND DUMB.

Hereafter any bill for board, lodging, clothing or tuition of pupils,
in the aforesaid institution, shall be signed and verified by the prin-
cipal and steward of said institution, instead of its president and
secretary, any existing law to the contrary notwithstanding. [L. 1894,
ch. 93, § 1.]

§ 10. RELIEF OF THE NEEDY BLIND.

pplication for relief——Any person interested may at any time ap-
ply to the New York state commission for the blind, hereinafter re-
ferred to as the commission, in behalf of any wholly or partially blind
person who is without means of. support and is incapable of self-sup-
port, and ask for the relief under this act, provided the person for
whom relief is sought is eligible under the provisions of section six
hereof. [L. 1922, ch. 185, § 1.]

Partial blindness defined.—A person shall be deemed to be partially
blind under this act when vision is so defective or so impaired that
the person so afflicted must depend upon others, or be favored in open
competition to such an extent as to limit his or her field of usefulness
and lower his or her earning capacity below the point of self-support,
unless taught or trained to earn a livelihood in some special occupation
for the blind. [L. 1922, ch. 185, § 2.]

When person deemed without means of support——aA person shall be
deemed to be without means of support when a charge upon the publie,
or when so lacking in resources that he or she, and his or her family, if
a family is dependent upon the person in question, may reasonably
be expected to become an immediate charge upon the public or upon
some one not legally liable for his or her support, unless he or she
receives relief to the extent demanded, or some part thereof. [L. 1922,
ch. 185, § 3.]

When person deemed incapable of self-support——A person shall be
deemed incapable of self-support if and whenever the person in ques-
tion shall be found to be incapable of earning an adequate livelihood
and shall be incapable of being taught or trained to earn an adequate
livelihood in any of the occupations for the blind that are open to
the person in question, or in which it is possible for him or her to be
placed through the efforts of the commission. [L. 1922, ch. 185, § 4.]

Measure of relief —The measure of relief granted in each case shall
be as follows:

(a) When the person for whom relief is sought is in receipt of an
income of any kind, in any amount, or has property that can be made
to yield funds adequate to constitute a substantial contribution to-
THE BLIND AND THE DEAF AND DUMB. 711b

L. 1922, ch. 185, § 6-8.

wards the support of the person in question, relief may be granted
under this act for the difference between such income, or funds, as
the case may be, and the amount deemed necessary for support of the
person or family, if there is a family dependent upon the person for
whom relief is asked, but in no case shall the relief granted exceed
three hundred dollars per year per person;

(b) When the person for whom relief is demanded is without in-
come, and without property from which any substantial contribution
towards support can be derived, and it also appears that by granting
relief in an amount not exceeding three hundred dollars per year such °
person will be enabled to provide himself, or herself, as the case may
be, with the necessities of life, including bed and board in a family
or private institution approved by the board of supervisors of the
county in which resides the person in whose behalf the application
is made, then in such cases relief shall be granted according to require-
ments, not to exceed three hundred dollars annually. [L. 1922,
ch. 185, § 5.]

Eligibility for relief —In order to be eligible for relief under this
act, a person must (1) be a citizen of the United States, and must
(2) be either (a) a resident of this state for five years, or (b) have
lost his sight after having become a resident of this state, and (3)
must in any event have been a resident of the county in which he
or she lives for at least one year. A person shall not be eligible for
relief pursuant to this act who is in attendance as a pupil at a college,
university, technical or professional school, and is receiving aid as
a blind person pursuant to section nine hundred and seventy-six of
the education law. [L. 1922, ch. 185, § 6.]

Marriage as affecting relief —Relief under this act shall be refused
if and whenever a man or woman who is blind or partially blind
within the definitions of this act, is married to another who is also blind
or partially blind within the definitions of this act, unless such man or
woman shall not have been blind or partially blind at the time of
their marriage or unless they shall have been married prior to the pas-
sage of this act. If relief has already been granted it shall be discon-
tinued if, and whenever, a man or woman who is blind or partially
blind within the definitions of this act, is married to another who is
also blind or partially blind within the definitions of this act. [L. 1922,
ch. 185, § 7.]

Change of residence —It any person ies his or her residence
from one county to another in this state while receiving relief under
this act, then the county in which the person takes up his residence
may continue the payments, at the same or different amounts, and,
711e RELIEF OF THE POOR.

L. 1922, ch. 185, §§ 9-11.

if continued, the payments shall, for one year dating from the date
of change of residence, be and constitute a charge against the county
in which the person in question gave up a residence. The auditor or
other fiscal officer of the county making the payments shall certify
to the auditor or other proper fiscal officer of the county in which the
person in question gave up his residence, the amounts of the payments,
and the latter, upon receipt of the certificate, shall draw his warrant
upon his county treasurer in favor of the other county for the amount
named in the certificate. [L. 1922, ch. 185, § 8.]

Contents of application—Every application to the commission for
relief under this act shall be accompanied by a petition, duly verified
by the oath of the person presenting the application, showing

(a) That the person in whose behalf the application is made is
wholly blind or is partially blind within the definition of the latter
term found in section two of this act,

(b) Whether or not such person is in receipt of an income of any
kind, and, if so, the amount thereof, also the amount deemed necessary
for the support of such person and family, if there is a family de-
pendent upon such person,

(c) Whether or not such person has property of any kind or de-
scription and if so, a description thereof, its reasonable value, where
located and in whose possession and control, and

(d) The names and addresses of at least two disinterested witnesses
who have resided for at least one year within the county where resides
the person in whose behalf the application is made, and who can
testify to the truth of the statements made in the petition. [L. 1922,
ch. 185, § 9.]

Investigation by commission.—On receipt of an application for relief,
accompanied by a petition meeting the requirements of section nine
of this act, the commission shall promptly investigate and determine
whether or not the person in whose behalf the application is made
is capable of earning an adequate livelihood or can be taught or
trained to earn an adequate livelihood, and shall obtain all necessary
facts to enable the supervisors to determine the amount of rclief, if
any, to which such person is entitled. [L. 1922, ch. 185, § 10.]

Report of finding and recommendations to supervisors.—The commis-
sion shall promptly forward to the board of supervisors of the county
where resides the person in whose behalf the application is made the
application for relief, the petition accompanying the same, and the
findings of the commission with respect to the earning capacity of such
person, together with any recommendations that the commission may be
prepared to make, concerning the need, education or training of such
THE BLIND AND THE DEAF AND DUMB. 711d

L. 1922, ch. 185, §§ 12-15.

person in any of the industrial occupations for the blind that are open
to the person in question, and any other facts in the possession of
the commission having a bearing upon the eligibility of the applicant
for relief under this act. [L. 1922, ch. 185, § 11.]

Granting of allowances by board of supervisors.—The following pro-
visions shall govern the granting of allowances pursuant to this act:

1. It shall be the duty of the board of supervisors of a county annual-
ly to appropriate such sum as, in their discretion and judgment, may
be needed to carry out the provisions of this act, including expenses
for administration of relief, and to include in the tax levy for such
county the sum or sums appropriated for that purpose.

2. The board of supervisors of a county shall grant an allowance on
such terms and conditions as they may deem advisable, to any person
wholly blind or partially blind within the definitions of this act, who
resides in their county, and is otherwise eligible, and who is found
by the board to be without means of support and incapable of self-
support, as these terms are defined in this act.

3. An allowance made by a board of supervisors shall not be made
for a longer continuous period than one year without renewal, but
the allowance may be continued from time to time at the same or
different amounts for similar or less periods, either successively or
intermittently, and may be revoked, when the board of supervisors
are satisfied that the applicant is no longer eligible to such relief. A
complete record in writing, however, shall be kept of the grounds upon
which revocation is made, and such records shall be open to the public.
[L. 1922, ch. 185, § 12.]

Record by commission and boards of supervisors—A full and com-
plete record shall be kept for the commission and by the board of
supervisors of a county of each and every application received for
relief under this act, and of the disposition made of same. [L. 1922,
ch. 185, § 13.]

Penalty—aA person who shall knowingly or wilfully procure or
attempt to procure, directly or indirectly, any allowance for relief
under this act, for or on account of a person not entitled thereto,
or who shall knowingly or wilfully pay or permit to be paid any
allowance to a person not entitled thereto, shall be guilty of a mis-
demeanor. [L. 1922, ch. 185, § 14]

Application to city of New York.—The city of New York shall be
deemed a county for the purposes of this act, and the board of esti-
mate and apportionment and the comptroller of such city shall be

deemed the board of supervisors and county auditor, respectively.
[L. 1922, ch. 185, § 15.]
312 RELIEF OF POOR.

Explanatory note.

CHAPTER XLVIII.

GENERAL POWERS AND DUTIES OF OVERSEER OF THE POOR IN
RESPECT TO RELIEF OF POOR.

EXPLANATORY NOTE.

Overseers of the Poor.

Overseers of the poor are town officers. The number, election and
yualifications of such officers are considered in chapter xx. In this
chapter we will treat of their powers and duties in respect to the relief
of the poor. Subsequent chapters will treat of their duties as to the
settlement of poor persons, the care of bastards and other subjects.

Relief of Poor Persons in County Alms-house.

The theory of the law is that all poor persons who require permanent
relief, and who may be safely removed, shall be relieved and provided
for in the county alms-house. The overseer must consider the circum-
stances of each person requiring relief, and remove him to the alms-
house or support him in the town, as seems most suitable.

Relief of Poor Persons Generally.

A person needing relief, either temporary or permanently, must apply
to the overseer of the poor. After investigation the overseer is to
furnish such relief as the necessities of the person may require, If
the person relieved resides in the town, the cost of the relief is a charge
upon the town. If he does not reside in the town, the overseer is
allowed such sums as he necessarily expends, to be paid by the county
treasurer, on the order of the county superintendent. If it appears
that the person applying for relief should be relieved and cared for at
his home, or is in such physical condition that he cannot be removed
to the alms-house, the overseer must apply to the supervisor of the
town for an order to expend such sum as may be required for such
POWERS AND DUTIES OF OVERSEERS OF THE POOR, 713

Explanatory note.

relief. Such order entitles the overseer to receive, either from the county
treasurer or the supervisor, the amount expended or contracted to be paid
by such overseer in giving such relief. Unless rules and regulations have
heen adopted by the board of supervisors, as provided by section 13 of
the Poor Law, ante, page 680, not more than ten dollars can be ex-
pended by the overseer for the temporary relief of a poor person, with-
out the written sanction of the superintendent of poor.

Where there is no alms-house in a county, the overseer may, with the

written approval of the supervisor, make an order in writing for such
allowance, weekly or otherwise, as the necessities of the poor persons
require.

The overseer must examine monthly into the conditions and neces-
sities of each person supported by the town out of the alms-house, and
provide for such allowances, weekly or otherwise, as the circumstances
may in his judgment require.

Settlement of Accounts ; Books to be Kept.

All accounts for care, support, supplies or attendance must be settled
once in three months and paid, if there are available funds. ATi
accounts must be verified before audit by the overseer.

The overseer must keep a book in which he must enter the name, etc.,
of each poor person relieved by him, and a statement of the causes,
direct or indirect, which operated to render relief necessary. He
must also enter the moneys paid out and received on account of each
person relieved. Such book must be laid before the town board at its
first annual meeting, together with an itemized account of moneys
receivcd and paid out.

Estimates of Expenditures.

Overseers of the poor must present to the town board at its meeting
held on the Thursday before the annual meeting of the board of
supervisors, an estimate of the sum which they shall deem necessary to
be raised for the support of the poor for the ensuing year. They should
include in such estimate any deficiency in the town poor fund. The
board of supervisors must cause the amount estimated to be raised by
tax upon the town.
714 RELIEL, OB POOR.
Poor Law, § 20.

Srctron 1. When poor persons to be relieved in county alms-house; duties of overseer
of the poor in respect thereto.
2. Care of poor persons not to be put up at auction.
8. Expense of removal and temporary relief prior to removal to be paid to
overseer by county treasurer. ; ‘
4, Persons removed to county alms-house, how supported and when dis-
charged.

. Temporary relief of poor persons who cannot be removed to alms-houses;

order of sup2rvisor.

Relief of poor persons in counties having no alms-house.

Overseer to examine monthly the needs of the poor supported in his
town; settlement of accounts; form of accounts and verification.
Books to be kept by overseers of the poor; overseers to present books to
the town board; duties of the town board; overseer to have bcoks of

accounts present at town meeting.

9. Statement of accounts and estimate of overseer of the poor to be made to
town board; approval of estimate by town board; if approved to be
presented to board of supervisors.

10. Accounts of town officers.

11. Supervisor to report to clerk of board of supervisors, abstract of
accounts of overseers of the poor.

12. Treatment of poor persons in hospitals.

af

@

§ 1. WHEN POOR PERSONS TO BE RELIEVED IN COUNTY ALMS-
HOUSE; DUTIES OF OVERSEER OF THE POOR IN RESPECT
THERETO.

When any person shall apply for relief to an overseer of the poor, in a
county having an alms-house, such overseer shall inquire into the state
and circumstances of the applicant; and if it shall appear that he is a
poor person, and requires permanent relief and support, and can be safely
removed, the overseer shall, by written order, cause such poor person to be
removed to the county alms-house, or to be relieved and provided for, as the
necessities of the applicant may require.t’ If the county be one where the

 

1. Who are poor persons. A poor person is one unable to maintain himself, and
such person shall be maintained by the town, city, county or state according to the
provisions of the Poor Law. ‘Poor Law, sec. 2.

Permanent relief for poor persons. The above section of the Poor Law was
derived from R. S., pt. 1, ch. 20, tit. 1, sec. 89. Under the former law it was provided
that a noor person who ‘‘is insuch indigent circumstances as to require permanent
relief and support, and can be easily removed, the overseer shall, by a written order,
cause the poor person to be removed to the county poor house, or to the place provided
as aforesaid to be relieved and provided for as the necessities of such applicant may
require.” But the above section nas modified the law, and a poor person may now he
removed to the alms-house or be relieved and provided for elsewhere as his necessities
may require. Tt is doubtful, however, if the change thus made in this section wr
POWERS AND DUTIES OF OVERSEERS OF THE POOR. 15

Poor Law, § 20.

respective towns are required to support their own poor, the overseer
shall designate in such order of removal, whether such person be chargeable

e

 

for the purpose of permitting the permanent relief of poor persons in a county having a
county alms-house at a place other than such alms-house. Section 23 of the Poor Law:
post, prescribes the method of granting temporary relief to poor persons at a place outside
of an alms-house and permits the granting of relief to a poor person who is sick, lame
or otherwise disabled so that he cannot be removed to the county alms-house. The law
would therefore seem to contemplate the granting of permanent relief in the county
alms-house in all cases except where temporary relief only is required, and where the
poor person who seeks relief is sick, lame or disabled.

Under the old law it was held unless the poor person was an idiot or lunatic, the
proper place for his maintenance was at the county alms-house. City of Rochester v.
Supervisors of Monroe County, 22 Barb. 252; Nuns of the Order of St. Dominick v.
Long Island City, 48 Hun, 306; Robbins v. Walcott, 66 Barb. 63.

In counties where there is no county poor house, and the towns are severally
liable for the support of their own poor, moneys raised for the support of the
poor are placed in the hands of the overseers of the poor; and when an overseer
pays out money for the support of a pauper, or contracts for his support, he is
entitled to appropriate the money, in the first case, and retain it in his own
hands in the other. He has absolute control of the fund and is liable only for
moneys not lawfully appropriated. Robbins v. Wolcott, 66 Barb. 63.

In the absence of express statutory provisions, there is no obligation or
duty imposed upon towns to contribute to the support of persons residing
within their limits. People ex rel. Blenheim v. Supervisors, 121 N. Y. 345;
24 N. DB. 830.

Duties of overseer as to relief. The overseers are authorized by sec. 25
of the Poor Law, post, to examine into the condition and necessities of poor
persons supported outside of county alms-houses. Under the above section
the overseer is directed to investigate the state and circumstances of a person .
requiring permanent relief. The circumstances which control the exercise of
the power to grant relief to poor persons are so various in the cases of different
persons, and are so incapable of being defined by strict rules, that much must
be left to the judgment and discretion of the officers. It was held in the case of
City of Albany v. McNamara, 117 N. Y. 168; 22 N. E. 931, that the question as to
the propriety of granting relief to a poor person is confided to the discretion
of the poor authorities, and if they grant it, the presumption is that they have
made such investigations as they deemed necessary and determined the question
as to the right of the party to relief, and therefore their determination cannot
be reviewed. In this case it was also held that where money had been supplied
to a poor person by the officer without expectation of reimbursement, that such
officer’s misjudgment as to the necessities of the person relieved, raised no im-
plied promise on the part of such poor person to repay the moneys expended in
his behalf; and further, that the possession of some property by a person
does not always and necessarily preclude him from a just claim for relief,

The public benefit conferred by the poor laws is personal to the individual.
It is contemplated that he shall apply for the relief afforded thereby. It is no
part of the duty of the overseer to seek him out and press these benefits
716 RELIEF OF POOR.

Poor Law, §§ 143, 21, 22.

to the county or not; and if no such designation be made, such person shall
be deemed to belong to the town whose overseer made such order.? [Poor
Law, § 20; B. C. & G. Cons. L., p. 4239.]

§ 2. CARE OF POOR PERSONS NOT TO DE PUT UP AT AUCTION.

No officer or persons whose duty it may be to provide for the main-
tenance, care or support of poor persons at public expense, shall put up at
auction or sale, the keeping, care or maintenance of any such poor persons
to the lowest bidder, and every contract which may be entered into in
violation of this provision shall be void. [Poor Law, § 143; B. C. & G.
Cons. L., p. 4282.]

§ 3. EXPENSE CF REMOVAL AND TEMPORARY RELIEF PRIOR TO
REMOVAL TO BE PAID TG OVERSEER BY COUNTY TREAS-
URER.

Unless such poor person is properly chargeable to the town, the overseer,
in addition to the expense of such removal, shall be allowed such sum as
may have been necessarily paid out, or contracted to be paid, for the relief
or support of such poor person, previous to such removal and as the
superintendent shall judge was reasonably expended while it was improper
or inconvenient to remove such poor person, which sum shall be paid by the
county treasurer, on the order of the superintendent. [Poor Law, § 21;
B.C. & G. Cons. L., p. 4239.]

§ 4. FERSONS REMOVED TO COUNTY ALMS-HOUSE, HOW SUP-
PORTED AND WHEN DISCHARGED.

The person so removed shall be received by the superintendents, or
their agents, and be supported and relieved in a county alms-house until
it shall appear to them that such person is able to maintain himself, or,
if a minor, until he is bound out or otherwise cared for, as hereinafter

 

upon him, The poor person is not the chooser of the place and manner of his
support, and must take what is to be had in the way the law confers it. Smith
vy. Williams, 13 Misc. 761; 35 N. Y. Supp. 236.

Orphans; commitment to orphan asylums. See Opinion of Comptroller (1917),
13 State Dept. Rep. 477.

2. For form of order of overseers of a town to remove a poor person to the county
poor house, see Form No. 74, post.

3. For form of superintendent’s order to pay expenses incurred by overseers for
the removal of a poor person, see Form No. 75, post.

Money paid for temporary relief of a pauper is the money of the county and
not of the town. Robbins v. Wolcott, 66 Barb. 63.
POWERS AND DUTIES OF OVERSHiRS OF THE POOR. 717

Poor Law, § 23.

provided, when they may, in their discretion, discharge him. [Poor Law,
§ 22; B. C. & G. Cons. L., p. 4240.]

§ 5. TEMPORARY RELIEF OF FOOR PERSONS WHO CANNOT BE
REMOVED TO AIMS-HOUSES; ORDER OF SUPERVISOR.

If it shall appear that the person so applying requires only temporary
relief, or is sick, lame or otherwise disabled so that he cannot be con-
veniently removed to the county alms-house, or-that he is a person who
should be relieved and cared for at his home under article six,* of this chap-
ter [the Poor Law], the overseers shall apply to the supervisor of the town,
who shall examine into the facts and circumstances, and shall, in writing,
order® such sums to be expended for the temporary relief of such poor
person, as the circumstances of the case shall require, which order shall
entitle the overseer to receive any sum he may have paid out or contracted
to pay, within the amount therein specified, from the county treasurer,
to be by him charged to the county, if such person be a county charge, if
not, to be charged to the town where such relief was afforded; but no
greater sum than ten dollars shall be expended or paid for the relief
of any one poor person, or one family, without the sanction, in writing,’ of
one of the superintendents of the poor of the county, which shall be pre-
sented to the county treasurer, with the order of the supervisor, except
when the board of supervisors or town board has made rules and regulations
as prescribed in section thirteen of this chapter.”| [Poor Law, § 23; B. C.
& G. Cons. L., p. 4240.]

 

4. Article 6 of the Poor Law relates to the relief of poor or indigent soldiers,
sailors and marines, and their families.

5. For form of supervisor’s order for the expenditure of money for the
temporary relief of a poor person, see Form No. 76, post.

6. For form of the written sanction of a county superintendent of the
poor for the expenditure of a greater sum than $10 in the temporary relief
of a poor person, see Form No. 77, post.

7. Power of overseer as to temporary relief. The question of the propriety
of granting relief is primarily in the sound discretion of the overseer. If
the overseer applies for an order for the granting of relief to a poor per-
son, and the order is given by the supervisor, the presumption is that both
the overseer and the supervisor examined into the necessities of the par-
ticular case, end that the condition of the poor person was such as to war-
rant the issuing of the order, end thct the pcor person wrs entit!:d to relief.
Matter of Chamberlain, 73 Misc. 256. See also City of Albany v. McNamara,
117 -N. Y. 168, 22 N. EH. 931. A liability in excess of $16 cannot be in-
curred by the overseer without the sanction of one of the superintendents
of the poor, but except in such a case, the overseer’s power of granting
temporary relief is independent of the control of the superintendents of the
718 : RELIEF OF POOR.
Poor Law, § 24.

§ 6. RELIEF OF POOR PERSONS IN COUNTIES HAVING NO ALMS-
HOUSE.

If application for relief be made in any county where there is no county
alms-house, the overseer of the town where such application is made shali
inquire into the facts and circumstances of the case, and with the written
approval of the supervisor of such town, make an order in writing for
such allowance, weekly or otherwise, as they shall think required by the
necessities of such poor person. If such poor person has a legal settlement
in such town, or in any other town in the same county, the overseer shall
apply the moneys so allowed to the relief and support of such poor person.
Tse moncys so paid by him, or contracted to be paid, when the poor person
had no legal settlement in the town, and charged to the town in which
he had legal settlement, shall be drawn by such overseer from the county
treasurer on producing such order. If such person has no legal settlement
in such county, the overseer shall, within ten days after granting to him

 

poor. Gere v. Supervisors, 7 How. Pr. 255; Nuns of St Dominick v. Long Island
City, 48 Hun, 306, 1 N. Y. Supp. 415.

Where an overseer refus:s or neglects to apply for an order for the relief of a poor
person settled in his town, an action will not lie against such overseer in behalf of
a person who has supported such poor person at his own expense, voluntarily, and
without request from such overseer. Milklaer v. Rockfeller, 6 Cow. 276.

A family which vas ven recesving puor relief from their (own, should, upon th ir
eonlinement under quarantine by the health board of the village within which they
reside, be support.d at town expense. Opinion of Atty. Genl., Feb. 14, 1913.

Ovder for relief. Under the law as it existed prior to 1896 the order was to
be issued by a justice of the peace; under the present law such order is issued
by the supervisor. The requirement of an order is a statutory protection ngainst
extravagant or improper expenditure by overseers of the poor. Osterhoudt v.
Rigney, 98 N. Y. 222, 237.

If no fraud is shown and no injury results to a taxpayer, such taxpaver
cannot maintain an action against an overseer of the poor for expending
more than $10 for the relief of a poor person without the written consent
of the supervisor. Cobb v. Remsdell, 14 N. Y. Supp. 93; 387 N. Y. St. Rep.
457. The inquiry as to the necessity of the order need not be made jointly
by the overseer and supervisor. The order is the act of the supervisor and
may be based upon his own examination. As has been already stated, it
is presumed that the overseer has determined as to the necessity of the
relief before making his application for an order. See Adams v. Supervisors
of Columbia County, 8 Johns. 323.

The overseer of a town under this section cannot expend more than $10
for the temporary relief of a person who cannot be removed to the alms-
house, unless he is authorized to do so by the order of the supervisor of the tow’
and the written sanction of one of the superintendents of the noor of the county;
he cannot comnel the supervisor to make the arder. and he has performed his
entire duty when he has made the apnlicatinn therefor; he cannot be made
liable for a neglect of duty where he has applied for the order and it has not
been granted. Brazee v. Stewart, 59 App. Div. 476, 69 N. Y. Supp. 231.
POWERS AND DUTIES OF OVERSEERS OF THE POOR. 719
Poor Law, § 25.

any relief, give notice thereof, and that such person has no legal settlement
in such county, to one of the county superintendents, and until the county
superintendents shall take charge of the support of such poor person, the
overseer shall provide for his relief and support, and the expense thereof
from the time of giving such notice shall be paid to such overseer by the
county treasurer, on the production of such order and of proof by affidavit
of the time of the giving of such notice, and shall be by him charged to
the county.2 [Poor Law, § 24; B. C. & G. Cons. L., p. 4241.]

§ 7. OVERSEER TO EXAMINE MONTHLY THE NEEDS OF THE POOR
SUPPORTED IN HIS TOWN; SETTLEMENT OF ACCOUNTS;
FORM OF ACCOUNTS AND VERIFICATION.

The overseer of the poor of a town or city shall at least once each month,
examine into the condition and necessities of each person supported by the
town or city out of the county alms-house, and provide within the provisions
of this chapter for such allowances, weekly or otherwise as the circum-
stances may in his judgment require.® All accounts for care, support,
supplies or attendance, connected with the maintenance of such poor person
or family, shall be settled, once in three months, and paid if there be funds
for that purpose. No bill, claim or account for care, support, supplies or
attendance, furnished to poor persons, by order of the overseer of the poor,
or otherwise, shall be audited or allowed by the overseer, unless such bill,

 

8. Relief in counties having no alms-house. The law as it existed prior
to 1896 was construed in the case of Robbins v. Walcott, 66 Barb. 62, where the
court used the following language: “In those counties in which there is no
poor house an overseer is authorized to make an order for the allowance of such
sum, weekly or otherwise, as the necessities of the poor person may require.
If such pauper has a legal settlement in the town where the application is made,
or in any other town of the same county, the overseer is required to apply the
money to the relief of such pauper. The money paid by the overseer, or
contracted to be paid pursuant to such order, shall be drawn by him from the
county treasury on producing the order. If such pauper has not a legal settle.
ment in some town of the county in which the application is made, then notice
is to be given to the superintendent of the poor, and the overseer may support
the pauper after such notice and until the superintendent assumes his support,
and the overseer is to be paid therefor from the county treasury.”

9. The poor persons to whom allowances may be made as provided in this
section, are those who, under sec. 20 of the Poor Law, ante, are relieved and
provided for at a place other than an alms-house; those under sec. 23 of the
Poor Law, ante, requiring temporary relief; those under sec. 24 of the Poor
Law, ante, supported by towns in counties having no alms-house; and poor
and indigent soldiers, sailors and marines, supported as provided in secs. 80-83 of
the Poor Law, post.
%20 RELIEF OF POOR.

Poor Law, § 26.

claim, or account be verified by the claimant, to the effect that such care,
support, supplies or attendance have been actually furnished for such poor
persons, that such poor persons have actually received the same, and that
the prices charged therefor are reasonable and not above the usual market
rates..° [Poor Law, § 25; B. C. & G. Cons. L., p. 4242.]

§ 8. BOOKS TO BE KEPT BY OVERSEERS OF THE POOR; OVER-
SEERS TO PRESENT BOOKS TO THE TOWN BOARD; DUTIES
OF THE TOWN BOARD; OVERSEER TO HAVE BOOKS OF
ACCOUNTS PRESENT AT TOWN MEETING.

Overseers of the poor, who receive and expend money for the relief
and support of the poor in their respective towns and cities, shall keep
books to be procured at town or city expense, in which they shall enter
the name, age, sex and native country of every poor person who shall be
relieved or supported by them, together with a statement of the causes,
either direct or indirect, which shall have operated to render such relief

 

10. For form of order for supplies furnished to poor persons, and for
verification of accounts for audit, see Form No. 78, post.

Powers of overseers to contract. Overseers of the poor may contract for
the support of poor .persons within the scope of their authority; and con-
tracts so made are valid and obligatory upon them in their official capacity
ard upon their successors; but if they transcend their authority, though they
may be individually responsible, their successors are not. Palmer v. Vanden-
bergh, 3 Wend. 193. If an overseer makes a contract for the relief of a poor
person, without the order or approval of the supervisor or other authority
granted by statute, he may be held personally liable on such contract. King
v. Butler, 15 Johns. 281. But the case of Olney v. Wicks, 18 Johns. 122,
seems to hold a contrary doctrine. In that case it was held that, while the
overseer contracts in his official capacity, and expressly intends in such
capacity to bind the town, he is not personally responsible, and an action
will not lie against him personally. And in the case of Holmes v. Brown, 13
Barb. 599, it was held that “the cases where an action has been held to lie
against an overseer of the poor for the support of paupers, are placed upon
the ground that the credit was given to the person individually, in his private
capacity, and not as the officer or agent of the town.”

Tn the case of Overseers of the Poor of Norwich v. Overseers of Pharsalia,
15 N. Y. 341, the town of Pharsalia was liable for the support of certain
paupers who were for the time being in the town of Norwich. The overseer of
Pharsalia promised the overseers of Norwich, that if they would provide
for such paupers, he would pay the expenses incurred. It was held that it
was not within’ the official power of the overseer of Pharsalia to make such
a contract, and that the plaintiffs were confined to the remedy given by
statute, viz., the audit of the account by the superintendents of the poor
and the levying of the amount by the board of supervisors on the town of
Pharselia for the benefit of Norwich. This case did not involve the question
POWERS AND DUTIES OF OVERSEERS OF THE POOR. 21

Poor Law, § 26.

necessary, so far as the same can be ascertained."* They shall also enter
upon such books a statement of the name and age, and of the names and
residences of the parents of every child who is placed by them in a family,
with the name and address of the family with whom every such child is
placed, and the occupation of the head of the family. They shall also
enter upon books so procured, a statement of all moneys received by them,
when and from whom, and on what account received, and of all moneys
paid out by them, when and to whom paid and on what authority, and
whether to town, city or county poor; also a statement of all debts con-
tracted by them as such overseers, the names of the persons with whom such
debts were contracted, the amount and consideration of each item, the
names of the persons for whose benefit the debts were contracted, and if
the same have been paid, the time and manner of such payment. The over-
seer shall lay such books before the board of town auditors or the common
council of the city, at its first annual meeting in each year and, upon
being given ten days’ notice thereof, at any adjourned or special meeting
of such board or council, together with a just, true and verified itemized
account, of all moneys received and expended by them for the use of the
poor since the last preceding annual meeting of said board, and a verified
statement of debts contracted by them as such overseers and remaining
unpaid.t* The board or council shall compare said account with the entries

 

of the personal liability of the overseers, but it was intimated that if the
contract was not within the scope of the official power of the overseer, no
action would lie thereon against the town.

Under section 10 of the Town Law, post, contracts of overseers are deemed
the contracts of the town. This section has shifted the direct liability of
town officers for contracts made by them to the town, and makes the town
the proper party defendant or plaintiff in actions or special proceedings upon
contracts in which the town is interested, and it has been held under that
section that the contracts of overseers of the poor in the discharge of their
official duties are the contracts of the town which alone may be sued upon
them. Miller v. Bush, 87 Hun, 507; 34 N. Y. Supp. 286.

11. For form of overseer’s book showing statistics relating to poor persons’
relief, and of book of accounts to be kept by overseers of the poor, see Forms
Nos. 79, 80, post.

12. For form of accounts of overseers of the posr to be rendered to town
boards, see Form No. 81, post.

For penalty for failure of overseers of the poor to render accounts as
provided by law, see Poor Law, sec. 14, ante.

The omission of an overseer to lay his books of account before the town
board, and the audit of his accounts by the board without a comparison of
the items in the account with the items in the book is a mere irregularity,
and does not deprive the board of the power to audit the claim. Osterhoudt
v. Rigney, 98 N. Y. 222, 237.
22 RELIEF Oi POOR.

Poor Law, $3 27.

in the book and shall examine the vouchers in support thereof, and may
examine the overseers of the poor, under oath, with reference to such
account. They shall thereupon audit and settle the same, and state the
balance due to or from the overseer, as the case may be. Such account
shall be filed with the town or city clerk, and at every annual town meet-
ing, the town clerk shall produce such town accounts for the next preceding
year, and read the same, if it be required by the meeting. The overseers
of the town shall have such books present each year at the annual town
meeting, subject to the inspection of the voters of the town, and the
entries thereon for the preceding year shall there be read publicly at
the time reports of other town officers are presented, if required by a
resolution of such meeting. No credit shall be allowed to any overseers
for moneys paid, unless it shall appear that such payments were made
necessarily or pursuant to d legal order. [Poor Law, § 26; B. C. & G. Cons.
L., p. 4242.]

§ 9. STATEMENT OF ACCOUNTS AND ESTIMATE OF OVERSEER OF
THE POOR TO BE MADE TO TOWN BOARD; APPROVAL OF
ESTIMATE BY TOWN BOARD; IF APPROVED TO BE PRE-
SENTED TO BOARD OF SUPERVISORS.

Such overseers shall make to the town board, at its second annual meeting
in each year,’* a written report, stating their account as provided in the last
section, continued to that date, and any deficiency that may then exist in
the town poor fund, with their estimate of the sum which they shall
deem necessary for the temporary and out door relief and support of the
poor in their town for the ensuing year, and in counties where there is
no county alms-house, their estimate of such sum as they shall deem

 

Reports of overseers as evidence in action against sureties. In an action
against sureties upon the official bond of an overseer of the poor to recover the
money misappropriated by such overseer, the reports made by the overseer
under the provisions of this section are competent against the sureties as proof
of the condition of his accounts, both as to receipts and disbursements. Town
of Goshen v. Smith, 61 App. Div. 461, 70 N. Y. Supp. 623, affd. 173 N. Y. 597.

18. The second annual meeting of the town board of a town is held on
the Thursday preceding the annual meeting of the board of supervisors. Town
Law, sec. 133, ante, The accounts of overseers of the poor are to be presented to the
town board at its first meeting held on the Tuesday preceding the biennial meeting
and on a corresponding date in each alternate year (Town Law, sec. 132, ante), at
the same time as the accounts of other town officers. The object of the report pro-
vided for by this section is to enable the town board to make an estimate of the
amount that will be required during the ensuing year for the support of ihe poor.
POWERS AND DUTIES OF OVERSEERS OF THE POOR. (23
Poor Law, § 28.

mecessary to be raised and collected therein for the support of the poor for
the ensuing year. If such board shall approve the statement and estimate
so made or any part thereof, they shall so certify in duplicate, one of which
certificates shall be filed in the office of the town clerk, and the other shall
be laid by the supervisor of the town, before the board of supervisors of the
county, on the first day of its next annual meeting. If such overseers of
any town shall fail or neglect to estimate the sum to be raised and collected
for the support of the poor of their town for the ensuing year, or the super-
visor of any town shall fail or neglect to present such estimate for the
support of the poor of their town to the board of supervisors, the board of
supervisors shall estimate the sum to be raised and collected by such town
for the support of the poor “of such town, which estimate shall be based upon
the amount of the cost of the support of the poor of such town for the pre-
ceeding year. The board of supervisors shall cause the amount of such
deficiency and estimates, as so certified, or the sum estimated by such board
of supervisors, together with the sums voted by such town, for the relief of
the poor therein to be levied and collected in such town, in the same manner
as other town charges, to be paid to the overseers of the poor of such town,
and the warrants attached to the tax-rolls in such county shall direct accord-
ingly. The moneys so raised shall be received by such overseers, and ap-
plied toward the payment of such deficiency, and for the maintenance and
support of the poor, for whose relief such estimates were made. The town
board shall also, on or before the first day of December, annually certify to
the county superintendents, the name, age, sex and native country, of every
poor person relieved and supported by such overseers during the preceding
year, with the causes which shall have operated to render them such poor
persons, the amount expended for the use of such persons, as allowed by the
board, and the amount allowed to each overseer for the services rendered in
relation to temporary or town relief. The town board shall include in such
annual statement to the county superintendents and the county superintend-
ents shall include in their own report to the state board of charities a state-
ment of the name and age, and of the names and residence of the parents
of every child who has been placed by such overseers in a family during the
preceding year, with the name and address of the family with whom such
child is placed, and the occupation of the head of the family. [Poor Law,
§ 27, as amended by L. 1909, ch. 429; B. C. & G. Cons. L., 2d ed., p. 6309.]

§ 10. ACCOUNTS OF TOWN OFFICERS.

The accounts of any town officer for personal or official services rendered
by him, in relation to the town poor, shall be audited and settled by the town
board charged to such town. But no allowance for time of services shall
be made to any officer for attending any board solely for the purpose of hav-

 

14. Where estimates are not made. Under ch. 334, L. 1845, from which
in part the above section was derived, it appeared that an overseer of the
poor instead of pursuing the system provided by the above section, procured
supplies upon his own credit and presented his accounts annually to the
board of audit for allowance, the amount audited being put in the schedule
of accounts and levied by the board of supervisors with other town charges.
It was held that the failure to follow the requirements of the statute did not
deprive the overseer of his power to provide for the relief of the poor, and
that the advances made by him were properly audited and charged against
the town; that while the overseer. was not bound to furnish supplies upon
his own credit, and the act contemplates that he shall be put in funds in
advance, under the provisions of the section, authorizing the town board
to include in its estimate such sum as shall be necessary “to supply any
deficiency in a preceding year,” it had power to audit all sums expended
where no provision had been made therefor the preceding year. Osterhoudt
v. Rigney, 98 N. Y. 222.

Special town meetings may be called for the purpose of raising money
for the support of the poor. Town Law, sec. 46, ante.
724-726 RELIEF OF POOR.

Poor Law, §§ 141, 30.

ing his account audited or paid.15 [Poor Law, § 28; B. C. & G. Cons. L.,
2d ed., p. 6310.]

§ 11. SUPERVISOR TO REPORT TO CLERK OF BOARD OF SUPER-
VISORS, ABSTRACT OF ACCOUNTS OF OVERSEERS OF THE
POOR.

The supervisor of every town in counties where all the poor are not a
county charge, shall report to the clerk of the board of supervisors, within
fifteen days after the accounts of the overseers of the poor have been settled
by the town board at its first annual meeting in each year, an abstract of all
such accounts, which shall exhibit the number of poor persons that have
been relieved or supported in such town the preceding year, specifying the
number of county poor, and town poor, the whole expense of such support,
the allowance made to overseers, justices, constables or other officers, which
shall not comprise any part of the actual expense of maintaining the poor.16
[Poor Law, § 141; B. C. & G. Cons. L., 2d ed., p. 6356.]

§ 12. CARE OF SICK INDIGENT PERSONS.

1. Any city or county, in which a hospital duly incorporated is situated,
may send to and support, in the same, such sick and disabled indigent per-
sons as require medical or surgical treatment, and when admitted the au-
thorities of such city or county shall pay to such hospital such sum per week
as may be agreed upon or found to be just during the period in which such
person shall remain in such hospital.

2. In all counties of this state in which there are not adequate hospital
accommodations for indigent persons requiring medical or surgical care and
treatment, or in which no appropriations of money are made for this specific
purpose, it shall be the duty of county superintendents of the poor, upon
the certificate of a physician approved by the board of supervisors, or of the
overseers of the poor in the several towns of such counties, upon the certi-
ficate of a physician approved by the supervisor of the town, as their juris-
diction over the several cases may require, to send all such indigent persons
requiring medical or surgical care and treatment to the nearest convenient
and suitable hospital, the incorporation and management of which have
been approved by the state board of charities, provided transportation to
such hospital can be safely accomplished, or to a sanitarium or boarding
house approved for such purpose by the commissioner of health. The
authorities of such county or town shall pay to such hospital, sanitarium or
boarding house such reasonable sum per week, for the care and treatment
of such indigent persons, as may be agreed upon by the authorities of the
county or town and the directors or proprietors of such hospital, sanatarium
or boarding house, and provision for the payment for such care and treat-
ment shall be made in the annual budgets of such county or town. <A person
so committed to a boarding house shall be subject, while in such boarding
house and receiving aid, to all rules, regulations and orders of the sunerin-
tendent or overseer of the poor, as the case may be. Upon his failure to
obey such rules, regulations and orders the superintendent or overseer of
the poor, as the case may be, may discontinue any aid or, if the indigent per-
son is suffering from tuberculosis, may make a complaint to a magistrate
and proceed under the provisions of section three hundred and twenty-six-a
of the public health law. [Poor Law, § 30, as amended by L. 1912, ch. 309,
L. 1916, ch. 483, and L. 1921, ch. 248.]

 

For form of report of overseer of the poor and of estimate of amounts
required to be raised, for the support of the poor during the ensuing year,
see Form No. 82, post.

15. Accounts of town officers for services rendered in relation to the town
poor are to be audited at the second meeting of the town board, held on the
Thursday preceding the annual meeting of the board of supervisors. The
form of accounts and the verification thereof by affidavit are to be made in
accordance with the provisions of sec. 175, post, of the Town Law.

16. For form of report of supervisor to the clerk of the board of super-
visors of abstracts of overseer’s accounts, see Form No. 83, post.
SETTLEMENT AND PLACE OF RELIEF. 727

Explanatory note.

CHAPTER XLIX,

SETTLEMENT AND PLACE OF RELIEF OF POOR PERSONS.

EXPLANATORY NOTE.

Settlement of Poor Persons.

Settlement in this connection has much the same meaning as residence.
A poor person acquires a settlement in a town, so as to make the cost of
his relief a charge against such town, by residing therein for one, year.
A settlement so acquired is not lost except by a continuous residence in
another place for a period of one year. A minor son or daughter has
the same settlement as his or her father, unless the son is married and
has resided apart from his father for one year, or unles3 the daughter
has married and is living with her husband, in which case her settle-
ment is that of her husband. A married woman cannot gain a settle-
ment apart from her husband.

Relief of Poor as Affected by Settlement.

The law requires every poor person to be relieved in the place where
he may be. If he has a settlement in a town or city in the county, he
must be maintained at the expense of such town or city. If he has not
gained a settlement in the county he must be supported and relieved by
the superintendent of the poor at the expense of the county. If a poor
person has a settlement in one town and is in another town where he
requires relief, the overseer of the poor of the latter town must give
him the necessary relief, and then give notice to the overseer of the
former town requiring him to provide relief for such poor person.

Determination of Dispute as to Settlement.

Within ten days after the service of such notice, the overseer of the
poor served therewith, may notify the overseer of the poor of the town
where the poor person may be, that, at a time and place specified, he will
appear before the county superintendent of the poor to contest the alleged
728 RELIEF OF POOR.

Explanatory note.

settlement. The county superintendent then hears and determines the
controversy. The decision of the superintendent is final and conclusive.

Failure to Care for Poor Person.

After the decision is given the proper overseer must provide for the
poor person in accordance with such decision. If he fails to do so, the
overseer of the poor of the town where the poor person may be, must
give the necessary relief and report the expense thereof to the board of
supervisors, who must levy the amount thereof upon the town where such
poor person has a settlement.

Unlawful Removal of Poor Person.

It is a crime to send, remove, or entice to remove, or bring or cause
to be sent, removed or brought any poor or indigent person to any other
town.. A poor person so brought, removed, or enticed, or who shall come
of his own accord from one town, city or county into another, not charge-
able with his support, must be maintained by the county superintendent
of the county where he may be. Such superintendent must then notify
the proper officer of the removal of such poor person, and require him
forthwith to take charge of such poor person. The law then provides
the procedure for determining as to the town, city or county liable for
the support of such poor person.

 

Section 1. Settlements of poor persons, how gained; separate settlement of

minor.

. Settlement of married women; when determined by that of parents.

8. Poor person not to be removed, but supported in the’ town where
he may be.

4. Proceedings to determine settlement; notice to appear before county
superintendents.

5. Hearing before superintendents; decision.

6. Effect of failure of overseer to provide for poor person, when
notified by overseer of other town; board of supervisors to charge
support of poor person to proper town.

7. Superintendent to determine who are county poor; proceedings for
such determination.

8. Support of county poor in counties having no alms-house; proceedings
to determine who are county poor.

9. All decisions of superintendents of the poor to be entered in books;
copy to be filed with county clerk.

10. Appeals to county court from decisions of county superintendents
of the poor; decision on appeal.

bw
SETTLEMENT AND PLACE OF RELIEF. "99
Poor Law, § 40.

SHOTION 11. Unlawfully removing or enticing a poor person from one town to another

a misdemeanor. °

12. Proceedings where a person has been enticed or has come from one town
or county to another.

13. Upon receipt of notice superintendent or overseer to take poor person or
serve denial of removal.

14. In case of neglect to deny removal, support of poor person to be a charge
upon the town and county from which removed; actions to recover.

15. Actions to recover, to be brought within three months from service of
denial. ‘

16. Penalty for bringing foreign poor into state; action to recover penalty;
person found guilty, to transport poor person out of state.

§ 1. SETTLEMENTS OF POOR PERSONS, HOW GAINED; SEPARATE
SETTLEMENT OF MINOR.

Every person of full age, who shall be a resident and inhabitant of
any town or city for one year, and the members of his family who shall
not have gained a separate settlement, shall be deemed settled in such
‘town or city, and shall so remain until he shall have gained a like settle-
ment in some other town or city in this state, or shall remove from this
state and remain therefrom one year." A minor may be emancipated
from his or her father or mother and gain a separate settlement:

 

1. Settlement in general. It is the purpose of the law that the settle-
ment of a poor person is gained by his residence in a town or city for a period of
one year. Such settlement continues until he has gained a like settlement in some
other town or city. L. 1897, ch. 203, added a new sec. 57 to art. 3 of the Poor Law,
which provided that a person who has gained a settlement in a town or city loses the
same by continuous residence elsewhere for one year. This provision radically changed
the existing law by relieving a town or city from the obligation of supporting a poor
person after he has finally left its boundaries and has resided continuously for one
year in other municipalities. People ex rel. May v. Maynard, 160 N. Y. 453; 55 N. E.
9; Matter of Connellan, 25 Misc. 592; 56 N. Y. Supp. 157. But the act of 1897, ch.
203, was repealed by L. 1900, ch. 345, the effect of which was to restore the law as
it existed prior to the enactment of the act of 1897.

The question of the settlement of any poor person or pauper is to be considered,
in determining the question of liability for his support only as between two towns
of the same county which are liable for the support of their own poor, or as between
such a town and the county to which it belongs. Every poor perion who has not a
settlement in some town of the county in which he becomes poor must be supported
or relieved at the expense of that county. Bellows v. Courter, 6 N. Y. Supp. 73, 74.

Settlement lost by removal to another state or county, remains where it was
acquired. Matter of Chapman, 15 Misc. 296, 37 N. Y. Supp. 763. Where an alleged
poor person had resided in the city of Amsterdam for some five years prior to her
removal to the city of Syracuse, and within four months of her arrival at Syracuse
became a public charge, without in any way attaining a residence in the latter place,
the city of Amsterdam is liable to the county of Onondaga, from which county the
relief was forthcoming, for her support, where due and timely service is made upon
the overseer of the poor of Amsterdam. Onondaga County v. City of Amsterdam,
64 Misc. 181, 117 N. Y. Supp. 1121.

_ The words “ resident and inhabitant,” as used in this section, mean the local-
ity of existence, permanently and firmly fixed, as is legally conveyed by the word

domicile.” Matter of Town of Hector, 24 N. Y. Supp. 475. In the case of City of
Syracuse v. County of Onondaga, 25 Mise. 370; 55 N. Y. Supp. 634, it was held that
730 RELIEF OF POOR.

Poor Law, § 40.

1. If a male, by being married and residing one year separately from
the family of his father or mother.

 

a person who comes to a city in January, and then rents a house to which, in March
following, he takes his wife, his family and houseoid goods and resides there with
them until February in the year following, when he leaves the city and disappears,
has gained a settlement in the city within the meaning of the above section. Italian
laborers temporarily employed in constructing a railroad, do not by their presence
in a town gain a settlement therein. Matter of Town of Hector, 24 N. Y. Supp. 475.

Settlement remains until another is gained. A person cannot gain a
settlement in any town until he shall have resided there for at least one year; when
a settlement is thus legally gained in a town it must necessarily remain there until
one is subsequently established in some other town or county. Sitterly v. Murray,
63 How. Pr. 367. In the case of Matter of Town of Hector, 24 N. Y. Supp. 475, it
was said: “It has long been settled law that every person has a domicile somewhere.
If he has not acquired one elsewhere he retains his domicile of origin, and to effect
au change of domicile the fact and intent must concur; that is, there must be not
only a change of residence, but an intention to abandon the former domicile, and
acquire another as the sole domicile.”

The continuous absence of a poor person from a city, without proof of his actual
residence or intention, is not such a continuous residence elsewhere for one year
as deprives him of his settlement in the city, and such city is, therefore, liable to
support the wife of such poor person. City of Syracuse v. County of Onondaga, 25
Mise. 371; 55 N. Y. Supp. 634.

Persons who are natives of a town and.reside there without material interruption
have a Jegal settlement in the town and county under this section, which continues
until they gain a like settlement in some other town or city by a residence of a year.
County of Broome v. County of Cortland (1912), 154 App. Div. 349.

C, a laborer of full age but of nomadic habits, came into this state in which he
never had a place called home, and after working on April 2, 1914, in Ontario county,
where there is no distinction between town and county poor, became ill and was taken
by the superintendent of the poor of that county to the county hospital, and upon his
recovery several wecks later went to work and continued to be employed in said county
for several months, being self-supporting all of that time. Thereafter he went to
Groton, Tompkins county, where the distinction between town and county poor is
still maintained and while at a hotel before securing employment he was taken with
pneumonia and given temporary relief and furnished with medical care by the super-
intendent of the poor of Tompkins county, and being unable to work was assisted
by said superintendent for four or five wecks. He had not lived in any one place in
the county of Ontario for a year prior to 1914. In an action by the county of
Tompkins to charge the county of Ontario with the support of C, held that when he
left Ontario county with money and still had money when he went to Groton in
Tompkins county he was not a “ poor person” straying from one county to another,
and that he became so only when he was again overtaken by misfortune and became
ill and then that the same duty devolved upon plaintiff to care for him in the
emergency as had devolved upon defendant county on the occasion of his previous
sickness, and that he was entitled under this section to be supported by plaintiff,
he not having a settlement in any city or town. County of Tompkins v. County of
Ontario (1915), 92 Misc. 272, 156 N. Y. Supp. 335.

Change of domicile. To effect a change of domicile there must be both resi-
dence in the alleged adopted domicile and intention to adopt such place of residence
ag the sole domicile. Residence alone has no effect per se, though it may be most
important, as a ground from which to infer intention. Length of residence will not
alone effect the change. Intention alone will not do it, but the two taken together
constitute a change of domicile. Dupuy v. Wurtz, 53 N. Y. 556, 561.

Settlement of children. A place of birth of an infant pauper is prima facie his
place of settlement, but it may be removed to the last legal settlement of the
parents when discovered. Overseers of Vernon v. Overseers of Smithville, 17
SETTLEMENT AND PLACE OF RELIEF. 734
Poor Law, § 41.

2. If a female, by being married and having lived with her husband; in
which case the husband’s settlement shall be deemed that of the wife.2

3. By being bound as an apprentice and serving one year by virtue of such
indentures.3

4, By being hired and actually serving one year for wages, to be paid such
minor. [Poor Law, § 40; B. C. & G. Cons. L., 2d ed., p. 6312.]

§ 2. SETTLEMENT OF MARRIED WOMEN; WHEN DETERMINED BY
THAT OF PARENTS.

A woman of full age, by marrying, shall acquire the settlement of her
husband. Until a poor person shall have gained a settlement in his or
her own right, his or her settlement shall be deemed that of the father,
if living, if not, then of the mother; but no child born in any alms-house

 

Johns. 89; and see, also Delavergne v. Noxon, 14 Johns. 333; Overseers of
Berne v. Overseers of Knox, 6 Cow. 433.

Minors, who reside with their father for more than a year in the same
town, in a county in which the several towns support their own poor, gain a
settlement in that town, and where, after removing to a new town in the
same county and before gaining a settlement there, they require and receive
relief as poor persons, the expense of their relief is chargeable to the town
from which they removed. Matter of Chamberlain, 73 Mise. 256.

The settlement of a child follows that of the father, if he have any; if not,
the settlement of the mother. Overseers of Niskayuna v. Overseers of
Albany, 2 Cow. 537. No act of the father of a minor son can divest the son
of his derivative settlement. Adams v. Foster, 20 Johns. 452. Until a poor
person acquires a settlement in his own right, his settlement is that of his
father or mother; and when his mother becomes a resident of a city and
he follows her to that place, a residence and settlement are initiated. Still-
well v. Kennedy, 51 Hun 114, 5 N. Y. Supp. 407. Although the child
does not reside with his father and is not under his immediate charge or
control, such child nevertheless has a derivative settlement in the same town
as his father. Adams v. Oaks, 20 Johns. 282.

Settlement of married woman is that of her husband. Overseers of Sher-
burne v. Overseers of Norwich, 16 Johns. 186. Under the former law it
was held that if the husband has no settlement, his wife retains the settle-
ment had by her before marriage. Overseers of Otsego v. Overseers of
Smithfield, 6 Cow. 760.

A married woman cannot gain a settlement separate from that of her
husband. City of Syracuse v. County of Onondaga, 25 Misc. 371, 55 N. Y.
Supp. 634; Supt. Poor of Cattaraugus v. Supt. of Poor of Erie, 50 N. Y.
St. Rep. 347, 21 N. Y. Supp. 729.

Where a poor person after abandonment by her husband had received aid
from the overseer of the poor of the city where she resided, and on her hus-
band’s return went with him to a city in another county where after a subse-
quent abandonment she received aid from the overseers of the poor, but did
not reside in the latter county long enough to gain a settlement under the
statute, she must still be deemed a poor person in the city where she original-
ly resided and can gain no settlement in another citv as a poor person.
aes County v. City of Amsterdam, 139 App. Div. 877, 124 N. Y.

upp. ‘

Although a widowed mother may have a poor settlement in a municipality,
still she may not necessarily have the two years residence required for relief
by a Board of Child Welfare. Opinion of Atty. Genl. (1920), 23 State
Dept. Rep. 44.

8. Settlement of apprentices. If with the privity and consent of his mas-
ter, an apprentice serves another person two years, he thereby gains a settle-
ment. Overseers of Guilderland v. Overseers of Knox, 5 Cow. 363. The
fact that the indenture by which an apprentice was bound out is void is not
material; if an apprentice has served one year by virtue of such indenture,
he has gained a separate settlement. Overseers of Hudson v. Overseers of
Taghkanac, 13 Johns. 245; Overseers of Owasco v. Overseers of Oswegatchie,
5 Cow. 527; Overseers of Hamilton v. Overseers of Eaton, 6 Cow. 658.
32 RELIEF OF POCR.

Poor Law, § 42.

shall gain any settlement merely by reason of the place of such birth;
neither shall any child born while the mother is such poor person, gain
any settlement by reason of the place of its birth. No residence of any
such poor person in any alms-house, while such person, or any member of
his or her family, is supported or relieved at the expense of any other town,
city, county or state, shall operate to give such poor person a settlement
in the town where such actual residence may be.* [Poor Law, § 41; B. C.
& G. Cons. L., p. 4248.]

§ 3. POOR PERSON NOT TO BE REMOVED, BUT SUPPORTED IN
THE TOWN WHERE HE MAY BE.

No person shall be removed as a poor person from any city or town te
any other city or town of the same or any other county, nor from any
county to any other county except as hereinafter provided; but every poor
person, except the state poor, shall be supported in the town or county
where he may be,® as follows:

 

4. Construction of section. The disjunctive “or” is to be understood after
the word “alms-house” in the last sentence of the above section. Thus
read, the revision of the Poor Law in 1896 did not so change the conditions of
settlement that a poor person residing in a town or city for more that one year,
while relieved at the expense of the county, ceases to be a county charge, and
becomes thereafter chargeable to the town or city. People ex rel. French v.
Lyke, 159 N. Y. 149; 53 N. E. 802.

Settlement. A poor person does not gain or lose a settlement once estab-
lished, by agreement, or after contest by the superintendent of the poor until
he again maintains himself and ceases to be a public charge. Matter of Mc-
Cutcheon, 25 Misc. 650, 56 N. Y. Supp. 370. Since the enactment of the above
section, a person supported by the county, if not an inmate of an alms-house,
may gain a settlement in a town by a residence therein for one year. Matter
of Connellan, 25 Misc. 592; 56 N. Y. Supp. 157.

Settlement cannot be gained in the town where the actual residence may be
so long as the poor person or any member of his family is supported or re-
lieved at the expense of any other municipality. People ex rel. v. Maynard,
160 N. Y. 4538, 460.

5. The place of support of a poor person is in the town or county where he
may be. Overseers of Norwich v. Overseers of Pharsalia, 15 N. Y. 341; Matter
of McCutcheon, 25 Misc. 592; 56 N. Y. Supp. 370. And when a settlement is
once legally gained in any town it must necessarily remain there until one is
subsequently established in some other town or county. Sitterly v. Murray. 63
How. Pr. 367.

Lapse of one year between the time when county aid was given, and the date
when aid is applied for, to the town, is sufficient to make a poor person a
resident of the town. Rept. of Atty. Genl. (1897) 84.
SETTLEMENT AND PLACE OF RELIEF. 133

Poor Law, § 42.

1. If he has gained a settlement in any town or city in such county,
he shall be maintained by such town or city.

2. If he has not gained a settlement in any town or city in the county
in which he shall become poor, sick or infirm, he shall be supported and
relieved by the superintendents of the poor at the expense of the county.®

3. If such person be in a county where the distinction between town
and county poor is abolished, he shall, in like manner, be supported at
the expense of the county, and in both cases, proceedings for his relief
shall be had as herein provided.

4, If such poor person be in a county where the respective towns are
liable to support their poor, and has gained a settlement in some town
of the same county other than that in which he may then be, he shall
be supported at the expense of the town or city where he may be, and the
overseers shall, within ten days after the application for relief, give notice
in writing to an overseer of the town to which he shall belong, requiring
him to provide for the support and relief of such poor person.’ [Poor
Law, § 42; B. C. & G. Cons. L., p. 4248.]

 

6. Effect of settlement. If a poor person has gained a settlement in a town
or city, he is to be maintained at the expense of such town or city, except in a
county where the distinction between the town and county poor has been
abolished. If he has not gained a settlement in the town where he may be, he
is to be supported and relieved by the county superintendents of the poor at
the éxpense of the county. See, also, Matter of Town of Hector, 24 N. Y. Supp.
475; Matter of Connellan, 25 Misc. 592.

Where a person who had gained a settlement in a county where the distinc-
tion between town ard county poor exists, moved from that town to a city in
the same county and he there became poor, and was relieved by the overseer of
the poor of the city, where he continued to reside, the bill for his maintenance
being ‘paid by the town from which he came, until a year from the taking
effect of the act of 1897, which has since been repealed, he then became a county
charge by force of subdivision 2 of the above section. People ex rel. May v.
Maynard, 160 N. Y. 458; 55 N. BH. 9.

%. For form of notice to be given by the overseers of one town to those of
another, requiring the overseers of the town in which the poor person has a
residence to provide for his support, see Form No. 84, post.

Notice. Subd. 4 of the above section in regard to time within which notices,
to be given by towns contesting the settlement of a poor person, must be served
is mandatory and a failure to comply with the statute must result in defeat.
Matter of Merville, 23 Misc. 398, 52 N. Y. Supp. 254.

Settlement of poor person in another town. A man moved his wife and
infant children from a town where he had resided for six years, to another town
where he remained for over a year without being supported or relieved at the
expense of the latter town. It was held that he had obtained a settlement therein
within the meaning of the Poor Law. This settlement was not affected by a
notice mailed by the overseer of the poor of the latter town to the overseer of
734 RELIEF OF POOR,
Poor Law, §§ 43, 44.

§ 4. PROCEEDINGS TO DETERMINE SETTLEMENT; NOTICE TO AP-
PEAR BEFORE COUNTY SUPERINTENDENTS.

If, within ten days after the service of such notice, the overseer to
whom the same was directed, shall not proceed to contest the allegation
of the settlement of such poor person, by giving the notice hereinafter
directed, he or his successors, and the town which he or they represent,
shall be precluded from contesting or denying such settlement. He may,
within the time mentioned, give written notice to the overseer of the town
where such person may be, and from whom he has received the notice
specified in the last section, that he will appear before the county super-
intendents, at a place and on a day therein to be specified, which day shall
be at least ten days and not more than thirty days from the time of the

service of such notice of hearing, to contest the alleged settlement. If
the county superintendents fail to appear at the time and place so
appointed, they shall, at the request of the overseers of either town, appoint
some place, and some other day, for the hearing of such allegations. and
cause at least five days’ notice thereof to be given to such overseers; and
no poor person shall be deemed to have gained a settlement, when the
proper notices to contest the settlement have been served, until there
has been a hearing before the superintendent thereof, and an order by them
made and filed in the office of the county clerk, fixing the settlement of
such poor person. [Poor Law, § 43; B. C. & G. Cons. L., p. 4249.]

§ 5. HEARING BEFORE SUPERINTENDENTS; DECISION.
The county superintendent shall convene whenever required by any

 

the poor for the town from which the poor person had removed, soon after
the removal, stating that relief had been afforded, when in fact it had not been
afforded at the time. Matter of Kelly, 46 Misc. 548, 95 N. Y. Supp. 53.

Where residents of a town not poor persons within the statute remove to
another town in the same county and receive aid there within a year from the
time of their removal, the expense is charged to the town from which they
came. Matter of Porter, 68 Misc. 124, 124 N. Y. Supp. 102.

8. Object of proceedings. In speaking of the sections of the old revised
statutes from which this and the succeeding section were derived, Judge West-
brook said in the case of Sitterly v. Murray, 63 How. Pr. 370: ‘ The object
and scheme of the statute seems to be to provide for the settlement of all per-
sons under the poor laws, no matter what their previous financial condition
may have been, and whether they were ever paupers before or not, and to fix
the liability of the proper town for their support and maintenance, whenever
by misfortune or otherwise, they should become a charge upon the public. This
is the reasonable and natural conclusion to be drawn from the various pro-
visions of the statute and from the language of these particular sections.”

The provisions of this section in regard to the time within which such notice
must be served are mandatory, and a failure to comply with the statute will
result in the defeat of the town so failing. Matter of Merville, 23 Misc. 398;
52 N. Y. Supp. 254.

For form of notice of overseers of the poor to appear before the county
SETTLEMENT AND PLACE OF RELIEF, 35

Poor Law, § 45.

overseer pursuant to such notice, and shall hear and determine the con-
troversy, and may award costs, not exceeding fifteen dollars, to the pre-
vailing party, which may be recovered in an action in a court of competent
jurisdiction.» Witnesses may be allowed fees as in courts of record.’
The decision of the superintendent shall be final and conclusive, unless
an appeal therefrom shall be taken as provided by this chapter.*t [Poor
Law, § 44; B. C. & G. Cons. L., p. 4250.]

§ 6. EFFECT OF FAILURE OF OVERSEER TO PROVIDE FOR POOR
PERSON, WHEN NOTIFIED BY OVERSEER OF OTHER TOWN;
BOARD OF SUPERVISORS TO CHARGE SUPPORT OF POOR
PERSON TO PROPER TOWN.

The overseers of the poor of the town in which it may be alleged any
poor person has gained a settlement, may, at any time after receiving
such notice requiring them to provide for such person, take and receive
such poor person to their town, and there support him; if they omit to
do so, or shall fail to obtain the decision of the county superintendents,
so as to exonerate them from the maintenance of such poor person, the
charge of giving such notice, and the expense of maintaining such person,
after being allowed by the county superintendents, shall be laid before the
board of supervisors at their annual meetings from year to year, as long
as such expenses shall be incurred, and the supervisors shall annually add
the amount of such charges to the tax to be laid upon the town to which
such poor person belongs, together with such sum in addition thereto,

 

superintendent of the poor and contest the alleged settlement of a poor person,
see Form No. 85, post.

9. Duty of county superintendent. The county superintendent represents
not only the county at large but also every town in the county. He is required
to see that each has its rights, and to settle, upon evidence, by judicial de-
termination, various conflicts of interest between the different towns as well as
between the county and any town. People ex rel. Russell v. Supervisors of
Herkimer, 20 Abb. N. C. 123, 1380.

10. For form of subpoena in case of dispute concerning settlement of poor
persons, see Form No. 86, post.

11. For form of decision of superintendents concerning the settlement of
poor persons, see Form No. 87, post.

12. Personal liability of overseer. Where overseers of the poor relieved and
supported paupers belonging to another town, at the request of the overseers
of the poor of the town in which the paupers belonged, and the latter over-
seer, after such support had been furnished, on the presentation of the bill
therefor, agreed to pay the same, it was held that he was not personally liabie
on the contract. Holmes v. Brown, 13 Barb. 599: Overseers of Norwich v.
Overseers of Pharsalia, 15 N. Y. 341. ‘
736 RELIEF OF POOR.

Poor Law, §§ 46, 47.

as will pay the town incurring such expense, the interest thereon, from
the time of expenditure to the time of repayment, which sum shall be
assessed, levied and collected in the same manner as other charges of such
town. Such moneys when collected shall be paid to the county treasurer
and be by him credited to the account of the town which incurred the
expenses. [Poor Law, § 45; B. C. & G. Cons. L., p. 4250.]

§ 7. SUPERINTENDENT TO DETERMINE WHO ARE COUNTY POOR;
PROCEEDINGS FOR SUCH DETERMINATION.

The support of any poor person shall not be charged to the county,
without the approval of the superintendents. If a poor person be sent
to the county alms-house as a county poor person, the superintendents, in
counties where there are town poor, shall immediately inquire into the facts,
and if they are of opinion that such person has a legal settlement in any
town of the county, they shall, within thirty days after such poor person
shall have been received, give notice to the overseers of the poor of the
town to which such poor person belongs that the expenses of such support
will be charged to such town unless the overseers within such time as the
superintendents shall appoint, not less than twenty days thereafter, show
that such town ought not to be so charged.** On the application of the
overseers, the superintendents shall re-examine the matter and take testi-
mony in relation thereto, and decide the question; which decision shall be
conclusive, unless an appeal therefrom shal] be taken in the manner pro-
vided in this chapter.* [Poor Law, § 46; B. C. & G. Cons. L., p. 4251.]

§ 8. SUPPORT OF COUNTY POOR IN COUNTIES HAVING NO ALMS-
HOUSE; PROCEEDINGS TO DETERMINE WHO ARE COUNTY
POOR.

In counties having no alms-house, no person shall be supported as a
county poor person, without the direction of at least one superintendent.
In such cases the overseers of the poor, where such person may be, shall,
within ten days after granting him relief, give notice thereof and that such
person is not chargeable to their town, to one of the superintendents who
shall inquire into the circumstances, and if satisfied that such poor person
has not gained a legal settlement in any town of the county, and is not a

 

13. For form of superintendent’s notice that poor persons will be supported
at the expense of a town in a county where the town support their own poor, see
Form No. 88, post.

14. For form of decision of superintendents after re-examining settlement
of poor person on application of overseers, see Form No. 89, post.
SETTLEMENT AND PLACE OF RELIEF. y32
Poor Law, §§ 48, 49.

state poor person, he shall give a certificate to that effect, and that such
poor person is chargeable to the county. He shall report every such case
to the board of superintendents at their next meeting, who shall affirm
such certificate, or, on giving at least eight days’ notice to the overseers
of the poor of the town interested, may annul the same. After hearing
the allegations and proofs in the premises, if the superintendent to whom
the overseers have given such notice shall neglect or refuse to give such
certificate, the overseers may apply to the board of superintendents, who
shall summarily hear and determine the matter, and whose decision shall
be conclusive, unless an appeal therefrom shall be taken in the manner
provided in this chapter. Such appeal may also be taken from the
refusal of one superintendent to grant such certificate when there is but
one superintendent in the county. [Poor Law, § 47; B. C. & G. Cons.
L., p. 4251.]

§ 9. ALL DECISIONS OF SUPERINTENDENTS OF THE POOR TO BE
ENTERED IN BOOKS; COPY TO BE FILED WITH COUNTY
CLERK.

The decisions of county superintendents in relation ‘to the settlement
of poor persons, or to their being a charge upon the county, shall he
entered in books to be provided for that purpose, and certified by the
signature of such of the superintendents as make the same; and a dupli-
cate thereof, certified in the same manner, shall be filed in the office of
the county clerk within thirty days after making such decision. [Poor
Law, § 48; B. C. & G. Cons. L., p. 4252.] .

§ 10. APPEALS TO COUNTY COURT FROM DECISIONS OF COUNTY
SUPERINTENDENTS OF THE POOR; DECISION ON APPEAL.

Any or either of the parties interested in a decision of the superinten-
dent of the poor, or in any dispute that shall arise concerning the settle-
ment of any poor person, may appeal from such decision to the County
Court of the county in which such decision shall be made, by serving upon
the other parties interested therein, within thirty days after service upon
the appellant of a notice of the same, a notice of appeal, which shall be
signed by the appellant or his attorney, and which shall specify the grounds
of the appeal.1® The hearing of such appeal may be brought on by either
party in or out of term, upon notice of fourteen days. Upon such appeal

 

15. For form of notice of decision of superintendents as to settlement of
poor persons, and of appeal to county court from decision of superintendents,

see Forms Nos. 90, 91, post.
738 RELIEF OF POOR.

Poor Law, §§ 50, 51.

a new trial of the matters in dispute shall be had in the County Court
without a jury, and a decision of the County Court therein shall be final
and conclusive, and the same costs shall be awarded as are allowed on
appeals to said court.

For the purposes of this chapter the County Court shall be deemed open
at all times. [Poor Law, § 49; B. C. & G. Cons. L., p. 4252.]

§ 11. UNLAWFULLY REMOVING OR ENTICING A POOR PERSON
FROM ONE TOWN TO ANOTHER A MISDEMEANOR.

Any person who shall send, remove or entice to remove, or bring, or
cause to be sent, removed or brought, any poor or indigent person, from
any city, town or county, to any other city, town or county, without legal
authority, and there leave such person for the purpose of avoiding the
charge of such poor or indigent person upon the city, town or county from
which he is so sent, removed or brought, or enticed to remove, shall forfeit
fifty dollars, to be recovered by and in the name of the town, city or
county to which such poor person shall be sent, brought or removed, or
enticed to remove, and shall be guilty of a misdemeanor.*® [Poor Law,
§ 50; B.C. & G. Cons. L., p. 4252.]

§ 12. PROCEEDINGS WHERE A PERSON HAS BEEN ENTICED OR
HAS COME FROM ONE TOWN OR COUNTY TO ANOTHER.

\ poor person so removed, brought or enticed, or who shall of his own
accord come or stray from one city, town or county, into any other city.

 

16. Unlawful removal of poor person. The criminal liability is also pro-
vided for by the following section of the Penal Law:

“© 1650. Any person who shall send, remove, or entice to remove, or bring,
or cause to be sent, removed or brought, any poor or indigent person, from
any city, town or county, to any other city, town or county without legal
authority, and there leave such person for the purpose of avoiding the charge
of such poor or indigent person upon the city, town or county, from which he is
so sent, removed or brought or enticed to remove, shall be guilty of a misde-
meanor, and on conviction, shall be imprisoned not exceeding six months, or
fined not exceeding one hundred dollars or both.”

When action will lie. The action will not lie against a person removing a
poor person from one county to another, unless it appear that such removal was
with the intent of subjecting such county to the charge of supporting such poor
person. Coe v. Smith, 24 Wend. 341. It cannot be doubted but that the intent
with which the removal was effected is the gravamen of the criminal offense.
Foster v. Cronkhite, 35 N. Y. 139. The penalty is incurred when any person
SETTLEMENT AND PLACE OF RELIEF. 739

Poor Law, § 51.

town or county, aot iegally chargeable with his support, shall be maintained
by the county superintendents of the county where he may be.’ They may
give notice to either of the overseers of the poor of the town, or city from
which he was brought or enticed, or came as aforesaid, if such town or
city be liable for his support, and if there be no town or city in the county
from which he was brought or enticed or came liable for his support, then
to either of the county superintendents of the poor of such county, within
ten days after acquiring knowledge of such improper removal, informing
them of such improper removal, and requiring them forthwith to take

 

removes, or entices the pauper to remove, without legal authority, with intent.
to make the county to which the removal shall be made, chargeable with the
pauper’s support. Cortland Co. v. Herkimer Co., 44 N. Y. 42.

In the latter case it was held that the superintendent might testify directly
as to the intent with which he did an act when the intent is a fact material
to the issue.

17. Effect of revision. The above section of the Poor Law was derived from
R. S., pt. 1, ch. 20, tit. 1, sec. 59, as amended by L. 1885, ch. 546; L. 1888, ch. 486.
The commissioners in the revision disregarded the amendment of 1888 and
retained the law as amended by the act of 1885. As the law now stands pro-
ceedings to compel the support of a poor person who has, of his own accord,
moved to a county not legally chargeable with his support, may be instituted
against the county properly chargeable with his support.

This change vitiates the doctrine laid down in the case of Coe v. Smith, 24
Wend. 341, and followed in Foster v. Cronkhite, 35 N. Y. 141, and Cortland Co. v.
Herkimer Co., 44 id. 22, that: “ An action will not lie by the superintendents
uf the poor of one county against the superintendents of another county for the
maintenance of a pauper removed from the county of the latter without legal
authority, into the county of the former, when the removal is made at the re-
quest of the pauper, so that he may be under the care of his family and friends,
and without any intent on the part of the person removing him to make the
county into which he is removed chargeable with his support.” But the pro-
‘visions of L. 1885, ch. 546, from which this section is taken, did not authorize
‘an action by the superintendent of the poor for the support of a pauper against
a county from which he voluntarily removed at a time when he was not a
pauper. Bellows v. Counter, 6 N. Y. Supp. 73.

The term “poor person” as used in this section does not mean an able-
bodied man who has always maintained himself and family by his own exer-
tions, and who has come into another county and there, without fault upon bis
part, by means of an accident become unable to support himself. Such a man
is many degrees removed from the condition of a pauper. It is only where a
poor person, who at the time of his coming into another county was a poor
person that the liability of the town or county from whence he came exists.
Wood v. Simmons, 51 Hun, 325; 4 N. Y. Supp. 368. It may be questioned as to
whether this case would now apply under the definition of a poor person given
in section 2 of the Poor Law.

Poor person to be supported. A superintendent of the poor who finds a
740 RELIEF OF POOR.

Poor Law, § 52.

charge of such poor person.’® If there be no overseers or superintendents
of the poor in such town, city or county, such notice shall he given to the
person, by whatever name known, who has charge and care of the poor
in such locality. [Pvor Law, § 51; B. C. & G. Cons. L., p. 4253.]

§ 13. UPON RECEIPT OF NOTICE SUcERINTENDENT OR OVER-
SEER TO TAKE POOR PERSON OR SERVE DENIAL OF RE-
MOVAL.

The county superintendents, or overseers, or other persons to whom such
notice may be directed may, after the service of such notice, take and
remove such poor person to their county, town or city, and there support
him, and pay the expense of such notice, and of the support of such
person ;!® or they shall, within thirty days after receiving such notice,
by a written instrument under their hands, notify the county superinten-

pauper in his county has no right to remove him to another county where he be-
lieves he belongs: he must provide for his support and then pursue his remedy against
the other county. Smith v. Brundage, 17 Wk. Dig. 266.

Tt is the duty of the sunerintendent of the poor of a county to which a poor per-
son has removed to furnish her with necessary relief and he cannot refrain from
doing so because she had a settlement in another city, nor can he against her will
remove her to her original residence. Onondaga County v. City of Amsterdam, 139
App. Div. 877; 124 N. Y. Supp. 558.

If a poor person, not having a settlement in this state, is illegally moved by the
overseers of one town into another town, and is there supported, the overseers of
the town into which he was moved may maintain an action against the overseers of
the town procuring his illegal removal, for the amount expended in the support of
such poor person, upon the principle that the burden of supporting such poor person
was unjustly thrown upon such town, and such town should be exonerated by the
town benefiting from such illegal removal. Pittstown v. Plattsburgh, 15 Johns. 436.

Removal from county. Where a person removes from the town and county
in which he has gained a settlement, in‘o another town and county, and while in
the town and county to which he has removed. and before he has gained a settle-
ment therein, he becomes u “ poor person,” the latter county is not entitled to re-
‘imbursement from the town or county from which he came. County of Delaware
v. Town of Delaware, 105 App. Div. 129. 93 N. Y. 954.

Liability of town to which poor persons temporarily remove. Where natives
of a town, being poor persons within the meaning of the statute, leave their native
town and county but return within one y ar, said county cannot, under this section,
charge the coun'y to which they t:mporarily removed with support furnished. This
because they did not come into a town or county not chargeable with their support,
but on the contrary, came back to the county legally chargeable therewith. County
of Broome v. County of Cortland (1912), 154 App. Div. 349.

18. Sufficiency of notice. Notice by » superintendent of the poor to an over-
seer of another county that a person. who has gained a settlement in the latter
county, is supported as » pauper in the county of the superintendent giving such
notice, but does not aver that the person was a pauper while in the county from
which he moved or that his change of habitation was improper, is insufficient to sus-
tain an action for the amount of his support. McKay v. Welsh, 6 N. Y. Supp. 358.

A notice served by mail, and a reply thereto served in the same manner, is &
sufficient compliance with this statute. Stilwell v. Coons, 122 N. Y. 242.

For form of notice of improper removal of a poor person from a town, city
or county, see Form No. 92, post.

19. Expense of support. When a poor person removes or is removed from
a town in one county to a town in another county, not chargeable with his
support, and is there necessarily relieved by the overseer of the poor of that

 
SETTLEMENT AND PLACE OF RELIEF. WAL
Poor Law, § 53.

dents from whom such notice was received, or either of them, that they
deny the allegation of such improper enticing or removal, or that their
town, city or county is liable for the support of such poor person.”
Upon the application of such county superintendent, overseer or other
person so notified, and upon proper proof, the county judge of the county
wherein such superintendent, overseer or other person to whom such
notice shall have been directed, resides, shall issue a warrant directed
to the sheriff of the county, or to some other proper person or persons,
directing him or them to take and remove such poor person from the
place where he may be, to the county, city or town legally chargeable
for his support. [Poor Law, § 52, as amended by L. 1916, ch. 175;
B. C. & G. Cons. L., p. 4254.]

§ 14. IN CASE OF NEGLECT TO DENY REMOVAL, SUPPORT OF
POOR PERSON TO BE A CHARGE UPON THE TOWN AND
COUNTY FROM WHICH REMOVED; ACTIONS TO RECOVER.

If there shall be a neglect to take and remove such poor person and to
serve notice of such denial within the time above prescribed, the county
superintendents and overseers, respectively, whose duty it was so to do,
their successors, and their respective counties, cities or towns, shall be
deemed to have acquiesced in the allegations contained in such first
notice, and shall be forever precluded from contesting the same, and
their counties, cities and towns, respectively, shall be liable for the
expenses of the support of such poor person, which may be recovered
from time to time, by county superintendents incurring such expenses,
in the name of their county in actions against the county, city or town
so liable.**_ [Poor Law, § 53; B. C. & G. Cons. L., p. 4254.]

 

town, the expense incurred and the burden of thereafter maintaining such poor per-
son is, as between that town and its county, a charge on the county, provided the
overseer gives the superintendent of the poor of his county notice of the circum-
stances of the case, as provided by law. Stillwell v. Coons, 122 N. Y. 242; 25 N. E.
316.

20. Denial of removal. For form of notice of denial of removal of poor per-
sons, see Form No. 93, post.

The denial of liability need not follow the language of the section, but it is sufficient
if it contains an unequivocal denial of the liability asserted in the notice of im-

proper removal, Stillwell v. Coons, 122 N. Y. 242; 25 N. E. 316. If such denial be
served by mail, and is received and retained by the party upon whom it is served

without objection, the service is sufficient. Stillwell v. Kennedy, 51 Hun 114; 5 N.
Y¥. Supp. 407.

21. Acquiescence implied if poor person is not removed. Foster v. Cronkhite,
35 N. Y. 139,

Liability for support absolute unless allegations of notice are denied. McKay v.
Welch, 24 N. Y. St. Rep. 838, 6 N. Y. Supp. 358.
749 RELIEF OF POOR.

Poor Law, §§ 54, 55.

§ 15. ACTIONS TO RECOVER, TO BE BROUGHT WITHIN THREE
MONTHS FROM SERVICE OF DENIAL.

Upon service of any such notice of denial the county superintendents
upon whom the same may be served, shall, within three months com-
mence an action in the name of their county, against the town, city or
county so liable for the expense incurred in the support of such poor
person, and prosecute the same to effect; if they neglect to do so, their
town, city or county, shall be precluded from all claim against the town,
city or county to whose officers such first notice was directed. Such
action shall be tried in the county in which the cause of action arose,
subject to the power of the court to change the place of trial in the cases
provided by law.” [Poor Law, § 54, as amended by L. 1916, ch. 203;
B. C. & G. Cons. L., p. 4255.]

§ 16. PENALTY FOR BRINGING FOREIGN POOR INTO STATE; AC-
TION TO RECOVER PENALTY; PERSON FOUND GUILTY,
TO TRANSPORT POOR PERSON OUT OF STATE.

Any person who shall knowingly bring or remove, or cause to be brought
or removed, any poor person from any place without this state, into any
county, city or town within it, and there leave or attempt to leave such
poor person, with intent to make any such county, city or town, or the
state wrongfully chargeable with his support, shall forfeit fifty dollars,
to be recovered by an action in a court of competent jurisdiction in the
county, and in the name of the county, city or town into which such poor
person shall be brought, and shall be obliged to convey such person out
of the state, or support him at his own expense, and shall be guilty of a mis-
demeanor, and the court or magistrate before whom any person shall be
convicted for a violation of this section shall require of such person satis-
factory security that he will within a reasonable time, to be named by
the court or magistrate, transport such person out of the state, or indemnify
the town, city or county for all charges and expenses which may be in-
curred in his support; and if such person shall refuse to give such security
when so required, the court or magistrate shall commit him to the common
jail of the county for a term not exceeding three months.?* [Poor Law,
§ 55: B.C. & G. Cons. L., p. 4255. ]

 

Action must be commenced within three months after service of notice.
Stilwell v. Coons, 122 N. Y. 242; Cortland Co. v. Herkimer Co., 44 N. Y. 22;
Foster v. Cronkhite, 35 N. Y. 139.

23. Penalty. Action for penalty will not lie unless person removing poor
person into the state act in bad faith. Thomas v. Ross & Shaw, 8 Wend. 672.

Action will not lie against person bringing pauper within the state for cost
of maintenance of pauper, but must be for penalty. Crouse v. Mabbett, 11
Johns. 167.

It is no defense in such action, that the poor person formerly had a settle-
ment in the’ place to which he was brought, and had not subsequently gained one
elsewhere. Winfield v. Mapes, 4 Den. 571.
SUPPORT OF BASTARDS. 743

Explanatory note.

CHAPTER L.

SUPPORT OF BASTARDS,

EXPLANATORY NOTE.

Support of Bastards.

Both the mother and a bastard child are in the eyes of the law poor
persons, from the fact that they are liable to become chargeable to
the town or county. It is made the duty of superintendents and over-
seers of the poor to take necessary proceedings, as prescribed in the
Code of Criminal Procedure, to compel a putative father of a bastard
to support the mother during her confinement, and the child after its
birth.

Duties of Poor Officers.

The mother of a bastard, during her confinement, and the bastard,
after its birth, are to be supported and cared for in the same manner
as other poor persons. The superintendents of the poor of the county
and the overseers of the poor of the several towns have the same duties
to perform in respect to such mother and her bastard child, as in respect
to other poor persons. If such mother has a settlement in the town
where she may be, that town is chargeable with her support, in case poor
persons are supported therein at the expense of the town. If the mother
have a settlement in any other town or city in the same county, such
support is chargeable to such town or city. In any other case the
support is chargeable to the county. The same proceedings are taken
to determine the settlement of the mother and the proper town, city or
county chargeable with her support, as in the case of other poor persons.

An overseer of the poor of the town where a mother may be must
provide for her support and comfort during her confinement and re-
covery therefrom, whether she has a settlement in the town or not:
744 RELIEF OF POOR.

Poor Law, § 60.

She cannot be removed from one town or city, or from one county to
another without her consent.

Moneys Received from Father.

The overseer of the poor of a town may apply moneys received from
the putative father of a bastard in the support and sustenance of the
mother and child, without paying the same into the county treasury.
The overseer must account to the town board for the moneys so received
and expended.

 

Section 1. Penalty for removal of mother of bastard; support of mother.
2. Definition of bastard.
8. Who liable for support of bastard.
4. Mother and child poor persons; proceedings in case of removal of
mother from one town or county to another.
. Mother and bastard to be supported as other poor persons.
. Mother and child not to be removed without her consent.
7. Overseers to notify superintendent of cases of bastardy, when
county is chargeable.
8. Superintendents to provide for mother and child.
9. Until taken charge of by superintendents, to be supported by over-
seers.
10. Overseers of town to support bastard and mother, whether charge-
able or not.
11. Moneys received by overseers from parents of bastards, how applied
and accounted for.
12. When moneys received on account of bastard chargeable to county;
how to be disposed of.
18. Disputes concerning settlement of bastard, how determined.
14. Proceedings when bastard is chargeable to another town.
15. Mode of ascertaining sum to be allowed for support of bastard.
16. When mother and child to be removed to county alms-house.
17. Superintendents and overseers may compromise with father of bas-
tard; when mother may receive money.

o> or

§ 1. PENALTY FOR REMOVAL OF MOTHER OF BASTARD; SUP-
PORT OF MOTHER.

If the mother of any bastard, or of any child likely to be born a bastard,
shall be removed, brought or enticed into any county, city or town from
any other county, city or town of this state, for the purpose of. avoiding
the charge of such bastard or child upon the county, city or town from
which she shall have been brought or enticed to remove, the same penalties
shall be imposed on every such person so bringing, removing or enticing
such mother to remove, as are provided in the case of the fraudulent re-
SUPPORT OF BASTARDS. YA

Code Crim. Proc., §§ 838, 839.

moval of a poor person. Such mother, if unable to support herself, shall
be supported during her confinement and recovery therefrom, and her child
shall be supported, by the county superintendents of the poor of the county
where she shall be, if no provision be made by the father of such child.”
[Poor Law, § 60; B. C. & G. Cons. L., p. 4257.]

§ 2. DEFINITION OF BASTARD.

A bastard is a child who is begotten and born,

1. Out of lawful matrimony ;

2. While the husband of its mother was separate from her, for a whole
year previous to its birth; or,

3. During the separation of its mother from her husband, pursuant to
a judgment of a competent court. [Code Crim. Pro., § 838.]

§ 3. WHO LIABLE FOR SUPPORT OF BASTARD.
The father and mother of a bastard are liable for its support. In case
of their neglect or inability, it must be supported by the county, city

or town chargeable therewith under the provisions of the Poor Law.*
[Code Crim. Pro., § 839.]

§ 4. MOTHER AND CHILD POOR PERSONS; PROCEEDINGS IN CASE
OF REMOVAL OF MOTHER FROM ONE TOWN OR COUNTY
TO ANOTHER.

Such mother and her child shall, in all respects, be deemed poor per-
sons; and the same proceedings may be had by the county superintend-
ents to charge the town, city or county from which she was removed or
enticed, or shall have of her own accord come or strayed, for the expense
of supporting her and her child, as are provided in the case of poor

 

1. Penalties for removal of poor person from one town or city to another. See
Poor Law, sec. 50, ante. The unlawful removal of a poor person from one town or
city to another is a misdemeanor. Penal Law, § 1650; see ante.

2. The mother and child, in all cases relating to bastardy, are deemed poor
persons from the fact that they are likely to become chargeable to the county as
poor persons. Neary v. Robinson, 27 Hun 145.

3. Proceedings to compel support of bastard by father. Title 5 of the
Code of Criminal Procedure (secs. 838-886), prescribe a method of compelling a pu-
tative father of a bastard to support the mother during her confinement and the
bastard after birth. It is made the duty of the superintendent of the poor or the
overseer in case a woman is delivered of a bastard or is pregnant with a child likely
to become a bastard, and which is chargeable to the county or town, to apply to a
justice of the peace or police justice to inquire into the facts. Code Crim. Proc., § 840.

Putative father is not required to pay for medical services rendered to the child
in the absence. of an agreement or of an order of filiation. Bissell v. Myton, 160
App. Div. 280, 145 N. Y. Supp. 591.
746 RELIEF OF POOR.
Poor Law, §§ 61-63.

persons; and an action may be maintained in the same manner for said
expenses and for all expenses properly incurred in apprehending the
father of such child, or in seeking to compel its support by such father
cr its mother. [Poor Law, § 61, as amended by L. 1916, ch. 205;
B.C. & G. Cons. L., p. 4258.]

§ 5. MOTHER AND BASTARD TO BE SUPPORTED AS OTHER POOR
PERSONS.

The mother of every bastard, who shall be unable to support herself,
during her confinement and recovery therefrom, and every bastard, after
it is born, shall be supported as other poor persons are required to be
supported by the provisions of this chapter, at the expense of the city or
town where such bastard shall be born, if the mother have a legal settle-
ment in such city or town, and if it be required to support its own poor;
if the mother have a settlement in any other city or town of the same
county, which is required to support its own poor, then at the expense of
such other city or town; in all other cases, they shall be supported at the
expense of the county where such bastard shall be born.* [Poor Law,
§ 62; B. C. & G. Cons. L., p. 4258.]

§ 6. MOTHER AND CHILD NOT TO BE REMOVED WITHOUT HER
CONSENT.

The mother and her child shall not be removed from any city or town
to any other city or town in the same county, nor from one county to
any other county, in any case whatever, unless voluntarily taken to the
county, city or town liable for their support, by the county superintendents
of such county or the overseers of the poor of such city or town. [Poor
Law, § 63; B. C. & G. Cons. L., p. 4259.]

 

4. Proceedings to compel support of mother or child by proper county or
town, see Poor Law, secs. 51-54, ante. 7

The settlement of a bastard child is the last legal settlement of the mother,
however such settlement may have been acquired. There is in this respect
no distinction between an acquired settlement, and one that is merely deri-
vative. Overseers of Canajoharie v. Overseers of Johnstown, 17 Johns, 41.
If the mother has no settlement within the state, her bastard child must be
adjudged settled where it was born. Wynkoop v. Overseers of New York,
3 Johns. 15.

A bastard child is settled in the town where it was born, until it acquires
a settlement for itself, and the justices of the peace of such a town may make
an order of filiation and maintenance, though the legal settlement of the
mother be elsewhere. Delavergue v. Noxon, 14 Johns. 333.

As to liability of city of New York for support of bastard child born
without the state, see, Commissioner of Public Charities v. Lotsky (1919),
188 App. Div. 740, 177 N. Y. Supp. 130.
SUPPORT OF BASTARDS. YAY
Poor Law, §§ 64-67.

§ 7%. OVERSEERS TO NOTIFY SUPERINTENDENTS OF CASES OF
BASTARDY, WHEN COUNTY IS CHARGEABLE.

The overseers of the poor of any city or town where a woman shall be
pregnant with a child, likely to born a bastard, or where a bastard shall
be born, which child or bastard shall be chargeable, or likely to become
chargeable to the county, shall, immediately on receiving information of
such fact, give notice thereof. to the county superintendents, or one of them.
{Poor Law, § 64; B. C. & G. Cons. L., p. 4259.]

§ 8. SUPERINTENDENTS TO PROVIDE FOR MOTHER AND CHILD.

The county superintendents shall provide for the support of such bastard
and its mother, in the same manner as for the poor of such county.®
[Poor Law, § 65; B. C. & G. Cons. L., p. 4259.]

§ 9. UNTIL TAKEN CHARGE OF BY SUPERINTENDENTS, TO BE
SUPPORTED BY OVERSEERS.

Until the county superintendents take charge of and provide for the
support of such bastard and its mother so chargeable to the county, the
overseers of the poor of the city or town shall maintain and provide for
them; and for that purpose, the same proceedings shall be had as for the
support of a poor person chargeable to the county, who cannot be con-
veniently removed to the county alms-house. [Poor Law, § 66; B. C. &
G, Cons. L., p. 4259.]

§ 10. OVERSEERS OF TOWN TO SUPPORT BASTARD AND MOTHER,
WHETHER CHARGEABLE OR NOT.

Where a woman shall be pregnant of a child likely to be born a bastard,
or to become chargeable to a city or town, or where a bastard shall be
born chargeable, or likely to become chargeable, to a city or town, the
overseers of the poor of the city or town where such bastard shall be born,

 

5. Neglect of duty by poor officers. The neglect of the superintendent to
provide for the support of a bastard and its mother is a misdemeanor. The
following section of the Penal Law provides the punishment:

§ 1843. Neglect of duty by superintendent or overseer of the poor. The
county superintendent of the poor, or any overseer of the poor, whose duty it
shall be to provide for the support of any bastard and the sustenance of its
mother, who shall neglect to perform such duty, shall be guilty of a misde-
meanor, and shall, on conviction, be liable to a fine of two hundred and fifty
dollars, or to imprisonment not exceeding one year, or both such fine and im-
prisonment.
748 RELIEF OF POOR.
Poor Law, § 68.

or likely to be born, whether the mother have a legal settlement therein
or not, shall provide for the support of such child and the sustenance of
its mother during her confinement and recovery therefrom, in the same
manner as they are authorized by this chapter to provide for and support
the poor of their city or town.® [Poor Law, § 67; B. C. & G. Cons. L.,
p. 4259.]

§ 11. MONEYS RECEIVED BY OVERSEERS FROM PARENTS OF
BASTARD, HOW APPLIED AND ACCOUNTED FOR.

Where any money shall be paid to any overseer, pursuant to the order
of any two justices, by any putative father, or by the mother of any
bastard, the overseers may expend the same directly, in the support of such
child, and the sustenance of its mother as aforesaid, without paying the
same into the county treasury.’ They shall annually account, on oath,

 

6. The neglect of an overseer of the poor to provide for the support of the
bastard and its mother is a misdemeanor. See Penal Law, § 1843, in preceding
note,

7. Order of filiation. If a person has been adjudged to be the father of a
bastard by the magistrates before proceedings have been instituted, the order
of filiation must specify the sum to be paid weekly by the father for the support
of the bastard; and if the mother be indigent the sum to be paid for her
support during her confinement and recovery. See Code Crim. Procedure, sec.
850. Such father must thereupon give an undertaking to the effect that he
will pay the amounts for the support of the bastard and mother, as specified in
the order. Code Crim. Procedure, sec. 851.

If the mother is possessed of property in her own right she may be com-
pelled to pay for the support of the child. Code of Crim. Procedure, sec. 857.

Prosecution of undertaking. The following sections of the Code of Criminal
Procedure authorize superintendents of the poor and overseers of the poor to
compel the support of a bastard and of its mother:

“Sec. 881.—If an undertaking for the appearance at the County Court of a
person charged as the father or mother of a bastard, be forfeited, the court
may order it to be prosecuted; and the sum mentioned therein may be re-
covered, and when collected, must, except in the city of New York, be paid to
the county treasurer, and by him credited to the town in the same county, liable
to the support of the bastard, or if there be none, to the county. In the city of
New York, the court must order the undertaking to be prosecuted by the com-
missioners of charities and corrections, and when collected, it must be paid
into the city treasury. In every other county, it must be prosecuted by the
district attorney. .

“ Sec. 882.—When an undertaking to obey an order, in relation to the support
of a bastard, or of a child likely to be born a bastard, or of its mother, is for-
feited, it may be prosecuted in the name of the county superintendents of the
county, or the overseers of the poor of the town, which was liable for the support
of the bastard, or which may have incurred any expense in the support of the
SUPPORT OF BASTARDS. Y49.

Poor Law, § 69.

to the board of town auditors, or to the proper auditing board of a city,
at the same time that other town or city officers are required to account
for expenditures of all moneys so received by them, and shall pay over the
balance in- their hands, and under like penalties, as are provided by this
chapter, in respect to the poor moneys in their hands. [Poor Law, § 68;
B. C. & G. Cons. L., p. 4260.]

-§ 12. WHEN MONEYS RECEIVED ON ACCOUNT OP BASTARD
CHARGEABLE TO COUNTY; HOW TO BE DISPOSED OF.

All moneys which shall be ordered to be paid by the putative father,

 

bastard, or of its mother, during her confinement or recovery; or in the city of
New York, in the name of the corporation of. that city.”

Action on undertaking. A bond to indemnify a town concerning a bastard
child is broken, and an action may be maintained upon it as soon as the town
becomes liable or bound to maintain the child; and an action may be main-
tained upon it without actual disbursement, advance or payment by the town.
Rockefeller v. Donnelly, 8 Cow. 623.

Evidence that the mother is of sufficient ability to support the bastard child
is not admissible in discharge of the defendants, but proof of her having in
fact maintained the child would be proper. People v. Corbett & Easton, 8 Wend.
520.

An order of filiation is conclusive, unless it has been appealed from, and an
undertaking given as provided in subdivision 2 of section 851 of the Code of
Criminal Procedure. The order of filiation is equivalent to a judgment that the
defendant should pay the weekly sum mentioned therein. It rests with the
defendant to show himself exonerated from the payment in order to avoid the
recovery against him. Wallsworth v. Mead, 9 Johns. 367.

This case was followed in Rockefeller v. Donnelly, 8 Cow. 623. This case is an
important and: leading one and disposes of the whole question of the liability of
a father to support his bastard child.

The extent of the liability of the defendants is definitely settled by the order
and recognizance; no assessment of damages is necessary, and the defendants
have no right to inquire what amount has been expended. The People v. Cor-
bett & Easton, 8 Wend. 520.

Action on order. Section 886 of the Code of Criminal Procedure provides
that:

“ An action may be maintained by the parties authorized by section 882, upon
an order made by two magistrates, or a County Court, for the payment of a sum
weekly or otherwise, for the support of the bastard or its mother, notwithstand-
ing an undertaking may have been given to comply with the order; and in
case of the death of the person against whom the order was made, an action
may be maintained thereon against his executors or administrators. But when
an undertaking is given to appear at the next term of the County Court, no
action can be brought on the order until it is affirmed by the court.”

8. Accounts of overseers of the poor are to be rendered in the manner pro-
750 RELIEF OF POOR.

Poor Law, § 70.

or by the mother of a bastard chargeable to any county, shall be collected
for the benefit of such county; and all overseers of the poor, superinten-
dents, sheriffs, and other officers, shall within fifteen days after the
receipt of any such moneys, pay the same into the county treasury. Any
officer neglecting to make such payment shall be liable to an action by and
in the name of the county, for all moneys so received and withheld, with
interest from the time of receipt, at the rate of ten per centum; and shall
forfeit a sum equal to that so withheld, to be sued for and recovered by
and in the name of the county. [Poor Law, § 69; B. C. & G. Cons. L.,
p. 4260.]

§ 13. DISPUTES CONCERNING SETTLEMENT OF BASTARD, HOW
DETERMINED.

When a dispute shall arise concerning the legal settlement of the mother
of a bastard, or of a child born or likely to be born a bastard, in any city
or town, the same shall be determined by the county superintendents of
the poor, upon a hearing of the parties interested, in the same manner and
with the same effect as they are authorized to determine the settlement of
a poor person under this chapter.® [Poor Law, § 70; B. C. & G. Cons.
L., p. 4260. ]

§ 14. PROCEEDINGS WHEN BASTARD IS CHARGEABLE TO AN-
OTHER TOWN.

When a bastard shall be born; or be likely to be born in a town or city,
when the legal settlement of the mother is in another town or city of the
same county, which is required by law to support its own poor, the overseers
of the poor of the town or city where such bastard shall be born, or be
likely to be born, shall give the like notice to the overseers of the town
or city where the mother’s settlement may be, as is required in the case
of a person becoming a poor person, under the like circumstances, and the
same proceedings shall be had, in all respects, to determine the liability of
such town or city as in the case of poor persons.'°

 

vided by section 26 of the Poor Law, ante, p. 720; for penalties for failure to
account, see Poor Law, sec. 14, ante, p. 681.

For form of accounts of overseers for moneys received and paid out for sup-
port of bastards, see Form No. 94, post.

9. Settlement of poor persons, proceedings relating to disputes as to. See

Poor Law, secs. 43-45, ante. p. 734.
10. Proceedings to determine place of settlement of poor person are pre-

scribed by Poor Law, secs. 48, 44, ante, p. 734. See Forms Nos. 84-87, post.
SUPPORT OF BASTARDS. "51

Poor Law, §§ 71-738.

The overseers of the town or city to which the mother of such bastard
belongs may, before the confinement of such mother, or at any time after
the expiration of two months after her delivery, if her situation will permit
it, take and support such mother and her child.

If they omit to do so, and fail to obtain the determination of the county
superintendents in their favor on the question of settlement, the town
or city to which the mother belongs shall be liable to pay all the expenses
of the support of such bastard, and of its mother during her confinement
and recovery therefrom ; which expenses, after being allowed by the county
superintendents, shall be assessed, together with the lawful interest on
the moneys expended, on the town or city to which such mother belongs,
and shall be collected in the same manner as provided for poor persons
supported under the same circumstances, and the moneys so collected shall
be paid to the county treasurer, for the benefit of, and to be credited to,
the town which incurred such expenses. [Poor Law, § 71; B. C. & G.
Cons. L., p. 4261.]

§ 15. MODE OF ASCERTAINING SUM TO BE ALLOWED FOR SUP-
PORT OF BASTARD.

When any town is required to support a bastard, and its mother, whether
the mother have a settlement in such town or not, and no moneys shall
be received from the putative father or from the mother, to defray the
expenses of such support, the overseers of the poor shall apply to the super-
visor of the town, and obtain an order! for the support of such bastard,
and the sustenance of its mother during her confinement and recovery
therefrom, and the sum to be allowed therefor, in the same manner as is
required in the case of poor persons, and the moneys paid or contracted to
be paid by the overseer, pursuant to such order, shall be paid by the county
treasurer in the same manner as for poor persons, and be charged to the
town to whose officers such payment shall be made. [Poor Law, 8 72;
B. C. & G. Cons. L., p. 4261.]

§ 16. WHEN MOTHER AND CHILD TO BE REMOVED TO COUNTY
ALMS-HOUWSE.

If there be a county alms-house in any county where the towns are re-
quired to support their own poor, the overseers of the poor of a town where
a bastard shall be born, or shall be likely to be born, may, with the approval
of the county superintendents or any two of them, and when the situation

 

11. Order of supervisor for support of poor person is to be obtained as pro-
vided in section 23 of the Poor Law, ante, p. 717.
752 RELIEF OF POOR.

Poor Law, § 74.

of the mother will allow it, remove the mother of such bastard, with her
child, to such alms-house, in the same manner as poor persons may be
removed; the expenses of which removal shall be defrayed in like manner,
and such mother and her child shall be considered as poor of the town so
liable for their support, and the expense shall in like manner be estimated
and paid.* [Poor Law, § 73; B. C. & G. Cons. L., p. 4261.]

§ 17. SUPERINTENDENTS AND OVERSEERS MAY COMPROMISE
WITH FATHER OF BASTARD; WHEN MOTHER MAY RE-
CEIVE MONEY.

Superintendents and overseers of the poor may make such compromise
and arrangements with the putative father of any bastard child within their
jurisdiction, relative to the support of such child, as they shall deem equi-
table and just, and thereupon discharge such putative father from all
further liability for the support of such bastard."

Whenever a compromise is made with the putative father of a bastard
child, the mother of such child, on giving security for the support of the
child, and to indemnify the city and county or the town and county, from
the maintenance of the child, to the satisfaction of the officers making the
compromise, shall be entitled to receive the moneys paid by such putative
father as the consideration of such compromise.** If the mother of such

 

12. Removal of poor persons to alms-house regulated by Poor Law, sec. 20,
ante, p. 714.

13. For form of agreement upon compromise with putative father, see Form
No. 95, post.

An action will not lie by the county superintendents of the poor against the
putative father of a bastard child on a promise to indemnify the county, made
by him to the supervisor of the town in which the child was born, where it is
not shown that the supervisor, in obtaining the promises, acted in the premises
at the request or with the privity of the county superintendents. Birdsall v.
Edgerton et al., 25 Wend. 619.

Money paid upon a compromise to a superintendent of the poor by a person
charged with being the father of an unborn bastard may be recovered, upon its
appearing that the supposed mother was not pregnant. The statute authorizes
a compromise and arrangement with the putative father relative to the support
of the child. The compromise is merely a mode of getting indemnity on the
part of the county for the support of the bastard. Whether the superintendent
takes a bond or a sum of money, he but indemnifies the county against an
actual or impending expense; and when there has been no expense to the county,
and there is to be none, against which the money was paid as an indemnity,
then the money belongs to the person paying it. Rheel v. Hicks, 25 N. Y. 289.

14. Mother of child entitled to money on giving security for support of child.
People ex rel. Allen v. Superintendent, etc., of Cayuga, 3 Hill 116.
SUPPORT OF BASTARDS. 153

Poor Law, § 74.

child shall be unable to give the security, but shall be able and willing to
nurse and take care of the child, she shall be paid the same weekly allow-
ance for nursing and taking care of the child, out of the moneys paid by
the father on such compromise, as he shall have been liable to pay by the
order of filiation; such weekly sum to be paid the mother, may be pre-
scribed, regulated or reduced, 4s in the case of an order of filiation. [Poor
Law, § 74; B.C. & G. Cons. L,, p. 4262.]
154 RELIEF OF POOR.

Explanatory note.

CHAPTER Lf

SUPPORT OF POOR PERSONS BY RELATIVES; ABSCONDING PARENTS
OR HUSBAND.

EXPLANATORY NOTE.

Liability for Support of Poor Relatives.

_ A father or mother must support his or her children, and children
must support their parents, assuming that they are able to do so. A
person cannot be made a charge upon the town or county if he have a
father or mother, or a son or daughter able to support him. The
liability thus imposed by statute may be enforced by the overseer by
proceedings instituted as provided in this chapter.

Abandonment of Wife or Children.

The Code of Criminal Procedure provides that a person who actually
abandons his wife or children, without adequate support, so that they are
in danger of becoming a burden upon the publie, is a disorderly person.
Upon such a person being arrested he is required to give a bond for the
support of his wife and children. If the husband fails to support his
wife and children, such bond may be prosecuted by the superintendent
of poor of the county or the overseer of the poor of the town, and the
sum collected is to be paid into the county treasury. The procedure is
prescribed by the sections of the Code of Criminal Procedure included

in this chapter.

SecTION 1. Who may be compelled to support poor relatives.
2. Overseers to apply to court for order compelling support of poor
person by relatives.
3. Court to hear cause and make order of support.
4, Support; when to be apportioned among different relatives.
5. Order to prescribe time during which support is to continue, or may
be indefinite: when and how order may be varied.
SUPPORT OF POOR PERSONS BY RELATIVES. 155
Ccde Crim. Proc., § 914.

Section 6. Costs by whom paid, and how enforced.
7. Action on the order or failure to comply therewith.
8. Husbands abandoning wives or children are disorderly persons.
9. Absconding parents or husband, seizure of property of, for support
of children or wife; application for warrant.

10. Overseer may seize property; sale or transfer void; inventory of
property seized. :

11. Warrant and seizure, when confirmed or discharged by court.

12. Warrant to be discharged upon return of parent or husband, or upon
security.

18. Sale of property seized, and application of its proceeds.

14. When superintendent of poor’ has power of overseer.

15. Sale of property of absconding parents; application to court; ap-
plication of proceeds for benefit of minors; accounting of
guardians.

16. Superintendent or overseer may redeem real property of abscond-
ing father or husband, sold at sheriff’s sale.

17. How superintendent or overseer may acquire title.

18. Money used for redemption; how repaid.

19. When warrant of seizure may be discharged.

§ 1. WHO MAY BE COMPELLED TO SUPPORT POOR RELATIVES.

The father, mother and children, if of sufficient ability, of a poor person
who is insane, blind, old, lame, impotent or decrepit, so as to be unable
by work to maintain himself, must, at their own charge, relieve and main-
tain him in a manner to be approved by the overseers of the poor of the
town where he is, or in the city of New York, by the commissioners of
public charities... If such poor person be insane, he shall be maintained
in the manner prescribed by the insanity Jaw. The father, mother, hus-
band, wife or children of a poor insane person legally committed to and
confined in an institution supported in whole or in part by the state, shall
be liable, if of sufficient ability, for the support and maintenance of such
insane person from the time of his reception in such institution? [Code
Crim. Pro., § 914.]

 

1. Liability of relatives. The duties of children to their parents arise from
a principle of natural justice and retribution. For to those who gave us exist-
ence we naturally owe subjection and obedience during our minority and honor
and reverence ever after; they who protected the weakness of our infancy are
entitled to our protection in the infirmity of their age; they who by sustenance
and education have enabled their offspring to prosper ought in return to be
supported by that offspring in case they stand in need of assistance. 1 Black-
stone’s Com. 453.

At common law no legal duty rests upon a child to support his indigent
parent, and until proceedings to charge him with such support are taken as
756 RELIEF OF POOR.
Code Crim. Proc., §§ 915, 916.

§ 2. OVERSEERS TO APPLY TO COURT FOR ORDER COMPELLING SUP-
PORT OF POOR PERSON BY RELATIVES.

If a relative of a poor person fail to relieve and maintain him, as
provided in the last section, the overseers of the poor of the town where
he is, or in the city of New York. the commissioners of public charities
may applv to the court of general sessions of the county of New York,
or to the supreme court of the state of New York, or to the county court
of any other county where the poor person dwells, for an order to com-
pel such relief, upon at least five days’ written notice, served personally,
or by leaving it at the last place of residence of the person to whom it
is directed, in case of his absence, with a person of suitable age and dis-
cretion. If such poor person be insane and legaliy committed to and con-
fined in an institution supported in whole or in part by the state, and his
relatives refuse or neglect to pav for his support and maintenance
therein. application may be made by the treasurer of such institution in
the manner provided in this section for an order directing the relatives
liable therefor to make such pavment. [Code Crim Pro., § 915. as
amended by L. 1913, ch. 143.]

§ 3. COURT TO HEAR CAUSE AND MAKE ORDER OF SUPPORT.

At the time appointed in the notice, the court or a judge thereof must
proceed summarily to hear the allegations and proofs of the parties, and

 

provided by statute, he is not liable therefor. Frazer v. DeWitt, 49 Hun, 53; 1
N. Y. Supp. 467; see, also, Edwards v. Davis, 16 Johns. 281, where it was held
that the liability of a child to support his parents who are infirm, destitute or
aged, is wholly created by statute, and therefore the law does not imply a
promise from the child to pay for necessaries furnished, without his request to
an indigent parent.

Liability of husband for support of wife. The common law affords no
means of compelling a husband to support his wife otherwise than by making
him liable to third persons who have supplied her with necessaries after he has
improperly refused so to do, and the statute providing for the compulsory
support of indigent relatives does not apply to husband and wife. People ex
rel. Kehlbeck v. Walsh, 11 Hun, 292. The wife of a man who is abundantly able
to provide for her cannot be deemed a poor person. Superintendents of the poor
cannot, therefore, maintain an action in their official capacities against a hus-
band for boarding, clothing and medical aid furnished to his wife as a pauper.
Norton v. Rhodes, 18 Barb. 100.

2. Insane poor. Ifa person is insane, he is to be committed to a state hospital
for the insane, to be there supported at the expense of the state. If there is any
one legally Hable for his support under the above section, action may be taken
by the poor officers, the commission in lunacy, or the hospital authorities against
such person to compel him to support or contribute toward the support of the
insane person so maintained. See Insanity Law, secs. 54, 86-89, ante, p.
SUPPORT OF POOR PERSONS BY RELATIVES, 757
Code Crim. Proc. § 917.

must order such of the relatives of the poor person mentioned in section
nine hundred and fourteen, as were served with the notice and are of
sufficient ability, to relieve and maintain him, specifying in the order
the sum to be paid weekly for his support, and requiring it to be paid
by the father, or if there be none, or if he be not of sufficient ability, then
by the children, or if there be none, or if they be not of sufficient ability,
then by the mother. If the application be made to secure an order
compelling relatives to pay for the maintenance of insane poor persons com-
mitted to and confined in an institution supported in whole or in part by the
state such order shall specify the sum to be paid for his maintenance by
his relatives liable therefor, from the time of his reception in such insti-
tution to the time of making such order, and also the sum to be paid weekly
for his future maintenance in such institution. The relatives served with
such notice shall be deemed to be of sufficient ability, unless the contrary
shall affirmatively appear to the satisfaction of the court or a judge there-
of. [Code Crim. Pro., § 916.]

§ 4, SUPPORT; WHEN TO BE APPORTIONED AMONG DIFFERENT
RELATIVES.

If it appear that any such relative is unable to wholly maintain the
poor person or to pay for his maintenance if confined in a state institution
for the insane but is able to contribute toward his support, the court
or a judge thereof may direct two or more relatives of different degrees,
to maintain him or to pay for his maintenance in such an institution if
insane, prescribing the proportion which each must contribute for that
purpose; and if it appear that the relatives are not of sufficient ability
wholly to maintain him, or to pay for his maintenance in such an institu-
tion, if insane, but are able to contribute something, the court or a judge
thereof must direct the sum, in proportion to their ability, which they shall
pay weekly for that purpose. If it appears that the relatives who are
liable for the maintenance of an insane poor person confined in a state
institution for the insane are not able to pay the whole amount df for
such maintenance from the time of such poor person’s admission to such
institution, the court or a judge thereof must direct the sum to be paid
for such maintenance in proportion to the ability of the relatives liable
therefor. [Code Crim. Pro., § 917.]

 

8. Contribution, effect of. This section authorizes the court to require per-
sons equally liable for the support of an indigent parent to contribute toward
such support according to their ability, and where one of two persons is unable
to contribute his entire proportion of such support, the court is authorized to
758 RELIEF OF POOR.
Code Crim. Proc., §§ 918, 919.

§ 5. ORDER TO PRESCRIBE TIME DURING WHICH SUPPORT IS
TO CONTINUE, OR MAY BE INDEFINITE; WHEN AND HOW
ORDER MAY BE VARIED.

The order may specify the time during which the relatives must maintain
the poor person, or during which any of the sums directed by the court
or a judge thereof are to be paid or it may be indefinite or until the further
order of the court or a judge thereof.* If the order be for payment of
a weekly sum for the maintenance of an insane poor person in a state
institution, the order shall specify that such sum shall be paid as long
as such insane poor person is maintained in such institution. The court
or a judge thereof may from time to time vary the order, as circumstances
may require, on the application either of any relative affected by it, or
of any officer on whose application the order was made, upon ten days’
written notice. [Code Crim. Pro., § 918.]

§ 6. COSTS, BY WHOM PAID, AND HOW ENFORCED.

The costs and expenses of the application must be ascertained by the
court, and paid by the relatives against whom the order is made; and the
payment thereof, and obedience to the order of maintenance, and to any
order for the payment of money, may be enforced by attachment. [Code
Crim. Pro., § 919.]

 

require him to contribute according to his ability, and to require the other to pay
the residue. Stone v. Burgess, 47 N. Y. 521; 2 Lans. 439. And an oider reciting
that the two are of sufficient ability, and directing the proportion each one is to
_pay, if the proportion is unequal, is, in effect, a determination that the one
required to pay the less sum is unable to pay his full proportion, but is able to
pay the sum fixed, and such order is valid. Id.

4. Order, in effect a judgment. So long as an order, made by a court of
sessions, directing the relative of a poor person to pay a specified sum period-
icallyeto the superintendent of the poor for the support of such poor person,
remains unchanged, such relative is liable to pay the sum therein prescribed.
If he or she desires to be relieved therefrom application should be made under
the above section of the code for an amendment of the order. Aldridge v.
Walker, 73 Hun, 281; 57 St. Rep. 273; 26 N. Y. Supp. 296.

Such an order is not void because it gives no option to such person either to
support her daughter or to pay the amount provided, and if it is irregular the
remedy is by appeal, and the question of its irregularity cannot be properly
raised in an action brought to collect the amount directed to be paid by such
person. While the determination provided for by this title is denominated an
order, it is a final determination of the matter, and in effect a judgment. Id.

Notice. The notice required by this section should be served upon the officer
making aprlication for the order compelling the relative to support the poor
person.
SUPPORT OF POOR PERSONS BY RELATIVES. 759
Code Crim. Proc., §§ 920, 899, subs. 1, 2.

§ 7. ACTION ON THE ORDER ON FAILURE TO COMPLY THERE-
WITH.

If a relative, required by an order of the court or a judge thereof to
relieve and maintain a poor person, neglect to do so in the manner ap-
proved by the officers mentioned in section nine hundred and fourteen,
and neglect to pay to them weekly the sum prescribed by the court or
a judge thereof, the officers may maintain an action against the relative,
and recover therein the sum prescribed by the court or a judge thereof
for every week the order has been disobeyed, to the time of the recovery,
with costs, for the use of the poor.’ If the order directs a relative to pay
for the maintenance of an insane poor person in a state institution, and
such relative refuses or neglects to pay the amount specified therein, an
action may be brought by the treasurer of such institution in its corporate
name to recover the amount due to such institution by virtue of such
order. [Code Crim. Pro., § 920.]

§ 8. HUSBANDS ABANDONING WIVES OR CHILDREN ARE DISOR-
DERLY PERSONS.

Persons who actually abandon their wives or children, without adequate
support, or leave them in danger of becoming a burden upon the public,
or who neglect to provide for them according to their means; and persons
who threaten to run away and leave their wives or children a burden upon
the public are disorderly persons.* [Code Crim. Pro., § 899, subs. 1, 2.]

 

5. When action will lie. Defendant is not in default of an order of the
court requiring him to support his mother at his own house when he has to
support her for about a year, and she leaves without any just cause and does
not return, he being willing to receive and support her in his family. Converse
v. McArthur, 17 Barb. 410.

When an order is made requiring the relative of a person to support him,
and fixing a sum to be paid weekly, the relative may provide for the support
of the pauper, at such place and in such manner as he shall deem proper, pro-
vided the place and manner are approved by the overseer, and it is not until
he has neglected or refused to do this that he is liable for the sum directed to
be paid. Duel v. Lamb, 1 T. & C. 66.

6. Object of statute. The statute is designed to protect the public against
the burden of supporting a wife and children when the husband, without just
cause, neglects or refuses to perform his ler .! obligation in that regard. It
does not impose any new duty upon a husband toward his wife, but simply
declares that unreasonable neglect or refusal to perform certain existing obli-
gations, in a case where such conduct will result in imposing a burden upon the
public, shall be punishable as a crime. A husband is not to be restricted
by the statute in his right to determine the place and manner of supporting
his wife. If he neglects or refuses to properly provide for her, or so maltreats
760 RELIEF OF POOR.
Code Crim. Proc., §§ 900, 901, 921.

On complaint to a magistrate that a husband is a disorderly person,
a warrant will issue for his arrest. If the magistrate be satisfied that
he is a disorderly person he may require him to give an undertaking to
the following effect:

1. If he be a person described in the first or second subdivision of section
eight hundred and ninety-nine, that he will pay to the county superinten-
dent of the poor or to the overseer of the poor of the town, city or village,
or to a society for the prevention of cruelty to children, weekly for the
space of one year thereafter a reasonable sum of money to be specified
by the magistrate for the support of his wife or children.

Or that the sureties will pay the sum mentioned in the undertaking,
and which must be fixed by the magistrate. [Code Crim. Pro., §§ 900;
901, as amended by L. 191%, ch. 517.]

§ 9. ABSCONDING PARENTS OR HUSBAND, SEIZURE OF PROP-
ERTY OF, FOR SUPPORT OF CHILDREN OR WIFE; APPLI-
CATION FOR WARRANT.

a. When the father ‘or the mother being a widow or living separate
from her husband, absconds from the children, or a husband from his
wife, leaving any of them chargeable or likely to become chargeable upon
the public, the officers mentioned in section nine hundred and fourteen

 

her that she would be justified in refusing her submission to his requirements,
he may be deemed a disorderly person under the above statute. People ex rel.
Douglas v. Naehr, 30 Hun, 461.

But a husband cannot be made a vagrant and a disorderly person by not
complying with any condition in respect to support which the wife may
see fit to impose. The husband has a right to select his own residence and the
support that the statute was intended to secure is the necessaries of life,
or such as the party had been accustomed to and the husband is able to
provide. Pecple v. Petit, 74 N. Y. 320; see, also, Lute v. Shelley, 40 Hun,
197. ,

If the husband gives the undertaking, he must be discharged, but if not, the
magistrate must convict him as a disorderly person and take a certificate
in the form prescribed by the statute. (Code Crim. Pro., § 902.) Such certifi.
cate constitutes a record of conviction and the magistrate must by a warrant
commit the husband to a county jail or a penitentiary for not exceeding six
months at hard labor, or until he gives the security prescribed by statute. (Code
Crim. Pro., § 902; § $03, as amended by L. 1916, ch. 243.) If the husband fails to
support his wife and children and the undertaking has been given, such undertaking
may be prosecuted by the county superintendents of the poor or the overseers ef the
poor of the town, and the sum collected must be paid into the county treasury for
the benefit of the poor. (Code Crim. Pro., § 905.)
SUPPORT OF POOR PERSONS BY RELATIVES. 761
Code Crim. Proc., § 922.

may apply to any two justices of the peace or police justices in the county
in which any real or personal property of the father, mother or hus-
band is situated, for a warrant to seize the same.7 Upon due proof of the
facts, the magistrate must issue his warrant, authorizing the officers so
applying to take and seize the property of the person so absconding..

b. Whenever any child shall be committed to an institution pursuant to
any provision of law, any criminal court or magistrate may issue a summons
or warrant for a parent of the child or any other person required by law to
maintain or support such child, and examine into his or her ability to
maintain such child in whole or in part; and if satisfied that such parent or
other person is able to contribute toward the support of the child, then
such court or magistrae shall, by order, require the weekly payment by such
parent or other person of such sum and in such manner as shall be in said
order directed, toward the maintenance of such child in such institution,
which amount when paid shall be credited by the institution to the city,
town or county against any sums due to it therefrom on account of the
maintenance of such child. In case any city, town or county shall have
paid any sums to any: such institution on account of the maintenance of
such child on the request in writing of the officers in charge of the adminis-
tration of the poor law for such city, town or county, such criminal court or
magistrate may at any time within five years after such payment issue a
summons or warrant, as above, for the parent, or other person required by
law to maintain or support such child, may examine into his or her ability
to maintain such child, in whole or in part, and may make an order for the
repayment to such city, town or county, in whole or in part, of the sums
so expended by it on account of the maintenance of such child. [Code
Crim. Pro., § 921, as amended by L. 1920, ch. 473, and L. 1922, ch. 67.]

§ 10. OVERSEER MAY SEIZE PROPERTY; SALE OR TRANSFER VOID;
INVENTORY OF PROPERTY SEIZED.

The officers so applying may seize and take the property, wherever
it may be found in the same county; and are vested with all the right
and title thereto, which the person absconding then had. The sale or
transfer of any personal property, left in the county from which he
absconded, made after the issuing of the warrant, whether in payment of
an antecedent debt or for a new consideration, is absolutely void. The

 

7. Who may maintair proceedings. One of two overseers of the poor is
authorized to institute and carry on proceedings for the seizure of property of
one who has absconded, leaving his wife or child chargeable to the town.
When only one overseer acts, the consent of the other will be presumed.
Downing v. Rugar, 21 Wend. 178.

Evidence. It is the duty of the court, before confirming the warrant and
seizure and directing the sale of property, to require the overseers to produce
some evidence to establish the case charged in the warrant, against the party
whose property is seized, and the case may be contested by such party. Read
v. Triangle, 23 Barb. 236.

Sums paid to institution to be credited to town, etc. In cases of commit-
ment of a child to an institution, the above section authorizes a magistrate to
order the father to pay a sum for the child’s support which is to be credited
by the institution to the city, town or county against any sum due for
maintenance, People v. Dickson, 57 Hun 315.
162 RELIEF OF POCR.

Code Crim. Proc., §§ 923-925.

officers must immediately make an inventory of the property seized by them,
and return it, together with their proceedings, to the next County Court
of the county where they reside, there to be filed. [Code Crim. Pro.,
§ 922.] .

§ 11. WARRANT AND SEIZURE, WHEN CONFIRMED OR DIS-
CHARGED BY COURT.

The court, upon inquiring into the circumstances of the case, may
confirm or discharge, the warrant and seizure; and if it be confirmed,
must, from time to time, direct what part of the personal property must
be sold, and how much of the proceeds of the sale, and of the rents and
profits of the real property, if any, are to be applied toward the mainte-
nance of the children or wife ef the person abscondnig. [Code Crim. Pro.,
§ 923.]

§ 12. WARRANT TO BE DISCHARGED UPON RETURN OF PARENT
OR HUSBAND, OR UPON SECURITY.

If the party against whom the warrant issued, return and support the
wife or children so abandoned, or give security satisfactory to any two
justices of the peace or police justices in the city, village or town, to the
overseers of the poor of the town, or in the city of New York, to the
commissioners of charities and corrections, that the wife or children so
abandoned shall not be chargeable to the town or county, then the warrant
must be discharged by an order of the magistrates, and the property
taken by virtue thereof restored to the party. [Code Crim. Pro., § 924.]

§ 13. SALE OF PROPERTY SEIZED, AND APPLICATION OF ITS
PROCEEDS.

The officers must sell at public auction the property ordered to be sold,
and receive the rents and profits of the real property of the person
absconding, and in those cities, villages or towns which are required to
support their own poor, the officers charged therewith must apply the same
to the support of the wife or children so abandoned; and for that purpose
must draw on the county treasurer, or in the city of New York, upon the
comptroller, for the proceeds as directed by special statutes. They must
also account to the County Court of the county, for all money so received
by them, and for the application thereof, from time to time, and may be
compelled by that court to render that account at any time. [Code Crim.
Pro., § 925.]
SUPPORT OF POOR PERSONS BY RELATIVES. "63
Code Crim. Proc., § 926; Poor Law, § 130,

g§ 14. WHEN SUPERINTENDENT OF POOR HAS POWER OF OVER-
SEER.

When the poor person for whom relief is sought is a charge upon a county,
the superintendents of the poor are vested with the same powers, as are given
by this title to the overseers of the poor of a town, in respect to compelling
relatives to maintain poor persons, and in respect to the seizure of the
property of a parent absconding and abandoning his family ; and are entitled
to the same remedies in their names, and must perform the duties required
by this title, of overseers and are subject to the same obligations and control.8
[Code Crim. Pro., § 926, as amended by L. 1918, ch. 154.]

§ 15. SALE OF PROPERTY OF ABSCONDING PARENTS; APPLICA-
TION TO COURT; APPLICATION OF PROCEEDS FOR BENE-
FIT OF MINORS; ACCOUNTING OF GUARDIANS.

When property of absconding persons to be applied to support of
families; how application made.—Whenever the father, or the mother
being a widow or living separate from her husband, has absconded or shall
abscond from his or her children, or a husband from his wife, leaving any
of such children or such wife chargeable, or likely to become chargeable
upon the public for their support, and any real or personal estate of such
father, or mother, or husband, has been or shall be seized by a superin-
tendent of the poor or an overseer of the poor, or by a board of charities,
or by other officers authorized to make such seizure, by warrant of the
justices of the peace of the county where such real or personal property
may be situated; and the court of sessions or county court of the county
wherein such superintendent or overseer of the poor, or board of charities,
or other officers authorized to make such seizure resides, has confirmed,
or shall confirm said warrant and seizure, and has heretofore directed or
shall hereafter direct what part if any of said personal property shall be
sold, and how much if any of the proceeds of such sale and of the rents
and profits of the real estate, if any, be applied toward the maintenance

 

8. For provisions relating to abolition or restoration of distinction between
town and county poor, see Poor Law, sec. 138, post, p. 779.

Maintenance of actions by poor officers. An action cannot be maintained
by superintendents of the poor for boarding, clothing and medical aid fur-
nished to his wife as a:pauper; notwithstanding he has maltreated her and
expelled her from his house without just cause, and refused to provide for
her, though of sufficient ability to do so. Norton v. Rhodes, 18 Barb. 190.

It was held proper for the overseers of the town of Cazenovia to begin pro-
ceedings against a father to compel him to support his poor and infirm son.
Tillotson v. Smith, 12 N. Y. St. Rep. 331.
764 RELIEF OF POOR.

Poor Law, §§ 130-132.

of the children or wife of the person so absconding ; then the said superin-
tendent or overseer of the poor, board of charities or other officers so
authorized and directed, shall apply the said proceeds of sale of said
personal property, or rents and profits of the real estate as the case may be,
first, to the payment of such taxes and assessments as may be outstanding
and existing liens upon the said real estate, and repairs necessary to be
made upon said real estate, and premiums for insurance on the buildings
on said real estate; and the balance, if any, directly to the maintaining,
bringing up and providing for the wife, child or children so left and
abandoned, as the same may be required from time to time; and for all such
expenditures they shall take proper vouchers, and from the rents and
profits thereafter received from any real estate so seized they shall first pay
all legal taxes and assessments, as they shall be assessed against said real
estate, and such premiums for insurances and expenses for such repairs
thereon as they may deem necessary for the protection and preservation of
said real estate, and the balance of said rents and profits shall be applied
by said overseers, superintendents, boards of charities, or other persons
authorized to make such seizures, to the maintaining, bringing up, and
providing for the wife, child, or children so left and abandoned, and proper
vouchers shall be taken thereof. [Poor Law, § 130; B. C. & G. Cons. L.,
p. 4278.]

Guardians for minors; proceeds not to be mingled with other funds;
officer to give security and to account——Whenever any child or children,
entitled to the benefits provided by this article, shall be a minor or
minors whose mother is dead and whose father has absconded from his
children, or whose mother, being a widow or living apart from her hus-
band, has absconded from her children, and such minor or minors shall
have no guardian, the court of sessions or county court having jurisdiction
of this matter shall appoint some suitable person guardian ad litem or
next friend of such minor or minors, whose duty it shall be to see that
the provisions of this article are carried into effect. The proceeds of the
sale of said personal property and the rents and profits of said real estate
shal] not be mingled or placed with any other funds held or owned by the
officer or officers receiving the same, but shall be kept separate and distinct.
Such superintendent, overseer of the poor, board of charities or other
authorized officer shall give security for the faithful performance of the
duties hereby imposed in such form and in such sum as the aforesaid
court may direct, and shall account to the court of sessions for all moneys
so received by them and for the application thereof from time to time and
may be compelled by the said court to .ender such account at any time.
[Poor Law, § 131; B. C. & G. Cons. L., p. 4278.]

Notice of accounting.—Notice of such accounting shall be given to the
wife or children, so left and abandoned, as the case may be, and to the
SUPPORT OF POOR PERSONS BY RELATIVES. "65

Poor Law, §§ 133-135.

guardian of such children, if any of them be minors. And in the event
that no guardian or next friend has been appointed, as hereinbefore pro-
vided, the said court shall, prior to such accounting being had, appoint
some suitable person to attend upon such accounting in behalf of said
minors, and notice of such appointment and of such accounting shall be
given to the person so appointed. [Poor Law, § 132; B. C. & G. Cons.
L., p. 42%9.]

Penalties; how applied—All penalties received from the prosecution
of any recognizance given by any person who shall have abandoned or
neglected his wife or children, or who shall have threatened to run away
and leave his wife or children a burden on the public, shall be retained by
the officer at whose instance such recognizance was prosecuted, and ap-
plied for the same purpose and in the same manner as in section one hun-
dred and thirty of this chapter provided for the disposition of the proceeds
of the sale of personal property and the rents and profits of real estate
seized under the provisions of this article. [Poor Law, § 133; B. C. &
G. Cons. L., p. 4279.]

§ 16. SUPERINTENDENT OR OVERSEER MAY REDEEM REAL
PROPERTY OCF ABSCONDING FATHER OR HUSBAND, SOLD
AT SHERIFF’S SALE.

County superintendents and overseers of the poor may redeem real
property, which may have bcen seized by them pursuant to sections 921
to 926 of the Code of Criminal Procedure, the same as judgment creditors
under section 1430 to 1478 of the Code of Civil Procedure. No such re-
demption shall be made, unless at the time of such redemption, the seizure
of the property sought to be redeemed, shall have been confirmed by the
County Court of the county where the premises may be situated, nor unless
such property shall, at the time of making such redemption, be held by
the superintendents or overseers, under and by virtue of such seizure.
[Poor Law, § 134; B. C. & G. Cons. L., p. 4279.]

§ 17. HOW SUPERINTENDENT OR OVERSEER MAY ACQUIRE
TITLE.

To entitle such superintendents or overseers to acquire the title of the
original purchaser, or to be substituted as purchaser, from any other
creditor, they shall present to and leave with such purchaser or creditor,
or the officer who made the sale, the following evidence of their right:

1. A copy of the order of the County Court, confirming the warrant
and seizure of such property, duly verified by the clerk of the court.

2. An affidavit of one of the superintendents or overseers that such
property is held by them under such warrant and seizure, and that the
766 RELIEF OF POOR.

Poor Law, §§ 136, 137.

same have not been discharged, but are then in full force. [Poor Law,
§ 1385; B. C. & G. Cons. L., p. 4279.]

§ 18. MONEY USED FOR REDEMPTION; HOW REPAID.

The superintendents or overseers of the poor may, for the purpose of
making such redemption, use any moneys in their hands belonging to
the poor funds of their respective towns or counties, which moneys shall
be replaced, together with the interest thereon, out of the first moneys
which may be received by them from the rent or sale of the premises so
redeemed. [Poor Law, § 136; B. C. & G. Cons. L., p. 4280. ]

§ 19. WHEN WARRANT OF SEIZURE MAY BE DISCHARGED.

If such redemption shall be made, and the person against whom the
warrant was issued and seizure made shall apply to have the warrant
discharged, he shall, before such warrant and seizure are discharged, in
addition to the security required to be given by section nine hundred and
twenty-four of the Code of Criminal Procedure, pay to such superinten-
dents or overseers the sum paid by them to redeem such property, together
with interest thereon, from the time of such redemption. [Poor Law,
§ 137; B. C. & G. Cons. L., p. 4280.]
RELIEF OF SOLDIERS, SAILORS AND MARINES, "67
Poor Law, § 80.

CHAPTER LIL
RELIEF OF VETERAN SOLDIERS, SAILORS AND MARINES.

Section 1. Relief of persons formerly in the military or naval service; not to be

sent to alms-houses; duty of Grand Army of Republic.

2 Grand Army post commander to file notice and undertaking.

8. Poor or indigent soldiers, etc., without families to be sent to soldiers’
home.

4. Board of supervisors to designate persons to conduct burial of soldiers,
sailors or marines; where burial made.

5. Headstones to be provided for soldiers’ graves at expense of county;
board of supervisors to audit cost thereof.

§ 1, RELIEF OF PERSONS FORMERLY IN THE MILITARY OR NAVAL. SER-
VICE; NOT TO BE SENT TO ALMS-HOUSES; DUTY OF GRAND ARMY
OF REPUBLIC.

No poor or indigent person, male or female, who has served in the
military or naval service of the United States in commissioned, warrant
or enlisted grade and who has been honorably discharged from such
service nor his or her family nor the families of any who may be de-
ceased, shall be sent to any almshouse, but shall be relieved and pro-
vided for at their homes in the city or town where they may reside, so
far as practicable, provided such person formerly in the military or
naval service or the families of those deceased, are, and have been,
residents of the state for one year; and the proper auditing board of
such city or town or in those counties where the poor are a county
charge, the superintendent, if but one, or superintendents of the poor,
as such auditing board in those counties, shall provide such sum or
sums of money as may be necessary to be drawn upon by. the com-
mander and quartermaster or treasurer of any pot of the Grand Army
of the Republic, of any camp of the United Spanish War Veterans, of
any post of the American Legion or of any post of the Veterans of
Foreign Wars of the United States, of the city or town, made upon
the written recommendation of the relief committee of such post or
camp; or if there be no post or camp in a town or city in which
it is necessary that such relief should be granted, upon the like re-
quest of the commander and quartermaster or treasurer and recom-
mendation of the relief committee of a Grand Army post, a camp of the
United Spanish War Veterans, a post of the American Legion or of a
pest of the Veterans of Foreign Wars of the United States, located in
768 RELIEF OF POOR.
Poor Law, § 81.

the nearest town or city, the town or city requested to so furnish re-
lief, and such written request and recommendation shall be a sutflicient
authority for the expenditures so made;' and such auditing board of
such city or town or in those counties where the poor are a county
charge, the superintendent, if but one, or superintendents of the poor.
as such auditing board in those counties may also pay to the chairman
of the relief committee of such Grand Army post, camp of the United
Spanish War Veterans, post of the American Legion or a post of the
Veterans of Foreign Wars of the United States, a reasonable sum for
his services in connection therewith. [Poor Law, § 80, as amended by
L. 1910, ch. 102, L. 1915, ch. 120, L. 1917, ch. 129, and L. 1920, ch.
803. ]

§ 2. GRAND ARMY POST COMMANDER TO FILE NOTICE AND UNDERTAK-

ING.

The commander of any such post or camp which shall undertake to
supervise the relief of poor persons formerly in the military or naval
service or their families, as herein provided, before his acts shall be-
come operative in any town, city or county, shall file with the clerk of
such town, city or county, a notice that such post or camp intends to un-
dertake such supervision of relief, which notice shall contain the names

 

1, The intention of the legislature in enacting §§ 80-85 was to secure relief for
veterans, even though not honorably discharged. Rept. of Atty. Genl., Feb. 25, 1911.

Power to determine who so entitled to relief. Under the above section the power
to determine who are indigent persons and families, the necessity for their relief, the
measure thereof, the place where and the circumstances under which the same shall
be administered, is not vested exclusively in a relief committee of a Grand Army
post, but the proper officers of the town, city or county, having jurisdiction to raise
and appropriate money for the relief of the poor, have jurisdiction and control over
the same, and may determine the amount of money necessary. The Grand Army
post may apply to the auditing board of the municipality for such sum of money
as it deems necessary, and that board may exercise its judgment and discretion as
to the amount to be appropriated; and where it has so done, its determination is
final and not subject to review by any court. People ex rel. Crammond v. Common
Council, 136 N. Y. 489; 32 N. E. 984.

Expenses incurred in caring for, and transporting veteran to soldiers’ home, by
a town overseer of the poor, are county and not town charges. Opinion of Comp-
troller (1917), 12 State Dept. Rep. 516.

A daugkter of a deceased veteran who has become a widow after leaving her
father’s household is not entitled to the relief provided for the families of veterans.
Opinion of Atty. Genl. (1917), 13 State Dept. Rep. 470.

Order directing veteran’s sons to contribute to his support. Where an honorably
discharged veteran eighty years of age with poor eyesight and in feeble health
has no property but his pension of twenty-two dollars a month, which is not suf-
ficient for his support, and the appropriation made by the town authorities under
this section for the use of its veteran relief committee is nearly or quite exhausted,
and it appears that the veteran has two sons, one earning seventeen dollars a week
who has a wife and two children, his son being self-supporting, the other sen, mar-
RELIEF OF SOLDIERS, SAILORS AND MARINES. "69

Poor Law, § 81

of the relief committee, commander and other officers of the post or
camp; and also an undertaking to such city, town or county, with suf-
ficient and satisfactory sureties for the faithful and honest discharge
of his duties under this article; such undertaking to be approved by the
treasurer of the city or county, or the supervisor of the town, from which
such relief is to be received.2, Such commander shall annually there-
after, during the month of October, file a similar notice with said city
or town clerk, with a detailed statement of the amount of relief requested
by him during the preceding year, with the names of all persons for
whom such relief shall have been requested, together with a brief state-
ment in each case, from the relief committee, upon whose recommenda-
tion the relief was requested, provided, however, that in cities of the
first class, said notice and said detailed statement shall be filed with
the comptroller cf such city, and said undertaking shall be approved
by him, and provided further that in any city of the first class which is
now or may hereafter be divided into boroughs, such notice, and such
detailed statement, each in duplicate, shall be filed with the comptroller,
and he shall forward one of said duplicates to the commissioner or
deputy commissioner of charaties for the borough in which the headquar-
ters of such post or camp is situated, except that in the boroughs of the
city of New York, no undertaking shall be filed by the commnader or the
committee of the post or camp nor shall any annual statement of the
amounts of relief granted be required. And it shall be the duty of the
commissioner of charities to annually include in his estimate, of the
amount necessary for the support of his department, such sum or
sums of money as may be necessary to carry into effect the provisions
of sections eighty, eighty-one, eighty-three, and except in the city of
New York, eighty-four and eighty-five of this chapter, and the proper
officers charged with the duty of making the budget of any such city
shall annually include therein such sum or sums of money as may be
necessary for that purpose. Provided, further, that in the city of
New York the relief shall be paid direct to the beneficiaries by the com-

 

ried, and earning about fifteen dollars a week but without children, an order will
be granted under section 914 of the Criminal Code directing each of the veteran’s
sons to contribute two dollars a week to his support. Matter of Conklin (1912), 78
Mise. 269. :

Disobedience of statute; misdemeanor. A public officer who wilfully disobeys
the statute relative to the care and burial of indigent veterans is guilty of a mis-
demeanor. Rept. of Atty. Genl., March 20, 1911.

2. For form of notice of commander of post cf Grand Army as to the relief of
poor persons, etc., see Form No. 95, post.

8. For form of request of officers of Grand Army post for the relief of veterans
with a statement of the relief committee upon whose recommandation the relief
was requested, see Form No. 96, post.
[70 RELIEF OF POOR.
Poor Law, § 81

missioner of public charities on a written recommendation signed by
the relief committee, the commander and the quartermaster or treasurer
of such post or camp. The comptroller of the city of New York shall,
out of the amount appropriated for such relief, provide a cash fund to
be placed under the control of the commissioner of public charities
from which to pay such relief, and he shall replenish said fund upon
presentation of properly receipted recommendations for the amounts
paid out of said fund. Moneys actually laid out and expended except
in the boroughs of the city of New York by any such post or camp for
the relief specified in section eighty of this chapter shall be reimbursed
monthly to such post or camp by the comptroller on vouchers duly veri-
fied by the commander and quartermaster of said post or camp, showing
the date and amount of each payment, the certificate of the post or camp
relief committee, signed by-at least three members, none of whom shall
have received any of the relief granted by the post for which reimburse-
ment is asked, showing that the person relieved was an actual resident of
such city, and that they recommend each payment, and the receipt of
the recipient for each payment, or in case such receipt could not be ob-
tained, a statement of such fact, with the reason why such receipt could
uot be obtained. Such vouchers shall be made in duplicate on blanks to be
supplied by the comptroller and shall be presented to the commissioner of
public charitics for the borough in which the headquarters of the post
or camp is situated, and if such commissioner is satisfied that such
moneys have been actually expended as in said voucher stated, he shall
approve the same, and file one of said duplicates in his office and for-
ward the other to the comptroller, who shall pay the same by a war-
rant drawn to the order of the said commander. And provided further
that in the citv of New York if the comptroller is satisfied that a poor
or indigent person, male or female, who has served in the military or
naval service of the United States in commissioned, warrant or en-
listed grade, and has been honorably discharged therefrom or his or
her family, or the families of any who may be deceased, are in actual
want, and that immediate relief is needed by any, provided he, she or
they shall have been residents of the state for the year last past, and is
or are actual residents of said city, he may in his discretion authorize
and empower the commander of the post or camp to furnish relief to
him, her or them, in a reasonable amount, and pay the amount by warrant
to the commander of the post or camp, taking the receipt in duplicate
of the commander of the post or camp therefor, and file one of said
receipts in his office, and forward the other to the commissioner or
deputy commissioner of charities for the borough in which the head-
quarters of the post or camp is situated; and said duplicate receipts shall
RELIEF OF SOLDIERS, SAILORS AND MARINES. 471
Poor Law, §§ 83, 84.

be the vouchers for the payment of the same. And provided further,
that in any city, county or borough, in which posts or camps have or-
ganized or may organize a memorial and executive committee or a
committee of similar purpose, the latter shall be regarded as a post of
the Grand Army of the Republic, a camp of the United Spanish War
Veterans, a post of the American Legion or a post of the Veterans of
Foreign Wars of the United States. And the chairman, treasurer, or
almoner and bureau of relief or relief committee referred to, shall
exercise the same privileges and powers as the commander, quarter-
master or treasurer and relief committee of a post or camp, on comply-
ing with the requirements of this and the preceding section. Wilful
false swearing to such voucher shall be deemed perjury and shall be
punishable as such. [Poor Law, § 81, as amended by L. 1910, ch.
102, L. 1918, ch. 594, L. 1915, ch. 563, L. 1916, ch. 532, and L.
1920, ch. 803.]

§ 3. POOR OR INDIGENT SOLDIERS, ETC., WITHOUT FAMILIES TO BE SENT

TO SOLDIERS’ HOME.

Poor or indigent soldiers, sailors or marines provided for in this ar-
ticle, who are not insane, and who have no families or friends with
whom they may be domiciled, may be sent to a soldiers’ home. Any
poor or indigent person who served in the military or naval service of
the United States provided for in this chapter, or any member of the
family of any such person or of a person deceased who served in the mili-
tary service of the United States as aforesaid, who may be insane, shall,
upon recommendation of the commander and relief committee of such
post of the Grand Army of the Republic, camp of the United Spanish
War Veterans, post of the American Legion or post of the Veterans of
Foreign Wars of the United States within the jurisdiction of which the
case may occur, be sent to the proper state hospital for the insane. [Poor
Law, § 83, as amended by L. 1910, ch. 102, and L. 1920, ch. 803.]

§ 4. BOARD OF SUPERVISORS TO DESIGNATE PERSONS TO CONDUCT

BURIAL OF SOLDIERS, SAILORS OR MARINES; WHERE BURIAL
MADE.

The board of supervisors in each of the counties shall designate some
proper person or commission, other than that designated for the care of

 

4. Soldiers’ Homes. The New York State Soldiers’ and Sailors’ Home at Bath
is managed by a board of trustees, under the provisions of secs. 60 and 61 of the
Public Buildings Law, and admissions to such home are regulated pursuant to sec-
tion 64, as amended by L. 1911, ch. 577, and L. 1912, ch. 190. The New York State
Home for the aged dependent veteran and his wife, veterans’ mothers, widows and
army nurses, is located at Oxford, N. Y., and is established, managed, and admis-
sions thereto are regulated by article 18 of the State Charities Law.
TT1a RELIEF OF POOR.
Poor Law, § 85.

poor persons, or the custody of criminals, who shall cause to be interred
the body of any honorably discharged soldier, sailor or marine, who has
served in the military or naval service of the United States, or the body
of the wife or widow of any soldier, sailor or marine, married to him
previous to nineteen hundred and eighteen, who shall die such widow,
and who shall hereafter die without leaving sufficient means to defray his
or her funeral expenses, but such expenses shall in no case exceed
seventy-five dollars.© If the deceased has relatives or friends who de-
sire to conduct the burial, but are unable or unwilling to pay the charge
therefor, such sum shall be paid by the county treasurer to the person
so conducting such burial upon due proof of the claim, made to such
person, or commission of the death and burial of the soldier, sailor or
marine, or the wife or widow of such soldier, sailor or marine, and
audit thereof. Such interment shall not be made in a cemetery or ceme-
tery plot used exclusively for the burial cf pocr persons deceased, and the
board of supervisors of each county is hereby authorized and empowered
to purchase and acquire lands, or to appropriate money for the pur-
chase and acquisition of lands, for a cemetery or cemetery plot for the
burial of any such honorably discharged soldiers, sailors or marines and
their wives and widows and also to provide for the care, maintenance,
or improvement of any cemetery or plot where such honorably dis-
charged soldiers, sailors or marines and their wives and widows are
buried or may hereafter be buried. [Poor Law, § 84, as amended by L.
1912, ch. 306, L. 1914, ch. 135, L. 1915, ch. 445, and L. 1919, ch. 110.]
§ 5. HEADSTONES TO BE PROVIDED FOR SOLDIERS’ GRAVE AT EX-

PENSE OF COUNTY; BOARD OF SUPERVISORS TO AUDIT COST

THERECF.

The grave of any honorably discharged soldier, sailor or marine who
has been or hereafter shall be honorably discharged from service in the
army or navy of the United States or of the wife or widow of such an
honorably discharged soldier, sailor or marine, whose body has been
heretofore or shall hereafter be interred pursuant to the last preceding
section, the grave of any honorably discharged soldier, sailor or marine
who served in the army or navy of the United States who shall have been
heretofore buried in any of the counties of this state, but whose grave is

5. Burial expenses of soldiers, sailors and marines who die without sufficient
means may be a charge upon the county. So held where the only property of a
veteran who died leaving a widow was fifty-four dollars in. money. People ex rel.
Brown v. Prendergast, 146 App. Div. 714. This is so, although the children of the
deceased are able to pay the charge. Rept. of Atty. Genl., May 4, 1910.

Burial plots in towns. It is provided by sec. 336 of the Town Law, that town
boards shell purchase and maintain burial plots for use of soldiers, See ante, p. 365.
RELIEF OF SOLDIERS, SAILORS AND MARINES. 771b
Poor Law, § 85.

not marked by a suitable headstone, and who died without leaving
means to defray the expense of such headstone; or whose grave shall
have remained unmarked for twenty-five years by a suitable headstone,
shall be marked by a headstone containing the name of deceased, the
war in which he served, and, if possible, the organization to which he
belonged or in which he served. The headstone at the grave of the
wife or widow of such an honorably discharged soldier, sailor or
marine shall contain the name of the deceased, the war in which her
husband served, and, if possible, the organization to which he belonged
or in which he served. Such headstone shall not cost more than
seventy-five dollars, and shall be of such design and material as shall be
approved by the board of supervisors, and the expenses of such burial
and headstone as above provided for, and a reasonable sum for the
services of the person or commission designated in section eighty-four
and the necessary expenses of said person or commission, shall be a
charge upon and shall be paid by the county in which the said soldier,
sailor or marine, or the wife or widow of such soldier, sailor or
marine, shall have died; and the board of supervisors or other board
or officer vested with like powers, of the county of which such
deceased soldier, sailor or marine, or the wife or widow of such soldier,
sailor or marine, was a resident at the time of his or her death, is
hereby authorized and directed to audit the account and pay the
expenses of such burial and headstone, and a reasonable sum for the
services of the person or commission designated in section eighty-four
and the necessary expenses of said person or commission; provided,
however, that in case such deceased soldier, sailor or marine, or the
wife or widow of such soldier, sailor or marine, shall be at the time of
his or her death an inmate of any state institution, including state
hospitals and soldiers’ homes, or any institution, supported by the state
and supported by public expense therein, the expense of such burial
and headstone shall be a charge upon the county of his or her legal
residence. It shall be the duty of the person or commission in this
article provided prior to the annual meeting of the board of super-
visors to make an annual report to such board of supervisors of all
applications since the last annual report for burial and the erection
of tombstones as provided herein together with the amounts allowed;
all applications herein referred to shall accompany said annual report
and be placed and kept on file with the board of supervisors. [Poor
Law, § 85, as amended by I. 1910, ch. 102, L. 1914, ch. 135, L. 1915,
ch, 147, L. 1919, ch. 188, L. 1920, ch. 199, and L. 1921, ch. 522.]
VT1e RELIEF OF POOR.
Poor Law, §§ 86, 87.

§ 6. RELIEF OF WOMEN NURSES; PERSONS ENTITLED TO RELIEF.

No poor or indigent woman who served not less than ninety days as a
nurse in hospital, field or camp with the military or naval service of
the United States, in the war of the rebellion, the Spanish-American
war or the war of the Philippine insurrection, shall be sent to any
almshouse, but shall be relieved and provided for at her home in the city
or town where she may reside, so far as practicable, provided such woman
nurse is, and has been a resident of the state for one year. [Poor Law,
§ 86, as added by L. 1913, ch. 595.]

§ 7. APPLICATION FOR RELIEF; BY WHOM MADE.

Upon application being made by such woman nurse poor person to the
superintendent of the poor of the county where such woman nurse poor
person, resides, or to any other officer charged with the support and re-
lief of the poor, and on satisfactory proof being made that such woman
nurse is a poor person as defined in this section, such superintendent or
other officer or such proper auditing board of such city or town, or in
those counties where the poor are a county charge, the superintendent,
if but one, or superintendents of the poor, as such auditing boards in
those counties, shall provide such sum or sums of money as may be
necessary to be drawn upon by the president and treasurer of the New
York State Department of the National Association of Civil War Army
Nurses made upon the written recommendation of such relief committee
of such New York State Department of the National Association of
Civil War Army Nurses, and such written request shall be sufficient au-
thority for the expenditures to be made.

Immediately upon such relief and aid being provided for, the written
recommendation of the relief committee of the New York State De
partment of the National Association of Civil War Army Nurses, and all
other testimony and all facts relating thereto, together with a verified
statement of the sum or sums of money expended shall be transmitted
to the state board of charities. Such board shall examine all matters
relating thereto and if satisfied that such expenditure was proper, and
that the expenses thereof were actually and necessarily incurred in such
care and support, shall audit and allow the amount of such expense,
which when so audited and allowed shall be paid by the state treasurer,
on the warrant of the comptroller, to the person incurring the same out
of any money appropriated therefor. The amount of such aid and its
duration shall be determined by the state board of charities. The New
York State Department of the National Association of Civil War Army
RELIEF OF SOLDIERS, SAILORS AND MARINES. 71d

Poow Law, § 87%.
Nurses shall on the first day of January and the first day of July of
each year furnish to the state board of charities a verified statement of
the names and addresses of its officers, and the names and addresses of
its relief committee. No person shall be aided under the provisions of
this act who is receiving or may hereafter receive an annuity from this
state. [Poor Law, § 87, as added by L. 1913, ch. 595.]
772 RELIEF OF POOR.

Poor Law, § 90.

CHAPTER LIL
THE STATE POOR.

Section 1. Who are state poor, and how relieved.
2. Notice to be given to county clerks of location of state alms-
houses.
. State poor to be conveyed to state alms-houses.
. Punishment for leaving alms-house.
. Expenses for support.
. Duty of keepers; superintendent of state and alien poor to keep
record of names.
7. Visitation of alms-houses by superintendent of state and alien
poor.
8. Insane state poor.
9. Care and binding out of state poor children.
10. Transfer to other states or counties.
11. Powers of superintendent of state and alien poor.
12. Indian poor persons; removal to county alms-house.
13. Contracts for support of Indian poor persons.
14. Expenses for support of Indian poor persons.
15. Duty of keepers; superintendent of state and alien poor to
keep record.

ant 2

§ 1. WHO ARE STATE POOR, AND HOW RELIEVED.

Any poor person who shall not have resided sixty days in any county
in this state within one year preceding the time of an application by him
for aid to any superintendent or overseer of the poor, or other officer
charged with the support and relief of poor persons, shall be deemed
to be a state poor person, and shall be maintained as in this article pro-
vided. The state board of charities shall, from time to time, on behalf
ef the state, contract for such time, and on such terms as it may deem
proper, with the authorities of not more than fifteen counties or cities
of this state, for the reception and support, in the alms-houses of such
counties or cities respectively, of such poor persons as may be committed
thereto. Such board may establish rules and regulations for the discipline,
employment, treatment and care of such poor persons, and for their
THE STATE POOR. 773

Poor Law, §§ 91, 92.

discharge. Every such contract shall be in writing, and filed in the office
of such board. Such alms-houses, while used for the purposes of this
article, shall be appropriately designated by such board and known as state
alms-houses. Such board may, from time to time, direct the transfer of
any such poor person from one alms-house to another, and may give notice
from time to time to counties, to which alms-houses they shall send poor
persons. [Poor Law, § 90; B. C. & G. Cons. L., p. 4267.]

§ 2. NOTICE TO BE GIVEN TO COUNTY CLERKS OF LOCATION OF
STATE ALMS-HOUSES.

Such board shall give notice to the county clerks of the several counties
of the location of each of such alms-houses, who thereupon shall cause
such notice to be duly promulgated to the superintendents and overseers
of the poor, and other officers charged with the support and relief of poor
persons in their respective counties. A circular from the superintendent
of state and alien poor appointed by such board shall accompany such
notice, giving all necessary information respecting the commitment, sup-
port and care of the state poor in such alms-houses, according to the pro-
visions of this article. [Poor Law, § 91; B. C. & G. Cons. L., p. 4268.]

§ 3. STATE POOR TO BE CONVEYED TO STATE ALMS-HOUSES.

County superintendents of the poor, or officers exercising like powers,
on satisfactory proof being,made that the person so applying for relief
as a state poor person, as defined by this chapter, is such poor person, shall,
by a warrant issued to any proper person or officer, cause such person,
if not a child under sixteen years of age, to be conveyed to the nearest
state alms-house, where he shall be maintained until duly discharged, but
a child under two years of age may be sent with its mother, who is a
state poor person, to such state alms-house, but not longer than until it is
two years of age. All testimony taken in any such proceeding shall be
forwarded, within five days thereafter, to the superintendent of state
and alien poor, and a verified statement of the expenses incurred by the
person in making such removal, shall be sent to such superintendent.
Such board shall examine and audit the same, and allow the whole, or
such parts thereof, as have been actually and necessarily incurred; pro-
vided that no allowance shall be made to any person for his time or
service in making such removal. All such accounts for expense, when
so audited and allowed, shall be paid by the state treasurer, on the warrant
of the comptroller, to the person incurring the same. [Poor Law, § 92;
B. C. & G. Cons. L., p. 4268.]
W714 RELIEF OF POOR.
Poor Law, §§ 93-95.

§ 4. PUNISHMENT FOR LEAVING ALMS-HOUSE.

An inmate of a state alms-house, who shall leave the same without
being duly discharged, and within one year thereafter is found in any
city or town of this state soliciting public or private aid, shall. be pun-
ished by confinement in the county jail of the county in which he is so
found, or in any work-house of this state in such county, for a term
not exceeding three months, by any court of competent jurisdiction; and
it shall be the duty of every superintendent and overseer of the poor and
other officers charged with the support and relief of poor persons, to cause,
as far as may be, the provisions of this section to be enforced. [Poor
Law, § 93; B. C. & G. Cons. L., p. 4269.]

§ 5. EXPENSES FOR SUPPORT.

The expenses for the support, treatment and care of all poor persons
who shall be sent as state poor to such alms-houses, shall be paid quarterly,
on the first day of January, April, July and October in each year, to the
‘ treasurer of the county, or proper city officers incurring the same, by the
treasurer of the state, on the warrant of the comptroller; but no such
expenses shall be paid to any county or city, until an account of the
number of persons thus supported, and the time that each shall have been
respectively maintained, shall have been rendered in due form and approved
by the state board of charities. [Poor Law, § 94; B. C. & G. Cons. L.,
p. 4269.]

§ 6. DUTY OF KEEPERS; SUPERINTENDENT OF STATE AND ALIEN
POOR TO KEEP RECORD OF NAMES,

The keeper or principal officer in charge of such alms-house shall enter
the names of all persons received by him pursuant to this article, with
such particulars in reference to each as the board from time to time may
prescribe, together with the name of the superintendent by whom the
commitment was made, in a book to be kept for that purpose. Within
three days after the admission of any person, such keeper or principal
officer shall transmit the name of such person, with the particulars herein-
before mentioned, to the superintendent of state and alien poor; and
notice of the death, discharge or absconding of any such person shall in
like manner and within the time above named, be thus sent to such super-
intendent. Such superintendent shall cause the name of such persons in
each such almshouse furnished as above provided for, to be entered in a
book to be kept for that purpose in the office of such board, and he shall
verify the correctness thereof by comparison with the books kept in such
alms-house, and by personal examination of the several inmates thereof,
THE STATE POOR. wus
Poor Law, §§ 96-98.

and in any other manner the board may from time to time direct; and
he shall furnish the board, in tabulated statements, on or before the
second Tuesday in January, annually, the number of inmates maintained
in each and all of such alms-houses during the preceding year, the number
discharged, transferred to other institutions, bound out or removed from
the state, and the number who died or left without permission during
the year, with sueh other particulars and information as the board may
require. [Poor Law, § 95; B. C. & G. Cons. L., p. 4269.]

§ 7%. VISITATION OF ALMS-HOUSES BY SUPERINTENDENT OF
STATE AND ALIEN POOR.

The superintendent of state and alien poor shall visit and inspect each
of such alms-houses, at least once in each three months, and at such other
times as he may deem expedient, or as the board may direct. And he shall
also visit and inspect all alms-houses in which are Indians who are poor
persons at least once a year. For the purposes of all such inspections,
the superintendent shail possess all the powers of a member of the board
and the further powers hereinafter mentioned. The officer in charge of
each and every alms-house shall give to such superintendent free access
to all parts of the ground, buildings, hospitals and other arrangements
connected therewith, and to every inmate thereof, and extend to him the
same facilities for the inspection of such alms-house and its inmates, as
is required by law to be extended to such board of commissioners; and,
in default thereof such officer shall be subject to the same penalty as if
access were denied to any member of the board. Such board shall also
cause each of such alms-houses to be visited periodically by some of its
members, who shall examine into their condition and management, re-
spectively, and make such report thereof to the board as may be deemed
proper. [Poor Law, § 96; B. C. & G. Cons. L., p. 4270.]

§ 8. INSANE STATE POOR.

If any inmate of such alms-house becomes insane, such superintendent
of state and alien poor shal] cause his removal to the appropriate state
hospital for the insane, and he shall be received by the officer in charge of
such hospital, and be maintained therein until duly discharged. [Poor
Law, § 97; B. C. & G. Cons. L., p. 4270.]

§ 9. CARE AND BINDING OUT OF STATE POOR CHILDREN.

Such superintendent of state and alien poor shall cause the state poor
children, under sixtcen years of age, unless committed with the mother as
hereinbefore provided by this chapter, to be maintained and cared for at
776 RELIEF OF POOR.

Poor Law, §§ 99-101.

such orphan asylums in this state as he may deem proper; and the expenses
thereof shall be paid by the state treasurer on the certificate of such super-
intendent and the warrant of the comptroller. Such superintendent, in
his discretion, may bind out a state poor orphan or indigent child which
may be committed to any such state alms-house, or placed in any orphan
asylum, if a male child under twenty-one years, if a female under the age of
eighteen, to be clerks, apprentices or servants until such. child, if a male,
be twenty-one years old, or if a female, shall be eighteen years old, which
binding shall be as effectual as if such child had bound himself with the
consent of his parents or other legal guardian. [Poor Law, § 98; B. C. &
G. Cons. L., p. 4271.]

§ 10. TRANSFER TO OTHER STATES OR COUNTRIES.

When any person becomes an inmate of any such alms-house, and
expresses a preference to be sent to any state or country where he may
have a legal settlement, or friends willing to support him or to aid in
supporting him, the superintendent of the state and alien poor may cause
his removal to such state or country, provided, in the judgment of the
superintendent, the interests of the state and the welfare of such poor
person wil! be thereby promoted. [Poor Law, § 99; B. C. & G. Cons. L., p.
4271.]

§ 11. POWERS OF SUPERINTENDENT OF STATE AND ALIEN POOR.

The superintendent of state and alien poor shall possess and exercise
the like powers, and be subject to the like duties as to the state poor as
superintendents of the poor exercise and are subject to in the care and
support of the county poor. In the absence or illness of the superintendent
such powers and duties may be performed and discharged, by any person
appointed by the state board of charities for such purpose. [Poor Law,
§ 100; B. C. & G. Cons. L., p. 4271.]

§ 12. INDIAN POOR PERSONS; REMOVAL TO COUNTY ALMS-
IZOUSE.

Every Indian residing within this state or upon any of the Indian
reservations of this state, who is a poor person within the meaning of this
chapter, shall be maintained as provided in this article. Upon application
being made by such Indian poor person to the superintendent of the poor
of the county where such Indian resides, or to any other officer charged
with the support and relief of the poor, and on satisfactory proof being
made that such Indian is a poor person as defined in this chapter, such
superintendent or other officer shall bv warrant. cause such Indian to be
THE STATE POOR. 7
Poor Law, §§ 102, 103.

conveyed to the alms-house of the county where such Indian resides, where
he shall be maintained at state expense. Immediately upon the removal
of such Indian who is a poor person to such alms-house, all testimony
taken and all facts relating thereto, together with a verified statement of
the expenses incurred in making such removal, shall be transmitted to the
state board of charities. Such board shall examine all matters relating
thereto, and if satisfied that such removal was proper, and that the expenses
thereof were actually and necessarily incurred, shall audit and allow the
amount of such expenses, which when so audited and allowed shall be paid
by the state treasurer, on the warrant of the comptroller, to the person in-
curring the same. ,

If, however, it shall appear to the satisfaction of such superintendent
that the Indian poor person making application for relief is in such
physical condition as to make it improper to remove him to the alms-
house, the superintendent may, subject to such rules and regulations as
may be prescribed by the state board of charities, provide for the care and
support of such Indian poor person, without removing him to the alms-
house, and the expenses incurred in such care and support shall be paid by
the state treasurer on the warrant of the comptroller, upon the order and
allowance thereof by the state board of charities as in cases of support of
Indian poor persons in alms-houses. [Poor Law, § 101; B. C. & G.
Cons. L., p. 4271.]

§ 13. CONTRACTS FOR SUPPORT OF INDIAN POOR PERSONS.

The state board of charities shall from time to time, on behalf of the
state, contract with the proper officers of the county within which such
Indians who are poor persons reside, on such terms and for such times as
it may deem proper, for the reception and support in the alms-house of
such counties of such Indians who are poor persons as may be committed
thereto. Such board may establish rules and regulations for the discipline,
treatment and care of such Indians and provide for their discharge. Every
such contract shall be in writing and filed in the office of such board.
[Poor Law, § 102; B. C. & G. Cons. L., p. 4272.]

§ 14. EXPENSES FOR SUPPORT OF INDIAN POOR PERSONS.

The expenses for the support, treatment and care of all Indians who are
poor persons and shall be sent to such county alms-house pursuant to this
chapter, shall be paid quarterly on the first day of January, April, July
and October in each year, to the treasurer of the county wherein such
Indians are supported, by the state treasurer, on the warrant of the comp-
troller, but no such expenses shall be paid until an account of the number
78 RELIEF OF POOR.

Poor Law, § 104.

of Indians thus supported and the time that each shall have been respec-
tively maintained shall have been rendered in due form and approved by
the state board of charities. [Poor Law, § 103; B. C. & G. Cons. L.,
p. 4272.]

§ 15. DUTY OF KEEPERS; SUPERINTENDENT OF STATE AND
ALIEN POOR TO KEEP RECORD.

The keeper or principal officer in charge of such alms-house shall enter
the names of all Indians committed thereto, with such particulars in
relation thereto as the state board of charities may prescribe. Immediately
upon the admission of any such Indian, such keeper or principal officer shall
transmit by mail the names of such Indians, with the particulars herein-
before mentioned, to the superintendent of state and alien poor; and
notice of the death, discharge or absconding of any such Indian shall in
like manner be transmitted to such superintendent. Such superintendent
shall cause the names of such Indians in such county alms-house to be
entered in a book to be kept for that purpose in the office of such board,
and he shall verify the correctness thereof by comparison with the books
kept in the alms-house by personal examination of such Indians or in such
other manner as the board may direct; and he shall furnish the board
in tabulated statements, annually on or before the second Tuesday in
January, the number of Indians maintained in all such county alms-houses
‘during the preceding year, the number discharged, bound out, removed
from the state, and the number who died or left without permission during
the year, with such other information as the board may require. [Poor
Law, § 104; B. C. & G. Cons. L., p. 4273.]
TOWN AND COUNTY POOR;MISCELLANEOUS PROVISIONS. 779

Poor Law, § 138.

CHAPTER LIV.

DISTINCTION BETWEEN TOWN AND COUNTY POOR AND OTHER
MISCELLANEOUS PROVISIONS RELATING TO THE POOR.

Section 1. Boards of supervisors may abolish or revive distinction between
town and county poor.

2. Overseers to pay town poor moneys to county treasurer, within
three months after notice of abolition of distinction between
town and county poor.

3. Town poor money, invested, to be under control of overseer;
may be applied to town expenses when distinction between town
and county poor is abolished.

4. Poor persons owning property.

4a, Burial of poor persons; expense, how paid.

5. Money raised by towns and counties for the care and support of inmates
of charitable institutions.

6. Reports with relation to children placed in family houses.

%. Reports to clerk of board of supervisors of appointments and
commitals to charitable institutions.

8. Reports by officers of certain institutions to clerks of supervisors
and cities.

9. Verified accounts against counties, cities and towns.

10. Pauper, when not admitted to asylum.

§ 1. BOARDS OF SUPERVISORS MAY ABOLISH OR REVIVE DISs-
TINCTION BETWEEN TOWN AND COUNTY POOR.

The board of supervisors of any county may, at an annual meeting or
at a special meeting called for that purpose, by resolution, abolish or
revive the distinction between town and county poor of such county, as
to poor persons over the age of sixteen years, or as to poor persons of the
age of sixteen years or under, or as to both, by a vote of two-thirds of
all the members elected to such board, and until such abolition or re-
vival, such county, or the towns therein, shall continue to maintain and
support their poor as at the time when this chapter shall take effect."
The clerk of the board shall, within thirty days after such determina-

 

1. Distinction between town and county poor. Boards of supervisors may
abolish or revive distinctions between town and county poor, in their diseretion,
in the manner prescribed by this section. People ex rel. Supt. of the Poor v.
780 RELIEF OF POOR.

Poor Law, § 139.

tion, serve, or cause to be served, a copy of the resolution upon the clerk
of each town, village or city within such county, and upon each of the
superintendents and overseers of the poor therein. Upon filing such deter-
mination to abolish the distinction between such town and county poor,
duly certified by the clerk of the board, in the office of the county clerk,
such poor of the county shall thereafter be maintained, and the expense
thereof defrayed by the county; and all costs and charges attending the
examinations, conveyance, support and necessary expenses of such poor
persons therein, shall be a charge upon the county. Such charges and
expenses shall be reported by the superintendent of the poor, to the board
of supervisors, and shall be assessed, levied and collected the same as other
county charges. [Poor Law, § 138, as amended by L. 1916, ch. 379;
B. C. & G. Cons. L., 2d ed., p. 6354.]

§ 2. OVERSEERS TO PAY TOWN POOR MONEYS TO COUNTY
TREASURER, WITHIN THREE MONTHS AFTER NOTICE OF
ABOLITION OF DISTINCTION BETWEEN TOWN AND COUNTY
POOR.

Within three months after notice shall have been served upon the over-
seers of the poor, that the distinction between town and county poor has:
been abolished, they shall pay over all moneys which shall remain in their
hands as overseers for the use of their town, after discharging all demands
against them, to the county treasurer, to be applied by him toward the
future taxes of such town; and all moneys thereafter received by them, as
such overseers, for the use of the poor of their town, shall be paid by them
to the county treasurer within three months after receiving the same, and
by him credited to the town whose overseers shall have paid the same. It
shall be the duty of all officers or persons to pay to the county treasurer
all moneys which shall be received for, or owing by them to the overseers
of the poor of any such town, for the use of the poor thereof, pursuant to
any law or obligation requiring the same to be paid to such overseers, and

 

Supervisors, 103 N. Y. 541. But they have no authority to mate a distinc-
tion, in part, between town and county poor. Rept. of Atty. Genl. (1900) 276.

Determination of supervisors must be filed to effect a change of system.
Thompson v. Smith, 2 Den. 177.

The effect of abolishing the distinction between town and county paupers is
to deprive the town of the right of reimbursement from the county. People
ex rel. v. Bd. Sup’s St. Lawrence Co., 103 N. Y. 541, 546; Robbins v. Wolcott,
66 Barb. 63, 68.

Revival of distinction between town and county poor; when city liable
for necessaries ordered for its poor, Where the distinction between the town
and county poor in the county of Herkimer was abolished by the board of
supervisors, but was thereafter revived by said board, pursuant to this
section, the city of Little Falls, which under its charter is deemed to be a
town within the general laws relating to the poor, is liable to a merchant
for goods furnished to a poor person who is a resident of said city even
though during the time the distinction between town and county poor
had been abolished the county had been solely liable for such necessaries.
Cassidy v. City of Little Falls (1919), 189 App. Div. 527, 179 N.Y. Supp. 493.

Review. The acts of supervisors in distinguishing between town and
county poor are legislative and not judicial, and cannot be reviewed by
certiorari. People ex rel. Allen v. Supervisors of Westchester Co., 113
App. Div. 773, 99 N. Y. Supp. 348.
TOWN AND COUNTY POOR; MISCELLANEOUS PROVISIONS. 81

Poor Law, §§ 140, 57, 58.

credited by such county treasurer to the town for whose use such moneys
were received or owing. Any overseer or other person having received or
owing such moneys, who shall neglect or refuse to pay the same within
thirty days after demand thereof, shall be liable to an action therefor, with
interest at the rate of ten per cent. thereon, by such county treasurer, in
the name of his county.2._ [Poor Law, § 139; B. C. & G. Cons. L., p. 4281.]

§ 3. TOWN POOR MONEY, INVESTED, TO BE UNDER CONTROL OF
OVERSEER; MAY BE APPLIED TO TOWN EXPENSES WHEN
DISTINCTION BETWEEN TOWN AND COUNTY POOR IS
ABOLISHED.

When any town shall have any moneys raised for the support of the
poor, invested in the name of the overseers of the poor of such town, such
overseers shall continue to have the control thereof, and shall apply the
interest arising therefrom to the support of the poor of their town, so long
as such town shall be liable to support its own poor, but when relieved from
such liability by a vote of the supervisors of the county, the money so raised
and invested shall be applied to the payment of such taxes upon the town, as
the inhabitants thereof shall at an annual town meeting, or a special town
meeting called for the purpose, determine. [Poor Law, § 140; B. C. & G.
Cons. L., 4281.]

§ 4. POOR PERSONS OWNING PROPERTY.

If it shall at any time be ascertained that any person, who. has been
assisted by or received support from any town, city or county, has real or
personal property, or if any such perosn shall die, leaving real or personal
property, an action may be maintained in any court of competent juris-
diction, by the overseer of the poor of the town or city, or the superintend-
ent of the poor of any county which has furnished or provided such assistance
or support, or any part thereof, against such person or his or her estate,
to recover such sums of money as may have been expended by their town,
city or county in the assistance and support of such person during the
period of ten years next preceding such discovery or death.** [Poor

Law, § 57; B. C. & G. Cons. L., 2d ed., p. 6325.]

§ 4a, BURIAL OF POOR PERSON; EXPENSE, HOW PAID.

It shall be the duty of the superintendent of the poor of every county

and the overseer of the poor of every town, and the person or official
having in charge the care of the poor of every city or village, to cause.
the remains of each deceased poor person to be properly buried. The
expense of such burial shall be a state, county, town, city or village
charge, as the case may be, and the money therefor shall be raised
as other charges of the state, county, town, city or village are raised.
[Poor Law, § 58, as added by L. 1917, ch. 512.]

 

2. In counties where the poor are a county charge, money expended for the
temporary or permanent relief of the poor belongs to the county, and a town
cannot maintain an action against a person alleged to have fraudulently
received such money. Robbins v. Wolcott, 66 Barb. 63; People v. Harris,
16 How. Pr. 256, 260.

2a. Application. Color v. Callahan (1918), 105 Mise. 457, 174 N. Y.
Supp. 504.
¥82 RELIEF OF POOR.
General Municipal Law, § 87; Poor Law, § 146.

§ 5. MONEY RAISED BY TOWNS AND COUNTIES FOR THE CARE
AND SUPPORT OF INMATES OF CHARITABLE INSTITU-
TIONS.

Boards of estimate and apportionment, common councils, boards of alder-
men, boards of supervisors, town boards, boards of trustees of villages and
all other boards or officers of counties, cities, towns and villages, authorized
to appropriate and to raise money by taxation and to make payments there-
from, are hereby authorized, in their discretion, to appropriate and to
raise money by taxation and to make payments from said moneys, and from
any moneys received from any other source and properly applicable
thereto, to charitable, eleemosynary, correctional and reformatory institu-
tion wholly or partly under private control, for the care, support and
maintenance of their inmates, of the moneys which are or may be appropri-
ated therefor; such payments to be made only for such inmates as are
received and retained therein pursuant to rules established by the state
boards of charities; except that boards of trustees of villages and town
boards of towns in which there is no hospital located, and which are situ-
ated upon and adjoin the boundary line of a neighboring state, are hereby
authorized, in their discretion, to appropriate and to raise money by taxa-
tion and to make payments from said moneys, and from any moneys
received from any other source and properly applicable thereto, to hospitals
in such adjoining state for the purpose of maintaining a bed or beds in
such hospital for the benefit of and to be used exclusively by the inhabitants
of such village or town. Boards of trustees of villages and town boards
of towns situate upon the boundary line of a neighboring state, which
have appropriated and raised money by taxation for the purpose of main-
taining a bed or beds in a hospital in such adjoining state and have not
paid the same, are hereby authorized to use said money for the purpose
for which it was appropriated and raised. Payments to such hospital in
an adjoining state shall be made only for such inmates as are received and
retained therein pursuant to rules established by the state board of
charities. [General Municipal Law, § 87; B. C. & G. Cons. L., p. 2138.]

§ 6. REPORTS WITH RELATION TO CHILDREN PLACED IN FAM-
ILY HOMES.

The superintendents of the poor of counties, the overseers of the poor of
cities and towns, and all other public officers by whatsoever name or title
known who are authorized by law to place out dependent children in family
homes by adoption, indenture or otherwise, are hereby required to report to
the state board of charities on blanks provided by such board, the partic-
ulars with relation to each child so placed out. Such report shall state the
TOWN AND COUNTY POOR;MISCELLANEOUS PROVISIONS. 783

State Charities Law, §§ 450, 451.

name, age and sex of the child so placed out, together with the father’s full
name and residence, the mother’s full name and residence, and the religi-
ous faith of the parents. The report shall also state the full names and
residences of the heads of the family with whom such child is placed, their
relationship to the child, if any, the religious faith of the heads of such
family, and their occupation or occupations, together with such further
information as the state board of charities may require on the blanks pro-
vided. Such reports for the preceding months shall be filed with the state
board of charities on or before the tenth day of each month. [Poor Law,
§ 146; B. C. & G. Cons. L., p. 4283.]

§ 7. REPORTS TO CLERK OF BOARD OF SUPERVISORS OF AP-
POINTMENTS AND COMMITALS TO CHARITABLE INSTI-
TUTIONS.

Every judge, justice, superintendent or overseer of the poor, supervisor
or other person who is authorized by law to make appointments or com-
mitments to any state charitable institution, in which the board, instruc-
tion, care or clothing is a charge against any county, town or city, shall
make a written report to the clerk of the board of supervisors of the county,
or of the county in which any town is situated, or to the city clerk of
any city, which is liable for any such board, instruction, care or clothing,
within ten days after such appointment or commitment, and shall therein
state, when known, the nationality, age, sex-and residence of each person
so appointed or committed and the length of time of such appointment or
commitment. This and the two following sections shall apply to each of
the asylums, reformatories, homes, retreats, penitentiaries, jails or other
institutions, except alms-houses, in each of the counties of this state,
except the county of Kings, in which the board, instruction, care or
clothing of persons committed thereto is, or shall be, a charge against
any county or town therein? [State Charities Law, § 450, as amended
by L. 1909, ch. 258; B. C. & G. Cons. L., p. 7915.]

§ 8. REPORTS BY OFFICERS OF CERTAIN INSTITUTIONS TO CLERKS OF
SUPERVISORS AND CITIES.

The keeper, superintendent, secretary, director or other proper of-
ficer of a state charitable institution to which any person is com-
mitted or appointed, whose board, care, instruction, tuition or cloth-
ing shall be chargeable to any city, town or county, shall make a
written report to the clerk of such city or to the clerk of the board
of supervisors of the county, or of the county in which such town
is situated, within ten days after receiving such person there-
in. Such report shall state when such person was received
into the institution, and, when known, the name, age, sex, nation-

3. Reports upon commitment of orphans, Opinion of Comptroller (1917), 13 State
Dept. Rep. 477.

 
784 RELIEF OF POOR.

State Charities Law, § 452.

ality, residence, length of time of commitment or appointment, the name
of the officer making the same, and the sum chargeable per week, month
or year for such person. If any person so appointed or committed to any
such institution shall die, be removed or discharged, such officers shall
immediately report to the clerk of the board of supervisors of the county,
or of the county in which such town is situated, or to the city clerk of the
city from which such person was committed or appointed, the date of such
death, removal or discharge. [State Charities Law, § 451, as amended
by L. 1999. ch. 258; B. C. & G. Cons. L., p. 5481.]

§ 9. VERIFIED ACCOUNTS AGAINST COUNTIES, CITIES AND
TOWNS.

The officers mentioned in the last section shall annually, on or before
the fifteenth day of October, present to the clerk of the board of super-
visors of the county, or of the county in which such town is situated, or
to the city clerk of a city from which any such person is committed or
appointed, a verified report and statement of the account of such institu-
tion with such county, town or city, up to the first day of October, and
in case of a claim for clothing, an itemized statement of the same; and if a
part of the board, care, tuition or clothing has been paid by any person
or persons, the account shall show what sum has been so paid; and the
report shall show the name, age, sex, nationality and residence of each
person mentioned in the account, the name of the officer who made the
appointment or commitment, and the date and length of the same, and the
time to which the account has been paid, and the amount claimed to such
first day of October, the sum per week or per annum charged, and if no
part of such account has been paid, the report shall show such fact. Any
officer who shall refuse or neglect to make such report shall not be entitled
to receive any compensation or pay for any services, salary or otherwise,
from any town, city or county affected thereby. The clerk of the board of
supervisors who shall receive any such report or account shall file and
present the same to the board of supervisors of his county on the seco~d
day of the annual meeting of the board next after the receipt of the same.
[State Charities Law, § 452, as amended by L. 1909, ch. 258; B. C. &

G. Cons. L., p. 5482.]
TOWN AND COUNTY POOR; MISCELLANEOUS PROVISIONS. 1785

State Charities Law, § 17.
§ 10. PAUPER, WHEN NOT ADMITTED TO ASYLUM.

A poor person shall not be admitted as an inmate into a state institu-
tion for the feeble-minded, or epileptics, unless a resident of the state for
one year next preceding the application for his admission. [State
Charities Law, § 17, first sentence; B. C. & G. Cons. L., p. 7809.]
PART VIII.

HIGHWAYS AND BRIDGES.

CHAPTER LV.

DEFINITIONS AND CLASSIFICATION.

EXPLANATORY NOTE.

Changes Made by Present Highway Law ; Historical Statement.

The Highway Law of 1909 (L. 1909, ch. 30), as contained in this
part of the manual is identical with the new Highway Law of 1908 (L.
1908, ch. 330) ; the sections thereof are identical with the sections of the
law of 1908.

The first general law on the subject of highways and bridges was
passed in 1797 (ch. 43) which regulated highways in all the counties
of the state except those of New York, Suffolk, Queens and Kings.
The laws upon this subject were again revised and re-enacted by L.
1801, ch 186, and were subsequently included in the Revised Laws of
1813, ch. 33, and in the Revised Statutes of 1828, tit. 1, ch. 16, pt. 1.

Prior to 1873 all work upon the highways of the state outside of
cities and villages was performed by the owners of property lying in the
respective districts or wards, the number of days’ labor to be performed
by each being assessed against him in proportion to the value of his
property. This system became known as the labor system. In 1873,
by ch. 395, the several towns were given the option of changing to a
money system, by which an annual tax was levied instead of an assess-
ment for labor, and the money so raise was to be expended in procuring
work to be done by contract or days’ labor. The provisions of this
act were carried over into the Highway Law of 1890. (Rept. of Board

of Statutory Consolidation, p. 2570.)
786
DEFINITIONS AND CLASSIFICATION. 787

Explanatory note.

Highway Law of 1908.

The Highway Law of 1908 was submitted to the legislature in that
year by the Joint Legislative Committee on Highways. This revision
was much more than a consolidation or codification of existing general
laws relating to highways and bridges. As stated in the preface to the
Highway Code of the State of New York “ But it does more than
revise and codify cxisting laws; it originates new methods of state and
county administration of highwav affairs; it logically and effectively
unites centralization with local control and responsibility, on the one
hand, by creating a state commission with full power to aid, supervise
aud direct the local officer in administering highway affairs in his lo-
eality, and on the other, by preserving to the local officer all his power and
responsibility in respect to local conditions and the expenditure of town
and county funds; it outlines a comprehensive system of trunk highways
and provides for their construction at the sole expense of the state; it
abolishes the time-worn and ineffective labor system of taxation for the
maintenance of town highways and substitutes therefor a money tax to
be levied by the board of supervisors upon estimates duly submitted by
the town superintendent of highways and revised by the town board,
subject to reasonable limitations as to amounts which may be raised
without a vote of a town meeting; it provides for the proper audit of
town expenditures for highways and bridges and the systematic and
uniform accounting for receipts and expenditures by highway officers,
under the supervision of and in the form prescribed by the state com-
mission of highways; it has more fully protected the interests of county
and town in the construction of county highways and has provided more
effectual safeguards in the award of contracts for the construction of
state and county highways.” As above indicated the Highway Law of
1908 was re-enacted as ch. 45 of the Consolidated Laws without change
in arrangement or substance except that the Motor Vehicle Law is made
a part thereof and is now found in art. 11.

Srcrion 1. Short title.
2. Definitions.
3. Classification of highways.
188 HIGHWAYS AND BRIDGES.
Highway Law, §§ 1, 2.

§ 1. SHORT TITLE.

This chapter shall be known as the “Highway Law.”1 [Highway Law,
§ 1; B. C. & G. Cons. L., 2d ed., p. 3364.]

§ 2. DEFINITIONS.

1. The term ‘‘department,” when used in this chapter, shall mean the
department of highways as constituted herein.

2. The terms ‘“‘commission,” “highway commission,” and “state highway
commission,” when so used, shall each mean the state commission of higu-
ways. The term ‘state superintendent of highways,’’? when so used, shall
mean the commissioner of highways, and reference to powers and duties of
the state superintendent of highways to be exercised subject to the commis-
sion shall mean the exercise of such powers and duties by the commissioner
of highways without the concurrence of any other commission or officer.

3. The term “district superintendent” or ‘‘county superintendent,’’ when
so used, shall mean the district superintendent of highways or county
superintendent of highways respectively.

4, The term ‘‘town superintendent,’’? when so used, shall mean the town
superintendent of highways.

5. A highway within the meaning of this chapter shall be deemed to
include necessary sluices, drains, ditches, waterways, embankments, retaining
walls and culverts having a width of opening of five feet or less and
also the approaches of any bridge or culvert beginning at the back of
the abutments. The pavement over any such bridge or culvert may also be
included as a part of the highway provided such pavement is separated from
such structure by an earth fill.2 [Highway Law, § 2, as amended by L. 1911,
ch. 646, L. 1912, ch. 88, L. 1913, ch. 80, and L. 1921, ch. 196.]

 

 

2. Use of definitions. The purpose of defining the terms enumerated in
this section is to state the meaning of such terms when used in the Highway
Law. Wherever any of these terms are so used reference should be made to
this section to determine their meaning. It will be noticed that county engineers
and county superintendents are hereafter to be known as district superin-
tendents or county superintendents, and that the commissioners of highways
under the former law are hereafter to be known as town superintendents.

Definition of highway. The term highway is defined herein for the pur-
pose of determining what such term includes when used in this chapter. It is
not intended as exclusive of the original common law definition of a highway.
The main object was to authorize the construction and repair of “ culverts,
sluices, drains, bridges, waterways, embankments, retaining walls and all
bridges having a span of five feet or less” as a part of the highway.

At common law a highway is defined as a way over which the public at
large have a right of passage whether it be a carriageway, a horseway or
footway, or a navigable river. 38 Kent’s Commentaries, 432. Any way which
is common to all people without distinction is a highway. People v. Kingman,
24.N. Y. 559. .

Streets as highways. The term “highway ” as generally used includes the
streets of a city or village. Adams v. S. & W. R. R. Co., 11 Barb. 414, 449,
Benedict v. Goit, 3 Barb. 459; Brace v. N. Y. Central R. R. Co., 27 N. Y.
271. But term ‘“‘highway” in its ordinary and popular sense, refers to the
country roads under the management and control of the local authorities of
the several towns or counties of the state. In re Woolsey, 95 N. Y. 185; In
re Burns, 155 N. Y. 23.
DEFINITIONS AND CLASSIFICATION. 789

Highway Law, § 3.
§ 3. CLASSIFICATION OF HIGHWAYS.

Highways are hereby divided into four classes:3

1. State highways are those constructed or improved under this chapter
at the sole expense of the state, including those highways specified and
described in section one hundred and twenty of the highway law and acts
amendatory thereof.

2. County highways are those heretofore or hereafter constructed or
improved at the joint expense of the state, county and town, or state and
town, as provided by law, except those highways specified and described
in section one hundred and twenty of this chapter.

3. County roads are those designated as such under a general or special
law and constructed, improved, maintained and repaired by the

 

Sidewalks. A sidewalk is as much a part of a highway as the traveled
wagon road is. People v. Meyer, 26 Misc. 117, 56 N. Y. Supp. 1097, 1099.

Bridges. A highway includes all bridges necessary for the proper use of
such highway by the traveling public. Bridges are ordinarily treated as:
portions of the highways which cross them, and are to be maintained by
the same authorities to whom the duty of repairing the highway is com-
mitted. Washer v. Bullitt County, 110 U. S. 558, 568, 4 Sup. Ct. 249, 28.
L. Ed. 249; Dodge County Commr’s v. Chandler, 96 U. S. 205, 208, 24.
L. Ed. 625.

A bridge having a span of more than five feet is not a part of a highway
so as to authorize the state highway commission to construct it as a
part of a state highway. Paddleford v. State (1918), 103 Misc. 398, 175
N. Y. Supp. 583; Learn v. State (1920), 113 Misc. 225, 184 N. Y. Supp. 281.

“Highway” does not include a bridge fifty-six feet long. Paddleford v.
State (1920), 192 App. Div. 870, 183 N. Y. Supp. 249. See, also, Deyoe
v. State (1920), 112 Misc. 423, 183 N. Y. Supp. 126, as to when a bridge
is not a highway.

Cul-de-sac. A way which is open at one end only is a cul-de-sac. Although every
public thoroughfare is a highway, it is not essential that every highway should be
a thoroughfare, as it is now well settled that a cul-de-sac may be a highway. Elliot
on Roads & Streets, § 2. In the case of Holdane v. Cold Spring Trustees, 23 Barb.
103, two of the three judges held that a cul-de-sac could not be a highway. They
based their decisions upon what they supposed to be the common law. In the case
of People v. Kingman, 24 N.Y. 559, the court of appeals disapproved the decision i.
Holdane v. Cold Spring Trustees, 23 Barb. 103, and held that upon principle as wel!
as authority it is no objection to the highway that it is a cul-de-sac; that public
ways with outlet at one end may, and even do, exist. See also People v. Van Al-
styne, 3 Keyes, 35, 37; Saunders v. Townsend, 26 Hun, 308, 309.

_ _ Private roads. A way opened opened by the owners of private lands for the accom-
modation of the lands through and to wuich :’. leads, although !2id out as a publie
road, must be deemed a private way, even if the public are permitted to travel over
it, unless it be shown to have been dedicated to, and accepted and adopted by the
public as a public highway. Palmer v. Palmer, 150 N. Y. 139, 44 N. E. 966.

A private approach from a highway, which approach has a span of less than five

feet is to be deemed a part of the highway. Ferguson v. Town of Lewisboro (1914),
213 N. Y.'141, 107 N. E. 53.

3. The present Highway Law, by providing for the construction of State highways
at the sole expense of the State, creates a class of highways not contained in the
former law. The county highways are the same as those formerly constructed under
the so-called Higbie-Armstrong Act (1898, ch. 115, and the acts amendatory
thereof) at the joint expense of State, county and town. After the determination
of the highways to be constructed as State and county highways, all other highways
outside of incorporated villages constituting separate road districts are to be known
as town highways, subject to the control of towns, as provided in the Highway Law.
790 HIGHWAYS AND BRIDGES.

Highway Law, § 3.

county as such in counties in which the county road system has been or
may be adopted.

4, Town highways are those constructed, improved or maintained by
the town with the aid of the state, under the provisions of this chapter,
including all highways in towns, outside of incorporated villages consti-
tuting separate road districts, which do not belong to either of the three
preceding classes. [Highway Law, § 3, as amended by L. 1910, ch. 567,
L, 1912, ch. 83, and L, 1916, ch. 578.]
DEPARTMENT OF HIGHWAYS. "91

Bxplanatory note.

CHAPTER LV}.

DEPARTMENT OF HIGHWAYS.

EXPLANATORY NOTE.

State Department of Highways.

The Highway Law of 1908 transferred to the State Commission of
Highways, the powers and duties formerly possessed and exercised by
the State Engineer. These powers and duties were extended by provid-
ing for more effective supervision of highways built and maintained by
the towns and counties with the aid of state money, and the exclusive con-
trol of highways built entirely by the state. The State Commission, as
constituted by ch. 80 of L. 1913, now consists of a single commissioner,
known as the Commissioner of Highways. He possesses all the powers
and performs the duties of the State Commission of Highways. This
chapter treats of the membership and officers and employees of this com-
mission, and their general powers and duties.

Powers in Respect to Town and County Highways.

The commission has the general supervision of all highways and
bridges constructed or maintained in whole or in part by the aid of state
moneys. Since all towns receive state moneys to aid in caring for their
highways, it follows that the commission may control the several town
officers in the performance of their duties in respect to such highways.
The commission prescribes rules and regulations governing the per-
formance of official duties by such officers. and provides for the enforce-
ment thereof. The commission and its officers must aid town and
county superintendents in the performance of their duties, and advise
with them as to the construction and maintenance of highways and
bridges. All of these powers tend to make the commission a controlling
factor in the administration of highway laws. All town and county
officers having duties to perform with respect to the highways and
bridges must be guided by the judgment of the commission. The
effect of this summary power vested in the commission is to harmonize
792. HIGHWAYS AND BRIDGES.
Highway Law, §§ 10, 11,

highway administration, and establish a uniform state system of high-
ways.

{Highway Law, art. II.]

Srction 1. Department of highways established.
2. State commission of highways; deputies, secretary and other clerks,
officers and employees.
3. Oath of office; undertakings.
4. Principal office; official seal; stationery.
5. Salaries and expenses.
5a. Deputy commissioners, secretary and chicf auditor of the department.
6. General powers and duties of the commission.
7. Division cf state; division enginecrs.
8. Duties of divisien engineers.
8a. Appointment of officers, clerks and employees.
9. Blark forms and town accounts.
10. Examination of accounts and records.
11. Condemnation of bridges.
12. Estimate of cost of maintenance of state and county highways.
13. Rules and regulations for state and county highways.

13a. Temporary closing of highways.
14. Patented material or articles.

§ 1. DEPARTMENT OF HIGHWAYS ESTABLISHED.

There is hereby established a department, to be known as a department
of highways, which shall be constituted as provided in this chapter, and
shall have the powers and perform the duties hereinafter prescribed.
|. Highway Law, § 10; B. C. & G. Cons. L., p. 2171.]

§ 2. STATE COMMISSION OF HIGHWAYS; COMMISSIONER OF HIGH-
WAYS.

The state commission of highways is continued. Such commission
skall consist of a single commissioner, to be known as the commissioner
of highways, who shall be the head of the department of highways. Such
commissioner shall be appointed by the governor by and with the ad-
vice and consent of the senate for a term of five years. He shall devote
all of his time to the duties of his office. The governor may remove such
commissioner for inefficiency, neglect of duty or misconduct in office. A
copy of the charges against him shall be served upon such superintendent
and he shal] have an opportunity of being publicly heard in person or
by counsel in his own defense upon not less than a len days’ notice. If
DEPARTMENT OF HIGHWAYS. 793

Highway Law, §§ 12, 13, 18.

such commissioner shall be removed, the governor shall file in the office
of the secretary of state a complete statement of all charges made against
such commissioner and his findings thereon, tegether with a complete
record of the proceedings. The commissioner of highways shall receiva
an annual salary to be fixed by the governor of not exceeding ten thou-
sand dollars. Wherever by the terms of this chapter or other statute,
action by the commission is required to be taken by resolution or in any
manner by the concurrence of the members of* a majority, such action
shall, when the commission consists of a single commissioner, be taken
by a formal order of such commissioner entered in the records of the de
partment of highways, [Highway Law, § 11, as amended by L. 1911,
ch. 646, and L. 1913, ch. 80; B. C. & G. Cons, L., p. 2171.]

§ 3 OATH OF OFFICE; UNDERTAKING.

The commissioner of highways shall, before entering upon the duties
of his office, take and subscribe the constitutional oath of office and exe-
cute an undertaking in the sum of twenty-five thousand dollars, to be
approved by and filed with the comptroller and renewed as often as the
governor may require. Such undertaking shall be to the effect that he
will faithfully discharge the duties of his office and promptly account for
and pay over all moneys or property received by him as such commis-
sioner of highways in accordance with law, or in default thereof that the
parties executing such undertaking will pay all damages, costs and ex-
penses resulting from such default. [Highway Law, § 12, as amended
by L. 1911, ch. 646, and L, 1913, ch. 80; B. C. & G. Cons. L., p. 2172]

§ 4. PRINCIPAL OFFICE; OFFICIAL SEAL; STATIONERY.

The principal office of the department shall be in the city of Albany
in rooms provided by the trustees of public buildings. The department
shall have an official seal, to be prepared by the secretary of state, as
provided by law. The offices of the department shall be supplied with
nacessary postage, stationery and office furniture and appliances, to be
paid for out of moneys appropriated therefor, and it shall have prepared
for it by the state, such books and blanks as are required for carrying on
the business of the department. [Highway Law, § 18; B. C. & G. Cons.
L., p. 2173.]

§ & SALARIES AND EXPENSES.
All engineers, superintendents, clerks, officers and other employees of
the department shall receive the compensation fixed by the commissioner

 

*So in original.
794 HIGHWAYS AND BRIDGES.
Highway Law, § 14.

of highways except as otherwise defined and established in this chapter.
In the discharge of their official duties the commissioner of highways,
deputies, secretary, engineers, and the clerks, officers and other employees
of the department shall have reimbursed to them their necessary travel-
ing expenses and disbursements. Such salaries and expenses shall be
paid by the state treasurer upon the warrant of the comptroller, out of
moneys appropriated therefor in the same manner as the salaries and
expenses of other officers, clerks and employees are paid. [Highway
Law, § 18, as amended by L. 1911, ch. 646, and renumbered and
amended by L. 1918, ch. 80; B. C. & G. Cons. L., p. 2173.]

§ 5a. DEPUTY COMMISSIONERS, SECRETARY AND CHIEF AUDITOR OF
THE DEPARTMENT.

The commissioner of highways shall appoint a secretary and chief
auditor of the department and three deputy commissioners. Each of the
deputy commissioners shal] have had practical experience in actual build-
ing, construction and maintenance of highways and be familiar with the
operation and effect of state statutes relating to highways and bridges.
One of such deputies shall be a practical civil engineer, to be known as
the first deputy, and his duties shall relate to the plans, specifications and
execution of all contracts pertaining to state and county highways; one
of such deputies shall be known as the second deputy, and his duties
shall relate to the maintenance of state and county highways; one of such
deputies shall be known as the third deputy and his duties shall relate
to the repair, improvement and maintenance of town highways and
bridges. and county roads and roads and bridges on the Indian reserva-
tions. The first deputy shall receive an annual salary of six thousand
dollars. The second and third deputies and the secretary shall each
receive an annual salarv of five thousand dollars. The chief auditor
shall receive an annual salary of five thousand dollars. Each deputy, the
secretary and the chief auditor shall before entering upon the duties of
his office each take and subscribe the constitutional oath of office. Each
deputy, the secretary and the chief auditor shall each execute an under-
taking in the sum of five thousand dollars, to be approved by and filed
with the comptroller and renewed as often as the commissioner of high-
wavs may require. The commissioner of highways, by order filed in the
office of the department, mav at any time designate a deputy to sign on
behalf of the commission such papers and documents as are specified in
such order. The chief auditor shall determine the authorization for and
the accuracy of every expenditure of state funds for highway purposes
and his report thereon, after approval by the commissioner of hichwavs,
DEPARTMENT OF HIGHWAYS. 795

Highway Law, § 15.

shall be transmitted to the comptroller for final audit. Each deputy, the
secretary and the chief auditor shall have such other and further duties
as the commissioner of highways may determine, and shall each be subject
to his direction and control and may be removed by him. [Highway Law,
§ 14, as added by L. 1913, ch. 80.]

§ 6. GENERAL POWERS AND DUTIES OF THE COMMISSIONER OF
HIGHWAYS.

The commissioner of highways shall!

1. Have general supervision of all highways and bridges which are
constructed, improved or maintained in whole or in part by the aid of
state moneys.

2. Prescribe rules and regulations? not inconsistent with law, fixing
the duties of division engineers, resident engineers, district, county and
town superintendents in respect to all highways and bridges and deter-
mining the method of the construction, improvement or maintenance of
such highways and bridges. Such rules and regulations shall, before tak-
ing effect, be printed and transmitted to the highway officers affected thereby.

3. Compel compliance with laws, rules and regulations relating to such
highways and bridges by highway officers and see that the same are carried
into full force and effect.

4, Aid district, county and town superintendents in establishing grades,
preparing suitable systems of drainage and advise with them as to the
construction, improvement and maintenance of highways and bridges.

5. Cause plans, specifications and estimates to be prepared for the
repair and improvement of highways and the construction and repair of

 

1. Many of the powers and duties prescribed in this section were formerly
possessed by the State Engineer. Former Highway Law, sec. 55c, as
amended by L. 1897, ch. 743, required town officers to comply with the
directions and rules of the State Engineer in respect to highway improve-
ments, under L. 1897, ch. 115, and the acts amendatory thereof. L. 1907,
ch. 717, required the State Engineer to collect information and compile
statistics, determine as to methods of construction and consult with and
aid local officers and hold meetings in each county. All of these duties
are retained in this section to be exercised by the commissioner of highways.

The supervisory power of the state commissioner of highways involves
wide discretion as to the construction d maintenance of the highway
system of the state, and the exercise of this discretion necessarily affects
the manner in which the funds to be raised by the state, counties and towns
relating to such construction and maintenance shall be collected and dis-
bursed. People ex rel. Carlisle v. Supervisors of Onondaga (1916), 217
N. Y. 424, 111 N. E. 1057.

The state commissioner of highways in building public roads is an
independent public officer, and particularly so when he constructs no roads
but merely engages his subordinates in drafting, surveying and mapping,
that roads may be built by others. Babcock v. State (1919), 190 App.
Div. 147, 180 N. Y. Supp. 3.

Preparation of new plans and specifications for completion of war con-
tract terminated under L. 1919, ch. 459, § 2. Where the commissioner
of highways ascertains that the original plans and specifications of any
war contract terminated under L. 1919, ch. .459, § 2, are inadequate, and
that it would be a waste of the highway funds to complete such con-
struction thereunder, he may change the type of construction and for
that purpose prepare new plans and specifications therefor. Opinion of Atty.
Gen. (1919), 20 State Dept. Rep. 233.

2. Highway Law, section 24, post, p. 800a, authorizes the commissioner
of highways to make rules and regulations for the use of State and county
hiehrro~s by the traveling public. The rules and regulations to be adopted
under the above subdivision pertain entirely to the duties of highway officers.
796 HIGHWAYS AND BRIDGES,
Highway Law, § 16.

bridges, when requested so to do by a district, county or town superin-
tendent.

6. Investigate and determine upon the various methods of road con-
struction adapted to different sections of the state, and as to the best
methods of construction and maintenance of highways and bridges.

7. Make an annual report to the legislature on or before February
fifteenth, stating the condition of the highways and bridges, the progress
of the improvement and maintenance of state, county and town highways,
the amount of moneys received and expended during the year, upon
highways and bridges and in the administration of his olhee, and also
containing such matters as in his judgment should be brought to the at-
tention of the legislature, together with recommendations as to such
measures in relation to highways as in his judgment the vulblic interests
require.

8. Compile statistics relating to the public highways throughvut the
state, and collect such information 4 in regard thereto as he shall deem
expedient.

9. Cause public meetings to be held at least once each year, in each
district or county, for the purpose of furnishing such general informa-
tion and instructions as may be necessary, regarding the construction, im-
_provement or maintenance of the highways and bridges and the applica-
tion of the highway law, and the rules and regulations of the department,
and also for the purpose of hearing complaints. He shall notify the dis-
trict or county superintendent of his intention to hold such meeting or
meetings, specifying the date and the place thereof.*

10. Aid at all times in promoting highway improvement throughout
the state, and perform such other duties and have such other powers in
respect to highways and bridges as may be imposed or conferred on him
by law.

11. Approve and determine the final plans, specifications and esti-
mates for state and county highways upon the receipt of the report and
recommendations of the county or district superintendent, as provided
herein, and transmit the same in the case of a county highway to the
board of supervisors. After the approval of such plans, specifications and
estimate by the board of supervisors and the return thereof to the com-

 

8. By Highway Law, sec. 33, subd. 7, post, p. 806, the county or district super-
intendent is directed to notify each town superintendent and supervisor of the time
and place where such meetings are to be held. By subd. 10 of sec. 47, post, p. 820,
it is made the duty of the town superintendent to attend such meetings, and his
expenses necessarily incurred thereby are a town charge.
DEPARTMENT OF HIGHWAYS.

=t
-I

Highway Law, § 16.

missioner of highways, in the case of a county highway and after his
final determination in respect thereto in the case of a highway, the Com-
missioner of highways shall cause a contract to be let for the construc-
tion or improvement of such state or county highway after due adver-
tisement,

12. Prepare tables showing the total number of miles of highways in
the state, and county, and file a copy of the same in the office of the comp-
troller.’

18. Divide the state into not more than nine divisions and assign a
division engineer to the charge of each, subject to his direction, supervi-
sion and:control. In making such division no county shall be divided,

14. Make and file with the comptroller a schedule of salaries of all
officers, clerks, employees, engineers and superintendents, appointed by
him, whose salaries are not fixed by law.

15. Inquire into the official conduct of all subordinates of the depart-
ment.

16. Direct and cause to be made such repairs of state and county high-
ways as he deems necessary, within the estimates and appropriations
made therefor. [Highway Law, § 15, as amended by L. 1913, ch. 80;
B.C. & G. Cons. L., p. 2173.]

§ 7. DIVISION OF STATE; DIVISION ENGINEERS.

The commissioner of highways shall appoint a division engineer for
each of the divisions of the state. Each person so appointed as a divi-
sion engineer shall be a practical civil engineer having had actual ex-
perience in the construction and maintenance of highways and bridges.
The salary of such engineers shall be five thousand dollars per annum.
An office may be maintained by such division engineers at a convenient
place within each division as authorized by the commissioner of high-
ways. The salary and expenses of such engineers shall be paid out of
moneys appropriated therefor upon the requisition of the commissioner
of highways. Each division engineer shall, before entering upon the
duties of his office, take and subscribe the constitutional oath of office

 

4, The tables of highway mileage are very important. The amount of State aid
to the towns is calculated therefrom, since such amount depends upon the assessed
valuation and mileage of the towns. See Highway Law, sec. 101, post, p. 867. The
proportionate amount to be paid by county and town for the construction of county
highways.is ascertained by dividing the total amount of assessed valuation of tax-
able property in county and town by the total mileage of highways therein. See
Highway Law, sec. 141, post, p. 889.
198 HIGHWAYS AND BRIDGES.
Highway Law, § 17.

and execute an official undertaking in the sum of ten thousand dollars
to be approved by and filed with the comptroller and renewed as often
as the commissioner of highways may require. The commissioner of
highways, subject to the provisions of the civil service law, may
remove such division engineers.* [Highway Law, § 16, as amended
by L. 1911, ch. 646, L. 1913, ch. 80, and L. 1919, ch. 467.]

§ 8. DUTIES OF DIVISION, ENGINEERS,

Each division engineer shall devote his entire time to the performance of
his duties. He shall, under the direction and control of the commissioner
of highways,

1. Make or cause to be made all surveys, maps, plans, specifications and
estimates necessary or required for the improvement, construction and main-
tenance of state and county highways within the division for which he is
appointed,

2. Examine, revise and approve all plans, specifications and estimates
and proposals for the improvement, construction and maintenance of high-
ways and bridges within his division, which may be submitted by the commis-
sioner of highways, pursuant to the provisions of this chapter, or the rules
and regulations of such commissioner.

8. Examine and inspect, or cause to be examined and inspected, the
work performed on any highways, and report to the commissioner of high-
ways as to whether the’ work has been done in accordanec with the plans
and specifications and contracts made therefor.

4. Approve and certify to the monthly estimates or allowances for work
being performed under any contract let for the construction, improvement
or maintenance of state and county highways.

5. Inspect, or cause to be inspected, all state and county highways, and
report from time to time in respect thereto, when required by the commis-
sioner of highways.

6. Consult with district, county and town superintendents and other
highway officers in respect to the proper methods of constructing, improving
and maintaining highways and bridges.

7. Perform such other duties as may be prescribed by the commissioner
of highways.

8. Have charge of the construction, reconstruction, maintenance and
repair of state and county highways in his division, under the supervision
of the deputy having jurisdiction thereof.

9. When the corners of the boundaries of counties, cities, villages and
subdivision lots of towns shall have been located, as provided in subdivision
nine of section thirty-three of this chapter, it shall be the duty of the
division engineer to accurately set a monument at such corner, except in
cases where the improvement of such highway or road has been completed
prior to the location of such corner as provided in such subdivision. Such
monument shall be of some durable material and shall be so set that the
top thereof shall be on a level with the surface of such improved highway
or road. The cost and expense of such monuments and the setting of the
same shall be a state charge. [Subd. added by L. 1916, ch. 217.] [High-
way Law, § 17, as amended by L. 1911, ch. 646, L. 1913, ch. 80, and
L. 1916, ch. 217; B. C. & G. Cons. L., 2d ed., p. 3375.]

 

4a. An assistant engineer in the department of the commissioner of high-
ways working under the direction of the state commissioner of highways,
is not, while so engaged, an agent of the state, and where claimant, an
assistant engineer in such department, was engaged in making preliminary
surveys and maps for the construction, under contract, of a state high-
way along the cliffs of Storm King Mountain at the time he received the
injuries on which his claim is based, the relation of master and servant
did not exist between him and the State. Babcock v. State (1919), 190
App. Div. 147, 180 N. Y. Supp. 3.
DEPARTMENT OF HIGHWAYS. "99
Highway Law, 8§ 19, 20, 21.

§ 8-2, APPOINTMENT OF OFFICERS, CLERKS AND EMPLOYEES,

The commissioner of highways shall appoint such resident engineers,
district superintendents, clerks, officers and employees as may be re
quired to carry out the provisions of this chapter, subject to the civil ser-
vice laws and the provisions of this chapter, within the amount appro-
priated therefor, unless the appointment of such clerks, officers or em-
ployees is otherwise provided for herein. District superintendents, ap-
pointed as provided in this chapter, shall be appointed from lists pre-
pared from examinations which shall test their qualifications for the
actual construction and maintenance of highways and their executive ca-
pacity, rather than their scientific attainments. Clerks, other than those
employed in the principal office of the commissioner of highways, inspec-
tors and other employees in the department whose duties pertain to the
maintenance of highways, shall likewise be selected from lists prepared
from examinations testing their general knowledge of the highway law
and of the practical construction of highways. Inspectors of construc-
tion, other than engineers and levelers, shall be selected from lists
similarly prepared, except that they shall be residents of the county
within which the highway constructed or ‘proved is located. To the
end that the employees of the department of highways engaged in the
work of constructing, improving or maintaining highways under the pro-
visions of this chapter may be practical highway builders, the commis-
sioner of highways is authorized to indicate to the civil service commis-
sion the relative value which should be given to experience and scientific
attainments. The commissioner of highways, subject to the provisions
of the civil service law. may remove the resident engineers, district su-
perintendents, clerks. officers and employees of the departments. [High-
way Law, § 19, as added by L. 1913, ch. 80.]

§ 9% BLANK FORMS AND TOWN ACCOUNTS.

The commissioner of highways shall prescribe and furnish blank forms
of orders, reports and accounts and blank books, whenever in his judg-
ment they are required for the convenience of his office and of highway
officers. [Highway Law, § 20, as renumbered and amended by L. 1918,
ch. 80; B. C. & G. Cons. L., p. 2176.]

§ 10. EXAMINATION OF ACCOUNTS AND RECORDS.

The commissioner of highways may, at such times as may be deemed
expedient, cause an examination of all accounts and records kept as re
quired by this chapter, and it shall be the duty of all county and town
800 HIGHWAYS AND BRIDGES.

Highway Law, § 22.

officers to produce all such records and accounts for examination and
inspection, at any time on demand of a representative of the commis-
sioner of highways.> [Highway Law, § 21, as renumbered and amend-
ed by L. 1913, ch. 80; B. C. & G. Cons. L., 2d ed., p. 3377.]

§ 11. CONDEMNATION OF BRIDGES.

The commissioner of highways shall cause an inspection to be made
of any bridge which is reported to be unsafe for public use and travel
by the district or county superintendent, the town superintendent, or
five residents of the town, or by the division engineer in the case of
a bridge located on a state or county highway. If such bridge is
found to be unsafe for public use and travel the commissioncr of
highways shall condemn such bridge, and notify the district or county
superintendent, the town superintendent and the supervisor of the
town, of that fact. The district or county superintendent shall either
prepare or approve plans, specifications and estimates for the con-
struction or repair of such bridge without delay. The town shall
provide for the construction or reconstruction of such bridge, as pro-
vided for by section ninety-three of this chapter.6 [Highway Law,
§ 22, as renumbered and amended by L. 1913, ch. 80, and amended by
LL. 1922, ch. 371.]

 

5. Torn aecounts of money received and expended for highways, bridges,
machinery, tools and implements, the removal of obstructions caused by snow, and
for miscellaneous purposes, are to be kept in the manner prescribed by the com-
mission. See sec. 108. post. All of tlese accounts under the above sections are
to be open to examination and inspection by the commission or any of its repre-
sentatives at all reasonable times.

6, The commission, under this section, may condemn a bridge which has become
unsafe. When notified by the commission it becomes the duty of the town super-
intendent to cause the bridge to be repaired or reconstructed in accordance with the
plans and specifications prepared or approved by the district or county superin-
tendent. If more than $1,500 is required for the purpose, a proposition must be
submitted at a town meeting to authorize the raising of a tax. Hichway Law,
sec. 94, subd. 4, post. p. 861; sec. 95, post, p. 862. If the proposition be adopted
the town board may authorize the supervisor to borrow money in anticipation of the
taxes to be levied in pursuance of the proposition adopted at such town meeting.
A proposition may also be submitted authorizing the town to bond for the amount
required to rebuild or repair the bridge condemned by the commission. Highway
Law. sec. 97, post, p. 863.
HIGHWAYS AND BRIDGES. R00a
Highway Law, §§ 23, 24, 25.
§ 12. ESTIMATE OF COST OF MAINTENANCE OF STATE AND COUNTY
4 HIGHWAYS.

The commissioner of highways shall annually cause to be inspected
all improved state and county highways, either by the division en-
gineer, or the district or county superintendent of the district or
county in which such highways are situated and shall require a com-
plete report of such inspection which shall show in detail the condition
of the highway inspected, the necessary work to be performed in the
repair and maintenance of such highways, and the estimated cost
thereof. The commissioner of highways shall revise said estimates and
annually report to the legislature his estimated cost of such repair
and maintenance for the ensuing year, as so revised, in detail by
counties.’ [Highway Law, § 23, as amended by L. 1912,, ch. 83, and
renumbered and amended by L. 1918, ch. 80; B. C. & G. Cons. L.,
2d ed., p. 3378. |

§ 13. RULES AND REGULATIONS FOR STATE AND COUNTY HIGHWAYS.
The commissioner of highways is hereby empowered to make rules
and regulations from time to time for the protection of any state or
county highway or section thereof. He may prescribe the width of
tires to be used on such highways and he may prohibit the use of
chains or armored tires by motor vehicles upon such highways, and any
disobedience thereof shall be punishable by a fine of not less than
ten dollars and not exceeding one hundred dollars, to be prosecuted
for by the commission of highways and all fines paid to the state
treasurer to the credit of the fund available for the maintenance of
state and county highways. [Highway Law, § 24, as renumbered
and amended by L. 1913, ch. 80, and amended by L. 1922, ch. 371.]

§ 13a. TEMPORARY CLOSING OF HIGHWAYS.

The commissioner of highways may temporarily close any portion
of a state or county highway to any vehicle with a gross weight of
over four tons when in his opinion such highway would be materially
injured by the operation of any such vehicle thereon. Such closing
shall take effect upon the erection of a suitable notice at each end of

 

7. Appropriations for maintenance. By Highway Law, sec. 171, post,
p. 901, it is provided that there shall be annually appropriated for the
maintenance and repair of State and county highways an amount sufficient
to provide therefor, based upon the estimates prepared and submitted by
the commission to the Legislature, as provided in this section. The object
of this section is to provide a basis for the annual appropriation for the
maintenance of State and county highways.

8. The commission may adopt rules and regulations prescribing the duties
of highway officers. Highway Law, sec. 15, sub. 2, ante. p. 795.
800b DEPARTMENT OF HIGHWAYS.
Highway Law, § 25.

the section of highway to be closed, and a notice that such highway
is closed shall be published in a newspaper in the county where the
highway is situated. The posted highway shall remain closed until
the removal of the notices as directed by the commission. A violation
of this section shall constitute a misdemeanor punishable by a fine
of not less than one hundred nor more than five hundred dollars or
by imprisonment for not exceeding thirty days or by both such fine
and imprisonment to be prosecuted for by the commission, and all fines
collected as provided herein shall be paid to the state treasurer to
the eredit of the fund available for the maintenance of state and
county highways. [Highway Law, § 24-a, added by L. 1922, ch. 371.]

§ 14. PATENTED MATERIAL OR ARTICLES.

In the construction, maintenance or repair of state or county high-
ways, no patented material or article or any other material or article
shall be specified, contracted for or purchased, except under such eir-
cumstances that there can be fair and reasonable opportunity for
competition, the conditions to secure which shall be prescribed by the
commissioner of highways. [Highway Law, § 25, as added by L.
1913, ch. 80.]

 

9. Liquid asphalt. A producer of liquid asphalt, which answers all the
tests prescribed in specifications for the construction of highways, except
that they call for a solid asphalt, which is produced only by a single com-
pany and its subsidiaries, has a sufficient special interest to authorize a
suit upon its part to enjoin the Highway Commissioner from letting con-
tracts under such specifications. Warner-Quinlan Asphalt Co. v. Carlisle,
158 App. Div. 638.
DISTRICT OR COUNTY SUPERINTENDENTS, 801
Bxplanatory note,

CHAPTER LVI.

DISTRICT OR COUNTY SUPERINTENDENTS.

EXPLANATORY NOTE.

County Superintendents.

County superintendents of highways take the place of county
engineers under the former law. The board of supervisors of each
county may appoint a county superintendent of highways, and fix his
salary. If such officer is not appointed, the county is included in a
district with other counties, and a district superintendent of highways is
appointed by the State commission of highways.

District Superintendents.

This office is new under the Highway Law of 1909. The law
authorizes the commission to establish districts to be made up of counties
which have not appointed county superintendents. District superin-
tendents are appointed by the commission and are removable at its
pleasure. The salaries are fixed by the commission, and the amount
thereof is apportioned among the counties in the district according to
the number of highways in each district. The part apportioned to
each county must be levied and collected as other county charges.

Powers and Duties.

The powers and duties ef eounty and district superintendents are
prescribed by the Highway Law, § 33, as amended by L. 1910, ch. 567,
and L, 1911, ch. 646, supplemented by rules and directions made by the
commission. The rules and directions in respect to the duties of such
officers are included in the notes to this chapter.

[Highway Law, art. ITT.}
SroTIon 1. Appointment of county superintendents.
2. District superintendents; appointment and salaries.
3. Removal of county superintendents.
4. General powers and duties of district or county superintendents.
802 HIGHWAYS AND BRIDGES.
Highway Law, §§ 30-32.

§ 1. APPOINTMENT OF COUNTY SUPERINTENDENT.

The board of supervisors of any county may appoint a county superintendent,
determine the amount of the bond which he shall give, fix his salary, and
provide for the payment of all the necessary expenses incurred while in the
performance of his duties, which salary and expenses shall be a county charge,
and may remove such county superintendent for malfeasance or misfeasance
in office, upon written charges, after an opportunity to be heard, not less than

_five days after the service upon such superintendent of a copy of such charges.!
The term of office of each superintendent shall be four years unless sooner
removed by the board of supervisors as above provided, or by the commission
as hereinafter provided. [Highway Law, § 30, as amended by L. 1910, ch. 567,
in effect June 21, 1910.]

§ 2. DISTRICT SUPERINTENDENTS; APPOINTMENT AND SALARIES.

If the board of supervisors of any county shall fail to appoint a county super-
intendent, the commission shall appoint a county superintendent from the
eligible list of the county, and fix his selary, which, together with his expenses,
shall be a county charge, payable monthly, or, in its discretion, place such
county in a district with such other counties as they deem best and appoint a
district superintendent therefor. A county may be divided, but no district shall
contain more than five thousand miles of public highways. Such district
superintendents may be removed by the commission at its pleasure. The com-
mission shall fix the salaries of such superintendents. Such salaries, together
with expenses, shall be paid monthly in the first instance by the state treasurer
upon the warrant of the comptroller and the amount thereof shall be annually
apportioned by the commission among the counties contained in the district,
in proportion to the number of miles of public highways of such county and
in such district. The comptroller shall certify the amount so apportioned to
the board of supervisors of each of such counties, and such board shall annually
levy and cause to be collected as a county charge the proportionate part of
such salary, and the treasurer of each such county shall pay the sum so raised

‘into the state treasury.1@ [Highway Law, § 31, as amended by L. 1910, ch. 224,
in effect May 5, 1910.]

§ 38. REMOVAL OF COUNTY SUPERINTENDENT.

The commission mzy remove a county superintendent for inefficiency,
neglect of cuty or misconduct in office, upon written charges after an op-
portunity of being publicly heard in his defense. A copy of such charges

 

1. A pill for services of counsel employed by the county superintendent in a pro-
ceeding to remove a town superintendent is not a proper charge against the state.
But, if no county attorney has been appointed, it may be a proper charge against
the county. Rept. of Atty. Genl., May 3, 1911.

Review of proceedings; reinstatement. Certiorari may be brought to review the
proceedings of a board of supervisors in removing a county superintendent of high-
ways, pursuant to this section, for malfeasance in office by reason of the receipt by
him of moneys from a town for the preparation of plans and specifications for the
improvement of a highway. Evidence examined, and held, that, although the county
superintendent may have misconceived his rights, he should be reinstated. People
ex rel. Seaman y. Cocks (1912), 149 App. Div. 883, 134 N. Y. Supp. 808.

Salary of superintendent. The board of supervisors has the absolute and exclusive
right to appoint the county superintendent and to fix his salary and provide for the
payment of his necessary expense, although such salary at the time of the appoint-
ment exceeds the salary stated in the notice published by the civil service commission
for the competitive examination of candidates. MacDonald v. Ordway (1916), 219
N. Y. 328, 114 N. E. 386.

la. Salary and expenses of county superintendent. Under this section of the
Highway Law, as amended in 1910, the board of supervisors, being authorized to fix
the salary of the county superintendent of highways and to provide for the payment
of his expenses, has implied power to increase the salary of such superintendent
and to provide for additional expenses where there is an unsual increase in the
dtuies to be performed by him. Porter v. Fletcher, 153 App. Div. 470.
DISTRICT OR COUNTY SUPERINTENDENTS. 803
Highway Law, § 33.

shall be personally served upon such superintendent and he shall be given
not less than five days’ notice of the time and place of the hearing. If
upon such hearing it appears that the charges are sustained, the commission
shall remove such superintendent and forthwith serve notice thereof by
mail upon the superintendent and upon the chairman and clerk of the
board of supervisors of the county for which he was appointed. Such
notice shall state specifically the grounds for such removal. The record
of the proceedings upon such hearing shall be filed in the office of the
commission. The commission shall appoint a district superintendent for
such county or cause it to be added to some other district, and it shall
thereupon be made subject to the jurisdiction of the district superintendent
thereof until the board of supervisors shall appoint a new county superin-
tendent to fill the vacancy caused by such removal. [Highway Law, §
32; B. C. & G. Cons. L., p. 2178.]

§ 4. GENERAL POWERS AND DUTIES OF DISTRICT OR COUNTY
SUPERINTENDENTS.

The district or county superintendent appointed as provided in this
article shall, subject to the rules and regulations of the commission * and
subject to the supervision of the state superintendent of highways:

 

la, Rules and regulations adopted by the commission may control the
district or county superintendent in the performance of his duties. High-
way Law, sec. 15, subd. 2, ante, p. 596.

The following Rules are in force October 1, 1910:

First.—A district or county superintendent must observe the prescribed rules
and regulations of the commission.

Second.—A district or county superintendent is directed to consult with the
division engineer whenever, in his judgment, he may need advice and assistance
in preparing or approving plans and specifications for the construction of
highways and bridges.

Third.—District or county superintendents are to have no control over state
or county highways unless specifically directed by the commission.

Fourth.—District or county superintendents are directed to investigate as to
when public meetings for a county or district should be held and to notify the
commission, in writing, when and where, in their judgment, such meeting or
meetings should be held.

Fifth.—A district or county superintendent is directed to notify the commis-
sion, in writing, whenever a town superintendent shall have failed to perform
his duty in compliance with the directions for the guidance of town superin-
tendents, and also to notify the commission regarding any malfeasance or mis-
feasance in office.

Sizth.—The district or county superintendent should inspect the highways
and bridges of each town in his district or county at least once each year, and
advise and direct the town superintendent how best to repair, maintain and
improve such highways and bridges.
804 HIGHWAYS AND BRIDGES.
Highway Law, § 33.

1. Have general charge of all highways and bridges within his district
or county and see that the same are improved, repaired and maintained,
as provided by law, and have the general supervision of the work of con-
structing, improving and repairing bridges and town highways in his
district or county.

Seventh.—The district or county superintendent is directed to notify the
supervisors, town superintendents, and town clerks that all reports made by
them must be first forwarded to him for his personal approval before trans-
mitting the same to the commission.

EHighth—tThe district or county superintendent is directed to instruct the
town superintendent when to make a preliminary inspection of the roads which
are to be improved as State or county highways for the purpose of securing
preliminary information to be used in preparing plans and specifications for
such highways, and also how to mark, or in some substantial manner designate
the portions of such highways as may need especial care and attention.

Ninth.—The district or county superintendent is directed to assist the town
superintendent in the erection of monuments showing the boundaries of the
highways and in the establishment of such new monuments as may be re-
quired.

Tenth—The district or county superintendent is directed to furnish or
cause to be furnished to the town board, plans and specifications for the con-
struction of new highways or the permanent improvement or reconstruction
of existing highways, when the cost shall exceed five hundred dollars, provided
that such money is to be expended by contract.

Eleventh.—All contracts for the purchase of stone crushers, steam rollers
or traction engines must be approved by the district or county superintendent
and he must indorse his approval thereon.

Twelfth.—The district or county superintendent must observe the following
ruling or construction of the commission relating to the lease or hire of
machinery as provided by section 50 of the Highway Law, viz.:

Whenever the town board has made a contract with a machinery firm or
corporation calling for a fixed sum to be paid each year for the lease or hire
of a stone crusher, steam roller or traction engine, there must be a certification
upon the order given by the town superintendent to the supervisor for such
lease or hire showing the specific days which he has used the same during the
period. The rate must not be more than ten dollars per day for a crusher or
steam roller or eight dollars per day for a traction engine, and if the number
of days which he has worked the same is not sufficient to pay the amount as
agreed upon with the firm or corporation leasing or hiring the same, then the
balance cannot be paid from the highway fund, but must be paid from the
general fund of the town. If the number of days exceeds the minimum num-
ber of days necessary to furnish at the above rates an amount needed to pay
the machinery company, then the total amount agreed upon as rental shall be
divided by the number of days and the charge per day for a stone crusher,
steam roller and traction engine shall be at that figure and not at the maximum
figure under the provisions of section 50 of the Highway Law.

Thirteenth—A district or county superintendent is directed to first obtain
DISTRICT OR COUNTY SUPERINTENDENTS. 805
Highway Law, § 33.

2. Visit and inspect the highways and bridges in each town of his
district or county, at least once in each year and whenever directed by the
commission, and advise and direct the town superintendent how best to
repair, maintain and improve such highways and bridges.

 

the consent of the commission before he grants permission for an overhead or
underground crossing, or to lay and maintain drainage, sewer and water pipes
in grounds within any portions of a state and county highway.

Fourteenth—tThe district or county superintendent is directed to assist the
town superintendent by directing him how, or by furnishing him with proper in-
formation so that he may properly measure all the highways of his town in
accordance with the directions which have been furnished him by the com-
mission.

Fifteenth—tThe district or county superintendent is directed to carefully
consider the fact that the traveling public must not be inconvenienced on
account of the lack of care or inattention on the part of a contractor con-
structing or improving a State or county highway, or a town superintendent
in performing the same class of work in not providing a temporary highway.

Sizteenth.—The district or county superintendent is directed to either pre-
pare, or cause to be prepared, plans and specifications for the erection of
bridges, except that if a bridge to be repaired or rebuilt is one which has
been condemned by the commission the same shall be repaired or rebuilt in
accordance with plans and specifications prepared and approved by the com-
mission. ,

Seventeenth.—The district or county superintendent is directed to carefully
examine the preliminary maps, or a copy thereof, of the plans and specifica-
tions for either a State or county highway which shall be presented to him
by the commission.

EighteenthIn the construction and improvement of county highways, in
cases of a supplement contract, the district or county superintendent is directed
to either approve or disapprove of the same.

Nineteenth.—After the completion of a county highway or section thereof,
and after the commission shall have notified, in writing, the district or county
superintendent and the board of supervisors that it will accept the work on
behalf of the State and county within twenty days from the date of such
notice, the district or county superintendent is directed to file, within the time
specified, his acceptance or protest and to secure the acceptance or protest
of the chairman of the board of supervisors of the county.

Twentieth.—The district or county superintendent is'directed, whenever in his
judgment it seems proper, to send a written report to the commission stating
any defects which may appear or any damage which may be done to a State
or county highway, and he is also directed to make such recommendations as
may seem proper to him.

Twenty-first—The district or county superintendent is directed to examine
the various formations and deposits of gravel and stone in his district or county,
for the purpose of ascertaining the materials which are best available and
suitable for the improvement of the highways therein.

Twenty-second.—The district or county superintendent is directed to establish
806 HIGHWAYS AND BRIDGES.
Highway Law, § 33.

2-2. If a county has any county roads as defined by subdivision three of
section three, the county superintendent shall, on or before December first in
each year, prepare and submit to the board of supervisors of such county
a statement of the amount necessary to be raised by the board of super-
visors for the construction, improvement and maintenance of such county
roads for the ensuing year, showing the amount by towns and as a total,
and the location where any permanent repairs are required to be made.
[Subd. inserted by L. 1910,ch. 567%, in effect June 21, 1910.]

3. Examine the various formations and deposits of gravel and stone
in his district or county, for the purpose of ascertaining the materials
which are best available and suitable for the improvement of highways
therein, and when requested by the commission submit samples of such
formations and deposits and make a written report in respect thereto.

4. Establish, or cause to be established, such grades, and recommend
such means of drainage, repairs and improvements, as seem to him neces-
sary whenever requested by the town superintendent or town board.

5. Approve plans and specification and estimates for the erection and
repair of bridges and the construction and maintenance of town highways.

6. Report to the commission annually, on or before January first in
each year, in relation to the highways and bridges in his district or
county, containing such matter and in such form as may be prescribed
by the commission, and file a duplicate thereof with the clerk of the
board of supervisors. Additional reports shall be made from time to time
when required by the commission in respect to such matter as may be
specified by them. [Subd. 6, as amended by L. 1920, ch. 559.]

7. Whenever a public meeting? for a county or district shall have
been called by the commission he shall cause due notice to be mailed to
each town superintendent and supervisor of the towns under his jurisdic-
tion and give such notice by advertisement as shall be directed by the
commission.

8. Inspect or cause to be inspected, if so directed by the board of
supervisors, each county highway during its construction or improvement,
and certify to the board of supervisors the progress of the work, and report

 

all grades in case of permanent improvement, and recommend means of
drainage, repairs and improvement to the town superintendent or town board.

Twenty-third.—District or county superintendents are directed to report to
the commission annually on or before the fifteenth day of November in each
year.

2. Public meetings are called by the commission, Highway Law, sec. 15,
sub. 9, ante, p. 796; and town superintendents are required to attend; and
their actual and necessary expenses are a town charge, Highway Law, sec. 47,
sub. 10, post, p. 820.
DISTRICT OR COUNTY SUPERINTENDENTS. 807

Highway Law, § 33.

to the commission any irregularities of the contractor or any failure on
his part to comply with the terms of the contract.®

9. Accurately ascertain and locate the corners of the established
boundaries of counties, towns, cities and villages and, where townships
were originally subdivided into lots to accurately ascertain and estab-
lish such lot corners if any such corners will be located within the bounds
of the improved part of any state or county highway or county road.

If the district or county superintendent shall not be a civil engineer
he may hire a competent civil engineer to locate such corners. In
either case he may employ such other assistants as may be necessary, the
cost and expense thereof to be a county charge.

Nothing in this subdivision contained, however, shall be construed
to extend to the location of the corner or other boundaries of city, or
village lots, or farm lands, except as they may be, incidentally, the cor-
ners of the boundaries of counties, towns, cities, villages or original
subdivisions of towns, except, also, that where the corners or boundaries
of city or village lots, or farm lands, have been located and a monument
placed before the improvement of such highway, the owner of such city
or village lots or farm lands may point out to such engineer the location
of such monument, and upon such owner furnishing a suitable monu-
ment, it shall be the duty of such engineer to erect such monument in
the manner hereinbefore provided. [Subd. added by L. 1916, ch. 217.]

10. Perform such other duties as may be prescribed by law, or the
rules and regulations of the commission, (Formerly subd. 9; renum-
bered subd. 10 by L. 1916, ch. 217.) [Highway Law, § 33, as amended
by L. 1910, ch. 567, L. 1911, ch. 646, and L. 1916, ch. 217; B. C. & G.
Cons. L., p. 2179.]

 

3. Inspection of county highways during construction is required of county
and district superintendents, only when requested by boards of supervisors, in which
event they are representative of the county for the purpose of ascertaining whether
the county is getting what it pays for. When such a highway is properly completed
it is provided in section 134, as amended by L. 1911, ch. 646, and L. 1916, oh. 460, that
the board of supervisors is to accept the same, and this inspection will aid the
board in arriving at a proper determination.
808 HIGHWAYS AND BRIDGES.

Explanatory note.

CHAPTER LVITl.

TOWN SUPERINTENDENT; GENERAL POWERS AND DUTIES.
EXPLANATORY NOTE.

Office of Town Superintendent of Highways.

The town superintendent of highways was substituted by the new
Highway Law for the former commissioner of highways. Under the
former law there could be one or three commissioners of highways.
Under the present law there may be but one superintendent of highways,
to be elected or appointed as provided by section 40 and 41 of the
Highway Law.

The provisions of the Town Law, relative to oaths of office, undertak-
ing, eligibility, ete., so far as they are not inconsistent with the High-
way Law, are applicable to the office of town superintendent of high-
ways.

Term of Office ; Compensation; Removal.

Town superintendents of Lighways are elected for terms of two years.
Vacancies are filled for the unexpired terms. Their compensation is
fixed by the town board at not less than two dollars nor more than
five dollars per day. Thev are also entitled to their expenses. They
may be removed by the town board upon charges preferred by the State
commission, or by the district or county superintendent. A hearing
must be had on the charges, and a decision rendered. An appeal may
be taken to the county court, hv either the town superintendent in case of
removal, or the commission or superintendent in case of a refusal to

remove.

General Powers and Duties.
The law prescribes in detail the general powers and duties of the town
TOWN SUPERINTENDENT; POWERS AND DUTIES. 809

Explanatory note.

superintendent. See Highway Law, § 47, as amended by L. 1910, ch.
567, L. 1914, ch. 84, and L. 1915, ch. 322. It will be noticed that the
superintendent is controlled in the performance of such duties by the
rules and regulations of the commission. He succeeds to the common
law and statutory powers and duties of the former commissioners of
highways, except as superseded or modified by the present law. He
remains in all respects a town officer, and is charged generally with the
care and superintendence of the highways of the town, subject to the
control of the commission in the exercise of powers conferred upon it.
His duties in respect to the construction and repair of bridges remain
the same as those of the commissioners of highways under the former
laws.

Effect of State Supervision.

The new law does not materially limit the powers and duties cf town
officers in respect to town highways. But as to county and state high-
ways the commission is supreme and may arbitrarily control the actions
of town superintendents act under the direct supervision of the commis-
sion and its officers.

The office of town superintendent is continued with the powers and
duties in respect to town highways and bridges, formerly belonging
to the office of highway commissioner, modified only so far as is neces-
sary to carry out the new method of administering highway moneys.
The state organization, consisting of commissioners, engineers and
county and district superintendents, is available in aid of the town
superintendents, but none of these officers may intervene to lessen the
responsibility of the town officers for the proper maintenance of the
town highway system. The state commission and district or county
superintendents may insist that the town superintendents perform their
statutory duties, and a failure may be a ground for removal. Reports
respecting highway conditions are required, and the commission may
direct the use of uniform methods of expending and accounting for
highway moneys. All of these statutory requirements are for the
purpose of securing the adoption and application throughout the state of
appropriate and efficient methods of highway construction and main-
tenance. But they are not for the purpose of transferring any of the
powers and duties of the local officers in respect to those highways which
constitute the town system.
810 HIGHWAYS AND BRIDGES.
Highway Law, § 40.
[Highway Law, art. IV.]

Section 1. Election of town superintendent of highways.
2. Submission of proposition for appointment of town superintendent.
2a. Appointment of town superintendents of highways in certain counties,
3. Term of office of town superintendent.
4. Vacancies; office of highway commissioner abolished.
. Deputy town superintendent.
. Compensation of town superintendent and deputy.
. Removal of town superintendent.
. General powers and duties of town superintendent.
9. Contracts for the construction of town highways.
10. Machinery, tools and implements.
11. Town superintendent may hire machinery.
12. Purchase of gravel and stone.
13. Obstructions and their removal,
13a, Removal of snow and ice from highways, culverts and waterways.
14. Temporary obstructions.
15. Removal of noxious weeds and brush within the highways. and of
obstructions caused by snow.
16. Assessment of costs against owners and occupants.
17. Wire fences to prevent snow blockades.
18. Entry upon lands by town superintendent.
19. Damages to owners of lands.
20. Damages for change of grade.
21. Drainage, sewer and water pipes, cattle passes or crossings in
highways.
22. Trees and sidewalks.
23. Expenditures for sidewalks.
24. Allowances for shade trees.
25. Custody of shade trees.
26. Compensation for watering troughs.
27. Credit on private road.
28. Neglect or refusal to prosecute.
29. Erection of guide boards.
30. Measurement of highways and report.
31. Application for service of prisoners.
32. Construction and repair of approaches to private lands.
33. Unsafe toll bridges.
34. Actions for injuries to highways.
35. Liability of town for defective highways.
86. Action by town against superintendent.
37. Audit of damages without action.
38. Closing highways for repair or construction.
39. Adoption: of labor system for removing snow.
40. Assessment of labor for removal of snow.
41. List of persons assessed for removal of snow.
42. District foreman; return and levy of unworked tax.
48..Appeals by non-residents; certain assessments to be separate;
tenant may deduct assessment.

oOnI1 gm oO

§ 1. ELECTION OF TOWN SUPERINTENDENT OF HIGHWAYS.
At the biennial town meeting held after the taking effect of this chapter,
TOWN SUPERINTENDENT; POWERS AND DUTIES. 81i
Highway Law, § 41.

there shall be elected in each town a town superintendent of highways.*
A successor to the town superintendent, so elected, shall be elected at
each biennial town meeting held thereafter in such town, unless the
town shall have adopted as provided in section 41 a resolution that there-
after the town superintendent shall be appointed by the town board
[Highway Law, § 40; B. C. & G. Cons. L., p. 2181.]

§ 2. SUBMISSION OF PROPOSITION FOR APPOINTMENT OR ELEC-
TION OF TOWN SUPERINTENDENT.

Upon the written request of twenty-five taxpayers of any town, made
and filed as provided in the town law, the electors thereof may, at a
special or biennial town meeting, vote by ballot upon a proposition pr>-
viding for the appointment of a town superintendent in such town. Such

 

1. This section supersedes Town Law, sec. 80, ante. The town superintendent
is to take the place of the former commissioners of highways, and after this act
takes effect there can only be but one town superintendent in each town.

References. (For places in this Manual where the sections here referred to
may be found, see Tables of Laws, following Tabie of Contents.) Town superin-
tendents of highways act with the assessors as fence viewers of the town. See Town
Law, sec. 121, ante. As to their powers and duties as fence viewers, see Town Law,
secs. 360-368, ante.

Eligibility of town superintendents. See Town Law, sec. 81, ante.

Oath of office, form of, and when and how to be taken. See Town Law, sec. 83;
Public Officers Law, sec. 10, ante. Effect of failure to take oath. See Public
Officers’ Law, sec. 13, ante.

Undertakings of town superintendents of highways to be executed. See Town
Law, sec. 111, ante. Liabilities of sureties on undertaking. See Town Law, sec. 13,
ante. Effect of undertaking. See Public Officers Law, sec. 12, ante. Effect of
failure to execute. See Public Officers Law, sec. 13, ante.

Resignation of town superintendent may be made to any three justices of the
peace, see Town Law, sec. 84, ante; and should be filed with the town clerk. See
Public Officers Law, sec. 31, ante.

Removal of town superintendent by Appellate Division of the Supreme Court.
See Public Officers Law, sec. 36, ante. ,

Vacancies, how created, see Public Officers Law, sec. 30, ante; how filled, see
Town Law, sec. 130, ante.

Delivery of books and papers by outgoing town superintendent, see Town Law,
sec. 91, ante; proceedings to compel delivery of books and papers, see Code Civ.
Proe., sec. 2471a.

Effect of failure to file oath. The failure of a town superin-
tendent to take and file his oath, as required in § 83 of the Town
Law, as amended. by L. 1916, ch. 340, would not affect the powers and
rights of such superintendent in his official capacity. The failure to file
the oath does not of itself work a forfeiture. Such forfeiture must come
812 HIGHWAYS AND BRIDGES,

Highway Law, § § 41a, 41b.

proposition shall be submitted in the manner provided by law for the submission
of questions or propositions at a town meeting.’ If such proposition be adopted,
the town board of the town shall, upon the expiration of the term of office of
the elected town superintendent, appoint a town superintendent therefor, who
shall take and hold office for the term hereinafter prescribed. Upon like request
the electors of any town in which the office of superintendent of highways is
appointed may, in ‘like manner determine that the superintendent of highways for
such town shall thereafter be elected, as provided in section forty of the highway
law. [Highway Law, §41, as amended by L. 1916, ch. 47; B. C. & G. Cons. L.,
2d Ed., p. 3385.]

Submission of proposition for division of town into highway districts and election
of two town superintendents in the town of Hector. Upon the written petition
of twenty-five taxpayers of the town of Hector, made and filed as provided in the
town law, the electors thereof may, at a special or biennial town meeting, vote
by ballot upon a proposition providing for the division of such town into two high-
way districts and the election of one town superintendent for each district. Such
proposition shall be submitted in the manner provided by law for the submission
of questions or propositions at a town meeting. If such proposition shall be
adopted, the town board of the town shall divide such town into two highway
districts as nearly equal in highway mileage as possible. The present town super-
intendent of highways of such town shall have charge of the district within which
he resides and the town board of such town shall appoint a town superintendent for
the other district who shall hold office until the next biennial town meeting fol-
lowing his appointment, At the next biennial town meeting following the adoption
of such proposition, and biennially thereafter, there shall be elected in said town
of Hector one town superintendent from each of such districts who shall hold office
for the term of two years as hereafter prescribed. Upon like petition the electors
of such town may determine that such town be consolidated into one district and
provide for the election of one town superintendent of highways as provided in
section forty of the highway law. [Highway Law, § 41a, as added by L. 1920,
ch. 374.]

2a. Appointment of town superintendents of highways in certain counties. In
any town in a county having a population of more than three hundred thousand ac-
cording to the last federal or state census or enumeration, adjoining a city of the
first class, having a population of one million and upwards, the town board may by
unanimous vote determine by resolution that, after the expiration of the term of
office of the eletced town superintendent of highways, such offce shall be filled by
appointment by the town board, If such resolution be adopted the town board of
such town shall not more than thirty days before the expiration of the term of the
elected town superintendent of highways appoint a town superintendent of hirch-
ways who shall serve at the pleasure of such town board. [Highway Law, § 41b,
as added by L. 1921, ch. 231.]

 

from some act, judicial or otherwise, which effectually ousts the superintendent and
severs his relation to the office and until then he is practically an officer de jure,
having a defeasible title to the office. Horton v. Parsons, 37 Hun 42. See also
People v. Crissey, 91 N. Y. 616, 635; in re Kendall, 85 N. Y. 302, 305; Foot v. Stiles,
57 N. Y. 399.

2. Submission of proposition. Application for submission of proposition at town
meeting, see Town Law, section 48, ante. Call for special town meeting, see Town
Law, secs. 46, 47, ante.

Effect of vote to make appointive. This section does not mean that the office of
town superintendent becomes permanently appointive when such proposition has
been approved by the electors, and hence at a subsequent election they may again
make the position elective. People ex rel. Dare v. Howell (1916), 174 App. Div. 118,
160 N. Y. Supp. 959.

3. Evidence of election. It is intended by the statute that a public declaration by
the town clerk as to the result of the canvass of the votes cast for a town superin-
tendent of highways, shall be a sufficient certificate and evidence of his election.
Matter of Baker, 11 How. Pr. 418; Matter of Case v. Campbell, 16 Abb. N. C. 270.
TOWN SUPERINTENDENT; POWERS AND DUTIES. 813

Highway Law, §§ 42, 43, 44.

§ 3. TERM OF OFFICE OF TOWN SUPERINTENDENT.

The term of office of a town superintendent elected or appointed, as provided in
this article, shall be two years.3 If such town superintendent be elected at a town
meeting held at the time of a general election, his term shall begin on the first day
of January succeeding his election. If such town superintendent shall have been
elected at a town meeting held at any other time, his term of office shall begin on
the first Monday succeeding his election. If such town superintendent shall have
been appointed pursuant to a proposition adopted, as provided in the preceding
section, his term shall begin on the first day of January succeeding his appointment,
and the town board shall meet prior to that day for the appointment of such town
superintendent. [Highway Law, § 42, as amended by L. 1917, ch. 562, and L. 1918,
ch. 372; B. C. & G. Cons. L., p. 3386.]

§ 4. VACANCIES; OFFICE OF HIGHWAY COMMISSIONER ABOLISHED.

Vacancies in the office of town superintendent shall be filled for the balance of
the unexpired term.4 The office of highway commissioner in each town is hereby
abolished, to take effect on and after November first, nineteen hundred and nine.
Where the office of highway commissioner shall become vacant by expiration of term
or otherwise, after the taking effect of this chapter, and prior to the said first day
of November, nineteen hundred and nine, such vacancies shall be filled for a term
to expire on such date. Highway commissioners in office when this chapter or any
section hereof takes effect shall exercise the power and perform the duties hereby
conferred and imposed upon town superintendents until the said first day of Novem-
ber, nineteen hundred and nine, and until their successors shall have duly qualified,
whereupon such powers and duties shall cease and determine.5 [Highway Law, § 43;
B. C. & G. Cons. L., p. 3387.]

§ 5. DEPUTY TOWN SUPERINTENDENT.

The town board of a town may, in its discretion, upon the written recommenda-
tion of the town superintendent, appoint a deputy town superintendent, to be nomi-
nated by such town superintendent, to assist him in the performance of his duties.5a
Such deputy superintendent shall act as such during the pleasure of the town super-
intendent. [Highway Law, § 44; B. C. & G. Cons. L., p. 3387.]

 

Holding over after expiration of term is authorized by Public Officers’ Law,
§ 5. Except for the authority conferred by this section a town .superintendent of
highways would not be permitted to hold his office after the expiration of his term.
People v. Tieman, 30 Barb. 193. The term ‘‘qualified’’ as used in this section of
the Public Officers Law means to take an oath of office and to file an official under-
taking as required by law. People ex rel. Williamson v. McKinney, 52 N. Y. 374, 380.

4, Vacancies, how created generally, see Public Officers’ L., sec. 30, ante. Ap.
pointments to fill vacancies by town board, see Town Law, sec. 130, ante.

Vacancy caused by non-residence. The office of town superintendent of high-
ways will become vacant upon the officer ceasing to be a resident of the town for
which he was elected or appointed. People v. Board of Education, 1 Den. 647; Peo-
ple v. Hull, 47 N. Y. St. Rep. 91, 94, 19 N. Y. Supp. 536.

A special town meeting cannot be called for the filling of a vacancy in the office
of a town superintendent of highways. People ex rel. Hyde v. Potter, 82 N. Y.
Supp. 649.

Resignations of town superintendents of highways, see Town Law, sec. 84, ante.
Resignation of public officer generally, see Public Officers Law, sec. 31, ante.

5. Time of taking effect. Under sec. 357, subd. 1, of the Highway Law, post,
it is provided that the provisions of section 43 shall take effect immediately so that
highway commissioners in office at the present time are authorized to exercise the
powers and perform the duties conferred upon town superintendents of highways by
the provisions of sections 90, 91, 94, 95, 99 and 100, ante, relating to estimates of
expenditures, duties of the town boards in respect thereto, levy of taxes, etc.

5a. Appointment of Deputy. A town superintendent may not appoint a deputy,
as the power of appointment is vested solely in the town board. Lynch v. Rhinebeck,
210 N. Y. 101, recg. 149 App. Div. 921, 133 N. Y. Supp. 739.
814” HIGHWAYS AND BRIDGES.

Highway Law, §§ 45, 45a, 46.

§ 6. COMPENSATION OF TOWN SUPERINTENDENT AND DEPUTY. —

The town board shall fix the compensation of such superintendent and his deputy
if one be appointed, which shall not be less than two nor more than seven dollars per
day.6 Such town superintendent and his deputy, if any, shall be paid the actual
and necessary expenses incurred by them in the performance of their duties. Such
compensation may be paid by the supervisor monthly, in advance of audit, from
moneys levied and collected for such purpose, on accounts duly verified in the same
manner as town accounts are required by law to be verified. Such accounts for
compensation, together with accounts for expenses incurred by such town superin-
tendent and his deputy, if any, verified as above provided, shall be subject to audit
by the town board at its meeting held annually for the audit of accounts of town
officers, and the balance due, as finally audited by the town board, shall be paid by
the supervisor to such town superintendent, or deputy, if any, from funds available
therefor. [Highway Law, § 45, as amended by L. 1920, ch. 371.]

Compensation of town superintendents in certain counties adjoining
cities of the first class—The town board of any town in a county having a
population of two hundred thousand or less, according to the last federal or
state census or enumeration, adjoining a city of the first class having a popu-
lation of one million or upwards, may by resolution provide that the town
superintendent of highways shall receive an annual salary of not to exceed
twenty-five hundred dollars in lieu of all other compensation. In a town
in which such superintendent shall receive a salary as herein provided, the
compensation provided for in section one hundred and seventy-five of this
chapter for the services of such superintendent shall be paid to the super-
visor of the town for the benefit of the town. [Highway Law, § 45a, as
added by L. 1917, ch. 662.]

§ 7. REMOVAL OF TOWN SUPERINTENDENT.

A town superintendent may be removed by the commission upon written
charges preferred by the town board or the district or county superintend-
ent, for malfeasance or misfeasance in office.” Such charges shall be pre-

 

6. The compensation of a highway commissioner under section 85 of the Town
Law, ante, might have been fixed at not less than two nor more than three dollars
per day. The present Highway Law supersedes such section 85 of the Town Law,
so far as it relates to the office of town superintendent of highways.

State and county highways. The compensation of town superintendents for ser-
vices in respect to the maintenance and repair of State and county highways is
fixed by the commission and is paid from moneys set apart as provided in article
7 of the Highway Law for such maintenance and repair. See Highway Law,
sec. 175, post.

Purchase of Automobile. The purchase and maintenance of an automobile for the
use of a town superintendent of highways is a proper town charge, where it develops
to be for the financial interests of the town, Opinion of State Comptroller (1916),
9 State Dept. Rep. 530.

7. A town superintendent of highways may be removed by the Applellate Division
of the Supreme Court upon application of any citizen, resident of the town. Public
Officers Law, sec, 36, ante.
TOWN SUPERINTENDENT; POWERS AND DUTIES, 815

Highway Law, § 47.

sented in duplicate to the town clerk, one of which shall be filed in his
office, and the other shall be served by him personally upon the town super-
intendent, together with a notice directing him to appear before the com-
missioner or a deputy duly designated at a time and place stated therein.
Such service shall be made at least five days prior to the time specified in
such notice. The commission shall designate the time and place which
shall be within the county of the superintendent for hearing such charges
within ten days after the filing thereof with the town clerk. The com-
mission shall hear evidence in support and in defense of such charges anc
after such hearing shall enter an order in the office of the town clerk either
sustaining or dismissing such charges. The entry of an order sustaining
the charges shall operate as a removal and the town board shall appoint
within four days another person to fill the vacancy caused thereby. The
person so appointed shall hold office for the unexpired term or until the
entry of a final order of.a court of competent jurisdiction determining
that the original town superintendent was wrongfully and illegally removed
and directing his reinstatement. The town clerk shall also notify the com-
mission and the district or county superintendent of the name of the per-
son appointed to fill the vacancy caused by the removal of such town
superintendent. An appeal may be taken by the town superintendent, to
the county court by the filing of a notice of such appeal in the office of the
town clerk within thirty days after the entry of such order.”* A copy of
such notice of appeal shall be served personally or by mail upon the adverse
party. Upon such appeal the county court shall consider the charges pre-
sented to the commission and may hear evidence in support and in defense
thereof. After such hearing the court shall make an order either affirming
or reversing the order of the commission. A copy of such order shall be
entered in the office of the town clerk. If the order reverse an order dis-
missing the charges, it shall direct the commission to remove the town
superintendent. The town board shall within five days appoint a person
to fill the vacancy caused thereby, within the time specified therein; if it
Teverse an order sustaining such charges, it shall direct the reinstatement
of the town superintendent removed, to take effect upon the filing of the
copy in said town clerk’s office. [Highway Law, § 46, as amended by L.
1921, ch, 404, and L. 1922, ch. 371.]

§ & GENERAL POWERS AND DUTIES OF TOWN SUPERINTENDENT.
The town superintendent shall, subject to the rules and regulations of
the commission,’ made and adopted as provided in this chapter:

 

7a. An appeal may be taken by the commission from a decision of the town
board within 30 days after service of notice upon him of the entry of an order
oe charges against a town superintendent. Rept. of Atty. Genl., May

Removal of town superintendent by commissioner for failure to file list of
names of persons employed by him, and for the repair and improvement of
highways other than those specified in the agreement made between him and
the town board under § 105 of the Highway Law, is justified. Such conduct
cee tee malfeasance in office under this section. Carlisle v. Burke, 82 Misc,

8. Rules and regulations adopted by the commission as provided in Highway
Law, sec. 15, subd. 2, ante, may prescribe the duties of town superintendents
respecting State and county highways.
816 HIGHWAYS AND BRIDGES.

Highway Law, § 47.

1. Have the care and superintendence® of highways and bridges and
board walks.or renewals thereof on highways less than two rods in width,
in the town, except as otherwise specially provided in relation to incorpo-
rated villages,** cities and other localities. [Subd. amended by L. 1915,
ch, 322. ]

2. Cause such highways and bridges and the board walks or renewals
thereof on highways less than two rods in width to be kept in repair,”

 

9. Superintendence. Town superintendents, like the former highway com-
missioners, are to superintend the repair and maintenance of town highways and
bridges. The State commission and the district or county superintendents may
have supervisory power, and may enforce a compliance with the statutes and lawful
rules and regulations, on the part of the town superintendents; but they cannot
intervene to lessen the responsibility of the town officers for the proper maintenance
of the town highway system. District or county superintendents are required to
have “general supervision of the work of constructing, improving and repairing
bridges and town highways.” Highway Law, sec. 33, subd. 1, ante. They may aid
town superintendents in the maintenance and construction of town bridges and
highways (Idem, sec. 33, subd. 2, ante), and are required to approve plans, specifi-
cations and estimates for the construction and maintenance of town highways
where the work is to be done by contract. Idem, sec. 33, subd. 5, ante.

Powers and duties generally. The town superintendent is vested with gen-
eral control over the public highways and he has a duty to perform toward the
public in connection with their proper maintenance. Matter of the Application
ot R. E. I. Co., 123 N, Y. 351, 33 N. Y. St. Rep. 695. In the administration of
the highway system, he is an independent public officer, exercising power and
charged with public duties, specially prescribed by law, and as such acts
individually of any direction on the part of the town; on the other hand he
is without power to represent or effect the rights of the town in any other
manner than as prescribed by statute. Flynn v. Hurd, 118 N. Y. 19; People
ex rel. Everett y. Supervisors, 93 N. Y. 397; Mather v. Crawford, 36 Barb. 564.
He is not an agent of the town in its corporate capacity, and the town is not
chargeable for his nonfeasance or misfeasance, nor for his official acts or
delinquincies, except where made so by special provision of law. People ex rel.
Van Keuren v. Town Auditors, 74 N. Y. 310; People ex rel. Everett v. Super-
visors, 93 N. Y. 397; Morey v. Town of Newfane, 8 Barb. 645; Bryant v. Town
of Randolph, 133 N. Y. 70; Whitney v. Town or Ticonderoga, 127 N. Y. 40, 37
N. Y. St. Rep. 135. But see Bartlett v. Crozier, 17 Johns. 439.

A town superintendent has implied authority to purchase supplies necessary
for the purposes covered by an agreement pursuant to section 105 of the
Highway Law. Rept. of Atty. Genl., March 31, 1911. But he has no legal right
to purchase supplies for roads and bridges without the consent of the town
board. Rept. of Atty Genl., March 11, 1911. ;

10, Villages. Streets in villages under exclusive control of village trustees,
Village Law, sec. 141. Control and maintenance of bridges in villages, see
Village Law, sec. 142. See Bender’s Village Law of New York.

11, Duty of the town superintendent to keep highways and bridges in repair.
The town superintendent is powerless to burden the town he represents for the
repair of highways and bridges beyond statutory limitations. Flynn v. Hurd,
118 N. Y. 19; People ex rel. Everett v. Board of Supervisors, 93 N. Y. 397. No
other officers are by enactment charged with such duty. Berlin Iron Bridge Co.
v. Wagner, 57 Hun, 346, 10 N. Y. Supp. 840. Neither the Town Law nor the
Highway Law has changed the old rule that he cannot create any liability upon
the part of his town to pay for materials ordered by him for the ordinary
repair of town highways. Lyth & Sons v. Town of Evans, 33 Misc. 221, 68 N. Y.
TOWN SUPERINTENDENT; POWERS AND DUTIES. 817

Highway Law, § 47. -

and free from obstructions caused by snow and give the necessary di-

Supp. 356; Van Alstyne v. Freday, 41 N. Y. 174; People ex rel. Bowles v. Burrell,
14 Mise. 217, 35 N. Y. Supp. 608. If the reparation made by the town superin-
tendent is the product of his judgment he does not exceed the consent granted
him by the town board; and mandamus will lie on its refusal to audit a claim
so incurred by him. People ex rel. Slater v. Smith, 88 Hun, 432, 31 N. Y. Supp.
749. As to duty to repair and the origin thereof, see Bartlett v. Crozier, 17
Johnson, 439; Morey v. Town of Newfane, 8 Barb. 645; Dorn v. Town of Oyster
Bay, 84 Hun, 510, 32 N. Y. Supp. 341.

Defense to action for negligence; want of funds.—It is no defense to an ac-
tion for negligence in not replacing a barrier upon a bridge that the town
superintendent had no funds applicable to the purpose, as by section 93 of the
Highway Law he is authorized to make the necessary expenditure for extraorm
dinary repairs, to be afterward audited by the town board. Rising v. Town of
Moreau, 68 Misc. 284, 125 N. Y. Supp. 249.

A town superintendent is not responsible for the repair of highways and
bridges situated within an Indian reservation. Bishop v. Barton, 2 Hun, 436,

Inspection of highways; negligence.—A town is chargeable with the negl{-
gence of the town superintendent in failing to call the attention of the town
board to an unsafe driveway of which he had knowledge, leading from a high-
way to abutting premises as this section imposes upon the superintendent a
duty of inspection. But, it seems, no charge of negligence can arise against
the superintendent if the town board fails to act after having been informed
of the defect. Ferguson v. Town of Lewisboro, 149 App. Div. 232, 133 N. Y.
Supp. 699.

Power to contract. A town superintendent is not an agent of the town with
authorjty to contract for it in real or supposed emergencies, and cannot make a
contract binding upon the town unless specifically authorized by statute. Peo-
ple ex rel. Morey v. Town Board, 175 N. Y. 394, reversing 80 App. Div. 280, 80
N. Y. Supp. 309. As to legality of orders made by town superintendents, see
Van Bergen v. Bradley, 36 N. Y. 316; Engleman v. Longhorst, 120 N. Y. 332,
31 N. Y. St. Rep. 29.

Highway superintendents have no power or authority to bind the town by
their contracts and are individually responsible alone to those with whom they
contract if any responsibility is thereby created; they can only impose liability
upon towns for the construction of roads when they have direct statutory
authority therefor. Matter of Niland v. Bowron, 193 N. Y. 180, affg. 113 App.
Div. 661, 99 N. Y. Supp. 914. Section 10 of the Town Law (former sec. 182) hag
not changed the old rule that a commissioner [now town superintendent] of
highways cannot create any liability upon the part of his town to pay for
materials ordered by him for the ordinary repair of town highways. Highway
commissioners are charged with the duty of keeping town highways in repair
as independent officers and not as agents of the town, and whe they contract
for such ordinary repairg no liability is created against the town, and the com-
missioners themselves as such officers, and not the town, should be sued for
the debt. Lyth & Sons v. Town of Evans, 33 Misc. 221, 68 N. Y. Supp. 356.

Common-law duty to repair bridges. The repair of bridges at common law,
that is, those without cities or incorporated towns, belonged to the county;
and the remedy was not by suit against the surveyors, whose’ duty it was to
repair bridges, or against the justices, but by indictment against the county.
But the common-law rule has never been adopted in this state. Bartlett v.
Crozier, 17 Johns. 439; Hiil v. Supervisors of Livingston, 12 N. Y. 52.

Extent of repairs. A highway cannot be said to be open and worked unless
it is passable for its entire length. It need not be worked in every part, but it
must be worked sufficiently to enable the public to pass and repass with teams
and vehicles such as are ordinarily used. Tho requirement to open and work a
highway implies that it must be made passable as a highway for public travel.
It need not be a first-class road; it need not be finished, but it must be sufficient
and kept in a suitable condition to enable the public to pass over it. Beckwith
v. Whalen, 70 N. Y. 430. See, also, People ex rel. Slater v. Smith, 83 Hun, 432,
31 N. Y. Supp. 749; Peck v. Batavia, 32 Barb. 641.

Where town superintendents have not sufficient funds in their hands to

 

 
818 HIGHWAYS AND BRIDGES.
Highway Law, § 47.

rections therefor, and inspect the highways and bridges within the
town, during the months of April and October of each year, or at such
other time as the district or county superintendent may prescribe; and
may cause to be constructed and repaired any public roads, walks, places
and avenues on any sand beach separated by more than two miles of
water from the main body of his town or oz any island or part of an
island in his town, although such roads, walks, places and avenues are
narrower than the width of highways required by statute. Within the
meaning of this section, or of any provision of this chapter referring to
a renewal of a board walk on a highway less than two rods in width,
the term ‘‘ renewal” shall include a walk built of other material to
replace such board walk. [Subd. 2, as amended by L, 1914, ch. 84,
L. 1915, ch. 322, and L. 1920, ch. 561.]

3. Divide the town into as many sections as may be necessary for the
proper maintenance and repair of the highways therein, and the opening
of highways obstructed by snow.

4, Employ such persons with teams and implements, as may be neces-
sary for the proper maintenance and repair of highways and bridges, and
the removal of obstructions caused by snow, subject to the approval of the
town board, as hereinafter provided, and provide for the organization and
supervision of the persons so employed. He shall file a list of the names
of the persons so employed, with the compensation paid to each, ard the
capacity in which they were employed in the office of the town clerk."

5. Construct and keep in repair sluices and culverts and cause the
waterways, bridges and culverts to be kept open.”*

 

provide the needed repairs it is within their discretion to apply the fund on hand
in making such repairs as are most urgently needed. They are not nor is the town
liable for an error in judgment in so doing, if they act reasonably and in good
faith. Monk v. Town of New Utrecht, 104 N. Y. 552; Patchen v. Town of Walton,
17 App. Div. 158, 45 N. Y. Supp. 145.

Use of material taken from highway. In making necessary repairs to high-
ways tlie town superintendent may take soil from any portion of the highway
including the unused roadside, regardless’ of any grading or other improvements
made by abutting owners, in the absence of proof that the town superintendent
has not acted wantonly or maliciously. Anderson v. Van Tassell, 53 N. Y. 631.
Where it is necessary to cut down the bed of the highway, the fee of which is not
in the public, in order to bring it to a desired grade, the town superintendent may
use the earth and stone thus taken out to repair any part of a highway upon which
they may see fit to put them; but unless it is necessary to remove the earth and
stone for that purpose, they may not use them for the purpose of repairing any part
of the highway, except that part which is opposite the Jands of the owner who owns
the fee of the highway at the point where the materials were removed. Robert v.
Sadler, 104 N. Y. 229; Ladd v. French, 6 N. Y. Supp. 56, 24 N. Y. St. Rep. 952.

Stones and other material taken from the highway and not required fpr the use
of the highway belong to the abutting owner if his title covers the highway.
Deverell v. Bauer, 41 App. Div. 53, 58, N. Y. Supp. 413.

12. Estimates to contain amount for removel of obstructions caused by snow.
Highway Law, sec. 90, post. If amount is insufficient town board may cause
additional amount to be raised for such purpose. Idem, sec. 92, post.

13. The town superintendent should not employ his own teams and implements
for work on the highways; it is against the established principles of public policy
to allow a public officer to be both the employer and the employed. Rept. of Atty.
Gen. (1903), 309.

14, Ditches and culverts in State and county highways must be kept
TOWN SUPERINTENDENT; POWERS AND DUTIES. 819
Highway Law, § 47.

6. Cause loose stones lying in the beaten track of every highway within
his town to be removed at least three times each year between the first day
of April and the first day of December. Stones so removed shall be con-
veyed to some place from which they shall not work back, or be brought
back into the track by road machines or other implements used in repair-
ing such highways.

7. Cause noxious weeds growing within the bounds of the highways to be
cut and removed, at least twice in each year, once between the first and
thirtieth day of July, and once between the first and thirtieth day of Sep-
tember. He shall also cause all briers and brush within the bounds of
the highway to be cut and removed once between the first and thirtieth
day of September in each year, as provided by section fifty-four of this.
chapter, unless otherwise directed by the commission.** [Amended by
L. 1910, ch. 567.

8. Cause such highways as shall have been laid out, but not sufficiently
described, and such as shall have been used for twenty years,’” but not
recorded, to be ascertained, described and entered on record in the town
clerk’s office.1® :

)

 

open and free from obstructions by town superintendent. Highway Law, sec. 53,

ost. ,

Complaint in action against a town for the improper construction of a culvert by
a town superintendent causing flooding of adjacent land held sufficient. Bowman
v. Town of Chenango (1920), 227 N. Y. 459, 125 N. E. 809, revg. 184 App. Div. 472,
171 N Y. Supp. 1079.

.15. Injurious substances in highways, see Penal Law, secs. 1434, 191 post.
Any person throwing loose stones, rubbish, ashes, etc., in the highway is liable
to a penalty of ten dollars. Highway Law, sec. 328, post. .

16. Removal of weeds and brush by land owners. It is made the duty of
the owner or occupant of lands situated along the highway to cut and remove
the weeds and brush within the bounds of the highway and, in case of failure,
the town superintendent is required to do the same and charge the expense
thereof upon such owners or occupants. See Highway Law, sec. 54, post.

A town superintendent has no authority to create a liability upon the part
of his town to a person hired to cut brush along a town highway, and even
if such liability were created, it would not become actionable until the claim
had been acted upon by the town auditors. Wright v. Town of Wilmurt, 44
Misc. 456, 90 N. Y. Supp. 90 (1904).

17. Highways by use, see Highway Law, sec. 209, post

18. Surveys upon the laying out of 3 highway by the town superintendent,
see Highway Law, sec. 190, post. The board of supervisors is authorized to
direct the town superintendent to cause a survey of highways to be made at the
expense of the town, County Law, sec. 71,. post.

When survey authorized. Where a highway has been dedicated to the
public for the prescribed period of twenty years the town superintendent may
cause a survey to be made thereof and remove fences and other encroachments
within the limits of such highway. James v. Sammis, 132 N. Y. 239.

A writing signed by the commissioners, although not containing a formal
order laying out the highway, which purports to be a survey of the road,
860 HIGHWAYS AND BRIDGES.

Highway Law, § 47.

9. Inspect all highways which are to be constrzcted or improved ag
state or county highways, when directed by the district or county super-
intendent, for the purpose of securing preliminary information to be used
in preparing the plans and specifications for such highways, and mark
or in some substantial manner designate the portions of such highways
which may need special care and attention. He shall report to the district
or county superintendent the condition of such highways and submit there-
with such recommendations in respect thereto as may seem expedient.
The district or county superintendent may require additional reports in
respect to such highways whenever it seems to him to be necessary.

10. Attend public meetings called by the commission, held within the
county, after receiving notice thereof from the district or county super-
intendent, and his expenses necessarily incurred thereby shall be a town
charge.’®

11. Cause the monuments erected, or to be erected, as the boundaries of
highways, to be kept up and renewed so that the extent of such highway
boundaries may be publicly known, and erect and establish such new
monuments as may be required by the district 01 county superintendent.?°

12. Collect all penalties prescribed by this ch apter.**

 

describes the center line, and states where the road 1s to commence and termi-
nate and which was filed with the town clerk, is a substantial compliance with
the statute; no particular form is necessary and the acts of such officers
should receive liberal construction. Tucker v. Rankin, *\\ Barb. 471.

Effect of survey. The order cannot have the effect to txcrease or change the
width or location of the highway from what it was betore; it could be effectual
only as a description of the width as manifested by the perraitted use for twenty
years. Ivory v. Town of Deerpark, 116 N. Y. 476; People v. Judges of Cortland
Co., 24 Wend. 491; Cole v. Van Keuren, 4 Hun 262, 6 T. & C. 483, affirmed,
64 iN. Y. 646. An order of the superintendent is sot ccnclusive upon a
person claiming that the highway is a private road: the statute does not
authorize the superintendent to create or enlarge, but only to perpetuate, the
evidence of a public right. Cole v. Van Keuren, 4 Hin 262, 6 T. & C. 483,
affirmed, 64 N. Y. 646.

A certificate or order of the town superintendent merely ascertaining and de-
scribing a road as a highway is insufficient as a defense in an action against him
for trespass, where it does not purport to. be based upon a record nor upon an
adjudication that there had been a user of twenty years without record. Kelsey
v. Burgess, 35 N. Y. St. Rep. 368, 12 N. Y. Supp. 169.

19. Public meetings held on the call of the commission, Highway Law, sec.
15, subd. 9, ante; notice of which are to be given by the district or county
superintendent, Idem, sec. 33, subd. 7, ante.

20. Board of supervisors authorized to direct town superintendent te estab-
lish location of highways by suitable monuments. County Law, sec. 71, post.

21. Penalties prescribed in this chapter. For failure of owners of unsafe toll
TOWN SUPERINTENDENT; POWERS AND DUTIES. 821
Highway Law, § 48.

13. Report annually on such date as may be prescribed by the com-
mission, prior to January first, to the district or county superintendent,
in relation to the highways and bridges in his town containing the
matter and in the form to be prescribed by the commission. [Subd. 13,
as amended by L. 1920, ch. 559. ]

14. Perform such other duties and have such other powers as may be
imposed or conferred by law, or the rules and regulations of the commis-
sion, including the powers and duties heretofore exercised or performed
by highway commissioners. [Highway Law, § 47; B. C. & G. Cons.

§ 9. CONTRACTS FOR THE CONSTRUCTION OF TOWN HIGHWAYS
AND BRIDGES.

The town board of any town may provide that the construction of
new highways and bridges, or the permanent improvement or reconstruc-
tion of existing highways and bridges, or the permanent improvement
or reconstruction of existing highways and bridges or repairing, rebuild-
ing or replacing walks on highways less than two rods in width pursuant
to the provisions of sections forty-seven, sixty-two and ninety-seven
of this chapter, the cost of which will exceed five hundred dollars, shall
be done under contracts.”* All such contracts shall be awarded by the
town superintendent, in accordance with estimates, plans and specifica-
tions to be furnished by the district or county superintendent, or by the
commission, as provided in this chapter, to the lowest responsible
bidders, after advertisement once a week, for three consecutive weeks,
in a newspaper published in the town where the work is to be performed,
‘or if no newspaper is published therein, in a newspaper published at
some other place in the county, having the largest circulation in said
town. All bids for such work shall be opened in public and shall be
filed in the office of the town clerk. No such contract shall be awarded,

 

 

bridge to repair the same, section 72, post, damages in actions for injuries to high-
ways shall be brought by the town superintendent, section 73, post.

Penalty for driving or riding faster than a walk on a bridge, sections 252 and
253, post. Failure of person operating ferry to post schedule, section 274, post.
Forfeiture for the employment of intemperate drivers, section 282, post. Forfeiture
for failure of owner of carriage for conveyance of passenger to discharge driver
upon receiving notice of his having been intoxicated, section 283, post. Forfeiture
for leaving horses without being tied, section 284, post. Penalty for the deposit of
stones, ashes and refuse in highways, section 288, post. Penalty for neglecting to:
comply with law of the road, section 292, post. Penalty for falling trees in the
highway, section 295. post. Forfeiture for failure to remove fallen trees from the
highway, section 296, post.

Actions, how brought. Any action for the benefit of a town to recover penalty
or forfeiture given to a town officer, or the town represented by him, must be brought
in the name of the town. Town Law, 810. Commissioners of Cortlandville v.
Peck, 5 Hill, 215.

22, Contracts by town superintendents under this section must be in the name
of the town. Town Law, sec. 10, ante.
8292 HIGHWAYS AND BRIDGES.

Highway Law, § 49.

unless it be approved by the district or county superintendent, as to its
form and efficiency.”* The person to whom such contract is awarded
shall execute a bond to the town, in a sum equal to one-half of the amount
of the contract, with two or more sureties to be approved by the town
board, conditioned for the faithful compliance with the terms of the con-
tract, and the plans and specifications and for payment of all damages
which may accrue to the town, because of a violation thereof. When such
work is completed pursuant to the terms of such contract, and the plans
and specifications therefor, and accepted by the district or county super-
intendent and town board, as being in accordance.therewith, the cost of
the work under the contract shall be paid out of monevs available there-
for, in the same manner as other highway expenses. Payments made
under such contract shall be upon certificates issued to the contractor by
the district or county superintendent, to the effect that the work has been
done under and in accordance with the terms of such contract, and the
plans and specifications. All work done under any such contract shall
be under the supervision of the district or county superintendent, or
some person designated by him. The town superintendent shall file all
contracts, awarded under this section or as provided in this chapter, for
the construction, improvement or repair of town highways and bridges,
or for repairing, rebuilding or replacing a walk, with the town clerk of
the town within ten days after their execution. [Highway Law, § 48,
as added by L. 1914, ch. 413, which repealed and superseded former
§ 48, as amended by L. 1916,.ch. 578; B. C. & G. Cons. L., p. 2190.]

§ 10. MACHINERY, TOOLS AND IMPLEMENTS.

The town superintendent may, with the approval of the town board,
purchase for the use of the town, stone crushers, steam rollers, motor trucks,
scarifiers, concrete mixers, traction engines, road machines for grading and
scraping, tools and other implements, subject to the limitations prescribed
in section ninety-four, which shall be paid for from moneys levied and col-
lected or from the proceeds of bonds issued and sold for such purposes as
provided in this chapter.?* No contract for the purchase of stone crushers,

 

23. Approval of plars, specifications and estimates by county or district
superintendents required by Highway Iaw, sec. 33, subd. 5, ante. When re-
quested by a town superintendent the commission may cause plans, specifications
ard estimates to be prepared for the repair or improvement of a town highway,
Highway Law, sec. 15, subd. 5, ante.

24, Moneys available for the purchase of road machinery, tools and imple-
ments must be estimated for separately by the town superintendent, under
Highway Law, sec. 90, subd. 3, post, p. 853, and when collected must be paid to
the supervisor to be paid out by him upon the order of the town superintendent
according to such estimate. If the amount estimated for is insufficient an addi-
TOWN SUPERINTENDENT; POWERS AND DUTIES. 823
Highway Law, § 49.

steam rollers, motor trucks, scarifiers, concrete mixers, or traction engines
shall be valid, unless the district or county superintendent shall have ap-
proved thereof and endorsed his approval upon such contract. All road
machines, stone crushers, steam rollers, motor trucks, searifiers, concrete
mixers, or traction engines, tools and other implements owned either by the
town or the highway districts therein, shall be used by the town superin-
tendent in such manner and at such places in such town as he shall deem
best. They shall be under the control of the superintendent and be cared
for by him at the expense of the town. The town superintendent shall an-
nually make a written inventory” of all such machinery, tools and imple-
ments, indicating each article and stating the value thereof, and the esti-
mated cost of all necessary repairs thereto, and deliver the same to the super-
visor of the town on or before October thirty-first in each year. He shall
at the same time file with the town clerk his written recommendations as
to what machinery, tools and implements should be purchased for the use
of the town, and the probable cost thereof. The town superintendent shall
previde a suitable place for housing and storing all machinery, tools and

 

tions1 amount may be raised by a vote at a town meeting,as provided in High-
way Law, sec 92, post. No part of the money received from the State is avail-
able for the purchase of road machines. See Highway Law, sec. 101, post. The
money aveilable for such purposes can only be paid out by the supervisor upon
the written orcer of the superintencent efter audit by the town board. See
Highway Law, sec. 106, post,

Contract for steam roller; fraud.—Payment by the manvfacturers of a steam
roller of the per diem fees of the members of the town board for attending a
meeting to authorize a contract for hiring or purchasing a steam roller and
also the expenses of town officials in going to examine the roller and verify
the agent’s representations in respect to it is not a fraud upon the town which
will vitiate the subsequent contrdct for the hiring or purchase of the roller.
Gardner v. Town of Cameron, 74 Misc. 286. But a contract for leasing such
mechine. the rental to constitute a part of the purchase price, the sale to be
completed within a prescribed period is not valid, unless authorized by a town
meeting. ‘

25. The inventory of machinery, tools and implements required by this sec-
tion must be delivered to the supervisor and included in his report to the town
board. See Highway Law, sec. 107, post. For form of inventory, see Form No,
97, post. :
824 HIGHWAYS AND BRIDGES.

Highway Law, § 50.

implements owned by the town and cause the same to be stored therein,
when not in use. The town board, at the request or with the approval of
the town superintendent, may purchase real estate in the name of the town
or erect a building on real estate owned by the town for the purpose of
housing and storing such machinery, tools and implements but the total
cost thereof shall not exceed fifteen hundred dollars without the vote of
a town meeting. The town superintendent may also with the approval
of the town board sell any such machinery, tools and implements, which
are no longer needed by the town, or which are worn out or obsolete, or
may exchange the same for new machinery, tools and implements. If sold,
the proceeds shall, under the direction of the town board, be applicable to
the purchase of the machinery, tools and implements mentioned in subdi-
vision three of section ninety-four of this chapter. Where there is an in-
corporated village constituting a separate road district, wholly or partly in
a town which has purchased a stone crusher, steam roller, motor truck,
scarifier, concrete mixer, or traction engine, the town board of such town
may permit the use thereof by such village upon such terms as may be
agreed upon. [Highway Law, § 49, as amended by L. 1917, ch. 349, L.
1918, ch. 329, L. 1921, ch. 402, and L. 1922, ch. 294.]

§ 11. TOWN SUPERINTENDENT MAY HIRE MACHINERY.

The town superintendent may, with the approval of the district or county.
superintendent, lease or hire stone crushers, steam rollers, motor trucks,
scarifiers, concrete mixers and traction engines at a rate to he approved by
the town board, which shall not exceed twenty dollars for a stone crusher,
steam roller or motor truck, eight dollars for a scarifier or concrete mixer
and fifteen dollars for a traction engine, for each day such stone crusher,
steam roller, motor truck, scarifier, concrete mixer, or traction engine is
actually used upon the highway. The expense thereof shall be paid by
the supervisor, upon the written order of the town superintendent, out of
moneys received by him, as provided in this chapter, for the repair and im-
provement of highways. The moneys paid as herein provided for the hire
of machinery and implements may with the consent of the town board and
county superintendent of highways be applied on the payment for the pur-
chase price of such machinery." [Highway Law, § 50, as amended by L.
1918, ch. 329, L. 1919, ch. 173, and L. 1922, ch. 167.]

25a. Contract for conditional sale with provision for rental_—The authorities
of a town on its behalf entered into a written agreement purporting to lease a
steam roller at the rate of ten dollars a day and agreed to use the same not less
than sixty-four days in a year. It was further provided that the continuance
of the lease each vear was optional with the town superintendent, but that if
the lease was not to be so continued the lessee must notify the lessor in writing
by a certain date, and that upon a failure to do so the lease should continue for
another year upon the same terms. It was further provided that in default of

notice to the contrary the lessee agreed to rent and use the roller for the afore-
said number of days at the aforesaid rates, payments to be made until the

 
TOWN SUPERINTENDENT; POWERS AND DUTIES. 8248
Highway Law, § 51.

§ 12. PURCHASE OF GRAVEL AND STONE.

The town superintendent” may, with the approval of the town board,
purchase of the owner of any gravel bed or pit, or stone quarry within
the town, gravel or stone for the purpose of grading, repairing or other-
wise improving the highways of the town, at a price per cubic yard to
be approved by the town board. If such town superintendent cannot
agree with any such owner for the purchase of such gravel or stone, he
may, with the approval of the town board acquire by condemnation the
right to take and use such gravel or stone, and to remove the same from
such bed, pit or quarry, for the purpose of grading, repairing or other-
wise improving such highways, together with the right of way to and

 

roller was fully paid for, the lessor agreeing that upon full payment, and for a
zonsideration of one dollar, the roller should belong to the lessee free of all incum-
brances, the machine, however, to remain the property of the lessor until paid for,
with a right in it to retake the machine. It was held, that said instrument though
called a lease was not such in fact, but on the contrary was a contract of condi.
tional sale, unauthorized by this section. A lease can only be made at a rental
fixed by the town board. Where the contract is not approved the lessor cannot
recover for use of roller. Gardner v. Town of Cameron (1913), 155 App. Div. 750.

A town superintendent cannot enter into a contract for the leasing of a road
machine, binding upon his town, unless the town board approve of the rate to be
paid therefor, notwithstanding the fact that the county superintendent has approved
of the contract. Rept. of Atty. Genl., Apr. 25, 1911.

Power of town authorities to lease steam roller; liability of town for
benefits received. The Highway Law does not authorize a town board to pur-
chase a steam roller for use upon highways by a contract of conditional sale, and
such contract is void and unenforcible. Although the contract aforesaid is void a
taxpayer, in order to compel a restoration of town funds paid thereon to the seller
by the town officials, must allege not on‘y' that the town funds have been wasted
but prove upon trial that they have ‘in fact been wasted; that is to say, that the
payment resulted in no benefit to the town. Hence, as the town authorities were
aut’ orized by statute to lease a steam roller, there can be no recovery as for waste
where the amount paid to the company furnishing the roller was reasonable in
amount and the town received the benefit of the roller, which was used in the neces-
sary performance of its function in caring for its highways. Under the circum-
stances the town is liable as upon a quantum meruit. Shoemaker v. Buffalo Steam
Roller Co., 165 App. Div. 836, 151 N. Y. Supp. 207.

25b. The words “town superintendents of highways” and “town
superintendents ” are used interchangeably to designate the same official. Map-
son v. Gale, 142 App. Div. 335, 126 N. Y. Supp. 907.
824b HIGHWAYS AND BRIDGES.

Highway Law, § 52.

from such bed, pit or quarry, for the purpose of such removal.?°* No such
gravel or stone shall be so taken by condemnation within five hundred
feet of any house or barn, or from any lawn, orchard or vineyard. The
purchase price of such stone or gravel and the damages awarded in such
condemnation proceedings, together with the costs and expenses thereof,
shall be a town charge and paid from moneys levied and collected there-
for, as provided by law. If the town shall abandon for the period of
three years any right acquired under this section to take and use the
gravel or stone from any such bed, pit or quarry, or if the superintend-
ent shall cease to use the same for the purposes for which it was acquired,
the right thereto shall cease, and the ownership thereof shall revert to
and become vested in the owner of such bed, pit or quarry, or his heirs
or assigns. [Highway Law, § 51; B. C. & G. Cons. L., p. 2192.]

§ 13. OBSTRUCTIONS AND THEIR REMOVAL.

Obstructions, within the meaning of this section, shall include trees
which have been cut or have fallen” either on adjacent lands or within
the bounds of the highway, in such a manner as ‘to interfere with public
travel therein; limbs of trees which have fallen within the highway, or
branches of trees overhanging the highway so as to interfere with public
travel therein ; lumber, wood or logs piled within the bounds of the public
highway; machines, vehicles and implements abandoned or habitually
placed within the bounds of the highway; fences, buildings or other
structures erected within the bounds of the highway ; earth, stone or other

 

25c. The petition to condemn gravel and stone for the improvement of a
highway should not describe the entire plot of land from which the material is to
be taken, but on the contrary should locate the quarry itself by metes and bounds,
as well as the right of way over which the material is to be removed, and also those
lands contiguous to a quarry in which an easement will be necessary in order to
carry on operations. An amendment of the petition may be allowed. Maxson v.
Gale, 142 App. Div. 335, 126 N. Y. Supp. 967.

26. It is the duty of the owners or oceupants of lands from which a tree shall
fall into the highway to remove the same. Highway Law. sce. 236, post.
TOWN SUPERINTENDENT; POWERS AND DUTIES. 895

Highway Law, § 52.

material placed in any ditch or waterway along the highway; telegraph,

telephone, trolley and other poles, and the wires connected therewith,
erected within the bounds of the highway in such a manner as to interfere

with the use of the highway for public travel.’

It shall be the duty of each owner or occupant of lands situate along
the highway, to remove all obstructions within the bounds of the highway,
which have been placed there, either by themselves or by their consent.”*

 

27. What constitutes obstructions. Anything which unreasonably obstructs
a highway so as to prevent the use. thereof for the purposes for which it is main-
tained is an illegal obstruction and must be removed as provided in this section, or
may be abated as a nuisance. Slight inconveniences and occasional interruptions
of the use of a highway, which are temporary and reasonable, are not illegal merely
because the public may not, for the time, have full use thereof. People v. Horton,
64 N. Y. 610. An obstruction which renders a street or highway dangerous and
unfit for the use of the traveling public is prima facie an unlawful obstruction and
constitutes a nuisance in itself. Cuilo v. N. Y. Edison Co., 85 Mise. 6, 147 N. Y.
Supp. 14.

Trees, lawfully planted in a highway, do not become obstructions or en-
croachments upon a change in the statute, and the court is powerless to have
them removed; if public convenience require their removal, condemnation
proceedings must be instituted and compensation awarded their owner. Town
of Wheatfield v. Shasley, 23 Misc. 100, 51 N. Y. Supp. 835; Edsall v. Howell, 86
Hun 424, 33 N. Y. Supp. 892.

When obstructions authorized. The legislature, by virtue of its general con-
trol over public streets and highways, has the power to authorize structures in
the streets and highways, which, under the common law, would be obstruc-
tions or encroachments, and may delegate the power to the governing body of
a municipality. Hoey v. Gilroy, 129 N. Y. 132. For instance, town, village or
city authorities may, if empowered by statute, authorize and regulate the use
of awnings, stands for business purposes, and the like, in the public streets.
But apart from these exceptions “public highways belong, from side to side,
and end to end ” to the public. Any permanent or unnecessary obstacle to travel
in a street or highway is a nuisance, although space may be left for the passage
of the public. Authorities may properly grant a right to a railroad to maintain
gates at a highway crossing, and if properly constructed and opened and closed,
and necessary to the public safety, cannot be restrained. Friedlander v. D. &
H. C. Co., 34 N. Y. St. Rep. 650, 18 N. Y. Supp. 323.

Penal liability. By the Penal Law an obstruction is made a public nuisance
and the person maintaining it is guilty of a misdemeanor punishable by a fine
of not more than $500, or by not more than one year’s imprisonment or by both.
Penal Law, §§ 1530, 1532.

28. Encroachment by abutting owner. The owner of land abutting upon a
public street is permitted to encroach on the primary right of the public to a
limited extent and for a temporary purpose, owing to the necessity of the case.
Two facts, however, must exist to render the encroachment lawful; the obstruc-
826 HIGHWAYS AND BRIDGES.
Highway Law, § 52.

It shall be the duty of all telephone, telegraph, electric railway and other
electrical companies, to remove and reset telephone, telegraph, trolley
and other poles and the wires connected therewith, when the same con-
stitute obstructions to the use of the highway by the traveling publie.
If temporary obstructions such as trees, lumber, wood, logs, machinery,
vehicles and similar obstructions are not removed within five days after
the service of a notice, personally or by mail, upon such owner or occu-
pant, requesting the same to be done, the town superintendent shall re-
move such obstruction. And if permanent obstructions, including,
among others, telegraph, telephone, trolley and other poles and wires con-
vected therewith, are not moved and reset within thirty days, the town
superintendent shall move and reset such poles and wires.” The ex-
pense thereby incurred shall be paid in the first instance out of moneys

 

tion must be reasonably necessary for the transaction of business; it must not
unreasonably interfere with the rights of the public. Welsh v. Wilson, 101
N. Y. 254; Callanan v. Gilman, 107 N. Y. 360; Flynn v. Taylor, 127 N. Y. 596.
In these cases a temporary obstruction or occupation of a part of a street or
highway, by persons engaged in building, or in receiving or delivering goods
from stores or warehouses were allowed. But one who has occasion to leave
a load in a highway must remove it with promptness. If he let it remain thera
an unreasonable time it may be removed as a nuisance. It is not sufficient,
however, that the obstructions are necessary with reference to the business
of the person who erects or maintains them; they must be reasonable with
respect to the rights of the public. Callanan v. Gilman, 107 N. Y. 360.

Erection of poles in highway. The right which telephone and telegraph com-
panies derive by virtue of section 102 of the Transportation Corporations Law
to construct and maintain poles and wires in rural highways is not absolute or
unqualified but subject to the rule that the lines must be so located as not
unnecessarily to obstruct the public travel. Where the plans for the improve-
ment of any such highway require the re-location of poles and wires, it is in-
cumbent upon the companies at their own expense to re-locate the same. It
seems, however, that it is incumbent upon the state or county, as the case may
be, to afford the company a new right of way within the limits of the improved
highway. Opinion of Atty. Genl., Mch. 21, 1913.

29. Removal of obstructions by town superintendents. The highways of the
state are made for and devoted to public travel, and the whole public have
the right to their use in their entirety, and when obstructions to public travel
are found within their bounds, the town superintendents of highways are
clothed with power to remove them without waiting for the slow process of
law, even though travel be not absolutely and entirely prevented. Cook v.
Harris, 61 N. Y. 448; Hathaway v. Jenks, 67 Hun, 289; 22 N. Y. Supp. 421; Van
Wyck v. Lent, 33 Hun, 301.

Where the town superintendent sees fit to remove the encroachment sum-
marily the party would be remediless, except by an action for trespass; such
a remedy would be inadequate to afford relief, so injunction will interpose and
the plaintiff will not be compelled to wait and seek his remedy after the injury
has been actually inflicted. Flood v. Van Wormer, 70 Hun, 415, 24 N. Y. Supp.
460, affirmed 147 N. Y. 284; Corning v. Lawerre, 6 Johns. Ch. 439. If, in the
discharge of his official duty, the superintendent removes without unnecessary
dampge an encroachment, after notice, though informal, to the owner, he should
not be deeme’? a trespasser, and no action for trespass will lie against him
therefor. Hathaway v. Jenks, 67 Hun, 289, 22 N. Y. Supp. 421.

For form of notice to remove obstruction, see Form No. 98 post.

Notice to remove. Under the common law an actual notice must be shown,
and it will not be presumed; the burden of proving that it has been given is
upon the commissioner. Case v. Thompson, 6 Wend. 634.

A notice of order requirine the removal of such encroachment must con-
tain a precise and certain des-ription of the particulars of the encroachment to
such an extent, at least. »s will enable the partv upon whom it fs served to go
upon the ground and fix the place and extent thereof with certainty and without
embarrassment. Town of Srrcinia v. Butter. 149 N. Y. 505; Cook v. Covil, 18
TOWN SUPERINTENDENT; POWERS AND DUTIES, 827
Highway Law, §§ 53, 58a, 53b, 54.

levied and collected and available therefor, and the amount thereof shall be charged
against such owner, occupant or company, and levied and collected, as provided in
section fifty-five.* [Highway Law, § 52, as amended by L. 1914, ch. 196; B.C. &
G. Cons. L., 2d Ed., p, 3402.] ,

§ 13-4, REMOVAL OF SNOW AND ICE FROM HIGHWAYS, CULVERTS AND
WATERWAYS.

Snow removal from highways.—The board of supervisors of any county may’
annually appropriate and expend such sum as it deems proper for the removal of
snow from the highways of the county. The board shall designate the highways
from which the snow is to be removed and the work shall be conducted in a manner
to be determined by the board under the direction of the county superintendent of
highways.

The board may also annually appropriate and expend such sum as it deems
proper for the planting of trees, and the purchase and erection of snow fences, or
other structures to prevent the drifting of snow on. the highways, and may enter
into agreements with owners or occupants of property where necessary for the
erection and maintenance of such structures.

Whenever any equipment acquired by the county as: provided in this section is
not needed by the county, the county superintendent may lease such equipment to
any town or towns in the county to be used on town highways under the direction
of the town superintendent. [Highway Law, § 53-a, added by L. 1922, ch. 110.J

Removal of snow and ice from culverts and waterways. The town
superintendent shall cause the removal of obstructions caused by snow on state
and county highways within the town. He shall also, during such time as patrol-
imen are not employed thereon, cause snow and ice to be removed from the culverts
and waterways of such highways when necessary, and the cost thereof shall be
paid from, the miscellaneous or other town funds. [Highway Law, § 53, as added by
L. 1914, ch. 197.]

§ 14. TEMPORARY OBSTRUCTIONS,

The necessary obstruction of a highway by the removal of buildings or other
temporary obstruction shall only be alowed if a highway other than u state or
county highway under a permit granted by the county superintendent upon the
written request of the town superintendent and if a state or county highway under
a permit granted by the commissioner of highways. [Highway Law, § 53b, as added
ie ee ch. 567, and amended by L. 1913, ch. 80, and renumbered 53-a, by L.

» eh. 110.]

§ 15. REMOVAL OF NOXIOUS WEEDS AND BRUSH WITHIN THE HIGH-
WAYS, AND OF OBSTRUCTIONS CAUSED BY SNOW.

It shall be the duty of the owner or occupant of Jands situated along the highway
to cut and remove the noxious weeds growing within the bounds of the highway,
fronting such lands, at least twice in each year, once in the month of June, and

 

Hun. 288; Mott v. Commissioners of Highways of Rush, 2 Hill, 472; Fitch v.
oman enees of Highways of Kirkland, 22 Wend. 132; Spicer v. Slade, 9 Johns.
Mandamus will lie to compel the town superintendent to remove bath houses
which lie in the public highway and cut off access at high-water mark. People
ex rel, Butler v. Hawkhurst, 123 App. Div. 65, 107 N. Y. Supp. 746.
_ 30. Assessment of cost of removing obstructions. and moving and resetting
poles against owners and occupants must be made by the town superintendent
in the manner prescribed by Highway Law, sec. 55, post p. 828.
828 HIGHWAYS AND BRIDGES,
Highway Law, § 55.

once in the month of August.30a It shall be the duty of such owner or occupant
to cut and remove all briers and brush, growing within the bounds of the highway,
fronting such lands, once in the month of August in each year. It shall also be the
duty of such owner or occupant to remove brush, shrubbery and other obstructions
within the bounds of the highway, causing the drifting of snow upon said highway,
before the first day of November in each year. If such owner or occupant fails to
cut or remove such weeds or brush, or to remove such brush, shrubbery or other
obstructions causing the drifting of snow, as provided herein, the town superin-
tendent of the town in which said lands are situated shall cause the same to be done,
and the expense thereby incurred shall be paid in the first instance out of moneys
levied and collected and available therefor, and the amount thereof shall be
charged against such owner or occupant, and levied and collected, es provided in
section fifty-five." The town board of any town may, by resolution, determine that
the work required by this section to be done by the owner or occupant of lands
situated along the highway shall be done by the town superintendent. If such
resolution be adopted such work shall be done by the town superintendent at the
times prescribed by this section, the cost thereof shall not be charged or assessed
against the owner or occupant but shall be a town charge, and there shall be
annually raised in such town in addition to other moneys raised for highway pur-
poses, a sum sufficient to pay such expense. [Highway Law, § 54, as amended by
L. 1911, ch. 151; B. C. & G. Cons. L., 2d Ed., p. 3407.]

§ 16. ASSESSMENT OF COST AGAINST OWNERS AND OCCUPANTS,

The town superintendent shall assess the cost of,

1. Removing obstructions and moving and resetting poles and wires, pursuant
to section fifty-two.

2. Cutting and removing noxious weeds, briers and brush and removing brush,
shrubbery and other obstructions within the highways, causing the drifting of snow,
pursuant to section fifty-four, against the owner, occupant or company neglecting
to perform the duty imposed by the sections ahove referred to, Such town super-
intendent shall serve personally or by mail upon such owner, occupant or company,
a written notice, stating that at a time and place specified therein, he will assess
such cost against the owner, occupant or company neglecting to perform such duty.”
Such notice shall begerved at least eight days previous to the time specified therein.
If directed against a company, it may be served upon it at its principle place of
business, or upon an agent of the company within the town. At the time and place
so specified, he shall hear the parties interested, and shall thereupon complete the
assessment, stating therein, the name of each owner, occupant or company, and the
amount assessed against him or it, and shall return such assessment to the town
clerk who shall present the same to the town board of his town, at its meeting held
on the Thursday preceding the annual meeting of the board of supervisors.®
Such town board shall certify such assessment to the board of supervisors who
shall cause the amount stated therein to be levied against such owner,

 

30a. Duty of abutting owners to cut weeds and brush and remove obstructions
from highways is laid upon the’ occupants of lands as well as the owners and
the question of ownership of the fee of any part of the highway does not neces-
sarily enter into consideration. Rept. of Atty. Genl., Oct. 25, 1910; Rept. of
Atty. Genl. (1912), vol. 2, p. 438.

31. Notice is not required but is desirable. For form of notice to remove
weeds, brier and bush, see Form No. 99.

32. For form of notice of assessment, see Form No. 100, post.

33. For form of assessment of cost of removing weeds, etc., see Form No.
101, post.
TOWN SUPERINTENDENT; POWERS. AND DUTIES. 829
Highway Law, §§ 56, 57.

occupant or company and any uncollected tax shall be a lien upon the
land affected. The amount so levied shall be collected in the same manner
as other taxes levied by such board, and shall be paid to the supervisor of
the town, to be applied in reimbursing the fund from which such cost
was defrayed. [Highway Law, § 55; B. C. & G. Cons. L., p. 2198.]

§ 17. WIRE FENCES TO PREVENT SNOW BLOCKADES.

The town superintendent, with the consent of the town board, may
purchase wire for fences to be erected for the prevention of snow blockades,
and the said town superintendent is hereby authorized to contract with the
owners of the lands lying along the highways of their respective towns,
at such points as are liable to snow blockade, for the removal of the fences
now’standing along the boundaries of such highways and the replacing
of such fences with wire fences. He may contract to deliver to such land
owners fence wire to be used in the construction of such fences, without
charge to said land owners, at the place of purchase, but he shall not
agree to pay any part of the cost of removal or construction called for
by said contracts, or to make any payment to said land owners, as a com-
pensation for the construction of fences or for posts. The amount to be
expended for the purchase of such wire shall not exceed the sum of three
hundred dollars in any one year, and such amount shall be included in
the estimate for expenditures for removal of obstructions caused by snow,
and other miscellaneous purposes, and paid from the money levied and
collected therefor. The fences to be built, under the provisions of this
section, shall be of not less than four strands of wire, nor more than nine
strands, in the discretion of the town superintendent, approved by the town
board, and the construction of said fences and their distance apart, shall
be such as said town superintendent shall prescribe. Whenever such fence
or fences shall become so out of repair as to be dangerous to animals
passing along the highway, it shall be the duty of the owner or owners of
said fence or fences to immediately repair or replace the same. When-
ever the town superintendent shall contract for the removal of any fence, °
under the provisions of this section, he shall file in the office of the town
clerk a description of that portion of the highway to which said contract
shall apply, and thereafter it shall not be lawful for any person to replace
the fence so contracted to be removed, with any fence liable to cause the
drifting of snow. In no case shall the town superintendent approve of or
permit the use of barb wire for such fences. [Highway Law, § 56; B.
C. & G. Cons. L., p. 2199.]

§ 18. ENTRY UPON LANDS BY TOWN SUPERINTENDENT.

The town superintendent may, when directed by the district or county
superintendent, and when authorized by the town board, enter
830 HIGHWAYS AND BRIDGES.
Highway Law, §§ 58, 59.

1. Upon any lands adjacent to any of the highways in the town, for the
purpose of opening an existing ditch or drain, or for digging a new ditch
or drain for the free passage of water for the drainage of such highways.

2. Upon the lands of any person adjoining rivers, streams or creeks,
to drive spiles, throw up embankments and perform such other labor as
may be necessary to keep such rivers, streams or creeks within their proper
channels, and to prevent their encroachment upon highways or abutments
of bridges.

3. Upon the lands adjoining a highway which, during the spring freshets
or at a time of highwater are subject to overflow from such rivers, streams
or creeks, to remove or change the position of a fence or other obstruction
preventing the free flow of water under or through a highway, bridge or
culvert, whenever the same may be necessary for the protection of such
highway or bridge.

4. Upon any lands adjacent to highways to remove any fence or other
obstruction which causes snow to drift in and upon such highways, and
erect snow fences or other devices upon such lands to prevent the drifting
of snow in or upon such highways.*+ [Highway Law, § 57; B. C. & G.
Cons. L., p. 2200.]

§ 19. DAMAGES TO OWNERS OF LANDS.

Where lands are entered upon under the provisions of the preceding
section, the town superintendent shall agree with the owner of such lands,
subject to the approval of the town board, as to the amount of damages,
if any, sustained by such owner in consequence of such entry in perform-
ance of the work authorized by such section, and the amount of such
damages shall be a town charge. If the town superintendent is unable
to agree with such owner upon the amount of damages thus sustained the
amount thereof shall be ascertained, determined and paid in the manner
that damages are so ascertained, determined and paid, where new high-
ways are laid out and opened and the town superintendent and land
‘ owners are unable to agree upon the amount thereof. [Highway Law, §
58; B. C. & G. Cons. L., p. 2200.]

§ 20. DAMAGES FOR CHANGE OF GRADE.
In any town in which a town highway shall be repaired, graded and

 

84. Lands adjacent to a State or county highway may be entered upon and
occupied for drainage purposes, under Highway Law, sec. 135, post, and the
damages therefor are to be paid as provided in sec. 136 thereof, post.
TOWN SUPERINTENDENT; POWERS AND DUTIES. 831
Highway Law, § 59.

macadamized from curb to curb by the authorities of the town the owner or
owners of the land adjacent to the said highway shall be entitled to recover
from the town the damages resulting from any change of grade.2> A person
claiming damages from such change of grade must present to the town board of
such town a verified claim therefor within sixty days after such change of grade
is effected. The board may agree with such owner upon the amount of damages
to be allowed him. If no agreement be made within thirty days after the
presentation of the claim, the person presenting it may apply to the supreme
court for the appointment of three commissioners to determine the compensa-
tion to which he is entitled. Notice of the application must be served upon the
supervisor of the town at least ten days before the hearing thereof. All pro-
ceedings subsequent to the appointment of commissioners shall be taken in
accordance with the provisions of the condemnation law so far as applicable.
Such town board, or such commissioners, shall, in determining the compensa-
tion, consider the fair value of the work done, or necessary to be done, in order
to place the claimant’s lands, or buildings, or both, in the same relation to the

 

Establishment of grade. Use, acquiescence and recognition for forty years
is sufficient to establish the grade of a highway. Hunt v. Otego, 160 App. Div.
158, 145 N. Y. Supp. 495. ’

Application of section. This section applies to all parts of the state, provided
some statute authorizes an award of damages therefor. It extends to all dam-
ages whenever sustained, whether in the future or in the past. People ex re}
C. T. Co. v. Prendergast, 202 N. Y. 188; Matter of Murphy v. Prendergast (1917),
99 Misc. 326; Matter of 149th Street Realty Co. v. Prendergast (1917), 179 App. Div.
786. But it has no application to highways constructed by the state under the
so-called Good Road Law (L. 1898, ch. 115) the expense of which is borne jointly by
the town, county and state. Matter of Baynes, 140 App. Div. 735, 126 N. Y. Supp. 132.

There is no restriction in the present law upon the right to damages in any
case where a town highway shall be repaired, graded and macadamized from
curb to curb by the authorities of the town. Under the former law it was
held that it must be established that such improvement was done “in accord-
ance with the provisions of section 69 of chapter 686 of the Laws of 1892,” the
County Law. Matter of Borup, 89 App. Div. 183, 85 N. Y¥. Supp. 828 (1903).
The present law makes no reference to such section, and under the case cited
the petitioner need only establish that the highway was a town highway and
that it has been “repaired, graded and macadamized from curb to curb by the
authorities of the town.”

Although this section authorizes a recovery of damages by an adjoining
owner where a highway is “ graded and macadamized from curb to curb by the
authorities of the town,” a recovery may be had, even though the road graded
znd macadamized was not in fact curbed. Court should determine sufficiency
ao even if no objection is made by town. Matter of Ives, 155 App. Div.
_ 35. Constitutionality. The constitutionality of the original act was estab-
lished in the case of Matter of Borup, 182 N. Y. 222, affg. 92 App. Div. 262, 92
N. Y. Supp. 624 It was there held that an award of damages was not permis-
sible except by virtue ot the act and was in no sense a gift or gratuity of the money
of the town; that the legislature had power to provide for the payment of dam-
ages in the original act; that the act authorized no new or improper rule of
damages; that the recovery is limited to the actual amount of damages, meas-
ured by the principles prevailing in condemnation proceedings. See, also, Peo-
ple ex rel. C. T. Co. v, Prendergast, 202 N. Y. 188.

Claim for damages. At common law an abutter had no claim for damages
against a municipality for a change in the grade of a highway; and this rule
Was applicable even though access to his property might be cut off. In towns
the only remedy given is that contained in this section. Smith v. Boston &
Albany R. R. Co., 90 App. Div. 94, 91 N. Y Supp. 412; Matter of Baynes, 140 App.
Div. 735, 126 N. Y. Supp. 132. The right to compensation is created by statute;

the statutory remedy is exclusive, and the measure of damage is determined
by the terms thereof and cannot be assessed on the theory of a trespass. Mat-
ter of Hoy v. Village of Salamanca, 57 Misc. 31, 107 N. Y. Supp. 1208.
832 HIGHWAYS AND BRIDGES.

Highway Law, § § 59a, 60.

changed grade as they stood to the former grade, and make awards accordingly,
except that said board or said commissioners may make gn allowance for benefits
derived by the claimant from such improvement. The amount agreed upon for
such damages, or the award therefor together with the costs, if any, allowed to the
claimant, shall be a charge against such town and the supervisor shall pay the same,
if there be sufficient funds in his hands available, and if not, the town board shall
borrow money for the payment thereof, as provided in section ninety-seven, or
issue certificates of indebtedness therefor, as provided in section ninety-six. Bonds
of the town to raise the money necessary to make such payment, and such bonds
or such certificates of indebtedness shall bear a rate of interest not exceeding five
per centum per annum payable semi-annually. Such bonds shall be in the same
form, and shall be issued and sold in the same manner as other town bonds.
[Highway Law, §59; B. C. & G. Cons. L., 2d Ed., p. 3411.]

Interest on damages for change of grade—Whenever awards shall be lawfully
made, pursuant to any statute of this state, for damages sustained by real estate
or any improvements thereon by reason of any change of grade of any street,
avenue or road in front thereof, the award for the principal amount of damages
sustained shall bear interest at the rate of six per centum per annum from the time
of the change of grade to the time of the payment of the award.35a [Highway Law,
59a, as added by L. 1910, ch. 701, in effect June 25, 1910.]

§ 21. DRAINAGE, SEWER AND WATER PIPES, CATTLE PASSES OR OTHER
CROSSINGS IN HIGHWAYS.

The town superintendent may, with the consent of the town _ board,
upon the written application of any resident or taxpayer of his town or a
corporation, grant permission for an overhead or underground crossing
or to lay and maintain drainage, sewer and water pipes under ground
within the portion therein described of a town highway.” If the high-

 

Consequential damages upon change of grade of state highway. The report of
commissioners to ascertain compensation to be made for the taking of real estate
for state highway purposes, so far as an award therein for consequential damages
depending upon a change of the grade of a state highway, should be set aside,
because the change of grade is not of a town highway. People v. Dawson (1914),
87 Misc, 588, 150 N. Y. Supp. 679.

35a. The interest on the damages allowed is a part of the damages. Matter of
Murphy v. Prendergast (1917), 99 Mise. 326. The statute was enacted to remedy
the defect of failure to provide for the payment of interest as a part of the damages
and has been held to be retroactive. Matter of 14th St. Realty Co. v. Prendergast
(1917) 179 App. Div. 786, 167 N. Y. Supp. 367. The computation is to be made
from the date of the completion of the change of grade although at that time the
statute did not allow interest. Id.

When interest upon an award for damages caused by construction of viaduct in
city of New York should be made under section 951 of the Greater New York
Charter as amended in 1918 and not under this section. Matter of Crane v. Craig
(1920), 193 App. Div. 791, 184 N. Y. Supp. 740.

An award made pursuant to L. 1918, ch. 612, which is silent as to interest,
carries interest under this section. Allen v. State (1921), 115 Mise, 274.

36. Waterworks companies may lay and maintain pipes and hydrants in highways
for the purpose of supplying the inhabitants of the town with water. Sce Trans-
portation Corporations Law, secs. 80, 82. And gas and electrie corporations may
secure the privilege of laying pipes and wires in highways under Transportation
Corporations Law, sec. 61.

For forms of application and permit, see Forms, Nos. 102, 103, post.

Effect of permission. The town officers represent the public and their permission
to construct and maintain a private water pipe in the public highway is
TOWN SUPERINTENDENT; POWERS AND DUTIES. 833

Highway Law, § 61.

way is a state or county highway such permission shall be granted with
the consent of the county or district superintendent instead of the town
board. Permission shall not be granted for the laying and maintaining
of such pipes under the travelled part of the highway, except across the
same, for the purpose of sewerage, and draining swamps or other lands,
and supplying premises with water. Such permission shall be granted
upon the condition that such pipes and hydrants or crossings shall be so
laid, set or constructed as not to interrupt or interfere with public travel
upon the highway, and upon the further condition that the applicant will
replace the earth removed and leave the highway in all respects in as good
condition as before the laying of said pipes, or construction of such cross-
ings, and that such applicant will keep such pipes and hydrants or cross-
ing in repair and save the town harmless from all damages which may
acerue by reason of their location in the highway, and that upon notice
by the town superintendent the applicant will make the repairs required
for the protection or preservation of the highway. The permit of the
town superintendent, with the consent of the town board or county or
district superintendent, and the acceptance of the applicant, shall be
executed in duplicate, one of which shall be filed in the office of the town
clerk and the other in the office of the district or county superintendent.
In case the applicant shall fail to make any of the repairs required to be
made under the permit, they may be made by the town superintendent at
the expense of the applicant, and such expenses shall be a lien, prior to
any other lien, upon the land benefited by the use of the highway for such
pipes, hydrants or structures. The town superintendent may revoke
such permit upon the applicant’s failure to comply with any of the con-
ditions contained therein. [Highway Law, § 60, as amended by L.
1916, ch. 462; B. C.& G. Cons. L., p. 2202.] ;

§ 22. TREES AND SIDEWALKS.

The town superintendent may, by an order in writing, approved by a
majority of the members of the town board, authorize the owners of

 

ficient so far as the public ownership of an easement over the street is con-
erned. But such permission is not effective against an abutting owner whose
title extends to the middle of the highway. Cary v. Dewey, 127 App. Div. 478,
111 N. Y. Supp. 261.

Supervision of town superintendent. Under the former law a contract be-
tween a waterworks company and a town provided for the furnishing of water
to the town and its inbabitants and contained a provision that the company’s
pipes should be laid under the supervision of the commissioner of highways,
their services to be paid for by the company. It was held that the contract
was not invalid because of the clause requiring payment of compensation of the
commissioners bf the company, although subject to close scrutiny. Nicoll v. Sands,
131 N. Y. 19.

Cattle passes, existing under « license from a town need not be rebuilt by
the state. If unsuited to the improved highway the owner must provide for
reconstruction under this section. Rept. of Atty. Genl., Aug. 16, 1910.
834 HIGHWAYS AND BRIDGES.
Highway Law, § 61.

property adjoining the highways, at their own expense, to locate and plant
trees 9? and locate and construct sidewalks ** along the highways, in con-

 

37. Rights of abutting owners, An owner of land, abutting upon a country
road, has substantial rights both in the surface and in the soil on the sides
of such road. He has a right of light, air and access, and to cultivate the
road, and by statutory authority to plant trees along the road in front of his
property; and a pole upon the roadside, supporting electric wires, interfering
with growing trees, and preventing the planting of new ones, is an unsightly
structure and may be dangerous, and is an infringement upon the rights of the
abutting owner. It is of no consequence to what uses the pole and wire are
to be put after they are erected. Palmer v. Larchmont Electric Co., 6 App.
Div. 12; 39 N. Y. Supp. 522, revd. on other grounds, 158 N. Y. 231.

For form of order for planting trees, see Form No. 104, post.

Shade trees. As to allowance for setting out shade trees, see section 63,
post. As to custody of shade trees, see section 64, post. Shade trees belong
to the owners of the abutting lands, section 333, post. As to penalty for injury
to fruit or shade trees, see section 334, post. As to penalty for falling trees
into the highway, see section 335, post.

The statute authorizes abutting owners to set out shade trees without regard
to the ownership of the fee. Edsall v. Howell, 86 Hun, 424; 33 N. Y. Supp. 892.
But the setting out of shade trees, or the building of a sidewalk is not such an
occupation as can be made the foundation of claim to the title of the fee
by adverse possession as against the true owner. Bliss v. Johnson, 94 N. Y.

35.

Willful injury to shade trees. A person who willfully cuts down, girdles
or otherwise injures a fruit, shade or ornamental tree standing on the lands
of another, or of the people of the state, is guilty of a misdemeanor. Penal Law,
sec. 1425, subd. 2. '

Trees planted in « highway, the fee of which belongs to adjacent owners,
are the property of such owners, who may remove them at pleasure; and-the
legislature cannot impose a pena'ty upon him for removing them unless the public
have acquired title by making him compensation for them, Village of Lancaster
v. Richardson, 4 Lans. 136. Trees lawfully set and maintained in the highway
are neither encroachments nor obstructions, and the court has no power to compel
their removal. Town of Wheatfield v. Shasley, 23 Mise. 100, 51 N. Y. Supp. 835.

Treble damages for trespass in cutting shade trees in highway in front of
owner’s lands may be awarded, based upon the easement which the abutting owner
retains in such trees. Such damages may not be recovered unless it appears th
the injury to the trees was not necessary for the improvement of the highway.
Pfohl v. Rupp, 166 App. Div. 630, 152 N. Y. Supp. 47.

Rights of electric corporations in respect to shade trees. In stringing
its wires a corporation has no right to cut branches of trees belonging to abutting
owners, unless such course is demanded by an existing necessity which cannot be
avoided by insulating the wires or by employing other practical means which may
be more expensive and less convenient, Van Siclen v. Jamaica Electric Light Co.,
45 App. Div. 1, 61 N. Y. Supp. 210. The right to the protection of shade trees
vested in the owners of adjoining lands is subservient to the proper and legitimate
use of the highway by the public. .The question as to whether or not the use of
public highways in the country by electric lighting companies is within the proper
public use of such highways is, in all cases, to be determined by the necessity of
the li Me for the proper use of such highways. Farmer v. Larchment Electric Co,
158 N. Y. 231. :
TOWN SUPERINTENDENT; POWERS AND DUTIES. 835
Highway Law, § § 62, 63.

formity with the topography thereof, which order with a map or diagram,
showing the location of the sidewalk and tree planting, certified by the
town superintendent, shall be filed in the office of the town clerk, within
ten days after the making of the order. [Highway Law, § 61; B. C. &
G. Cons. L., 2d Ed., p. 3415.]

§ 23. EXPENDITURES FOR SIDEWALKS,

The town superintendent of any town may, with the consent of the town
board, maintain and repair existing sidewalks in such town, and the ex-
pense thereof shall be a town charge. Where such sidewalk shall consist
of a board walk not more than ten feet in width located on a highway less
than two rods in width the town superintendent of such town may main-
tain and repair such board walk or renewal thereof and with the consent
of the town board may replace such board walk with a walk of concrete or
other suitable construction and the expense thereof shall be a town charge.
The town board of any such town may on the petition of not less than
twenty-five taxpayers of the town, by resolution, direct the town superin-
tendent to construct a sidewalk along a described portion of any highway
of the town, in the manner and not exceeding an expense to be specified
in the resolution, and the expense of constructing such sidewalk shall be a
town charge, and shall be paid in the same manner as other town charges.
The provisions of this section shall not apply to towns in a county having a
population of not more than two hundred and fifty thousand, adjoining
a city of the first class having a population of one million or more. [THigh-
way Law, § 62, as amended by L. 1915, ch. 322, and L. 1921, ch. 637]

§ 24. ALLOWANCE FOR SHADE TREES.
There shall be allowed by the town superintendent, with the consent

 

38. Sidewalks as part of highway. Sidewalks are a part of tie highway,
and the owners of the adjoining lands have no greater duty in regard to keeping
them in repair than they have in regard to any other part of the highway. Village
of Fulton v. Tucker, 3 Hun, 529. A town which constructs a highway with a side-
walk in an incorporated village is under the same obligation to keep it in order
as exists in the case of the center of the street. Birngruber v. Town of Eastchester,
54 App. Div. 80; 66 N. Y. Supp. 278; and see Clapper v. Town of Waterford, 131
N. Y. 382; 30 N. E. 240. :

The controlling principle in the case of injuries caused by defective sidewalks
is stated in the case of Saulsbury v. Village of Ithaca, 94 N. Y. 27, where it is
said: “It is true that whether a municipal corporation shall build, or permit to
be built, a sidewalk on any of its streets, is a matter of discretion not to be regu-
lated by the courts; yet when a sidewalk is built with or without its permission
it becomes responsible for its condition, and is bound, so long as it exists, to keep
it in order.”

Establishment of sidewalk districts, and the maintenance of sidewalks
therein, by the town board, see Town Law, §§ 250-254, ante. é

Driving animals on sidewalks. Section 1907 of the Penal Law provides
that: “A person who wilfully and without authority or necessity drives any team,
vehicle, cattle, sheep, horse, swine or other animal along upon a sidewalk is punish-
abie by a fine of fifty dollars, or imprisonment in the county jail not exceeding thirty
days, or both.”
836 HIGHWAYS AND BRIDGES.
Highway Law, §§ 64, 65.

of the town board, to each such owner or occupant, who shall set out or
transplant by the side of the highway adjoining his premises, any forest
shade trees, fruit trees, or nut bearing trees suitable for shade trees, in
conformity with the preceding section, the sum of one dollar for each
three living trees so set out or transplanted, to be paid by the supervisors
to such owner or occupant, upon the order of the town superintendent out
of moneys levied and collected for miscellaneous purposes. Such allowance
shall only be made for trees so set out or transplanted during the preceding
year, and living and well protected from animals at the time of the allow-
ance. Such trees shall be set out or transplanted not more than eight
feet from the outside line of any highway three rods wide, and not more
than one additional foot distant therefrom, for each additional rod in
width of highway, and not less than seventy feet apart, on the same side
of the highway, if elms, or fifty feet, if other trees. Trees transplanted by
the side of the highway, in place of trees which have died, shall be allowed
for in the same manner. [Highway Law, § 63; B. C. & G. Cons. L., p.
2205.]

§ 25. CUSTODY OF SHADE TREES.

The town superintendent shall have the full control of all shade trees
in the public highways of the town, but not within the limits of an incor-
porated village, and shall prosecute complaints for malicious injury to, or
unlawful acts concerning, public shade trees.** Upon the reeommenda-
tion of the town superintendent, the town board may, by resolution, ap-
propriate a sum, not exceeding two hundred dollars, to be known as the
“Shade Tree Fund.” Such fund shall be placed in the hands of the
supervisor as custodian, and shall be expended by him upon the written
order of the town superintendent, for the setting out and preservation of
shade trees along the highways in such town. [Highway Law, § 64; B.
C. & G. Cons. L., p. 2205.]

§ 26. COMPENSATION FOR WATERING TROUGHS.

The town superintendent may, with the consent of the town board,
authorize the owner or occupant of lands to construct and maintain a
watering trough beside the public highway, to be supplied with fresh
water, the surface of which shall be three or more fect above the level of
the ground and easily accessible for horses with vehicles, but when possi-
ble, all such watering troughs shall be constructed on the lower side of the
highway.” Such watering trough shall be maintained by such owner or

 

38a. Permission to trim and cut shade trees without assent of town super-
intendent.—An owner of adjacent land, who has planted trees along the high-
way to which he owns the fee subject to the use by the public, may permit a
telephone and telegraph company to trim or cut such trees without assent of
the town superintendent. Rept. of Atty. Genl., May 4, 1911.

89, Abatement of toll for watering trough. Where a watering trough is
TOWN SUPERINTENDENT; POWERS AND DUTIES. 837
Highway Law, §§ 66, 67.

occupant and kept supplied with fresh water. The town superintendent
shall annually give a written order upon the supervisor for three dollars
to be paid to such owner or occupant by the supervisor, for maintaining
such watering trough, and keeping the same supplied with fresh water, out
of moneys levied and collected for miscellaneous purposes. [Highway
Law, § 65; B. C. & G. Cons. L., p. 2205.]

§ 27. CREDIT ON PRIVATE ROAD.

Any person living upon a private road may be credited on account of his
highway taxes in any year an amount equal to the value of the work which.
the town superintendent may deem necessary to be done in such year upon
such road. The town superintendent shall issue to him a statement con-
taining the name of the person, the location of the road, the amount of work
so deemed necessary to be done, and the value thereof. Such statement
shall be presented to the town board at its annual meeting for the audit of
town accounts, and if approved by such board, and such work shall have been
done, an order shall be issued directing the supervisor to pay the sum
specified in such statement to the person therein named, or his assignee,
out of moneys in the hands of the supervisor available for highway pur-
poses. The amount so paid in any vear shall not exceed the amount
payable by the person named in such statement on account of moneys levied
in such town for the repair and improvement of highways as provided
in this chapter. This section shall not apply to private roads or rights
of way over lands of the owner thereof used by him for his own con-
venience.*® [Highway Law, § 66; B. C. & G. Cons. L., p. 2206.]

§ 28. NEGLECT OR REFUSAL TO PROSECUTE.

If the town superintendent shall neglect or refuse to prosecute for any
penalty, knowing the same to have been incurred, he shall be liable to a
penalty of ten dollars for every such neglect or refusal, which shall be

 

constructed and maintained by an owner of premises along a turnpike or
plankroad, the company owning such plankroad or turnpike must abate the
toll of such owner in the annual sum of three dollars. The town superintendent
of the town in which the watering trough is constructed must designate the
watering troughs along such plankroad or turnpike necessary for public con-
venience. See Transportation Corporations Law, § 130.

For form of certificate of authority, see Form No. 105, post.

40. Private roads are to be laid out as provided in Highway Law, secs.
211-225, post. The use of a private road, is prescribed by Idem, sec. 226, post.

For form of statement of credit, see Form No. 106, post.
838 HIGHWAYS AND BRIDGES.

Highway Law, § 68.

recovered by action in the name of the town, by the supervisor, or by any
taxpayer of the town who shall indemnify the town for the costs and ex-
pense of the action, in such manner as the supervisor may approve.‘
[Highway Law, § 67; B. C. & G. Cons. L., p. 2206.]

§ 29. ERECTION OF GUIDE BOARDS.

The town superintendent may, with the consent of the town board,
cause guide posts with proper inscriptions and devices to be erected at the
intersections of such highways therein, as may be necessary, which shall
be kept in repair by him at the expense of the town. Upon written appli-
cation to him, of five resident taxpayers of any town or twenty resident
taxpavers of the county in which such town is located, requesting the
erection of one or more guide boards at the intersection of highways in
such town, it shall be his duty to cause to be erected at the intersections
mentioned in such application, such guide boards indicating the direction,
distances and names of the towns, villages or cities to or through which
such intersecting highways run. Such application shall designate the
highway intersections at which such guide boards are requested to be
erected, and may contain suggestions as to the inscriptions and devices to
be placed upon such boards. The cost of the erection and maintenance of
such boards shall be a town charge. If the town superintendent refuses
or neglects for a period of sixty days after receiving such application to
comply with the request contained therein, he shall, for such neglect or
refusal, forfeit to the town, the sum of twenty-five dollars, to be recovered
by the supervisor in the name of the town, and the amount so recovered
shall be set apart for the erection of such guide boards.*? [Highway Law,
§ 68; B. C. & G. Cons. L., p. 2206.]

 

41. Collection of penalties. This section evidently has reference to the duty
of the town superintendent to collect all penalties prescribed by this chapter,
as required by Highway Law, sec. 47, subd. 12, ante.

For actions to recover penalties under the former law, see Bentley v. Phelps,
27 Barb. 524 (1858); McFadden v. Kingsbury, 11 Wend. 667 (1834); Bartlett
v. Crozier, 17 Johns. 439 (1820); Haywood v. Wheeler, 11 Johns. 432 (1814).

42. Other provisions relative to milestones and guideposts. A willful or
malicous injury to milcboards, milestones or guideposts is a misdemeanor.
Penal Law, § 1423. sub. 11, as added by L. 1911, ch. 316.

Whoever shall injure, deface or destroy a milestone or guidennst erected on
any highway shall, for every such offense, forfeit treble damages See Higch-
way Law, sec. 330, post. It is thus provided that a person who injures a
milestone or guidepost may be proceeded against either criminally under the
Penal Law, or civilly under the Highway Law. As to erection of milestones
TOWN SUPERINTENDENT; POWERS AND DUTIES. 839
Highway Law, §§ 69-71.

§ 30. MEASUREMENT OF HIGHWAYS AND REPORT.

Within six months after the taking effect of his chapter, and as often
as the commission shall direct, the town superintendent shall measure all
highways of his town. Such measurements shall be made either by the use
of a cyclometer or otherwise as the commission shall direct. He shall
ascertain, and indicate in his report, the town highways which have been
surfaced with gravel, those which have been surfaced with crushed stone

_and those which have been shaped and crowned. He shall report in trip-
licate on forms to be prescribed and furnished by the commission, the total
mileage of all highways within his town, specifying as above provided as
to town highways, one of which shall be filed with the town clerk, one
with the district or county superintendent, and one with the commission.
[Highway Law, § 69; B. C. & G. Cons. L., p. 2207.]

§ 31. APPLICATION FOR SERVICE OF PRISONERS.

After satisfying himself that proper quarters can be secured, the town
superintendent may, with the consent of the town board, request the super-
visor of the town, under the provisions of section ninety-three of the
county law, to procure the services of prisoners serving sentence in the
county jail, for general work upon the public highways of the town.
[Highway Law, § 70; B. C. & G. Cons. L., p. 2207.]

§ 32. CONSTRUCTION AND REPAIR OF APPROACHES TO PRIVATE
LANDS.

The owners or occupants of lands shall construct and keep in repair all
approaches or driveways from the highway, under the direction of the
district or county superintendent, and it shall be unlawful for such owner
or occupant of lands to fill up any ditch or place any material of any kind
or character in any ditch so as to in any manner obstruct or interfere with
the purposes for which it was made. The town superintendent may, when

 

and guideposts by turnpike and plankroad companies, see Transportation
Corporations Law, sec. 136, post.

For form of application for erection of guide boards, see Form No. 107,
post.

State and county highways. In the preparation of maps, plans, specifica-
tions and estimates for the construction or improvement of State and county
highways provision must be made for the erection of suitable guideposts.
Highway Law, sec. 125, subd. 7, post.

The expense of erecting and maintaining guideboards is made by tbis section
a town charge and is payabie by the supervisor upon the order of the town
superintendent after audit by the town board, as provided in Highway Law,
sec. 106, post.
340 HIGHWAYS AND BRIDGES.
Highway Law, §§ 72, 73.

directed by the town board, construct and keep in repair such approaches
and the expense thereof shall be a town charge#* [Highway Law, § 71;
B. C. & G. Cons. L., p. 2208.]

§ 33. UNSAFE TOLL BRIDGE.

Whenever complaint in writing, on oath, shall be made to the town
superintendent, of any town in which shall be in whole or in part any toll
bridge belonging to any person or corporation, representing that such toll
bridge has from any cause become and is unsafe for the public use, such
town superintendent shall forthwith make a careful and thorough examina-
tion of such toll bridge, and if upon the examination thereof he shall be
ot the opinion that the same has from any cause become dangerous or un-
safe for public use, he shall thereupon give immediate notice to the owners
of such toll bridge, or to any agent of such owners, acting as such agent in
respect to such bridge, that he has, on complaint made, carefully and
thoroughly examined the bridge and found it to be unsafe for public use.
Such owners shall therenpon immediately commence repairing the same,
and cause such repairs to be made within one week from the day of such
notice given, or such reasonable time thereafter as may be necessary to
thoroughly repair the bridge, so as to make it in all respects safe and con-
venient for public use. For neglect to take prompt and effective meas-
ures so to repair the bridge, its owners shall forfeit twenty-five dollars, and
shall not demand or receive any toll for using the bridge until the same
shall be fully repaired. The town superintendent shall cause such repairs
to be made and the owners of the bridge shall be liable for the expense
thereof, and for the services of the superintendent, and upon the neglect
or refusal to pay the same upon presentation of an account therefor, the
town superintendent may: recover the same by action, in the name of the
town. [Highway Law, § 72; B. C. & G. Cons. L., p. 2208.]

§ 34. ACTIONS FOR INJURIES TO HIGHWAYS.

The town superintendent shall bring an action in the name of the town,
against any person or corporation, to sustain the rights of the public, in
and to any town highway in the town, and to enforce the performance
of any duty enjoined upon any person or corporation in relation thereto,

 

42a, Plans for underground crossings of a railroad, providing for sidewaiks
through the pronosed subway, may be approved by the highway commission;
Dut such commission cannot approve plans for construction of approaches to
highways on lands of adjacent owners. Rept. of Atty. Genl., March 11, 1911.

43. Toll bridge corporations. Rights, duties and liabilities of toll bridge cor-
porations in respect to toll bridges are set forth in Transportation Corporations
Law, secs. 122-151.

Form of complaint of unsafe toll bridges, see Form No, 108, post,
TOWN SUPERINTENDENT; POWERS AND DUTIES, 841
Highway Law, § 73.

and to recover any damages sustained or suffered, or expenses incurred by
such town, in consequence of any act or omission of any such person or
corporation, in violation of any law or contract in relation to such high-
way.* [Highway Law, §73; B. C. & G. Cons. L., 2d Ed., p. 3421.]

 

44, Penalties for injuries to highways are prescribed by section 330 of the High-
way Law, post. It is also provided in sec. 47, subd. 12, and sec. 337 of the High-
way Law, ante, that all penalties incurred pursuant to the Highway Law shall
be recovered by the town superintendent in the name of the town.

Abatement of nuisance. A town superintendent may abate a nuisance caused
by an unsafe bridge over a mill-race by repairing the same at the expense of the
owner, and an action will lie against such owner for the amount expended. Town
of Clay v. Hart, 25 Misc. 110; 55 N. Y. Supp. 43.

Surrendering turnpike. Where a turnpike has been abandoned the owners may
be compelled, by an action brought under this section, to surrender possession of
all parts of the turnpike road to the control of the town superintendent. Town
of Palatine v. N. Y¥. C. & H. R. R. R. Co, 22 App. Div. 181; 47
N. Y. Supp. 1024.

Drainage commissioners appointed for the drainage of marsh lands, who, with-
out the consent of the town authorities, cut a channel for the drainage of water
across a town highway, and have omitted to construct a suitable bridge across
such channel, may be compelled to construct such bridge by an action maintainable
under this section in the name of the town, in spite of the fact that the statute
under which the drainage commissioners acted did not in express terms confer
upon them the power to construct such bridge. Town of Conewango v. Shaw, 31
App. Div. 354; 52 N. Y¥. Supp. 327.

Railroads using highways. A railroad corporation may construct its railroad
upon or along a highway upon the order of the Supreme Court of the district in
which such highway is situated upon at least ten days’ notice to the town super-
intendent of highways. Where such railroad is so constructed, it is made the duty
of the corporation to restore the highway to its former state, ‘or to such state
as not to have unnecessarily impaired its usefulness.” See Railroad Law, sec. 22.

The intention of the statute is to impose upon a railroad company, whose track
is upon an original highway, the duty of maintaining the restored as well as of
restoring the original highway, at least so far as affected by its own operations;
and so long as changes are made in the highway by the railroad, or occur in con-
sequence of its operation, which affect the safety of the highway, the statutory
duty to preserve the usefulness of the highway attaches and remains until fully
complied with, Allen v. Buffalo, Rockland and Pittsburg R. Co., 151 N. Y. 434;
45 N. E. 845; see, also, Schild v. Central Park, etc., R. R. Co., 183 N. Y. 447, 31 N. E.
327; Wiley v. Smith, 25 App. Div. 351; 49 N. Y. Supp. 934; Town of Windsor v.
D. & H. GC. Co., 92 Hun, 127; 36 N. Y. Supp. 863.

The town superintendent of highways of a town has no power to control the
location of a railway within the line of the highway of the town, and while for
any failure of the railroad company in the performance of the duty of restoration,
he is authorized by the above section to maintain an action for its performance
in the name of the town, or for damages sustained by the town, it is for the
company in the first instance to determine the method of restoration. Post v.
West Shore R. R. Co., 123 N. Y. 580; 26 N. B. 7. If the railroad has proceeled
to restore a highway in a manner which has proven ineffectual, the town super-
intendent may by mandamus compel a proper performance of the duty of the
railroad company, and the court in the writ should point out how the corporation
has failed in its duty, and direct particularly what should be done so that it
may not fail again. People ex. rel. Green v. Duchess and Columbia R. R. Co.,
58 N. Y. 152. See, also, McMahon v. 8, A. R. R. Co. 75 N. Y. 231; Master-
son v. N. Y. C. & H. R. R. Co., 84 N. Y. 247,

A street railroad company is required by §11 of the Railroad Law to restore
the highwavs to the condition in which they were before the railroad was con-
structed; and it is made the duty of the town superintendent, by this section,
842 HIGHWAYS AND BRIDGES.

Highway Law, § 74.
§ 35. LIABILITY OF TOWNS FOR DEFECTIVE HIGHWAYS,

Every town shall be liable for all damages to persons or property sus-
tained by reason of any defect in its highways or bridges, existing because
of the neglect of any town superintendent of such town. No action shall
be maintained against any town to recover such damages, unless a verified
statement of the cause of action, including the time and place at which
such injury is alleged to have been received, shall have been filed with the
town clerk and supervisor of the town within ninety days after the cause
of action accrued. And no such action shall be commenced until fifteen
days after the service of such statement. [Highway Law, § ‘4, as
amended by L. 1913, ch. 389, and L. 1918, ch. 161; B. C. & G. Cons. L.,
2d Ed., p. 3423.]

to compel such company to make such restoration and in case of a failure he
may bring an action in the name of the town against the company. Report of
Atty. Genl. (1902), 230.

Application to villages. Since § 141 of the Village Law constituted a village a
“separate highway district,” the trustees of a village may maintain an action
under this section to prevent an encroachment upon a village street. Village of
Oxford v. Willoughby, 181 N. Y. 155. A village being a separate highway dis-
trict, the authority of the town superintendent is transferred to and vested in
the village authorities and the latter may resort to a court of equity for the
preservation of the village streets and highways. Village of Haverstraw v. Eck-
erson, 192 N. Y. 54, affg. 124 App. Div. 18, 108 N. Y. Supp. 506.

45. Under the statute a town is liable only for the negligence of the town
superintendent. Hence, where the plaintiff’s horse ran away and injured her
owing to the fact that it became frightened by the smell left by powder which
had been used by the overseer of the road district in blasting rock for the road-
bed, the town is not liable unless it appear that the work was done under the
direction of the town superintendent, or that he knew that it was going on, or
that by the exercise of reasonable diligence he could have known of the condition.
Booth v. Town of Orleans, 147 App. Div. 240.

Defective highways. A consideration of the law relating to the liability of
towns for injuries caused to users of the highway by defects therein is beyond the
scope of this work. The cases which have arisen under the above section are
very numerous. They involve « determination of what constitutes a defect and
what is negligence upon the part of the town or the highway officers. ‘Nearly. if not
all, of such cases are cited in B, C. & G. Cons. L., pp. 2210-2216, to which reference
is here made.

See, Dorrer v. Town of Callisoon (1918), 183 App. Div. 186, 170 N. Y. Supp. 676.

As to effect of failure to cut passage through drifted snow in center of highway,
see, Robinson v. Town of Somers (1919), 189 App. Div. 792, 179 N. Y. Supp. 107.

Liability for failure to guard approach to bridge. Deyoe v. State (1920), 112
Mise, 423, 183 N. Y. Supp. 126, revd. 197 App. Div. 716.

To place gravel upon the dirt part of a State highway worn away from time to
time and thereby bring it up to the level of the macadam surface part of the
road is not negligence on the part of the State. Best v. State (1921), 114 Misc.
272, 186 N. Y. Supp. 359.

Improper construction of culvert. Bowman v. Town of Chenango (1920), 227
N.Y. 459, 125 N. E. 809, revg. 184 App. Div. 472, 171 N. Y. Supp. 1079.

Railroad company not liable for defects in highway caused by erection of fence
along railroad right of way to prevent snow drifting on tracks. It was the duty
of the town superintendent to keep the highway in a passable condition. The rail-
road company had a legal right to erect the fence on its own land and if there was
any liability for the injuries caused by the snow in the highway, it was that of
the town. Cooney v. Northern Central Ry, Co. (1917), 180 App. Div. 675, 167
N. Y. Supp. 865.

Sufficiency of statement. Where the statement has served the object intended
by the statute, viz., to give the town notice of the claim, such statement did
not operate to limit proof of the actual extent of the plaintiff’s injuries nor the

 
TOWN SUPERINTENDENT; POWERS AND DUTIES. 843
Highway Law, § 75.

§ 36. ACTION BY TOWN AGAINST SUPERINTENDENT. :

If a judgment shall be recovered against a town for damages to person or
property, sustained by reason of any defect in its highway or bridges, existing
because of the neglect of any town superintendent, such town superintendent shall
be liable to the town for the amount of the judgment, and interest thereon, but
such judgment shall not be evidence of the negligence of the superintendent in the
action against him.46 [Highway Law, § 75; B. C. & G. Cons. L., p. 3433.]

 

amount of damages she could recover. Eggleston v. Town of Chautauqua, 90
App. Div. 314, 86 N. Y. Supp. 276. The object of the statute plainly is that the
town shall have fair and timely notice of the cause of action and of the claim made
against it, and time is given after the notice and before the suit is commenced
for the town to examine into the claim and decide what to do with reference to it.
This notice is not required to have all the formalities of a complaint or of a bill
of particulars; its purpose is served by bringing the general nature of the claim
to the attention of the town. Quinn v. Town of Sempronius, 33 App. Div. 79, Lo
N. Y. Supp. 325; Eggleston v. Town of Chautauqua, 90 App. Div. 314, 86 N. Y.
Supp. 279; Brothers v, Leon (1921), 198 App. Div. 144, 189 N .Y. Supp. 599.

The legislature having made the presentment of the statement of the cause of
action to the supervisor a prerequisite to the bringing of an action the court
cannot permit any substitute for it; the statute must be strictly complied with;
so, where plaintiff's attorney wrote a letter to the supervisor, which was not
returned as not being the statement required, and the town officers acted thereon
and negotiated for a settlement with plaintiff, the claimant is not relieved from
a literal compliance with the statute, nor have the town officers the power to waive
the statutory requirement. Bourst v. Town of Sharon, 24 App. Div. 599, 48 N. Y.
Supp. 996. \

A verified statement in the following language:

“Town of Sardinia.

“To Ella D. Spencer, administratrix of the estate of Frank Spencer, late of the
town of Sardinia, Erie County, N. Y., debtor.
“To damages resulting from the death of Frank Spencer, caused by the breaking
of an unsafe and defective bridge in the highway in said town near the residence
of Mr. Henshaw, $20,000.
“Dated, Sardinia, N. Y., November 5, 1897.
“ELLA D. SPENCER,

“ Administratrix.”

Subjoined to this statement was an affidavit of the administratrix. It was held
that this statement was sufficnently definite and specific to give the authorities
of the town opportunity to investigate and determine whether they would allow the
claim. Spencer v. Town of Sardinia, 42 App. Div. 472; 59 N. Y. Supp. 412.

The statement should state facts showing the occurrence of the accident, the
defects in the highway or bridge which caused it, that the town superintendent
was negligent and the plaintiff was free from negligence, and that the plaintiff was
injured and was entitled to damages therefor. It might well state the nature and
extent of the injuries sustained, and the amount of damages claimed therefor, but
the amount of damages would be merely an estimate and the plaintiff would
not be restricted to the amount stated. Eggleston v. Town of Chautauqua, 90 App.
Div. 314, 86 N. Y. Supp. 279. The notice should state the time and place of the
injury. Lutes v. Town of Warwick, 149 App. Div. 809, 134 N. Y. Supp. 298.

An action against a town for damages to persons or property sustained by reason
of any defect in its highway or bridges existing because of the neglect of the town
superintendent of highways can be maintained only by virtue of this section; but
where the complaint, otherwise good, contains no allegation that a verified state-
ment of the cause of action was filed with the town clerk within six months after
the cause of action accrued, as required by said section, the complaint must be
dismissed, with leave to serve an amended complaint on payment of a full bill of
costs. Dye v. Town of Cherry Creek (1914), 87 Misc. 207, 149 N. Y. Supp. 497.

The purpose of the notice required by section 74 of the Highway Law before
bringing an action against a town for damages is to fairly apprise the officers of the
844, HIGHWAYS AND BRIDGES.
Highway Law, §§ 76, 77.

§ 37. AUDIT OF DAMAGES WITHOUT ACTION.

The town board of any town may audit as a town charge, in the same manner as
other town charges are audited, any one claim not exceeding five hundred dollars,
for damages to person or property, heretofore or hereafter sustained by reason of
defective highways or bridges in the town, if in their judgment it be for the interest
of the town so to do; but no claim shall be so audited unless it shall have been pre-
sented to the supervisor and town clerk of the town within ninety days after it
accrued, nor if any action thereon shall be barred by the statute of limitations.47
The town board may also audit any unpaid judgment heretofore or hereafter re-
covered against a town superintendent for any such damages, if such town board
shall be satisfied that he acted in good faith, and the defect causing such damages
did not exist because of the negligence or misconduct of the superintendent against
whom such judgment shall have been recovered. [Highway Law, § 76, as amended
by L. 1918, ch. 161; B. C. & G. Cons. L., p. 3434.]

§ 38. CLOSING HIGHWAYS FOR REPAIR OR CONSTRUCTION.

If it shall appear necessary to close any state or county highway in order to permit
a proper completion of any work of improvement thereon conducted by the state,
county or town, the district or county superintendent shall, upon request of the
division engineer, or direction of the state commissioner of highways, execute a
certificate and file the same in the office of the town clerk of the town in which such
highway is situated. If it shall appear necessary to a district or county superintend-
ent to close a town highway or county road, which is being constructed, improved,
or repaired under this chapter so as to permit a proper completion of such work,
said district or county. superintendent shall execute a similar certificate and file
the same in the office of the town clerk in which such highway is situated and send
two copies thereof to the division engineer. In either case, such certificate shall

 

town of the nature and circumstances of the accident, so that they may investigate
the same fully and intelligently, and with certainty as to the place and conditions
of the accident. Such a notice, to the efiect that on a certain date while the plain-
tiff was driving his horse to a certain place, and when he was about twenty-five rods
below the foot of a certain hill in the town stated, tie horse stepped through a hole
in a sluice and broke her leg, making it necessary to shoot her, damaging the plain-
tiff to a certain sum, no part of which has ever been paid, is a substantial compli-
ance with the statute. Jt seems, that the notice need not be framed with the same
particularity as a complaint, and need not contain facts showing that the commis-
sioner of highways was negligent, and that the plaintiff was free from negligence.
Griffin v. Town of Ellenburgh (1916), 171 App. Div. 713, 157 N. Y. Supp. 813.

46. Liability of town superintendents. Town superintendents since the act
of 1881, ch. 700, are no longer liable for their negligence to persons injured; the
primary liability to such persons is that of the town. Williams v. Village of Port
Chester, 97 App. Div. 84, 89 N. Y. Supp. 671; Bowman v. Town of Chenango
(1920), 227 N. Y. 459, 125 N. E. 899, revg. 184 App. Div. 472, 171 N. Y. Supp.
1079. The section, as it existed in the former Highway Law, was passed in view
of the law as it had been announced by the courts without contemplating any
change. People ex rel. Cole v. Cross, 87 App. Div. 56, 88 N. Y. Supp. 1083.

Where the commissioner of highways of a town negligently permits the highways
to become out of repair, « person sustaining injuries thereby may bring an action
against the commissioner individually, notwithstanding the provisions of this sec-
tion, permitting an action to be brought against the town because’ of the neglect
of its highway commissioner. Campbell ¥. Powers (1913), 155 App. Div. 862.

Rule at common law. Bowman v. Town cf Chenango (1920), 227 N. Y. 459,
125 N. E. 809, revg. 184 App. Div. 472, 171 N. Y. Supp. 1079.

Proof of negligence. The negligence of the town superintendent, although
established in the action against the town, must be again proved in the action by
the town against the superintendent. Lane v. Town of Hancock, 142 N. Y. 510.
See also Waller v. Town of Hebron, 5 App. Div. 577, 39 N. Y. Supp. 381.

Liability of town superintendent to town is the test of the town’s liability.
Mack v. Town of Shawangunk, 98 App. Div. 577, 90 N. Y. Supp. 760.

47, Audit of town accounts. Town accounts are to be audited as provided in
sec. 1383 of the Town Law, post. See, also, Highway Law, sec. 106, post.

Judgments against a town are town charges. See Town Law, sec. 170, post.
TOWN SUPERINTENDENT; POWERS AND DUTIES, 845

Highway Law, §§ 78, 79.

state the necessity for the closing of such highway and describe the portion thereof
to be closed; not more than two miles of any highway shall be closed at any one
time. At the time of filing such a certificate said district or county superintendent
shall notify the contractor who is constructing, improving or repairing said state
or county highway that the same is closed to public travel until otherwise notified
and shall cause to be posted conspicuous notices to the effect that the highway is
closed. It shall thereupon be the duty of said contractor to erect suitable obstruction
for closing said state or county highway, including the necessary lights which shall
be visible to any one approaching such obstruction from one hour after sunset to
one hour before sunrise and said contractor shall notwithstanding any general or
special law be liable for all damages to persons or property sustained by reason of
not so erecting and so lighting such suitable obstruction. If the work of improve-
ment, construction or repairs upon a state or county highway is being performed
by state forces, or otherwise than by contract, the representative of the state depart-
ment of highways in charge of such work, shall at the time of the filing of such
certificate, post conspicuous notices to the effect that the highway is closed, and
shall erect and maintain a lighted obstruction in the same manner as hereinbefore
described. At the time of filing such a certificate relating to a town highway or
county road by the district or county superintendent, he shall notify the town supcr-
intendent to close said town or county road who shall thereupon close the same to
public travel by posting conspicuous notices to the effect that the highway is closed
and by erecting and maintaining a lighted obstruction in the manner herein before
described. In case of the closing of any highway under the provisions of this sec-
tion, the town superintendent shall, if practicable, provide a new location for, and
construct a temporary highway to be used by the traveling public in lieu of the
closed highway and may erect temporary bridges when necessary, or cause other
existing highways to be used, when so directed by the district or county superin-
tendent. For the purpose of locating, constructing and erecting such temporary high-
way or bridge the town superintendent may enter upon the lands adjoining or ncar
to the closed highway and may, with the approval of the town board, agree with
the owners of such land as to the damages if any caused thereby. If the town
superintendent is unable to agree with such owner upon the amount of damages
thus sustained the amount thereof shall be ascertained, determined and paid as pro-
vided in section fifty-eight. When such highway shall have been closed to the public
as provided herein any person who disregards the obstruction and notice, and drives,
rides or walks over the portion of the highway so closed shall be guilty of a mis-
demeanor. The district or county superintendent in his discretion may temporarily
close a town highway or a county road for a period of not to exceed ten days. In
closing such highway or road the district or county superintendent shall proceed in
the manner provided in this section, and he shall immediately transmit to the
division engineer a written notice of such closing. The provisions of this section
with regard to the closing of highways generally shall apply im like manner to such
temporary closing.48 [Highway Law, § 77, as amended by L. 1911, ch. 646, L.
1918, ch. 148, and L. 1920, ch. 557.]

§ 39. ADOPTION OF LABOR SYSTEM FOR REMOVING SNOW.

The town board of any town at its annual meeting on the first Thursday after

 

 

48. Laws of 1919, ch. 557, § 2, provides: “ Any highway or county road under
contract for construction, improvement or repair executed prior to June first, nine-
teen hundred and twenty, shall be closed under the provisions of this section as the
same existed on the first day of January, nineteen hundred and twenty. No pro-
vision contained in this section shall be construed so as to prevent a public service
corporation from having access to its works, structures or conductors in, under, ad-
joining or along any road or highway, for the purposes of alterations or repairs
to such works, structures or conductors.??
846 HIGHWAYS AND BRIDGES.
Highway Law, § 80.

general election, may, by resolution, determine that no money shall be raised in such
town for the ensuing year for the removal of obstructions in the highways caused
by snow, and that such obstructions shall be removed by the labor of persons and
corporations liable to be assessed in such towns for highway taxes. [Highway Law,
§ 78; added by L. 1909, ch. 488, and amended by L. 1910, ch. 136, in effect Apr.
21, 1910; B. C. & G. Cons. L., p. 3435.]

§ 40. ASSESSMENT OF LABOR FOR THE REMOVAL OF SNOW.

The town superintendent of a town in which the obstructions in the highways
caused by snow shall be removed by the labor of persons and corporations liable to
assessment in each town for highway taxes, pursuant to the last preceding section
shall annually on or before November fifteenth divide the town into a convenient
number of highway districts and file a description thereof in the office of the town
clerk, and before such date shall make an estimate giving the probable number of
days’ labor needed during the following year for the removal of obstructions caused
by snow in the highways and for the prevention of such obstructions and shall assess
one day’s labor upon each male inhabitant of the town above the age of twenty-one
years, excepting honorably discharged soldiers and sailors who lost an arm or a
leg in the military or naval service of the United States, or who are unable to per-
form manual labor, by reason of injuries received or disabilities incurred in such
service, members of any fire company formed or ereated pursuant to any statute,
and situated within such town, persons seventy years of age or over, clergymen and
priests of every denomination, paupers, idiots and lunatics. The balance of such
estimated number of days shall be apportioned and assessed upon the estate, real
and personal, of every inhabitant of the town, including corporations liable to
taxation therein, as the same shall appear by the last assessment roll of the town,
and upon each parcel or tract of land owned by the nonresidents, excepting such as
are occupied by an inhabitant of the town, which shall be assessed to the occupant.
The assessment of labor for personal property must be in the district in which the
owner resides, and real property in the district where it is situated, except that the
assessment of labor upon the property of corporations may be in any district or
districts of the town, and such labor may be worked out or commuted for as if the
corporation were an inhabitant of the district; but the real property within an
incorporated city or village exempted from the jurisdiction of tho town superin-
tendent, and personal property of an inhabitant thereof, shall not be assessed for
such labor by the town superintendent. Whenever the assessors of any town shall
have omitted to assess any inhabitant, corporation or property therein, the town
superintendent shall assess the same, and apportion the labor as above provided.
[Highway Law, § 79, as added by L. 1909, ch. 488, and amended by L. 1910, ch. 136,
in effect Apr. 21, 1910.]

§ 41, LISTS OF PERSONS ASSESSED FOR REMOVAL OF SNOW.

A copy of the lists of persons and corporations assessed shall be prepared
by the town superintendent and filed in the office of the town clerk. The
town superintendent may at any time file in the office of the town clerk
a supplemental list containing the names of persons or corporations
omitted from the original list, and the names of new inhabitants, and shall
assess them in proportion to their real and personal estate as others as-
sessed by him on such list. [Highway Law, § 80, as added by L. 1909,
ch. 488; B. C. & G. Cons. L., p. 2219.]
TOWN SUPERINTENDENT; POWERS AND DUTIES. $47
Highway Law, §§ 81, 82.

§ 42. DISTRICT FOREMAN; RETURN AND LEVY OF UNWORKED
TAX,

The town superintendent shall also, immediately after the town has been
divided into districts as provided in section seventy-nine of this chapter,
appoint a foreman in each district, who shall be a taxable resident thereof,
who shall serve for one year and until his successor is appointed and shall
receive such per diem compensation, not exceeding two dollars per day, for
time actually spent in performing his duties, as the town board may
prescribe, payable as the compensation of others town officers is paid.
The superintendent shall prepare, from the lists prescribed in section
eighty, a separate list for each district of persons and corporations assessed
therein for the then current year for labor in removing obstructions caused
by snow, showing the number of days’ labor for which each person or cor-
poration is assessed, and shall deliver each such list to the foreman of the
proper district. It shall be the duty of each foreman to notify the several
persons and corporations thus assessed, or such of them as the occasion
demands, from time to time as needed, that they are required to appear
and perform labor in the removal of obstructions caused by snow at a time
and place stated by the foreman. On or before the first day of May each
district list, showing the portions worked or commuted for, the portions
in which parties were notified but failed to perform work after being so
notified, and the portions upon which no notice to perform work was
served, shall be returned by the district foreman to the town superin-
tendent. All assessments upon which parties have been notified and
failed to appear or commute shall then be certified by the town superin-
tendent to the town board, who shall return the same to the board of
supervisors of the county and which shall be included by them in the
next tax-roll of the town and levied against the persons and corporations
assessed at the rate of one dollar and fifty cents per day as other taxes
are levied. [Highway Law, § 81, inserted by L. 1910, ch. 136, in effect
Apr. 21, 1910.]

§ 43. APPEALS BY NONRESIDENT; CERTAIN ASSESSMENTS TO BE
SEPARATE; TENANT MAY DEDUCT ASSESSMENT.

Whenever any nonresident owner of unoccupied land shall conceive
himself aggrieved by any such assessment of any town superintendent,
such owner or his agent, may, within thirty days after such list has been
filed in the office of the town clerk, appeal to the county judge of the
county in which such land is situated, who shall within twenty days there-
after hear and decide such appeal, the owner or agent giving notice to the
town superintendent of the time of the hearing before the judge, and
his decision thereupon shall be final and conclusive. Whenever the town
848 HIGHWAYS AND BRIDGES.
Highway Law, § 82.

superintendent shall assess the occupant for any land not owned by such
occupant, he shall distinguish in his assessment list the amount charged
upon such list, from the personal tax, if any, of the occupant thereof; but
when any such land shall be assessed in the name of the occupant, the
owner thereof shall not be assessed during the same year on account of
the same land. Whenever any tenant of any land, for a less term than
twenty-five years, shall be assessed to work on the highways for such land,
and shall actually perform such work or commute therefor, he shall be
entitled to a deduction from the rent due or to become due from him for
such land, equal to the full amount of such assessment, estimating the
same at the rate of one dollar per day, unless otherwise proviced for by
agreement between the tenant and his landlord. Whenever the highways in
any district are obstructed by snow, the town superintendent shall im-
mediately call upon the persons and corporations in such district assessed
for labor in pursuance of the preceding sections to assist in removing such
obstruction, and shall credit such persons or corporations with the days’
labor so performed. If any persons, corporations or occupants of land
owned by nonresidents so called out neglect or refuse to appear at the place
designated by the town superintendent or to commute at a dollar a day
within twenty-four hours after due notice, the town superintendent shail
cause the obstruction to be immediately removed and on or before Septem-
ber first of each year, or at such other time as the board of supervisors may
by resolution prescribe, make out a list of all persons, corporations or
occupants of lands owned by nonresidents who shall fail to work out such
labor or commute therefor, with the number of days not worked out or com-
muted for by each, charging for each day in such list at the rate of one
dollar and fifty cents per day, verified to the effect that such persons, corpor-
ations or occupants of lands owned by nonresidents have been notified to
appear and perform such labor or commute therefor, and that the same has
not been performed or commuted. Such list shall be certified by the town
superintendent of such town to the town board and by such town board
to the board of supervisors and the highway commission, and the amount
of such arrearages shall be levied by such board of supervisors against
and collected from the real or personal estate of such persons and corpora-
tions and from the real estate owned by nonresidents specified in such
list, to be collected by the collectors of the several towns in the same
manner that other town taxes are collected, and shall order the same when
collected to be paid over to the supervisor to be by him added to the high-
way fund of the town. No persons or corporations shall be allowed any
sum for highway labor performed in removing obstructions caused by
snow, unless authorized or directed by the town superintendent to perform
such labor. It shall be the duty of the town superintendent on or before
the thirty-first day of October in each year to file with the highway com-
TOWN SUPERINTENDENT; POWERS AND DUTIES. 849
Highway Law, § 82.

mission a statement showing the number of days’ labor assessed. It shall
also be the duty of the town superintendent to file with the highway com-
mission on or before the first day of June in each year a statement showing
the number of days’ labor performed or commuted for, the number of days’
labor on which parties were notified but failed to labor, also the number of
days’ labor upon which no notice to appear was given. [Highway Law,
§ 82, as added by L. 1909, ch. 488, as § 81, renumbered and amended by
L. 1910, ch. 136, in effect Apr. 21, 1910.]
850 HIGHWAYS AND BRIDGES,

Explanatory note.

CHAPTER LIX.

HIGHWAY MONEYS; STATE AID.

EXPLANATORY NOTE.

Highway Taxation.

“This chapter pertains to the raising of money by town tax for the
construction and maintenance of town highways and bridges; the
apportionment among the towns of monevs appropriated by the state for
town highways; the expenditure of such moneys and the duties of town
officers in respect to all of such matters,

One of the most important changes made by the present Highway
Law is the abolishing of the old labor system of taxation, and substitut-
ing therefor the so called money system of raising highway taxes. The
present law requires that the expense of maintaining highways and
bridges shall be paid by tax; the town superintendent is to have charge
of such maintenance and all expenditures legally made by him are
charges upon the town to the same extent as other town expenditures.
The law does not fix the maximum tax to be raised, but it specifies the
minimum amount to be levied.

Annual Estimates of Expenditures.

The town superintendent must consider the needs of the town in respect
to its highways and bridges, and prepare a statement of the amount which,
in his opinion, the town should raise by tax for the various purposes speci-
fied therein. The purposes for which a tax may be raised are specified
in § 90, as amended by L. 1914, ch. 84, L. 1915, ch. 322, L. 1920, ch.
561, and L. 1922, ch. 371, the state commission of highways has prepared
and furnishes blanks to be used by town superintendents in
making such statements. Such statements are known as estimates of
highway and bridge expenditures, Each estimate is to be submitted
HIGHWAY MONEYS; STATE AID. 851

Explanatory note.

to the town board for its approval. It becomes effectual and binding
upon the town when so approved. The supervisor must submit the
approved estimate to the board of supervisors, who thereupon must
cause the amounts specified in the estimate to be levied and collected in
the same manner as other charges against the town. are levied and
collected. The estimate must be submitted to the town board on or
before October 31, so that the board may act upon it-at its meeting
held on the Thursday preceding the annual meeting of the board of
supervisors.

Additional Tax; Extraordinary Repairs.

If the town superintendent finds that the amounts included in his
estimate are insufficient for the purposes named he shall report the fact
to the town board, and such board may cause a vote to be taken at a
biennial or special town meeting on a proposition to appropriate an
additional sum. If so voted the amount must be added to the regular
highway tax.

If a bridge or highway is unsafe the town superintendent with the
approval of the town board may cause the same to be rebuilt or repaired.
If the expense exceeds $500 it must be done by contract, approved by
the town board. The amount required is to be added to the amount of
other highway taxes in the town.

Limitation of Amcunts to be Raised by Tax.
The law imposes a limit upon the amount to be raised by tax without
a vote of the town, for all purposes except the repair and improvement

of highways. ‘The limit for bridges is placed at $3000; for road
machinery the limit is $3000; for extraordinary repairs of bridges and

highways which have become unsafe, the limit is $3000.

Borrowing Money; Bonds.

Money may be borrowed by the supervisor, in anticipation of taxes,
when authorized by the town board. Certificates of indebtedness are
Tequired to be issued for the money so borrowed.

When authorized by a vote of a town meeting the town may borrow
monéy, and issue bonds therefor, to build, rebuild or repair highways
and bridges and to purchase stone crushers, rollers and traction engines.
The law provides for the issue and sale of such bonds.
852 HIGHWAYS AND BRIDGES.

Explanatory note.

State Aid.

Section 101 of the Highway Law prescribes the amount of money to
be paid to the towns to aid them in the repair and improvement of
highways. The amounts are graded in accordance with the assessed
valuation of taxable property in the town for each mile of highways.
No part of this meney may be used for the building and repairing of
bridges. The state money is paid to the county treasurer and by him
distributed among the towns.

Supervisor as Custodian of Moneys.

The supervisor is the custodian of all highway moneys. The collector
is directed in his warrant to pay to the supervisor all moneys collected
for highway and bridge purposes, and all state moneys are paid to him
by the county treasurer. He must give a separate undertaking for the
safe-keeping of such funds, to be approved by the town board.

Agreement as to Expenditures ; Audit and Payment.

The town superintendent and town board must enter into a written
agreement as to the parts of the town and the manner in which the
highway monevs are to be expended. Such agreement must be executed
in duplicate; one copy is to be filed with the town clerk, and the other
with the district or county superintendent.

All moneys are required to be paid out by the supervisor, in
accordance with such agreement upon the order of the town superin-
tendent, after audit by the town board. Such audits are to be made
at anv meeting of the board called for the purpose by the supervisor or
town clerk, on the request of the town superintendent.

The supervisor must present to the town hoard an itemized report of
money received and paid out. The form of such report is prescribed by
the commission and blanks are furnished or demanded,

(Highway Law, art. V.] ;

Section 1. Estimate of expenditures for highways and bridges.
2. Duties of town board in respect to estimates; levy of taxes.
3. Additional tax.
HIGHWAY MONEYS; STATE AID. 853
Highway Law, § 90.

. Extraordinary repairs of highways and bridges.

. Limitations of amounts to be raised.

. Submission of propositions at town meetings.

. Borrowing money in anticipation of taxes.

. Towns may borrow money for bridge and highway purposes.
. Issue and sale of town bonds.

10. Assessment of village property.

11. Statement by clerk of board of supervisors.

12. Amount of state aid.

18. Mileage and assessed valuation.

14. Payment and distribution of state money.

15. Custody of highway moneys; undertaking of supervisor.

16. Expenditures for repair and improvement of highways.

17. Expenditures for bridges and other highway purposes.

18. Reports of supervisor as to highway moneys.

19. Highway accounts; forms and blanks.

20. Duty of town clerk.

$1. Compensation of supervisor and town clerk.

%2. Additional expenditure for improvement, repair and maintenance
oi town highways.

SECTION

OOyQ aa

§ 1. ESTXWATE OF EXPENDITURES FOR HIGHWAYS AND
BRIDGES.1

The town superintendent shall annually. on or before the thirty-first

day of October, make a written statement in respect to the amount of

money which should be raised by tax in the town for the ensuing year,

beginning on said January first, for the purposes therein set forth,

which shall be filed with the town clerk.? Such statement shall specify :*

 

1. Legalization of taxes levied in 1911. The taxes levied for the repair of
highways upon the assessment-rolls of the scveral towns for the year 1911 were
legalized by L. 1912, ch. 64 (in effect March 23, 1912), which reads as follows:

Sec.ion 1. The taxes levied in the year nineteen hundred and eleven for the re-
pair of highways, upon the real and personal property in the several towns, are
her.by legalized and confirmed so as to be of the same force and effect as though
the boards of supervisors had, in said year, levied the minimum amount required
to be levied and collected under the provisions of subdivision one, section ninety,
chapter thirty of the laws of nineteen hundred and nine, entitled “An act, etc.”

2. Highway tax. The present Highway Law abolishes the labor system of
taxation in all towns and substitutes in place thereof what was formerly known as
the money system of taxation. On and after the taking effect of this section all
towns will be required to provide for the raising of highway money
by tax. The town superintendent is required under this section to esti-
mate the money which will be required for all highway and bridge pur-
poses in the town during the ensuing year. This estimate is revised by the
854 HIGHWAYS AND BRIDGES.
Highway Law, § 90.

1. The amount of money necessary to be levied and collected for the
repair and improvement of highways, including sluices, culverts and
bridges having a span of less than five fect, and board walks or renewals
thereof on highways less than two rods in width, and also the amount
necessary to construct or repair any public roads, walks, places or ave-
nues on any sand beach separated by more than two miles from the main
body of the town or on any island or part of an island in the town.
Such amount shall not be less than an amount which when added to
the amount of moncy to be received from the state, under the provi-
sions of section one hundred and one, will equal thirty dollars for
each mile of highways within the town, outside the limits of incor-
porated villages, except that no town having an assessed valuation of
three thousand seven hundred and fifty dollars or less per mile outside
of incorporated villages shall be required to levy and collect a tax under
this subdivision in excess of four dollars on each thousand dollars of
assessed valuation.2 [Sub. 1, as amended by L. 1914, ch. 84, L. 1915,
ch, 322, and L. 1920, ch. 561.]

 

town board under sec. 91 of the Highway Law, and when so revised the amount
provided for is to be raised by tax levied by the board of supervisors upon the
taxable property of the town. The levy is made by the board of supervisors at its
annual meeting and when the tax warrant reaches the hands of the collector it pro-
vides for the collection of money sufficient to take care of highway improvement
during the next year. Such moneys will be paid over to the supervisor, for the
most part, in the months of January, February or March, prior to the time when
active operations upon the highways are required to be begun. It will be noticed
that under this section the town superintendent is to determine the amount required
for highways and bridges in the towns in the first instance.

Form of estimate of highway and bridge expenditures, and town board’s approval
thereof, see Form No. 109, post.

Statement under former law. The former statute made it the commissioner’s
imperative duty to make a statement of the necessary improvements to be made
on bridges and highways in each highway district, and an estimate of the probable
expense thereof, to the town board at its second mecting, that is the meeting held
on the Thursday prior to the annual meeting of the board of supervisors. A dupli-
cate of such statement and estimate was required to be delivered to the supervisor
of the town. The board of supervisors at its next meeting was then required to
cause the amount to be assessed upon and collected in the town. Lamont v. Haight,
44 How. Pr. 1. The object of providing for such statement and estimate is to
enable the town to raise money for highway purposes by annual taxation rather
than by incurring indebtedness or borrowing money. Wells v. Town of Salina, 119
N. Y. 280, 290.

2a. Opening paragraph of Highway Law, § 90, amended by L. 1920, ch, 559.

3. Minimum amount for repair and improvement. It will be noticed under subd.
1 that the minimum amount which is to be raised by tax in each town for
the repair and improvement of highways will vary according to the amount
which the towns receive from the State under sec. 101 of the Highway
Law. If the assessable valuation per mile is less than the limit prescribed
jn this subdivision, the amount available for repair and improvement of high-
ways may be less than thirty dollars, but in every other case the amount raised
by the town and the amount received from the State must at least equal the
sum of thirty dollars for each mile. It was intended by this subdivision to
protect the smaller and poorer towns by limiting the amount which they
HIGHWAY MONEYS; STATE AID. 855
Highway Law, § 91.

2. The amount of money necessary to be levied and collected for the repair and
construction of bridges, having a span of five feet or more.

3. The amount of money necessary to be levied and collected for the purchase,
repair and custody of stone crushers, steam rollers, traction engines, road machines
for grading and scraping, tools and implements.*

4. The amount of money necessary to be levied and collected for the removal
of obstructions caused by snow and for other miscellaneous purposes, including
the widening of a state or county highway under a permit as provided by section
one hundred and forty-six. [Subd. 4, amended by L. 1922, ch. 371.]

The amounts specified in such statement shall not exceed the limitations pre-
scribed in section ninety-four. If the town superintendent is of the opinion that
an amount in excess of the limitations therein prescribed be raised by tax, he
shall include in his statement his reasons therefor in dstail. [Highway Law, § 90,
as amended by L. 1914, ch. 84, L. 1915, ch. 322, L. 1920, ch. 561, and L. 1922,
ch. 371.]

§ 2. DUTIES OF TOWN BOARD IN RESPECT TO ESTIMATES; LEVY
OF TAXES.

The town board, at its meeting held on the Thursday succeeding general
election day in each year, shall consider the estimates contained in such
statement. It may, by a majority vote of the members thereof, approve
such statement, or increase or reduce the amount of any of the estimates
contained therein, subject to the limitations prescribed in section ninety-
four.6 The statement, as thus approved, increased or reduced shall be
signed in duplicate by a majority of the members of the town board, one

 

shouid be required to raise by tax at four dol'ars for each thousand dollars of
assessed valuation. There is nothing in the law which prevents any town from
imposing a tax greater than such sum.

4. Road machinery may be purchased by the town superintendent with the
approval of the town board under Highway Law, sec. 49, ante. The expenses con-
nected with the purchase, repair and custody of such machinery pursuant to the
provisions of such section 49 of the Highway Law is chargeable against the fund
raised under subd. 3 of the above section.

5. Removal of snow.—It is made the duty of the town superintendent to cause
highways to be kept free from obstructions caused by snow. See Highway Law,
sec. 47, subd. 2, ante. It is provided by sections 78-81 of the Highway Law (preced-
ing chapter) that the board of supervisors of a county may adopt the labor system
of taxation for removing snow.

Building a new highway is a “ miscellaneous purpose ” within the mean-
ing of subdivision 4. There is no limitation of the amount which may be raised for
“miscellaneous purposes ” except as it is controlled by the public necessities of a
town. Rept. of Atty. Genl., Oct. 18, 1910. .

Moneys raised as provided by sections 90-101 cannot be used either for con-
struction or maintenance of town highways constructed under sections 320 or 320-a of
the Highway Law. Opinion of Attorney General (1916), State Dept. Reports, Adv.
Sheet 41, p. 98.

Estimates may be made by the town superintendent under subd. 4 of money
necessary for building a new highway, said estimate is then laid before the town
board and if it approves, the several amounts are laid before the board of super-
visors and raised in the same manner as other highway taxes in the town. Rept. of
Atty. Genl., Oct. 18, 1910.

6. The town board has the power, under this section; to control the amount
which shall be raised for the purposes specified in the statement of the town
superintendent. The approval of the town board, when the estimate is not
changed, should be endorsed on the statement of the town superintendent and
signed by the members of the town board. If the amounts contained in the
statement are reduced or increased it may be better to make a new statement
containing the revised estimates, signed in duplicate by the members of the

 
856 HIGHWAYS AND BRIDGES.

Highway Law, § 92.

of which shall be filed in the office of the town clerk, and the other shall
be delivered to the supervisor. The town clerk shall make and transmit
a copy of such statement to the commission. The supervisor shall present
such statement to the board of supervisors and such board shall cause
the amounts contained therein, subject to the limitation requiring a vote
of the electors as hereafter provided, to be assessed, levied and collected
in such town in the same manner as other town charges, and such amounts
shall be expended for the purposes specified in such statement.’ The
warrant for the collection of taxes in such town shall direct the payment
of the money so collected to the supervisor of the town, to be held by him
and paid out for the purposes specified in such statement, as provided
in this chapter. [Highway Law, § 91; B. C. & G. Cons. L., p. 2223.]

§ 3. ADDITIONAL TAX.

Whenever the town superintendent and the town board shall determine
that the sum of one thousand five hundred dollars will be insufficient to pay
the expenses actually necessary for the removal of obstructions caused by
snow and the prevention of such obstructions, and whenever they shall de-
termine that the amounts levied and collected for any of the purposes

 

board. It is the statement, as finally acted upon by the town board, which
becomes the basis for the levy of the taxes by the board of supervisors.

Insufficient appropriations, In the absence of authority conferred upon him
as provided in this and the following section the town superintendent has
no power to proceed with the improvements, and apply in payment therefor
the appropriation for the succeeding year, andexpenditures so made create no
legal claim against the town. People ex rel. Peterson v. Clark, 45 App. Div.
65, 60 N. Y. Supp. 1045.

7. The board of supervisors in assessing and levying taxes for highway
purposes are governed by the provisions of this section. The provisions of
subds. 3 and 4 of sec. 12 of the County Law, ante. authorizing the board
of supervisors to direct the raising of such sums in each town as shall be
necessary to pay its town charges are, so far as they pertain to taxes for
highway purposes, superseded by this section. The board of supervisors cannot
exceed the amount estimated for in the statement submitted to it by the
several towns of the county, except in the cases specified in secs. 92 and 93 of the
Highway Law.

8. Collection of taxes ard expenditures. The board of supervisors provides
for the preparation of the tax-ro]l of each tewn to which is attached a warrant
under the seal of the county, signed by the chairman and the clerk of the
board of supervisors. to collect from the persons named in the roll the sums
mentioned therein. Tax Law. secs. 58 and 59, ante. Under sec. 59 of the Tax
Taw, ante. it is provided that the collector’s warrant shall direct him to pay
“to the commissioners of hiehwayvs of the town such sum as shall have been
raised for the support of highwavs and bridges therein.” This provision is
superseded by the above section, which provides that the warrant shall direct
HIGHWAY MONEYS; STATE AID. BBY

Highway Law, § 93.

mentioned in the statement presented to the board of supervisors, as pro-
vided in the preceding section, are insufficient to pay the expenses neces-
sarily incurred for any of the purposes therein specified they may cause® a
vote to be taken by ballot at a biennial town meeting or at a special town
meeting duly called therefor, authorizing such additional sum to be raised
as they may deem necessary for such purpose, not exceeding one-third of
one per centum upon the taxable property of the town as shown by the last
assessment-roll thereof.1° [Highway Law, § 92, as amended by L. 1918,
ch. 147; B. C. & G. Cons. L., p. 2224.]

§ 4. EXTRACRDINARY REPAIRS OF HIGHWAYS AND BRIDGES.

If any highway or bridze or the board walk on any highway less
than two rods in width, or a walk built to replace the same under
section sixty-two, shall at ary time be damaged or destroyed by
the elements or otherwise, or become unsafe for public use and travel,
or if any bridge or the board walk on any highway less than two rods

 

‘

the payment of the money so collected to the supervisor of the town. Ex-
penditures for the repair and improvement of town highways are to be made
as provided in sec. 105 of the Highway Law, post, and expenditures for bridges
and other highway purposes are to be made as provided in sec. 106 thereof,
post.

9. Form of application for special meeting to vote upon such a proposition,
see Form No. 110, post.

A proposition may be submitted at a town meeting as provided in the
Town Law, see ante, pp. ——, ——.

10. Former Highway Law, sec. 9, authorized the submission of a proposition
to a town meeting to raise a sum in addition to one thousand dollars for
highway repairs and maintenance, removal of obstructions caused by snow
and the purchase of road machines. The present law provides for a submission
of a proposition whenever any of the amounts levied and collecetd for the
purposes mentioned in the highway estimate are insufficient to pay the
expenses necessarily incurred. '

Object and effect of section. The purpose of this section is to provide
for an amount in addition to that contained in the annual statement submitted
to the board of supervisors when it is found that such amounts are insufficient
to properly care for the highways and bridges of the town. The limitation of
one-third of one per centum of the taxable property of the town cannot be
exceeded. The additional amount so voted by the people must be raised
by tax upon the town. Such sum is not to be raised by the issue of bonds,
but money may he borrowed in anticipation of additional taxes so to be levied,
as provided in Highway Law, sec. 96, post.

Effect of failure to secure additional sum. It is the duty of a town super-
intendent and town board to take action under this section to secure such sum,
in addition to that estimated for in his annual statement, as may be necessary
to keep the highways and bridges of the town in a safe condition. It has been
held that as a defense to an action for injuries sustained by reason of a
defective highway, it is not sufficient to show that the superintendent had no
funds, but it must also be shown that he had sought through the proper
858 HIGHWAYS AND BRIDGES.

Highway Law, § 93.

in width, or any such walk built to replace the same, be condemned by
the commission, as provided in this chapter, the town superintendent
shall cause the same to be immediately repaired or rebuilt, with the
approval of the town board.*t Such highway or bridge or walk shall

 

channels to procure them. Whitlock v. Town of Brighton, 2 App. Div. 21, 37
N. Y. Supp. 338, affirmed, 154 N. Y. 781; Warren v. Clement, 24 Hun 472;
McMahon v. Town of Salem, 25 App. Div. 1, 49 N. Y. Supp. 310.

11. Former Highway Law, sec. 10, as amended by L. 1906, ch. 417, provided
for the repair or rebuilding of a highway or bridge which at any time had
been damaged or destroyed by the elements or otherwise, or had become unsafe.
The work was required to be done under written contract, if the amount to be
expended exceeded five hundred dollars. If the expense of the construc-
tion exceeded fifteen hundred dollars, the work could only be done after
the submission and adoption of a proposition at a town meeting.

Limitation of expenditure. Not more than fifteen hundred dollars can
be levied in any one year for the repair or construction of a highway or bridge
under this section, unless duly authorized by a vote of a town meeting. See
Highway Law, sec. 94, subd. 4, post.

Power of town superintendents to bind town. Town superintendents of
highways have no general authority to bind the town by their contracts save
in exceptional cases prescribed by statute. People ex rel. Everett v. Supervisors,
93 N. Y. 397; Berlin Bridge Co. v. Wagner, 57 Hun, 346; 10 N. Y. Supp. 840.
In the case of People ex rel. Bowles v. Burrell, 14 Misc. 217; 35 N. Y. Supp.
608, Justice Rumsey held that highway commissioners have no power to pledge
the credit of the town for materials for the repair of highways, and the person
furnishing such material has no claim therefor upon the town, notwithstanding
the existence of a local custom to buy such material upon credit. And in the
case of Lyth v. Town of Evans, 33 Misc. 221, 227, 68 N. Y. Supp. 356, it was
said: “If extraordinary repairs become necessary, and the funds supplied
are insufficient for the purpose, the law provides the method of procedure
to be taken by the commissioners with the consent of the town board whereby
a legal obligation to pay for the necessary expenditure may be created directly
against the town itself. In no other way may the commissioners create an
obligation or liability against the town.”

o town superintendent of highways is not an agent of the town authorized
to contract a debt in real or supposed emergencies, and cannot make a con-
tract binding upon the town unless authorized by statute. So where a town
superintendent contracts individually with a person to supervise the construc-
tion of a bridge authorized by a town board, such contract is not binding upon
the town, unless the town board consented to such contract. People ex rel.
Morey v. Town Board, 175 N. Y. 394. The consent mentioned in the statute
is a judicial act contemplating a decision of the board upon evidence as to
whether or not the highways are in such a condition as to require immediate repair.
Town superintendents of highways are charged with the duty of keeping town
highways in repair as independent officers and not as agents of the town, and when
they contract for ordinary repairs, it is as such officers and the liability therefor,
if they exceed the statutory limitation, is assumed by them personally and not as
agents of the town. Opinion of State Comptroller (1916), 9 State Dept. Rep. 482.

In the case of People ex rel. Peterson v. Clark, 45 App. Div. 65; 60 N. Y.
Supp. 1045, it was held that where the appropriation for the improvement of
highways, made under sec. 19 of the Former Highway Law, is insufficient, the
proper course of the commissioner was to apply, under secs. 10 and 11 of that
HIGHWAY MONEYS; STATE AID. 859

Highway Law, § 93.
be so repaired or rebuilt in accordance with the directions or the plans
e>d snecifications prepared or approved by the district or county super-

 

law, to the town board for consent to make the necessary improvements. In
the absence of such consent the highway commissioner had no power to pro-
ceed with the improvements, and apply in payment thereof the appropriation
for the succeeding year; and expenditures so made create no legal claim
against the town. The court said: ‘“ We are unable to find in the Highway
Law, or other statutes of the state, any provision authorizing a highway com-
missioner to create a debt against a town, except in the manner provided in
sec. 10 of the Highway Law.” See, also, in respect to the powers of town
superintendents to bind a town for highway improvements, Mather v. Craw-
ford, 36 Barb. 565; Barker v. Loomis, 6 Hill, 464; Van Alstyne v. Freday, 41
N. Y. 174.

A town superintendent has no authority to create a liability upon the
part of his town to a person hired to cut brush along a town highway, and
even if such liability were created, it would not become actionable until
the claim had been acted upon by the town auditors. Wright v. Town of
Wilmurt, 44 Misc. 456, 90 N. Y. Supp. 90.

An unsafe condition which is the result of ordinary wear and tear is not
such an emergency as will warrant action under this section. Such a con-
dition may be remedied in the ordinary manner, by including the amount
required in the annual statement as provided in secs. 90 and 91. The re-
pairs provided for in sec. 93 are those arising only from emergencies which
could not have been foreseen. This section does not authorize the town super-
intendent, upon determining that a highway bridge has become unsafe from
natural wear and decay, to make a contract for the rebuilding of such bridge,
with the approval of the town board, at a cost exceeding the moneys appro-
priated for highway purposes. The phrase, “or become unsafe,” means an
unsafe condition arising from extraordinary cause. Livingston v. Stafford, 99
App. Div. 108, 91 N. Y. Supp. 172.

The commissioners of highways [town superintendent] and town board of
a town cannot contract for the building of new bridges in the place of old
bridges not damaged except by natural wear, unless the electors of a town
duly authorize the raising of money for such purpose. A contractor is
charged with the knowledge of the want of such authority. People ex rel.
United Construction Co. v. Voorhies, 114 App. Div. 351, 99 N. Y. Supp. 918,
affd. 187 N. Y. 539.

Consent of town board. Where a bridge has been destroyed by the ele-
ments it is contemplated that the town superintendent shall proceed to
rebuild if authorized by the town board. When the consent of the town
board is given, the town superintendent may contract for its rebuilding, and
the contract is to be deemed the contract of the town and should be made
in the name of the town. Town of Saranac v. Groton Bridge Co., 55 App.
Div. 134; 67 N. Y. Supp. 118. When once the consent has been given the
duties of the town board, so far as the construction of the bridge is con-
cerned, are at an end. The board cannot direct the town superintendent as to
what kind of a bridge shall be erected or how and by whom it shall be
built. People ex rel. Groton Bridge Co. v. Town Board, 92 Hun, 585; 36
860 HIGHWAYS AND BRIDGES.

Highway Law, § 93.

intendent; except if the bridge or walk to be repaired or rebuilt is one
which has been condemned by the commission,!* as provided in this chap-
ter, the same shall be repaired or rebuilt in accordance with plans and
specifications to be prepared or approved by the commission. The town

 

N. Y. Supp. 1062. But where a resolution was passed by a town board
providing for the rebuilding of the bridge containing certain conditions, it
was held that in case 3uch conditions were not complied with the resolution
conferred no authority, and that a bridge constructed without regard to such
conditions by the commissioner was unauthorized. Town of Saranac v.
Groton Bridge Co., 55 App. Div. 184; 67 N. Y. Supp. 118.

Where a resolution authorized a commissioner “to repair the bridges that
may have gone down since the annual town meeting to the best of his judg-
ment,” it was held that if in his judgment it was deemed best or necessary to
remodel or reconstruct the bridge, the consent would authorize such an action
con his part. People ex rel. Slater v. Smith, 83 Hun, 432; 31 N. Y. Supp. 749;
see Huggans v. Riley, 125 N. Y. 88; 25 N. E. 993; Hall v. Town of Oyster
Bay, 61 App. Div. 508, 511; 70 N. Y. Supp. 710.

No particular form of consent by the town board is required; and where it
formally resolves that an unsafe bridge be replaced by a new one, the super-
intendent has sufficient authoritv to contract for the bridge, although the
‘board subsequently attempts to delay action that it may obtain legal advice in
the matter. Basselin v. Pate, 30 Misc. 368, 69 N. Y. Supp. 653. Where it does
not appear whether the consent was in writing or not, it will be presumed, if
that be a requisite, that a record of the consent was properly made. Boots
v. Washburn, 79 N. Y. 207.

Mandanus to compel approval. Where the commissioner »f highways [super-
jntendent] of a town, without the previous consent of the town board, has
expended moneys in excess of the amount in his hands, for the purpose of
repairing highways which were in a dangerous and unsafe condition, a writ
of mandamus will not issue commanding the officers of the town to convene
as a town board, and give their consent to the payment of the highway com-
missioner’s claim for reimbursement. The fact that if an application had
been made to the town board prior to the expenditure of the money, they would
undoubtedly have consented to the making of the repairs, does not justify
the issuance of a mandamus. The consent mentioned in the statute is a
judicial act contemplating a decision of the board upon evidence as to whether
or not the highways are in such condition as to require immediate repair.
People ex rel. Graham v. Studwell, 91 App. Div. 469, £8 N. ¥. Supp. 967 (1904),
affirmed 179 N. Y. 520 The town board may make the judgment of the
superintendent the measure of its consent as to reconstruction of a bridge;
and it is not in the province of a writ of mandamus to review the exercise
of a judicial or discretionary power of such board, or io direct what the
result of its exercise shall be. People ex rel Slater v. Smith, 83 Hun 432, 31
N. Y. Supp. 749.

12. Condemnation of bridge by the State commission and duties of dis-
trict or county superintendent in respect thereto, see Highway Law, sec. 20,

ante.
HIGHWAY MONEYS; STATE AID. 861

Highway Law, § 94.

clerk shall prepare a statement showing the probable cost of improving,
repairing or rebuilding such highway or bridge or walk, which statement
shall be signed in duplicate by a majority of the members of the town
board, one of which duplicates shall be filed with the town clerk and one
be delivered to the supervisor. The town clerk shall make a copy of such
statement and transmit the same to the commission. The supervisor shall
present such statement to the board of supervisors, who shall cause the
amount contained in such statement to be assessed, levied and collected in
the same manner as amounts levied and collected for other highway and
bridge purposes, as provided by law. The amount so raised shall be paid
to the supervisor to be expended for the purposes specified in such state-
ment. [Highway Law, § 93, as amended by L. 1913, ch. 621, L. 1915, ch.
822, and L. 1917, ch. 261; B. C. & G. Cons. L., p. 2225.]

§ 5. LIMITATIONS OF AMOUNTS TO BE RAISED.

‘The amounts to be raised by tax upon the vote of a town board, as pro-
vided in this article, shall be subject to the following limitations :1%

1. The amount to be levied and collected in each year for the repair and
improvement of highways, including sluices, culverts and bridges having
a span of less than five feet and board walks or renewals thereof, on high-
ways less than two rods in width, shall not be less than the amount pre-
scribed under subdivision one of section ninety. [Subd. amended by L.
1915, ch. 322.]

2. Not more than three thousand dollars shall be levied and collected
in any one year in any town for the repair and construction of a bridge
unless by unanimous consent of the town board, but in no case shall more
than six thousand dollars be levied and collected unless duly authorized
by the vote of a town meeting.* [Subd. 2, as amended by L. 1921, ch.
232.]

3. Not more than three thousand dollars shall be levied and collected in
any one year in any town for the purchase or repair of stone crushers,
steam rollers, motor trucks, searifiers, concrete mixers, traction engines
or road machines for grading and scraping, tools and implements, un-

 

13. Debts in excess of limitation. A town superintendent has no general author-
ity to bind the town by his contracts. He must find his authority in the statute,
and those who deal with him and with the other officers of the town are presumed
to know this limitation of power. See People ex rel. Everett v. Supervisors, 93
N. Y. 397; Berlin Bridge Co. v. Wagner, 57 Hun 346, 10 N. Y. Supp. 840.

14. Limit of amount to be raised for bridges. If more than fifteen hundred
dollars is required to be raised in any one year for the repair or construction of a
single bridge, it must be after a vote at a town meeting. Under the former High-
way Law, see. 10, as amended by L. 1905, ch. 417, a bridge which had become
unsafe or had been destroyed by the elements, could not be repaired or constructed
if the amount required would exceed fifteen hundred dollars unless the expense
had been duly authorized by a vote at a town meeting.
862 HIGHWAYS AND BRIDGES.
Highway Law, §§ 94, 95.

less duly authorized by the vote of a town meeting. [Subd. 3, as
amended by L. 1918, chs. 320, 329, L. 1919, ch. 376, and L. 1921, ch. 406. ]

4. Not more than three thousand dollars shall be levied and collected
in any one year in any town for the repair or construction of any high-
way or bridge which has been damaged .or destroyed as provided in sec-
tion ninety-three or which has been condemned by the commission aa
provided in this chapter, unless by unanimous consent of the town board,
but in no case shall more than six thousand dollars be levied and collec-
ted unless duly authorized by the vote of a town meeting. [Highway Law,
§94, as amended by L. 1916, ch. 578, and L. 1921, ch. 232.]

§ 6. SUBMISSION OF PROPOSITIONS AT TOWN MEETINGS.

A proposition to authorize the levy and collection of an amount greater
than that specified in the preceding section for any of the purposes therein
mentioned may be submitted upon the written application of twenty-five
taxpayers upon the last town assessment-roll or by a majority of the
members of the town board, at a biennial town '* meeting or a special town
meeting duly called as provided by law. The provisions of the town law
relating to the submission of town propositions at a biennial or special
town meeting shall apply to the submission of such propositions.1” If
such proposition be adopted the town board shall include in the estimates
contained in the next statement submitted by it to the board of supervisors,
as provided in section ninety-one, the amounts authorized to be raised
by such proposition for the purposes therein stated, and thereupon such
amounts shall be levied and collected, and paid to the supervisor, to be
expended by him as directed by such proposition. [Highway Law,
§ 95; B. C. & G. Cons. L., p. 2229.]

§ 7% BORROWING MONEY IN ANTICIPATION OF TAXES.

The supervisor may, when authorized by the town board, borrow money

 

15. Road machinery. The town superintendent may, with the approval of
the town board, purchase stone crushers, steam or other power rollers, traction en-
gines, road machines, etc., under Highway Law, sec. 49, ante. It is here provided
that not more than five hundred dollars shall be levied and collecied in any one year
for any of these purposes unless a vote be had at « town meeting. Under former
Highway Law, sec. 7, stone crushers and power rollers could only be purchased after
a submission of a proposition at a town meeting.

Road machinery may not be purchased under a contract of conditional sale. Such
machinery can only be purchased when there are funds available therefor. A con-
ditional contract which provides for the sale of such machinery upon payment of
the purchase price at some time in the future is not authorized. Payments can only
be made from funds raised by tax and not more than $500 of the funds of the town
are available for such purposes, unless a proposition has been adopted at a town
meeting, authorizing the issue and sale of bonds. Gardner v. Town of Cameron, 155
App. Div. 750. 140 N. Y. Supp. 634. See, alao, Shoemaker v. Buffalo Steam Roller
Co., $3 Mise, 162, 144 N. ¥. Supp. 721.

16. Form of application for submission of proposition to a town meeting, see
Form No. 111, post.

1%. Sup minene of propositions at town meetings, see Town Law, secs. 46-50,
48, ante.
HIGHWAY MONEYS; STATE AID. 863

Highway Law, § 97.

in anticipation of taxes to be levied and collected, on the credit of the town,
and issue certificates of indebtedness therefor in the following cases:

1. When an additional sum is directed to be levied and collected by a
vote of a town meeting as provided in section ninety-two.

2. When an amount necessary for the payment of expenses incurred in
the improvement, repair and rebuilding of a highway or bridge has been
directed to be levied and collected as provided in section ninety-three.

3. When a proposition has been adopted at a town meeting as provided
in section ninety-five authorizing the levy and collection of an amount
greater than that specified in section ninety-four for any of the purposes
therein mentioned.

4, When the board of supervisors has authorized a town board to borrow
its share of the cost of improving a town highway as provided by section
three hundred and twenty-a.

5, When a permit has been issued for widening a state or county highway
as provided by section one hundred and forty-six. [Subd. 5, added by L.
1922, ch. 371.]

Such certificates of indebtedness shall be signed by the supervisor and
the town clerk and shall bear interest at a rate not exceeding six per cen-
tum for a period not exceeding one year.18 The amount so borrowed
shall be paid out by the supervisor for the purposes for which the taxes,
in anticipation of which such certificates were issued, are to be levied and
collected. The principal and interest of such certificates shall be paid by
the supervisor immediately upon the collection of the taxes levied for such
purposes. [Highway Law, § 96, as amended by L. 1918, ch. 321; B. C. &
G. Cons. L., 2d Ed., p. 3449.]

§8. TOWNS MAY BORROW MONEY FOR BRIDGE AND HIGHWAY PURPOSES.

A proposition may be submitted at a regular or special town meeting
in the manner provided by the town law,?® authorizing the town to borrow
money upon its bonds, or other obligations, to be expended for the follow-
ing purposes :”

 

18. Certificates of indebtedness to be in form prescribed by the commission,
see Form No. 112, post.

19. Submission of propositions at town meetings must be made as provided in
Town Law, sec. 46, ante.

A proposition to raise money for building a new highway may be submitted to
the voters of a town pursuant to this section. Rept. of Atty. Genl., Oct. 18, 1910.

20, Limitation of indebtedness of town is prescribed by County Law, sec. 13, post.
Purpese of section. The statute exists for the purpose of permitting a town to
raise more money than is authorized by general statute for the construction of
highways and bridges. People ex rel. Morrill v. Supervisors of Queens, 112 N. Y. 585.
Power to borrow, generally. The power to raise money for municipal pur-
poses never means a power to borrow; it is intended that it be raised by tax-
ation unless there be express provision of statute to the contrary. Wells v.
Town of Salina, 119 N. Y. 280. The established theory is that money for all
highway and bridge purposes be raised by annual tax, and without some express
864 HIGHWAYS AND BRIDGES.

Highway Law, § 97.

1. Constructing, building, repairing or discontinuing any highway or
bridge therein, or upon its borders.

2. Repairing or rebuilding any highway or bridge or board walk, or
renewal thereof, on any highway less than two rods in width, which
shall at any time be damaged or destroyed by the elements or otherwise,
or become unsafe for public use and travel. [Subd. amended by L.
1915, ch. 322.]

3. Repairing or rebuilding any bridge which has been condemned by
the commission, as provided in this chapter.

4. The purchase of stone crushers, steam rollers and traction engines.

The vote upon any such proposition shall be by ballot. If any such
proposition shall be adopted, the board of supervisors, upon the appli-
cation of the town board, shall by resolution” authorize the town to issue
bonds not exceeding the amount specified in said proposition, which
shall be sufficient to refund and pay any temporary loan or certificate of
indebtedness, and to provide for the completion of any work authorized.
There shall accompany such application a statement signed by a majori-

 

provision as that contained in the above section, the borrowing of money
by a town is unlawful. Van Alstyne v. Freday, 41 N. Y. 174.

Town board is powerless to act where the provisions of the section have not
been complied with. Matter of Niland v. Bowron, 193 N. Y. 180, affg. 118 App.
Div. 661, 99 N. Y. Supp. 914.

21. Resolutions authorizing issue of bonds must provide for raising an-
nually, by tax, a sum sufficient to pay the interest and principal of the bonds.
See General Municipal Law, sec. 5, post. Such resolutions must also specify
the form, place of payment, etc., of the bonds, and require the supervisor to
give adequate security for the lawful application of the funds raised. See
County Law, sec. 14, post.

Forms of application for authority to issue bonds; of certified proceedings of
town meeting, and of resolution authorizing town to borrow money, see Forms,
Nos. 113, 114, 115, post.

Conditions imposed by boards of supervisors. In legislating for a town
under the provisions of this section, the board of supervisors may: impose con-
ditions as to details for the interest of the taxpayers, not specified in the
statute, such as safe guards in the letting of contract, and provisions that the
work shall be prosecuted under competent supervision and the money de-
posited with the county treasurer to be paid out only upon the certificate of the
engineer; and such conditions when so imposed are binding upon the officers
affected. People ex rel. Wakeley v. McIntyre, 154 N. Y. 628 (1898). Board may
authorize issue of long term bonds; and may direct payment of interest out of
proceeds until a tax therefor can be collected. Ghiglione v. Marsh, 23 App. Div.
61, 48 N. Y. Supp. 604.

Resolution of board. The act of the board of supervisors is purely legis-
lative and cannot be reviewed on certiorari. People ex rel. Trustees v. Super-
visors, 131 N. Y. 468. Board may impose conditions as to details respecting the
Jetting of contracts, although not expressly authorized by statutes. People ex
rel. Wakeley v. McIntyre, 154 N. Y. 628.
HIGHWAY MONEYS; STATE ATD. 865

Highway Law, §§ 97a, 98.

ty of the members of the town board, and certified by the town clerk, con-
taining a copy of the proposition submitted, as above provided, the vote
for and against the same, and specifying the amount which it is esti-
mated will be required to be expended, pursuant to such proposition.
If the highway or bridge, proposed to be constructed, built, repaired or
discontinued, is situated in two or more towns in the same county, the
board of supervisors shall, if application be made by any one of such
towns, apportion the expense thereof among such towns, in such pro-
portion as shall be just.” If the town adopting any such proposition
shall contain any portion of the land of the forest preserve, the board of
supervisors shall not authorize such town to borrow moneys without the
written approval of the forest, fish and game commissioner, except in
payment of a debt lawfully incurred by the town. [Highway Law, §
97, as amended by L. 1914, ch. 202; B. C. & G. Cons. L., p. 2230.]

Power of certain towns in the Adirondack park to borrow money for high-
way purposes— No money shall be borrowed, as provided in sections ninety-
six and ninety-seven of this act, by a town containing lands of the Adiron-
dack park, where the assessed value of the real property of the state equals
or exceeds twenty-five per centum of the assessed value of the taxable prop-
erty of the town, until the consent, in writing, of the state comptroller that
such loan or loans be made, be procured and filed in the office of the town
clerk of the town intending to negotiate the loan or loans. Any loan made
in violation of this section for an indebtedness thereby intended to be
ereated, shall be null and void and no moneys of the town shall be paid
thereon. [Highway Law, § 97a, as added by L. 1917, ch. 565.]

§ 9. ISSUE AND SALE OF TOWN BONDS.

The board of supervisors shall, from time to time, impose upon the
taxable property of the town a tax sufficient to pay the principal and in-
terest of such obligations as they shall become due. The supervisors and

 

22. Liability of towns for construction of bridges over streams constituting
boundary lines of towns, see Highway Law, sec. 250, post.

Issue and sale. Bonds issued under this section may be made payable in gold
and run for thirty years. Effect of revision upon former law. Ghiglione v. Marsh,
23 App. Div. 61, 48 N. Y. Supp. 604.

Tt has been held that to entitle a party to recover in an action upon bonds
issued by a municipality there must be affirmative and extrinsic proof that all
the preliminary conditions required to authorize the issue of such bonds have
been complied with. Starin v. Town of Genoa, 23 N. Y. 439; Town of Venice
v. Woodruff, 62 N. Y. 465; Dodge v. County of Platte, 82 N. Y. 218.

Form of bonds. The fact that the names of the officers authorized to issue
the bonds were lithographed on the coupons of such bonds was held not’ to
make them invalid, where it appeared that such officers adopted and delivered
as their own the signatures in that form. Beattys v. Town of Solon, 64 Hun
120, 19 N. ¥. Supp. 37.

Payment of bonds. It is the duty of the town to provide for the payment of
its bonds lawfully issued. In case of a failure to perform such duty, the holder
of the bonds may maintain an action against the town thereon, although by the
act under which they were issued it is made the duty of the board of supervisors
of the county to impose and levy a tax to pay the bonds. Such settled and ad-
mitted obligations of the town need not be audited and allowed by the board of
town auditors. Marsh v. Town of Little Valley, 64 N. Y. 112; Horn v. Town of
New Lots, 83 N. Y. 101.’
866 HIGHWAYS AND BRIDGES,

Highway Law, §§ 99, 100.

town clerk shall keep a record, showing the date and amount of the obliga-
tions issued, the time and place of their payment, and the rate of interest
thereon. The obligations shall be delivered to the supervisor of the town,
who shall dispose of the same for not less than par and apply the proceeds
thereof for the purposes for which they were issued. [Highway Law, § 98,
as amended by L. 1916, ch. 578; B. C. & G. Cons. L., p. 2231.]

§ 10. ASSESSMENT OF VILLAGE PROPERTY.

In any town in which there may be an incorporated village, which
forms a separate road district, and wherein the roads and streets are
maintained at the expense of such village, all property within such village
shall be exempt from the levy and collection of taxes levied in the town,
as provided by section ninety-one of this article, for the repair and im-
provement of highways, including sluices, culverts and bridges having
a span of less than five feet.23 The assessors of such town shall indicate
in a separate column the value of the real and personal property included
in such incorporated village.** [Highway Law, § 99; B. C. & G. Cons.
L., p. 2232.]

§ 11. STATEMENT BY CLERK OF BOARD OF SUPERVISORS.

The clerk of the board of supervisors of each county shall, on or before
the first day of January of each year, transmit to the state comptroller
and the commission a statement, signed and verified by the chairman of
the board, and certified by the clerk, which shall state the name of each
town, the assessed valuation of real property, and the assessed valuation of

 

23. Exemption of villages. By the above section villages are exempt from
any taxes for the maintenance and repair of highways lying outside thereof.
But this does not relieve them from assessments made for damages and charges
for laying out or altering any road or erecting and repairing a bridge in the
town. The section is general, and applies to every case where an incorporated
village within a town may be a separate road district. Thus from a certain
class of public charges or expenses connected with the highways the villages
are exempt, while to another class they are subject. Bonds issued by a town
for the construction and repair of highways and bridges therein would be a
charge upon the whole town including the villages within it. Matter of Shafter
v. Carrol, 18 App. Div. 390, 392; 46 N. Y. Supp. 202.

24, Section 21 of the former Tax Law was amended by L. 1908, ch. 437, to
provide for the insertion of an additional column in the assessment-roll to
contain valuations of village property.
HIGHWAY MONEYS; STATE AID. 867
Highway Law, § 101.

personal property, each separately, in the towns outside incorporated

villages, and the amount of tax levied therein for the repair and improve-_
ment of highways, including sluices, culverts and bridges having a span

of less than five feet. The towns’ valuation of real property to be used

in such statement shall be the valuation thereof, as equalized by the

boards of supervisors, or other competent authority, during the year prior

to the levy of taxes upon which is based the determination of the amounts

to be paid to the several towns, as provided in this article.” [Highway

Law, § 100; B. C. & G. Cons. L., p. 2233. ]

§ 12. AMOUNT OF STATE AID.%2

There shall be paid by the state to the several towns, in the manner
hereinafter provided, an amount based upon the amount of taxes levied
therein for the repair and improvement of highways, sluices, culverts and
bridges having a span of less than five feet, and to be determined as fol-
lows:

1. In towns where the assessed valuation of real and personal prop-
erty, exclusive of such property in incorporated villages, shall be less
than five thousand dollars for each mile of highways in such towns, out-
side of incorporated villages, an amount equal to the amount of such
taxes.

2. In towns where such assessed valuation shall be five thousand dol-
lars or over and less than seven thousand dollars for each mile of such
highways, an amount equal to ninety per centum of the amount of such
taxes.

3. In towns where such assessed valuation shall be seven thousand
dollars or over and less than nine thousand dollars for each mile of such
highways, an amount equal to eighty per centum of the amount of such
taxes.

4, In towns where such assessed valuation shall be nine thousand dol-
lars or over and less than eleven thousand dollars for each mile of such
highways, an amount equal to seventy per centum of the amount of such
taxes.

5. In towns where such assessed valuation shall be eleven thousand
dollars or over and less than thirteen thousand dollars for each mile of.
such highways, an amount equal to sixty per centum of the amount of
such taxes,

6. In towns where such assessed valuation shall be thirteen thousand
dollars or over for each mile of such highways, an amount equal to fifty
per centum of such taxes. Provided that no town shall receive from the

 

25. Form of statement of clerk of board of supervisors as to moneys raised
by towns for highway purposes. See Form No. 116, post.

25a, Moneys known as “state aid” cannot be used for the building and con-
struction of new town roads, or for the payment of damages awarded to land
owners for the laying out of a new highway, or for any other purpose except
the “repair and improvement” of the highways of the town. Rept. of Atty.
Genl., Oct. 18, 1910. ,

A village incorporated after the collection of the highway tax in a town is
not entitled to any portion of the highway fund raised ejther by taxation or
contributed by the state. Rept. of Atty. Genl., May 18, 1911.
868 HIGHWAYS AND BRIDGES.
Highway Law, §§ 102, 103.

state in any year, under this section, an amount exceeding an average
of twenty-five dollars per mile, for the total mileage of its highways
outside of incorporated villages, except that in towns where the assessed
valuation of real and personal property therein, exclusive of such prop-
erty in incorporated villages, averages more than tweuty-tive thousand
dollars for each mile of highways therein outside of such villages, the
amount paid hereunder shall not exceed one-tenth of one per centum
of such assessed valuation.

7. Where a town, having within its limits an incorporated village or
city of the third class, shall levy a tax upon the whole town including
such incorporated village or city, the same to be spent wholly without
the limits of such village or city, for the repair and improvement of
highways, sluices, culverts and bridges having a span of less than five
feet, the amount of such tax shall be included in the statement to be
transmitted by the clerk of the board of supervisors to the comptroller
as required by section one hundred of the highway law and such amount
shall be used as an additional basis of the amount of state aid under
this section, the same as if such tax were levied wholly without the
limits of such incorporated village or city of the third class. [Highway
Law, § 101, subd. added by L. 1913, ch. 375; B. C. & G. Cons. L.,
p. 2233.]

§ 13. MILEAGE AND ASSESSED VALUATION.

The mileage of highways in towns to be used in determining the
amounts to be paid to such towns under the provisions of this article
shall be the tables of mileage heretofore prepared by the state engineer,
until the corrected tables of mileage prepared as provided in section
fifteen of this chapter are filed. Such tables and all corrections thereof
shall be filed with the commission and comptroller. The assessed valua-
tion of real property to be used in determining such amounts shall be
the valuation thereof, equalized as provided in section one hundred and
forty-one of this chapter, during the year prior to the levy of taxes upon
which is based the determination of the amounts to be paid to the
several towns, as provided in this article. [Highway Law, § 102; B.

.C.& G, Cons. L.. p. 2224.1

§ 14. PAYMENT AND DISTRIBUTION OF STATE MONEY.

Theo comptroller shall determine the amount due to the several towns, under
the provisions of this article, and shall draw his warrant upon the state treas-
urer in favor of the county treasurer of each county for the total amount to be
paid to the towns in such county, as so determined by him, and shall indicate
the amount to be paid to each town. The county treasurer shall pay to the
supervisor of each town the amount to which such town is entitled, as deter-
mined and indicated by the comptroller. No such payment shall be made until
the supervisor has filed in the office of the county treasurer a certified copy of
the underteking given by him, as provided in this article.26 [Highway Law,
§ 103; B. C. & G. Cons. L., p. 2234.]

26. The undertaking of the supervisor is to be given to the town as pro-
vided in the next section. This undertaking is in addition to the official undertaking
required by Town Law, sec. 100, ante. For form of undertaking, see Form No. 117.
post.

 
HIGHWAY MONEYS; STATE AID. 869
Highway Law, §§-104, 105.

§ 15. CUSTODY OF HIGHWAY MONEYS; UNDERTAKING OF SUP-
ERVISOR.

All moneys levied and collected, as provided in this article, all moneys
collected as penalties under this chapter, or received from any other source
and available for highway, bridge and miscellaneous purposes and all
moneys received from the state, as provided in section one hundred and
one, shall be paid to the supervisor, who shall be the custodian thereof,
and accountable therefor.2* Before receiving any such moneys the super-
visor shall give an undertaking to the town in an amount to be specified
by the commission and with such sureties, as shall be approved by the town
board, conditioned for the faithful disbursement, safekeeping and account-
ing of the moneys so received by him. Such undertaking shall be filed in
the office of the town clerk and a certified copy thereof shall be filed in
the office of the county treasurer before any moneys received from the
state shall be paid to him, and also in the office of the commission. In case
of a failure of the supervisor to faithfully disburse, safely keep or account
for moneys received from the state the commission may bring an action
on such bond in the name of the town.?® [Highway Law, § 104; B. C.
& G. Cons. L., p. 2234.]

§ 16. EXPENDITURES FOR REPAIR AND IMPROVEMENT OF
HIGHWAYS.

The moneys levied and collected for the repair and improvement of
highways, including sluices, culverts and bridges having a span of less
than five feet and board walks or renewals thereof, on highways less than

 

27. Custody of highway moneys. The supervisor has always been the cus-
todian of the funds received from the State for the repair and improvement of high-
ways. The present law makes him the custodian of all moneys received from any
source and available for highway and bridge purposes.

Supervisor as custodian of town moneys. The statute which relates gener-
ally to the powers and duties of the supervisor assumes that he is the legal custodian
of the moneys of the town and chargeable with the duty not only of receiving and
keeping them, but also of guarding their disbursement. Bridges v. Board of Super-
visors, 92 N. Y. 570.

28. Bonds of supervisors of towns for the receipt of State highway
moneys must be given for the faithful disbursement, safe-keeping and accounting
of all such moneys received by them and may cover the full term of office. Rept. of
Atty. Genl. (1911), vol. 2, p. 688. :

Liability of supervisor for breach of bond. The fact that the supervisor of
a town in good faith deposited as a general deposit, moneys received by him in his
Official capacity, with a reputable firm of individual bankers, believed to be solvent,
and that thereafter such firm failed and such moneys were lost is not a defense to
an.action brought upon the bond of such supervisor. Tillinghast v. Merrill, 77 Hun,
481, 28 N. Y. Supp. 1089. The liability upon the bond given under this section can
on‘y extend to moneys received by the supervisor thereunder. See Bissell v. Saxton,
66 N. Y. 55,
870 HIGHWAYS AND BRIDGES.
Highway Law, § 105.

two rods in width, and the moneys received from the state, as provided by
section one hundred and one, shall be expended for the repair and im-
provement of such highways, sluices, culverts and bridges and walks, at
such places and in such manner as may be agreed upon by the town board
and town superintendent. The town board and the town superintendent
shall constitute a board for the purpose of determining the places where
and the manner in which such moneys shall be expended. Such agree-
ment shall be written and signed in duplicate by a majority of the mem-
bers of the board so constituted, and shall be approved by the commission,
before the same shall take effect.2® One of such duplicates shall be filed
in the office of the town clerk and one in the office of the district or county
superintendent. Such moneys shall be paid out by the supervisor on the
written order of the town superintendent in accordance with such written
agreement.°° The town board and town superintendent may also appro-
priate from such moneys such a sum of money as they deem proper for the
construction or repair of any public road, walk, place or avenue upon any
sand beach separated by more than two miles of water from the main body
of the town, although such road, walk, place and avenue is narrower than
the width of highways required by statute, but the construction or repair
of the town or on any island or part of an island in the town, although
such road, walk, place or avenue is narzowcr than the width of high-
wavs required by statute, but the consiruction cr repair of any such road,
walk, place or avenue with such moneys on any such beach or on any
such island or part of an island shall not be construed as imposing any
liability upon the town or upon the superintendent of highways for any
injury to person or property happening thereon. [Tlighway Law, §
105, as amended by L. 1914, ch. 54, L. 1915, ch. 322, and L. 1920,
ch. 561.]

 

29. Form of agreement as to places and manner of expenditure of highway mon-
eys, see Form No, 118, post. : :

Mandamus to compel performance of duty. As a meeting of the town board with
the elected superintendent of highway for the purpose of dividing the road funds,
under this section, is obligatory, the court has power to direct the town board to
perform the duty of a peremptory writ of mandamus and to recognize a lawfully
elected superintendent of highways. People ex rel. Dare v. Howell (1916), 174 App.
Div. 118, 160 N. Y. Supp. 959.

30. Purposes for which expenditures may be made. The money to be ex-
pend'd by a town in the repair and maintenance of its highways, a portion of
which is to be contributed by the state must be expended in the improvement and
betterment of the highways, and not in the payment of salaries of town officers or
the purchase of personal property, the title of which would vest,in the town, Rept.
of Atty. Genl. (1906) 341. The town superintendent of highways has no authority
to purchase supplies for purposes not included in the written agreement pursuant to
this section or otherwise authorized by the town board. Rept. of Atty. Genl., March
31, 1911.

The opening and laying out of new highways is provided for separately and apart
from the care and maintenance of highways and expenditures therefor cannot be
made from the fund levied, collected and received as provided in this chapter for
the repair and improvement of highways, a part of which is contributed by the state.
Rept. of Atty. Genl. (1904) 308.

Sidewalks are a part of the highways and moneys raised and collected for the
repair and improvement of highways, and moneys received from the state may be ex-
pended in the repair thereof. Rept. of Atty. Genl. (1901) 213.

Removal of town superintendent of highways for expenditure of town funds
on highways otherwise than those specified in the statement, is justified. Carlisle
v. Burke, 82 Misc. 282, 144 N. Y. Supp. 163.

$1, Certificates of indebtedness issued as provided in Highway Law, sec. 96, ante.
HIGHWAY MONEYS; STATE AID. 871
Highway Law, §§ 106, 107.

§ 17. EXPENDITURES FOR BRIDGES AND OTHER HIGHWAY PUR-
POSES.

The moneys levied and collected, or raised by the issue and sale of
bonds or certificates of indebtedness in anticipation of taxes, as provided
in this article,** for purposes other than the repair or improvement of
highways, as specified in the preceding section, shall be paid out by the
supervisor upon the written order of the town superintendent. An ac-
count shall not be so paid unless the expenditure be in accordance with
the annual estimate of the town superintendent, as approved or modified
by the town board, or be authorized by the town board or by a vote of a
town meeting, as provided in this article, or be lawfully a charge upon
the town. Except as herein otherwise provided the provisions of the
town law relating to the audit of town accounts and claims shall apply
to accounts and claims against the town arising under this chapter.
[Highway Law, § 106, as amended by L. 1916, ch. 463; B. C. & G.
Cons. L., p. 2236. ]

§ 18. REPORTS OF SUPERVISOR AS TO HIGHWAY MONEYS.

The supervisor shall present to the town board at a meeting held on
the twenty-eighth day of December or on a subsequent dot- hefore Ne-
cembe thirty-first in each vear a verified report showing :32%

 

31. Certificates of indebtedness issued as provided in Highway Law, sec. 96, ante.

32. Matters made town charges. The following are some of the special high-
way and bridge charges which may be audited under this section. (For places in
this manual where the sections here referred to may be found, see Table of Laws,
following Table of Contents) :’

Compensation and expenses of town superintendents and their deputies. Highway
Law, § 45. Removal of obstructions caused by snow. Idem, § 47, subd. 2. Inspec-
tion of highways. to be constructed or improved as State or county highways. Idem,
§ 47, subd. 9. Erection and repair of monuments marking the boundaries of high-
ways. Idem, § 47, subd. 11. Purchase, repair and storage of stone crushers, power
rollers, traction engines, road machines, tools and implements. Idem, §§ 49, 90,
91, 92. Purchase of gravel and stone. Idem, § 51. Removal of obstructions,
noxious weeds and brush. in the first instance. Idem, §§ 52, 54. Purchase of wire
fences to be used in place of fences causing the drifting of srfow. Idem, § 56.
Damages for entry upon lands by town superintendent for opening dite’ es, ete.
Idem, § 57. Damages for change of grade. Idem, § 59. Maintenance and repair of
sidewalks. Idem, § 62. Allowances for shade trees. Idem, § 63. Setting out and
preservation of shade trees. Idem, § 64. Allowances for watering troughs. Idem,
§ 65. Credit for repairs on private roads. Idem, § 66. Erection and maintenance
of guide boards. Idem, § 68. Construction and repair of approaches to private
lands, when authorized by town board. Idem, § 71. Damages for injuries sustained
by defects in highways and bridges. Idem, §§ 74, 76. Expense incurred in closing
highways for repair or construction. Idem, § 77. Amount apportioned to town
for construction of county highway. Idem, § 141. Cost to town for maintenance of
state and county highways. Idem, § 172. Costs and damages awarded in proceed-
ings to lay out, alter or discontinue highways. Idem, § 203. Construction and
repair of bridges. Idem, § 250. Cost of constructing and maintaining bridges over
boundary streams. Idem, § 254.

Audit of town accounts. Meeting of town board for audit, Town Law, sec.
133, post. Form of verified accounts against town, Town Law, sec. 175, post.
872 HIGHWAYS AND BRIDGES.
Highway Law, § 107.

1. The moneys received from the state, as provided in section one
hundred and one, during the year ending December thirty-first, [Subd.
1, as amended by L. 1920, ch. 559. ]

2. The moneys received by him during such year on account of faxes
levied and collected and from the issue and sale of bonds and certificates
of indebtedness in anticipation of taxes, for highways, bridges, purchase
and repair of machinery, tools and implements, the removal of obstruc-
tions caused by snow and for miscellaneous purposes.

3. The moneys received by him during such year as penalties recovered
pursuant to this chapter, or from any other source and available for
highway purposes in his town.

4. The expenditures during such year for the improvement, repair and
maintenance of highways, for the maintenance and repair of bridges,
for the construction of new bridges, for damages and charges in laying
out, altering and discontinuing highways, for the removal of obstructions
caused by snow. for the purchase of machinery, tools and implements, for
the rental or hire of stone crushers, steam rollers and traction engines, for
town superintendents’ salary or compensation and audited expenses, for
allowances as fees on account of receiving and disbursing highway moneys,
or for other highway purposes.

5. All machinery, tools and implements owned in whole or in part
by the town, the present value of each article thereof, and the estimated
cost of all necessary repairs thereto, as shown by the annual inventory
of the town superintendent.**

The form of such report shall be prescribed by the commission.** Such
report shall be filed in the office of the town clerk within three days after
the presentation thereof and shall be open to public inspection during the
office hours of such town clerk and a duplicate shall at the same time
be mailed to the commission. A certified copy of such report shall also
be filed by the supervisor with the clerk of the board of supervisors, who
shall cause the same to be printed in the next issue of the annual pro-
ceedings of the board of supervisors. The town board shall cause a certi-
fied copy of the report to be published in a newspaper published in the town,
or if there be none published therein, then in a newspaper published
within the county and having the greatest circulation within the town.

 

Allowance of travelling fees, Town Law, sec. 176, post. Town abstracts, Town Law,
sec. 155, post.

Presentation of claim for audit; action upon claim; judgment “ upon
the merits.” Under the provisions of this sectiow a claim against a town for the
contract price of building a bridge with a span of more than five feet over wu creek
in said town, and for extra work, should be presented to the town board for audit.
A judgment dismissing the complaint in an action against the town to recover upon
such claim should be modified by striking therefrom the words “upon the merits,”
as it may in the future be urged that there was no merit to the claim. Gaffey v.
Town of Newfield (1914), 163 App. Div. 66, 148 N. Y. Supp. 772.

32a. The opening paragraph of § 107 was amended by L. 1920, ch. 559.

33. Inventory of machinery, too's and implements to be made by town super-
intendent and presented to the supervisor. Highway Law, sec. 49, ante.

34, Commission required to prescribe and furnish blank forms of reports. High-
way Law, sec. 18, ante. For form of report, see Form, No. 119, post.
HIGHWAY MONEYS; STATE AID. ' 873

Highway Law §§ 108-110.

The expense of such publication, which shall not exceed ten dollars, shall
be a town charge. The clerk of the board of supervisors shall transmit
three copies of the journal of the proceedings of the board containing
such report to the commission and three copies to the comptroller.
[Highway Law, § 107; B. C. & G. Cons. L., p. 2237.]

§ 19. HIGHWAY ACCOUNTS, FORMS AND BLANKS.

The commission shall prescribe the method of keeping town accounts
of moneys received and expended, as provided in this article, for highways,
bridges, purchase, leasing, rental or hire and repair of machinery, tools
and implements, the removal of obstructions caused by snow, and miscel-
laneous purposes, which shall be uniform, so far as practicable, throughout
the state. Such commission may adopt forms and blanks for keeping
such accounts. The commission shall also prescribe the form of order to
be made by the town superintendent, upon the supervisor, and the form
of the agreement to be entered into by the town board and town super-
intendent as provided in section one hundred and five. The town super-
intendent and supervisor shall keep their accounts in the method, and
shall use the blanks and forms, prescribed by the commission. All orders
and records'of accounts shall be filed in the town clerk’s office and pre-
served as a part of the town records.*® [Highway Law, § 108; B. C. &
G. Cons. L., p. 2239.] f

§ 20. DUTY OF TOWN CLERK.

It shall be the duty of the town clerk, annually, between the fifteenth
day of November, and the fifteenth day of December, to transmit to the
commission a list containing the names of each supervisor, town super-
intendent, justice of the peace, town clerk, assessor and collector, showing
his post office address, the date of his appointment or election and the
expiration of his term of office. [Highway Law, § 109; B. C. & G. Cons.
L., p. 2239.]

§ 21. COMPENSATION OF SUPERVISOR AND TOWN CLERK.

The supervisor and town clerk of each town shall receive annually, as
compensation for services under this chapter in lieu of all other com-
pensation and fees, an amount to be fixed by the town board. Such

 

85. Commission to have access to accounts and records required to be kept
under this chapter. Highway Law, sec. 19, ante.
git HIGHWAYS AND BRIDGES.
Highway Law, § 111.

compensation shall be a town charge. Nothing herein contained, how-
ever, shall prevent the audit, allowance and payment to members of such
boards of supervisors of compensation provided by law, for services of
such boards of supervisors while serving as members of a committee known
as the highway officials of the county, pursuant to section three hundred
and twenty-a of this chapter.3¢ [Highway Law, 110, as amended by L.
1922, ch. 28.]

§ 22. ADDITIONAL EXPENDITURE FOR IMPROVEMENT, REPAIR
AND MAINTENANCE OF TOWN HIGHWAYS.

Upon the written application of tweney-five tax payers of a town, filed
with the town clerk, the electors thereof may, at a regular or special
meeting, vote by ballot upon a proposition for the expenditure of a sum,
not exceeding one-third of one per centum of the total taxable property of
the town, including incorporated villages, in addition to the sum authorized
by this chapter for the improvement, repair and maintenance of town
highways in such town. Such proposition shall be submitted in the manner
provided by law for the submission of questions or propositions at a town
meeting. If such proposition be adopted, the amount specified therein
shall be a town charge and shall be levied and collected in the same manner
as other town moneys, and when collected shall be paid to the supervisor
and expended for the purposes specified in such proposition as provided in
this chapter. [Highway Law, § 111; B. C. & G. Cons. L., p. 2239.]

 

36. Compensation of supervisor and town clerk for duties performed under
the-Highway Law, should be fixed at a stated sum annually. When so fixed the
compensation is in lieu of the compensation prescribed by Town Law, sec. 45,
post, The compensation of a supervisor for services under the Highway Law
is fixed by the town board and he is not entitled to commissions on bridge and
hignway moneys paid out by him. Rept. of Atty. Genl., May 22, 1911.
STATE AND COUNTY HIGHWAYS. 8Y5

Explanatory note.

CHAPTER LX.

STATE AND COUNTY HIGHWAYS.

EXPLANATORY NOTE.

State Highways.

The routes of the state highways are prescribed by § 120 of the
Highway Law. The location of such routes may be ascertained by
referring to that section. Lack of room prevents our including them
in this chapter. The boards of supervisors and town officers are not
directly interested in their construction and maintenance. All matters
pertaining to such highways are under the control of the state commis-
sion and its officers.

County Highways.

County highways are constructed at the joint expense of the state,
county and town. The commission finally determines as to the high-
ways to be improved as county highways. The board of supervisors’
are first required to adopt a preliminary resolution stating that public
interests demand the improvement of a highway described therein. The
clerk of the board must transmit a certified copy thereof to the State
commission. After examination the commission approves or disap-
proves the resolution and certifies the same to the board. If the resolu-
tion is approved, the commission causes its engineers to make the neces-
sary maps, plans, specifications and estimates. Such maps, plans &.
are then referred to the district or county superintendent, who must
examine the highway to be improved and the proposed maps, plans, &.,
and report thereon to the commission. If the commission may then
adopt the proposed plans and specifications and transmit the same to the
board of supervisors, with its certificate of approval attached thereto.
The board of supervisors may then approve such plans and specifications,
876 HIGHWAYS AND BRIDGES.

Explanatory note.

and adopt a resolution that the highway be improved in accordance with
such plans and specifications. The boaid may suggest modifications
which become effectual when approved by the commission. The resolu-
tion must provide available funds for the payment of the county’s and
town’s portion of the cost of the improvement.

The foregoing is an outline of the procedure required for securing the
improvement. The law provides in detail for the method of construction ;
such law is included in this chapter.

[Highway Law, art. V1.]

Section 1. Highways to be constructed or improved by the State.
2. Apportionment and source of funds.
3. Construction or improvement of county highways.
8a. Approval of Map.
3b. Construction of four preceding sections.
8c, Modification of map,

4, Preliminary resolution of board of supervisors.

5. Examination of county highway; approval or disapproval of com-
mission.

6. Maps, plans, specifications and estimates.

7. Submission of maps, plans and specifications to district or county
superintendent.

8. Action of commission in respect to maps, plans, specifications and
estimates.

9. Final resolution of board of supervisors.

10. Order of construction of county highways.

11. Contracts for construction or improvement of highways.

12. Award of contracts to board of supervisors or town board.

13. Responsibility of State superintendent for performance of contracts;
suspension of work under contract, completion by State superin-
tendent of highways. .

14. Acceptance of State highway when completed.

15. Acceptance of county highway.

16. Entry upon adjacent lends for drainage purposes.

17. Damages for entry.

18. State and county highways in villages and cities.

18a. State and county highways in certain cities of the second and third
class.

19. Connecting highways in villages and cities.

19a, State and county highways of additional width and increased cost
at expense of town.

19b. Improvement of state and county highways at expense of county or
at the joint expense of such county and any city, village or town.

20. Resolution to provide for raising money.

21. Modifying method of payment.

22. Division of cost of county highways; payments by county treasurer.

22a. Alternative method of apportioning the expense of county highways.

23. County or town may borrow money.

23a. Apportionment and payment of expense of constructing county high-
way through or into cities of the second and third classes.

24, Payment of cost of State highway.

25. Abolition of railroad grade crossings,

25a. Repair of highways at railroad crossings.

26. Street surface or other railroads on highways.

27. Where cost is assessable against abutting owners.

28. Acquisition of lands for right of way and other purposes.

30. Petition to acquire lands.

31. Petition to acquire lands.

31. Commissioners to be appointed.
STATE AND COUNTY HIGHWAYS. 877
Highway Law, §§ 120, 1217

Section 32. Duties of commissioners.
33. County treasurer to pay award.
34. Costs; commissioners’ fees.
35. Lands may be sold or leased; disposition of proceeds.
35a. Apportionment of cost of lands acquired for right of way and other
purposes in certain counties.
36. Application of provisions of labor law.
37. Highways and bridges on Indian reservations.
38. Appointment of reservation superintendent.
39. Custody of moneys, etc.
40. Maintenance of detours during construction.

§ 1. HIGHWAYS TO BE CONSTRUCTED OR IMPROVED BY THE STATE.

The highways which have been heretofore constructed or improved
under the provisions of chapter one hundred and fifteen of the laws of
eighteen hundred and ninety-eight, and the acts amendatory thereof,
which are included in the routes hereinafter described, together with
such other highways as are constructed or improved by the commission
in accordance with the routes set forth and described in this section, shall
be state highways and shall be constructed or improved at the sole ex-
pense of the state as provided in this article. Such routes are hereby set
forth and described as follows: (The description of these routes is omit-
ted.) [Highway Law, § 120; B. C. & G. Cons. L., p. 2251.]

§ 2. Apportionment and source of funds.

Construction of highways under this chapter shall proceed equitably
among counties as far as practicable, using as a basis the ratio that the
unbuilt mileage in each county bears to the total unbuilt mileage in the
state, as herein provided. The funds necessary to provide for the con-
struction or improvement of the highways designated in sections one
hundred and twenty and one hundred and twenty-two of this chapter shall
be derived from the proceeds of the sale of any bonds duly authorized
for the construction or improvement of highways, from funds contributed
by act of congress to the state of New York for the construction of rural
post roads, from funds furnished by the counties, towns or other munici-
palities as provided by this chapter, or from funds derived from direct
appropriations by the legislature.

The cost of any county highway or portion thereof, for which the
state’s share is derived from future bond issues or direct appropriations
by the legislature, shall be apportioned as follows: sixty-five per centum
of such total cost shall be borne by the state and thirty-five per centum
thereof by the county, excepting any county highway to be constructed
with federal aid as provided in article six-a of this chapter. [Highway
Law, § 121, as amended by L, 1911, ch. 646, L. 1917, ch. 315, and L. 1921,
ch. 18.]
87 7a STATE AND COUNTY HIGHWAYS.
Highway Law, § 122.

§ 3. Construction or improvement of county highways.

The highways which have been heretofore constructed or improved under
the provisions of chapter one hundred and fifteen of the laws of eighteen
hundred and ninety-eight or under this chapter or which have been taken
over for maintenance by the state pursuant to article seven of this
chapter, and are not included in the state routes described in section one
hundred and twenty of this chapter, together with such other highways as
are set forth and designated in this section, to be constructed or improved by
the commission, shall be county highways. Except where a portion of a
state route is designated for improvement as a county highway, as authorized
by section one hundred twenty, only the highways hereinafter designated
and set forth in this section and indicated for construction as county
highways on the map to which reference is made in section one hundred
and twenty-two-a of this chapter shall be constructed or improved as
county highways at the joint expense of the state and county as provided in
articles six and six-a of this chapter. Such highways are hereby designated
and set forth as follows:

1. Albany county. Western turnpike, Dunnsville-Guilderland ; Altamont-
Voorheesville; New Baltimore-Coeymans, part two; Preston Hollow-
Rensselaerville; Cooksburg-Greenville, part one.

2. Allegany county. Belmont-Phillips creek, part one; Bolivar-Wells-
ville; Angelica-Canaseraga; Rushford-Caneadea, part two; Fairview-Rush-
ford; Portville-Obi, part two; Alfred-Alfred Station; East Canaseraga,
Heimann Corners-Healey Corners, part one; Hume-Pike, part one;
Dalton-Canaseraga, part two.

3. Broome county. Maine-Glen Aubrey; Vestal-Binghamton; Susque-
hanna-Windsor, part two; Vestal Center south to state line; Vestal Center-
Vestal; Glen Aubrey-Whitney Point, part two; Lisle village connec-
tion; Corbettsville-Snake Creek; McClure-Bettsburg; Kirkwood Crossing ;
Whitney Point village-Upper Lisle street.

4, Cattaraugus county. Arcade-Farmersville, part two; Leon-Weslev,
part one; Salamanca-Ellicottville, part two; Cattaraugus-Dayton ; Portville-
Carroll; Randolph-Pope; Great Valley-Cadiz; Clear Creek-Conewango
Valley; North Franklinville-Farmersville-West Fairview; Salamanca-Kast.
Randolph; Portville-Obi, part one; Leon-Markham Dayton; Sandusky-
Fairview ; Bradford-Carrollton, parts two and three.

5. Cayuga county. North Lansing-Genoa; Port Byron-Conquest; Vic-
tory-Red Creek; Aurora-Union Springs; Genoa-Locke; East Meridian-
South Hannibal; Moravia-Cascade-Wycoff; Mandana-New Hope-Scott,
part one.

6. Chautauqua county. Sinclairville-Cassadaga; Ellington-Clear Creek-
Conewango Valley; Frewsburg-Fentonville-Pennsylvania line; Chautau-
qua-Mayville; Findlay Lake, northwest to Pennsylvania line; Cutting-
Ashville; Stockton-Cassadaga; Conewango Valley-Balcom; Sherman-May-
ville; Wattlesburg-Sherman ; Balcom-Forestville.
STATE AND COUNTY HIGHWAYS. 87%b
Highway Law, § 122.

7%. Chemung county. Southport-South Creek-Pennsylvania line;
Swartwood-Van Etten, part two; Fitch Bridge-Big Flats; Pennsylvania
line-Wellsburg-Lowman; Cayuta-Swartwood, part two.

8. Chenango county. Sherburne-Columbus; New Berlin-Edmeston, part
one; Pitcher-South Otselic; South Otselic-North Pharsalia-Kirk; New
Berlin-Leonardsville, part one; Smithville Flats-McDonough; Coventry-
ville-Bainbridge.

9. Clinton county. Morrisonville-Schuyler Falls; Schuyler Falls-Peru ;
Carons Corners-Churubusco; Ellenburg Center, north to route thirty;
Mooers-Hemingford; Masons Corners, north to Canada line.

10. Columbia county. Chatham-Chatham Center station, parts one and
three; Stuyvesant-Sunnyside; Green River-Great Barrington, part one;
New Lebanon-Stephentown, part one; Stuyvesant-Castleton, part one.

11. Cortland county. Gee Brook-Pitcher; Harford-Marathon ; Mandana-
New-Hope Scott, part two.

12. Delaware county. Delancey-Delhi crossing; Bloomville-Hobart ;
Andes-Margaretville; Deposit-Walton, part one; Deposit-Walton, part two;
North Franklin-Meridale; Stamford-Summit, ‘part one; East Branch-
Downsville; Downsville-Dunraven ; Unadilla-Franklin, part one; Franklin-
North Franklin; North Franklin-Oneonta, part one.

13. Dutchess county. Hyde Park-East Park; Amenia-Sharon, part one;
Fishkill Plains-Poughkeepsie, part one; Winchell-Northeast Center; Rhine-
cliff; Rhinebeck; Stonehouse-Pawling; Lithgow-Wassaic; Cold Spring-
Beacon, part two.

14. Erie county. Lancaster, Clinton street; Athol Springs-Orchard
Park; Evans-Eden, part one; Holland-Glenwood, part two; Boston-Colden ;
North Boston-Dewells Corners; Collins Center-Langford; Langford-Water
Valley, part one; Gardenville-Williamsville; Buffalo-Cheektowaga; Akron-
Crittenden, part one; East Aurora, Maple street.

15. Essex county. Whallonsburg-Bouquet-Essex; Essex Willsboro;
Hague-Ticonderoga, part two; Willsboro-Long Pond; Long Pond-Lake
Shore road Keeseville.

16. Franklin county. Chateaugay north to Canada line; Merrills Cor-
ners-Collins Corners-Clinton county line; Saint Regis Falls-Santa Clara;
Indian reservation-Fort Covington; Bloomingdale-Merrills Corners.

17. Fulton county. Stone Arabia-Ephratah, part two; Mayfield Broad-
albin; Gloversville-Broadalbin; Ephratah-Caroga.

18. Genesee county. Darien Center-Alexander; Batavia-Albion, part
two; Batavia-Bergen; Bergen-Brockport, part one; Batavia-Pavilion, part
one; Le Roy-Fort Hill-Bergen; Crittenden-Corfu; Corfu-Batavia; Corfu-
Indian Falls*Alabama, part two.

19. Greene county. Tannerville-Haines Falls; Saugerties-Palenville,
part two; Cooksburg-Greenville, part two; Greenville-Indian Fields, part
one; Palenville-Catskill; Cairo-Freehold-Greenville.

20. Hamilton county. Morehouseville Piesco, parts two and three;
Tupper Lake-Long Lake, parts two and three; Indian Lake-North River.
87%c STATE AND COUNTY HIGHWAYS.

Highway Law, § 122.

21. Herkimer county. Frankfort-Gulph; Paines Hollow-Little Falls,
part two; West Exeter-West Winfield, part two; Manheim-Burrells.

22. Jefferson county. Jewettville-Dexter; Woodville-Ellisburg; Tre-
maines Corners-Barnes Corners-Worth Corners; Thersa-Redwood; Adams-
Rodman.

23. Kings county. From the pavement near the Atlantic avenue pump-
ing station, on Conduit avenue, which carries the pipe line, to the Queens
county line.

24, Lewis county. Barnes Corners-Copenhagen; Tremaines Corners-
Barnes Corners, part two; West Leyden-Constableville-Potters Corners.

25. Livingston county. Lakeville-East Avon; Geneseo-Lakeville; Dans-
ville- Conesus ; Geneseo village, Main street connection ; Griegsville-Piffard ;
Pavilion-Griegsville, part three; Dalton-Canaseraga, part one; Tuscarora-
Groveland, part one; Springwater crossing.

26. Madison county. Cazenovia-Chittenango; South Bay-Sylvan Beach,
part one; Cazenovia village, Syracuse connection; New Berlin-Leonards-
ville-Bridgewater, part two; Georgetown-Eaton-Pecksport; Furman Mill-
East Hamilton-North Brookfield.

27. Monroe county. Rush-Mendon, part one; Henrietta station, South
Arab street; Riga-Buckbee Corners; Pittsford-Victor, part one; West
avenue, Hilton, to county highway thirteen hundred ninety-one.

28. Montgomery county. Stone Arabia-Ephratah, part one; Manny
Corners-Blue Corners; Glen-Mill Point; Danube-Fort Plain.

29. Nassau county. Syosset-Cold Spring Harbor, part two; Westbury
hamlet, Union avenue; Searington-Flower Hill, part two; Mineola-Sear-
ington, part two; New York city line to Suffolk county line through the
southerly portion of Nassau county on a route to be determined by the
commission ; county line road from pipe line to south country road.

30. Niagara county. Wendelville-Lockport, part one; Dickersonville-
Cambria; Niagara Falls-River Road-North Tonawanda.

31. Oneida county. Cleveland-North Bay-Vienna; South Bay-Sylvan
Beach, part two; Kirkland-Rome; Waterville-Paris-New Hartford; Ava-
West Leyden; Hamilton college-Clinton; Sytvan Beach-Vienna; Camden-
Vienna.

32. Onondaga county. Scott-Borodino, part two; Syracuse-Otisco, part
two; North Memphis-Baldwinsville connecting with highway fifteen hun-
dred seven and county road C, five, part two; Amber-Cedarvale-Svracuse ;
Fabius-Pompey, part two; Tully Center-Cardiff Valley, parts one and
three; Half Way connection; Syracuse-Bridgeport crossing. [Subd. 32,
amended by L. 1922, ch. 388.]

33. Ontario county. Rushville-Reed Corners; West Junius-Waterloo,
part one; Naples-Middlesex, part one; Honeoye-Vincent; Bristol Springs-
Cheshire, part one; Dresden-Geneva, part two; Pittsford-Victor, part two;
Phelps-Newark, part one.

34. Orange county. Unionville-New Jersey line, New Hampton-Denton;
Montgomery-Bullville; Cronomer Valley-Plattekill; Tuxedo-Harriman ;
STATE AND COUNTY HIGHWAYS. g77d
Highway Law, § 122.

State line-New Milford-Warwick; Bullville-Bloomingburg; Montgomery
village connection; Walden-Wallkill, part one; Monroe village connec-
tion; Lakeside-Greenwood Lake; Greenwood Lake-Tuxedo; Warwick vil-
lage connection; Florida hamlet connection; Pine Bush hamlet connec-
tion.

35. Orleans county. Clarendon-Byron, part two; Murray north tu
county highway three hundred eighty-eight; Middleport-Medina west cor-
poration line.

36. Oswego county. Palermo-Mexico, part two; Phoenix-Mexico, part
three; Cleveland village connection; Amboy Center-Williamstown; W1-
liamstown-Redfield ; South Hannibal-Bowens Corners. |

37. Otsego county. Garrattsville-West Burlington; New Berlin-Edmes-
ton, part two; Milford-Westville; Morris-Garrattsville; Westville-Rose-
boom; North Franklin-Oneonta, part two; Springfield Center-Vanhornes-
ville.

38. Putnam county. Dean Corners-Salem Center, part one; Towner
Station east to route one; Cold Spring-McKeels Corners; Cold Spring-
Beacon, part one; Tilly Foster-Sears Corners.

39, Queens county. From Kings county line on Conduit avenue, known
as the pipe line boulevard, to the Nassau county line near Valley Stream.

40. Rensselaer county. Valley Falls village connection; Johnsonville-
Buskirk; Petersburg-North Petersburg; Stephentown-Berlin; Stillwater-
Schaghticoke ; North Hoosick-White Creek’ Station ; Stuyvesant-Castleton,
part two; New Lebanon-Stephentown, part two.

41. Rockland county. Mount Ivy-Haverstraw; Pearl street and Central
avenue, Pearl River.

42. Saint Lawrence county. Canton-Madrid, part one; Edwards-Fine;
Old De Kalb-Heuvelton; Norfolk-Raymondville; Edwardsville-Morristown ;
Raymondville-Massena ; Massena-Waddington, part five; Colton-Seveys Cor-
ners,

43. Saratoga county. Malta-Bemis Heights, part two; Scotia-West
‘Charlton-Scotch Church, part two; Reynolds Corners-Fort Edward; Sara-
toga-Gansevoort, part two; Schuylerville village connections, Snake Hill-
Saratoga lake outlet; Saratoga Springs, Gansevoort connection; Saratoga
Battle Monument connection.

44, Schenectady county. Scotia-West Charlton, part three; Western
turnpike, Duanesburg-Dunnsyville; Gifford Church-Gifford Corners; Delan-
son north to Western turnpike; Pattersonville-Scotch Church; Scotia
Village-West Charlton, part one; barge canal lock nine connection.

45. Schoharie county. Sharon-Sloansville; Stamford-Summit, parts
two, three and four; Sharon Springs-Canajoharie, part one.

46. Schuyler county. Odessa-Smith Valley-Mecklenburg; Wayne-Dun-
dee, part one; Alpine-Cayuta, part two; Mecklenburg-Ithaca, part one;
Cayuta-Swartwood, part one; Bennettsburg-Perry City.

4%. Seneca county. West Junius-Waterloo, part two; Halsey Corners-
Savannah, part one; Gevena-Willard ; MacDougall connection.
dive STATE AND COUNTY HIGHWAYS.
Highway Law, § 122.

48. Steuben county. Kanona-Prattsburg, part one; Rathbone-Addison ;
Prattsburg north to Daball Creek; Hammondsport-Branchport, part one;
Troupsburg Center-Jasper; Erwin-Lindlay-Pennsylvania line; East Can-
aseraga-Heimann Corners-Healey Corners, part two; Hammondsport-
Branchport, part two; Canisteo-Rathbone; Caton-Seeley Creek, parts one
and two; Wayland-North Cohocton; Rexville-Troupsburg Center; North
Hornell-Fremont Center-Haskinsville-Loon Lake-Patchinville-Wayland.

49. Suffolk county. East Moriches-West Hampton; West Hampton-
Qucgue; Southampton-Bridgehampton; Riverhead-Mattituck-Greenport ;
Huantington-Fort Salonga; Smithtown Branch-Coram; Coram-Middle Is-
land, east; county, line road from south country road to pipe line boule-
vard; Syosset-Cold Spring Harbor, part three; Amityville village connec-
tion.

50. Sullivan county. ‘“Liberty-Woodbourne, part one; Woodbourne-Gra-
hamsville-Montela; Forestburg-Monticello; Monticello-Woodbourne.

51. Tioga county. Spencer village connection; Smithboro-Nichols-Penn-
Sylvania line; Caroline-Richford, part two.

52. Tompkins county. Mecklenburg-Ithaca, part two; Dryden-Harford ;
South Lansing-North Lansing; Caroline-Richford, part one; Ithaca city,
connecting Trumansburg and Mecklenburg roads.

53. Ulster county. Highland-New Paltz; Saugerties-Palenville, part
one; Walden-Wallkill; part two: Wallkill-New Hurley-Ireland Corners;
Kerhorkson-Minnewaska-Gardiner.

54. Warren county. North Creek-North River; Hague-Ticonderoga,
part one; Glens Falls-Oneida; Chestertown hamlet connection.

55. Washington county. Whitehall-Fair Haven; Greenwich-Cambridge;
Greenwich-South Argyle; Thomson-Fort Edward; Greenwich village, Bat-
tenville connection ; Hudson Falls village, connecting Glens Falls and Fort
Ann roads; Adamsville-Granville; Kingsbury street-Smith’s Basin.

56. Wayne county. Palmyra-Marion; Alton-Sodus Point; Fairville-
Sodus; Phelps-Newark, part three; Wolcott-Savannah, part four; Wolcott-
Savannah, parts one and two.

5%. Westchester county. Grant Corner-Rundall Corner and Baily Cor-
ner-state line; Mount Kisco corporation line-Katonah: Knollwood-Haw-
thorne; Larchmont, Weaver street; Yonkers city, Saw Mill River road;
White Plains city, Mamaroneck avenue; Tarrytown village, Benedict Ave-
nue connecting with county highway five hundred three; Highridge-Pound-
tidge-Boutonville; Peeksville-Putnam Valley; Croton Dam-Croton Bridge;
Croton-Croton Dam; Paynes Corners-Banksville; Goldens Bridge hamlet
connection; Mohansic Lake connection.

58. Wyoming county. Varysburg-Warsaw, part one; Warsaw village
connection; Warsaw-Perry Center; Pike-Castile; Wyoming village-Wyom-
ing Station; Arcade-Pike; Java Center-Waldo Corners-Smith Corners;
Pavilion-Griegsville, part two; Hume-Pike, part two; Pike-Gainesville;
Arcade-Farmersville, part one.
STATE AND COUNTY HIGHWAYS, S77F

Highway Law, §§ 122a, 122b,

59. Yates county. Wayne-Dundee, part two; Penn Yan-Potter; Naples-
Middlesex, part two; Hammondsport-Branchport, part three; Dresden-Gen-
eva, part one; Middlesex-Rushville.

All of the highways referred to by number in the foregoing routes are
the highways so numbered on the records of the state department of high-
ways.

The geographical names used in this section to designate county high-
ways are so used for the purpose of general identification and the terminals
of such highways are definitely fixed and determined on the map to which
reference is made in section one hundred and twenty-two-a. [Highway
Law, § 122, as amended by L. 1912, ch. 83, and L. 1921, ch. 18.]

§ 3-a. Approval of map.

The map filed with the secretary of state by the joint legislative high-
way committee authorized and created by concurrent resolutions of the
senate and assembly adopted April eighteenth, nineteen hundred and nine-
teen, and February eleventh, nineteen hundred and twenty, prior to the
passage of this chapter as amended by this act, on which is shown the ulti-
mate system of highways of the state of New York and including the state.
and county highways yet to be constructed, as designated, set forth and
described in sections one hundred and twenty and one hundred and twenty-
two of this chapter, is hereby approved, and all other maps of the highway
system of the state are hereby revoked and annulled. [Highway Law, §
122-a, as added by L. 1921, ch. 18.]

§ 3-b. Construction of four preceding sections.

Nothing in the four preceeding sections as added by this act shall be
construed as authorizing the construction or maintenance of any portion
of a highway within the limits of any city, unless the same is now author-
ized by the highway law, excepting that portion of a third class city lying
outside of its corporation tax district where such city embraces the entire
area of a former township; and also excepting the construction of the pipe
line boulevard in the southern part of the counties of Queens and Kings,
but not the maintenance thereof.

Any highway now under contract as a county highway, which becomes
a part of any state route described in section one hundred and twenty of
this chapter, shall be completed and paid for as a county highway; and
any highway now under contract as a state highway, which is not included
in any of the said state routes, shall be completed and paid for as a state
highway.

If, pursuant to section one hundred and twenty-eight of this chapter
a board or boards of supervisors shall have heretofore approved the plans,
specifications and estimate for the construction or improvement of a county
highway or section thereof, which is identical with.a county highway or
section thereof as designated and set forth in section one hundred and
878 HIGHWAYS AND BRIDGES.

Highway Law, §§ 1220, 123, 124,

twenty-two, as amended, and is indicated for construction as a county high-
way on the map to which reference is made in section one hundred and
twenty-two-a, such county highway or section thereof shall be deemed ap-
proved under such sections, as amended, without further action by such
board or boards of supervisors. [Highway Law, § 122-b, as added by L.
1921, ch. 18.]

§ 3-c. Modification of map.

The state commissioner of highways is hereby authorized and directed to
modify the map in his office which is a duplicate of the map filed with the
secretary of state pursuant to section one hundred and twenty-two-a of the
highway law, to conform with any act which amends section one hundred
and twenty or one hundred and twenty-two of this chapter, and to con-
sider the highways indicated on such modified map as the only ones eligible
for improvement pursuant to this chapter. [Highway Law, § 122-c, added
hy L. 1922, ch. 388.]

§ 4. PRELIMINARY RESOLUTION OF BOARD OF SUPERVISORS.

The board of supervisors of any county may pass a resolution * stating
that public interest demands the improvement of a highway or section
thereof within the county, and requesting that it be constructed or im-
proved as provided in this article. Such resolution shall contain a descrip-
tion of such highway or section thereof. Such highway or section thereof
shall not include a portion of a highway within a city, except that portion
of the cities of Rome and Oneida lying outside of the respective corporation
tux districts of said cities, nor any portion of a highway within an incor-
porated village, unless it be necessary to complete the connection of such
highway with a highway already improved or to be improved under this
article. The clerk of the board of supervisors shall, within ten days
after the passage of such a resolution, transmit, a certified copy thereof
to the commission. [Highway Law, § 123, as amended by L. 1909,
ch. 487; B. C. & G. Cons. L., p. 2252.]

§ 5. EXAMINATION OF COUNTY HIGHWAY; APPROVAL OR DIS-
APPROVAL BY COMMISSION.

The commission after receipt of such resolution, and at such times as
it deems proper, shall examine the highway or section thereof sought
to be constructed or improved, and shall determine whether it is of the
character specified in section one hundred and twenty-two, and whether

 

1. The resolution to be adopted under this section should be in the form
prescribed by the commission, blank forms of which will be furnished upon
application.
STATE AND COUNTY HIGHWAYS. 879
Highway Law, § 125.

the construction or improvement thereof will provide for an equitable
apportionment of the highways among the several counties as provided
in such section. After such examination the commission shall certify its
approval or disapproval of such resolution to the board of supervisors
adopting it; if it disapprove thereof it shall certify its reasons therefor.
[Highway Law, § 124; B. C. & G. Cons. L., p. 2252.]

§ 6. MAPS, PLANS, SPECIFICATIONS AND ESTIMATES.

Whenever the commission shall have determined upon the construction
or improvement of a state highway, or section thereof, or shall have
approved a resolution adopted by a board of supervisors in any county
requesting the construction or improvement of a county highway, or a
eection thereof, the commission shall direct the division engineer of the
division wherein such highway or section thereof is situated to make
surveys, and prepare suitable preliminary maps, plaris and specifications.
Such division engineer shall, subject to the direciion and control of the
commission, have the following powers and duties in respect to such
highways:

1. He shall cause the highway or section thereof designated by the
commission, or described in such resolution, to be mapped both in out-
line and profile.

2. He may provide for a deviation from the line of a highway already
existing, if thereby a shorter or more direct highway, or a lessened gradient
may be obtained without decreasing the usefulness of the highway.

3. He may provide for the widening of an existing highway.

4, He shall prepare preliminary plans and specifications for the con-
struction or improvement of such highway or section thereof providing
for a telford, macadam or gravel roadway, or other suitable construction,
taking into consideration climate, soil and materials to be had in the
vicinity thereof, and the extent and nature of the traffic likely to be upon
such highway, specifying in his judgment the kind of highway a wise
economy demands.

5. He shall provide in such plans and specifications for necessary cul-
verts, drains, ditches, waterways, embankments, guard-rails and retaining
walls.

6. He may provide therein for the removal or planting of trees, and
seeding or sodding, within the boundaries of the highway, when neces-
sary for the preservation thereof.

6-a. He may provide therein for the removal of, or the trimming of
any trees within the boundaries of the highway necessary for the con-
venience or safety of the public, or the construction or preservation of
the highway.
880 HIGHWAYS AND BRIDGES,
Highway Law, § 125a.

7. He shall provide therein for the erection of suitable guide boards,

8. He may provide for such other work as may be required to com-
plete the construction or improvement in a proper manner.!*

9. He shall cause an estimate to be made of the cost of the construe-
tion of such highways, or section thereof in accordance with such plans
and specifications. In making such estimate he shall ascertain with all
practical accuracy the quantity of embankment, excavation and
masonry, the quantity of all materials to be used and all items of work
to be placed under contract and specify the estimated cost thereof.”
[Highway Law, § 125, as amended by L. 1911, ch. 646; B. C. & G.
Cons. L., p. 3485. ]

Whenever the commission shall have determined upon the construc-
tion or improvement of a state or county highway, the plans and speci-
fications cf such state or county highway may provide, except in
mountainous regions and where the physical conditions make it im-
practicable, either for one side shoulder or driveway of at least eight
feet in width and constructed of a foundation of broken stone or gravel
and a surface of dirt, cinders, gravel or other material afford-
ing safe footing for horses, or shoulders for driveways at least six feet
in width of similar construction on either side of such improved state
or county highway. Whenever the commission shall have determined
to resurface any improved state or county highway, except in moun-
_ tainous regions and where the physical conditions make it impractic-
able, provisions may be made by such commission, with'the approval
of the board of supervisors, either for a driveway upon one side of the
highway at least eight feet in width and constructed of a foundation of
broken stone or gravel and a surface of dirt, cinders, gravel or other
material affording safe footing for horses, or driveways of similar con-
struction and at least six feet in width on either side of the road so re-
surfaced. The provisions of this section shall not apply to bridges on
state or county highways. [Highway Law, § 125-a, as added by L.
1919, ch. 374.]

la. This subdivision confers no authority upon the division engineer to obligate
the state without restraint or otherwise for the construction of bridges. Paddle-
ford v. State (1918), 103 Misc. 398, 175 N. Y. Supp. 583.

1b. The purpose of this subd. is that the engineer’s estimate shall furnish infor-
mation to and serve as a guide for bidders concerning the quantity of the work to
be done, the materials to be furnished, and also advises the bidder what the
engineer acting for the state deems a fair price therefor. The bidder is not con-
cerned with the amount of the cost of engineering, advertising, or other incidentals

entering into the total cost nor is he asked or permitted to bid on these items.
Matter of Harvey v. Duffey (1917), 101 Misc. 641, 168 N. Y. Supp. 814,

 
4

STATE AND COUNTY HIGHWAYS. 881
Highway Law, §§ 126, 127, 128.
§ 7. SUBMISSION OF MAPS, PLANS AND SPECIFICATIONS TO DISTRICT
OR COUNTY SUPERINTENDENT.

The commission shall cause the preliminary maps, plans and specifica-
tions for either a state or county highway, or a copy thereof, to be pre-
sented to the district or county superintendent of the district or county
in which such highway or section thereof is situated, who shall person-
ally examine the highway or section thereof and the proposed maps,
plans and specifications, and shall recommend any modification thereof
which in his judgment seems to be necessary and shall report thereon
within fifteen days to the commission. He shall also take such other
action in respect thereto as may be required by law or by the com-
mission.° [Highway Law, § 126, as amended by L. 1911, ch. 646;
B. C. & G. Cons. L., p. 3486.]

§ 8. ACTION OF COMMISSION IN RESPECT TO MAPS, PLANS, SPECIFICA-
TIONS AND ESTIMATES.

Upon receiving the report of the district or county superintendent,
as provided in the preceding section, the commission shall finally adopt
the maps, plans, specifications and estimates which are to be used for
the construction or improvemert of the state or county highway to be
constructed or improved. If such highway be a state highway the com-
mission shall thereupon proceed to advertise and award contracts for
the construction or improvement thereof as.provided in section one
hundred and thirty. If such highway be a county highway the com-
mission shall transmit such plans, specifications and estimates as
adopted by them to the board of supervisors of the county from which
the resolution proceeded, together with their certificate approving the
construction or improvement of the highway or section thereof desig-
nated in such resolution. [Highway Law, § 127; B. C. & G. Cons. L.,
p- 3486. |
§ 9. FINAL RESOLUTION OF BOARD OF SUPERVISORS.

The board of supervisors, after the receipt of plans, specifications and
estimate of a county highway or section thereof, and after such modi-
fication thereof as may be made by a majority vote of such board, with
the consent of the commission, may approve such plans, specifications
and estimate, and adopt a reso!ution requesting that such county highway
or section thereof be constructed or improved under the provisions of

 

1c. See, also, as to duty of commission in respect to final plans, specifications
and estimates for state and county highways, Highway Law, sec. 15, subd. 11, ante.
The determination of the details of the route of a state highway is vested in the
state commissioner of highways and not in the town or county officers. Rept. of
Atty. Genl. (1912), vol. 2, p. 225.
882 HIGHWAYS AND BRIDGES, -
Highway Law, §§ 129, 130.

this article, in accordance therewith. In the case of a county highway
or a section thereof which divides two or more counties, such resolu-
tion must be separately adopted by the board of supervisors of each
county within which a portion of such highway lies. The form of such
resolution shall be prescribed by the commission and shall contain the
matter required by this article to be inserted therein. Immediately
upon the adoption of such resolution the clerk of the board of super-
visors shall transmit a certified copy thereof to the commission. When
a board of supervisors has once adopted a resolution providing for the
construction or improvement of a h'ghway or a section thereof in ac-
cordance with such plans and specifications, no resolution thereafter
adopted by such board shall rescind or annul such prior resolution either
directly or indirectly, excepting under the advice and with the consent
of the commission. Notwithstanding the adoption of such a resolution,
the commission may modify such plans, specifications and estimate,
prior to the award of a contract therefor and, upon the approval thereof
by the board of supervisors as above provided, such highway or section
thereof shall be constructed or improved in accordance with such plans,
specifications and estimate.’? [Highway Law, § 128, as amended by
L. 1909, ch. 240; B. C. & G. Cons. L., p. 3487.]

§ 10. ORDER OF CONSTRUCTION OF COUNTY HIGHWAYS.

Upon the receipt of such resolution the commission shall proceed
with the improvement or construction of such county highway as pro-
vided in this article. The construction and improvement of such
county highways and sections thereof shall be taken up and carried for-
ward within a county in the consecutive order as determined by the date
of the receipt by the commission in each case of the certified copy of the
final resolution, so far as is practicable in the opinion of the commission.
No such highway shall be placed upon the list of highways to be con-
structed or improved nor receive a consecutive number on such list, un-
less such resolution shall appropriate and make immediately available
for such construction or improvement the counties’ share of the cost
thereof. [Highway Law, § 129, as amended by L. 1910, ch. 247, L.
1911, ch. 646, and L. 1912, ch. 83.]

§ 11. CONTRACTS FOR CONSTRUCTION OR IMPROVEMENT OF WAYS.

State and county highways shall be constructed or improved by con-
tract. Upon the completion and final adoption or approval, as provided

 

jd. Alteration in proposed highway.—Since the amendment of 1909 it is evi-
dent that the board of supervisors, with the consent of the commission, may make
alterations in a proposed highway at any time before the bids are accepted. Suther-
land v. Skene, 142 App. Div. 162, 126 N. Y. Supp. 901.
STATE AND COUNTY HIGHWAYS, 883
Highway Law, § 130.

by law, of the plans, specifications and estimate for the construction or
improvement of a state or county highway, contracts therefor shall be
executed as provided herein.

1, Advertising for proposals—The commission shall advertise for
proposals for the construction or improvement of such highways or sec-
tions thereof according to the plans, specifications and estimate pre-
pared therefor. The advertisement shall be limited to a brief descrip-
tion of the work proposed to be done, with an announcement stating
where the maps, plans, specifications and estimate may be seen, the
terms and conditions under which proposals will be received, the time
and place where the same will be opened, and such other matters as the
commission may deem advisable to include therein. Such advertisement
shall be published at least once in each week for two successive weeks in
a newspaper published at the county seat of the county in which such
highway or section thereof is to be constructed or improved, and in
such other newspapers as the commission may designate. If no news-
paper is published at such county seat, then the publication of the adver-
tisement shall be in such newspaper or newspapers within the county as
the commission may select. If no newspaper is published in the county,
the publication of the advertisement shall be in such newspaper or
newspapers in an adjoining county as may be selected by the com-
mission.” [Subd. amended by L. 1917, ch. 261.]

2. Proposals.—Each proposal shall specify the gross sum for which
the work will be performed and shall also include the amount to be
charged for each item specified in the estimate. The commission
may prescribe and furnish forms for the submission of such proposals
and may prescribe the manner of submitting the same, which shall not
be inconsistent herewith. Accompanying each proposal there shall be
a draft or certified check for three per centum of the amount of the
gross sum bid, which check, in case such proposal be accepted, shall be
retained by the state commission of highways until the contract, and
the bond hereinafter provided for, shall have been duly executed,
whereupon such check shall be returned to the bidder. In case the
bidder to whom the contract shall be awarded shall fail to execute
‘such contract and bond, the moneys represented by such draft or certi-
fied check shall be regarded as liquidated damages and shall be for-

feited to the state and shall be deposited by the commissioner with the
state treasurer to the credit of the fund available for the construction

 

2. Specifications for improvement of state and county highways should be pre-
pared and finally adopted before advertising for proposals. Rept. of Atty. Genl.,
May 5, 1911.

Commissioner of highways may prepare new plans and specifications for com-
pletion of war contracts terminated under L. 1919, ch. 459, § 2. Opinion of Atty.
Genl. (1919), 20 State Dept. Rept. 238.
884. HIGHWAYS ND BRIDGES.
Highway Law, § 130.

of said highway ; provided, however, that should the bidder request the
commission to dispense with a bond as provided in subdivision seven
of this section, such check shall be retained by the commission until
fifteen per centum of the work under the contract has been accom-
plished, as determined according to the estimates from time to time ap-
proved by the commission as a basis for payments on the contract, and
should the bidder to whom the contract shall be awarded fail to exe-
cute such contract or fail to progress the work embraced within such
contract until such time as fifteen per centum of the work shall have
been accomplished, the moneys represented by such draft or certified
check shall be regarded as liquidated damages and shall be forfeited to
the state and shall be deposited by the commissioner with the state
treasurer to the credit of the fund available for the construction of
said highway. The proposals when opened shall be subject at all
reasonable times to public inspection, and at the time of opening shall
be publicly read and conspicuously posted in such a manner as to in-
dicate the several items of the proposal.** [Subd. amended by L. 1919,
ch. 623.]

3. Award of contracts——The contract for the construction or im-
provement of such highway or section thereof shall be awarded to the
lowest responsible bidder, except that no contract shall be awarded at
a greater sum than that required for the work alone as shown in the
estimate made for the construction or improvement of such highway or
section thereof in accordance with such plans and specifications. The
lowest bid shall be deemed to be that which specifically states the lowest
gross sum for which the entire work will be performed, including all the
items specified in the estimate therefor.2” [Subd. amended by L, 1917,
ch. 261.]

4, Estimates may be amended—If no proposal otherwise acceptable
is made within the estimate accompanying the plans and specifications,
the commission may cause the estimate to be amended. If the high-
way to be constructed or improved is a county highway the commission

 

2a. Proposal changing specifications. Where a proposal for the construction of a
section of State or county highway according to specifications is accompanied by a
letter modifying or changing the specifications as to kind of material proposed to
be used, though of the same kind of construction, such proposal or bid is not
entitled _to compete with other bids which are strictly according to the specifica-
tions, Rept. of Atty. Genl., May 5, 1911.

Alternate bids should not be invited on different classes of construction for im-
provement of the same section of highway; the kind of construction should be
finally determined before advertising for bids. Rept. of Atty. Genl., May 5, 1911.

Withdrawal of bid or proposal. Opinion of Atty. Gen. (1919), 20 State Dept.
Rep. 255; Matter of Foley Cont. Co. v. Green (1919), 108 Misc. 520, 170 N. Y.
Supp. 779.

Terteltuce of deposit made by bidder under edntract for construction of highway;
mandamus; when such bidder cannot recover deposit because of error in estimates
of state. Matter of Semper v. Duffey (1919), 227 N. Y. 151, 124 N. E. 743, revg.
188 App. Div. 984.

2b. Has reference solely to the cost of the work called for by the plans and
specifications and does not include items incidental to the work in question. Mat-
ter of Harvey v. Duffey (1917), 101 Misc. 641, 168 N. Y. Supp. 814, affd. 182 App.
Div. 908, 168 N. Y. Supp. 1124.
STATE AND COUNTY HIGHWAYS. 885
Highway Law, § 130.

shall certify the amended estimate to the board of supervisors and the
board shall take action thereon as in a case where plans, specifications
and estimates are originally submitted to a board of supervisors. Upon
the amendment of such estimate, and its approval by the board of
supervisors in case of a county highway, the commission may proceed.
anew to obtain proposals and award the contract as provided in this
section.

5. Rejection of proposals—The commission may reject any or all
proposals and may advertise for new proposals as above provided if, in
their opinion, the best interests of the state will thereby be promoted.”°

6. Form of contract—The commission shall prescribe the form of
contract and may include therein such matters as they may deem ad-
vantageous to the state. Such forms shall be uniform so far as may be.”*

%. Bond of contractor.—Unless a bond be dispensed with as herein-
after provided, each contractor, before entering into a contract for such
construction or improvement, shall execute a bond in the form pre
‘scribed by the commission, with sufficient sureties, to be approved by

 

2c. The power of the commissioner to reject bids is discretionary, but should
be exercised for the benefit of the state. Rept. of Atty. Genl., March 22, 1911.

He may cancel an uncompleted contract, if the work is not, being done in full
accord with the terms of the contract and "the specifications. Rept. of Atty. Genl.
(1912), vol. 2, p. 567.

The Commissioner of Highways has authority to reject the lowest bids and
award the contract to the next lowest bidder, or may reject all the bids and
readvertise the work, and may adopt which ever course is deemed for the best
interest of the State, but the course to be pursued in that respect is one of policy,
the responsibility therefor resting upon the Highway Department. Atty. Genl. Opin.,
6 State Dep. Rep. 413 (1915).

Where a contractor has defaulted in performing several contracts, his bid on
another contract, although the lowest may be rejected. Atty. Genl. Opin., 6 State
Dep. ‘Rep. 413 (1915).

2d. Contracts. It is the duty of the state in making contracts with its citizens
to set a standard which for fairness, justice, equity, honesty and plain frank
statement of its purpose, without subterfuge or circumlocution, shall be beyond
all criticism as being in any way possible of deception. Atlanta Const. Co. v.
State (1918), 108 Mise. 238, 175 N. Y. Supp. 453.

As to when a supplemental contract must be executed as the basis of a recovery
for work not provided for in the original contract, see Paddleford v. State (1918),
103 Misc, 398, 175 N. Y. Supp. 583; s. c. (1920), 192 App. Div. 870, 183 N. Y,
Supp. 249; Gen. Const. Co. v. State (1918), 104 Mise. 2938. The contractor has the
right to refuse to comply with the directions of an engineer to perform work not
within the original or a supplemental contract, but in case he obeys the engineer his
act is voluntary and does not bind the state to pay, and where claimant testifies
that he knew that a certain item of work was not required by the contract and
that he complied with the engineer’s directions to “avoid friction” with the latter,
his claim for such work will be dismissed. Stanton v. State (1918), 108 Misc. 221,
175 N. Y. Supp. 568.

As to when acceptance of a bid of a contractor by the Highway Commission for
the construction of a road completes a binding contract or constitutes an agreement
to enter into a formal contract, See, Belmar Cont. Co. y. State (1920), 194 App
Div. 69, 185 N. Y. Supp. 734.

See, also, Belmar Cont. Co. v. State (1920), 110 Misc. 429, 180 N. Y. Supp. 494;
Town of New Lebanon v. State (1920), 111 Mise, 310.
886 HIGHWAYS AND BRIDGES,
Highway Law, § 130.

the commission, conditioned that he will perform the work in accord:
ance with the terms of the contract, and with the plans and specifica
tions, and that he will commence and complete the work within the
time prescribed in the contract; provided, however, that the commis-
sion shall, at the time of the execution of the contract, upon the
written request of the contractor, dispense with the giving of said
bonds; but in any such case twenty per centum of the contract: price
shall be retained until the entire work has been completed and ac-
cepted. The bond, if given, shall also provide against any direct or
indirect damages that shall be suffered or claimed on account of such
construction or improvement during the time thereof, and until the high-
way is accepted.”*7_ [Subd. 7, as amended by L. 1919, ch. 623.]

8. Payments on contract.—The contract may provide for partial
payments to an amount not excceding ninety per centum, or in a case
where the bond is dispensed with, eighty per centum, of the value of
the work done, which shall be paid in the manner provided by this
article, when certified to hy the commi:sion. Ten per centum of the
contract price, where a bond approved by the commission is given and
twenty per centum in case said bond is dispensed with, shall be re-
tained until the entire work has been completed and accepted.”° [Subd.
8, as amended by L. 1919, ch. 623.]

9. Contingencies.—All contingencies arising during the prosecution
of the work shall be provided for to the satisfaction of the commission
and as may be agreed upon in the original or by a supplemental contract
executed by the commission; the amount to be expended shall not ex-
ceed the original estimate, unless such estimate shall have been duly
amended by the commission and, in the case of a county highway, sub-
mitted to the board of supervisors for its approval. If a supplemental

 

2dd. Action upon contractor’s bond. Complaint and bond examined and held to
state a cause of action. People v. Mass. Bonding & Ins. Co. (1918), 182 App. Div. 122,
169 N. Y. Supp. 693. d ;

Mandamus to compel return of draft deposited by highway contractor, see Matter of
Harvey v. Duffey (1917), 101 Misc. 641, 168 N. Y. Supp. 814.

When provision in bond that contractor would pay all costs of construction, Including
wages of laborers does not give laborers right of action against surety for unpaid wages.
Fosmire v. National Surety Co. (1920), 229 N. Y. 44, revg. 189 App. Div. 44.

2e. The State Commissioner of Highways may pay over the balance of the money due
upon a contract to the assignee thereof, unless conflicting claims are made to it, not-
withstanding the fact that the contractor refuses to enter into or sign a special agree-
ment covering the changes made in the contract. Atty. Genl. Opin., 6 State Dep. Rep.
491 (1916.

Pveution of ten per cent. of contract price. The provision of this subdivision that
“ten percentum of the contract price shall be retained until the entire work has been
completed and accepted” is mandatory, and a contractor cannot be paid any portion of
such amount until his contract has been finally completed and the road accepted. Atty.
Genl. Opin., 6 State Dep. Rep. 428 (1915.)

As to disposal of moneys dve after abandonment or abrogation of contract, sce,
Opinion of Atty. Genl. (1919}, 19 State Dept. Rep. 326,
STATE AND COUNTY HIGHWAYS, 887
‘Highway Law, § 131.

contract be executed by the commission for the performance of work
or furnishing of material not provided for in the original contract, the
amount to be charged thereunder for any such work or material shall
not exceed the rate for which similar work or material was agreed to
be performed or furnished under the original bid upon which the con-
tract was awarded. Such supplemental contract shall not be binding
unless it be approved by the commission in case of a state highway and
in case of a county highway, by the chairman of the board of super-
visors and the district or county superintendent. [Highway Law, §
180; B. C. & G. Cons. L., p. 3488. ]

§ 12. AWARD OF CONTRACTS TO BOARD OF SUPERVISORS OR TOWN

BOARD.

A board of supervisors of a county, or a town board of a town, in
which any portion of a state or county highway is situated, may pre-
sent proposals and be awarded a contract for the construction or im-
provement of such highway, as provided in this article, for and on be
half of such county or town. If such contract be awarded to a board of
supervisors or a town board such board shall, by resolution, designate
some suitable person or persons to carry into effect, on behalf of such
town, such contract, and transact all business in respect thereto as may
be necessary. A member of the board of supervisors or town board at
the time such contract was awarded or such designation was made, or
a person who is a partner of, or a stockholder in the same corporation
as that of such member, shall not be so designated. A member of the
board of supervisors or town board at the time such designation was
made, or a firm, corporation or association of which he is a member or
has an interest, shall not be directly or indirectly interested in any such
contract nor shall such member, or such firm, corporation or association
furnish materials or perform labor or services, either directly or in-
directly, under or in connection with the performance of any of the
work required in accordance with such contract, nor shall such member,
firm or corporation or association be paid for materials furnished or
services rendered in respect to such contract. The clerk of the board
of supervisors or the town clerk shall transmit a certified copy of the
resolution designating the person or persons to carry into effect such
contract to the commission prior to the awarding of a contract to the
board of supervisors or town board. The person or persons so desio-
nated shall, before the contract is executed, give an undertaking to the
county or town, with sureties to be approved by the commission and the
board of supervisors or town board, for an amount eaual to at least
twenty-five per centum of the face of the contract. Such undertaking

4

\
888 HIGHWAYS AND BRIDGES.
Highway Law, § 131.

shall be conditioned on the faithful performance of their duties in re-
spect to such contract and for the proper accounting, safekeeping and
lawful disbursement of all moneys that may come into their hands
thereunder. Such undertaking shall be filed in the office of the county
or town clerk and a copy thereof shall be transmitted to the commission.
The person or persons so designated shall thereupon be competent to re-
ceive all moneys payable under such contract under the provisions of
this article, and they shall account therefor to the county or town. The
board of supervisors or town board, after such contract is awarded,
shall designate, by resolution, a banking corporation or a trust company
wherein the moneys received under such contract shall be deposited.
Such bank or trust company shall, upon the request of the board of
supervisors or town board, make a statement of the money so deposited.
The commission shall, by rules and regulations, prescribe the manner
in which the moneys received under such contract shall be expended and
the forms of accounts be kept by the person or persons designated as
above provided ; and where convict labor is used, as hereinafter provided,
an account shall be kept of the items incurred daily for maintenance of
convicts and compensation of other laborers, if any. Reports may be
required by the commission from time to time from such person or per-
sons.

When a contract is entered into under the provisions of this section,
the board undertaking thereby to construct or improve a highway or
section thereof, may, by resolution, direct the person or persons desig-
nated for carrying out the contract to apply to the superintendent of
state prisons for convict labor, in the construction of such highway or
section thereof. The resolution shall specify the maximum number of
convicts to be applied for, for such work. Such designated person or
persons shall make request, in writing, to the superintendent of state
prisons for convict labor, in conformity to the provisions of such reso-
lution, such request to be accompanied with a copy of such resolution.
A copy of such resolution and of such request shall also be filed with the
commission. The superintendent may detail for labor, pursuant to
such resolution and request, such number of convicts as may be available
therefor, not exceeding the number applied for. Such convicts shall be
in the immediate charge and custody of the officers and guards detailed
by the superintendent of state prisons, and at all times subject to the
control of such superintendent, except that the work to be done shall be
directed by the engineers and foremen of the state highway department.
The expense of maintenance of such convicts shall be paid by the county
or town entering into such contract from funds due thereon, to such
STATE AND COUNTY HIGHWAYS. 889
Highway Law, § 132.

municipality. Machinery or tools may be loaned by the commission, if
requested, for construction of a highway or section thereof, by a county
or town, by contract under this section, to be kept in repair and oper-
ated at the expense of the county or town with moneys payable under
the contract. [Highway Law, § 131, as amended by L. 1914, ch. 60,
L. 1918, ch. 828 and L. 1920, ch. 562.]
§ 18. RESPONSIBILITY OF COMMISSIONER OF HIGHWAYS FOR THE PER-
FORMANCE OF CONTRACTS FOR CONSTRUCTION OR IMPROVE-
MENT OF STATE AND COUNTY HIGHWAYS; SUSPENSION OF

WORK UNDER CONTRACT; COMPLETION BY COMMISSIONER OF
HIGHWAYS.

The performance of every contract for the construction or improve-
ment of a state or county highway shall be. under the supervision and
control of the commissioner of highways, and it shall be his duty to
see that every such contract is performed in accordance with the pro-
visions of the contract and with the plans and specifications forming a
part thereof. For such purpose, the commissioner of highways, shall have
the direction and control of the deputies, secretary, division engineers,
officers, clerks and employees of the commission. If the commissioner
of highways shall determine that the work upon any contract for the
construction or improvement, maintenance, repair or reconstruction,
of a state or county highway, is not being performed according to the
contract or for the best interests of the state, the execution of the work
by the contractor may be temporarily suspended by the commissioner of
highways, who may then proceed with the work under his own direc-
tion in such manner as will accord with the contract specifications and
be for the best interests of the state; or he may cancel the contract and
either readvertise and relet as provided in section one hundred and
thirty, or complete the work under his own direction in such manner
as will accord with the contract specifications and be for the best in-
terests of the state. Any excess in the cost of completing the contract
beyond the price for which it was originally awarded shall be charged
to and paid by the contractor failing to perform the work. Every con-
tract for the construction or improvement, maintenance, repair or re-
construction of a state or county highway shall reserve to the commis-
sion the right to suspend or cancel the contract as above provided, and to
complete the work thereunder or readvertise and relet as the commission
may determine. .

In the case of a contract for the construction or improvement, other
than maintenance, repair or construction, of a state or county highway
executed under the provisions of this chapter prior to January first,
890 HIGHWAYS AND BRIDGES.
Highway Law, § 132.

nineteen hundred and eighteen, the state commissioner of highways
shall, upon the written request of the contractor and the surety company
on the bond accompanying such contract, suspend or defer operations on
any portion or portions of such contract on which no work has been
performed except the installation of culverts and proper backfill, or the
installation of curbs or other structures which do not interfere with such
portion of the highway for traffic purposes, and he may also upon like
request suspend or defer operations on any portion or portions which
have been partially completed, where it is shown to the satisfaction of
the commissioner of highways that work cannot proceed on such por-
tion or portions either because there is no market supply of certain
necessary materials or because lack of transportation facilities renders it
impossible to obtain such materials; provided that the contractor before
the suspension of such work shall place such partially completed portion
or portions in a suitable condition for traffic and shall agree that the
state department of highways may, during the period of suspension,
maintain such portion or portions in a proper condition for traffic, the
expense thereof to be paid from moneys appropriated for such contract
and to be a charge against the contractor and to be deducted from any
moneys which may be due or hereafter become due the contractor under
such contract.

It is further provided that such contractor and surety company shall,
in connection with any such suspension, enter into a written agreement
with the commissioner, whereby it shall be stipulated and agreed that
the acceptance of, and full payment for, all the work performed within
the completion points designated, as hereinafter provided, by the com-
missioner, shall in no way change or alter the terms of the contract or
the obligations of the contractor or of the surety company on the bond
accompanying said contract with regard to proceeding to the completion
of the remainder of the contract; except that upon the acceptance in
the manner herein provided of the completed portion of any contract,
the amount of the bond accompanying such contract shall, from the
date of such acceptance of such completed portion, be reduced to such an
amount as will equal fifty per centum of the value of the work re-
maining to be performed under such contract, such value to be deter-
mined by applying to the quantities of work to be performed the item
prices therefor contained in the contract. Such work of completion,
however, shall not, except by mutual consent of the parties to the
agreement, begin upon a date earlier than March first, nincteen hun-
dred and nineteen, unless the war in which the United States is now en-
STATE AND COUNTY HIGHWAYS. sot
Highway Law, § 132.

gaged shall have terminated prior thereto by the signing of peace terms,
and in that event not earlier than the date of such signing. In case the
war shall not have terminated by the signing of such terms of peace on
or before March first, nineteen hundred and nineteen, then the com-
missioner may extend the commencement of the completion of such
contract to March first, nineteen hundred and twenty, but no longer.
Should peace terms be signed during the period of suspension as above
authorized, such suspension may thereupon be terminated by the com-
missioner by the service of a written notice upon the contractor and
his surety company directing the resumption of work within sixty days
after such service.

The commissioner of highways is hereby authorized and empowered
to enter into such an agreement and to accept as finally completed, and
to order full payment for, all work embraced in such contract within
such points as shall be designated by the commissioner for such accept-
ance, if within such points all work provided by the contract is fully
performed, notwithstanding the provision for the retention of ten per-
centum of the contract price required under section one hundred and
thirty, subdivision eight of this chapter.

All of the provisions of this section relating to the suspension of con-
tracts upon the joint request of the contractor and the surety company,
shall apply in like manner upon the written request of the surety com-
pany only, with regard to a contract which shall hereafter be abrogated
or canceled upon failure of the contractor to perform, except the pro-
vision relating to the payment of the retained percentage, which per-
centage shall be retained until the final completion of the entire contract.

In the case of such a suspension of operations under a contract in
which there is provision for the maintenance of the road by the con-
tractor for a period of three years from the final completion and ac-
ceptance of the entire contract with a bond executed by a surety company
guaranteeing such maintenance, the operation of such guarantee clause
shall commence immediately upon the acceptance of the completed por-
tion or portions of the road and shall be in full force and operation over
such portion or portions for the specified period of three years from the
date of such acceptance. The provisions of article seven of this chapter,
relative to maintenance and repair, shall apply to such portion or por-
tions of any contract as may be completed and accepted as hereinbefore
provided in this section.

The provisions of sections one hundred and thirty-three and one
hundred and thirty-four of this chapter, relative to the final acceptance
892 HIGHWAYS AND BRIDGES.
Highway Law, § 133.

of fully completed contracts, shall apply with respect to the acceptance
of portions of contracts under this section.

The town superintendent of a town within which is located the portion
of a highway which is included in such a partially completed contract,
but upon which portion no work has been performed by the contractor
except the installation of culverts with proper backfill and the com-
pletion of which has been suspended, deferred or extended as hereinbe-
fore provided in this section, is hereby authorized, empowered and
directed to keep and maintain the same in a good and passable condition
in the same manner as other town highways are kept and maintained ;
such portion of highway being deemed during the period of such sus-
pension a town highway for the purposes of maintenance and upkeep,
the jurisdiction and authority of the town superintendent over such
highway to cease when work is resumed by the contractor upon such
portion, provided, however, tlat the work to be performed by the town
superintendent shall be of a surface nature only. [Highway Law, §
132, as amended by L. 1911, ch. 646, L. 1913, ch. 517, and L, 1918,
ch, 413; B. C. & G. Cres. L, p. 3494.]

§ 14. ACCEPTANCE OF STATE HIGHWAY WHEN COMPLETED.

Upon the completion of a state highway or section thereof constructed
or improved under a contract let as provided in this article, the division
engineer shal] inspect the same and if it be completed as provided in the
contract, he shall thereupon so report to the commission, which shall, if
it approve, notify the county -r district superintendent of the county in
which the road is located, in writing, that it will accept the work within
twenty days from the date of such notice, unless protest in writing be
filed by such county or district superintendent. In case a protest is
filed the commission shall hear the same and if it is sustained then it
shall delay the acceptance of the highway or section thereof until the
same is properly completed. In case no protest is filed the highway or
section thereof shall at the expiration of said twenty days be deemed

 

2ee. This section as amended in 1918 authorizes the commissioner of highways
to suspend operation on highway contracts upon the request of the contractor and
his surety during the war, but not exceeding two years. L. 1918, ch. 585, authorizes
the State to cancel any contract for the construction of public works if a stipulation
is filed by the contractor in the statutory form. Upon mandamus to compel the
cancellation of an uncompleted contract, held, that the earlier statute conferred
a discretion upon the public authorities as to public contracts and did not intend
that every contract for public work could be cancelled simply upon the demand
of the contractor or his surety, and where the commissioner answers that he in-
tends to act under the earlier statute, the application will be denied. People ex rel.
McEvoy v. Duffey (1918), 104 Misc. 35, 171 N. Y. Supp. 962.
STATE AND COUNTY HIGHWAYS. 893
Highway Law, § 135.

finally completed and accepted and shall thereafter be maintained as
provided in this chapter.” [Highway Law, § 138, as amended by L.
1911, ch. 646, and L. 1915, ch. 548; B.C. & G. Cons. L.,, p. 3495.]

§ 15.. ACCEPTANCE OF COUNTY HIGHWAY.

Upon the completion of a county highway or section thereof, con-
structed or improved under a contract let as provided in this article, the
division engineer shall inspect the same and if it be completed as pro-
vided in the contract he shall thereupon so report to the commission,
which shall, if it approve, notify, in writing, the county or district super-
intendent and the board of supervisors of the county in which such high-
way or section thereof is located that it will accept the highway within
twenty days from the date of such notice unless protest in writing be
filed with the commission by such district or county superintendent or
by the board of supervisors.** In case a protest is filed, the commission
shall hear the same, and if it is sustained, the commission shall delay
the acceptance of the highway or section thereof until it be properly
completed. In case no protest is filed, the highway or section thereof
shall at the expiration of the said twenty days be deemed finally com-
pleted and accepted on. behalf of the county and the state, and shall
thereafter be maintained as provided in this chapter.? [Highway Law,

 

2f. Payment of final estimate to contractor shou'd be made when the contract
is fully performed and the work accepted, without waiting for the expiration of
the time in which to file lien under section 12 of the Lien Law. Rept. of Atty.
Genl., March 14, 1911.

Where liens are filed against contractors between the time of issuance of requisi-
tion upon the state comptroller for final estimate but before the delivery of the
state treasurer’s check to the contractor, such check should be held until the liens
are discharged. Rept. of Atty. Genl., March 20, 1911.

Liability for injuries to persons using a state highway is not assumed by the
town until such highway has been completed and accepted by the state. Farrell v.
Town of North Salem, 205 N. Y. 453.

2g. Waiver of twenty day period—A resolution by the board of supervisors
waiving the twenty-day period prescribed by this section after receiving notice
of the completion of the work on a county highway, is not alone sufficient to war-
rant the immediate acceptance of the work and payment of the contract price by
the State Highway Commission.

8. In order that the board of supervisors may be properly informed as to the
progress of the work it is provided by Highway Law, sec. 33, subd. 9, ante, that
the district or county superintendent shall inspect the work during the construction
and certify to the board as to the progress thereof.

Acceptance of a highway may be revoked by the State Commissioner of Highways
at any time before the final account is paid, where such acceptance was procured

‘through fraud, mistake, concealment or misrepresentations. Atty. Genl. Opin., 4
State Dep. Rep. 547 (1915). But where the work has been done according to contract
and payment made, and no fraud exists, the commissioner cannot revoke or rescind
the acceptance of a highway. Atty. Genl. Opin., 5 State Dep. Rep. 451 (1915).
894 HIGHWAYS AND BRIDGES.
Highway Law, §§ 135-137.

§ 134, as amended by L. 1911, ch. 646, and L. 1916, ch. 460; B.C. &
G. Cons. L., p. 3496.]

§ 16. ENTRY UPON ADJACENT LANDS FOR DRAINAGE PURPOSES.

Lands adjacent to a state or county highway may be entered upon and
occupied for the purpose of opening or constructing a drain or ditch so
as to properly drain such highway:

1. By a contractor, or any of his agents or employees, when directed
by the commission, during the construction or improvement of such
highway.

2. By the commission or its duly authorized officers, agents or em-
ployes, at any time, for the purpose of making surveys for such drain
or ditch,

3. By the commission, or its duly authorized officers, agents or em-
ployees, or by a county, district or town superintendent, when directed
by the commission, after the completion and acceptance of the highway
for the purpose of opening, constructing or maintaining ditches or drains
upon such lands, necessary for the proper maintenance of such highway.
[Highway Law, § 135; B. C. & G. Cons. L., p. 3497.]

§ 17. DAMAGES FOR ENTRY.

The commission may agree with the owner of lands entered upon and
occupied as provided in the preceding section for the payment of dam-
ages caused by such entry, or if unable to so agree the right to enter and
oceupy such lands may be acquired and the damages therefor shall be
ascertained as provided in the condemnation law. Such damages shall,
in the case of a state highway, be paid out of moneys available for the
construction or improvement or the repair or maintenance of such highway,
and in the case of a county highway shall be a county charge and paid in the
same manner as other county charges. [Highway Law, § 136, as ammended
by L. 1922, ch. 371.]

§ 18. STATE AND COUNTY HIGHWAYS IN VILLAGES.

A state or county highway may be constructed through a village, un-
less the street through which it runs has, in the opinion of the commis-
sion, been so improved or paved as to form a continuous and improved
highway of sufficient permanence as not to warrant its reconstruction,
in which case such highway shall be constructed or improved to the
place where such paved or improved street begins. A state or county
highway within a village shall be of the same width and type of con-
struction as the highway outside of the village which connects with the -
highway within the village, unless a greater width or different type of
construction is desired by the municipality, in which case the board of
STATE AND COUNTY HIGHWAYS. 895
Highway Law, § 137.

trustees of such village shall by resolution petition the commission to
provide the width and type of construction desired. The additional
expense caused by the increased width or different type of construction
or both shall be born wholly by the village. The commission shall, in,
its discretion, upon receipt of such petition, if filed prior to the adver-
tisement for bids, provide for the width and type of construction de-
seribed in such petition. Whenever the commission shall have approved
such a village petition the plans, specifications and estimates of cost,
together with an estimate showing the additional cost to be borne by the
village, to provide for the greater width or different type of construction
or both, shall be submitted to the board of trustees who, if it approve
such plans, specifications and estimate of cost, shall by resolution appro-
priate the funds necessary to provide for the portion of the cost of con-
struction to be borne by the village. Such fund shall, prior to the award
of the contract, be deposited by the village with the state comptroller
subject to the draft or requisition of the state commission of highways,
and a certified copy of the resolution shall be filed with the commission.
The moneys so required shall be raised by tax or from the issue and sale
of bonds as provided in the village law. Upon the completion of a
highway within a village where a portion of the cost is borne by the
village the commission shall transmit to the board of trustees a state-
ment showing the actual cost of the additional width or changed con-
struction including a’ proportionate charge for engineering, and shall
notify the village clerk that it will accept the work within twenty days
from the date of such notice, unless protest in writing against the ac-
ceptance shall be filed by such clerk with the commission. In case a
protest ig filed the commission shall hear the same and if it is sustained
the commission shall delay the acceptance of the highway or section
thereof until the same be properly completed. If no protest is filed the
highway or section thereof shal] at the expiration of the said twenty days
be deemed finally completed and accepted on behalf of the village
and the state, and shall thereafter be maintained in the manrer provided
in this chapter for the maintenance and repair of state and county high-
ways. The provisions of the village law, special village charters and
other general or special laws relative to the payment or improvement
of streets and the assessment and payment of the cost thereof shall
apply, as far as may be, to such additional construction and the assess-
ment and payment of the cost thereof, except that the provisions of any
general or local act affecting the pavement or improvement of streets or
avenues in any village and requiring the owners, or any of the owners,
of the frontage on a street to consent to the improvement or pavement
896 HIGHWAYS AND BRIDGES.
Highway Law, § 137.

thereof, or requiring a hearing to be given to the persons who, or whose
premises, are subject to assessment, upon the question of doing such
paving or making such improvement shall not apply to the portion of
the improvement or pavement of a state or county highway the expense
for which is required to be paid by the village to the state.

The provisions of this act shall not prevent the improvement by state
aid under the statute as it existed prior to the passage of this act,. of
streets in cities of the second and third class, where, prior to the passage
of this act, highway numbers had been assigned as provided by article
six of this act; nor shall the provisions of this act prevent the improve-
ment in such cities of streets heretofore petitioned for and approved; iu
cases where the proposed improvement of each street does not exceed one
and one-half miles in length; but the total mileage of a'] such streets not
exceeding one and one-half miles in length, shall not in the aggregate ex-
ceed four miles.

Wherever plans for such improvement in a city of the second class
have beep approved and a highway number assigned, and the work is
ready for contract as hereinbefore described and the common council of
such city has appropriated and made available the city’s share of the
cost of such improvement, the city treasurer of such city is hereby
authorized and empowered to borrow a sufficient amount in anticipation
of the collection thereof, and to pledge the faith and credit of the city
for the payment of such amount when due, with interest, and is further
authorized, empowered and directed to deposit such moneys with the
state comptroller in the same manner as is provided by this section with
regard to the improvement of village strects..1. [Highway Law, § 137,
as amended by L. 1910, ch. 233, L. 1911, ch. 88, L. 1912, ch. 88, L,
1913, chs. 131, 319, and L. 1916, ch. 571.]

 

4. Construction of county highways through cities, even to form a connecting
link, is not authorized by statute. Rept. of Atty. Genl. Oct. 20, 1919. But, see,
Levine v. Comn. of Public Works of City of Hudson (1921), 195 App. Div. 851, 186
N.Y. Supp. 877.

Liability of municipality for proportionate share of cost. Where a board of super-
visors has charged back to a town included therein fifteen per cent. of the cost of
constructing a state road built pursuant to L. 1898, ch. 115, an incorpora‘ed village
situated within the town, or a city so situated where the city has subsequently
become incorporated as sich, is liable for its proportionate part of the fifteen per
cent., although at the time the road was built the village formed a separate road
district and maintained its streets at its own expense without contribution from
the town at large. Town of Queensbury v. City of Glens Falls, 143 App. Div. 847,
128 N. Y. Supp. 833.

Railroad Lzw, § 178, as to maintenance by railroad companies of highway be-
tween and out..Je of the tracks, has not been impliedly repealed by this section
and § 142 of the Highway Law. Village of Peekskill v. Putnam and Westchester
Traction Co. (1918), 181 App. Div. 382, 168 N. Y. Supp. 809.
STATE AND COUNTY HIGHWAYS. 897
Highway Law, § 137a.
§ 18a. STATE AND COUNTY HIGHWAYS IN CERTAIN CITIES OF THE SEC-
OND AND THIRD CLASS,

A state or county highway may be constructed through a city of the
second or third class situated in a county containing over three hundred
thousand inhabitants if at least two cities in such county adjoin a city of
the first class containing over two million inhabitants, unless the street
through which it runs has, in the opinion of the commission, been so im-
proved or paved as to form a continuous and improved highway of suf-
ficient permanence as not to. warrant its reconstruction, in which case,
if the commission approve, such highway shall be constructed or im-
proved to the place where such paved or improved street begins,
but not more than fifty per centum of money appropriated by the state,
and now or hereafter available for the construction of state or county
highways in such county, shall be applied to the construction of a state
or county highway through a city of the second or third class in such
county. A state or county highway within such a city shall be of the
same width and type of construction as the highway outside of such city
which connects with the highway within such city, unless a greater
width or different type of construction is desired by the municipality,
in which case the board of aldermen or common council of such city
shall by resolution petition the commission to provide the width and
type of construction desired. The additional expense caused by the
increased width or different type of construction or both shall be borne
wholly by such city. The commission shall in its discretion upon receipt
of such petition, if filed prior to the advertisement for bids, provide for
the width and type of construction described in such petition. When-
ever the commission shall have approved such a city petition the plans,
specifications and estimates of cost, together with an estimate showing
the additional cost to be borne by such city to provide for the greater
width or different type of construction or both shall be submitted to the
board of aldermen or common council who, if it approve such plans,
specifications and estimate of cost, shall by resolution appropriate the
funds necessary to provide for the portion of the cost of construction to
be borne by such city. Such fund shall prior to the award of the con-
tract be deposited by such city with the state comptroller subject to the
draft or requisition of the state commission of highways, and a certified
copy of the resolution shall be filed with the commission. The moneys so
required shall be raised by tax or from the issue and sale of bonds as pro-
vided by the general or special act governing bond issues and taxation in
any such city. Upon the completion of such state or county highway
within such city of the second or third class, where a portion of the cost
898 HIGHWAYS AND BRIDGES.
Highway Law, § 138.

is borne by such city, the commission shall transmit to the board of
aldermen or common council a statement showing the actual cost of the
additional width or changed construction including a proportionate
eharge for engineering, and shall notify the city clerk that it will accept
the work within twenty days from the date of such notice unless pro-
test in writing against the acceptance shall be filed by such clerk with
the commission. In case a protest is filed the commission shall hear
the same and if it is sustained the commission shall delay the acceptance
of the highway or section thereof until the same be properly completed.
If no protest is filed the highway or section thereof shall at the expira-
tion of said twenty days be deemed finally completed and accepted on
behalf of such city and the state. The provisions of the general city
law, special city charters and other general or special laws relative to
the pavement or improvement of streets and the assessment and pay-
ment of the cost thereof shall apply as far as may be to such additional
construction and the assessment and payment of the cost thereof, ex-
cept that the provisions of any general or local act affecting the pave-
ment or improvement of streets or avenues in any such city and re
quiring the owners or any of the owners of the frontage on a street to
consent to the improvement or pavement thereof, or requiring a hearing
to be given to the persons who or whose premises are subject to assess-
ment upon the question of doing such paving or making such improve-
ment shall not apply to the portion of the improvement or pavement of a
state or county highwav the expense for which is required to be paid
by such city to the state. Such street so improved shall thereafter be
maintained at the expense of the municipality within which such street
or part thereof is situated. [Highway Law, § 137-a, as added by L.
1918, ch. 386.]

§ 19. CONNECTING HIGHWAYS IN VILLAGES.

The board of trustees of a village may, by resolution, petition the
commission for the construction or improvement of a highway to con-
nect streets or highways within the village which have been paved or
improved with county highways which have been heretofore built under
the provisions of chapter one hundred and fifteen of the laws of eighteen
hundred and ninety-eight, and the acts amendatory thereof. If in the
judgment of the commission public convenience requires the construc-
tion or improvement of such connecting highway, the commission shall
cause plans, specifications and estimates to be prepared, and shall cause
the same to be transmitted to the board of supervisors of the county
STATE AND COUNTY HIGHWAYS, 8982
Highway Law, § 138.

wherein such highway is situated. The board of supervisors shall
thereupon adopt a resolution providing for such construction or improve-
ment as‘ provided in this article. The payment of the cost of such
construction or improvement shall be provided for in such resolution
and such payment shall be made in the same manner as provided for
other county highways. <A certified copy of such resolution shall be
filed in the office of the commission. The construction or improvement
of such connecting highway shall then be taken up in the order and
manner provided in this article for the construction or improvement of
county highways. If it is desired to construct or improve any portion
“of such a connecting highway at a width greater than that provided for
in the plans and specifications therefor, or if a modification of such
plans and specifications is desired by which the cost thereof will be
increased, the board of trustees of the village shall proceed as in the
preceding section to secure such a modification of the plans and specifi-
cations as will provide for such desired construction. The provisions
of the preceding section shall apply in like manner to the connecting
highway to be constructed or improved as provided in this section.

The provisions of this act shall not prevent the improvement by state
aid under the statute as it existed prior to the passage of this act, of
streets in cities of the second and third class, where, prior to the pas-
sage of this act, highway numbers had been assigned as provided by
article six of this act; nor shall the provisions of this act prevent the
improvement in such cities of streets heretofore petitioned for and
approved in cases where the proposed improvement of each street does
not exceed one and one-half miles in length; but the total mileage of all
such streets not exceeding one and one-half miles in length shall not in
the aggregate exceed four miles.

Wherever plans for such improvement in a city of the second class
‘have been approved and a highway number assigned, and the work is
ready for contract as hereinbefore described and the common council of
such city has appropriated and made available the city’s share of the
cost of such improvement, the city treasurer of such city is hereby
authorized and empowered to borrow a sufficient amount in anticipation
of the collection thereof, and to pledge the faith and credit of the city
for the payment of such amount when due, with interest, and is further
authorized, empowered and directed to deposit such moneys with the
state comptroller in the same manner as is provided by this section with
regard to the improvement of village streets. [Highway Law, § 138,
as amended by L. 1911, ch. 88, L. 1912, ch. 88, and L. 1916, ch. 570;
B. CO. & G. Cons. L., p. 3500. ]
898b HIGHWAYS AND BRIDGES.
Highway Law, §138-a,
§ 19a. STATE AND COUNTY HIGHWAYS OF ADDITIONAL WIDTH AND IN-
CREASED COST AT EXPENSE OF TOWN.

‘ Whenever the commission shall have determined upon the construc-
tion or improvement of a state or county highway or section thereof
and it is desired by any town in which such proposed highway is situ-
ated to construct or improve the same at a greater width or in a manner
involving greater cost, or both, than that provided in the plans and
specifications as prepared by the commission, the town board may peti-
tion the commission for an estimate of the additional cost of construct-
ing or improving the same to a width or in a manner, or both, as desired
by such board. The commission shall as soon as practicable make an
estimate of such additional cost and transmit the same to the town
board, and the town board may thereupon by resolution petition the
commission to provide the width and type of construction desired.
The additional expense caused by the increased width or different type
of construction, or both, shall be borne wholly by the town. The com-
mission shall, in its discretion, upon receipt of such resolution, if filed
prior to the advertisement for bids, provide for the width and type of
construction described in such resolution. Whenever the commission
shall have approved such a resolution the plans, specifications and esti-
imate of cost shall be submitted to the town board, who, if it approve
such plans, specifications and estimate of cost shall, by resolution, duly
adopted by a vote of a majority of all the members of such board, appro-
priate the funds necessary to provide for the portion of the cost of con-
struction to be borne by the town. Such funds shall, prior to the award
of the contract, be deposited by the town with the state comptroller,
subject to the draft or requisition of the state commission of highways,
and a certified copy of the resolution shall be filed with the commission.
If the town board adopts a proposition to raise such funds by the issue
and sale of town bonds the bonds may be issued and sold in the manner
prescribed in section one hundred and forty-two of this chapter. Upon
the completion of the highway within a town where a portion of the
cost is borne by the town the commission shall transmit to the town
board a statement showing the actual cost of the additional width or
changed construction including a proportionate charge for enginecring
and shall notify the town clerk that it will accept the work within
twenty days from the date of such notice unless protest in writing
against the acceptance shall be filed by such clerk with the commission.
In case a protest is filed the commission shall hear the same and if it is
sustained the commission shall delay the acceptance of the highway or
section thereof until the same be properly completed. If no protest is
filed the highway or section thereof shall at the expiration of the said
STATE AND COUNTY HIGHWAYS. 898e
Highway Law, § 138b.

twenty days be deemed finally completed and accepted on behalf of the
town and the state and shall thereafter be maintained in the manner
provided in this chapter for maintenance and repair of state and county
highways.” [Highway Law, § 138a, as added by L. 1911, ch. 375, and
amended by L. 1916, ch. 461. ]

§ 19). IMPROVEMENT OF STATE AND COUNTY HIGHWAYS AT EXPENSE

OF COUNTY OR AT THE JOINT EXPENSE OF SUCH COUNTY AND
ANY CITY, VILLAGE OR TOWN.

The board of supervisors of any county may request of the com-
mission an estimate of the additional cost of improving a state or county
highway, heretofore constructed or hereafter to be constructed within
the county to a width or in a manner, or both, as desired by such board.
The commission shall as soon as practicable make an estimate of such
additional cost and transmit the same to the board of supervisors, and
the board of supervisors may thereupon by resolution petition the com-
mission to provide the width and type of improvement desired. The
expense caused by the increased width or the type of improvement, or
both, shall be borne wholly by the county or, in the discretion of the
board of supervisors of any county, and with the consent of the appro-
priate board of any city, village or town in which the road is located,
the expenses may be apportioned between such county and such other
municipality or municipalities, in such proportion as may be agreed to.
Whenever plans and specifications have been approved providing for
such increased width or such type of improvement, or both, an estimate
of the cost of such increased width or type of improvement, or both,
shall bé submitted to the board of supervisors, which, if it approves such
plans, specifications and estimate of cost shall, by resolution, duly adopted
by a vote of a majority of all the members of such board, appropriate
the funds necessary to provide therefor; and such funds shall be made
available for the commission in the manner provided in this article in
the case of the county’s share of the expense of constructing a county

 

4b. Where a town desires to repair the side of a state and county highway, the
state not intending to immediately repair same, the town board may petition the
highway commission for an estimate of the additional cost of constructing the
highway in the manner desired, and upon approval by the commission of the plans
and specifications, the town board may adopt a proposition to raise necessary
funds by the issue and sale of town bonds, but in no event shall the town board
act without the conjunction of the highway commission. Opinion of Comptroller
(1916), 10 State Dept. Rep. 537.

In, an action for recovery by the State of a balance due for construction of an
added width of highway through a town under this section, the complaint was dis-
missed on ground that the sole remedy of the State is through the board of town
auditors. People v. Town of Frankfort (1918), 182 App. Div. 431.
898d HIGHWAYS AND BRIDGES.

Highway Law, § 140.

highway. Moneys required to be provided by a county under the pro-
visions of this section may be raised by the issue and sale of bonds in
the manner prescribed by section one hundred and forty-two. [Highway
Law, §138b, as added by L. 1920, ch. 175, and amended by L. 1921,
ch. 196.]

§ 20. RESOLUTION TO PROVIDE FOR RAISING MONEY.

The resolution of the board of supervisors providing for the construc-
tion or improvement of a county highway or section thereof shall appro-
priate and make immediately available to the requisition of the commis-
sion an amount sufficient to pay the share of the cost of such construction
or improvement which is to be borne by the county within which such
highway or section thereof is located. [Highway Law, § 139, as
amended by L. 1910, ch. 247, and L. 1911, ch. 83.]

§ 21. MODIFYING METHOD OF PAYMENT.

If a resolution has been herctofore adopted by a board of supervisors
requesting the state to pay the entire cost of the construction or improve-
ment of a county highway in the first instance and that the state charge
the county and town or towns annually with their share of the interest
and sinking fund, as provided in chapter four hundred and sixty-nine of
the laws of nineteen hundred six, and the acts amendatory thereof, such
board of supervisors may adopt a resolution rescinding such prior resolu-
tion and appropriating and making immediately available an amount
sufficient to pay the share of the cost of the construction or improvement
of such highway. The clerk of the board of supervisors shall transmit
certified copies of such resolution to the commission and the state comp-
troller. If such prior resolution shall not be so rescinded it shall have
the same force and effect which it had prior to the amendment of this
section. The adoption of a resolution modifying the method of pay-
ment of the share of the county and town or towns shall not affect or
change the date of the filing of the original resolution providing for the
construction or improvement of such highway nor alter in any way the
order of construction determined by the date of the filing of the original
resolution.

Wherever a board of supervisors has in the past by resolution re-
quested, and ‘tthe state has paid, the entire cost of the construction or
improvement of a county highway, the board of supervisors of a
county wherein any such highway is located may, by resolution, provide
for the payment of such share of the cost so advanced by the state
towards the construction of such county highway, and said board of
supervisors is hereby authorized to appropriate and make immediately
available an amount sufficient to pay to the state the share due to the
STATE AND COUNTY HIGHWAYS. 898e
Highway Law, § 141.

state on account of the construction and improvement of such highways.
If any board of supervisors shall pass such resolution providing for the
payment to the state of the moneys so advanced the said board of super-
visors shall have the power and authority to borrow the moneys neces-
sary to make such payment, and in case there is due to the county any
sum of money from the town in which said county highway is located,
the said town is also authorized to borrow and appropriate its share of
the cost of such county highway to the county treasurer of the county
in which said highway is located.

All moneys paid to the state pursuant to the provisions of this section
shall be deposited by the comptroller with the state treasurer to the
eredit of the highway improvement fund, from which fund the said
moneys so advanced to said counties were originally taken, and may be
used by the state commission of highways in the construction of state
and county highways in any county or counties designated by the state
commission of highways. [Highway Law, § 140, as amended by L.
1910, ch. 247, and L. 1915, ch. 400.]

§ 22. DIVISION OF COST OF COUNTY HIGHWAYS; PAYMENT BY COUNTY
TREASURER.

Whenever the construction or improvement of a county highway or
section thereof under a contract shall be completed and final payment
therefor shall have been made the commission shall prepare a statement
of the cost of such construction or improvement, including engineering
expenses, inspection and all charges and expenses properly chargeable
thereto, showing in detail the date of each payment, and the purpose and
amount of such payment. Such payments shall be grouped as far as
practicable by dates and the total thus obtained shall be deemed the cost
of such construction or improvement, and a certified copy of said state-
ment shall be filed by the commission in the office of the comptroller. If
a county highway or section thereof so constructed or improved shall be
situate in two or more counties, the commission shall apportion such
expense to such counties according to the cost of such construction or im-
provement in each of such counties. Such statement when audited and
approved by the comptroller shall be filed in his office and shall be final,
and a duplicate thereof shall be filed with the county treasurer of each
county wherein the highway or section thereof has been improved. If
the board of supervisors of any county shall have theretofore provided
funds to pay two per centum of the cost of such county highway as thus
determined, for each one thousand dollars of assessed valuation of real
and personal property liable to taxation in said county for each mile of
public highway within such county to be ascertained and determined by
898f HIGHWAYS AND BRIDGES.
Highway Law, § 141-a,

‘dividing the total assessed valuation of taxable property in said county
as equalized for state purposes by the total mileage of highways in said
county, exclusive of the streets and highways within any incorporated
city or village in said county, but not exceeding thirty-five per centum
of the cost for the county as shown by such statement, it shall be the duty
of the county treasurer to pay the amount thereof upon the requisition of
the commission and thereafter the county shall be deemed to be fully dis-
charged of its obligation to the state on account of the construction or im-
provement of such county highway, except the obligation to pay their
proportionate amount of the state tax for the state’s share of the cost of
construction. At least ten days’ notice shall be given by the commission
to the county treasurer prior to the making of such a requisition. A copy
of each contract providing for the construction or improvement of a
county highway, and the plans and specifications therefor, together with
copies of certificates showing the progress of the work, upon which
requisitions are drawn, shall be filed with the county treasurer. The
mileage of highways to be used in determining the amounts to be
charged to a county or town under this scction shall be the tables of
mileage formerly prepared by. the state engineer until the tables as pro-
vided in this chapter are filed. [llighway Law, § 141, as amended by
L. 1912, ch. 88; B. C. & G. Cons. L., p. 3504. ]

§ 22a. ALTERNATIVE METHOD OF APPORTIONING THE EXPENSE OF

COUNTY HIGHWAYS.

The board of supervisors of any county may in its discretion provide
by resolution that fifty per centum of the cost of construction or im-
provement of any county highway within the county shall be borne by
the county. The portion of the cost to be borne by the county shall be
appropriated and made immediately available to the requisition or draft
of the state commission of highways at the time of the final resolution of
the board of supervisors approving the plans and estimate of cost sub-
mitted by the state commissioner of highways as provided by section
one hundred and twenty-eight of this act. If, in any county, a town
shall have heretofore paid or become liable to pay fifteen per centum
or less of the cost of construction or improvement of any such county
highway pursuant toc the former provisions of this section, the amount
so paid or to be paid may be repaid by the county to such town, and a
tax may be levied by the board of supervisors on the taxable property
in the county at large sufficient to provide moneys for such repayment
so far as other county moneys are not available therefor.

In the case of a county highway where the plans have heretofore been
approved by the board of supervisors of a county, and the distribution
of cost for such highway has been made as provided by section one hun-
STATE AND COUNTY HIGHWAYS. 898¢
Highway Law, § 142.

dred and forty-one of this act, and the county has heretofore appropriated
and made available its share of the cost of the construction or improve-
ment of such highway based upon an apportionment other than that pro-
vided by this section, but the final payment has not been made by the
county, the board of supervisors may in accordance with the provisions
of section one hundred and twenty-eight of this act rescind the resolu-
tion previously adopted appropriating its share of the cost, and in such
case, shall adopt a resolution appropriating such an amount as will
equal fifty per centum of the total estimated cost of such highway as
shown in an estimate to be provided by the state commissioner of high-
ways, making such amount so appropriated immediately available to
the draft or requisition of the commission for the construction or im-
provement of such highway.

If there be not sufficient funds in the county treasury to pay the share
of the county, the county treasurer is hereby authorized and empowered
to borrow, in anticipation of taxes to be collected therefor or of the is-
suance of bonds as hereby provided, such an amount as may be neces-
sary, and is hereby authorized to pledge the faith and credit of the
county for the payment, with interest, of the moncys so borrowed.

The board of supervisors of the county may by resolution authorize
the issuance of county highway bonds, in amounts to be determined by
such board the proceeds of which shall be applied to the payment of the
share of the cost of construction or improvement of such highway to be
borne by the county as hereinbefore provided. ‘Such bonds shall be
payable not more than thirty years from their date.

The board of supervisors shall provide for the assessment, levy and
collection by tax of the moneys required to meet the obligation of the
county for its share of the cost of such improved highway; and the
moneys so raised shall be paid into the county treasury and shall be-
come available for the draft or requisition of the state commission of
highways, or for the payment of moneys borrowed by the county treas-
urer as hereinbefore provided together with interest thereon, or for the
payment of bonds and the interest thereon issued as hereinbefore pro-
vided, or any part thereof. [Highway Law, § 141-a, as added by L.
1916, ch. 179, and, amended by L. 1917, ch. 550.]

§ 23. COUNTY OR TOWN MAY BORROW MONEY.

Whenever the board of supervisors shall have, by resolution, appro-
priated and made immediately available to the requisition of the com-
mission an amount sufficient to pay its share of the cost of such construc-
tion or improvement which is to be borne by the county within which
such highway or section thereof is located, such amount so appropriated
898h HIGHWAYS AND BRIDGES,
Highway Law, § 142.

shall be a county charge and shall be paid by the county treasurer of
the county in which such highway or section thereof is located, upon the
requisition of the commission. If there is not sufficient funds in the
county treasury to pay such share of the county of the cost of construc-
tion of such improvement so appropriated and made available, the
county treasurer is authorized to borrow a sufficient amount to pay such
share in anticipation of taxes to be collected therefor, or the issuance of
bonds as hereinafter provided, and to pledge the faith and credit of the
county for the payment of the amount when due, with interest. The
board of supervisors may, by resolution, authorize the issuance and sale
of bonds of the county to an amount not exceeding the share of the
county as apportioned by the commission, or if such apportionment has
not been made, to an amount not exceeding thirty-five per centum of
the estimated cost of the construction or improvement of such county
highway as shown by the estimate approved by the board of supervisors
pursuant to section one hundred and twenty-eight of this chapter, and
apply the proceeds of such bonds to the payment of the share of the cost
of construction of such highway to be borne by the county, appropriated
and made immediately available as aforesaid or to the payment and re-
demption of any certificates of indebtedness issued as above provided.
Said bonds shall be payable not more than thirty years from their date.
The board of supervisors shall provide for the assessment, levy and col-
lection by tax of all or any part of the share of the cost of such improve-
ment apportioned to the county which has not been provided for by the
issuance of county bonds as a county charge. Upon the petition of the
town board of any town, the board of supervisors of the county may, by
resolution, authorize the town to borrow a sufficient sum to pay the share
of the cost of the construction or improvement of a county highway,
which is to be borne by the town as apportioned by the commission and
to issue and sell town bonds therefor. Such bonds shall be payable not
more than thirty years from their date, to be sold by the supervisor for
not less than par, and the proceeds thereof shall be paid into the county
treasury to be applied in payment of the share of such cost which is to
be borne by such town and the redemption of any bonds or certificates
of indebtedness issued by the county to pay such share. The board of
supervisors shall, from time to time, impose upon the taxable property
of the town a tax sufficient to pay the principal and interest of such
bonds as the same shall become due. The board of supervisors shall
provide for the assessment, levy and collection by tax of all or any part
of the share or shares of the town or towns which has not been provided
for by the issuance of town bonds as a town charge. [Highway Law,
STATE AND COUNTY HIGHWAYS. 898:
Highway Law, §§ 143, 144, 145.

§ 149, as amended by L. 1909, ch. 486, L. 1910, ch. 580, L. 1912, ch. 88,
and L. 1913, chs. 538, 623. ]
§ 23a, APPORTIONMENT AND PAYMENT OF EXPENSE OF CONSTRUCTING

COUNTY HIGHWAY THROUGH OR INTO CITIES OF THE SECOND
AND THIRD CLASSES.

If a county highway be constructed, under the provisions of this chap-
ter, through or within a city of the second or third class, the board of su-
pervisors of the county in which the city is situated shall, by resolution,
apportion the cost thereof between the county and city as follows: Fif-
teen per centum of the portion of such highway within a city shall be
borne by the city and thirty-five per centum thereof by the county,
The share to be borne by the county shall be paid or provided for in the
manner required by this chapter in the case of an apportionment of such
cost between the county and a town. The share to be borne by the city
shall be paid by the imposition of a tax therein for the full amount
thereof or, in case of a city of the second class, if the common council
and the board of estimate and apportionment shall so determine, then
by the issuance and sale of city bonds as provided in the second class
cities law, and in the case of a city of the third class, if the common
council or board of aldermen thereof so determine, then by the issuance
and sale of city bonds, to be payable in not more than thirty years from
their date, bearing interest at not to exceed the legal rate, and to be sold
for not less than par; or, such common council or board of aldermen may
cause a portion of the city’s share to be raised by tax at the time of the
next ensuing annual city tax levy and the balance to be raised by the’
issuance and sale of bonds as herein above provided. [Highway Law,
§ 148, as added by L. 1912, ch. 88.]

§ 24. PAYMENT OF COST OF STATE HIGHWAY.

The entire expense of the construction or improvement of a state high-
way shall be paid by the state treasurer upon the warrant of the comp-
troller issued upon the requisition of the commission out of any specific
appropriation made available for the construction or improvement of
state highways. [Highway Law, § 144; B. C. & G. Cons. L., p. 3509.]
§ 25. ABOLITION OF RAILROAD GRADE CROSSINGS.

The commission shall provide for and cause the abolition of railroad
grade crossings on a state or county highway whenever practicable, in
the manner provided by the railroad law. The portion of the cost of

 

5. Apportionment against town need not be made until after a contract is let,
or it is definitely known what the cost of the work will be. Matter of Business
Men’s Association, 54 Misc. 11, 103 N. Y. Supp. 847.

For proceedings relative to abolition of railroad grade crossings, see Railroad
Law (L. 1910, ch. 481), §§ 89-96, post, p. 991.
898] HIGHWAYS AND BRIDGES.
Highway Law, § 145a, 146.

abolishing such grade crossings, which is payable under the railroad law
by the state and town or village, shall be paid out of the funds available
for the construction or improvement of such state or county highway as
provided in this article. [Highway Law, § 145; B. C. & G. Cons. L.,
p. 3509. ]

§ 25a. REPAIR OF HIGHWAYS AT RAILROAD CROSSINGS.

Wherever a highway crosses a railroad track at grade and such grade
crossing is out of repair, if it is the judgment of the state commissioner
of highways, the board of aldermen of a city, the board of trustees of a
village or the town superintendent of highways of a town that the same
should be repaired, the state commissioner of highways, the board of
aldermen of a city, the board of trustees of a village or the town super-
intendent of highways of a town may repair and maintain the same
and charge the expense thereof to the railroad company over whose rail-
road such crossing is repaired and maintained, if after fifteen days’
notice in writing such railroad company neglects or refuses to repair the
same. [Highway Law, § 145-a, as added by L. 1919, ch. 375.]

§ 26. STREET SURFACE OR OTHER RAIROADS AND OTHER WORKS AND
STRUCTURES ON HIGHWAYS.

No street surface or other railroad shall be constructed upon any
portion of a state or county highway which has been or may be improved

under the provisions of this article, nor shall any person, firm or cor-
poration or municipality enter upon or construct any works in or upon
any such highway, or construct any overhead or underground crossing
thercof, or lay or maintain therein drainage, sewer or water pipes under-
ground, except under such conditions and regulations as may be pre-
scribed by the commissioner of highways, notwithstanding any consent or
franchise granted by any town, county or district superintendent, or by
the municipal authorities of any town. Any municipal corporation may
enter upon any state or county highway for the purpose of widening the
pavement or for any other purpose authorized by this section, but only
after securing a permit as provided herein. Any person, firm or corpor-
ation violating this section shall be liable to a fine of not less than one
hundred dollars nor more than one thousand dollars for each day of such
violation, to be recovered by the commissioner of highways and paid to
the state treasurer to the credit of the fund for the maintenance and
repair of state and county highways, and may also be removed therefrom
as a trespasser by the commissioner of highways upon petition to the
STATE AND COUNTY HIGHWAYS. 898k

Highway Law, § 142a.,

county court of the county or the supreme court of the state5* [High-
way Law, § 146, as amended by L. 1911, ch. 646, L. 1913, ch. 80 and L.
1922, ch. 371.]

Where a street surface railroad shall be laid in any street, highway or
public place in any town, village, or in any city of the second or third
classes, which it was heretofore or shall hereafter be determined to pave,
improve, reconstruct or repair, as provided in this chapter, the municipal-
ity may petition for such improvement as provided in sections one hun-
dred and thirty-seven, one hundred and thirty-seven-a, one hundred and
thirty-eight, one hundred and thirty-eight-a or one hundred and thirty-
eight-b. If such petition is approved by the commission the procedure
to be followed shall be that prescribed in the sections mentioned above and
the proposals and contract for such improvement, reconstruction or repair
shall include the improvement, reconstruction or repair of the space
between the tracks of such street surface railroad, the rails of such tracks
and two feet in width outside of such tracks, and the work of improvement,
reconstruction or repair in such space shall be done at the same time and
under the same supervision as the work of improvement, reconstruction
or repair of the remainder of such street, highway or public place. The
commission may prescribe the materials to be used in paving, improving,
reconstructing or repairing such street, highway or public place within
the railroad space above described, and upon the proper completion of
the work, the commission shall certify to the board of trustees of such
village, or the common council of cities of the second or third classes,
as the case may be, the cost of the pavement, improvement, reconstruc-
tion or repair of such street, highway or public place within such rail-
road space, and the entire expense of the pavement, reconstruction or
repair within such railroad space whether heretofore or hereafter made
or ordered, shall be assessed and levied upon the property of
the company owning or operating such railroad, and shall be col-
lected in the same manner as other expenses for local improvements are
assessed, levied and collected in such town, village or city; and an action
may also be maintained by the municipality against the company in any

 

5a. Application of section. This section does not give the State Commissioner
power to interfere with the consent to the construction of railroad tracks across
such highways given by the Public Service Commission. Under this section he
may only determine the conditions and regulations upon which individuals, firms
or corporations may enter upon the improved highways of the State under local
consents or franchises. Moreover, this section only relates to highways which
have been actually improved and not to roads which may be improved under its
provisions at some future time. People v. D. & H. Co. (1918), 183 App. Div, 149.

In order to legally construct and maintain railroad switch tracks across an im-
proved State highway, it is not necessary to obtain the consent of the State Comimis-
sioner of highways, and where the said tracks have been constructed under the au-
thority of the Public Service Commissioners and the question of elimination of the
grade crossing pending before it, the railroad company will not be compelled to re-
move the tracks because they were constructed without the consent of the Highway

4 Commissioner. People v. D. & H. Co. supra.’
SOS] HIGHWAYS AND BRIDGES,
Highway Law, §$ 147, 148.

court of record for the collection of such expense and assessment» [High-
way Law, § 142a, as added by L. 1913, ch. 177, and amended by L. 1916,
ch. 578, and L. 1921, ch. 196.]

§27, WHERE COST IS ASSESSABLE AGAINST ABUTTING OWNERS.

If fifteen per centum of the cost of constructing or improving a high-
way has been or may be assessed upon abutting owners, as authorized by
section ten of chapter one hundred and fifteen of the laws of eighteen
hundred and ninety-eight, as the same existed prior to its repeal by chapter

-four hundred and sixty-eight of the laws of nineteen hundred and six,
such highway shall be constructed or improved at the joint expense of
the state, county and town as provided herein, and the portion of the cost
so assessable upon such owners shall be paid by the town in which such
highway is located, as provided in this article. [Highway Law, § 147;
B.C. & G. Cons. L., 2d Ed., p. 3510.)

§ 28. ACQUISITION OF LANDS FOR RIGHT OF WAY AND OTHER PURPOSES.

If a state or county highway, proposed to be constructed or improved
as provided in this article, or which shall have been heretofore con-
structed, or which it is proposed to repair or reconstruct as provided in
article seven of this chapter, or in which it is proposed to change the
course of a dangerous section thereof, shall deviate from the line of a
highway already existing, the board of supervisors of the county where
such highway is located, shall acquire land for the requisite right of way
prior to the advertisement for proposals. The board of supervisors may
also acquire lands for the purpose of obtaining gravel, stone or other
material, when required for the construction, reconstruction, improve-
ment or maintenance of highways, or for spoil banks together with a
right of way to such spoil banks and to any bed, pit, quarry, or other
place where such gravel, stone or other material may be located.®

 

5b. Railroad L., § 178, as to maintenance by railroad companies of the highway
between and outside of the tracks, has not been impliedly repealed by this section
and § 137 of the Highway Law. Village of Peekskill v. Putnam and Westchester
Trac. Co. (1918), 181 App. Div. 382, 168 N. Y. Supp. 809.

6. Eminent domain. The act of 1901, ch. 240, from which this section was in part
derived, was intended to confer upon the board of supervisors, as the official repre-
sentative of the county in its corporate capacity, the power of eminent domain in
respect to rights of way, required for the construction and improvement of state
and county highways. County of Orange v. Ellsworth, 98 App. Div. 275, 90 N. Y.
Supp. 576.

State not liable for unlawful and unauthorized taking of land by highway
improvement by contractor before lawful appropriation thereof by the State and
award of Court of Claims to owner therefor is erroneous. Konner v, State (1920),
227 N. Y. 478, 125 N. E. 848, affg. 180 App. Div. 837, 168 N. Y. Supp. 345.

When State not justified in interrupting contractor in construction of state
highway by County’s failure to secure right of way. Schunnemunk Con. Co. v. State
(1921), 116 Mise. 770, 189 N. Y. Supp. 569.

After a village lays a pipe in a highway for the purpose of conducting water into
the village water system under § 226 of the Village Law, this section does not apply,
where the highway is improved as a federal aid highway, and the village at its
own expense must thereafter conform the location of such pipes to any change of
grade or deviation of the highway from the old right of way. Opinion of Atty. Gen.
(1921), 26 State Dept. Rep. 325.
STATE AND COUNTY HIGHWAYS. 898m
Highway Law, §§ 149, 149a, 150,

[Highway Law, § 148, as amended by L. 1917, ch. 261, and L. 1918, ch.
326; B. C. & G. Cons. L., p. 3511.]

§ 29. PURCHASE OF LANDS.

The board of supervisors may, by resolution, authorize is chairman, a
member, or a committee to purchase the lands to be acquired for the pur-
poses specified in the preceding section. But the amount to be paid un-
der this section to a single owner shall not exceed the sum of two hun-
dred dollars, unless approved by the county judge and county treasurer,
and in no case shall such amount exceed the sum of one thousand dol-
lars. The purchase price of such lands shall be a county charge, and
shall be paid in the same manner as awards are paid in cases where the
proceedings are taken as herein required. [Highway Law, § 149; B. C.
& G. Cons. L., p. 3511.] ;

Purchase of land in certain counties. The board of supervisors in a
county adjoining a city of the first class containing over two million
inhabitants may, by resolution, authorize the purchase of lands to be
acquired for the purpose specified in section one hundred and forty-
eight of this chapter. The purchase price of such lands, however, shall
not exceed the sum of five thousand dollars; it shall be a county charge
and shall be paid in the same manner as other county charges are paid.
[Highway Law, § 149-a, as added by L. 1916, ch. 12.]

§ 30. PETITION TO ACQUIRE LANDS.

If the board of supervisors is unable to acquire land by purchase as
provided for in sections one hundred and forty-nine and one hundred and
luity-nine-a of tuis chapter, the board may present to the county court
of the county or to the supreme court, at a special term thereof, to be
held in the judicial department in which said county is located, a petition
for the appointment of three commissioners of appraisal to ascertain and
determine the compensation to be paid to the owners of the land to be ac-
quired and to all persons interested therein. Such petition shall describe the
land to be acquired with a reference to the map upon which the same is shown
which shall be annexed to such petition. A copy of such petition and map
shall be filed in the office of the county clerk. Such petition shall be

 

An order appointing commissioners to acquire lands at the base of a mountain
so as to furnish a place to place excavated materials from a state road being con-
structed along such mountain is not appealable, since the taking of the land for
such purpose is for a permitted public use and is not in excess of the right of
eminent domain. County of Orange v. Storm King Stone Co. (1917), 180 App. Div.
208, 167 N. Y. Supp. 806.
898n HIGHWAYS AND BRIGDES.
Highway Law, §§ 151, 152.

signed and verified in the name of the board of supervisors, by the chair-
man or a member thereof designated for that purpose by resolution.
Notice of presentation of such petition to such court shall be given by
the petitioner by publishing such notice in two newspapers published in
such county, once in each week for two weeks successively preceding the day
of such presentation, and also at least eight days preceding the day
of such presentation by serving a copy of such notice, personally or by
mail, on the occupant or owner of the land to be acquired, and by posting
a copy of said notice in not less than three public places in each town in
which property to be acquired is located.?7 [Highway Law, §150, as
amended by L. 1911, ch. 503, L. 1917, ch. 140, and L. 1922, ch. 371.]

§31. COMMISSIONERS TO BE APPOINTED.

Upon such presentation, such court shall, after hearing any person
owning or claiming an interest in the lands to be acquired who may appear,
appoint three disinterested persons as commissioners. And in case a com-
missioner shall at any time decline to serve, or shall die, or for any cause
become disqualified or disabled from serving as such, the said court, at
a similar special term, may, upon similar notice, application and hearing,
and upon such notice to the land owners as the court may prescribe,
appoint another person, similarly qualified, to fill the vacancy caused
thereby. [Highway Law, § 151; B. C. & G. Cons. L., 2d Ed., p. 3513.]

§32, DUTIES OF COMMISSIONERS.

The said commissioners shall take the oath of office prescribed by the
constitution, which oath shall be filed in the office of the county clerk of
the county. Upon the filing of such oath the title to the lands described
in the petition and map filed in the office of the county clerk shall vest
in the county for the purpose of a highway forever. The commissioners

 

7. Pleading cf land owner. While this section does not provide that the defendant
land owner shall have an opportunity to deny or controvert the petition, or to
interpose any pleading or defense or to litigate the right of the plaintiff to main-
tain the proceeding, such land owner may interpose a defense by petition and do
whatever is authorized to be done under the Condemnation Law to protect his
interests in respect to the premises sought to be acquired. County of Orange v.
Ellsworth, 98 App. Div. 275, 90 N. Y. Supp. 576.

Damages to well on adjacent lands. When it appears that a well on adjacent
lands, which is fed by a subterranean water, was depleted by the blasting for a
highway, the owner of the lands is entitled to damages for such injury as an
incident to the taking of his lands for highway purposes. County of Erie v. Friden-
burg (1917), 221 N. Y. 389.

7a. Qualifications of, Commissioners to appraise damages; owner of real estate, in
county to be charged, is eligible. County of Orange v. Storm King Stone Co. (1920),
229 N. Y. 460, 128 N. E, 677, revg. (1920), 191 App. Div, 329, 181 N. Y. Supp. 660.
STATE AND COUNTY HIGHWAYS. 8980
Highway Law, § 152.

shall, with all reasonable diligence, proceed to examine such highways
and lands. Said commissioners shall cause’a notice to be published in
two such newspapers as aforesaid, once each week for two weeks suc-
cessively next preceding the day of meeting mentioned in such notice,
that at a stated time and place within such county they will meet for
_ the purpose of hearing the parties claiming an interest in the damages
to be awarded for the lands taken for such highways. Said notice shall
also state the fact that a map or maps showing the land acquired has
been filed in the county clerk’s office. At the time and place of said
meeting and at any adjournment thereof which said commissioners shall
publicly make, they shall hear the proofs and a]legatious of all interested
parties. They may adjourn the proceedings before them from time to
time, issue subpoenas or administer oaths in such proceedings; and
shall keep minutes of their proceedings and reduce to writing all oral evi-
dence given before them. They shall thereafter make and sign a re-
port in writing, in which they shall assess, allow and state the amount
of damages to be sustained by the owners cf the several lois, pieces or
parcels of land to be taken for the purposes aforesaid. Such report shall
contain the names of the owners of any parcel of land acquired as afore-
said, except that in case the commissioners are unable to ascertain the
names of such owners, they may in place of the names of such undis-
covered parties insert the words “ unknown owners,” in their report.
The said commissioners shall file their said report, together with the
minutes of their proceedings, in the office of county clerk of such county.
After said report shall have been completed and filed as aforesaid, the
commissioners shall, after publishing, a notice in like manner as that
provided in section one hundred and fifty-two, apply to the county court
of the county or to the supreme court, at a special term thereof to be
held in the judicial department in which said county is located, to have
the said report confirmed. If no sufficient reason to the contrary shall
appear, the court shall confirm said report. Otherwise it may refer the
same back to the said commissioners for revision or correction ; and after
such revision or correction the same proceedings shall be taken as are
hereinbefore provided for, and the commissioners shall in the same
manner make renewed application for the confirmation of such report,
and the court shall thereupon confirm or refer back the said report, and
such proceedings shall be repeated until a report shall be presented
898p HIGHWAYS AND BRIDGES,
Highway Law, §§ 153, 154.

which shall be confirmed by the said court. [Highway Law, § 152, as
amended by L, 1911, ch. 503; B. C. & G. Cons. L., p. 3513.]

§ 33. COUNTY TREASURER TO PAY AWARDS.

Within six months after the report of said commissioners shall be con-
firmed as aforesaid, the county treasurer of such county shall pay to the
persons named therein the amounts awarded to them for damages with
six per centum interest thereon from the day of the filing of the oath of
the commissioners in the office of the county clerk. Such amounts with
interest and the amounts paid in pursuance of this article shall be a
county charge and shall be paid by the county treasurer, in case of pur-

‘chase upon requisition of the chairman of the board of supervisors of
said county, or by any member or committee thereof designated for that
purpose by said board and in ease of a petition for the acquisition of
such lands, upon service of a certified copy of the order confirming such
awards. In case there are unknown owners, to whom the award is made
in said report, the said county treasurer shall deposit the amounts
awarded to them with like interest in some trust company or bank in
such manner as the court shall in the order of confirmation direct, such
amount to be paid out upon the application of said unknown owners when
discovered. [Highway Law, § 153, as amended by L. 1911, ch. 503; B.
C. & G. Cons. L., p. 3514.]

§ 34. COSTS; COMMISSIONER’S FEES.

Tn all cases of assessment of damages by commissioners appointed by
the court, the costs thereof shall be awarded pursuant to the provisions
of section thirty-three hundred and seventy-two of the code of civil pro-
cedure and shall be a county charge in the first instance, and be paid
by the county treasurer as hereinbefore provided, except when reassess-
ment of damages shall be had on the application of the party for whom
damages were assessed, and such damages shall not be increased on such
reassessment, the costs shall be paid by the party applying for the re-
assessment, and when application shall be made by two or more persons
for reassessment of damages all persons who may be liable for costs un-
der this section shall be liable in proportion to the amount of damages
respectively assessed to them by the first assessment, and may be re-
covered by action. Each commissioner appointed by the court as pro-
vided in this article for each full day necessarily employed as such,
shall be entitied to the sum of six dollars and his necessary ex-
penses. The amount of compensation to which such commissioners are
STATE AND COUNTY HIGHWAYS. 89 8q
Highway Law, §§ 155, 155a.

entitled shall be determined by the court in which the proceeding is
pending, upon verified accounts presented by such commissioners, stating
in detail the number of hours necessarily employed in the discharge of
their duties; and the nature of the services rendered, upon eight days’
notice to the attorney for the petitioner in the proceeding. [Highway
Law, § 154, as amended by L. 1912, ch. 182, and L. 1915, ch. 497; B.
C. & G. Cons. L., p. 3514.]

§ 35. LAND MAY BE SOLD OR LEASED; DISPOSITION OF PROCEEDS.

Any lands acquired by purchase or condemnation, for the purpose of
obtaining gravel, stone or other materials, for the construction or main-
tenance of highways improved or constructed as provided in this article,
or required for spoil banks, may be sold or leased by the board of super-
visors of any county, when no longer needed for any such purposes. The
proceeds thereof shall be paid into the county treasury and shall be
retained therein as a separate fund available for the construction or
maintenance of highways improved or constructed under this article.
The board of supervisors may, where it has acquired land by purchase
or condemnation as a right-of-way for a state or county highway, sell,
convey, grant or lease to the owner or owners of property adjoining the
same, so much thereof as may be unnecessary for such highway pur-
poses, provided the strip of land retained for such highway pur-
poses is not less than sixty feet in width, and provided such sale, con-
veyance, grant or lease will give said adjoining owner or owners of
land a frontage immediately in front of their respective premises upon
the new highway and right-of-way when completed. The board of
supervisors may make such sale, conveyance, grant or lease to such
owner or owners of real property for the purpose of compensating such
owner or owners for damages sustained by reason of the change of the
location of such highway and in full settlement thereof. [Highway
Law, § 155, as amended by L. 1911, ch. 552; B. C. & G. Cons. L., p.
3515.]

§ 35a, APPORTIONMENT OF COST OF LANDS ACQUIRED FOR RIGHT OF
WAY AND OTHER PURPOSES IN CERTAIN COUNTIES.
Notwithstanding any provision of law to the contrary and after the

 

6a. Effect of Amendment of 1915. The amendment of this section by chapter 497
of L. 1915 does not deprive the court of the power to allow costs in a condemnation
proceeding, unless such costs may be allowed under § 3372 of the Code of Civil
Procedure. Costs are allowable where essential to secure to the owner just com-
pensation for his property. The court may not, however, grant an extra allowance.
County of Erie v. Fridenberg (1917), 221 N. Y. 389.
898r HIGHWAYS AND BRIDGES,
Highway Law, §§ 156-158.

taking effect of this act, fifty per centum of the cost of lands acquired
for right of way and other purposes by purchase or condemnation, under
the provisions of sections one hundred and forty-eight to one hundred
and fifty-five both inclusive, in a county having a population of more
than three hundred thousand according to the last federal or state
census or enumeration, adjoining a city of the first class, having a popu-
lation of one million and upwards shall be borne by the towns or cities
in such county in which such lands are located. Such shares shall be
paid in the first instance by the county and each year before the levying
of the taxes by the board of supervisors of such counties the county treas-
urer shall certify to such board the amounts so paid by him and the town
or city properly chargeable therewith. The said amounts shall be levied
by such board of supervisors against such town or city in the same man-
mer as the other taxes are levied and when collected shall be paid into the
county treasury. [Highway Law, § 155-a, added by L. 1920, ch. 221.]

§ 36. APPLICATION OF PROVISIONS OF LABOR LAW.

The provisions of section three of the labor law, as amended by chap-
ter five hundred and six of the laws of nineteen hundred and six, which
except from the provisions of that section labor performed in the con-
siruction, maintenance and repair of highways outside the limits of
cities and villages, shall apply to the construction, improvement and
maintenance of state and county highways as provided in this chapter.
[Highway Law, § 156; B. C. & G. Cons. L., p. 3515.]

§ 37. HIGHWAYS AND BRIDGES ON INDIAN RESERVATIONS.

When any portion of a county highway designated for improvement
or construction in a county, as provided in this article, is located on an
Indian reservation, the entire cost of the improvement or construction
of such portion shall be paid by the state in the same manner as the
state’s share of the cost of such county highway, out of any specific ap-
propriation made available for the construction or improvement of
county highways. The commission shall have exclusive supervision and
control of all bridges constructed or to be constructed by the state on any
Indian reservation, and may make and enforce such reasonable rules:
and regulations concerning their use, as it shall deem necessary. [High-
way Law, § 157; B. C. & G. Cons. L., p. 3516.]

§ 38. APPOINTMENT OF RESERVATION SUPERINTENDENT.
The commission may appoint a reservation superintendent for any
Indian reservation in the state who shall exercise the powers and per-
STATE AND COUNTY HIGHWAYS. 898s
Highway Law, § 159.

form the duties conferred and imposed upon town superintendents, ex-
cept that the written statement as provided for by section ninety of the
highway law shall be filed with the commission on or before the thirty-
first day of October in each year, and excepting that all orders of the
Indian reservation superintendent shall be drawn upon and presented
for payment as hereinafter provided to the county treasurer of the
county in which such Indian reservation or major portion thereof exists.

While any such reservation superintendent shall be acting in that
capacity no highway within such reservation shall be laid out, altered,
or discontinued, without his consent. Whenever land may be acquired
without expense or is dedicated for highway purposes within any Indian
reservation, the reservation superintendent in charge thereof may make
an order laying out the said highway by filing and recording said order
in the town clerk’s office of the town in which said highway is located..
He shall also file said order with the recording officer of the tribe
through whose lands such highway extends. [Highway Law, § 158,
as added by L. 1910, ch. 46, and amended by L. 1913, ch, 474. ]

§ 39. CUSTODY OF MONEYS, ET CETERA.

There shall be paid by the state treasurer to the county treasurer of
each county in the state containing an Indian reservation, reservations
or major portion of an Indian reservation, an amount which shall be
not less than thirty dollars per mile, based on the entire mileage of the
public highways within the Indian reservation in such county. All
moneys of the state available for the improvement, repair and main-
tenance of highways and bridges and for the purchase of machinery,
tools and implements within Indian reservations shall be paid to the
county treasurer of each county containing such Indian reservation or
major portion thereof, who shall be the custodian thereof and account-
able therefor, and it shall be expended for the repair and improvement
of the public highways and bridges and for the purchase.of machinery,
tools and implements within such Indian reservations at such places
and in such manner as may be directed by the commission, and such
moneys shall be paid out by the county treasurer upon the written order
of the Indian reservation superintendent in accordance with such direc-
tions. The county treasurer and the Indian reservation superintendent
shall keep their accounts according to the methods and use the blanks
as prescribed by the commission. All orders and records of accounts
shall be filed in the office of the commission on or before the thirty-first
898t HIGHWAYS AND BRIDGES,
Highway Law, § 160.

day of October in each year and shall be preserved by the commission
as Indian reservation records, The reservation superintendent sball
receive a per diem or annual allowance as compensation for services
and expenses in an amount to be fixed by the commission, which shall be
paid by the county treasurer to the reservation superintendent upon or-
ders of the commission. The commission shall annually cause to be
inspected all of the bridges within Indian reservations of each county
and shall require a complete report of such inspection which shall show
in detail the condition of the bridges inspected, the necessary work to
be performed in the repair and maintenance of such bridges and the
estimated cost thereof. The commission shall revise such estimates and
annually report to the legislature its estimated cost for such repairs
and construction for the ensuing year in detail by reservation and
county. The maintenance, repair and construction of the public high-
ways within the Indian reservations shall be under the direct supervi-
sion and control of the commission and the state superintendent of high-
ways and they shall be responsible therefor as herein provided. There
shall be annually appropriated for the construction, repair and main-
tenance of such highways and bridges and for the purchase and repair
of machinery, tools and implements, an amount sufficient to provide
therefor, based upon the estimates prepared and submitted by the com-
mission to the legislature. The comptroller upon requisition of the
commission shall draw his warrant on the state treasurer in favor of
the county treasurer who is the custodian of such funds as herein pro-
vided for an amount which shall not be in excess of the total amount
apportioned by the commission to the Indian reservation of any county.
The moneys so paid shall be deposited by said county treasurer to the
credit of the fund for the maintenance, repair and construction of high-
ways and bridges and the purchase and repair of machinery, tools and
implements in the Indian reservation of said county.’ [Highway
Law, § 159, as added by L. 1910, ch. 46, and amended by L. 1911, ch.
646, and L. 1913, ch. 474. ]

§ 40. MAINTENANCE OF DETOURS DURING CONSTRUCTION.

The maintenance and repair of any highway or right of way desig-
nated by the commission for use as a detour, during the construction,
reconstruction or repair of a state or county highway, shall be under
the supervision of the commission and shall be paid for out of the con-
struction fund, in cases of construction or improvement contracts, or
STATE AND COUNTY HIGHWAYS. 899

Highway Law, § 160.

the state’s share of the money available for maintenance and repair of
improved roads in such county in cases of reconstruction or repair con-
tracts. Such highway or right of way designated as a detour by the
commission shall be deemed as an improved highway during construc-
tion, reconstruction or repair. [Highway Law, § 160, as added by L.
1912, ch. 83, and amended by L. 1916, ch. 578.]

7. Construction of bridges on Indian reservation is within the control of the Com-
mission. Towns have no authority to build. Rept. of Atty. Genl., Jan. 21, 1911

 
899a HIGHWAYS AND BRIDGES.

Highway Law, § 161.

CHAPTER LX-A.
IMPROVEMENT OF HIGHWAYS WITH FEDERAL AID.

(This chapter contains Article 6-A of the Highway Law as added by L. 191%, eb.
462, in effect May 14, 1917.)

Section 1. Commissioner of highways to improve, construct or reconstruct roads.

2. Cost of preliminary surveys.

8. Approval of plans.

4, Advertisements, proposals, contracts, appropriation, closing roads, de-
tours, termination of contract, entry for drainage, permits, mainten-
ance and repair, contingencies and agreements.

5. Acceptance of work.

6. Acquisition of right of way.

7. State’s share of cost.

7-a. Construction or improvement, partly at county expense, of state
routes.
7-b. Elimination of grade crossings; highways through Indian reservations.

8. General authorization.

§1. COMMISSIONER OF HIGHWAYS TO IMPROVE, CONSTRUCT OR RECON-
STRUCT ROADS.

The state commissioner of highways is hereby authorized, empowered
and directed to improve or construct as a joint, cooperative road any
state or county highway which is designated, set forth and described in
sections one hundred and twenty and one hundred and twenty-two and
indicated for construction on the map to which reference is made in sec-
tion one hundred and twenty-two-a of this chapter, or to reconstruct as a
joint cooperative road any state or county highway as defined in sections
one hundred and twenty and one hundred and twenty-two of this chapter,
with the moneys to be appropriated by the state of New York and the
moneys contributed to the state of New York for highway improvement
by the federal government under the provisions of an act of Congress,
entitled “An act to provide that the United States shall aid the states in
the construction of rural post roads, and for other purposes,” approved
July eleventh, nineteen hundred and sixteen; provided the designation of
such highway as a joint, cooperative road is approved by the United States

secretary of agriculture in accordance with said act of congress. [Highway
Law, § 161, as added by L. 1917, ch. 62, and amended by L. 1921, chs. 18,
196.]
IMPROVEMENT OF HIGHWAYS WITH FEDERAL AID 899b
Highway Law, §§ 162, 163, 164.

§2. COST OF PRELIMINARY SURVEYS.

Preliminary surveys, plans, specifications and estimates of cost for the
highways or portions thereof so designated shall be made by the state depart-
ment of highways in the same manner as prescribed in section one hundred
and. twenty-five of the highway law and the expense thereof shall be paid
out of the moneys appropriated by the state for the purposes of this article.
[Highway Law, § 162, as added by L. 1917, ch. 462.]

§3. APPROVAL OF PLANS.

After the submission to, and approval by the secretary of the United
states department of agriculture, of such plans, specifications and esti-
mates of cost, as required by the provisions of said act of congress, the same
shall be approved by the commissioner of highways by executive order;
which order shall give a consecutive number to the highway or portion
thereof covered by said plans. A certified copy of such order shall be filed
with the said secretary of agriculture and with the state comptroller. Roads
shall be taken up for construction or improvement in the order of final
approval unless the commissioner of highways deems otherwise advisable,
in which event an executive order shall be filed in the office of the highway
department giving the reasons for deviating from such order, and a certified
copy thereof filed with said secretary and with the state comptroller. When-
ever a modified project agreement has been executed by the state highway
commission and the United States department of agriculture involving a
change in the estimate which determined the obligation set up to provide
for such project, the obligation therefor shall be amended to correspond
to the revised estimate. [Highway Law, § 163, as'added by L. 1917, ch.
462, and amended by L. 1922, ch. 371.]

§4, ADVERTISEMENTS, PROPOSALS, CONTRACTS, APPROPRIATION, CLOS-
ING ROADS, DETOURS, TERMINATION OF CONTRACT, ENTRY FOR
DRAINAGE PERMITS, MAINTENANCE AND REPAIR, CONTINGEN-
CIES AND AGREEMENTS.

The form of proposal, contract and bond, the method of eieeniice for
proposals, the rejection of proposals, the award of contracts and the pay-
ments to contractors shall be governed by the provisions of section one
hundred and thirty of this chapter. To expedite the payment of the share
of the federal government as shown by monthly estimates rendered on
existing contracts as provided herein it is hereby provided that upon the
filing of the report of the commissioner of highways with the legislature,
showing the amount of construction under federal aid contemplated for
the ensuing year, and in case an appropriation is made by the legislature
to provide the state’s share of the construction shown in such revort, there
shall also be appropriated such an additional amount as is necessary to
899e HIGHWAYS AND BRIDGES,
Highway Law, § 164.

pay in the first instance the share of the federal government of the cost
of such work. Itemized statements showing the entire cost of construction
of such roads shall be rendered by the commissioner of highways to the
state comptroller and the federal government as the work progresses and
such statements shall show the subdivision of cost between the state and the
federal government and shall be accompanied by drafts on the federal
government for the amount of its share of such cost. Upon the payment
of such drafts the proceeds shall be deposited by the commissioner of high-
ways with the treasurer of the state for the purpose of reimbursing the
appropriation made by the state on account of such advance payments,
and upon the final completion of the work a report thereof filed with the
state comptroller. The provisions of sections seventy-seven and one hun-
dred and sixty of this chapter, relative to closing highways for repair or
construction and the maintenance of detours during construction; also the
provisions of section one hundred and thirty-two of this chapter relative to
the authority of the commissioner to secure the completion of the work;
also the provisions of sections one hundred and thirty-five and one hundred
and thirty-six of this chapter, relative to the entry upon adjacent lands for
drainage purposes and the payment of damages for such entry; also the
provisions of sections one hundred and thirty-seven, one hundred and thirty-
eight, one hundred and thirty-eight-a and one hundred and thirty-eight-h,
relative to construction in villages, towns and counties and to additional
width and increased cost; also the provisions of section one hundred
and forty-six of this act, relative to the issuance of permits for work
by persons, firms or corporations; also the provisions of section one
hundred and fifty-six relative to the application of the labor law; shall
all be applicable for the purposes of highways improved or constructed under
the provisions of this article. The provisions of article seven of this chapter
relative to the maintenance of state and county highways shall apply to the
maintenance and repair of highways improved or constructed under the
provisions of this article. All contingencies arising during the prosecution
of the work shall be provided for to the satisfaction of the commissioner
of highways and as may be agreed upon in the original or by a supple-
mental contract executed by the commissioner. If a supplemental contract
be executed for the performance of work or the furnishing of material not
provided for in the original contract, the amount to be charged thereunder
for any such work or material shall not exceed the rate for which similar
work or material was agreed to be performed or furnished under the
original bid upon which the contract was awarded. Any work necessarily
required for the proper completion of the contract and for which no item
price bid was contained in the proposal shall be performed upon prices to
be agreed upon by the contractor and the commissioner prior to the perform-
ance of such work, and such work and the prices therefor shall be provided
IMPROVEMENT OF HIGHWAYS WITH FEDERAL AID. 899d

Highway Law, §§ 165, 166, 167.

in a supplemental contract. The total amount to be expended in the
improvement or construction of a highway or section thereof shall not
exceed the original estimate, unless such estimate shall have been duly
amended by the commissioner with the approval of the secretary of agri-
culture. [Highway Law, § 164, as added by L. 1917, ch. 462, and amended
by L. 1921, ch. 196.]

§5. ACCEPTANCE OF WORK.

Upon the completion of a highway or section thereof constructed or
improved under the provisions of this article, the division engineer shall
inspect the same and shall report in writing to the state commissioner of
highways his recommendation as to whether or not the contract should be
finally accepted, and the decision of the said commissioner, which shall be
conclusive, as to the acceptance of said highway or portion thereof thus
constructed or improved, shall be entered in the form of an executive order,
a certified copy of which shall be filed with the secretary of agriculture.
[Highway Law, § 165 as added by L. 191%, ch. 462.]

§6, ACQUISITION OF RIGHT OF WAY.

The provisions of article six of this chapter relative to the acquisition
of lands for right of way and other purposes shall be applicable for the
purposes of highways improved or constructed under the provisions of this
article. [Highway Law, § 166, as added by L. 1917, ch. 462.]

§7. STATE’S SHARE OF COST.

If a highway to be constructed under this article has been or may be
hereafter designated as a state route, the proportion of the total cost of
the improvement or construction thereof to be borne by the state of New
York, exclusive of the expenses incurred prior to the beginning of con-
struction work for the purposes of making surveys, plans, specifications
and estimates of cost, shall not exceed fifty per centum of such total cost.
If the highway to be improved or constructed is a county highway, thirty-
five per centum of the total cost thereof, exclusive of such preliminary
expenses, shall be borne by the state and thirty per centum by the county
or counties in which such highway is situated. In the case of the recon-
struction of any state or county highway, fifty per centum of the total
cost thereof, exclusive of such preliminary expenses, shall be borne by
the state and fifty per centum by the federal government except as pro-
vided in sections one hundred and seventy-seven and one hundred and
eighty. Where a highway has been designated to be constructed under
federal aid and a portion of the cost of construction or improvement of
899e HIGHWAYS AND BRIDGES,
Highway Law, § 167a.

such highway or section thereof is to be borne by the county in which such
highway or section thereof is located, the commissioner of highways shall

notify the board of supervisors of such county of the total cost of the
construction of such highway within the county and the proportion of
such cost to be borne by the county. The board of supervisors of such
county is hereby authorized to adopt a resolution approving such construc-
tion or improvement and shall appropriate and make immediately available
to the requisition of the commission an amount sufficient to pay such
county’s share of the cost of such construction or improvement. The form
of such resolution shall be prescribed by the commission, and immediately
upon the adoption of such resolution the clerk of the board of supervisors
shall transmit a certified copy thereof to the commission. No resolu-
tion thereafter adopted by such board shall rescind or annul such prior
resolution either directly or indirectly, excepting under the advice and
with the consent of the commission. The amount so provided shall be
paid into the county treasury, to constitute a special fund for the con-
struction or improvement of such highway within the county and shall
be paid out by the county treasurer on the requisition of the commis-
sioner of highways. To provide such moneys, bonds of the county may
be issued and sold in the manner provided in section one hundred and
forty-two. During the construction or improvement of a highway of
which a county bears thirty per centum of the cost, under the provisions
of this section, the itemized statements of cost of construction to be
made, pursuant to section one hundred and sixty-four, as the work pro-
gresses, shall show the subdivision of cost between the county and state,
and the federal government. [Highway Law, § 167, as added by L. 1917,
ch. 462, and amended by L, 1920, ch. 313, and L. 1921, ch. 196.]

§7a. CONSTRUCTION OR IMPROVEMENT, PARTLY AT COUNTY EXPENSE,
OF STATE ROUTES.

Jf surveys, plans, specifications and estimates for the construction of a
highway, under the provisions of this article, upon any part of a state
route defined by section one hundred and twenty, shall have been made and
approved by the secretary of the United States department of agriculture
and the state commission of highways, and if the cost thereof per mile
according to the estimates exceeds the amount available in any county
for such construction to be provided by the state and federal government,
the board of supervisors of the county, by resolution, may approve of such
construction or improvement within such estimates and may provide that
the county shall pay the amount of such excess. If such construction or
improvement be determined as herein provided, the board of supervisors,
by resolution, shall appropriate the funds to be provided for by the county.
The funds so provided shall be paid into the county treasury and made
available to the requisition of the commission. The form of any such
resolution shall be prescribed by the commission, and immediately upon
the adoption of such resolution the clerk of the board of supervisors shall
transmit a certified copy thereof to the commission. A resolution of the
board of supervisors under the provisions of this section shall require
the affirmative vote of a majority of all the members of such board. No
IMPROVEMENT OF HIGHWAYS WITH FEDERAL AID, 899f

Highway Law, §§ 167b, 168.

resolution thereafter adopted by such board shall rescind or annul any
such prior resolution, either directly or indirectly, excepting under the
advice and with the consent of the commission. ‘To provide such moneys
bonds of the county may be issued and sold in the manner provided in
section one hundred and forty-two. During the construction or improve-
ment of any such state route of which a county bears a portion of the
cost, under the provisions of this section, the itemized statements of the
cost of construction to be made pursuant to section one hundred and
sixty-four, as the work progresses, shall show the proportion of cost
between the county, the state and the federal government. [Highway
Law, § 16%a, as added by L. 1921, ch. 53.]

§7b. ELIMINATION OF GRADE CROSSINGS; HIGHWAYS THROUGH INDIAN
RESERVATIONS.

If it shall become necessary or be deemed advisable to eliminate any
railroad grade crossings in connection with the construction or improve-
ment of the federal aid highways, designated and described by this act,
the cost of making such elimination shall be borne fifty per centum by
the railroad company owning the railroad affected by the elimination in
accordance with the provisions of the railroad law, twenty-five per centum
by the federal government and twenty-five per centum by the state. In
the case of a county highway the cost of making such elimination shall
be borne fifty per centum by the railroad company and the remaining
fifty per centum jointly by the federal government, state and county in the
same proportion as the cost of construction or improvement of such county
highway is paid. If any federal aid highway, designated and described
by this act shall be constructed into or through an Indian reservation,
then the cost of construction of such highway shall be borne fifty per
centum by the federal government and fifty per centum by the state.
[Highway Law, § 167-b, as added by L. 1921, ch. 196, and amended by
L. 1922, ch. 371.]

§8. GENERAL AUTHORIZATION.

The state commissioner of highways is hereby authorized, empowered
and directed to perform and do such other and further acts not hereby
specifically provided in this article as may be necessary to conduct the
improvement or construction of co-operative highways with state and
federal aid in compliance with the act of congress hereinbefore referred
to and the rules and regulations promulgated by the secretary of agriculture
under authority conferred upon him by said act of congress, the provisions
of which act are hereby assented to, the good faith of the state of New York
being hereby pledged to make such provision from time to time as may
be necessary to provide its share of the cost of improvements of such
highways. [Highway Law, § 168, as added by L. 191%, ch. 462.]
900 HIGHWAYS AND BRIDGES.

Highway Law, § 170.

CHAPTER LXI.
MAINTENANCE OF STATE AND COUNTY HIGHWAYS.
[Highway Law, art. VII.]

SECTION 1. Commission to provide for maintenance and repair.
la. State to maintain roads improved by state appropriation under special
laws.
1b. Maintenance and repair by the state of certain improved roads.
1c. Maintenanc: by state of canal bridge approach.
. Appropriations by state; apportionment of moneys.
. Cost to town for maintenance of state and county highways.
. Disbursement of maintenance funus.
. Reports of county treasurer.
. Compensation of town superintendents.
- Liability of state for damages.
8. Additional width or different type of construction under repair contracts,
9. Sprinkling; removal of filth and refuse.
10. Payment by counties of a portion of the cost of construction under
repair contracts.

11. Improvement of alignment and of dangerous conditions on repair work.
12. County roads taken over for maintenance as State or county highways.

§ 1. COMMISSION TO PROVIDE FOR MAINTENANCE AND REPAIR.

The maintenance and repair of improved state and county highways
in towns and incorporated villages, exclusive, however, of the cost of
maintaining and repairing bridges having a span of five feet or over,
shall be under the direct supervision and control of the commissioner of
highways and he shall be responsible therefor." Such maintenance and
repair may be done in the discretion of the commissioner either directly
by the department of highways or by contract awarded to the lowest re-
sponsible bidder at a public letting after due advertisement, and under
such rules and regulations as the commissioner of highways may pre-

Noor ww

 

1. Orange County Act. The special law (1. 1901, ch. 83) providing for the
construction and maintenance of highways in the county of Orange is not repealed
by the provision of this section relative to the maintenance and repair of state and
county highways. Matter of Business Men’s Association, 54 Misc. 13, 103 N. Y.
Supp. 843 (1907).

Duty of abutting owners to construct and keep in repair approaches
or driveways from highways. On examination of the provisions of articles 4,
6 and 7 of the Highway Law as they stcod on July 21, 1909, held, that the statute
required abutting owners under the direction of the district or county superintendent,
to construct and keep in repair approaches or driveways from the highway, but that
the duty of maintenance did not rest on the town unless the town board decided to
assume it, and ony in that event was the town superintendent under any duty of
inspection, which is but an incident to the duty of maintenance and repair. Fer-
guson v. Town of Lewisboro, 213 N. Y. 141.
MAINTENANCE OF STATE AND COUNTY HIGHWAYS. 901

Highway Law, §§ 170a, 170b.

scribe. The commissioner of highways shall also have the power to adopt
such system as may*seem expedient so that each section of such highways
shall be effectively and economically preserved, maintained and repaired.
The commissioner of highways shall have the power to purchase mater-
ials for such maintenance and repairs, except where such work is done -
by contract, and contract for the delivery thereof at convenient intervals
along such highways. Whenever a state or county highway has been con-
structed at a greater width than that provided in the plans prepared by the
commission upon petition of a town or county as provided in sections one
hundred thirty-eight-a, one hundred thirty-eight-b or one hundred and
seventy-seven or -whenever such highway has been widened by a town
or county under a permit granted by the commission as provided in sec-
tion one hundred and forty-six, the additional width of pavement shall
be deemed to be a part of the highway and shall be maintained by the
commission as provided herein, but in no case where any such highway
has been widened as provided above, shall the state maintain a width of
pavement in excess of twenty feet nor shall the state be responsible for
the maintenance of any curb or of any paved gutter or paved shoulder,
provided, however, than on any highway maintained by the state the com-
mission shall have authority to clean any pavement or paved gutter or
repair any unpaved shoulder or unpaved gutter outside of the pavement
maintained by the state, where necessary for the protection of such pave-
ment. [Highway Law, § 170, as amended by L. 1911, ch. 646, L. 1912,
ch. 83, L. 1913, ch. 80, L. 1916, ch. 578, and L. 1921, ch. 371.]

§1a. STATE TO MAINTAIN ROADS IMPROVED BY STAPE APPROPRIA-
TIONS UNDER SPECIAL LAWS,

When any highway has been constructed or improved under a special
law, with moneys taken from the state treasury and under plans prepared
by a state department, the commissioner of highways may at any time in-
spect such highway and if he determine it to be of sufficient importance
and properly constructed, he may make an order directing that such high-
way become a part of the system of state and county highways in such
county, and thereafter such highway shall be maintained as a state or county
highway in the manner provided in article seven of the highway law. Such
order shall be served upon the chairman of the board of supervisors, and
a certified copy thereof shall be filed in the office of the county clerk and
one in the office of the state comptroller. [Highway Law, § 170a, as added,
by L. 1917, ch. 261.]

§ 1b. ey aa AND REPAIR BY THE STATE OF CERTAIN IMPROVED

Whenever a county shall have constructed therein, at its expense, ,an
improved stone road for a distance of not exceeding two miles, extending
between two points, each on the dividing line between such county and an
adjoining county, and connecting at both points with a county highway in
such adjoining county, the commissioner of highways may at any time
inspect such road and if he deers it to be of su*icient importance? and prop-
erly constructed, he may determine that such road shall be thereafter main-
tained and kept in repair by the state; in which case, such maintenance and
repair shall be under the supervision of such commissioner. Such deter-
mination shall be in the form of an order and shall be served upon the
chairman of the board of supervisors of the county in which the road is
located that is to be maintained by the state, and a certified copy thereof
shall be filed in the office of the county clerk and one in the office of the
state comptroller. [Highway Law, § 170b, as added by L. 1918, ch. 146.]
902 HIGHWAYS AND BRIDGES.
Highway Law, §§ 1702, 171.
§ 1c. MAINTENANCE BY STATE OF CANAL BRIDGE APPROACHES.

Where a waterway which is a part of the canal system of the state inter-
sects a state or county highway which is maintained adjacent to such
intersection pursuant to this article, the pavement and shoulders of the
approaches to the bridge structure carrying such highway across such
waterway and the area formerly occupied by any such bridge which has
been removed and replaced by a fill by the state superintendent of public
works, shall be considered eligible for maintenance under this article pro-
viding such approach or fill has, in the opinion of the state commissioner of
highways, been properly graded in connection with the construction of the
canal system of the state. The state commissioner of highways may at
any time make an order directing that such section of highway become a
part of the system of state or county highways in such county, and there-
after the pavement and shoulders of such approach shall be maintained
as a state or county highway in the manner provided in article seven of
this chapter. Such order shall be served upon the chairman of the board
of supervisors and a certified copy thereof shall be filed in the office of the
county clerk and one in the office of the state comptroller. In maintain-

ing such section of highway the commissioner may lay such type of pave-
ment as in his opinion is advisable. [Highway Law, § 170c, as added by
L. 1918, ch. 324, and amended by L. 1922, ch. 371.]

§2. APPROPRIATIONS BY STATE; APPORTIONMENT OF MONEYS.

There shall be annually appropriated for the maintenance and repair of
improved state and county highways an amount sufficient to provide there-
for, based upon the estimates prepared and submitted by the commission
to the legislature as provided in section twenty-three of this chapter. Not
less than ninety per centum of the amount so appropriated shall be appor-
tioned by the commission each year among the counties in accordance witli
the proportion which the amount to be apportioned bears to the total
amount of such estimates. The comptroller, upon the requisition of the
commission, shall draw his warrant upon the state treasurer in favor of the
county treasurer of the county in which the improved state or county high-
ways are located, for an amount which shall not be in excess of the total
amount apportioned by the commission to such county. The moneys s0
paid shall be deposited by the county treasurer to the credit of the fund
for the maintenance of improved state and county highways in the county.
Any moneys so deposited and placed to the credit of the fund for such main-
tenance shall be available and subject to the order of the state highway
commission at any time prior to the total expenditure thereof. Not more
than ten per centum of the amount so appropriated each year may be
reserved by the commission for the repair or rebuilding of improved state
or county highways, which ten per centum shall not be deemed to be avail-
able until after the moneys paid the county treasurer of a county as
MAINTENANCE OF STATE AND COUNTY HIGHWAYS. 903

Highway Law, § 172.

heretofore provided shall have been expended, and which shall be paid
by the state treasurer upon the warrant of the comptroller drawn upon
the requisition of the commission issued when required for such pur-
poses. [Highway Law, §171, as amended by L. 1912, ch. 83, and L.
1916, ch. 578; B. C. & G. Cons. L., p. 3524.]

33. COST TO TOWN FOR MAINTENANCE OF STATE AND COUNTY
HIGHWAYS.

Each town shall pay for the maintenance and repair of state and county
highways each year the sum of fifty dollars for each mile or major frac-
tion of a mile of the total mileage of state and county highways within
the town, each incorporated village shall pay for such maintenance and
repair at the rate of one and one-half cents for each square yard of sur-
face of such improved highway maintained by the state within its corpor-
ate limits.

On or before the first day of November in each year the commission
shall transmit to the clerk of the board of supervisors of each county and
to the board of trustees of each village a statement specifying the num-
ber of miles of improved state and county highways in each town, the
number of square yards:of surface of such improved highway as herein-
before provided in each village in such county and the amount which
each of such towns and villages is required to pay into the county treas-
ury on account of the maintenance of state and county highways and a
copy of such statements shall be forwarded to the county treasurer.
The board of supervisors of the county and the board of trustees of an
incorporated village shall cause the amount to be paid by each town and
incorporated village of the county, to be assessed, levied and collected
therein in the same manner as other town and village charges, in the
several towns and villages and such amount when collected shall be paid
into the county treasury to the credit of the fund for the maintenance
of state and county highways in the several towns and incorporated vil-
lages of the county.’ [Highway Law, § 172, as amended by L. 1912,

la, The distinction in the highway law between “construction and improve-
ment ” of the highways and their “ maintenance and repair ” existed when the High-
way Referendum Act (L. 1912, ch. 298) was enacted, and has been embodied in
the highway law from the beginning of the policy of improved state and county
highways. While this section provides for an appropriation of funds from the state
treasury for the ‘‘maintenance and repair’’ of the state and county highways, the
moneys available under the Referendum Act can be appropriated solely for the pur-
pose of the ‘‘Construction and improvement’’ of said highways. Bridgeport Con-
struction Co. v. Duffey (1919), 106 Misc. 252.

2. Duty of supervisors to levy tax. Upon reccipt of the notices of the state com-
missioner of highways transmitted pursuant to this section of the Highway Law
a mandatory statutory duty, ministerial in character, devolves upon the board of
supervisors, and under this duty the board is required to take such action as shall
result in the levying of a tax by the towns to raise their respective proportion of
the fund appliable to the maintenance of such highways. This duty is not dependent

upon the acceptance of the highways by the proper officials. People e 1, i
v. Board of Supervisors, 217 N. Y. 424, affg. 164 App. Div. 922. ee
904 HIGHWAYS AND BRIDGES.
Highway Law, §§ 173, 174, 175,
ch. 83, L. 1916, ch. 578, L. 1917, ch. 124, and L. 1922, ch. 371.]

§4. DISBURSEMENT OF MAINTENANCE FUNDS.

The amount apportioned by the commission for the maintenance and
repair of state and county highways in each county shall be expended for
the repair and maintenance of such highways in such county, but the
amount paid by each town or incorporated village as provided by section
one hundred and seventy two shall be expended for the repair and main-
tenance of such highways in such town or incorporated village. The county
treasurer shall pay out the moneys received by him as provided in this article
upon the written order of the representative of the commission, who, before
drawing any such orders shall give a bond in an amount to be specified by
the commission, and with such sureties as shall be approved by the com-
mission ; such bond shall be filed in the office of the state comptroller and
certified copy thereof filed in the office of the state highway commission
and in the office of the county treasurer. Such orders shall be issued upon
vouchers duly presented to the representative of the commission in the form
to be prescribed by it. The commission may adopt rules and regulations
providing for the presentation and payment of accounts for maintenance
and repair. [Highway Law, §173, as amended by L. 1912, ch. 83, and
L. 1916, ch. 578; B. C. & G. Cons. L., 2d Ed., p. 3527.]

§5. REPORTS OF COUNTY TREASURERS.

The county treasurer shall report to the commission annually and. at
such other times as required by the commission, the amount ‘received by
him on account of the maintenance and repair of improved state and county
highways in the several towns and incorporated villages in his county and
the expenditures made by him out of such moneys. The form and con-
tents of such report shall be prescribed by the commission. [Highway
Law, § 174, as amended by L. 1912, ch. 83, and L. 1916, ch. 578; B. C. &
G. Cons. L., 2d Ed., p. 3527]

§6. COMPENSATION OF TOWN SUPERINTENDENTS.

If a town superintendent shall be directed by the commission to per-
form services in respect to the maintenance and repair of improved state
‘and county highways within his town his compensation therefor shall be
paid out of the moneys set apart as provided in this article for such
maintenance and repair. Such compensation shall be fixed by the com-
mission but shall in no case exceed the amount fixed by the town board
as compensation for his services performed for the town under this chap-
ter, and in rendering his monthly bill to the supervisor, and his annual
bill to the town board, no charge shall be made against the town for an
expense or per diem charge upon any date for which an audit shall have
been allowed by the state commission. And said state commission shall
make proper rules and regulations to carry into effect this provision and

 

3. Compensation of town superintendent is fixed by the town board at not less
than two nor more than five dollars per day. Highway Law, sec. 45, ante.
MAINTENANCE OF STATE AND COUNTY HIGHWAYS. 905
Highway Law, §§ 174, 175, 176.

to furnish to the town board prior to the annual audit day due informa-
tion as to the dates, compensation and expenses allowed by them to said
town superintendent from the state repair fund. [Highway Law, § 175,
as amended by L. 1912, ch. 83; B. C. & G. Cons. L., 2d Ed., p. 3527.]

§7. LIABILITY OF STATE FOR DAMAGES.

The state shall not be liable for damages suffered by any person from
defects in state and county highways, except between the first day of May
and the fifteenth day of November on such highways as are main-
tained by the state under such system as the commissioner of highways
may adopt pursuant to section one hundred and seventy, but the liability
for such damages shall otherwise remain as now provided by law,* notwith-
standing the construction or improvement and maintenance of such high-
ways by the state under this chapter; but nothing herein contained shall
be constructed to impose on the state any liability for defects in bridges
over which the state has no control. Within the limits of incorporated vil-
lages the state shall maintain a width of pavement equal to the width of
pavement constructed or improved at the expense of the etate, if a state
highway, or of the state and county, if a county highway, the location of
the state’s portion of such roadway within said incorporated limits to be
determined by the center line of the roadway as shown on the plans on
file with the state highway department, and the state shall be liable for
damages to persons or property only when such damage shall occur as
a result of the defective condition of the portion of improved highway as
above described.’ [Highway Law, § 176, as amended by L. 1910, ch. 570,
L, 1912, ch. 83, L, 1916, ch. 578, and L. 1922, ch. 371.]

§8. ADDITIONAL WIDTH OR DIFFERENT TYPE OF CONSTRUCTION UNDER
REPAIR CONTRACTS.

Whenever in the maintenance and repair of state and county highways
the commission shall have determined upon the necessity of resurfacing
such highway, the county, town or village wherein the highway is located
may petition the commission to provide an additional width or a different
type of pavement, or both, in the plans providing for such resurfacing. The

 

-

4. Under Highway Law, sec. 74, ante, a town is liable for injuries sustained “by
reason of any defect in its highways or bridges existing because of the neglect of
any town superintendent of such town.” There can be no liability imposed upon the
town under this section unless it appcars that the defect causing the injury was duc
to the neglect of the town superintendent.

5. The effect of this section and subd. 2 of § 3 of the Highway Law is to limit
the liability which the state has assumed to the consequences resulting from defects
in the highway which it has constructed and the maintenance of which it has under-
taken and also from conditions affecting public travel thereon. Thus, it has beer
intimated that the state would be liable for the consequences of a defect in a
wooden driveway or approach across a ditch bordering an improved county highway,
resulting in damages to one using the improved highway. Kibner v. State (1921),
114 Mise. 444, 186 N. Y. Supp. 654,
905a HIGHWAYS AND BRIDGES.
Highway Law, §179.

additional expense of such widening or different type of construction shall
be borne wholly by such county, town or village and the provisions of sec-
tions one hundred and thirty-seven and one hundred and thirty-eight-a and
one hundred thirty-eight-b shall apply to such additional width or differ-
ent type of construction under such repair contract in the same manner as
under a construction contract as provided in those sections. [Highway Law,
§ 177, as added by L, 1916, ch. 578, and amended by L. 1922, ch. 371.]

§9. SPRINKLING; REMOVAL OF FILTH AND REFUSE,

Upon petition signed by majority of the taxpayers owning property abut-
ting upon an improved state or county highway and filed with the town
clerk, the town board may set aside any section of such highway
outside of a village and contract for the sprinkling of the roadbed with

 

«As to evidence justifying a recovery in an action against the state for death
of automobilist by reason of failure to guard sharp curve in highway, see Johnson
vy. State (1919), 186 App. Div. 389, 173 N. Y. Supp. 701, Affd. 227 N. Y. 610, 125 N. E.
919. See, also, Gutekunst v. State (1919), 188 App. Div. 316, 177 N. Y. Supp. 192.

A road is maintained “under the patrol system” even in those months when the
patrolman is not actually at work on the road, because of climatic conditions.
Borden v. State (1920), 113 Misc. 232, 184 N. Y. Supp. 285. See, also, Gutekunst v.
State (1919), 188 App. Div. 316, 177 N. Y. Supp. 192.

Defects in highway; when state not liable. Claimant in broad daylight was driving
his motoreyecle along a state highway maintained under the patrol system. By
reason of a depression in the left side of the roadway, the motor-cycle was deflected
in its course and claimant went beyond the edge of the paved road and, because of
another depression or a drop of about seven inches, he was thrown and sustained
injuries, He testified that at the time of the accident, the dirt part of the road was
muddy but no claim was made that the state had actual notice of the depression and
there was no evidence as to the time the alleged defects in the highway, the cause
of the accident, had existed, nor was any evidence showing the breadth of the
depression where claimant was injured. Held, that it appearing that he had a
level and straightaway course and a brick surface road sixteen fect wide and that
there was no reason why he should be on the extreme left of the road at the time,
his claim for damages should be dismissed. White v. State (1920), 113 Mise, 595,
185 N. Y. Supp. 237.

To place gravel upon the dirt part of a State highway worn away from time to
time and thereby bring it up to the level of the macadam surface part of the road
is not negligence on the part of the State. Best v. State (1921), 114 Misc, 272, 186
N. Y. Supp. 359.

Bridges more than five feet in span are expressly excluded from the jurisdiction
and control of the Highway Commission. Learn v. State (1920), 113 Mise. 225, 184
N. Y. Supp. 281.

Liability of State for failure to make repairs to culvert resulting in flooding of
land. Borden v. State (1920), 113 Misc. 232, 184 N. Y. Supp. 285.

State held not liable for injury sustained by fall in privately constructed sidepath.
Kibner v. State (1921), 114 Misc. 444, 186 N. Y. Supp, 654.

ct
MAINTENANCE OF STATE AND COUNTY HIGHWAYS. 905b
Highway Law, §§ 180-182.

water and also contract for the removal of filth and refuse therefrom. No such
contract shall be entered into unless previously approved by the county superintend-
ent. The amount of any such contract so entered into shall be assessed upon the
property abutting upon such section in the proportion which the frontage of each
parcel thereof bears to the length of the section exclusive of intersecting highways.
Such assessment shall be made, levied and collected in the same general manner,
and at the same time and by the same officers as the town taxes of said town are
pees levied and collected. [Highway Law, § 179; B. C. & G. Cons. L., 2d Ed.,
p-. 3529,

§ 10. PAYMENT BY COUNTIES OF A PORTION OF THE COST OF
CONSTRUCTION UNDER REPAIR CONTRACTS.

Whenever in the maintenance and repair of state and county highways under the
provisions of article seven of this chapter, the commission shall have determined
upon the necessity of resurfacing, reconstructing or repairing such highway, the
county wherein the highway is located may by resolution provide that not to exceed
thirty-five per centum of the estimated cost of such resurfacing, reconstructing or
repairing shall be borne by the county. The provisions of sections one hundred and
twenty-five, one hundred and twenty-six, one hundred and twenty-seven, one
hundred and twenty-eight, one hundred and thirty, one hundred and thirty-two, one
hundred and thirty-four, one hundred and thirty-five, one hundred and thirty-six,
one hundred and thirty-seven, one hundred and thirty-nine, one hundred and forty-
one, one hundred and forty-one-a, one hundred and forty-two, one hundred and
forty-two-a, one hundred and forty-eight, one hundred and forty-nine, one hundred
and forty-nine-a, one hundred and fifty, one hundred and fifty-one, one hundred
and fifty-two, one hundred and fifty-three, one hundred and fifty-four, one hun-
dred and fifty-five and one hundred and fifty-six of this chapter shall apply +o
such resurfacing, reconstructing and repairing of state and county highways in
the same manner as to the original construction thereof in so far as the same may
be applicable thereto. [Highway Law, § 180, as added by L. 1917, ch. 91.]

§ 11. IMPROVEMENT OF ALIGNMENT AND OF DANGEROUS CONDITIONS
ON REPAIR WORK.

Whenever in the maintenance and repair of state and county highways under
the provisions of article seven of this chapter, the commission shall have determined
upon the necessity of a change in location for the improvement of alignment or of
dangerous conditions on a limited section of such highway, and provided all necessary
right of way shall have been acquired in accordance with section one hundred and
forty-eight of article six, the commission may proceed with such improvement. The
cost thereof, exclusive of the cost of providing right of way, shall be paid from the
funds which are provided by section one hundred and seventy-one of article seven.
[Highway Law, § 181, as added by L. 1920, ch. 560.]

§12. COUNTY ROADS TAKEN OVER FOR MAINTENANCE AS STATE OR
COUNTY HIGHWAYS.

The commissioner may inspect all roads which have been constructed or improved
under any general or special law by the county, town or village which are indicated
for improvement in sections one hundred and twenty and one hundred and twenty-
two of this act, and if any such road is properly constructed he shall make an order
directing that such highway be taken over by the state for maintenance as a state
or county highway, in the manner provided in article six-a and seven of this
chapter. Such order shall be served upon the chairman of the board of supervisors
and a certified copy thereof filed in the office of the county clerk and also in the
office of the state comptroller, [Highway Law, § 182, as added by L. 1921, ch. 180.]

\
906 HIGHWAYS AND BRIDGES.

Explanatory note.

CHAPTER XLIL

LAYING OUT, ALTERING AND DISCONTINUING HIGHWAYS; PRIVATE
ROADS.

EXPLANANTORY NOTE.

Proceedings to Lay Out, etc, Highways.

A town superintendent of highways must follow the proceedings
described in this chapter, in laying out, altering or discontinuing high-
ways. These proceedings are judicial in their character, and, for the
most part, involve an application to the court, the appointment of com-
missioners, the taking of testimony and the assessment of damages.
The superintendent and other persons interested will usually require the
services of attorneys. There must be a strict compliance with the
requirements of the statute, and reference must be made thereto in

accomplishing the desired object.

Private roads.
This chapter also contains the provisions of chapter VIII of the

Highway Law, relating to laying out private roads. Application for a
private road must be made to the town superintendent, whose duty it is
to appoint a time and place for a hearing before a jury to determine
as to the necessity of such road and to assess the damages. The practice
is prescribed by the statute and must be closely abserved.

[High Law, art. VIII.]

. Survey for the laying out of a highway.

. Highways by dedication.

. Application.

. Application for condemnation commissioners.

. Appointment of condemnation commissioners and their duties.

. Notice of meeting.

SEcTION

Aor wD
LAYING OUT, ETC., HIGHWAYS; PR.VATE ROADS. 907

SEcTION 7.
8.
9.

10.
11,
12.
13.
14.
15.
16.
47.
18.
19.
20.
21.
22,

23.
24,
25.
26.

Highway Law, § 190.

Decision of condemnation commissioners in favor of application.
Damages in certain cases, how estimated.

Decision of condemnation commissioners denying application.
Motion to confirm, vacate or modify.

Limitations upon laying out highways.

Laying out highways through burying-grounds.

Costs, by whom paid.

Damages assessed and costs to be audited.

When officers of different towns disagree about highway.
Difference about improvements.

Highway in two or more towns.

Laying out, dividing and maintaining highway upon town line,
Final determination, how carried out.

Highways by use.

Fences to be removed.

Private road.

Jury to determine necessity and assess damages.
Copy application and notice delivered to applicant.
Copy and notice to be served.

List of jurors, and drawing jurors.

27-28 Delivery, extension and return of waiver.

29.
30.

31.

32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44,
45.
46.

47.
48.
49.
50.
51.
52.

Jury to determine and assess damages; fees of justice of peace and
constable.

Their verdict.

Value of highway discontinued.

Papers to be recorded in town clerk’s office.

Damages to be paid before opening the road.

Fees of officers.

Motion to confirm, vacate or modify.

Costs of new hearing. 2

For what purpose private road to be used.

Highways or roads along division lines.

Adjournments.

Widening roads, petition.

Powers and duties of commissioners.

Notice of decision to supervisors.

Widening, how constructed.

Actions to compel widening, how affected by petition.

Highways abandoned.

Highways in lands acquired by the United States, for fortification

purposes, deemed abandoned.

Discontinuance of highway.

Description to be recorded.

Damages caused by discontinuance.

Papers, where filed.

Costs of motion. .

Changing location of highways over certain lands owned and oceupied
by the state.

§ 1. SURVEY FOR THE LAYING OUT OF A HIGHWAY.

Whenever the town superintendent shall lay out any highway, either
upon application to him or otherwise, he shall notify the district or county
908 HIGHWAYS AND BRIDGES.
Highway Law, § 191.

superintendent, whose duty it shall be to either make a survey, or cause
the same to be made, and the town superintendent shall incorporate the
survey in an order to be signed by him, and to be filed and recorded in
the office of the town clerk, who shall note the time of recording the same.!
[Highway Law, § 190; B. C. & G. Cons. L., p. 2276.]

§ 2. HIGHWAYS BY DEDICATION.

Whenever land is dedicated to a town for highway purposes therein, the
town superintendent may with the consent of ‘the town board, either with

 

1. Board of supervisors may require commissioners to make surveys of high-
ways. County Law, sec. 71, post.

Sufficiency of survey. The survey or description of the highway laid out, in-
cluded in or made part of the order should be definite and certain. It should
clearly specify the highway as to line and width. If there is no width ex-
pressed in it, and it is wholly uncertain both as to starting point and terminus,
it is insufficient. People ex rel. *Vaters v. Diver, 19 Hun 263. The omission to
incorporate a survey in the order, or to make it a part of it, is fatal. Pratt v.
People, 13 Hun 664. The survey, to be sufficient, should show distinctly the
line of the proposed road so that persons through whose lands the road is to be
laid out, and others interested, can determine its route; there must be no un-
certainty in the description of the property to be taken; the description should
be such that from it alone, without resort to other papers, the road could be
laid out. Matter of be Camp, 19 App. Div. 564, 46 N. Y. Supp. 293; Pratt v.
People, 138 Hun 664. The objects at each end of the line of the highway, as
pointed out in the record, will direct the course of the line, despite the fact
that the direction of the compass between them as given in the description, is
inaccurate. Johnson v. I oveless, 18 Wk. Dig. 49.

It has been held that it is sufficient to run a single line as the center of the
highway, with definite points of starting and ending, since the width being
prescribed by statute the boundaries of the highway would be a matter of simple
calculation. People ex rel. Hawver v. Commissioners of Highways of Redhook,
13 Wend. 310; People ex rel McFarland v. Commissioners of Highways of
Salem, 1 Cow. 23; Tucker v. Rarkin, 15 Barb. 471.

Incorporation of survey in order. The objection to the order of the com-
missioners, laying out the road, that it did not incorporate the survey, is of no
force, where the survey was attached to the order. Van Bergen v. Bradley, 36
N. Y. 316. A substantial compliance with the section requiring incorporation
of an order in the survey is sufficient. Tucker v. Rankin, 15 Barb. 471. Where
the recital of the laying out of the highway and the survey, though dated
several months before, are recorded immediately after the order in the book of
town records, and the order purports to accord with a survey and both papers
describe the same highway, the statute requiring the survey to be incorpcrated
in the order is substantially complied with. McCarthy v. Whalen, 19 Hun 503;
affirmed, 87 N. Y. 148.

Recording order. The clerk’s act in recording an order of a town superin-
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS, 909

Highway Law, § 191.

or without a written application therefor, and without expense
to the town make an order laying out such highway, upon filing
and recording in the town  clerk’s office with such order

a release of the land from the owner thereof? A highway

 

tendent is ministerial. He has no discretion in its performance. He cannot
refuse to file end record the order because it is improperly executed. People
v. Collins, 7 Johns. 549.

2. For form of order of town superintendent laying out highway on release
of land by owners, see Form No. 120, post. For form of dedication and release
by owner, see Form No 121, post,

Method of creating highways. Public highways may be created in four ways:
(1) By proceedings under the statute; (2) by prescription or used for twenty
years; (3) by dedication through offer and implied acceptance; (4) by dedica-
tion through offer and actual acceptance. Cohoes v. D. & H, C. Co., 184 N. Y.
$97; 31 N. EH. 887, and authorities cited; Town of Corning v. Head, 86 Hun, 12;
33 N. Y. Supp. 360.

Dedication and acceptance. Though a highway has never been laid out or
recorded as a highway, if it has been dedicated and used as such for more
than twenty years and accepted and worked by the authorities it becomes a
legal highway. Town of Corning v. Head, 86 Hun, 12; 33 N. Y. Supp. 360;
McVee v. City of Watertown, 92 Hun, 306; 36 N. Y. Supp. 870.

Where a town for the purpose of straightening a highway shifted it to one side
at the instance and expense of the owner of the abutting land, the owner will be
deemed to have dedicated and the town to have accepted the additional land,
although there was no conveyance. Huber v. Goig (1918), 181 App. Div. 369,
168 N. Y. Supp. 834.

To constitute a highway there must be not only a dedication but there must also
be an acceptance by the public, accompanied either by an official act by the author-
ities competent to accept the highway, or by common or public user; and such an
acceptance is not established by a sale of lots by reference to 4 map on which streets
are laid down; nor by the enjoyment by the purchasers of such lots of the private
easements thereby created; nor by mere public travel, without action by the author-
ities in repairing and maintaining or using the street; nor by the patrolling thereof
by police officers. Matter of Starr Street, 73, Misc. 381.

The grade of a street may be established, without a municipal ordinance, by usage,
-acquiesence and recognition for a period of forty years. Hunt v. Otego, 160 App.
Div. 158, 145 N. Y. Supp. 495.

Dedication alone is not sufficient. There must be either an actual or implied
acceptance. Streets and highways dedicated by individuals to public use, but
not adopted or accepted by the local authorities, or declared to be highways
by statute, are not highways within the meaning of the Highway Law, and there .
910 HIGHWAYS AND BRIDGES.

Highway Law, § 191.

so laid out must not be less than two rods in width,” except that where
such highway is located on a sand beach separated by more than two
miles of water from the main bedy of the town of which it forms a part
and is not an extension or continuation of a public highway already in
use and has erected thereon a board walk not less than one-third the width
of said highway, such highway so laid out may be less than two rods in
width and must not be less than ten feet in width. Section two hun-

dred does not apply to a highway by dedication. Such town superin-
tendent may also, upon written application and with the written consent
of the town board, make an order laying out or altering a highway,

 

is no law by which a town or its officers can be compelled to keep them in repair.
City of Oswego v. Oswego Canal Co., 6 N. Y. 257; Bissell v. N. Y. Cent. R. Co., 23
N. Y. 61; Clements v. Village of West Troy, 16 Barb. 251.

A public street or highway cannot be created by mere dedication. There must
also be something amounting to an acceptance of the street as such either by the
public authorities or directly by the public. People ex rel. Washburn v. Common
Council, 128 App. Div. 44, 47, 112 N. Y. Supp. 387.

There must be an acceptance of the dedication by one authorized to act for the
town, Trustees of Jordan v. Otis, 37 Barb. 50; Morse v. City of Troy, 38 Hun, 301;
People v. Underhill, 144 N. Y. 316 39 N. E. 333.

The use by the public of a private way does not make it a public highway, without
proof of dedication and user. Palmer v. Palmer, 150 N. Y. 139, 44 N. E. 966. But
where a highway has been laid out by an order of highway commissioners duly
entered, made with the full consent of the owners of the land through which it
runs, and such highway was included by such commissioners in one of the road
districts of the town, it must be deemed a duly dedicated public highway, although
its use by the public has been limited, and its boundaries as so used had not been
determined by the commissioners. Wakeman v. Wilbur, 147 N. Y. 657, 661; 42

N. E. 341.

When filing map showing a certain street is not a sufficient dedication thereof.
“tillman v. City of Olean (1929), 228 N. Y, 322, 127 N. E. 267, revg. 184 App. Div.
323, 171 N. Y. Supp. 445.

An acceptance may be proved by long public use or by the acts of the proper
public authorities in recognizing and adopting the highway. People v. Lochfelm,
102 N. Y. 1; Cook v. Harris, 61 N. Y. 448; Holdane v. Cold Spring, 21 N. Y. 474;
Denning v. Roome, 6 Wend. 651; Hunter v. Trustees, 6 Hill, 407; McMannis v.
Butler, 51 Barb. 436. The use must be the main use of substantially the entire
highway. McCutcheon v. Terminal Station Commission, 88 Misc. 601, 151 N. Y.
Supp. 451, affd. 168 App. Div. 301. Even the laying out of a highway on a map
prepared by municipal authority will not suffice to constitute a lane as a highway,
where it appears that the public were excluded therefrom during a portion of the
time by barriers and fences. Farmers’ & M. Sav. Bank v. Lockport, 89 Mise. 157, 151
N. Y. Supp. 865. See, also, as to evidence of acceptance, Matter of Beach Avenue,
70 Hun, 351, 24 N. Y. Supp. 37; Eckerson v. Haverstraw, 6 App. Div. 102, 39 N. Y.
Supp. 635.

Consent to close a highway must be by a majority of the town board, and the
subsequent signature of one member of the board, procured after adjournment, is
ineffective to make a majority. Greene v. Goodwin Sand & Gravel Co., 72 Misc. 192.

Where a map was filed in 1836, laying out a tract of land into blocks of build-
ing lots bounded by streets, and subsequent conveyances of portions thereof
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 910a
Highway Law, § 191.

or discontinuing a highway, which has become useless since it was laid
out, upon filing and recording in the town clerk’s office, with such appli-

 

were made with reference to such map, such acts amounted to a dedication of
the land within the lines of the streets as designated on such map for street
purposes, and the subsequent adoption in 1910 by the common council of the
city in which the lands lay of a resolution approving a petition of adjoining
lot owners to open a portion of one of the streets was an acceptance of it and
constituted the same a highway. Stillman v. City of Olean, 72 Misc. 196,

Order closing highway. Where an order, made by the highway commis-
sioners of a town, closing a portion of a highway, is filed in the town clerk’s:
Office, but is not recorded by him as required by the above section, the failure to
record the order does not invalidate the proceedings of the commissioners.
People ex rel. Dinsmore v. Vandewater, 83 App. Div. 60, 82 N. Y. Supp. 626.

Revocation of dedication. A dedication of a highway once made and ac-
cepted cannot be revoked. Cook v. Harris, 61 N. Y. 448. But if a dedication is
not accepted within a reasonable time, the owner may recall the dedication;
and he may at any time recall the dedication if no adverse rights have attached
prior thereto. What is reasonable time must depend upon the particular cir-
cumstances of the case. Matter of Opening of Beck Street, 19 Misc. 571, 44
N. Y. Supp. 1087; Lee v. Sandy Hill, 40 N. ¥Y. 442; Matter of Fox Street, 54 App.
Div. 479, 67 N. Y. Supp. 57; Buffalo v. D., L. & W. R. R. Co., 68 App. Div. 488;
74 N. Y. Supp. 343. Such dedication cannot be revoked after a user of twenty
years regardless of acceptance, Eckerson v. Haverstraw, 6 App. Div. 102; 39
N. Y. Supp. 635.

Mere lapse of time does not effect an abandonment or revocation of dedication
of a highway. Stillman v. City of Olean, 72 Misc. 196.

Where an owner of land dedicated it to the public for a highway, but died
before its acceptance by the public, her death was held to be a revocation of
the proposed dedication. People v. Kellogg, 67 Hun, 546; 22 N. Y. Supp. 490.

Release by owner. Where the owner of land applied for and consented to
the alteration of a highway which was wholly upon his farm, and himself closed
a part of the highway which was abandoned, and opened and worked the new
part, the failure to record a formal release did not render the order void so as
910b° HIGHWAYS AND BRIDGES.
Highway Law, § 191.

cation, consent and order, a release from all damages from the owners of
lands taken or affected thereby,2” when the consideration for such re-
lease, as agreed upon between such town superintendent, and owner or
owners, shall not in any one case, from any one claimant, exceed three
hundred dollars, and from all claimants one thousand dollars. An
order of the town superintendent, as herein provided, shall be final*
If a highway proposed to be constructed or improved shall deviate
from the line of a highway already existing, the town board of the
town where such highway is located may acquire land for the requisite
right of way. It may also acquire lands for the purpose of obtaining
gravel, stone or other material, when required for construction, to-
gether with a right of way to any pit, quarry, or other place where the
same may be located. The town board may, by resolution, authorize
the supervisor to purchase the lands to be’ acquired for the purposes

to justify the invasion of the closed highway by persons having no rights
except those common to the public. Engleman v. Longhorst, 120 N. Y.
332. Compare People ex rel. Clark v. Commissioner of Highways of Town
of Reading, 1 T. & C. 193, where it was held that the fact the damages had
neither been released nor assessed constitued a complete answer to an
application for a writ of mandamus to open and improve a highway.

Where a release of lands by the owner for highway purposes though
left with the clerk for filing is lost and there is no evidence of its contents,
mandamus will not issue to compel the commissioners to open the highway.
People ex rel. Eastman v. Scott, 75 N. Y. Supp. 410.

The order laying out the highway must either be signed by all the com-
gioners or must show that they were all notified to participate. Fitch v.
Commissioners, 22 Wend. 132; People v. Hynds, 30 N. Y. 470; s. ¢c.,
27 Barb. 94; People v. Williams, 36 N. Y. 441; Simmons v. Sines, 4 Abb.
Dec. 246; Matter of Summitt Street, 3 How. Pr. 26; Matter of Church
Street, 49 Barb. 455; Christy v. Newton, 60 Barb. 332; Chapman v. Swan,
65 Barb. 210; Pratt v. People, 13 Hun, 664; Stewart v. Wallis, 30 Barb. 344.

Injunction to restrain change of highway.—Those living upon a highway

that affords them access to other places may maintain an action to pre-
vent the demolition of a section of the highway, though that portion threat-
ened with destruction is not the part upon which their lands abut and the
abutting owners at the point of demolition consent thereto. Greene v.
Goodwin Sand’ & Gravel Co., 72 Mise. 192.

2a. A strip of land eleven feet wide cannot become a highway by dedi-
cation. Ricketson v. Vilage of Saranac Lake, 73 Misc. 52.

Failure to record order laying out highway.—The provision of this section,
requiring an order laying out a highway to be filed and recorded in the
town clerk’s office, is not mandatory and failure to comply therewith does
not make the town a trespasser. Tomlinson v. Town of Southampton,
143 App. Div. 487, 127 N. Y. Supp. 965.

2b. Filing papers. It is not sufficient, under this provision, to record
release and file application, consent and order; all such papers must be
both filed and recorded. People ex rel. Simmons v. Dowling, 84 Misc.
201, 146 N. Y. Supp. 919.

3. For form of order of town superintendent laying out or altering high-
way with consent of town board, see Form No. 122, post. For form of
release of damages by owners of the land, see Form No. 123, post. For
form of consent of town board, see Form No. 124, post.

 
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. O1L

Highway Law, § 192.

herein specified, but the amount to be paid, for such purposes, to a
single person shall not exceed the sum of two hundred dollars, unless
approved by the county judge and county treasurer, and in no ease
shall such amount exceed the sum of one thousand dollars. The
purchase price of such property shall be a town charge and may by
resolution of the town board, be paid from any funds in such town that
may be legally used for such purposes. Such board may by resolu-
tion authorize the supervisor to borrow money for the purchase of
any such property or right of way, on the faith and audit of the
town by temporary loan in anticipation of the next succeeding tax
levy, or it may authorize the issue and sale of bonds therefor, to be
issued and sold in the same manner as other town bonds. [Highway
Law, § 191, as amended by L. 1915, ch. 322, L. 1921, ch. 84, and L.
1922, ch. 266.]

§ 8. APPLICATION. *

Any person or corporation assessable for highway taxes may make
written application to the town superintendent of the town in which
he or it shall reside, or is assessable, to alter or discontinue a highway,
or to lay out a new highway. [Highway Law, § 192, as amended by
L. 1918, ch. 472, and L. 1919, ch. 195.]

 

4, Who may make application. To give a town superintendent jurisdic-
tion of proceedings to lay out a highway, an application must be made in
writing by a person liable to be assessed for highway labor. Harrington
v. People, 6 Barb. 607.

Any person assessable for highway labor may make the application. Peo-
ple v. Eggleston, 13 How. P. 123.

A person liable to be assessed for. highway labor in one town may initiate
proceedings to lay out a highway located partly in his own town and partly
in another town. People ex rel. Knapp v. Keck, 90 Hun, 499; 36 N. Y.
Supp. 51.

Residents of a village within a town are not proper applicants for the lay-
ing out of a road in the town outside of the village. Commissioners v.
Meserole, 10 Wend. 123.

A municipal corporation assessable for highway taxes in a town may
make application. N. Y.,N. H. & H. R. R. Co. v. Village of New Rochelle,
29 Misc. 195, 60 N. Y. Supp. 904.

Town superintendents of highways, as such, may not make application
to lay out a highway. People ex rel. Bevins v. Supervisors, 82 Hun, 298,
31 N. Y. Supp. 248. But they may lay out a road of their own motion
without any application therefor. Marble v. Whitney, 28 N. Y. 297.

Application by a person liable to assessment is not necessary to confer
jurisdiction upon the town superintendent of highways to discontinue a
road; they have power to discontinue on their own motion, and therefore,
a defective application does not invalidate such proceedings. People ex rel.
Bristol v. Nichols, 51 N. Y. 470.

The appearance of the attorney for the town superintendent of highways
as attorney for the applicants in a proceeding for the improvement of a
highway is not necessarily a sufficient ground to invalidate the proceeding.
Matter of Laidlaw (1914), 162 App. Div. 755, 148 N. Y. Supp. 56.
912 HIGHWAYS AND BRIDGES.

w

Highway Law, § 198.

§ 4. APPLICATION FOR CONDEMNATION COMMISSIONERS.

Whenever the land is not dedicated to the town for highway purposes,
and not released as herein provided, the applicant shall, within thirty
days after presenting the application to the town superintendeng, and after
at least five days’ notice to said town superintendent of the time and place
of the application to the county court, in this section provided for, by veri-
fied petition showing the applicant’s right to so present the same, and that
such application has been in good faith presented, and if the county judge
require on such notice to such parties interested as he shall direct, apply
to the county court of the county where such highway shall be, for the
appointment of three commissioners to determine upon the necessity of
such highway proposed to be laid out or altered, or to the uselessness of
the highway proposed to be discontinued and to assess the damages by
reason of laying out, opening, altering or discontinuing such highway.°

Necessity of application. It is not necessary to the valid laying out of a high-
way that there should have been a written application therefor; the commissioner
may act of his own motion. McCarthy v. Whalen, 19 Hun 503; affd. 87 N. Y. 1483
Gould v. Glass, 19 Barb. 179; People v. Supervisors of Richmond, 20 N. Y. 252.

A proceeding under this section to determine whether a highway has become use-
Jess and should be abandoned, may be maintained although the highway in question
has not yet been opened. Any change of conditions rendering a highway useless
is as effective as if its uselessness had arisen from age and use. Matter of Mc-
Fadden, 96 App. Div. 58, 89 N. Y. Supp. 104.

Sale of property pending application. A proceeding to alter a highway, instituted
by the owner of a farm in the town where the highway is located, is not impaired
by the applicant’s sale of the farm during the pendency of the proceeding and be-
fore confirmation of the report of the commissioners, where the owner released all
claim for damages and in the conveyance reserved the lands released for highway
purposes and for the purposes of the proceeding. Matter of Morse, 69 Misc. 29,
125 N. Y. Supp. 739.

Consent of town board ir jurisdictional and cannot be waived by the board; hence
where such consent has not been obtained the proceeding should be dismissed. Mat-
ter of Fenton (1916), 173 App. Div. 284, 160 N. Y. Supp. 1129.

For forms of applications to ley out, ulter or aiscontinue a highway, see
Forms Nos. 125, 126 and 127, post.

For form of applicat’en to county court for the appointment of commissioners
under the ebove section, sce Form No. 128, post, /

5. Proceedings to determine necessity for highway, or for its alteration or dis-
continuance. Sections 193-208 of the Highway Law provide the procedure for
the determination of the necessity of a highway proposed to be laid out or
altered or the usefulness of a highway proposed to be discontinued. The stat-
ute contemplates that an application shall first be made to the highway com-
missioner as provided in section 192 of the Highway Law, ante, p. 911, and
within thirty days thereafter an application may be made to the County Court
for the appointment of commissioners. See People ex rel. Knapp v. Keck, 90
Hun, 497; 36 N. Y. Supp. 51; People ex rel. Smith v. Allen, 37 App. Div. 248;
55 N. Y. Supp. 1057.

Section 193 of the Highway Law cand the immedictely following sections are
designed to point out the initiatory steps in all proceedings to lay out a new
highway. Matter of Taylor and Allen, 8 App. Div. 395; 40 N. Y. Supp. 839.
There must be a strict compliance with the requirements of the statute in
instituting proceedings relating to the laying out, alteration or discontinuance
of highways. People ex,rel. Scrafford v. Stedman, 57 Hun, 280; 10 N. Y. Supp.
787.
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 913

Highway Law, § 193.

Such application shall be accompanied by the written undertaking of the

 

Waiver by town superintendent. The provision of this section that an appli-
caticn be made to the county court for an order appointing commissioners to deter-
uiine the necessity for the proposed highway may not be waived by the town super-
intendent. Matter of Laidlaw, 153 App. Div. 343, 137 N. Y. Supp. 1076.

When proceedings will lie. The statute does not impose upon the town any
liability for damages sustained by an abutting owner by reason of a change of
grade of a highway. Smith v. Boston & Albany R. R. Co., 99 App. Div. 94, 91
N. Y. Supp. 412. ,

A land owner from whose town a private road leads into another town and
there ends in a cul-de-sac, may properly apply to have this road which has been
used for more than twenty years laid out as a public road to the boundary line
between the towns. Matter of Burdick, 27 Misc. 298, 58 N. Y. Supp. 759.

Sufficiency of application. The above section does not require that an
application to the County Court for the appointment of commissioners in a
proceeding to lay out a highway shall contain affirmative allegations that
the land proposed to be taken has not been dedicated to the town for high-
Way purposes, or has not been released by the owner for that purpose, or
that it has been made within thirty days after its presentation to the com-
missioners of highways, and the failure of the applicant to allege such facts
does not deprive the court of jurisdiction to entertain the proceeding. Matter
of Buell, 168 N.-Y. 428. The petition must show that the petitioner was
assessable in the town and that the land to be taken for the new highway
was not dedicated to the town for highway purposes or released by the owners.
Matter of Pugh 46 App. Div. 634, 61 N. Y. Supp. 1145, reversing 22 Misc. 43,
49 N. Y. Supp. 398.

Proceedings for discontinuance. A proceeding for the appointment of ‘com-
missioners to determine whether a highway has become useless and should be
abandoned, may be maintained although the highway in question has not yet
been opened nor the damages been paid for the same. Matter of McFadden,
96 App. Div. 58, 89 N. Y. Supp. 104.

A petition for the discontinuance of a highway need not set forth any facts
except such as are required by this section; it need not allege that the portion of
the highway proposed to be discontinued is useless. Matter of Rushmore, 57
Misc. 555, 109 N. Y. Supp. 1099. ‘

Uselessness must be shown. The term “ useless,’ as used in this section,
means “ practically useless,’ and not “absolutely useless.” Matter of Trask,
45 Mise. 244, 92 N. Y. Supp. 156. The uselessness of a highway proposed to be
discontinued, refers to that of a road fcr a time opened, but by change of
circumstances losing its usefulness; not to a uselessness existing at the time
it was laid out. People ex rel. Miller v. Griswold, 67 N. Y. 59. Any change
of conditions rendering a highway useless is as effective as if its uselessness
bad arisen from age and use. Matter of McFadden, 96 App. Div. 58, 89 N. Y.
Supp. 104. To authorize the discontinuance of a highway, the weight of
evidence must show and the commissioners must find that it is useless; a
finding that it is not necessary, or that a proposed new road would be better,
is insufficient. Matter of Coe, 19 Misc. 549, 44 N. Y. Supp. 910.

Notice. Omission to give the required notice to persons entitled thereto is
fatal. People ex rel. Willis v. Smith, 7 Hun 17. Notice served upon the after-
noon of June sixth of an application to be made in the morning of June
eleventh for the appointment of commissioners pursuant to this section is
914 : HIGHWAYS AND BRIDGES.

Highway Law, § 193.

applicant executed by one or more sureties, approved by the county judge,*
to the effect that if the commissioners eppointed determine that the pro-
posed highway or alteration is not necessary or that the highway pro-
posed to be discontinued is not useless, the sureties will pay to the com-
missioners their compensation at the rate of four dollars for each day
necessarily spent and all costs and expenses necessarily incurred in the
performance of their duties, which amount shall not exceed the sum of one
hundred dollars. Whenever the town superintendent of highways of any
township shall determine that public necessity requires the laying out
of a new or additional highway, and the land thereof cannot be obtained
by the dedication of the owners thereof, he may apply to the town board
of his town for permission to institute a proceeding to acquire so much land
as may be necessary to lay out such new or additional highway, and when
such consent shall have been given by the town board of such town, the
said town superintendent of highways may apply to the county court of
the county in which such proposed highway is situated, for the appoint-
ment of commissioners in like manner as is provided by this section where
such application is made by any person or corporation assessable for high-
way taxes, except that when such application shall be made by the town
superintendent of highways, that at least five days’ notice of the time and
place of the application shall be given to the owners of the lands sought
to be acquired, providing such owners can be ascertained by such town
superintendent, or if the owners thereof are not known to the town super-
intendent, by the serving of a copy of the notice of such application upon
tiie occupants of said premises. When such application is made by the town

 

five days’ notice within the meaning of the statute. Matter of Niel, 55 Misc. 317,
106 N. Y. Supp. 479.

Waiver of notice. Although town superintendents are entitled by this section
to five days’ notice of the application to lay out a new highway, they waive such
notice by appearing before the county court without objection. Matter of Wood,
111 App. Div. 781, 97 N. Y. Supp. 871. The town superintendent, who is the only
person entitled as a matter of right to notice of the application, has the power to
waive such notice and appear without notice. Matter of Wood, 107 App. Div. 514,
95 N. Y. Supp. 260.

Employment of attorneys. Town superintendents upon receiying notice of an
application for the appointment of commissioners to lay out a highway may employ
attorneys to oppose such application, and the expense thereof may be paid by them
and thereafter audited by the town board. McCoy v. McClarty, 53 Misc. 69, 104
N. Y. Supp. 80. But compare People ex rel. Bevins v. Supervisors, 82 Hun 298, 31
N. Y. Supp. 248. ,

6. The undertaking of the applicant is insufficient unless it is approved by
the judge as required in the above section. Matter of Fanning, 26 App. Div. 627;
50 N. Y. Supp. 1126.

An omission to file the undertaking of commisrioners under section 193 of the
Highway Law may be corrected under section 721 of the Code of Civil Procedure.
Matter of Laidlaw, 162 App. Div. 755, 148 N. Y. Supp. 56.
LAYING OUT, ETC., HIGHWAYS; FRIVATE ROADS. 915

Highway Law, § 194.

superintendent of highways, no undertaking shall be required of the ap-
plicant.?. [Highway Law, § 195, as amended by L. 1910, ch. 344.]

§ 5. APPOINTMENT OF CONDEMNATION COMMISSIONERS, AND
THEIR DUTIES.

Upon the presentation of such petition, the county court must appoint
three disinterested freeholders, who shall not be named by any person
interested in the proceedings, who shall be residents of the county, but
not of the town wherein the highway is located, and who shall not be
related by consanguinity or affinity within the sixth degree to the appli-
cant or to any person interested in the proceeding or to the owner of any
lands to be taken or affected by the laying out, alteration or discontinuance
of a highway, as commissioners to determine the questions mentioned in
the last section. They shall take the constitutional oath of office, and

 

 

7. Expense of proceedings. The intent of the statute is, if the proposed
improvement should be carried into effect, the costs and expenses occasioned
by it should be defrayed by the town, but in case of a determination ad-
verse to the proposed improvement the expense should be borne by the
applicant. See Highway Law, sec. 202, as to costs in cases of assessment of
damages, post, p. 924. In the case of Matter of Miller, 9 App. Div. 260;
41 N. Y. Supp. 581, a proceeding instituted by a private individual for the
laying out of a highway failed because the owner of a brick yard, through
which the highway was laid out, did not consent, and because the highway
commissioners did not certify that the public interests would be promoted
by the opening of the highway. It was held that although the commis-
sioners appointed by the court reported in favor of the highway that it was
improper for the County Court to impose upon the town the payment of the
fees of the commissioners; the town cannot be made responsible for such
fees unless there is a valid asessment of damages, and in no case can the
town be chargeable where the proposed improvement fails. The limit of
the sum chargeable to the applicant is fixed at $50, and where this amount
has already been paid as costs of the adverse parties the applicant cannot be
compelled to pay the compensation of the commissioners. Patton v. Miller,
28 App. Div. 517; 51 N. Y. Supp. 202.

8. For form of order of County Court appointing commissioners, see Form
No. 129, post. For form of notice to commissioners of their appointment,
see Form No. 130, post.

Qualifications of commissioners. Commissioners appointed to determine
as to the usefulness of a highway must be freeholders at the time of their
appointment. Matter of Trask, 81 App. Div. 318, 81 N. Y. Supp. 53. As
to what constitutes a disinterested freeholder, see, County of Orange v.
Storm King Stone Co. (1920), 229 N. Y. 460, 128 N. E. 677, revg. 191
App. Div. 329, 181 N. Y. Supp. 660.

Where a notice and petition in proceedings instituted to lay out a highway
state all the facts required by the statute the county court may make an
order appointing commissioners, the effect of which is an adjudication that
the persons appointed are eligible. The fact that it does not appear in the
916 HIGHWAYS AND BRIDGES.
Highway Law, § 194.

appoint a time and place at which they shall all meet to hear the town
superintendent and supervisor of the town where such highway is situated,
and others interested therein.® They shall personally examine the highway
described in the application, hear any reasons that may be offered for
or against the laying out, altering or discontinuing of the highway, and
assess all damages by reason thereof.1° They may adjourn the proceedings

 

order that such commissioners were “disinterested freeholders” residing in
the county is not a defect affecting the court’s jurisdiction. Matter of Baker,
173 N. Y. 249. Statement that commissioners were freeholders allowed to
stand in return to certiorari although not appearing in the record. People
ex rel. Lovell v. Melville, 7 Misc. 214, 27 N. Y. Supp. 1101.

Order appointing commissioners. If the petition has been presented in good
faith, it is the duty of the county court to appoint the commissioners asked
for; the provisions of this section are explicit in this respect. Matter of
McFadden, 96 App. Div. 58, 89 N. Y. Supp. 104.

Where a town superintendent, served with notice of an application for the
appointment of commissioners under this section, fails to appear upon such
application but afterwards appears before the commissioners then appointed
and opposes the opening of a highway, he waives all irregularities in the
appointment of the commissioners. Matter of Niel, 55 Misc. 317, 106 N. Y.
Supp. 479. ‘

An order appointing commissioners in proceedings to lay out, alter and extend a
highway may be filed nunc pro tune after the commissioners have acted. Matter of
Laidlaw (1914), 162 App. Div. 755, 148 N. Y. Supp. 56.

9. The constitutional oath of office required of commissioners appointed,
under this section means the oath prescribed in art. 13, § 1, of the Constitution,
requiring among other things, an oath to support the federal and state Constitu-
tions; this requirement is mandatory, and where it is not embodied in the oath taken
the proceeding is void and objections may be taken on the motion to confirm their
decision. Matter of David, 44 Mise. 192, 89 N. Y. Supp. 812. The taking of such
oath is necessary to give the commissioners jurisdiction, and the parties to the
proceedings have no right to waive an omission. People v. Connor, 46 Barb. 333.
Failure of commissioners to take the constitutional oath of office renders t'eir pro-
ceedings ineffectual and void. Matter of Thompson, 70 Misc. 285, 128 N. Y. Supp.
604.

Place of meeting. It is usual in these proceedings for the commissioners to
meet as near to where the highways proposed to be laid out or discontinued are
located, as possible, but there is nothing in the statutes nor in the decisions of the
courts which compel the commissioners to have the hearings at any particular place
in the town where the highways are located. Matter of Coe, 19 Misc. 549, 551; 44
N. Y. Supp. 910. E

10. Hearing before commissioners. Owners of land affected by the discon-
tinuance of a highway, although not abutting thereon, are entitled to be heard in
opposition to the proceedings to discontinue. Such owners cannot be required by
the commissioners to deposit a sum of money as a condition of being heard in oppo-
sition to the application. Matter of Coe, 19 Misc. 549; 44 N. Y. Supp. 910.

The commissioners appointed by the county court are not bound to follow the
route of the petition for the road with precision, and an extension of one of the
corners further than described in the petition is not erroneous if thereby a hetter
road is obtained. People ex rel. Cecil v. Carman, 69 Hun, 118, 23 N. Y. Supp. 386.
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 917

Highway Law, §§ 195, 196.

before them from time to time, issue subpoenas and administer oaths in
such proceedings, and they shall keep minutes of their proceedings, and
shall reduce to writing all oral evidence given before them upon the
subject of the assessment of damages.1!_ They shall make duplicate certifi-
cates of their decision, and shall file one in the town clerk’s office of the
town, and the other, with such minutes and evidence, in the county clerk’s
office of the county in which the highway or proposed highway is located.
[Highway Law, § 194; B. C. & G. Cons. L., p. 2285.]

§ 6. NOTICE OF MEETING.

The applicant shall cause, at least eight days previous, written or printed
notice to be posted up in not less than three public places in the town
specifying, as near as may be, the highway proposed to be laid out, altered
or discontinued, the tracts or parcels of land through which it runs, and
the time and place of the meeting of the commissioners appointed by the
county court to examine the highway as mentioned in the last section.”
Such notice shall also, in like time, be personally served on the owner
and occupant of the land, if they reside in the town, or by leaving the same
at their residence with a person of mature age; if they do not reside
in the same town, or service cannot be made, a copy of such notice shall
be mailed to such owner and occupant, if their post-office address is known
to the applicant or ascertainable by him upon reasonable inquiry. If
the highway proposed to be laid out shall cross a railroad the applicant
shall also cause notice of the time and place of the meeting of the com-
missioners to be given to the railroad company as required by section
ninety of the railroad law. [Highway Law, § 195, as amended by L.
1912, ch. 246; B. C. & G. Cons. L., p. 2287. ]

§ 7 DECISION OF CONDEMNATION COMMISSIONERS IN FAVOR OF AP-
PLICATION.
Ifa majority of the commissioners appointed by the county court shall

 

Evidence, Error in the admission and exclusion of evidence relating to dam-
ages which would be sustained by reason of the construction of the proposed
road, will authorize the reversal of order based upon the decision of the com-
missioners. Matter of Pugh, 46 App. Div. 634, 61 N. Y. Supp. 1145, revg. 22
Misc. 43, 49 N. Y. Supp. 398.

Adjournment. A majority of the commissioners have power to adjourn.
Matter of Newland Avenue, 15 N. Y. Supp. 63; 38 N. Y. St. Rep. 796.

11, Issue of subpoenas and administering oaths. Such commissioners being
authorized to issue subpoenas and take testimony have power to compel the
attendance of witnesses and the giving of testimony by such witnesses. See
Code Civ. Proc., secs. 854-862. :

12, For form of notice of the meeting of commissioners, see Form No. 131,
post; for form of affidavit of posting and serving of such notice, see Form No.
132, post, ‘
918 HIGHWAYS AND BRIDGES.
Highway Law, § 196.

determine that the highway or alteration applied for is necessary, or that
the highway proposed to be discontinued is useless, they shall assess all
damages which may be required to be assessed by reason thereof and make
duplicate certificates to that effect.'* If the petition is for the laying
out of a highway, the commissioners shall also include in their certificates
what the probable cost would be of laying out and completing the pro-
posed highway, in their opinion, based upon the evidence given before

 

13. For form of certificate of commissioners in favor of laying out, altering
or discontinuing a highway, see Form No. 133, post.

Determination as to necessity. To constitute a public necessity, it is not
required that the entire community, or even a considerable portioa of it,
should directly participate in the benefits to be derived from the property
taken. Matter of Town of Whitestown, 24 Misc. 150, 53 N. Y. Supp. 397. The
statute contemplates that the question of necessity shall be decided by the
commissioners, not by the court. Kelsey v. King, 32 Barb. 410.

Where the main object of a proceeding taken ostensibly to lay out a public
highway, is to furnish access to the lot of an individual, there is no public
necessity. In such a case the decision of the commissioners in favor of laying
out the highway should be set aside, and the individual remitted to her
right to apply for a private road. Matter of Lawton, 22 Misc. 426, 50 N. Y.
Supp. 408.

Assessment cf camages. Where an owner of land has previously offered to
release the same for highway purposes it was nevertheless held that he was
entitled to reasonable compensation where proceedings were brought for the
determination of the necessity of the highway, and that an award giving nom-
inal damages only vas erroneous. Matter of the Terrace, 15 N. Y. Supp. 775;
39 N. Y. St. Rep. 270.

The names of the property owners and the amount of damages awarded to
each should be contained in the certificate; but if the property owners are
described without being named it is sufficient. Granger v. Syracuse, 38
How. Pr. 208. If the claims of title to lands damaged are conflicting, it is
proper to award the damages to “‘owners unknown.” Matter of Eleventh
Ave., 49 How. Pr. £08. And where an award of damages was made to the
husband of the owner it was held that the proceedings were not thereby
invalidated. Mitchell v. White Plains, 16 N. Y. Supp. 828; 41 N. Y. St.
Rep. 787.

Separate sums should be awarded as damages to lessor and lessee; but
if the lessor is awarded the entire sum, the lessee may recover from him
his proportionate share. Coutant v. Catlin, 2 Sand. Ch. 485. And where
separate sums are awarded to each, the decision is conclusive as between
them. Idem.; Turner v. Williams, 10 Wend. 139. No arbitrary rule can be
prescribed for determining the damages to a leasehold interest occasioned
py the laying out or discontinuance of a highway The value of such interest
and the damages thereto must depend upon the location and business facilities
of the property and the state of trade in the vicinity where it is located. Matter
of Commissioners, 54 Hun, 313.
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 919

Highway Law, §§ 197-199.

them on the hearings. [Highway Law, § 196; B. C. & G. Cons. L., p.
2288.)

§ 8. DAMAGES IN CERTAIN CASES; HOW ESTIMATED.

The owner of lands within the bounds of a highway discontinued may
enclose the same and have the exclusive use thereof, and the benefits re-
sulting therefrom may be deducted in the assessment of damages caused
by the laying out of a highway through his other lands in place of the dis-
continued highway. [Highway Law, § 197; B. C. & G, Cons. L., p. 2290.]

§ 9. DECISION OF CONDEMNATION COMMISSIONERS DENYING
APPLICATION.

If a majority of the commissioners appointed by the county court shall
determine that the proposed highway or alteration is not necessary, or
that the highway proposed to be discontinued is not useless, they shall
make duplicate certificates to that effect.1* The costs and expenses neces-
sarily incurred by such commissioners in the proceeding shall be indorsed
upon such duplicate certificates, and upon a confirmation of such decision
and of the amount of such costs and expenses by the county court, such
costs and expenses not exceeding one hundred dollars shall be payable
by the applicants.1° [Highway Law, § 198; B. C.:& G. Cons. L., p.
2290.

§ 10. MOTION TO CONFIRM, VACATE OR MODIFY.

Within thirty days after the decision of the commissioners shall have
been filed in the town clerk’s office, any person interested in the pro-
ceedings may apply to the court appointing the commissioners for an
order confirming, vacating or modifying their decision, and such court
may confirm, vacate or modify such decision.*° If the decision be vacated,

 

14. For form of certificate of commissioners denying the application, see Form
No. 132, post.

15. Costs and expenses. The liability of an unsuccessful applicant being
limited to $50, it was held that where the applicant had paid an amount equal
to such sum as the costs of the contesting parties, under an order of the court,
the commissioners appointed to determine the necessity of the proposed high-
way could not recover their fees from him. Patton v. Miller, 28 App.
Div. 517; 51 N. Y. Supp. 202; see notes to see. 193 of the Highway Law, ante,
p. 912.

16. For form of notice of motion to confirm, vacate or modify the de
920 HIGHWAYS AND BRIDGHS.
Highway Law, § 199.

the court may order another hearing of the matter before the same or
other commissioners. If no such motion is made, the decision of the com-
missioners shall be deemed final.17 Such motion shall be brought on

 

cision of the commissioners, see Form No. 135, post. For form of order of
County Court confirming the decision of the commissioners, see Form No.
136, post.

Limitation as to time. The purpose of the above section was to allow
interested parties, who apply to the court for an order vacating or modifying the
decision of the commissioners appointed in a proceeding to determine upon
the necessity of a proposed highway and to assess damages, the period of
thirty days within which to institute the application or motion. It was
not the purpose of the section: to require the application or motion to be
actually made or heard within that time. Matter of Glenside Woolen Mills,
92 Hun, 188; 36 N. Y. Supp. 598. A service of the notice of motion within
thirty days after the filing of the decision is sufficient, under the above section,
although the motion is not returnable until after the expiration of such thirty,
days. Matter of Thompson, 85 App. Div. 221, 83 N. Y. Supp. 209.

Who may make motion. In the case of Matter of Coe, 19 Misc. 549, 550;
44 N. Y. Supp. 910, it was held that a resident taxpayer liable to assess-
ment in a town for highway labor is a person interested within the meaning
of the above section, and may make the motion to vacate the decision of the
commissioners. See, also, under the former law, People ex rel. Ridgway v.
Cortelyou, 36 Barb. 164; People ex rel. Banner v. Temple, 27 Hun, 128.

It is proper that the petitioner, an owner of land through which the road
is to pass, be made a party defendant as a person specially interested; the town
superintendent of the town has no more interest than any other taxpayer and
is not properly made a party; the town may be made a party, but it must
be done by the court before the certiorari is brought to a hearing, and not by the
appellate court. People ex rel. D. L. & W. R. R. Co. v. County Court, 92 Hun
13, 37 N. Y. Supp. 869, affirmed 152 N. Y. 214.

17. Right to modify decision. The Constitution, sec. 7, art. 1, as amended in
1913, provides that “when private property shall be taken for any public use, the
compensation to be made therefor, when such compensation is not made by the
state, shall be ascertained by a jury, or by the supreme court with or without a jury,
but not with a referee, or by not less than three commissioners appointed by a court
of record, as shall be prescribed by law.” The power vested in the County Court to
modify the decision of the commissioners as prescribed in the above section must
be deemed limited by this constitutional provision. The County Court cannot
modify the decision of the commissioners as to the amount of damages to be awarded,
People ex rel. Hanford v. Thayer, 88 Hun, 137, 140; 34 N. Y. Supp. 592. Where a
County Court modifies the decision of commissioners in a manner not asked for by
either party, and affirms the decision as thus modified, the modification of the court
should be stricken out. Matter of Sly, 177 N. Y. 465.

The county court may appoint successive commissions until it is satisfied
that the statute has been complied with, and thereby no provision of the
Constitution is violated if the commissioners are of the right number and
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS, 921

Highway Law, § 200.

upon the service of papers upon adverse parties in the proceeding,
according to the usual practice of the court in actions and special
proceedings pending therein; and the decision of the county court
shall be final, excepting that a new hearing may be ordered as herein
provided, and exceping that any such decision may be reviewed on
appeal upon questions affecting jurisdiction, and rulings and excep-
tions made and taken upon the hearing before the commissioners.
If the final decision be adverse to the applicant, no other application
for laying out, altering or discontinuing the same highway shall be
made within two years! [Highway Law, § 199; B. C. & G. Cons.
L. 2d ed., p. 3550. ]

§ 11. LIMITATIONS UPON LAYING OUT HIGHWAYS,

No highway shall be laid out less than three rods in width, nor
through buildings or any fixtures or erections for the purpose of
trade or manufactures, or any yard or enclosure necessary to the
use and enjoyment thereof, without the consent of the owner or owners
thereof, unless so ordered by the county court of the county in
which the proposed highway is situated; such order shall

 

appointed by the proper authority. Schneider v. City of Rochester, 90 Hun 171, 35
N. Y. Supp. 786.

Modification of decision as to compensation. The provisions of the Const.,
art. 1, § 7, require that the compensation for property taken for public use shall be
ascertained by a jury, or by three commissioners appointed by a court of record.
This precludes the court from modifying the decision of the commissioners as to the
amount of damages awarded for land taken. Matter of Village of Middletown, 82
N. Y. 196 (1880).

The County Court cannot arbitrarily set aside an award made by commissioners,
unless some error of law is plainly manifest. The commissioners in assessing dam-
ages are to be guided by their own judgment, as they view the premises, and can
better estimate the amount of damages sustained than can a court sitting in review
of their action. For the court to arbitrarily set aside their award would be to
usurp the functions which the statute confers upon them rather than a judicial
exercise of its own discretionary power. Matter of Carpenter, 11 Misc. 69; 32 N. Y.
Supp. 826; Matter of Feeney, 20 Misc. 272; 45 N. Y. Supp. 830.

The act gives the landowner two opportunities to be heard, first before the com-
missioners, and second (if the decision be adverse), before the county court, on an
application to vacate or modify the proceeding. The application to the county court
is in the nature of a rehearing upon which new proofs may be presented bearing upon
the questions in controversy. Matter of De Camp, 151 N. Y. 557; Rector v. Clark,
78 N. Y. 21. :

17a. “Final decision ” precluding new application within two years.
Failure of « County Court to appoint commissioners within thirty days after the
service of the application on the town superintendent of highways is not a “ final
decision” adverse to the applicant, within the meaning of this section, so as to
preclude another application within two years. Matter of Laidlaw (1914), 162
App. Div. 755, 148 N. Y. Supp. 56.
922 HIGHWAYS AND BRIDGES.
Highway Law, § 200.

be made on the certificate of the town superintendent of the town or towns
in which the proposed highway is situated, showing that the public interest
will be greatly promoted by the laying out and opening of such highway,
and that commissioners appointed by the court have certified that it is
necessary; a copy of the certificate with eight days’ notice of the time
and place of the hearing before the county court shall be served on the
owners of the land, or if they are not residents of the county upon the
occupants; the county court upon such certificates, and the proofs and
other proceedings therein, may order the highway to be laid out and
opened, if it deems it necessary and proper.* The town superintendent

 

18. For form of certificate of town superintendents to the County Court
for the purpose of laying out highways through an orchard, garden or vine-
yard, see Form No. 187, post.

Highways through buildings, yards and inclosures. The statute ex-
pressly deprives town superintendents of jurisdiction to lay out a road through
any building or any fixtures or erections for the purpose of trade or manu-
facture, or in yards or inclosures necessary for the use and enjoyment
thereof, and provides, in such cases, for a proceeding before the county judge
to be confirmed by the Appellate Division of the Supreme Court. Beardslee
v. Dolge, 143 N. Y. 160, 164; 38 N. E. 205; see, also, Matter of Oakley Ave., 85
Hun, 446; 32 N. Y. Supp. 1146. But a yard cannot be extended to take in a
portion of a highway after it has been laid out by a commissioner. People ex
rel. Miller v. Cornes, 1 Hun, 530; nor can buildings be erected so as to
prevent the opening of a highway after it has been laid out. People ex rel.
Hubbard v. Harris, 63 N. Y. 391.

Ground adjoining a saw mill and used for piling logs, but whose limits are
not fixed by fences or other visible marks nor definite occupation, is not within
the statute. People ex rel. Williams v. Kingman, 24 N. Y. 559.

The provision of the above section prohibiting the laying out of a high-
way through a garden which has been previously cultivated for four years,
does not apply to all land inclosed within a garden. The protection of the
statute extends only to land which is part of a cultivated garden and actually
used as such. People ex rel. Cook v. Commissioners of Highways, 57 N. Y.
549. See, also, People ex rel. Stanton v. Horton, 8 Hun, 357. It does not
follow that a whole field is an orchard because there are fruit trees in some
part of it. People v. Judges of Duchess, 23 Wend. 361, Whether lend is a
‘garden is a question of fact. People ex rel. Clinch v. Moore, 15 N. Y. Supp.
504; 39 N. Y. St. Rep. 881; affd. 129 N. Y. 639.

There is no invasion of an orchard when none of the trees come within
the survey and the owner is not deprived of the beneficial use and enjoyment
of any of his trees by the opening of the highway. Snyder v. Plass, 28 N. Y.
465; Snyder v. Trumpbour, 38 N. Y. 355. It does not follow that the whole
field is an orchard, because there are fruit trees in some part of it: the trees
must be so near as to be harmed by the opening of the road. People ex rel.
Seward v. Judges of Duchess, 23 Wend. 360.

It is the duty of the town superintendent to lay out a road as described in
the report of commissioners, except that by virtue of this section he cannot lay
it out through a building unless especially permitted by the court. Beck v.
Gibbard, 140 App. Div. 745, 126 N. Y. Supp. 296.

Railroad property. A highway cannot be laid out over grounds acquired by a
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 923

Highway Law, § 200.

shall then present the order of the county court, with the certificate
and proofs upon which it was granted, certified by such court, to the
appellate division of the supreme court in the judicial department
in which the land is situated upon the usual notice of motion, served
upon the owner or occupant, or the attorney who appeared for them
in the county court.? If such appellate division of the supreme court
shall confirm the order of the county court, the town superintendent
shall then lay out and open such highway as in other cases.2° The
provisions of this section shall not apply to buildings, fixtures, erec-
tions, yards or enclosures, made or placed on such land after an
application for the laying out and opening the highway shall have
been made. In case the highway to be laid out shall constitute an
extension or continuation of a public highway already in use, and
shall not, as to such new portion, exceed half a mile in length, the
town superintendent may lay out such extension or continuation of
a width of less than three rods, provided, however, that it be not
less than the widest part of the highway of which it is an exten-
sion or continuation." In such case the town superintendent shall

 

railroad for depots and engine houses and for railroad purposes generally. Pros.
Park & C. I. R. R. Co. v. Williamson, 91 N. Y. 552; Albany Northern R. Co. v.
Brownell, 24 N. Y. 3465.

19. For form of order of County Court laying out a highway through an
orchard, etc., see Form No. 138, post. For form of order of Appellate Division
confirming the order of the County Court, see Form No. 139, post.

20. The town superintendent can make no order laying out a road until
after the decision of the appellate division upon the county court’s order affirming
the commissioner’s certificate. People ex rel. Banner v. Temple, 27 Hun 128.

Taxpayer’s action to enjoin town officials from proceeding with the
widening of a highway. Where in a ,taxpayer’s action to enjoin town officials
from proceeding with the widening of a highway the claim is made that the im-
provement involved a taking of yards or inclosures in two out of many pieces of
property along the highway, and therefore confirmation by the court is required by
section 200 of the Highway Law, but only a smail diminution of country door yards
or lawns is ordered in the course of the widening proceeding on due compensation
to the owners, defendants are entitled to judgment for u dismissal of the complaint.
Kubak v. Halsey, 86 Misc. 281, 148 N. Y. Supp. 384.

As to the motion papers on application for confirmation or order, see Matter of
Brown (1917), 180 App. Div. 907, 167 N. Y. Suppo. 1090. . ;

21, Highways less than three rods wide. Under this section as amended, high-
ways less than three rods in width eannot be laid out, without the approval’ of
the County Court and the Apnellate Division, except in the case of the extension of
a, highway already in use, in which case the highwav to be laid out must come within
the terms of the provisions of the amendment. Matter of Adolph, 102 App. Div.
871, 92 N. Y. Supp. 841. ;

The failure of the commissioners to comply with § 200 of the statute by designat-
ing the width of the highway is a defect which the county court has no power under
§ 199 to correct. Matter of Feeney, 20 Misc. 272, 45 N. Y. Supp. 830. Where the
order of the commissioners appointed by the court omits to state the width of the
road, it is too indefinite to be of any force, although when the starting point, courses,
distances’ and terminus have been given as a center line, perhaps the width, to-wit,
three rods, may be inferred. People ex rel. Waters v. Diver, 19 Hun 263; Lawton v.
The Commissioners, 2 Cai. 178; People ex rel. McFarland v. The Commissioners, 1
Cow. 23; Hallock v. Woolsey, 23 Wend. 328. An order to lay out a road, for
a part of the distance, three rods in width, and the residue over the bed of
924 HIGHWAYS, AND BRIDGES.

Highway Law, §§ 201, 202.

specify in his certificate the precise width of the new portion of such
highway, and shall certify that such width is as great at least as the
widest part of the highway of which it is a continuation or extension.
No highway shall be laid out which shall be identical or substantially so
with a highway previously discontinued or abandoned for public pur-
poses within seven years of such discontinuance or abandonment, nor
where other lands or property has been conveyed to the town at the time
of such discontinuance or abandonment, in counties adjoining cities with
upward of one million inhabitants. [Highway Law, § 200, as amended
by L. 1911, ch. 624, L. 1921, ch. 10, and L. 1922, ch. 18.]

§ 12, LAYING OUT HIGHWAYS THROUGH BURYING-GROUNDS.

No private road or highway shall be laid out or constructed upon or
through any burying-ground, unless the remains therein contained are
first carefully removed, and properly reinterred in some other burying-
ground, at the expense of the persons desiring such road or highway, and
pursuant to an order of the county court of the county in which the
same is situated, obtained upon notice to such persons as the court may
direct. [Highway Law, § 201; B. C. & G. Cons. L., p. 2298.]

§ 13. COSTS; BY WHOM PAID.

Tn all cases of assessments of damages by commissioners appointed by
the county court, the costs thereof shall be paid by the town thereof,
except that when reassessment of damages shall be had on the application
of the party for whom the damages were assessed, and such damages shall
not be increased on such reassessment, the costs shall be paid by the party
applying for the reassessment ; and when application shall be made by two
or more persons for the reassessment of damages, all persons who may be
liable for costs under this section shall be liable in proportion to the
amount of damages respectively assessed to the first assessment, and may
be recovered by action in favor of any person entitled to the same.??

 

an old road, which is but two rods wide, is valid. Snyder v. Plass, 28 N. Y.
465; Snyder v. Trumpbour, 38 N. Y. 355.

22. The word “costs” as used in this section does not apply to a personal
debt incurred by a town superintendent, nor can it be made to so apply by
any fair construction of the statute, nor can the word be so construed as
to include a bill for legal services rendered by an attorney employed by the
highway commissioner. People ex rel. Bevins v. Supervisors, 82 Hun, 298:
31 N. Y. Supp. 248. i

Payment of costs. Where the proceeding is declared void, an owner who
had obtained damages for land proposed to be taken, cannot recover from the
town costs incurred by him in the proceeding. Matter of David, 44 Misc. 193,
89 N. Y. Supp. 872.
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 925
Highway Law, §§ 203, 204.

Each commissioner appointed by the court, for each day necessarily em-
ployed as such, shall be entitled to four dollars and his necessary expenses.
[Highway Law, § 202; B. C. & G. Cons. L., p. 2298.]

§ 14. DAMAGES ASSESSED, AND COSTS TO BE AUDITED.

All damages to be agreed upon, or which may be finally assessed, and
costs against the town, as herein provided, ‘shall be laid before the board
of town auditors, or in towns not having a board of town auditors,
before the town board, to be audited with the charges of the commissioners,
justices, surveyors or other persons or officers employed in making the
assessment, and for whose services the town shall be liable, and the amount
shall be placed upon the town abstract and levied and collected in the
town in which the highway is situated, and the money so collected shall
be paid to the supervisor of such town, who shall pay to the owner the
sum assessed to him, and appropriate the residue to satisfy the charges
aforesaid.” If the whole amount of damages and costs to be paid by the
town be less than five hundred dollars, the town board may borrow the
amount thereof, in anticipation of taxes, levied or to be levied therefor,
at a rate of interest not exceeding the legal rate. [Highway Law, § 203,
as amended by L. 1911, ch. 498; B. C. & G. Cons. L.,- p. 2298.]

§ 15. WHEN OFFICERS OF DIFFERENT TOWNS DISAGREE ABOUT HiGH-
WAY.

When the town superintendent of any town or officers of any village or

 

The town is not responsible for the fees of the commissioners except in
the case where there is a valid assessment of damages and there is no responsi-
bility in a case where the proposed improvement fails. Matter of Miller, 9 App.
Div. 260, 41 N. Y. Supp. 581.

Amount of costs. A proceeding under the Highway Law to lay out a highway
is a special proceeding within the meaning of sec. 3334 of the Code of Civil
Procedure and the costs and disbursements are to be allowed at the rate pre-
scribed in sec. 3240 of the Code which provides that the costs in a special
proceeding may be awarded at rates allowed for similar services in an action.
Matter of Peterson, 94 App. Div. 143, 87 N. Y. Supp. 1014. See Matter of School
Street, 162 App. Div. 158, 147 N. Y. Supp. 195.

23. Audit of damages. Where there is in fact no assessment of damages the
supervisors have no duty to perform in relation to the alleged claim of the relator.
People ex rel. Bevins v. Supervisors, 82 Hun, 298, 31 N. Y. Supp. 248. For audit
of damages upon reassessment, see Clark v. Miller, 42 Barb. 255, 266.

Where the supervisors have considered the bill and acted upon it their action
was judicial. If they err the proper way to correct the error is by certiorari and
not by mandamus. People ex rel. Bevins v. Supervisors, 82 Hun, 298, 31 N. Y.
Supp. 248. A claim presented to the board of supervisors, who permit their session
to expire without taking any action upon it, is to be regarded as rejected for the
purpose of a mandamus to compel its allowance. People ex rel. Aspinwall v. Super-
visors of Richmond Co., 20 N. Y. 252.
926 HIGHWAYS AND BRIDGES.
Highway Law, § 204.

city having the powers of town superintendents shall differ with the town
superintendent or superintendents of any other town or with the officers
of such a village or city having the powers of town superintendents in the
same county, relating to the laying out of a new highway or altering an
old highway, extending into both towns,* or a town and a village or city,
or upon the boundary line between such towns or such town and a village
or city, or when a town superintendent of a town in one county shall
differ with the town superintendent of a town or the officers of a village
or city having the powers of town superintendents in another county,
relating to the laying out of a new highway, or the altering of an old
highway, which shall extend into both counties, or be upon the boundary
line between such counties, the town superintendents of both towns or the
officers of the village or city having such powers shall meet on five days’
written notice, specifying the time and place, within some one of such
towns, villages or cities, given by either of such town superintendents, or
officers having powers of town superintendents, to make their determination
in writing, upon the subject of their differences. If they cannot agree,
they or either of them may certify the fact of their disagreement to the
sounty court of that county, if the proposed highway is all in one county,
or if in different counties, or if the county judge is disqualified or unable
to act, to the supreme court; such court shall thereupon appoint three
commissioners, freeholders of the county, not residents of tne same town,
village or city, where the highway is located; or if between two counties,
then freehoiders of another county, who’ shal] take the constitutional oath
of office, and upon due notice to all persons interested view the proposed
highway, or proposed alteration of a highway, administer all necessary
oaths, and take such evidence as they deem proper, and shall decide all
questions that shall arise on the hearing, as to the laying out or altering
of such highway, its location, width, grade and character of roadbed, or
any point that may arise relating thereto; and if they decide to open or
alter any highway, they shall ascertain and appraise the damages, if any,
to the individual owners and occupants of the land through which such
new or altered highway is proposed to pass, and shall report such evidence
and decision to such court, with their assessment of damages, if any,
with all convenient speed.** On the coming in of such report, the court

 

24. This section applies where town superintendents fail to agree in the
laying out of a road on the town line between two towns and not extending
longitudinally into either. People ex rel. Titsworth v. Nash, 38 N. Y. St. Rep.
730, 15 N. Y. Supp. 29.

25. Appointment of commissioners. Construing sections 204 and 206 and
196 of the Highway Law together, it was the evident intention of the statute to
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 927

Highway Law, § 205.

may, by order, confirm, modify or set aside the report in whole or in part
and may order a new appraisal by the same of by other commissioners,
and shall decide all questions that may arise before it. And all orders
and decisions in the matter shall be filed in the county clerk’s office
of each county where the highway is located, and shall be duly recorded
therein. This section shall not be so construed as to compel any town
or towns to construct, repair or maintain a bridge upon a boundary between
towns, where previous to May seventh, nineteen hundred and three, an
application had been made to any court, to compel the construction, repair
and maintenance of a bridge upon such a boundary line, and such applica-
tion had been denied. [Highway Law, § 204; B. C. & G. Cons. L., p.

2299. ]

§ 16. DIFFERENCE ABOUT IMPROVEMENTS.

When the town superintendent or the officers of a village or city having the
powers of town superintendents therein, shall desire to make a new or altered
highway extending beyond the bounds of such town, village, or city, a better
highway than is usually made for a common highway, with a special grade
or roadbed, drainage or improved plan, and are willing to bear the whole or
part of the expense thereof beyond such bounds, but cannot agree in regard
to the same, upon written application of either of the superintendents or
officers, and notice to all parties interested, such court shall make an equi-
table adjustment of the matters, and may direct that in consideration of the
payment of such portion of the additional expense by the town, village or city
that desires the improved and better highway, as shall be equitable, its offi-
cers, contractors, servants and agents mcy go into such fown, village or city,
and make the grade and roadbed, and do whatever may be necessary and
proper for the completion of such better highway, advancing the money to
do it; the amount of damages to each owner or occupant shall be ascertained
and determined by commissioners, who shall be appointed, and whose pro-
ceedings shall be conducted in the manner provided by the last preceding
section; and upon the coming in of their report of damages, and of the ex-
penses paid, such court shall, on notice to all parties interested, direct that the
amount of damages assessed each owner or occupant, if any, and all such ex-
penses be paid by each, any or all of such towns, villages or cities as shall be

 

require a meeting of the highway commissioners of the towns in the different
counties, and a certificate of their disagreement, as a condition precedent to
the exercise of jurisdiction upon the part of the Supreme Court in the appoint-
ment of commissioners. Matter of Barrett, 7 App. Div. 482; 40 N. Y. Supp. 266.

A petition for the appointment of commissioners in proceedings to lay out a
highway extending into two towns in different counties, which does not show
that the town superintendents of both towns have met on five days’ written
notice end have been unable to agree and have duly certified thereto, confers
no jurisdiction on the court to appoint such commissioners. Matter of Donley,
69 Misc. 196, 125 N. Y. Supp. 274.
928 HIGHWAYS AND BRIDGES.
Highway Law, § 206.

just and equitable, and the damages and expenses assessed and allowed,
as in this and the last preceding sections, shall be paid and collected as
if fixed by the town superintendents of the towns, or the officers of such
villages or cities having the powers of such superintendents. Every com-
missioner appointed as herein provided shall be paid six dollars for each
day actually and necessarily employed in such service and necessary
expenses. [Highway Law, § 205; B. C. & G. Cons. L., p. 2300.]

§ 17. HIGHWAY IN TWO OR MORE TOWNS.

When application is made to lay out, alter or discontinue a highway
located in two or more towns, all notices or proceedings required to be
served upon the town superintendents shall be served upon the town
superintendent of each town; and the commissioners appointed by the
court shall determine the amount of damages to be paid by each town,
and when the towns are in different counties, the application for the
appointment of commissioners shall be made to a special term of the
supreme court held in the district where the highway or some part of it
is located ; and the same proceedings shall thereafter be had in the supreme
court of such district as are authorized by this chapter to be had in the
county court. [Highway Law, § 206; B. C. & G. Cons. L., p. 2301.]

26. Construction of section. This section must be construed in connection
with section 204 of the Highway Law, ante. In the case of Matter of Barrett,
7 App. Div. 482, 487; 40 N. Y. Supp. 266, the court said: “The legislature in
1890 made a thorough revision of the highway laws upon the subject of
laying out, altering and discontinuing highways, and cast the primary duty upon
the commissioners of highways of the towns through which the proposed
highway is to pass, in case the highway passes through different towns or
counties, of determining important questions preliminary to the application to
the court for the appointment of commissioners. Section 94 [204] plainly re-
quires the meeting of these town commissioners and their certificate of disagree-
ment in cases where the proposed highway passes through different towns of the
same county, and also in cases where it passes through different counties. In
the former case the application, as we have seen, for the appointment of
commissioners must be made to the County Court; in the latter case, for
obvious reasons to the Supreme Court. This makes the action of the local
commissioners and their certificate of disagreement jurisdictional. The County
Court in the one instance and the Supreme Court in the other, obtains no
right to appoint commissioners unless such meeting occurred and the certificate
is presented. Section 96 [206] does not conflict with section 94 [204]. Its
provisions are simply for the purpose of carrying out in detail and in sub-
stantial manner the requirements of section 94 [204.].”

Proceedings may be initiated by a person liable for highway labor in one
town to lay out a highway partly in his town and partly in another town.
and when he has complied with all the statutory requirements, and the towns
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 929
Highway Law, §§ 207, 208.

§ 18. LAYING OUT, DIVIDING AND MAINTAINING HIGHWAY UPON
TOWN LINE.

An application to lay out a highway upon the line between two or more
towns shall be made to the town superintendents of each town, who shall
act together in the matter; and, upon laying out any such highway, the
expense of opening, working and keeping the same in repair shall be borne
equally by such towns. The town superintendents shall cause a map and
survey of the highway to be recorded in the office of the town clerk in
each of the respective towns. If such highway be upon a line between one
or more towns and a city or incorporated village, such application shall
also be made to the officers of such city or village having the powers of
the town superintendents and such officers may agree with the town
superintendents of such towns as to division of such expense. Whenever
such officers shall disagree, the question shall be submitted to the district or
county superintendent or superinendents representing the county or coun-
ties, district or districts in which such highway is located and their de-
cision shall be final when approved by the state commission. All highways
heretofore laid out upon the line between any two towns or between a town
and a city or an incorporated village shall be divided and allotted or re-
divided and reallotted, recorded and kept-in repair in the manner above
directed ; and all bridges upon such highways shall be built and maintained
jointly by the towns whether wholly located within one of them or other-
wise. [Highway Law, § 207; B. C. & G. Cons. L., p. 2301.]

§ 19. FINAL DETERMINATION, HOW CARRIED OUT.

The final determination of commissioners appointed by any court, re-
lating to laying out, altering or discontinuing a highway, and all orders
and other papers filed or entered in the proceedings, or certified copies
thereof from the court where such determination, order and papers are
filed and entered, shall be forthwith filed and recorded in the town clerk’s
office of the town where the highway is located; and every such decision
shall be carried out by the town superintendent of the town, the same as

 

are in the same county, the County Court is authorized to appoint commissioners
in the matter. People ex rel. Knapp v. Keck, 90 Hun, 497; 36 N. Y. Supp.
51.

Proceedings before a special term of the supreme court where the highways
lie in more than one county are to be governed by § 193, ante, and the
immediately following sections, as though the highway were entirely within
one courity and the proceedings were had before the county court. Matter of
Taylor, 8 App. Div. 395, 40 N. Y. Supp. 839.
930 HIGHWAYS AND BRIDGES.
Highway Law, §§ 209, 210.

if they had made an order to that effect.27 The said town superintendent
shall thereupon proceed to construct the highway so laid out, and construct
any alteration so provided for, and put same in good condition for public
travel. The expense of such construction of such new highway or alteration
of an existing highway, shall be a charge upon and against the town in which
such highway is constructed or any existing highway is altered, and when
same is completed the town board of such town may issue certificates of
indebtedness for such expense, to draw interest at the rate of not to exceed
five per centum per annum until paid, and shall at the next annual meeting
for auditing accounts, after such work is done, and after such certificates
may have been issued, audit such claims against the town, including interest,
if any, and include same in the annual tax budget to be collected from the
taxpayers of said town to pay said indebtedness; such money to be paid
over to the gupervisor of the town and by him paid and applied to the
purposes aforesaid. This amendment is made subject to the provisions of
section forty-eight, relating to contracts for construction. [Highway Law,
ae as amended by L. 1918, ch. 318; B. C. & G. Cons. L., 2d ed., p. 3564.)

§ 20. HIGHWAYS BY USE.

All lands which shall have been used by the public as a highway for
the period of twenty years or more, shall be a highway, with the same
force and effect as if it had been duly laid out and recorded as a highway,
and the town superintendent shall open all such highways to the width of
a eee two rods.23 [Highway Law, § 209; B. C. & Cons. L., 2d ed.. p.

65.]

§ 21. FENCES TO BE REMOVED.

Whenever a highway shall have been laid out through any inclosed,

 

27. The determination as to laying out, altering or discontinuing a high-
way must be carried out by the town superintendent, and it is thereafter
made his duty to take general charge of the proceedings thereunder. Peo-
ple ex rel. D., L. & W. R. R. Co. v. County Court, 92 Hun 13; 37 N. Y.
Supp. 869.

The duty of the town superintendent to carry into effect the decision of
the commissioners is a positive one. He can exercise no discretion in the
matter. If he refuses to act mandamus will lie to compel him to make
an order laying out, altering or discontinuing the highway as directed
in the decision. People v. Champion, 16 Johns. 61. But were it avpc2rs3
that the proceedings were void because of jurisdictional defects mandamus
will not lie. People ex rel. Johnson v. Whitney’s Point, 32 Hun, 508;
Miller v. Brown, 56 N. Y. 383; People ex rel. Smith v. Allen, 37 App. Div.
248, 55 N. Y. Supp. 1057. Nor will it lie where it appears that the public
will derive no benefit from the opening of the highway. People ex rel.
Ashley v. Commissioners of Highways, 42 Hun, 463. And it has been
held that the fact that the damages have not been released or acsessed
was a good defense. People ex rel. Clark v. Comm’rs of Highways, 1 Thomp.
& C. 198.

Construction of highway.. A town superintendent is not authorized by
this section to pave and macadamize a newly opened highway. A contract
for such a purpose is void and cannot be ratified by the town becrd.
Matter of Niland, 113 App. Div. 661, 99 N. Y. Supp. 914, affd. 193 N. Y. 120.

28. Use for twenty years. Premises used as highways by the publie for
twenty years, even without dedication, become public highways. Town
of Corning v. Head, 86 Hun, 12; 33 N. Y. Supp. 360; City of Cohoes v.
Railroad Co., 134 N. Y. 397; 31 N. E. 887; James v. Sammis, 132 N. Y. 239;
30 N. EB. 502; Snyder v. Plass, 28 N. Y. 465; Porter v. Village of Attica,
33 Hun, 605; Galatian v. Gardner, 7 Johns. 106; Devenpeck v. Lambert
44 Barb. 596; Chapman v. Swan, 65 Barb. 210; Matter of Shawangunk Kill
Bridge, 100 N. Y. 642; 3 N. BE. 679; Wiggins v. Tallmadge, 11 Barb. 457;
Miller v. Garlock, 8 Barb. 153; People v. Fowler, 43 N. Y. St. Rep. 415;
17 N. Y. Supp. 744; Kelsey v. Burgess, 35 N. Y. St. Rep. 369; 12 N. Y.
Supp. 169; Post v. Ry. Co., 34 N. Y. St. Rep. 487. But, see, Johnson v.
City of Niagara Falls (1920), 230 N. Y. 77, 129 N. BE. 218, reve. 184
App. Div. 923, 170 N. Y. Supp. 1089.
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 931

Highway Law, § 211.

cultivated or improved lands, in conformity to the provisions of this
chapter, the town superintendent shall give to the owner or occupant of
the land through which such highway shall have been laid, sixty days’
notice in writing to remove his fences; if such owner shall not remove
his fences within sixty days, the town superintendent shall cause them
to be removed, and shall direct the highway to be opened and worked.”
[Highway Law, § 210; B. C. & G. Cons. L., p. 2306. ]

§ 22. PRIVATE ROAD.

An application for a private road shall be made in writing to the town
superintendent of the town in which it is to be located, specifying its
width and location, courses and distances, and the names of the owners
and occupants of the land through which it is proposed to be laid out.®°
[Highway Law, § 211; B. C. & G. Cons. L., p. 2306.]

 

A road or way laid out and opened by a milk company from a public highway to
its plant, a distance of about thirty rods, for the accommodation of the company
and its patrons and used for over twenty years, does not become a public highway
by prescription, without any formal dedication thereof, unless it has been accepted
and adopted by the town authorities, or its repairs and maintenance assumed by
such town. Rept. of Atty. Genl. (1915), p. 136.

Reduction of width; when alley laid out on map cannot be dedicated
for highway purposes. Chapter 204 of the Laws of 1897, amending the Highway
Law of 1890 by which the width of highways was reduced from three to two rods,
superseded and is a substitute for chapter 198 of the Laws of 1826 under which it
was lawful to lay out public roads not less than three rods in width, and an alley
only eight feet wide as laid out on a map and as it existed prior to 1905 cannot be
laid out or dedicated for highway purposes. The public authorities having neither
adopted nor kept such strip in repair and its use not having been an uninterrupted
one, it did not become a highway by prescription under this section which declares
all land a highway which shall have been used by the public as such for twenty
years. Farmers and Mechanics’ Savings Bank v. City of Lockport (1915), 89 Mise.
157, 151 N. Y. Supp. 865.

This section should be read in connection with section 2 of chapter 186 of the
Laws of 1826 and effect given to both, and when so read this section should be con-
strued to mean that land used as a highway by the public for twenty years shall
become a highway provided it complies with the law as to width. McCutcheon vy,
Terminal Station Commission (1915), 88 Misc. 601, 151 N. Y. Supp. 451.

29. Necessity of nmetice to remove. It is intended that notice to remove
fences be given in all cases of highways laid out through inclosed lands, whether laid
out directly or indirectly by the town superintendent. Case v. Thompson, 6 Wend,
634. If there is an appeal from the order of the town superintendent, the notice
cannot be given until it is determined; and pending the appeal the fence does not
become a public nuisance. Drake v. Rogers, 3 Hill 604; Case v. Thompson, 6 Wend.
634.

In an action for obstruction of a highway the defendant, over whose land the way
passes, may show failure to notify him to remove his fences, to prove that the alleged
highway does not legally exist. Cooper v. Bean, 5 Lans. 318. If the town super-
intendent has no right to open a road without giving notice to the party to remove
his fences, then he is bound to prove that such’ notice has been given in order to
entitle himself to the protection afforded by the section. It is not incumbent on the
owner of the land to prove that such notice had not been given. Case v. Thompson,
6 Wend. 634.

30. For form of application to the town superintendent of highways for a
private road, see Form No. 140, post.
932 HIGHWAYS AND BRIDGES.
Highway Law, §§ 212-215.

§ 23. JURY TO DETERMINE NECESSITY AND ASSESS DAMAGES.

The town superintendent to whom the application shall be made shall
appoint as early a day as the convenience of the parties interested will
allow, when, at a place designated in the town, a jury will be selected for
the purpose of determining upon the necessity of such road, and to assess
the damages by reason of the opening thereof.** [Highway Law, § 212;
B. C. & G. Cons. L., p. 2307. ]

§ 24. COPY APPLICATION AND NOTICE DELIVERED TO APPLI-
CANT.

Such town superintendent shall deliver to the applicant a copy of the
application, to. which shall be added a notice of the time and place ap-
pointed for the selection of the jury, addressed to the owners and occu-
pants of the land. [Highway Law, § 213; B. C. &G. Cons. L., p. 2307.]

§ 25. COPY AND NOTICE TO BE SERVED.

The applicant on receiving the copy and notice shall, on the same day,
or the next day thereafter, excluding Sunday and holidays, cause such
copy and notice to be served upon the persons to whom it is addressed, by
delivering to each of them who reside in the same town a copy thereof, or
in case of his absence, by leaving the same at his residence and upon such
as reside elsewhere, by depositing in the post-office a copy thereof to each,
properly enclosed in an envelope, addressed to them respectively at their
postoffice address, and paying the postage thereon, or, in case of infant
owners, by like service upon their parent or guardian. [Highway Law,

§ 214; B. C. & G. Cons. L., p. 2307.]

§ 26. LIST OF JURORS AND DRAWING JURORS,
At such time and place, on due proof of the service of the notice, the

 

In proceedings under the statute to lay out a private road, exact and tech-
nical accuracy is not required, but simply a substantial compliance with the statute.
A description in an application by reference to a private way used by permission of
the owner of the land for a great number of years, so that it has come to be called
a road, is sufficiently definite. The courses need not be specified in the application
by the compass in degrees and minutes; and where the general course is given as
easterly, etc., and the exact course and distance can be determined from other
particulars in the application, or by natural monuments referred to therein, the
statute is substantially complied with. Satterly v. Winne, 101 N. Y. 218; 4 N. E.
185; see, also, People v. Taylor, 34 Barb. 481.

31. Constitutional provision. Section 7, art. 1, of the Constitution provides
that “private roads may be opened in the manner to be prescribed by law, but in
every case the necessity of the road and the amount of all damages to be sustained
by the opening thereof shall be first.determined by a jury of free holders, and such
amount, together with the expenses of the proceeding, shall be paid by the person to
be benefited.” The provision has been held not to apply to a way by necessity nor
to a way used by the owner for his own convenience, and which crosses land after-
wards subdivided and sold. Wheeler v. Gilsey, 35 How. Pr. 139. A taking of land
for a private way is the taking of private property for private use, and is unlawful
without express constitutional authority. Taylor v. Porter, 4 Hill 140.
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 933
Highway Law, §§ 216, 218.

town superintendent shall, in the presence of a justice of the peace
of such town, to be designated by him and who shall be present at such
time, openly draw thirty-six ballots from a box or other receptacle
containing the names of the persons who are returned as jurors of
the town to the courts of record of the county, upon the last list
thereof, as certified by the county clerk, as jurors to attend and
determine upon the necessity of such road and to assess the damages
by reason of the opening thereof, on a day to which the proceeding
shall then be adjourned by him, not more than fourteen days from
the day on which such jurors are drawn, unless the parties consent
to a longer adjournment. The ballots shall be of the same descrip-
tion as those prescribed to be used by justices of the peace, for
the purpose of procuring a jury to try an action in justices’ courts.
Such ballots may be, or may previously have been prepared by such
justice of the peace. If a person whose name is thus drawn is not
a resident freeholder of the town, the town superintendent shall set
aside such juror, and he may excuse any juror who comes within
the provisions of section five hundred and forty-four of the judiciary
law, and in either case, draw another ballot and continue to do so
until thirty-six are drawn.? [Highway Law, § 215, as amended by
L. 1921, ch. 403.]

8§ 27-28. DELIVERY, EXECUTION AND RETURN OF VENIRE.

The justice of the peace attending upon such drawing of jurors
shall thereupon issue a venire, and the same shall be delivered and
executed in the same manner as a venire for jurors drawn in a jus-
tice’s court, as provided in, and under the same penalty as provided
in, the provisions of law governing the delivery, execution and return
of a venire issued by a justice of the peace for jurors drawn for
service in the justice’s courts.3? [Highway Law, § 216, as added by
L. 1921, ch. 403; old §§ 216-217, repealed by L. 1921, ch. 403.]

§ 29. JURY TO DETERMINE AND ASSESS DAMAGES; FEES OF
JUSTICES OF PEACE AND CONSTABLES.

At the time and place to which the proceeding has been adjourned,
as provided in section two hundred and fifteen hereof, the town
superintendent, and the justice of the peace so designated by him,
shall attend, and a jury of twelve shall then be openly drawn and
chosen by the justice of the peace, in the same manner as juries
are drawn in justices’ courts, except that each party may peremptorily
challenge not more than six of the persons drawn as such jurors. The
parties may elect to try the issue by a less number than twelve jurors,
at any time before a witness is sworn. The persons so selected, as
herein provided, shall constitute the jury and shall be sworn by the
justice of the peace well and truly to determine as to the necessity of
the road, and to assess the damages by reason of the opening thereof.
The duties of the justice of the peace in connection with such pro-
ceeding shall end after the jury is sworn. The justice of the peace
so designated by the town superintendent and the constable executing
such venire, shall each be entitled to the same fees as may at any
time be provided by law for the performance of similar duties in
justices’ courts, to be paid by the applicant. [Highway Law, § 218, as
amended by L. 1921, ch. 403.]
934 HIGHWAYS AND BRIDGES.
Highway Law, §§ 219-224.

§ 30. THEIR VERDICT.

The jury shall view the premises, hear the allegations of the parties,
and such witnesses as they may produce, and if they shall determine
that the proposed road is necessary, they shall assess the damages to
the person or persons through whose land it is to pass, and deliver
their verdict in writing to the town superintendent. [Highway Law,
§ 219; B. C. & G. Cons. L., 2d ed., p. 3572.]

§ 31. VALUE OF HIGHWAY DISCONTINUED.

If the necessity of such private road has been oceasioned by the
alteration or discontinuance of a public highway running through
the lands belonging to a person through whose lands the private
road is proposed to be opened, the jury shall take into consideration
the value of the highway so discontinued, and the benefit resulting
to the person by reason of such discontinuance, and shall deduct the
same from the damages assessed for the opening and laying out of
such private road. [Highway Law, § 220; B. C. & G. Cons. L.,
2d ed., p. 3573. ]

§ 32. PAPERS TO BE RECORDED IN THE TOWN CLERK’S OFFICE.

The town superintendent shall annex to such verdict the application,
and their certificate that the road is laid out, and same shall be
filed and recorded in the town clerk’s office. [Highway Law, § 221;
B. C. & G. Cons. L., 2d ed., p. 3573.]

§ 33. DAMAGES TO BE PAID BEFORE OPENING THE ROAD.

The damages assessed by the jury shall be paid by the party for
whose benefit the road is laid out, before the road is opened or used;
but if the jury shall certify that the necessity of such private road
was occasioned by the alteration or discontinuance of a public high-
way, such damages shall be paid by the town and refunded to the
applicant. [Highway Law, § 222; B. C. & G. Cons. L., 2d ed., p. 3573. ]

§ 34. FEES OF OFFICERS,

Every juror, serving on the jury, in proceedings for a private road,
shall be entitled to receive for his services one dollar and fifty cents;
and town superintendents their per diem compensation to be paid

by the applicant. [Highway Law, § 223; B. C. & G. Cons. L.,
2d ed., p. 3573. ]

§ 85. MOTION TO CONFIRM, VACATE OR MODIFY.
Within thirty days after the decision of the jury shall have been filed

32. Constitutionality. The amendments of 1904 to § 11 of the former
Highway Law increased the number of the jury from six to twelve. Prior
to this amendment it had been held that a jury of six drawn in the man-
ner prescribed by this section did not comply with the constitutional re-
quirement that the necessity of the road and the damages should be deter-
mined by a jury of freeholders. Berridge v. Shults, 32 Misc. 444, 66 N. Y.
Supp. 204.

33. Summoning juries. The commissioners have no right to delegate
the summoning of the jurors, but such summons will not be held invalid
if the owner of the land proposed to be taken is present at the meeting of
the jury and does not object to the proceeding. People v. Commissioners of
Greenbush, 24 Wend. 367.
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 935

Highway Law, §§ 225, 226.

in the town clerk’s office, the owner, occupant or applicant may appiy to
the county court of the county wherein such private road is situated, for
an order confirming, vacating or modifying their decision; and such
court may confirm, vacate or modify such decision as it shall deem just
and legal. If the decision is vacated, the court may order another hearing
of the matter before another jury, and remit the proceedings to the town
superintendent of the same town for that purpose. If no such motion
is made, the decision of the jury shall be deemed final. The motion
shall be brought on, upon the service of papers on the adverse party in
the proceeding, according to the usual practice of the court in actions
and special proceedings pending therein, and the decision of the county
court shall be final, except that a new hearing may be had, as herein pro-
vided. If the final decision shall be adverse to the applicant, no other
application for the same road shall be made within one year. [Highway
Law, § 224, as amended by L. 1915, ch. 192; B. C. & G. Cons. L., p.
2310.]

§ 36. COSTS CF NEW HEARING.
If upon a new hearing, the damages assessed are increased, the applicant

shall pay the costs and expenses thereof, otherwise the owner shall pay the
same. [Highway Law, § 225; B. C. & G. Cons. L., p. 2311.]

§ 37. FORWHAT PURPOSE PRIVATE ROAD MAY BE USED.

Every such private road, when so laid out, shall be for the use of such
applicant, his heirs and assigns; but not to be converted to any other use
or purpose than that of a road; nor shall the occupant or owner of the land
through which said road shall be laid out be permitted to use the same
as a road, unless he shall have signified such intention to the jury who
assessed the damages for laying out such road, and before such damages
were assessed.** [Highway Law, § 226; B. C. & G. Cons. L., p. 2311.]

 

34. Use of private roads. According to the true construction of the statute,
the person on whose application a private road is laid out has the sole
and exclusive right to use it, unless the occupant of the land at the time when
it is laid out signified his intention to make use of it. Lambert v. Hoke, 14
Johns. 384. ,

The penalty provided by statute for obstructing the highway is not appli-
cable to a private road (Fowler v. Lansing, 9 Johns. 349), and where an
obstruction is placed in such a road by the owner of the land over which
it is laid out, it cannot be lawfully removed by a person having no right to
use the road. Drake v. Rodgers, 3 Hill, 604.

The original owner of the land should so locate his fences ag not to
936 HIGHWAYS AND BRIDGES.
Highway Law, §§ 227-229.

§ 38. HIGHWAYS OR ROADS ALONG DIVISION LINES.

Whenever a highway or private road shall be laid along the division
line between lands of two or more persons, and wholly upon one side of the
line, and the land upon both sides is cultivated or improved, the persons
owning or occupying the lands adjoining such highway or road shall be
paid for building and maintaining such additional fence as they may be
required to build or maintain, by reason of the laying out and opening
such highway or road; which damages shall be ascertained and determined
in the same manner that other damages are ascertained and determined
in the laying out of highways or private roads. [Highway Law, § 227;
B. CO. & G. Cons. L., p. 2311.]

§ 39. ADJOURNMENTS.

Tf any accident shall prevent any of the proceedings required by this
chapter relating to the laying out, altering or discontinuing of a highway,
or the laying out of a private road, to be done on the day assigned, the
proceedings may be adjourned to some other day, and the town superin-
tendent shall publicly announce such adjournment. [Highway Law, §
228; B. C. & G. Cons. L., p. 2311.]

§ 40. WIDENING ROADS; PETITION.

When any part of a highway in any town of this state, not in an
incorporated village or city, running between two or more villages or
cities, has, because of the wearing away by a river or stream or any other
natural cause, become narrower than the width required by statute, and
is dangerous to the users of such highway, twelve or more resident tax-
payers of such town may present a petition to the county court of the
county within which such town is situated. The petition shall describe
the part of the highway proposed to be widened and state that such highway
has become lessened in width by the action of a river or stream or other
cause, that it is dangerous to the traveling public, that the widening and
improvement of such highway is necessary for the public convenience and
welfare, that the highway is an important leading road between two or
more cities or villages, that the cost of such widening and improvement
would exceed the sum of two thousand five hundred dollars and would
be too burdensome on the town or towns otherwise liable therefor. Such

 

encroach upon the width of the road, but the new owner will be deemed to
have assented to such encroachment if he allows such fences to be so located
without objection. Herrick v. Stover, 5 Wend. 580.
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 937
Highway Law, §§ 230, 231.

petition shall be verified by at least three of the petitioners. On receipt
of the petition the county court shall forthwith appoint three commissioners
who shall not be named by any person interested in the proceedings and
who shall be taxpayers of such county, but who shall not reside in the
town or towns in which the highway, proposed to be widened and im-
proved, is situated. [Highway Law, § 229; B. C. & G. Cons. L., p.
2311.]_

§ 41. POWERS AND DUTIES OF COMMISSIONERS.

The commissioners shall take the constitutional oath of office and
appoint a time and place for a meeting to hear all persons interested in the
proposed widening of the highway. They shall personally examine the
part of the highway proposed to be widened, hear any reasons for or against
such widening and ascertain the probable cost of the work. They shall
have power to issue subpcenas, administer oaths and examine witnesses;
they shall keep the minutes of their proceedings and reduce to writing
all oral evidence given before them. They shall make duplicate certificates
of their decision, filing one in the town clerk’s office of the town in which
the said highway is located, and the other, with such minutes and evidence,
in the county clerk’s office of the county where the highway is located.
Such commissioners shall have the same power as to the assessment of
damages caused by the widening of such highway as commissioners ap-
pointed under this article for the discontinuance, alteration or laying
out of a highway, and as to such assessment the same proceeding may be
had for the confirmation, vacating or modifying of such decision, as pro-
vided in and by this article. The commissioners shall receive a compensa-
tion of five dollars for each day necessarily spent in the performance of
their duties under this section, and the amount so paid to the said com-
missioners shall be a charge upon the town or towns in which the highway,
proposed to be widened as aforesaid, is located. [Highway Law, § 230;
B. C. & G. Cons. L., p. 2312.]

§ 42. NOTICE OF DECISION TO SULVERVISORS.

If a majority of the commissioners shall determine that the proposed
widening of the highway is necessary and that the cost thereof would be
too burdensome for the town, exceeding in probable cost two thousand five
hundred dollars, they shall notify the board of supervisors of the county
of such decision. The board of supervisors shall thereupon cause one-half
of the amount of the estimated cost to be raised by the county and paid to
the supervisor of the town or towns in which that part of the highway
proposed to be widened as aforesaid is located, and said supervisor shall
938 HIGHWAYS AND BRIDGES.
Highway Law, §§ 232-234.

apply the sum so received by him towards the payment of the cost of such
widening. The balance of the expense shall be raised in the manner pro-
vided by law, by the town or towns in which that part of the highway pro-
posed to be widened as aforesaid is located. [Highway Law, § 231; B. C.
& G. Cons. L., 2d ed., p. 3576.]

§ 43. WIDENING, HOW CONSTRUCTED.

The town superintendent shall construct such widening of the highway
according to plans and specifications adopted by the district or county
superintendent and approved by the town board of his town. The bills
and expense incurred in such work shall be audited by the town board
and paid by the supervisor upon written order of the town superintendent,
after the same shall have been approved by the town board, out of
moneys raised for such purpose as provided in the preceding section.
[Highway Law, § 232; B. C. & G. Cons. L., 2d ed., p. 3576.]

§ 44. ACTIONS TO COMPEL WIDENING; HOW AFFECTED BY PETITION.

In case an action might lie in any court of this state against the town
superintendent of any town or towns to compel such superintendent to
widen a part of the highway, the width of which has become less than
that required by statute, or in case an action has been brought against
such superintendent to compel him to widen a part of the highway, the
width of which has become less than that required by statute, the pre-
sentation of a verified petition to the county court as provided for in section
two hundred and twenty-nine shall prevent the commencing of any such
action as foresaid and cause such an action already commenced, to cease,
and shall be a bar to a recovery on the part of the plaintiff of a judgment
against such superintendent in any such action instituted or prosecuted
to judgment after the passage of this chapter. [Highway Law, § 233;
B. C. & G. Cons, L., 2d ed., p. 3576.]

§ 45. HIGHWAYS ABANDONED.

Every highway that shall not have been opened and worked within six
years from the time it shall have been dedicated to the use of the public,
or laid out, shall cease to be a highway; but the period during which any
action or proceeding shall have been, or shall be pending in regard to any
such highway, shall form no part of such six years; and every highway that
shall not have been traveled or used34a as a highway for six years, shall
cease to be a highway, and every public right of way that shall not have
been used for said periods shall be deemed abandoned as a right of way.34b
The town superintendents shall file, and cause to be recorded in

 

84a. “Used as a highway” requires that travel must proceed in forms
reasonably normal along the lines of an existing street. Where a railroad
company, which crossed a street with its tracks, erected a building which
blocked the street on one side of its right of way, it was held that persons
who descended the bank, and crossed the tracks irregularly in all directions,
not following the lines of the ancient street, did not make such a use of a
highway as to preserve its existence. Town of Leray v. New York Central
R. R. Co. (1919), 226 N. Y. 109, revg. 177 App. Div. 944.

84b. Application of section. This section and the statute from which
it is derived, and of which it is a substantial re-enactment, is not applicable
where a city obtained the fee of land subject to the easement of a railroad
company. New York Cent. & H. R. R. R. Co. of City of Buffalo, 200 N. Y.
113, 119. Applies to a street of a city where only an easement has been
pean d: Robins Dry Dock & Repair Co. v. City of New York, 155 App.
Div. :

Presumption as to continuance of highway. When a highway is once
shown to exist it is presumed to continue until it is shown to exist no
longer, and when once established it continues until discontinued according
to ee of City of New York (1919), 189 App. Div. 181, 178 N. Y.
Supp. a

The period of six years mentionzd in the statute is a limitation upon the life
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 939
Highway Law, § 234.

the town clerk’s office of the town, a written description, signed by them,
of each highway and public right of way so abandoned, and the same shall
thereupon be discontinued.35 There may also be qualified abandonment of
a highway under the following conditions and for the following purposes,
to wit: Where it appears to the town superintendents, at any time, that a
highway has not become wholly disused as aforesaid, but that it has not
for two years next previous thereto, been usually traveled along the greater
part thereof, by more than two vehicles daily, in addition to pedestrians
and persons on horseback, they shall file and cause to be recorded in the
town clerk’s office a certificate containing a description of that portion of
the highway partly disused as aforesaid and declaring a qualified abandon-
ment thereof. The effect of such qualified abandonment, with respect to
the portion of said highway described in the certificate, shall be as follows:
It shall no longer be worked at public expense; it shall not cease to be a
highway for purposes of the public easement, by reason of such suspension
of work thereon; no person shall impair its use as a highway nor obstruct
it, except as hereinafter provided, but no person shall be required to keep
any part of it in repair; whenever an owner or lessee of adjoining lands
has the right to possession of other lands wholly or partly on the directly
opposite side of the highway therefrom, he may construct and maintain
across said highway a fence at each end of the area of highway which
adjoins both of said opposite pieces of land, provided that each said cross-
fence must have a gate in the middle thereof at least ten feet in length,
which gate must at all times be kept unlocked and supplied with a sufficient
hasp and latch for keeping the same closed; all persons owning or using
opposite lands, connected by such gates and fences, may use the portion of
highway thus inclosed for pasturage; any traveler or other person who

 

of an ‘unused easement. When an easement is acquired by purchase or
otherwise, by which a street can be opened and worked across a piece of
land, such land does not thereby become a street in fact for. public use
until it is opened, and it is such an easement, consisting of a right to
open and work a, highway, which is deemed abandoned if not. exercised
within six years. New York Cent. & H. R. R. R. Co. v. City of Buffalo,
200 N. Y. 118, 119. See, also, City of Syracuse v. Cook (1919), 187 App.
Div. 578, 176 N. Y. Supp. 396. ;

Reopening abandoned highways. A town superintendent, in conjunction
with the town board may issue an order to reopen a highway which has
been qualifiedly abandoned. Rept. of Atty. Genl., January 14, 1913.

Temporary interruption by reason of the weakness or the destruction
of a bridge, though covering a considerable space of time, do not operate
as an abandonment of it as a public way, since being once a highway,
it does not cease to be such until discontinued by proper authority. Matter
of Town of Rutland, 70 Mise. 82, 87, 128 N. Y. Supp. 94.

Abandonment by nonuser. Where land acquired for the purpose of
doubling the width of a highway has never been regulated as a highway
and has not been used by the public, even partially, for over forty years, but
has remained, in private possession and occupancy, such nonuser of the land
acquired establishes an ‘‘abandonment’”’ within the meaning of this section.
Matter of City of New York (1914), 164 App. Div. 839, 150 N. Y. Supp. 256.

If a highway remains closed for six years with the acquiescence of the
public, there is an extinguishment of the public right, but obstructions of
a highway across part of its width only, narrowing but not closing the line
of travel, are not sufficient, however long continued, to put an end to its
existence. To have that effect the obstruction must cover the entire width;
it is not, however, necessary to show an abandonment along the entire length.
These rules have no application where the fee is vested in the public.
Barnes v. Midland R. R. Terminal Co. (1916), 218 N. Y. 91, revg. 161
App. Div. 621. See, also, Dinkel & Jewell Co. v. Village of Tarrytown
(1917), 177 App. Div. 742, 164 N. Y. Supp. 1090; City of New Rochelle
v. New Rochelle Coal and Lumber Co. (1918), 224 N. Y. 696, affg. 178 App.
Div. 952. Granby Pulp & Paper Co. v. City of Fulton (1919), 189 App.
Div. 521, 179 N. Y. Supp. 205; Scheibel v. O’Brien (1921), 230 N. Y.
277, 130 N. E. 293, affg. 192 App. Div. 438, 183 N. Y. Supp. 49. But the
provision that non-user for a period of six years effects an abandonment
* 940 HIGHWAYS AND BRIDGES.
Highway Law, §§ 235, 236.

intentionally, or by wilful neglect, leaves such gate unlatched, shall be guilty
of a misdemeanor, and the fact of leaving it unlatched, shall be prima facie
evidence of such intent or wilful neglect. Excepting as herein abrogated,
all other general laws relating to highways shall apply to such partially
abandoned highway. This section shall not apply to highways less than two
rods in width unless it shall appear to the town superintendent at any time
that such a highway has not, during the months of June to September in-
clusive of the two years next previous thereto, been usually traveled along
the greater part thereof by more than ten pedestrians daily. [Highway Law,
§ 234, as amended by L. 1915, ch. 322; B. C. & G. Cons. L., 2d ed., p. 3577.)

§ 46. HIGHWAYS IN LANDS ACQUIRED BY THE UNITED STATES FOR
FORTIFICATION PURPOSES DEEMED ABANDONED,

When land sought to be acquired by the United States of America for the
purpose of fortifications, includes a highway or portion thereof, the condem-
nation proceedings may include such highways or portion thereof, and the
people of the state of New York, and municipality, county or other party
claiming an interest therein may be made a party defendant in such proceed-
ing, and the interest of the state, county, municipality or other claimant be
determined, and the award made therefor. Forthwith upon the acquisition by
the United States of America of land which includes a highway or portion
thereof there shall be filed in the office of the town clerk of the town, and also
in the office of the county clerk of the county, in which such land is located,
certified copies of the record or transfer to the United States of such land,
together with a map of such land, on which map such highway or portion
thereof shall be indicated by metes and bounds, and thereupon such high-
way or portion thereof shall be deemed discontinued and abandoned for high-
way purposes, and if proceedings have been taken, pursuant to article six of
this chapter for the improvement of such highway by state aid, all such pro-
ceedings, together with any appropriation made for the improvement of such
highway or portion thereof, as indicated on such map, shall be deemed’
revoked, vacated and set aside. [Highway Law, § 235; B. C. & G. Cons.
L., 2d ed., p. 3582.)

§ 47. DISCONTINUANCE OF HIGHWAY.

Whenever the town superintendent of any town, in which during the
past ten years there has been expended the sum of three hundred
thousand dollars, or more, for the purpose of macadamizing the high-

 

does not extend to a mere encroachment. No encroachment, however long,
destroys the public easement. Shipston v. City of Niagara Falls (1919),
187 App. Div. 421. See, also, People ex rel. N. Y. O. & W. R. R. Co.
v. State Tax Comm. (1919), 190 App. Div. 73, 179 N. Y. Supp. 364.

It is not essential to the existence of a street that it shall be at all times
subject to passage by vehicles. People ex rel. N. Y. O. & W. R. R. v. State
Tax Comm. (1919), 190 App. Div. 73, 179 N. Y. Supp. 364.

835. For form of description of highway abandoned, see Form No. 141, post.

A town superintendent of highways cannot file a certificate that a highway
has been abandoned unless it has not been worked or used during six years
last past. It cannot be declared abandoned merely because bars and gates
have been placed across it for the accommodation of abutting owners. Peo-
ple ex rel. De Groat v. Marlett, 94 App. Div. 592, 88 N. Y. Supp. 379. The
act of a town superintendent in filing and causing to be recorded the de-
scription of the highway abandoned pursuant to this section, is not a judicial
act involving discretion which can be reviewed only by a writ of certiorari,
but may be reviewed upon an application to compel him to open such highway
for public use. Idem.

Mandamus to compel ieee of highway. Where a petition alleges that
a filing in the town clerk’s office by the superintendent of highways of a
certificate of qualified abandonment of a highway pursuant to section 234 of
the Highway Law is colorable only and part of a wrongful and fraudulent
scheme to permanently abandon the road and deprive petitioner and the
public of its benefit, relator will be granted an alternative writ of mandamus
requiring the superintendent of highways to cancel such certificate and put
the highway in a suitable condition for travel. Matter of Marvin (1915),
91 Mise. 287, 155 N. Y. Supp. 28.
LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 941

Highway Law, §§ 237-239.

ways of such town, shall determine that any portion of any highway or
street, not within the limits of an incorporated village, which is the
terminus of such street or highway, is unnecessary for highway purposes,
and said town superintendent may, by an order to be duly entered in the
town clerk’s office, direct such highway to be discontinued and abandoned
for public purposes. Provided, however, that no portion of such high-
way to be discontinued shall be greater than one thousand feet of the
terminus thereof and that the owners of the land on both sides of such
highway or street, for the distance it is proposed to discontinue the same,
shall, by written petition to such town superintendent have requested
the discontinuance thereof. [Highway Law, § 236; B. C. & G. Cons.
L., p. 2817. ]

§ 48. DESCRIPTION TO BE RECORDED.

Immediately upon making and entering the order mentioned in sec-
tion two hundred and thirty-six of this chapter, the said town superin-
tendent shall cause a written‘ description of that portion of the street or
highway ordered to be discontinued to be filed and recorded in the
oftice of the town clerk of the town in which the said street or highway
is located, and when the same is duly recorded the said portion of the
said street or highway shall thereupon be and become duly abandoned
and discontinued for highway purposes. [Highway Law, § 237; B. C.
& G. Cons. L., p. 2817. ]

§ 49. DAMAGES CAUSED BY DISCONTINUANCE.

Any person or corporation interested as owner or otherwise in any
lands and claiming any loss or damage, legal or equitable, by reason of
the discontinuance, abandonment or “closing of any street or highway,
not within the limits of an incorporated village, under or pursuant to
the provisions of the last two sections, may, upon ten days’ written no-
tice to the town superintendent of the town in which such lands are
situated apply to the supreme court or to the county court of the county
within which such lands are situated for the appointment of commis-
sioners to estimate and determine such loss and damage, whereupon the
court shall appoint three disinterested commissioners of appraisal to
estimate and determine such damage, and the amount of compensation
to be paid by said town therefor, who shall make their report thereupon
to such court, and which report when finally confirmed shall be final and
conclusive in respect thereto, and the legality and equity of any and all
such claims shall be determined by such commissioners and by the court
upon the hearing of their report. Any loss or damage so estimated and
determined shall be paid by said town as in case of judgment. [High-
way Law, § 238; B. C. & G. Cons. L., p. 2317.]

§ 50. PAPERS, WHERE FILED.

All applications, certificates, appointments and other papers relating
to the laying out, altering or discontinuing of any highway shall be filed
by the town superintendent as soon as a decision shall have been made
thereon in the town clerk’s office of the town. [Highway Law, § 239;
B.C. & G. Cons. L., p. 2318.]
942 HIGHWAYS AND BRIDGES.

Highway Law, §§ 240, 241.

§ 51. COSTS OF MOTION.

Costs of a motion to confirm, vacate or modify the report of commis-
sioners appointed by the court to lay out, alter or discontinue a highway
may be allowed in the discretion of the court not exceeding fifty dollars.
On an uncontcsted motion to confirm the report of the commissioners so
appointed, if said report is favoraile to the applicant and confirmed by
the court, costs may be allowcd not exceeding fifty dollars sufficient
to compensate the applicant’s attorney for his services in the proceed-
ings. Costs of any other motion in a proceeding in a court of record,
authorized by this chapter, may be allowed in the discretion of the court
not exceeding ten dollars.*® [Highway Law, § 240; B. C. & G. Cons.
L., p. 3584]

§ 52 CHANGING LOCATION OF HIGHWAYS OVER CERTAIN LANDS OWNED
AND OCCUPIED BY THE STATE.

If a highway passes over or through lands wholly owned and occu-
pied by the state, which lands shall have been acquired and set apart
by the state for farm and prison purposes, but upon which a prison
shall not have been constructed and ready for use at the time of the
making of the order hereinafter provided for, the location of such por-
tion of such highway as passes through such lands may be altered and
changed, or the same may be abandoned or the use thereof as a highway
discontinued, by the commission by an order directing such change in
location, abandonment or discontinuance. Such order shall contain a
description of that portion of the highway the location of which has
been changed, abandoned or discontinued, and a description of the new
location thereof, if any, and shall be filed in the office of the commis-
sion. A copy of such order shall be filed in the office of the town clerk
of the town in which the portion of such highway changed, abandoned
or discontinued is located, and at least ten copies thereof posted in
conspicuous places in such town. [Highway Law, § 241, as added by
L. 1920, ch. 558.]

 

36. Award of costs. The provisions of this section only relate to the costs
of motions made in a proceeding in respect to highways, as distinguished from
the costs of the proceeding itself. Such a proceeding is a special proceeding
and the court may award costs in its discretion pursuant to § 3240 of the Code
of Civil Procedure. Matter of Peterson, 94 App. Div. 143, 87 N. Y. Supp. 1014.
The costs referred to in sec. 202 of the Highway Law, are costs which may be
allowed to one of the parties under the provision of this section. People ex
rel. Bevins v. Supervisors, 82 Hun, 298, 31 N. Y. Supp. 248 (1894).

The provisions of section 3240 of the Code of Civil Procedure are applicable
and authorize the court in its discretion to award costs to the prevailing party
at the rates allowed for similar services in an action. Matter of Terry, 67 Misc.
514, 12 N. Y. Supp. 258.

This section should be construed with sections 193 and 198 and where the
commissioners determine that a proposed highway or alteration is not neces-
sary, or a highway proposed to be discontinued is not useless, the costs and
expenses allowed the applicant cannot exceed, in all, the sum of one hundred
dollars. Matter of Terry, 67 Misc. 514, 12 N. Y. Supp. 258.
BRIDGES. 943

Explanatory note.

CHAPTER LXIIL

BRIDGES.

EXPLANATORY NOTE.

Bridges Within the Town.

The town is liable for the cost of constructing and maintaining bridges
within the boundaries of the town. The town superintendent of high-
ways is required to keep such bridges in repair. The estimate made by
him each year to the town board, as provided in § 90 of the Highway
Law, ante, must contain a statement as to the amount which should be
expended for such repairs, and the amount is raised and paid to the
supervisor and expended on the order of the town superintendent in the
same manner as money is raised and expended for town highways.

If a bridge becomes unsafe for use, or is condemned by the State
commission, the town superintendent must cause the same to be repaired
or rebuilt, if approved by the town board, and may, subject to such
approval, expend not more than $500 (without a contract. If the ex-
pense is to exceed that amount written contracts must be made there-
for, with the approval of the town board. No such bridge may be
repaired or rebuilt, except as directed by the county or district superin-
tendent, or in accordance with plans and specifications prepared by such
county or district superintendent. (See Highway Law, § 93 ante,
chapter LIX.)

If the cost of repairing or rebuilding such bridge exceeds $1500, the
Guestion must be submitted to a vote of the electors of the town at a
special biennial town meeting, berore th: work is commenced. An
amount in excess of such sum cannot be expended without favorable
action by such town meeting. (See Highway Law, § 94, ante). A
town meeting may also vote to raise the money by the issue and sale of
town bonds. (See Highway Law, § £5, ante.)
te

944 ‘HIGHWAYS AND BRIDGES.
Explanatory note.

The county may aid a town in paying the cost of constructing and
repairing its bridges, in an amount not exceeding $2000 in any one
year, when authorized by the board of supervisors. (See County Law,
§ 63, post.)

Bridges over Boundary Lines.

The cost of erecting and maintaining bridges over streams forming
the boundary lines of towns, are to be jointly borne by such towna,
whether in the same or adjoining counties. Such expense must be
equally borne by such towns, without regard to the portion of the bridge
which is in each town, unless the board of supervisors takes action under
§ 97 of the Highway Law, ante, by apportioning such expense equitably
among the towns, as it shall deem just.

If the bridge is over a boundary line between two counties, each
county must bear not less than one-sixth the cost of its erection and
maintenance, and the board of supervisors of each county must cause
the amount required for such purpose to be raised by tax upon the
county.

The various sections in this chapter provide for compelling the proper
officers of each town, liable to constitute to the expense of erecting and
maintaining a joint bridge, to take the necessary steps to rebuild and
maintain such bridge.

[Highway Law, art. IX.]

Section 1. When town or county expense.
2. Levy of tax upon county.
8. Penalty, and notice on bridge.
4, Offense. e
5. Joint liabilities of towns and their joint contracts.
6. Refusal to repair.
7. Proceedings in court.
8. Supervisor to institute proceedings.
9. Duty of town superintendents.
10. Report of town superintendents, and levy of tax.
11. Appeals.
12. Power of court on appeal.
18. Refusal to repair bridges.
13a. Construction or improvement of bridge by county and town or
towns.
14. Construction and maintenance of bridges over waters between towns
and cities of over 1,500,000 inhabitants, :
15. Resolution of board of supervisors for abolition of toll bridges.
BRIDGES. 945
Highway Law, § 250.

Sucrion 16. Investigation by the state commission of highways.
17. Acquisition by attorney-general.
18. Payment of expense of acquisition.
19. Maintenance of bridge.
20. Use of toll bridge by public service corporations; conditions; powers of
town board.
21. Acquisition of certain toll bridges at the expense of the state,
22. Bridges in certain counties.

§ 1. WHEN TOWN OR COUNTY EXPENSE.

The towns of this state, except as otherwise herein provided, shall be liable
to pay the expenses for the construction and repair of its public free
bridges constructed over streams or other waters within their bounds,
and their just and equitable share of such expenses when so constructed
over streams or other waters upon their boundaries, except between the
counties of Westchester and New York; and when such bridges are con-
structed over streams or other waters forming the boundary line of towns,
either in the same or adjoining counties, such towns shall be jointly liable
to pay such expenses. When such bridges are constructed over streams

 

1. Construction of town bridges. County may aid town in construction of
bridge destroyed by the elements, where the cost of such bridge would, in the
opinion of the board of supervisors, be too burdensome for the town. See
County Law, sec. 64, post, p. 982, and sec. 63, post, p. 983. “As to bridges
intersected by town or county lines, see County Law, sec. 65, post, p. 984; and
as to bridges over county lines, see County Law, sec. 68, post, p. 985.

This section makes absolute the liability of the town to construct and main-
tain bridges over streams within its bounds. Phelps v. Hawley, 52 N. Y. 23.
Prior to act of 1890, ch. 568, the burden of supporting bridges was cast upon
the towns alone. Town of Wirt v. Supervisors, 90 Hun 205, 35 N. Y. Supp.
887. For common law rules and history of New York state legislation relating
to liability for construction and maintenance of bridges, see People ex rel.
Root v. Supervisors, 81 Hun 216, 30 N. Y. Supp. 729, affirmed 146 N. Y. 107;
Bartlett v. Crozier, 17 Johns. 439, 452.

Powers of superintendents. Town superintendents are charged with the
duty of erecting and maintaining town bridges. Berlin Iron Bridge Co. v.
Wagner, 57 Hun, 346; 10 N. Y. Supp. 840. And the power given to a commis-
sioner to repair highways includes the power to build a bridge to connect two
parts of a highway. Mather v. Crawford, 36 Barb. 564; Huggans v. Riley, 125
N. Y. 88; 25 N. E. 993.

After a town board has given its consent to the erection or repair, of a
bridge which has been destroyed or damaged by the elements, its duties in
respect thereto are at an end, and it cannot direct the town superintendent
as to the manner of construction. People ex rel. Groton, etc., Bridge Co. v.
Town Board, 92 Hun, 585; 36 N. Y. Supp. 1062.

Streams upon boundaries. Where a boundary line between towns is the
bank of a stream, such stream is included within the expression, “ streams
or other waters upon their boundaries,” as contained in this section. Town. of
946 HIGHWAYS AND BRIDGES.
Hiigunway Law, § 250.

or other waters forming the boundary line between a city of thie third
class and a town, such city and town shall be liable each to pay its just
and equitable share of the expenses for the construction, maintenance
and repair of such bridges. Except as otherwise provided by law, a city
of the third class shall be deemed a town for the purposes of this article.
Each of the counties of this state shall also be liable to pay for the con-
structure, care, maintenance, preservation and repair of public bridges
lawfully constructed over streams or other waters forming its boundary
line, not less than one-sixth part of the expense of construction,
care, maintenance, preservation and repair,” and, except in a county
containing a portion of the Adirondack park, the whole of such expenses
of public bridges lawfully constructed or to be constructed over streams,
or waterways, intersecting county roads. [Tlizhway Law, § 250, as
cemended by L. 1914, chs. 78, 199, and L. 1914, ch. 589; B. C. & G.
Cons. L., p. 2319.]

East Fishkill, v. Town of Wappinger, 97 App. Div. 7, 89 N. Y. Supp. 599.

Bridges over town boundaries. The provisions of the above section as to the
construction of bridges over town lines only refer to bridges connecting with the
town sought to be charged, or ending therein, and are not intended to apply to a
bridge neither end of which is in tie town sought to be charged with the cost
thereof, and which is not accessible therefrom, although one of its piers, and the
middle portion of it, are situated upon and over land belonging to such town.
Town of Candor v. Town of Tioga, 11 App. Div. 502; 42 N. Y. Supp. 911.

The general rule, however, is that when a bridge is built over a stream forming
the boundary line of towns, the expense of its construction and maintenance is to
be borne equally by the towns. People ex rel. Root v. Supervisors, 81 Hun, 216; 30
N. Y¥. Supp. 729, affd. 146 N. Y. 107.

Boards of supervisors may, upon the proper application of one of such towns,
enact a law authorizing and compelling the erection of a bridge over a stream form-
ing a boundary line between such towns, and may impose a tax upon such towns to
pay the expense thereof, although a majority of the taxpayers of one of such towns
and its officers are opposed to it, however such objection may be indicated. Town
of Kirkwood v. Newbury, 122 N. Y. 571; 26 N. E. 10.

A bridge may be constructed across a river dividing towns where the highway
in each town comes to the river bank, although no such bridge has previously
existed. Matter of Mohawk River Bridge, 128 App. Div. 54, 112 N. Y. Supp. 428.
In order that towns may be jointly liable for the construction of a bridge over a
stream forming their boundary, such bridge must connect a lawful highway in each
town; but the fact that a highway has been laid out is not sufficient; there must
be an existing thoroughfare suitable for travel. Beckwith v. Whalen, 70 N. Y. 430;
People ex rel. Keene v. Supervisors, 151 N. Y. 190. The necessary approaches are
part of a free bridge, and both towns are equally and jointly liable for an approach
built in either town. Edwards v. Ford, 22 App. Div. 277, 47 N. Y. Supp. 995.

The consent of the town superintendent of both towns is necessary where a
railroad seeks to cross a bridge constructed and maintained jointly by such towns.
Wheatfield v. Tonawanda St. R. R. Co., 92 Hun, 460; 36 N. Y. Supp. 744.

Apportionment of expense of constructing bridge between counties to
replace old structures. When the bridge which formerly extended from the city
of Glens Falls, county of Warren, to an island in the Hudson river and the bridge
extending from said island to the village of South Glens Falls in the adjoining
county of Saratoga, were replaced by a structure extending from said city to said
village situated in the said adjoining counties, the city of Glens Falls and the town
of Moreau are jointly liable for the expense of constructing the new bridge, and of a
bridge temporarily used, while the county of Warren is liable for not less than one-
sixth part of the expense of construction, care, maintenance and repair of the new
bridge The county of Warren is not exempt from sharing in the cost of the
southerly portion of said bridge extending from the island in the Hudson river to
said village in the adjoining county. People ex rel. City of Glens Falls v. County of
Warren (1915), 170 App. Div. 144, 155 N. Y. Supp. 642.

2. Liability cf counties. Effect of the act of 1895 amending this section

 
BRIDGES. 947
Highway Law, §§ 251-253.

§ 2 LEVY OF TAX UPON COUNTY.

Each supervisor shall present to the board of supervisors of his county
at its annual session a statement specifying the amount paid during the
preceding year ending on the thirty-first of October for the construction,
care, maintenance, preservation and repair of public bridges over streams or
other waters forming the boundary of such county. The board of super-
visors shall levy upon the taxable property of the county a sum sufficient
to pay its proportion of such expense, and the same when collected shall
be paid to the supervisor of such town to be applied by him on the order
of the tow superintendent after audit as provided in this chapter, toward
the payment of such expense. [Highway Law, § 251; B. C. & G. Cons.
Li, Ye 2822.)

§ 3. PENALTY, AND NOTICE ON BRIDGE,

The town superintendent may fix and prescribe a penalty, not less than
one or more than five dollars, for riding or driving faster than a wall on
any bridge in his town whose chord is not less than twenty-five feet in
length and put up and maintain in a conspicuous place, at each end of
the bridge, a notice in large characters, stating each penalty incurred.
[Highway Law, § 252; B. C. & G. Cons. L., p. 2322.]

§ 4. OFFENSE.
Whoever shall ride or drive faster than a walk over any bridge, upon

 

one-sixth part of the expense of construction, care, maintenance and repair of the
new bridge. The county of Warren is not exempt from sharing in the cost of the
southerly portion of said bridge extending from the island in the Hudson river to
said village in the adjoining county. Pcople ex rel. City of Glens Falls v. County
of Warren (1915), 170 App. Div. 144, 155 N. Y. Supp. 642.

2. Liability of counties. Effect of the act of 1895 amending this section was
to repeal the provisions of the former act requiring contribution from the county
when the expense of all the free bridges of a town exgeeded a certain amount. Town
of Wirt v. Supervisors, 90 Hun, 205; 35 N. Y. Supp. 887. The amendment of 1895
abrogated the effect of the decision in the case of People ex rel. Root v. Supervisors
of Steuben, 146 N. Y.'107. The act of 1895 was held not to apply to bridees com-
pleted prior to its taking effect. Stone v. Supervisors, 166 N. Y. 85. Duties of
counties under this section may be enforced by mandamus. People v. Supervisors,
142 N. Y. 271.

County aid to towns for construction and repair of bridges. If the board
of supervisors of any county shall deem any town in the county to be unreasonably
burdened by its expenses for the construction and repair of its bridges, the board
may cause a sum of money, not exceeding two thousand dollars in any one year, to
be raised by the county and paid to such town to aid in defraying such expenses.
[County Law, § 63; B. C. & G. Cons. L., p. 754.]

3. For form of statement of the supervisor of the expense incurred in the
construction and repair of a town bridge, see Form No. 142, post.

A statement that is verified and contains a description of the bridge and the
whole expense in items incurred by the town during the year preceding for con-
structing and repairing the same is sufficient. People ex rel. Root v. Co., 81 Hun,
216, 30 N. Y. Supp. 790. .
948 HIGHWAYS AND BRIDGES.
Highway Law, § 254.

which notice shall have been placed, and shall then be, shall forfeit for
every offense, the amount fixed by such town superintendent and specified
in the notice. [Highway Law, § 253; B. C. & G. Cons. L., p. 2322.]

§ 5. JOINT LIABILITIES OF TOWNS AND THEIR JOINT CON-
TRACTS.

Whenever any two or more towns shall be liable to make or maintain
any bridge or bridges, the same shall be built and maintained at the joint
expense of such towns, without reference to town lines, except where the
hoard of supervisors has otherwise apportioned such expense as provided in
section ninety-seven. The town superintendents of all the towns, or of one
or more of such towns, the others refusing to act, may, when directed by
their respective town boards, enter into a joint contract for making and
repairing such bridges.» [Highway Law, § 254; B. C. & G. Cons. L., p.
2322. ]

 

4. Joint liabilities of towns. This section applies to towns jointly liable to
maintain bridges, but does not prescrike under what circumstances the liability
exists. No such joint liability exists, unless there is at the time a lawful
highway in each town, which would be connected by, and of which the bridge
would form a part. Beckwith v. Whalen, 70 N. Y. 4380; People ex rel. Keene
v. Supervisors, 151 N. Y. 190. The mere fact that a highway has been laid
out is not sufficient; there must be an existing thoroughfare, suitable for
travel. Idem. Proceedings to compel the repair of a bridge can only be insti-
tuted under this section where the bridge crosses a stream dividing the towns.
Matter of Freeholders of Cattaraugus Co., 59 N. Y. 316; Tifft v. Alley, 3 T.
& C. 784.

The words “at the joint expense of such towns” means the equal expense
thereof. The expense is to be equally imposed upon the towns without regard
to the portion of the bridge located in each town or the proportion of the total
cost expended in each such town. Lapham v. Rice, 55 N. Y. 472; Bryan v.
Landon, 3 Hun, 500; Day v. Day, 94 N. Y. 153; Matter of Spier, 3 N. Y. Supp.
438; 20 N. Y. St. Rep. 389; affd., 115 N. Y. 665. The approaches to the bridge
are a part thereof and are both to be maintained at the joint expense of the
two towns. Edwards v. Ford, 22 App. Div. 277; 47 N. Y. Supp. 995; Hawxhurst
v. Mayor, 43 Hun, 588. In the case of Marshall v. Hayward, 74 App. Div. 28,
Woodward, J., in writing for the court, said:

“The spirit of the act appears to be that the commissioners of highways
for the several towns interested shall act for their towns, and that they shall,
on behalf of their respective towns, enter into a joint contract for the con-
struction of such bridges, each town providing for the payment of its equal
portion of the cost of such bridges, without any reference to the question of
what portion of any such bridge may be within the jurisdiction of any par-
ticular town.”
; BRIDGES. 949
Highway Law, § 255.

§ 6. REFUSAL TO REPAIR.

If the town board of either of such towns, after notice in writing from
the town board of any other of such towns, given by the town clerk
thereof, shall not within twenty days give their consent in writing to
build or repair any such bridge,® and shall not within a reasonable time
thereafter direct, by resolution, the same to be done, the town board giving
such notice may direct the town superintendent to make or repair such
bridge, and then maintain an action in the name of the town, against the
town which neglects or refuses to join in such making or repairing, and in
such action, the plaintiffs shall be entitled to recover so much from the
defendant, as the town would be liable to contribute to the same, together
with costs and interest.6 [Highway Law, § 255; B. C. & G. Cons. L.,
p. 2324.]

 

Powers of town superintendents. The town must act through the town
superintendents, and there is no authority for employing anybody else, except
in the construction of the bridge under contract, not even counsel or represent-
atives of the different towns. The town superintendents do not constitute a
single body, but each, by mutual agreement, becomes a party to the contract.
This section must be construed to authorize the town superintendents to
acquire real estate for the approaches. Marshall v. Hayward, 74 App. Div.
27, 77 N. Y. Supp. 57.

6. For form of notice to town boards of adjoining towns to rebuild or
repair bridge, see Form No. 148, post. For form of consent to rebuild or
repair bridge, see Form No. 144, post.

Necessity of notice. It is apparent from the above section that if a town
board directs a superintendent to repair a bridge without giving notice to the
town boards of the towns jointly liable, it cannot recover their proportion of
the expense because of their failure to comply with the requirements of the
statute. Flynn v. Hurd, 118 N. Y. 19, 29 N. HE. 1109. The town board of one
of the towns liable may waive the notice; and where, upon application of
the town board of the other town, it absolutely refuses to help rebuild the
bridge when it becomes necessary, the notice is thereby waived, and the latter
may rebuild and then maintain an action against the former to recover half
the expense. Day v. Day, 94 N. Y. 153; Clapp v. Town of Ellington, 87 Hun,
542; 34 N. Y. Supp. 283.

Notice to repair given by the supervisor, instead of by the town clerk, as
required by this section, having been received and answered without objection,
is valid. Matter of Town of Rutland, 70 Misc. 82, 128 N. Y. Supp. 94.

Action to recover contribution. An action is not maintainable under this
section to recover the amount which the town is liable to contribute toward the
construction of a joint bridge unless all the precedent conditions imposed by
statute have been complied with. Flynn v. Hurd, 118 N. Y.19. Such an action
may be maintained only where the town sued is liable for a portion of the
expense of constructing or maintaining the bridge. Town of Candor v. Town
of Tioga, 11 App. Div. 502, 42 N. Y. Supp. 911.

An action will lie under the above section where the town board of one of
the towns, having met with the town boards of the other towns and agreed to
join in the repair, yet have neglected to pay their share of the expense. Surdam
950 HIGHWAYS AND BRIDGES.
Highway Law, § 256.

§ 7. PROCEEDINGS IN COURT.

Whenever two or more adjoining towns which, under the provisions
of this chapter, shall be liable to make or maintain any bridge, whether
in the same or different counties, three freeholders in either of such
towns may, by petition signed by them, apply to the town board in
each of such towns, to build, rebuild or repair such bridge, and if such
town boards refuse to build, rebuild or repair such bridge within a
reasonable time, either for want of funds or any other cause, such free-
holders, upon affidavit and notice of motion, a copy of which shall be
served on the supervisor or town clerk of each of said towns at least
eight days before the hearing, may apply to the supreme court at a
special term thereof, to be held in the judicial district in which such
bridge or any part thereof shall be located, for an order requiring
such town boards to direct the town superintendents to build, rebuild
or repair such bridge, and the court upon such motion may, in doubt-
ful cases, refer the case to some disinterested person to ascertain the
requisite facts in relation thereto, and to report the evidence thereof
to the court.? Upon the coming in of the report, in case of such
reference, or upon or after the hearing of the motion, in case no
reference shall be ordered, the court shall make an order thereon as
the justice of the case shall require.’ Ifthe motion be granted in whole
or in part, whereby funds shall be needed to earry the order into effect,
such court shall specify the amount of money required for that purpose,
and how much thereof shall be raised in each town. [Highway Law,
§ 256, as amended by L. 1922, ch. 329.]

 

v. Fuller, 31 Tiun, 500. It need not be alleged in the complaint that the
defendant towns had money with which to pay their share of the joint ex-
pense. Oakley v. Town of Mamaroneck, 39 Hun, 448.

If two or three towns have paid the entire expense of the construction
or repair of a bridge for which all three towns are jointly liable, the town
superintendents of each of the two towns should sue separately to recover
the portion paid by each. Corey v. Rice, 4. Lans, 141.

7. For form of petition of freeholders to town boards of adjoining towns
to rebuild or repair a bridge, see Form No. 145, post. For form of notice of
motion for an order of the Supreme Court compelling town superintendents
to rebuild or repair bridge, see Form No. 146, post. For form of affidavit to
be used on such motion, see Form No. 147, post.

These proceedings are limited in their operation and effect to bridges over
boundary lines between towns; although by other statutes bridges not so sit-
uated are maintainable at the joint expense of two cr more towns, the pro-
ceedings above authorized do not apply thereto. Matter of Petition of Free-
holders of Cattaraugus Co., 59 N. Y. 316.

The inability of superintendents of the adioining towns to agree on the
kind of material to be used in the construction of the bridge is equivalent
to a refusal and justifies the application by freeholders. Matter of Towns
of Mt. Morris and Castile, 41 Hun, 29.
BRIDGES, 951
Highway Law, §§ 257, 258.

§ 8. SUPERVISOR TO INSTITUTE PROCEEDINGS.

The supervisor of any such town shall, when directed by the town
board, institute and prosecute proceedings under this chapter, in the
name of the town, to compel the town board of such adjoining town or
towns to cause the town superintendents thereof to join in the build-
ing, rebuilding or repair of any such bridge, in like manner as free-
holders are thereby authorized. [Highway Law, § 257; B. C. & G.
Cons. L., 2d ed., p. 3594.]

§ 9. DUTY OF TOWN SUPERINTENDENTS.

The order for building, rebuilding or repairing a bridge being made,
and a copy thereof being served on the town superintendent of such
adjoining towns respectively the town superintendent of such towns:
shall forthwith meet and cause such bridge to be built, rebuilt or re-
paired in accordance with the plans and specifications prepared or
approved by the district or county superintendent and by the state
commissioner of highways if such bridge is located on a state or county
highway, out of any funds in the hands of the supervisors of such
towns applicable thereto; if an inadequate amount of such funds are
on hand, the town boards of such towns shall direct the town super-
intendents thereof to build, rebuild or repair such bridge, and the same
shall be done upon credit, or in part for cash or in part upon eredit
according to the exigency of the case; and such town boards shall direct
the superintendents to enter into a contract, to be approved by such
town boards, for building, rebuilding or repairing such bridge pledging
the eredit of each town for the payment of its appropriate share so far
as the same shall be upon eredit.2 [Highway Law, § 258; B. C. & G.
‘Cons. L., 2d ed., p. 3594.]

 

This section has no application to a bridge upon a stream intersecting the
town line at right angles, and intermediate between the exterior lines of a
road district. Tifft v. Alley, 3 T. & C. 784. Liability to contribute cannot be
enforced under this section where the proposed bridge will not connect a
lawful highway in each town. Matter of Freeholders of Montezuma, 38 N. Y.
St. Rep. 970, 14 N. Y. Supp. 845, 80 Hun, 581.

It seems that where a highway in each town comes to the bank of a river
dividing the towns, a bridge may be constructed across the river connecting
such highways by proceedings pursuant to this section, although no bridge
has existed there before. Matter of Mohawk River Bridge, 128 App. Div.
54, 112 N. Y. Supp. 428.

' 8. For form of order of court to rebuild bridge, see Form No. 148, post.

9. Application of section. This section has been held inapplicable to the
city of Auburn in an action brought by a town adjoining the city on the
ground that no such power for raising funds is conferred upon that city.
952 HIGHWAYS AND BRIDGES.
Highway Law, §§ 259-262.

§ 10. REPORT OF TOWN SUPERINTENDENTS, AND LEVY OF TAX.

The town superintendent of each town shall make a full and verified
report of their proceedings in the premises including an accurate account
of what has been done in respect to such bridge, and shall attach thereto
a copy of the order granted by the supreme court. Such report, account
and order shall be certified by the town board and delivered to the
supervisor and be presented by him to the board of supervisors of his
county. The board of supervisors at their annual meeting shall levy a
tax upon each of such towns, when in the same county, and upon the appro-
priate towns when in different counties, for its share of the costs of build-
ing, rebuilding and repairing such bridge, after deducting all payments
actually made by the supervisor upon the written order of the town super-
intendent. Such tax, including all payments, shall in no case exceed the
amount specified in the order of the supreme court. [Highway Law,
§ 259; B. C. & G. Cons. L., p. 2327.]

8 11. APPEALS.

Either party aggrieved by the granting or refusing to grant such order
by the court at special term, may appeal from such decision to the appel-
jate division of the supreme court for the review of the decision. The
appellate division may alter, modify or reverse the order, with or without
costs. [Highway Law, § 260; B. C. & G. Cons. L., p. 2327.]

§ 12. POWER OF COURT ON APPEAL.

The special term may grant or refuse costs as upon a motion, including
also witnesses’ fees, referees’ fees and disbursements. The appeal provided
for in the last preceding section shall conform to the practice of the
supreme court, in case of appeal from an order of a special term to the
appellate division. [Highway Law, § 261; B. C. & G. Cons L., p. 2327.]

g§ 13. REFUSAL TO REPAIR BRIDGES.

Whenever any such bridge shall have been or shall be so out of repair as
to render it unsafe for travelers to pass over the same, or whenever any such
bridge shall have fallen down, or been swept away by a freshet or otherwise,

 

Matter of Certain Freeholders, 46 Hun 620. But sec. 250 of the present High-
way Law provides for the joint liability of a town and a city of the third
elass to construct and maintain bridges. over boundary lines, and provides
that “Except as otherwise provided by law, a city of the third class shall
be deemed a town for the purposes of this article.”
BRIDGES. 953

Highway Law, § 262a.

if the town superintendent of the adjoining town or towns, after reason-
able notice of such condition of the bridge, have neglected or refused, or
shall neglect or refuse to-repair or rebuild it, then whatever funds have been
or shall be necessarily or reasonably laid out or expended in repairing such
bridge or in rebuilding the same, by any person or corporation, shall be a
charge on such adjoining town or towns, each being liable for its just pro-
portion; and the person or corporation who has made such expenditure, or
shall make such expenditures, may apply to the supreme court, at a special
term, for an order requiring such towns severally to reimburse such expend-
itures, which application shall be made upon papers to be served upon the
town superintendents of such towns at least eight days prior thereto; and the
court may grant an order requiring each adjoining town or towns to pay
its just proportion of the expenditure,. specifying the same; and the town
superintendent of each of such towns shall forthwith serve a copy of
such order upon the supervisor of each of their towns, who shall present
the same to the board of supervisors, at their next annual meeting. The
board of supervisors shall raise the amount charged upon each town by
the order, and cause the same to be collected and paid to such persons or
corporation as incurred the expenditure. The order shall be appealable.
[Highway Law, § 262; B. C. & G. Cons. L., p. 2328.]

§ 18a. CONSTRUCTION OR IMPROVEMENT OF BRIDGE BY COUNTY
AND TOWN OR TOWNS.

The board of supervisors of a county may provide for the construction
or improvement of a bridge in one or more towns of a county and at the
joint expense of the county and town or towns as provided in this section.
The board may by resolution direct the district or county superintendent
to examine such bridge and report thereon, and if the board considers such
bridge to be of sufficient importance to be constructed or improved as
provided herein, it shall direct such district or county superintendent to
prepare or cause to be prepared maps, plans, specifications and estimate
thereon, and such district or county superintendent shall, subject to the
direction and control of the board of supervisors, have the same powers and
duties in respect to such bridge as are given to him with respect to state-
county highways in section one hundred and twenty-five of this chapter.
Upon the completion of such maps, plans, specifications and estimate, they
are to be submitted to the board of supervisors for approval, and such
board shall thereupon adopt a resolution providing for the construction or
improvement of such bridge in accordance with such plans, maps, specifi-
9538a HIGHWAYS AND BRIDGES.
Highway Law, § 262a.

cations and estimate, or in accordance with such maps, plans, specifications
and estimate as may be approved by it. The board of supervisors shall
award contracts for the construction or improvement of such bridge and
the provisions of section one hundred and thirty of this chapter shall apply
so far as may be to such contracts and the award, execution and fulfillment
thereof. Such contract may be awarded to the town board of any town in
which such bridge is located and the provisions of section one hundred and
thirty-one of this chapter shall apply thereto. The board of supervisors
shall determine the apportionment of the cost of the construction or improve-
ment of such bridge to be borne by the county and the portion to be borne
by the town or towns in which such bridge is located, or by the town or
towns in which such bridge is not located but which are particularly bene-
fited thereby. The amount to be borne by the county shall be levied and
collected as a county charge and paid into the county treasury. The
amount to be borne by a town shall be levied and collected as a town charge,
and when collected shall be paid into the county treasury. If such bridge
shall be located in a different position from an existing bridge, the board of
supervisors shall acquire land for the requisite construction, and such board
may also acquire land for the purpose of obtaining gravel, stone or other
material when required for the construction or improvement of such bridge,
together with a right of way to the bed, pit or quarry or other place where
such gravel, stone or other material may be located; and the provisions
of sections one hundred and forty-eight to one hundred and fifty-five both
inclusive shall apply to the acquisition of such land as far as may be, except
that the cost of such land and the expense incident to acquiring the same
shall be deemed a part of the cost of the construction and improvement of
such bridge under the provisions of this section. The board of supervisors
may by resolution authorize the county treasurer of the county or the super-
visors of the respective towns to borrow money on the faith and credit of the
county and of such towns by temporary loans in anticipation of the next
succeeding tax levy or an issue of bonds for such levy or by the issue and
sale of bonds to pay the portion of the cost of the construction or improve-
ment to be borne respectively by the county or such town or towns. Such
resolution may also provide for the issue and sale of bonds and shall con-
BRIDGES, 953b

L. 1897, ch. 269, §§ 1-3.

form as nearly as may be to the provisions of the chapter relating to a
resolution authorizing a town to borrow money to pay its share of the cost of
construtcion or improvement of a county highway. The construction or
improvement authorized by such resolution shall be done under the super-
vision and direction of the district or county superintendent. Payments
therefor shall be made from time to time by the county treasurer upon the
certificate of the district or county superintendent indorsed by the chair-
man of the board of supervisors. Such bridge when completed and accepted
by the board of supervisors shall be thereafter repaired and maintained at
the sole expense of the town or towns in which it is located unless the board
of supervisors shall apportion a share of the expense of the repair and
maintenance thereof upon the county, or upon the town or towns particularly
benefited. [Highway Law, § 262a, as added by L. 1918, ch. 327.]

§ 14. CONSTRUCTION AND MAINTENANCE OF BRIDGES OVER
WATERS BETWEEN TOWNS AND CITIES OF OVER 1,500,000
INHABITANTS.

Construction of bridges.— Whenever the highway commissioners having
power in the premises under this act shall decide that the public con-
venience requires a bridge to be constructed over the stream or waters
dividing a city from a town or any incorporated village in said town, the
same shall be constructed under and according to the provisions of the
Highway Law for the construction of bridges between towns, being article
five of chapter nineteen of the general laws, the common council of the
city being the highway commissioners of said city, and the board of village
trustees of any incorporated village in the town being the highway commis-
sioners of said village. [L. 1897, ch. 269, § 1.]

Purchase of land for approaches——Any land required for the approaches
to said bridges for a distance not exceeding three hundred feet from the
bridge, may be bought by the commissioners of highway constructing the
bridge, the approaches constructed and the cost thereof including the cost
of the bridge. [Idem, § 2.]

Condemnation of land— When an agreement cannot be made as to the
price to be paid for the land for such approaches, the said land shall be .
condemned in the manner as provided by chapter ninety-five, laws of
954 HIGHWAYS AND BRIDGES.
L. 1897, ch. 269, §§ 4,5; Highway Law, § 268.

eighteen hundred and ninety, with the acts amendatory thereof. The
expenses of said condemnation proceedings shall be included in and be
a part of the cost of the bridge. [Idem, § 3.]

Issue and sale of bridge bonds.—In order to pay for the said bridges,
the city and town shall each have the power to issue bonds, to be known as
bridge bonds of the said city and town, respectively, by the officers thereof,
and in the manner provided by law for the issue of other bonds of said
city and of said town, to an amount necessary to pay their respective pro-
portions of the said bridges, which shall be borne by said city and town in
the proportion of their equalized assessed valuation of taxable property, at
the time of the final resolution of said city and town, authorizing the con-
struction of the said bridges. The total amount of such bonds to be issued
by the city shall not exceed seventy-five thousand dollars, or by a town,
twenty thousand dollars, Said bonds shall not be sold for less than the par
value thereof, and accrued interest, if any shall mature and be payable at
a time not over thirty years from date; be of such denomination and bear
such interest, not to exceed five per centum per annum, as the common
council of the city, in case of a city: or the town board, in case of a town,
shall determine. The proceeds of the said bonds shall be paid to the
proper officer for receiving funds of each municipality, and credited to a
fund which shall be known as the bridge fund, and shall only be paid out
by warrants as other funds of said citv or town are paid out. [Idem, § 4.
as amended by L. 1898, ch. 591; T.. 1899, ch. 232, and T, 1902. ch. 391.]

Application of act.—This act shall apply only to towns from which at
least one-quarter of the territory thereof has heretofore heen taken for
park purposes, and which also adjoin a city containing at the time of the
taking of the last federal census a population of one and one-half million.
[Idem, § 5.]

§ 15. RESOLUTION OF BOARD CF SUPERVISORS FOR ABOLITION
OF TOLL BRIDGES.

The board of supervisors of any county may, and upon the presentation
of a petition signed by fifty per centum of the owners of real property
and representing a majority of the assessed valuation of the town or city
in which a toll bridge is wholly or partly situated must, except where such
bridge extends between the state of New York and a foreign country, pass
a resolution that public interest demands the abolition of such toll bridge
situated wholly or partly within said county. In case of a toll bridge situ-
ated in two counties such resolution shall be a concurrent resolution passed
by the boards of supervisors of the counties wherein said bridge is situated.
Within ten days after the passage of such resolution the clerk or clerks of
the board or boards of supervisors shall transmit certified copies thereof to
BRIDGES. 955
Highway Law, §§ 264, 265.

the state commission of highways. Before transmitting such certified copy
or copies to the state commission of highways, the board or boards of super-
visors shall investigate as to the value of such toll bridge and shall prepare
an estimate of the probable cost of acquiring the same, and the clerk
or clerks shall transmit such estimate, together with any data in relation
to the value of such toll bridge which the board or boards of supervisors
may secure, to the state commission of highways with the certified copy
or copies of such resolution. [Highway Law, § 263, as added by L. 1909,
ch. 146, and amended by L. 1910, ch. 569, in effect June 21, 1910.]

§ 16. INVESTIGATION BY THE STATE COMMISSION OF HIGH-
WAYS.

The state commission of highways shall upon the receipt of such resolu-
tion or concurrent resolution, investigate and determine whether the bridge
so sought to be abolished is of sufficient public importance to come within
the provisions of this article, taking into account the use, location and
value of such toll bridge for the purpose of common traffic and travel and
shall also investigate as to the value of such toll bridge and from the
estimate and data transmitted by the board or boards of supervisors, or from
such other information as the commission may secure, prepare an estimate
of the probable cost of acquiring such toll bridge. After such investigation
such commission shall certify its approval or disapproval of such resolution.
Tf it shall disapprove such resolution, it shall certify its reasons therefor
to such board or boards of supervisors. If it shall approve such resolu-
tion it shall certify its approval thereof to the attorney-general, and shall
transmit to him the estimate made by the commission of the probable cost
of acquiring such toll bridge, together with any data the commission may
have in its possession in relation to the value thereof. [Highway Law, §
264, as added by L. 1909, ch. 146, and amended by L. 1910, ch. 569, in
effect June 21, 1910.]

§ 17. ACQUISITION BY ATTORNEY-GENERAL.

Upon the receipt of such certification of approval the attorney-general
shall apply to the court, in the name of the people of the state, for the ap-
pointment of a commission to appraise the value of said toll bridge and the
franchise thereof and proceed to acquire title to said toll bridge and its
franchise rights in accordance with the provisions of the code of civil pro-
cedure for the condemnation of property for public purposes. When said
commission shall have determined the value of such toll bridge, the attor-
ney-general shall certify such determination to the comptroller and to the
board or boards of supervisors of the county or counties wherein such to!]
956 HIGHWAYS AND BRIDGES.
Highway Lew, §§ 265, 266.

bridge is situated. After the receipt thereof, upon a majority vote” of
the board or boards of supervisors, they shall adopt a resolution approv-
ing the purchase of said toll bridge under the provisions of this article
and providing for the payment of the county’s share thereof and there-
upon shall transmit a certified copy of such resolution to the state comp-
troller. The condemnation and purchase of toll bridges under the pro-
visions of this article shall be taken up and carried forward in the order
in which they are finally designated as determined by the date of the
receipt in each case of the certified copy of the approval by the state
commission of highways. [Highway Law, § 265, added by L. 1909,
ch. 146; B. C. & G. Cons. L., p. 2329.]

§ 18 PAYMENT OF EXPENSE OF ACQUISITION. .
One-half of the expense incurred in the condemnation and acquire-

ment of said toll bridge shall be paid by the state treasurer upon the
warrant of the comptroller out of any specific appropriation made to
carry on the provisions of this article, but no such payment shall be
made until the county or counties in which said toll bridge is situate
shall have complied with all the provisions hereof. One-half of the
expenses thereof shall be a charge, in the first instance, upon the county
or counties in which said toll bridge is situate, and the same shall be
paid by the county treasurer upon the requisition of the comptroller,
but the amount so paid shall ke apportioned by the voard of supervisors
so that thirty-five per centux. of such cost shall .-. a general county
charge and fifteen per centum shall te . chaige upon the town or towns
or city or cities in which said toll br‘dge *s awrolty or partly located.
In case a toll bridge is located in two counties tbe fifty per centum of
the expense to be borne by the counties ska!l oe apportioned between
them on the basis of their assessed valuation ana the fifteen per centum
shall be apportioned by the board of supervisors upon the town or towns
or city or cities in the same manner, the board of supervisors of a
county, the town board of a town or the common council of a city may
determine that the portion of the expense chargeable to such county,
town, or city, as the case may be, shall be raised by taxation and levied
and collected as other municipal taxes, or that the money therefor be
raised by the issue and sale of municipal bonds. In the case of a town
such bonds shall be issued and sold in the manner provided by law for
the issue and sale of town bonds, under the town law, to pay judgments.
[Highway Law, § 266, added by L. 1909, ch. 146, and amended by
L. 1914, ch. 81; B. C. & G. Cons. L., p. 2330.]

10. “Upon a majority vote,” as used in this statute, means the same, as
though it provided that the resolution of approval may be adopted “if a majority
so vote.” The provision for approval is not a mandatory direction. Matter of
State of New York, 207 N. Y. 582.

 
BRIDGES. 957

e

Highway Law, §§ 267-269

§ 19, MAINTENANCE OF BRIDGE.

When a toll bridge shall have been acquired by the state under the
provisions of this article it shall be maintained as a free bridge and the
expense thereof shall be a charge upon the town or towns or city or
cities within which it is situated. Upon the acquisition of any toll
bridge as provided in this article, the board or boards of supervisors
of the county or counties in which said toll bridge is located shall upon
notice of such acquisition from the comptroller, accept and maintain
the same as a part of the highway system of said county or counties
and such acceptance shall be deemed to have been formally taken at
the expiration of twenty days from the notice of said acquisition by the
state comptroller. [Highway Law, § 267, added by L. 1909, ch. 146;
B. C. & G. Cons. L., 2d ed., p. 3600.]

§ 20. USE OF TOLL BRIDGE BY PUBLIC SERVICE CORPORATIONS;
CONDITIONS; POWERS OF TOWN BOARD.

After a bridge shall be acquired by the state under the provisions of
this article, the same shall not be used by any railroad, telephone, gas,
electric light, heat or power company or any other public service cor-
poration, for any purpose except upon such terms and the payment of
such rental as shall be determined by the town board of the town or
towns and the common council of the city or cities within which it is
situated. The money received therefor shall be divided equally be-
tween the localities. The provisions of this section, however, shall not
affect any existing contract for the use of such bridge by any other cor-
poration, except that the compensation provided for such use in such
existing contract shall be paid to the localities as herein provided.
tee Law, § 268, as added by L. 1910, ch. 569, in effect June 21,

§ 21. ACQUISITION OF CERTAIN TOLL BRIDGES AT THE EXPENSE
OF THE STATE.

1. If a toll bridge for the traffic of vehicles and foot passengers con-
stitutes a connecting link between two state routes as described in sec-
tion one hundred and twenty of this chapter, or constitutes a part of
a state route and is included in the description thereof, or constitutes
a connecting link between a county highway heretofore improved and
a county highway which is indicated for improvement on the map
approved by chapter eighteen of the laws of nineteen hundred and
twenty-one the board of supervisors of the county in which such bridge
is situated, or if situated in two counties the boards of supervisors of

c

 

11. Acquisition of toll bridge; payment.—Full payment must be made to
complete the acquisition of a toll bridge under this section. Rept. of Atty.
Genl., March 28, 1911.

Requisition on the county treasurer for the county’s share should not be
made by the comptroller, where no funds are available to pay the state’s
share. Rept. of Atty. Genl., Mareh 28, 1911.

As to procedure for acquisition, see Matter of State of New York, 152
App. Div. 633, affd. 207 N. Y. 582. :
957a HIGHWAYS AND BRIDGES.

Highway Law, § 269. -

such counties concurrently, may, by resolution, petition the state com-
mission of highways for the acquisition of such bridge by the state pur-
suant to this section. Within ten days after the passage of such resolu-
tion the clerk or clerks of the board or boards of supervisors shall
transmit certified copies thereof to the state commission of highways
together with an estimate of the probable cost of acquiring the same
and any data in relation to the value thereof which the board or boards
of supervisors may secure.

2. The state commissioner of highways shall upon receipt of such
resolution or concurrent resolution, and within three months thereafter,
investigate and determine whether the public interest demands the
acquisition of such bridge by the state and shall also within said three
months approve or disapprove of such resolution and if such resolution
be approved shall prepare an estimate of the probable cost of acquiring
such bridge. If such resolution be disapproved the commission shall
certify its reason therefor to such board or boards of supervisors.

3. If it be approved the commission of highways is hereby authorized
and empowered to agree with the corporation owning the said bridge
upon the compensation which shall be made to it for the said bridge and
its appurtenances, its franchises, its rights for the maintenance and use
of said bridge, and any and all damage which shall result to said cor-
poration so owning the said bridge by reason of the taking of such
structure, and such agreement shall be reduced to writing and executed
by the commission of highways in the name of the people of the state
of New York and by the corporation owning the said bridge, and filed
in the office of the comptroller of the state of New York.

4. In the event that no agreement is reached between the said com-
mission of highways and the corporation owning the said bridge for
such purchase as aforesaid, the commission shall certify its approval
to the attorney-general and transmit to him the estimate made by the
commission of the probable cost of acquiring such toll bridge, fran-
chises and rights, and the amount of any and all damage incurred by
such acquisition, together with all data the commission may have in its

possession in relation thereto.

5. Upon the receipt of such certificate of approval, if and when sufficient
money shall have been appropriated by the state therefor, the attorney-
general shall apply to the court in the name of the people of the state for the
appointment of a commission, in accordance with the provisions of the code
of civil procedure for the condemnation of property for public purposes, to
appraise the value of such bridge, its franchises, rights and any and all
damages which shall result to such corporation so owning the said bridge by
reason of the taking of the structure and its rights and franchises in connec-
tion therewith. At any time after judgment shall be entered in such con-
demnation proceedings adjudging that the condemnation of such property
is necessary for the public use and that the plaintiff is entitled to take and
hold the same for the public use specified and the appointment of commis-
sioners to determine the amount of ccmpensation to be made therefor, the
sunerintendent of public works may cause a written notice to be served upon
such corporation that upon a day specified in such notice he will enter upon
and take possession of such property. The title to such property shall vest
in the state on the day specified in such notice, and the superintendent of
public works may enter upon and take possession of such property in accord-
ance with such notice, and shall thereafter maintain such bridge as a free
bridge and as a part of the state’s system of highways. If the possession
of such property be taken by the superintendent of public works before the
amount to be paid is appraised and determined in such condemnation pro-
BRIDGES. 957b
Highway Law, § 269.

ceedings, the corporation owning such property shall be entitled to interest
upon the amount of the award from the time the possession of such bridge
is so taken to the time of the payment of such compensation, and the faith
and credit of the state of New York are hereby pledged to the payment of
such award and interest; and in case such payment be not made or tendered
within one year after the entry of the final order in such. condemnation
proceeding directing the amount to be paid or the final order in any and
all appeals therefrom, the corporation which owned the said bridge shall
be reinvested with the title to such property and all rights and franchises
in connection therewith and the same shall be restored to such corporation;
and, in such event, such corporation shall have a right to prosecute in the
court of claims which shall have jurisdiction in the premises, any claim which
it may have for damages for the taking of its said property.

6. The amount agreed upon between the said commission of highways
and the said corporation, pursuant to such agreement so filed as aforesaid,
or if no agreement be reached, the amount so appraised and determined by
such condemnation commissioners, with the expenses of such condemnation,
shall be: paid by the state treasurer upon the warrant of the comptroller out
of the moneys appropriated for such purpose. Until payment to such cor-
poration be made after such agreement of the amount therein agreed to be
paid or upon condemnation, unless the superintendent of public works shall
enter upon and take possession of such property as provided by this section,
until the amount so appraised and determined in such condemnation pro-
ceedings, the corporation owning the said bridge shall be entitlcd to con-
tinue in possession and use thereof and of all the rights, privileges and
franchises enjoyed by it in connection therewith, but upon such payment
being made such bridge and all rights and franchises in connection thcrewith
shall become the property of the state of New York and shall be maintained
by the state as a free bridge and as a part of the staté system of highways.

7. If such bridge be acquired by the state pursuant to this section the
same shall not be used except as hereinafter provided by any railroad, tcle-
phone, gas, electric light, heat or power company or any other public service
corporation for any purpose except upon such reasonable terms and the pay-
ment of such reasonable rental to the state as shall be determined by the
commision of highways. The money received therefor shall be paid into the
state treasury and so much thereof as may be needed appropriated for the
maintenance of such bridge. ‘The provisions of this section, however, shall
not affect any existing contract for the use of such bridge by any corporation
except that the compensation provided for such use in such existing contract
shall be paid to the state.

8. Notwithstanding the provisions of this section, if any such bridge
be owned by a domestic corporation carrying on the business of onerat-
ing a railroad and which operates cars thereover, the commission of
highways in entering into such agreement or the commissioners in con-
demnation in making such appraisal and fixing such damages as afore-
said may take into consideration any bonds outstanding of such cor-
poration which may have been authorized by any public service com-
mission of this state to be issued by such corporation for the purchase
of said bridge and its franchises or the stock of any corporation former-
ly owning the said bridge, and shall fix and determine in making such
appraisal the amount of any and all damage which will result to such
corporation so owning such bridge by reason of the taking of the said
bridge and its rights and franchises in connection therewith, and such
corporation when said bridge shall have been acquired and such com-
pensation paid, and its successors, shall be permitted to continue
to use said structure upon payment of such reasonable rental to the
state for such use as shall be determined by the commission of high-
ways, and further provided that if such corporation, or any successor
957e HIGHWAYS AND BRIDGES.
Highway Law, §§ 269a, 269b.

thereof, should desire to use other parts or decks of such bridge or make
such use thereof as would require the strengthening, reconstruction or
change of the said bridge or its approaches, or the building of new ap-
proaches to the said bridge, such corporation or its successors may make
such use thereof and strengthen, reconstruct or make such changes in the
said bridge or its approaches or build new approaches to the said bridge
and use the same in such manner upon filing with the commission of high-
ways detailed plans for the proposed new use thereof, or for the strengthen-
ing, reconstruction of or changes in the said bridge or its approaches or for
the building of new approaches to the said bridge, and upon obtaining the
approval of such use and plans by the commission of highways and upon
payment of such further reasonable rental to the state for any such addi-
tional use of said structure or such approaches as shall be determined by the
commission of highways; provided further that the entire cost of any such
strengthening, reconstruction, additions or changes of the said bridge or its
approaches shall be paid exclusively by the corporation making such use
of said bridge and shall be deemed to be an expenditure for capital purposes
of such corporation paying the same for all purposes whatsoever. Any
such corporation using such bridge at the time of the acquisition thereof
by the state shall not be debarred from continuing such use by reason of
such acquisition; but the failure or refusal to comply with such terms or
to pay such rental shall forfeit the right of such corporation to use such
bridge, and the state commission of highways is hereby authorized and
empowered to close such bridge to the use of such offending corporation.

9. Any act or failure to act on the part of the commission of high-
ways as in this section provided shall be reviewable by the supreme
court of this state by mandamus or certiorari or such other appropriate
remedy as the case may require. [Highway Law, § 269, as added by
L. 1917, ch. 598, and amended by L. 1920, ch. 246, and L. 1921, ch. 205.]

§ 22. BRIDGES IN CERTAIN COUNTIES,

A pplication of article—So far as this article relates to a bridge wholly
within a county its application is limited to a county having a popu-
lation of less than two hundred thousand, adjacent to a city of the
first class having a population of over three millions. So far as it
relates to a bridge crossing the boundary line of two counties, its ap-
plication is limited to such county and an adjoining county. A bridge,
within the meaning of this article, shall be deemed to mean a bridge
having a span of more than five feet. The provisions of sections two
hundred and fifty-one to two hundred and sixty-two, inclusive, of this
chapter, shall not apply to a bridge described in this or the next sec-
tion. [Highway Law. § 269a, as added by L. 1917, ch. 589.]

Construction, maintenance and control of bridges.--Bridges in any such
BRIDGES. 957d

Highway Law, §§ 269¢c, 269d.

county over streams or waterways intersecting or at the terminus of state
highways, county highways or county roads shall be constructed, repaired
and maintained by the county. Bridges connecting any such state or county
highway or county road, over a stream or waterway, with a street, avenue,
bridge or part of a bridge of an adjoining city of the first class or of a
village or within an adjoining county, shall be constructed, repaired and
maintained at the joint expense of such county and city or of such county
and village or of such adjoining counties, as the case may be. The con-
struction, repair and maintenance of a bridge wholly within the county
shall be under the supervision of the county engineer. The construction,
repair and maintenance of a bridge between a county described in section
two hundred and sixty-nine-a and an adjoining county shall be under the
supervision of the county engineers of the respective counties, unless they
fail to agree in any matter and the state commissioner of highways may
assume jurisdiction, in which case such commissioner shall have the super-
vision of such construction, repair or maintenance during such time as he
shall consider advisable. The construtcion, repair and maintenance of a
bridge connecting a state or county highway or county road, in any such
county, with a street, avenue or bridge of an adjoining city of the first.
class shall be under the supervision of the county engineer of such county
and the authorities of such city having control by law of its bridges, unless
such authorities and county officer shall be unable to agree in any matter and
the state commissioner of highways may assume jurisdiction, in which case
such construction, repair or maintenance shall be under his supervision.
The construction, repair and maintenance of a bridge connecting a state or
county highway or county road in any such county, with a street, avenue or
bridge of an adjoining village shall be under the supervision of the county
engineer of such county, and the authorities of such village having control
by law of its bridges. [Highway Law, § 269b, as added by L. 191%, ch.
589.]

Plans and specifications to be prepared.— Plans, specifications and esti-
mates for the repair or construction of any such bridge shall be prepared by
the authorities having, in the first instance, supervision of such repair or
construction. All such plans, specifications and estimates shall be submitted _
to the state commissioner of highways for approval, and the same shall not
be used until approved by him. [Highway Law, § 269c, as added by L.
1917, ch. 589. ]

Condemnation of bridges— The board of supervisors of such county
shall cause an inspection to be made of any bridge which is reported to be
unsafe for public use and travel by the county engineer or five residents of
the county. If such bridge is found to be unsafe for public use and travel,
said board of supervisors shall condemn such bridge and notify the county
95%e HIGHWAYS AND BRIDGES.

Highway Law, §§ 269e — 269g. »*

engineer of that fact. Such board of supervisors may direct the county
engineer to prepare or cause to be prepared plans and specifications for the
construction or reconstruction or repair of such bridge without delay.
Upon receipt of such plans and specifications, such board of supervisors
shall, after approving the same, procure estimates for the reconstruction
or repair of such bridges as herein provided. [Highway Law, § 269d, as
added by L. 1917, ch. 589.]

Liability of county for damages.— The county shall be liable for damages
suffered by any person from defects in any such bridge, located wholly within
the county. Where such bridge is located in two counties, such coun-
ties shall be jointly and severally liable for such damages. [Highway Law,
§ 269e, as added by L. 1917, ch. 589.]

Annual estimate of amount to be raised for bridge purposes.— The county
engineer of such county shall, on or before December first in each year,
prepare and submit to the board of supervisors of such county a statement
of the amount necessary for the construction, improvement and maintenance
of such bridges or parts of such bridges within the county. The county
engineer of an adjoining county shall also, on or before such day in each
year, prepare and submit to the board of supervisors of his county a state-
ment of the amount necessary to be provided by the county for the construc-
tion, improvement and maintenance of bridges crossing the boundary be-
tween the latter county and the county first mentioned. Each statement
provided for in this section shall show the total amount required and the
location of the bridges for the repair, construction and maintenance of
which such amount is necessary. [Highway Law, § 269f, as added by L.
1917, ch. 589.]

Manner of providing money for bridges— The board of supervisors of
any such county shall, upon receipt of the county engineer’s annual state-
ment, consider the estimate made therein of moneys required for the con-
struction, repair or maintenance of bridges. The board may by resolution
adopted by a majority vote approve, increase or reduce the amount of any
such estimate. All such estimates as finally adopted shall be signed in
duplicate by the chairman and clerk of the board, and one copy thereof shall
be filed with the county clerk and the other with the county treasurer. The
board of supervisors shall thereupon cause the amounts of such estimates
to be assessed, levied and collected in the same manner as other county
charges ; or the board may borrow on the credit of the county the amount of
any estimate or estimates for construction or the permanent betterment of
and such bridge or bridges. For that purpose it may direct the issue
of bonds of the county by the county treasurer. Such bonds shall not bear
interest at a greater rate than five per centum per annum, and no such
bonds shall be for a longer term than twenty years. Such bonds shall
BRIDGES. 957f
Highway Law, §§ 269h, 269i.

not be sold for less than par. Moneys derived from such taxation or real-
ized from the sale of such bonds shall be used exclusively for the objects
and purposes of the tax or debt as provided in this article. Nothing herein
contained shall prevent the board of supervisors from adding to the esti-
mates of the county engineer, as contained in his annual statement, an
item or items for the construction, repair or maintenance of a bridge or
bridges not provided for in such report, or a gross sum of not exceeding
two thousand dollars for emergency construction of or repairs to such
bridges for the ensuing year. [Highway Law, § 269g, as added by L. 1917,
ch. 589.]

Construction of bridges to be by contract.—Whenever a bridge is to be
constructed or any improvement or repairs made thereto by a county, un-
der the provisions of this article, except ordinary repairs, such work shall
be done by contract where the estimated cost cxceeds five hundred dollars.
Contracts shall be awarded for the performance of the work in accordance
with the plans and specifications thereof prepared as provided in this
article. The board of supervisors shall have charge of the letting of the
contract. Any such contract shall be allowed to the lowest bidder, after
advertisement once a week, for three successive weeks, in a newspaper pub-
lished in the county. The bids for such work shall be opened in public
and shall be filed in the office of the clerk of the board of supervisors. No
such contract shall be awarded until the form and: sufficiency of execution
thereof shall have been approved by the board of supervisors. The per-
son to whom such contract is awarded shall execute a bond to the county, in
a sum equal to fifty per centum of the amount of the contract, with two or
more sureties to be approved by the board of supervisors, conditioned for
the faithful compliance with the terms of the contract and the plans and
specifications and for the payment of all damages which may accrue to the
county because of a violation thereof. Not more than ninety per centum
of the contract price shall be paid before the completion of the work and
its acceptance by the board of supervisors. The amounts due from time
to time on the contract shall be paid out of moneys available therefor under
the provisions of the preceding section. Payments upon such contracts,
or for any other item of construction, maintenance or repair of such bridges,
shall be made by the county treasurer upon certificates or warrants issued
by the county superintendent, approved by the board of supervisors and
the county comptroller. [Highway Law, § 269h, as added by L. 1917, ch.
589.]

Reconstruction and repairs after condemnation—Upon receiving notice
of the condemnation of a bridge wholly within the county, the chairman
of the board of supervisors shall call a meeting of the board, and such board
shall appropriate and make immediately available the necessary moneys for
Dd%e HIGHWAYS AND BRIDGES.
Highway Law, § 269).

the immediate rebuilding of such bridge. If the expense thereof shall not
have been included in an estimate furnished by the county engineer in his
annual statement, or as adopted by the board, or if there be no moneys
in the county treasury available therefor, the board. may cause the county
treasurer to borrow on the credit of the county the moneys necessary to
repair or rebuild the part so condemned, in the manner provided in section
two hundred and sixty-nine-g. As soon as moneys are available therefor,
the county engineer under the direction of the board of supervisors shall
proceed with the repairing or rebuilding of such condemned bridge. [High-
way Law, § 269i, as added by L. 1917, ch. 589.]

Bridges upon county boundaries—If the board or supervisors of a
county described in section two hundred and sixty-nine-a and of an adjoin-
ing county, across whose boundaries any such bridge is located, shall by
resolution concur in determining upon the construction or repair of such
bridge, the respective board of supervisors of such counties may unite in a
contract with a person, firm or corporation therefor. If any such bridge
shall have been condemned under the provisions of this article and if such
boards of supervisors shall fail to concur in ordering the necessary repairs
to or rebuilding of such bridge within three months after the condemna-
tion, or if within the same time after a demand therefor by the state com-
missioner of highways the board of supervisors of either county shall fail
to make available the necessary moneys therefor, or if the board of super-
visors of either county shall determine that such improvements or repairs
are necessary, and if both counties fail to concur therein, the board of
supervisors of the county making such determination may submit the same
to the state commissioner of highways. If such determination be approved
by such commissioner, the board of supervisors making such determination
may cause notice in writing to be served upon the chairman of the board
of supervisors of the other county demanding that such county concur
therein. If such concurrence be withheld or if necessary moneys be not
made available for such work by the board of supervisors of the county
upon which such demand is served, the board of supervisors giving such
notice may provide the necessary moneys for the entire work of such im-
provement or repairs. Where one county has provided all of the money
for the construction or improvement of such joint bridge, it may maintain
an action against the county in default and recover from the defendant
one-half of the cost or expense of such work, with costs of the action and
interest. It shall be necessary to a recovery for the plaintiff to prove that
the repairs or improvements were reasonably necessary; but the approval
of the state commissioner of highways of plaintiff’s determination for such
improvement or repairs shall be prima facie evidence of the reasonable
necessity therefor. No such action for the expense of the construction of a
BRIDGES. 95%h
Highway Law, § 269j.

new bridge at a new site between counties shall be maintained unless
the boards of supervisors of both counties shall have determined, by
concurrent resolution, upon the construction thereof.

The board of supervisors and the lawful authorities of an adjoining
city of the first class or of an adjoining village may likewise concur in
determining upon the construction, improvement or repair of a bridge
between such county and city and may unite in a contract with a per-
son, firm or corporation therefor. [Highway Law, § 269j, as added
by L. 1917, ch. 589, and amended by L. 1921, ch. 558.]

The board of supervisors of any such county adjoining a city of the
first class may by resolution determine to make ordinary repairs to the
half of such bridge adjoining such county and pay for the whole of such
repair, and thereafter such ordinary repairs shall be made by the
county without concurring with the city as hereinbefore provided and
such county shall thereafter be relieved from all liability for ordinary
repairs to the half of such bridge adjoining such city.
958 HIGHWAYS AND BRIDGES

Highway Law, § 270.

CHAPTER LXIV.

FERRIES.

{Highway Law, art. XI.?

. Licenses.

. Undertaking.

. Appendages for rope ferries.

. Superintendent of public works may lease right of passage.
. When schedules to be posted.

SECTION

Ol © b> Ek

§ 1. LICENSES.

The county court* in each of the counties of this state or the city
court of a city, may grant licenses for keeping ferries in their respective
counties and cities, to such persons as the court may deem proper, for
a term not exceeding five years.’* No licenses shall be granted to a
person, other than the owner of the land through which that part
of the highway adjoining to the ferry shall run, unless the owner
is not a suitable person or shall neglect to apply after being served
with eight days’ written notice? from such person of the time and
place at which he will apply for such license, or having obtained
such license, shall neglect to comply with the conditions of the license
or maintain the ferry. Every license shall be entered in the book
of minutes of the court by the clerk; and a certified copy thereof

 

1, Jurisdiction. The county court, upon a petition for a license to operate a
ferry has jurisdiction to pass upon all controverted questions of fact. Matter of
Pierce (1918), 185 App. Div. 212.

la, Power to regulate. The state and not es federal government has power to
regulate ferries. People v. Babcock, 11 Wend. 586 (1834). The county of Niagara
may grant licenses to maintain ferries to the middle of the Niagara river, as far
as the Canadian line; hence one operating a ferry across that river without a
license, may be prosecuted. People v. Babcock, 11 Wend. 586 (1834).

2, Written notice need be given to the owners of the land only, and not to all
who claim a right to the ferry nor to those who have obtained a license from another
court for a ferry at the same place. Wiswall v. Wandell, 3 Barb. ch. 312. The ap-
plication cannot be granted without proof that notice has been given by the ap-
plicant to the owner of the land, at least eight days before, of his intention to
make such application. Matter of Talcott, 31 Hun 464.
FERRIES. 959

Highway Law, §§ 271-274.

shall be delivered to the person licensed. When the waters over which any
ferry may be used shall divide two counties or cities, or a county and city, a
license obtained in either of the counties or cities shall be sufficient to
authorize transportation of persons, goods, wares and merchandise, to and
from either side of such waters. [Highway Law, § 270; B. C. & G. Cons.
L., p. 2330.]

§ 2. UNDERTAKING.

Every person applying for such license shall, before the same is granted,
execute and file with the clerk of the court his undertaking with one or
more sureties, approved by the‘court, to the effect that he will attend such
ferry with sufficient and safe boats and other implements, and so many:
men to work the same as shall be necessary during the several hours in
each day, and at such rates as the court shall direct. [Highway Law, §
271; B.C. & G. Cons. L., p. 2331.]

§ 3. APPENDAGES FOR ROPE FERRIES.

Any person licensed to keep a ferry may, with the written consent of
the town superintendent of the town where such ferry may be, erect and
maintain within the limits of the highway, at such point as shall be desig-
nated in such consent, a post or posts, with all necessary braces and appen-
dages for a rope ferry. [Highway Law, § 272; B. C. & G. Cons. L.,, p.
2331. ]

§ 4. SUPERINTENDENT OF PUBLIC WORKS MAY LEASE RIGHT OF
PASSAGE.

The superintendent of public works, may, where ferries are now main-
tained at tide-water, lease the right of passage for foot passengers across
state lands adjoining tide-water for a period not exceeding ten years, on ,
such conditions as he may deem advantageous to the state. [Highway Law,
§ 273; B.C. & G. Cons. L., p. 2331.]

§ 5. WHEN SCHEDULES TO BE POSTED.

Every person licensed to operate or control any ferry in this state, or
between this state and any other state, operating from or to a city of
fifty thousand inhabitants or over, shall post in a conspicuous and accessible
position outside and adjacent to each entrance to such ferry, and in at
least four accessible places, in plain view of the passengers upon each of the
boats on such ferry, a schedule plainly printed in the English language
96U HIGHWAYS AND BRIDGES.
Highway Law, § 274.

of the rates of ferriage charges thereon, and authorized by law to be charged
for ferriage over such ferry. If any such person shall fail to comply with
the provisions of this section, or ghall post a false schedule, he shall forfeit
the sum of fifty dollars for each day’s neglect or refusal to post such
schedule or any of them, to be recovered by any person who shall sue there-
for in any court of competent jurisdiction.2 [Highway Law, § 274; B.
C. & G. Cons. L., p. 2331.7

 

Penalty for neglect to post schedule of ferry rates. A person, corpora-
tion or association operating any ferry in this. State, or between this State and
any other State, operating from or to a city of five hundred thousand inhabi-
tants or over, posting a false schedule of ferry rates, or neglecting to post in a
conspicuous and accessible place in each of its ferry-houses, in plain view of the
passengers, a schedule, plainly printed in the English language, of the rates
of ferriage charged thereon and authorized by law to be charged for ferriage
over such ferry, is guilty of a misdemeanor. Penal Law, § 871.
MISCELLANEOUS PROVISICNS. 961

Highway Law, § 320.

CHAPTER LXV.
MISCELLANEOUS PROVISIONS.
[Highway Law, art. XII.]

Section. 1. Construction or improvement of highways by county and town.
l-a. County system of roads.
1-b. State aid to counties for the construction or PECOveMent of
highways or roads.

1-c. County aid for the construction, improvement and Meinienanes
of connecting highways in villages and cities in certain coun-
ties.

i1-d. Construction of county roads in certain third class cities.
l1-e. County aid for connecting highways through villages.
1-f. County aid for connecting highways through cities of the
third class in the county of Cattaraugus.
2. When commissioners do not act.
8. Intemperate drivers not to be engaged.
4, Drivers, when to be discharged.
5. Leaving horses without being tied. ‘ :
6. Owners of certain carriages liable for acts of drivers.
7. Term ‘‘carriage’”’ defined.
8. Entitled to free use of highways.
9. Depositing ashes, stone, sticks, etc., upon the highway.
10. Steam traction engines on highways.
11. Injuries to highways.
12. When the town not liable for damages.
12a. Excessive loads on unsafe bridges.
13. Law of the road.
14. Trees, to whom they belong.
15. Injuring fruit or shade trees.
13. Penalty for falling trees.
17. Fallen trees to be removed.
18. Penalties, how recovered.
19. Acquisition of plank roads.
20. Borrowing money; bonds.
21. Raising money to pay bonds and interest.
22. Roads so acquired to be part of highway system.
23. When road is in two or more counties.
24. Albany post road; railroad tracks thereon.
25. Lighting roads, highways and bridges.
26. Lighting of public highways or bridges.

§ 1. CONSTRUCTION OR IMPROVEMENT OF HIGHWAYS BY COUNTY
AND TOWN.

The board of supervisors of a county may provide for the construc-
tion or improvement of a highway or section thereof in one or more
towns of the county or of a highway laid out along the boundary
line between a city or village and a town or towns, at the joint
expense of the county and town, as provided in this section. The
board may, by resolution, direct the district or county super-
tendent to examine such highway or sections thereof, and re-
port thereon, and if the board considers such highway or
section thereof, to be of sufficient importance to be con-
962 HIGHWAYS AND BRIDGES.
Highway Law, § 320.

structed or improved as provided herein, it shall direct such district or
county superintendent to prepare or cause to be prepared maps, plans,
specifications and estimates therefor and such district or county super-
intendent shall, subject to the direction and control of the board of
supervisors, have the same powers and duties with respect to such high-
way or section thereof as are given the division engineer with respect
to state and county highways in section one hundred and twenty-five
of this chapter. Such maps, plans and specifications may provide for
the change in grade of a highway already existing if thereby a lessened
gradient may be obtained without decreasing the usefulness of the high-
way. Upon the completion of such preliminary maps, plans, specifi-
cations and estimates they shall be submitted to the board of supervisors
for approval, and such board may thereupon adopt a resolution provid-
ing for the construction or improvement of such highway in accordance
with such maps, plans, specifications and estimates or in accordance
with such maps, plans, specifications and estimates as may be approved
by it. The board of supervisors shall award contracts for the construc-
tion or improvement of such highway and the provisions of section one
hundred and thirty of this chapter shall apply so far as may be to such
contrarts and the award, execution and fulfillment thereof. Such
contract may be awarded to the town board of any town in which such
hizhway or section thereof is located and the provisions of section one
hundred and thirty-one of this chapter shall apply thereto so far as
may be. If such contract be awarded to a town board such board shall,
by resolution, designate some suitable person or persons, to be approved
by the county superintendent of highways to carry into effect, on behalf
of such town, such contract, and transact all business in respect thereto
as may be necessary. A member of the town board at the time such
contract was awarded or such designation was made, or a person who
is a partner of, or a stockholder in the same corporation as that of such
member shall not be so designated. A member of the town board at the
time of such designation was made, or a firm, corporation or association
of which he is a member or has an interest, shall not be directly or in-
directly interested in any such contract nor shall such member, or such
firm, corporation or association furnish materials or perform labor or
services either dircetly or indirectly under or in connection with the
performance of any of the work required in accordance with such con-
tract, nor shall such member, firm or corporation or association be paid
for materials furnished or services rendered in respect to such contract.
The town clerk shall transmit to the board of supervisors a certified
copy of the resolution designating the person or persons to carry into
effect such contract prior to the awarding of a contract to the town board.
The person or persons so designated shall, before the contract is exe-
cuted, give an undertaking to the county or town with sureties to be
MISCELLANEOUS PROVISIONS. 968
Highway Law, § 320.

approved by the board of supervisors and the penalty of such surety
shall be determined by the board of supervisors. Such undertaking
shall be conditioned on the faithful performance of their duties in re-
spect to such contract and for the proper accounting, safe keeping and
lawful disbursement of all moneys that may come into their hands
thereunder. Such undertaking shall be filed in the office of the town
clerk and a certified copy thereof shall be transmitted to the county
clerk and the board of supervisors. The person or persons so designated
shall thereupon be competent to receive all moneys payable under such
contract under the provisions of this section, and they shall account
therefor to the board of supervisors. The town board, after such con-
tract is awarded shall designate, by resolution, a banking corporation
or a trust company wherein the moneys received under such contract
shall be deposited. Such bank or trust company shall, upon the request
of the town board, make a statement of the money so deposited. The
board of supervisors shall prescribe the manner in which the moneys
received under such contract shall be expended and the form of accounts
to be kept by the person or persons designated as above provided. Re-
ports may be required by the board of supervisors from time to time
from such person or persons. If a town shall construct a highway or
section thereof, by contract as above provided, for a lesser sum than
the contract price, such surplus shall be credited to the general town
fund.

The board of supervisors shall determine the portion of the cost of
the construction or improvement of such highway to be borne by the
county and the portion to be borne by the town or towns in which such
highway is located. The cost of the portion constructed or improved
within the boundaries of a city shall be borne by the county. The
amount to be borne by the county shall be levied and collected as a
county charge and paid into the county treasury. The amount to be
borne by the town or towns in which the highway is located shall be levied
and collected as a town charge and when collected shall be paid into the
county treasury. If such highway or section thereof deviate from the
line of a highway already existing, the board of supervisors shall ac-
quire land for the requisite right of way, and such board may also ac-
quire lands for the purpose of obtaining gravel, stone or other ma-
terial, when required for the construction or improvement of such high-
way or section thereof, or for spoil banks, together with a right of way
‘to such spoil banks and'to any bed, pit, quarry or other place where such
gravel, stone or other material may be located, and the provisions of
sections one hundred and forty-eight to one hundred and fifty-five, both
inclusive, shall apply to the acquisition of such lands as far as may be,
except that the cost of such lands and the expenses incident to acquiring
the same shall be deemed a part of the cost of the construction or im-
provement of such highway under the provisions of this section. If
the construction or improvement of such highway involve the elimina-
963a HIGHWAYS AND BRIDGES.
Highway Law, § 320.

tion of a grade crossing the portion of the cost of such elimination and
the construction of a new crossing chargeable to the town in pursuance
of law shall be deemed a part of the cost of the construction or improve-
ment of such highway under the provisions of this section. The amount
so paid by the town shall not be considered in determining the mini-
mum amount to be levied and collectc:l in each year for the repair and
improvement of highways as provided in section ninety-four of this
chapter nor shall such amount be considered in determining the amount
to be paid by the state to the town for the repair and improvement of
highways therein. The board of supervisors may by resolution au-°
thorize the county treasurer of the county or the supervisors of the
respective towns to borrow money on the faith and eredit of the county
or of such towns by temporary loan in anticipation of the next succced-
ing tax levy or of an issue of bonds before such levy, or by the issue
and sale of bonds, to pay the portion of the cost of such construction
or improvement to be borne respectively by the county or such town or
towns. Such resolution may also provide for the issue and sale of such
bonds and shall conform so far as may be with the provisions of this
chapter relating to a resolution authorizing a town to borrow money to
pay its share of the cost of construction or improvement of a county
highway. The construction or improvement authorized by such resolu-
tion shall be done under the supervision and direction of the district
or county superintendent. Payments therefor shall be made from time
to time by the county treasurer upon the certificate of the district or
county superintendent indorsed by the chairman of the board of super-
visors.

Such highways, when completed and accepted by the board of super-
visors, shall be thereafter repaired and maintained by the towns where-
in such highways are located in the same manner as all other town
highways; except there shall be raised annually by the county and by
the town a tax of not less than one hundred dollars per mile for each
mile of highways improved in a town under the provisions of this sec-
tion. The amount thereof to be borne by the county or by the town shall
be apportioned by the board of supervisors. The portion to be borne
by the county shall be levied and collected in the same manner as other
county taxes and shall be paid into the county treasury. The resolu-
tion providing for the collection of such taxes ‘shall also indicate the
amount which shall be expended in each town and may provide that
such amount may be expended under the direction of either the town
superintendent of the town or the county superintendent of the county,
as the board of supervisors of the county shall deem best, and a certi-
fied copy of the resolution shall be filed with the county treasurer. The
amount thereof: to be borne by the town shall, by resolution of the town
MISCELLANEOUS PROVISIONS. 963b
Highway Law, § 320a.

board, be paid from any funds of such town that may be legally used for
highway purposes, and be paid into the county treasury if the board of
supervisors has by resolution determined that the same shall be ex-
pended under the direction of the county superintendent.’ [Highway
Law, § 320, as amended by L. 1912, ch. 534, L. 1914, ch. 198, L. 1917,
ch. 558, L. 1919, ch. 377, and L. 1920, ch. 841.]

§ 1a. COUNTY AID FOR CONSTRUCTION, IMPROVEMENT AND MAINTEN-
ANCE OF TOWN HIGHWAYS.

The board of superv:sors of a county may aid a town or towns in the
construction or improvement of a highway or highways therein, and
shall designate the highway or highways which the town or towns are
to construct or improve by the aid of the county. Such county may
prepare a map of the system of highways thus to be improved in that
county.

The board may by resolution direct the county superintendent to
supervise the preparation of grade and culvert work of a road so desig-
nated by said map for improvement, by the town superintendent of the
town in which such improvement shall be made, and upon the county
superintendent’s certification that the road is prepared and that the
town is equipped with sufficient machinery to properly perform the
work, such machinery to be furnished by the town and used during the
road’s construction, the construction of an improved road may proceed
under the direction of the county superintendent of highways or of a
committee known as the highway officials of the county as hereinafter
provided. The construction work shall be under the charge and super-
vision of a competent person, designated by the county superintendent
by and with the advice and consent of the town board and the com-
pensation of such person shall be a town charge. In the event the board
of supervisors of any county in which roads are to be constructed under
this section shall so determine, the same may be constructed by the
county to be paid for by the town and county as herein provided and
constructed under the direct personal supervision of the county super-
intendent of highways or some person designated by him; and for that
purpose such county superintendent of highways, or his nominee, shall
have power and authority to employ labor and teams, purchase neces-
sary material atid do all work necessary for the construction of such
highway. The board of supervisors with the county superintendent of
highways shall have power and authority to purchase at the expense
of the county any machinery which they may deem necessary to be used
in the construction of such highways.

The employment of convict labor on roads so constructed shall be
authorized and permitted, in the discretion of the superintendent of
state prisons, upon the requisition of the county superintendent of high-
ways. The board of supervisors of Erie county shall have power, if

 

1. This section is new in the Highway Law of 1908. It was inserted so as to
permit a county to join with the towns therein, in constructing a system of highways
at the joint expense of county and towns.
9638e HIGHWAYS AND BRIDGES.

Highway Law, § 320a.

they deem it proper, to employ convicts, sentenced to be. confined in a
a penitentiary situate within the territorial limits of such county and
liable to be employed at hard labor, upon any highway or work con-
nected therewith within such county, and such board of supervisors
shall have power to make all necessary appointments, rules and regula-
tions for such employment within such county, including the right to
fix a per diem compensation for such employment at a rate not to
exceed ten cents.

A board of supervisors of a county shall decide whether the direction
of the work shall be by the county superintendent of highways or a
committee known as the highway officials of the county. The highway
officials of the county under this section shall consist of the county
superintendent, three members of the board, appointed by the chairman.
The supervisor of the town in which a road is being improved shall be
a member of the said committee on all questions involving the work
in the town of which he is the supervisor.

Unless the advice and direction of the county superintendent of high-
ways or of the highway officials shall be followed in the prosecution
of the work, no liability therefor shall accrue to the county for its share
of the cost of work.

Upon ordering the construction of an improved road under this sec-
tion, the board of supervisors shall, by resolution, determine the propor-
tions thereof to be borne by the county and town or towns respectively.
The part, if any, to be borne by a town, as shown by such determina-
tion may be a town charge, and the residue shall be a county charge.
The amounts to be borne by the county shall be provided for by a tax,
to be levied upon the taxable property of the county and collected in
the same manner as for other county charges and shall be paid into the
county treasury. The amount thereof to be borne by the town may by
resolution of the town board, be paid from any funds in such town that
may be legally used for highway purposes. The board of supervisors
may, in its discretion, appropriate and make immediately available
from county funds either the whole of the moneys to complete the con-
struction of such road or the part thereof to be provided by the county,
If it shall determine that sufficient moneys are not available to pay the
amount appropriated, or a specified part thereof, after defraying other
county expenses, it may direct the county treasurer to borrow the same,
in anticipation of taxes or of the proceeds of bonds to be issued as here-
inafter provided, and to pledge the faith and credit of the county for the
payment of the amount when due, with interest, and issue temporary
certificates of indebtedness therefor. The board may, by resolution,
authorize the issuance and sale of bonds of the county for the amount
appropriated or for any part thereof, which may be the whole of such
additional amount needed for the completion of such improvement or
the county’s share thereof or a part of such share. The proceeds of
such bonds shall be paid into the county treasury and applied to the
cost of such improvement or to the payment and redemption of certi-

ficates of indebtedness, if any, issued as above provided. The board
MISCELLANEOUS PROVISIONS. 963d

Highway Law, § 320a.

of supervisors on petition of the towm board of a town in which any
part of the improved road is located, may by resolution authorize such
town to borrow money on the faith and credit of the town by temporary
loan in anticipation of the next succeeding tax levy to pay its shares of
the cost of the improvement which has been ordered by the board of
supervisors. Town bonds may be issued and sold by the supervisors,
in the name of the town, for the amount so authorized. The proceeds
thereof shall be paid into the county treasury and be a part of the fund
to be applied to the cost of such improvement within the town or to the
payment and redemption of county bonds, if any, issued to pay the
share of such town. County or town bonds issued under the foregoing
provisions shall be payable not more than thirty years from their date
and shall be sold for not less than par. The board of supervisors shall,
from time to time, impose upon the taxable property of the courty a
tax sufficient to pay at maturity any such county bonds, and interest,
and upon the taxable property-of any town a tax sufficient to pay at
maturity any such bonds of the town, and interest. Payments from
time to time by the county treasurer of moneys provided for under this
section shall be made for the prosecution of such work upon the certi-
ficate of the district or county superintendent countersigned by the
chairman of the board of supervisors. Said orders shall be drawn to
the order of the supervisors of the respective towns where roads are
being constructed to be disbursed by them, upon the orders of the town
superintendent or person designated in his stead, in accordance with
the agreement as provided by section one hundred and five of this
chapter and accounted for in the supervisor’s annual report as pro-
vided by section one hundred and seven of this chapter.

Such highways, when completed and accepted by the board of super-
visors, shall be thereafter repaired and maintained by the towns where-
in such highways are located in the same manner as all other town high-
ways; except there shall be raised annually by the county and by the
town a tax of not less than one hundred dollars per mile for each mile
of highways improved in a town under the provisions of this section.
The amount thereof to be borne by the county or by the town or towns
shall be apportioned by the board of supervisors. The part, if any, to
be borne by a town or towns, as shown by such apportionment, shall be
a charge against the town or towns and the residue shall be a county
charge. The amount to be borne by the county shall be provided for
by a tax to be levied upon the taxable property of the county and col-
lected in the same manner as for other county charges and shall be
paid into the county treasury. The amount thereof to be borne by the
town shall, by resolution of the town board, be paid from. any funds
in such town that may be legally used for highway purposes. The
resolution providing for such apportionment shall also indicate the
amount which shall be paid to each such town, and a certified copy
thereof shall be filed with the county treasurer. On receipt of such
money the supervisor shall credit the amount to the town highway fund
to be paid out on the written order of the town superintendent or per-
963e HIGHWAYS AND BRIDGES.
Highway Law, § 320b.

son designated in his stead in accordance with agreement which is pro-
vided by section one hundred and five of this chapter and shall be
accounted for in the supervisor’s annual report as perest by section
one hundred and seven of this chapter. [Highway Law. § 320a, as
added by L. 1914, ch. 61, and amended by L. 1915, ch. 556, L. 1916,
ch. 458, L. 1917, "ch. 231, L. 1918, ch. 321, and L. 1920, ch. 871.]

§ 1b. STATE AID TO COUNTIES FOR THE CONSTRUCTION OR IMPROVE-
MENT OF HIGHWAYS OR ROADS.

There shall be paid by the state, annually, to the several counties,
in the manner hereinafter provided, an amount equal to the amovnt
levied ‘or provided therein for the construction and improvement of
highways or roads in accordance with the provisions of sections three
hundred and twenty or three hundred and twenty-a of this chapter or
any other general or special law authorizing the levy of county taxes or
raising of funds by county obligations for the construction and improve-
ment of highways or roads within a county, other than county high-
ways, except that no county shall receive from the state in any year un-
der this section an amount exceeding thirty dollars per mile for the
total mileage of the highways in such county outside of cities and in-
corporated “villages ; such milcage to be determined by the tables pre-
pared by the commsisioner of highways, pursuant to subdivision twelve
of section fifteen of this chapter, as filed in the office of the comptroller.
The clerk of the board of supervisors of each county shall, on or before
the first day of January in each year, transmit to the state comptroller
and the commission a statement, signed and verified by the chairman
of the board, and certified by the clerk, which shall state the total amount
of county taxes levied therein or moneys provided by county obligations
for the construction and improvement of such highways or roads. The
comptroller shall determine the amount due to the several counties, un-
der the provisions of this section, and shall draw his warrant upon the
state treasurer in favor of the county treavurcr of each county for the
total amount to be paid to such county. The moneys paid by the state
together with an equal amount appropriated by the county and moneys
appropriated by the towns shall become a common fund for the pur-
pose of determining the places where and the manner in which such
money shall be expended as provided herein. The board of supervisors
of any county shall determine the place where and the manner in which
such money shall be expended for the construction and improvement
of highways or roads, pursuant to the provisions of sections three hun-
dred and twenty or three hundred and twenty-a of this chapter, or pur-
suant to any other general or special law authorizing county aid in the
construction and improvement of highways or roads within the county
other than county highways. Such determination shall be in triplicate
signed by the chairman and clerk of the board and be approved by the
state highway commission before the same shall take effect. One of
HIGHWAYS AND BRIDGES. 963¢
Highway Law, § 320-c.

such triplicates shall be filed in the office of the board of supervisors,
one in the office of the district and county superintendent of highways
and one in the office of the state highway commission. Reports of the
expenditure of such moneys shall be made as follows: In a county in
which highways or roads are constructed or improved, pursuant to sec-
tions three hundred and twenty or three hundred and twenty-a of this
chapter, reports shall be made by the supervisors in the manner, so far
as practicable, provided by section one hundred and seven of this chap-
ter; in a county in which the towns contribute no portion of the cost
of construction or improvement of such highways or roads, the county
treasurer shall file with the clerk of the board of supervisors a report
of all such expenditures, who shall cause the same to be printed in the
next issue of the annual proceedings of the board of supervisors, and
shall transmit three copies of the journal of the proceedings of the
board containing such report to the commission and three copies to the
comptroller. [Highway Law, § 320-b, added by L. 1920, ch. 840.]

§ 1-c. COUNTY AID FOR THE CONSTRUCTION, IMPROVEMENT AND
MAINTENANCE OF CONNECTING HIGHWAYS IN VILLAGES
AND CITIES IN CERTAIN COUNTIES.

Wherever in this article it is provided that the county may aid in the
construction and improvement of a highway or highways, the highway
or highways referred to shall in a county having a population of more
than three hundred thousand according to the last federal or state
‘census or enumeration, adjoining a city of the first class having a popu-
lation of ‘one million and upward, include in addition to the highways
already mentioned, connecting highways in villages and cities and the
municipalities to be aided shall accordingly include such cities and
villages and all the provisions pertaining to the construction and im-
provement of such highways with such aid including those providing
for the apportionment of the cost thereof, the manner and method of
paying for same, the issuance of certificates of indebtedness or bonds
for same and for the maintaining of same shall apply to such cities
and villages in the same manner as if such cities and villages were
mentioned in said provisions. Notwithstanding any provision to the
contrary any motor vehicle moneys received by such county under
section two hundred and ninety-one may be used in such construction,
963g MISCELLANEOUS PROVISIONS.

Highway Law, §§ 320d, 320e.

but moneys received as state aid under section three hundred and
twenty-b shall not be so used. [Highway Law, § 320-c, added by L.
1922, ch. 51.]

§ 1-d. CONSTRUCTION OF COUNTY ROADS IN CERTAIN THIRD CLASS
CITIES.

The board of supervisors of a county may provide for the construc-
tion or improvement of a highway or section thereof through a city of
the third class situated in a county containing over four hundred thou-
sand inhabitants if such city adjoins a city of the first class containing
over four hundred thousand inhabitants, at the joint expense of the
eounty and such city of the third class. The board of supervisors shall
determine the portion of the cost of the construction or improvement of
such highway to be borne by the county and the portion to be borne by
said city of the third class. No such highway shall be so built through a
city of the third class, however, unless petitioned for by the city and
no contract for the improvement of such highway shall be let by the
board of supervisors until the city has deposited in the county treas-
urer’s office, their portion of the cost of such highway. [Highway
Law, § 320-d, as added by L. 1921, ch. 125.]

§ 1-e. COUNTY AID FOR CONNECTING HIGHWAYS THROUGH VIL-
LAGES.

The board of supervisors of a county may, upon the petition of the
board of trustees of an incorporated village, provide for the construc-
tion or improvement of a highway or section thereof, through such
village, at the joint expense of the county and village. The board of
supervisors shall determine the portion of the cost of the construction
and improvement of such highway to be borne by the county and the
portion to be borne by the village. The portion to be borne by the
village shall be a village charge and the residue shall be a county
charge. The amount to be borne by the county shall be provided by
tax, to be levied upon the taxable property of the county and collected
in the same manner as other county charges and shall be paid into the
county treasury and such tax shall not be reported as a basis for state
aid as provided by section three hundred and twenty-b of this chapter.
The board of supervisors may, in its discretion, appropriate and make
HIGHWAYS AND BRIDGES. 963h

Highway Law, § 320f.

immediately available from county funds, the portion of the moneys to
be borne by the county. If it shall determine that sufficient moneys
are not available, after defraying other county expenses, it may direct
the county treasurer to borrow the same in anticipation of taxes or
it may authorize the issue and sale of bonds therefor, to be issued and
sold in the same manner as other county bonds. No such highway
shall be so constructed and improved through a village, except to con-
nect a highway improved pursuant to the provisions of sections three
hundred and twenty, three hundred and twenty-a or three hundred
and twenty-b of this chapter with a state or county highway, or county
road, or to connect with another town highway improved pursuant to
the provisions of section three hundred and twenty, three hundred and
twenty-a or three hundred and twenty-b of this chapter. Such con-
struction shall not be commenced until the portion to be borne by the
village, as determined by the board of supervisors, has been deposited
in the county treasurer’s office of such county. The construction or
improvement of a highway, as herein provided, shall be done under
the supervision and direction of the district or county superintendent
of highways or of a committee known as the highway officials of the
county, to consist of the county superintendent, three members of the
board to be appointed by the chairman and the supervisor of the town
in which road is being improved. Payments therefor shall be made
from time to time by the county treasurer upon the certificate of the
district or county superintendent, approved by the chairman of the
board of supervisors. A highway within a village constructed or im-
proved as herein provided, shall be of the same width and type of
construction as such town highways so improved by the aid of the
county outside the village, unless a greater width or different type of
construction is desired by the village. The additional expense caused
by the increased width or different type or both, shall be borne wholly
by the village. Any such highway, when completed, shall thereafter
be repaired and maintained by the village wherein such highway is
located in the same manner as all other village highways. [Highway
Law, § 320-e, as addedd by L. 1922, ch. 416.]
§ 1-f. COUNTY AID FOR CONNECTING HIGHWAYS THROUGH CITIES
OF THE THIRD CLASS IN THE COUNTY OF CATTARAUGUS.
The board of supervisors of the county of Cattaraugus may, upon the
petition of the board of aldermen, or other governing body, of a city of
963i MISCELLANEOUS PROVISIONS.

Highway Law, § 320-f.

the third class located in such county, provide for the construction or
improvement of a highway or section thereof through such city of the
third class at the joint expense of the county and city. The board of
supervisors shall determine the portion of the cost of the construction
and improvement of such highway to be borne by the county and the
portion to be borne by the city. The portion to be borne by the city
shall be a city charge and the residue shall be a county charge. The
amount to be borne by the county shall be provided by tax, to be levied
upon the taxable property of the county and collected in the same
manner as other county charges and shall be paid into the county
treasury and such tax shall not be reported as a basis for state aid as
provided by section three hundred and twenty-b of this chapter. The
board of supervisors may, in its discretion, appropriate and make im-
mediately available from county funds the portion of the moneys to be
borne by the county. If it shall determine that sufficient moneys are
not available, after defraying other county expenses, it may direct the
county treasurer to borrow the same in anticipation of taxes or it may
authorize the issue and sale of bonds therefor, to be issued and sold in
the same manner as other county bonds. No such highway shall be
so constructed and improved within a city, except to connect a high-
.way improved pursuant to the provisions of sections three hundred and
twenty, three hundred and twenty-a or three hundred and twenty-b

of this chapter, with a state or county highway, or county road, or to
connect with another town highway improved pursuant to the provi-
sions of sections three hundred and twenty, three hundred and twenty-a
or three hundred and twenty-b of this chapter. Such construction
shall not be commenced until the portion to be borne by the city, as
determined by the board of supervisors, has been deposited in the
county treasurer’s office of such county. The construction or improve-
ment of a highway, as herein provided, shall be done under the super-
vision and direction of the county superintendent of highways, or of a
committee known as the highway officials of the county, to consist of
the county superintendent, three members of the board to be appointed
by the chairman and the supervisor or supervisors representing the
ward or wards through which such road is being improved. Payments
therefor shall be made from time to time by the county treasurer upon
the certificate of the county superintendent, approved by the chairman
of the board of supervisors. A street or highway within any such city,
eonstructed or improved as herein provided, shall be of the same width
HIGHWAYS AND BRIDGES. 963]
Highway Law, §§ 321, 322, 323, 324.

and type of construction as such town highway so improved by the aid
of the county outside the city, unless a greater width or different type
of construction is desired by the city. The additional expense caused
by the increased width or different type, or both, if any, shall be borne
by the city. Any such street or highway, when completed, shall there-
after be repaired and maintained by the city, wherein such street or
highway is located, in the same manner as other city streets or high-
ways. [Highway Law, § 320-f, as added by L. 1922, ch. 229. ]

§ 2. WHEN COMMISSIONERS DO NOT ACT.

When a commissioner or other officer appointed by a court under this
chapter shall neglect or be prevented from serving, the court which ap-
pointed him shall appoint another in his place. [Highway Law, § 321,
B. C. & G. Cons. L., 2d ed., p. 3656.]

§ 3. INTEMPERATE DRIVERS NOT TO BE ENGAGED.

No person owning any carriage for the conveyance of passengers,
running or traveling upon any highway or road, shall employ, or con-
tinue in employment, any person to drive such carriage who is addicted
to drunkenness, or to the excessive use of spirituous liquors; and if any
such owner shall violate the provisions of this section, he shall forfeit
at the rate of five dollars per day, for all the time during which he
shall have kept any such driver in his employment. [Highway Law,
§ 322; B. C. & G. Cons. L., 2d ed., p. 3656.]

§ 4. DRIVERS, WHEN TO BE DISCHARGED.

If any driver, while actually employed in driving any such earriage,
shall be guilty of intoxication, to such a degree as to endanger the
safety of the passengers in the carriage, the owner of such carriage shall,
on receiving written notice of the fact, signed by any one of said pas-
sengers, and certified by him on oath, forthwith discharge such driver
from his employment; and every such owner, who shall retain, or have
in his service within six months after the receipt of such notice, any
driver who shall have been so intoxicated, shall forfeit at the rate of
five dollars per day, for all the time during which he shall keep any
such driver in his employment after receiving such notice. [Highway
Law, § 323; B. C. & G. Cons. L., 2d ed., p. 3657.]

§ 5. LEAVING HORSES WITHOUT BEING TIED.

/ No driver of any carriage used for the purpose of conveying passengers
for hire shall leave the horses attached thereto, while passengers remain in
964 HIGHWAYS AND BRIDGES.
Highway Law, §§ 325-327.

the same, without first making such horses fast with a sufficient halter, rope,
or chain, or by placing the lines in the hands of some other person so as to
prevent their running; and if any such driver shall offend against the
provisions of this section, he shall forfeit the sum of twenty dollars. [High-
way Law, § 324; B. C. & G. Cons. L., p. 2346.]

§ 6. OWNERS OF CERTAIN CARRIAGES LIABLE FOR ACTS OF
DRIVERS.

The owners of every carriage running or traveling upon any turnpike,
road or highway, for the conveyance of passengers, shall be liable jointly
and severally, to the party injured, for all injuries and damages done by
any person in the employment of such owners, as a driver, while driving
such carriage, whether the act occasioning such injury or damage be wilful
or negligent, or otherwise, in the same manner as such driver would be
liable. [Highway Law, § 325; B. C. & G. Cons. L., p. 2346.]

§ 7. TERM “CARRIAGE” DEFINED.

The term “ carriage ” as used in this article shall be construed to include
stage coaches, wagons, carts, sleighs, sleds, automobiles or motor vehicles,
and every other carriage or vehicle used for the transportation of persons
and goods, or either of them, and bicycles, tricycles and all other vehicles
propelled by manumotive or pedomotive power, or by electricity, steam,
gasoline or other source of energy.* [Highway Law, § 326; B. C. & G.
Cons. L., p. 2346. ] ‘

§ 8. ENTITLED TO FREE USE OF HIGHWAYS.

The commissioners, trustees or other authorities having charge or control
of any highway, public street, park, parkway, driveway, or place, shall have
no power or authority to pass, enforce or maintain any ordinance, rule

 

2. Application of section. This section does not apply to the employes of a
street railway operating its cars in the public streets and highways. Whitaker
v. 8th Ave. Ry. Co., 51 N. Y. 295; Isaacs v. 3d Ave. Ry. Co., 47 N. Y. 122.

At common law the owner was liable for the negligent but not wilful acts of
his driver; the statute making the owner liable for wilful acts applies to
owners of carriages for conveyance of passengers only. Wright v. Wilcox, 19
Wend. 348: Mali v. Lord, 39 N. Y. 381.

9. Section applied to a bicycle. Rooks v. Houston, West St. R. R. Co., 10 App.
Div. 98, 41 N. Y. Supp. 824; Rogers v. City of Binghamton, 101 App. Div. 352,
92 N. Y. Supp. 170; Lechner v. Village of Newark, 19 Misc. 452, 44 N. Y. Supp.
556. Cited in Borden’s Cond. Milk Co. v. Mosby (1918), 250 Fed. 839.
MISCELLANEOUS PROVISIONS. 965

Highway Law, §§ 328, 329.

or regulation by which any person using a bicycle or tricycle shall be ex-
cluded or prohibited from the free use of any highway, public street,
avenue, roadway, driveway, parkway, park, or place, at any time when the
same is open to the free use of persons having and using other pleasure
carriages, except upon such driveway, speedway, or -road as has been or
may be expressly set apart by law for the exclusive use of horses and light
carriages. But nothing herein shall prevent the passage, enforcement or
maintenance of any regulation, ordinance or rule, regulating the use of
bicycles or tricycles in highways, public streets, driveways, parks, parkways,
and places, or the regulation of the speed of carriages, vehicles or engines,
in public parks and upon parkways and driveways in the city of New
York, under the exclusive jurisdiction and control of the department of
parks of said city, nor prevent any such commissioners, trustees or other
authorities in any other city from regulating the speed of any vehicles
herein described in such manner as to limit and determine the proper rate
of speed with which such vehicle may be propelled nor in such manner as
to require, direct or prohibit the use of bells, lamps and other appurten-
ances nor to prohibit the use of any vehicles upon that part of the highway,
street, park, or parkway, commonly known as the footpath or sidewalk.
[Highway Law, § 327; B. C. & G. Cons. L., p. 2346.]

§ 9. DEPOSITING ASHES, STONES, STICKS, ETC., UPON THE HIGHWAY.

Any person who shall deposit or throw loose stones in the gutter or
grass adjoining a highway, or shall deposit or throw upon a highway,
ashes, papers, stones, sticks,or other rubbish, shall be liable to a penalty
of ten dollars to be sued for and recovered by the town superintendent.
No stone or other rubbish shall be drawn to and deposited within the
limits of any highway, except for the purpose of filling in a depression
or otherwise improving the highway, without the consent and under
the direction of the town superintendent. [Highway Law, § 328; B. C.
& G. Cons. L., 2d ed., p. 3659.] ,

§ 10. TRACTION ENGINES ON HIGHWAYS.

The owner of a steam roller, steam traction engine, any other ma-
chinery propelled or driven by steam, or of any gasoline driven traction
engine, his servant or agent shall not allow, permit or use the same,
pass over, through or upon any public highway or street except upon
railroad tracks, unless such owner or his agent or servants shall send
before the same a person of mature age, at least one-eigth of a mile
in advance, who shall notify and warn persons traveling and using
such highway or street with horses or other domestic animals, of the
approach thereof, and at night such persons shall carry a red light,
966 HIGHWAYS AND BRIDGES.

Highway Law, § 329a.

except in incorporated villages and cities [Highway Law, § 329, as
amended by L. 1914, ch. 64; B. C. & G. Cons. L., 2d ed., p. 3659.]
§ 10a. LIGHTS ON VEHICLES.

Every vehicle on wheels** whether stationary or in motion, while
upon any public street, avenue, highway, or bridge, shall have attached

 

 

4. Penal Provision. Section 1425 of the Penal Law contains the following
subdivision, ‘‘A person who wilfully, A : . ‘ é

“11. Drives or leads along a public highway a itd wali daneevous animal,
or a vehicle or engine propelled by steam, except upon a railroad, along a
public highway, or causes or directs such animal, vehicle or engine to be so
driven, led or to be made to pass, unless a person of mature age shall precede
such animal, vehicle or engine by at least one-eighth of a mile, carrying a
red light, if in the night time, and giving warning to all persons whom he
meets traveling such highways, of the approach of such animal, vehicle or
engine;

Shall be deemed guilty of a misdemeanor.”

Purpose and effect of section. Section is directed against traction engines,
and does include automobiles. Nason v. West, 31 Misc. 583, 65 N. Y. Supp.
651.

The mere presence and use, by a municipal corporation, on one of its
public streets, of a steam roller does not render the street defective within
the meaning of the statute (vide section 74 of the Highway Law). Mullen
v. Village of Glens Falls, 11 App. Div. 275, 42 N. Y. Supp. 113.

- Necessity of warning. Where a steam roller was being used on the streets
and no notice or warning of its approach was given and the horses which the
plaintiff was driving became frightened, it was held, in an action brought
against the village to recover damages for personal injuries resulting from
the negligence of the village, that it was proper to submit to the jury the
question whether reasonable care required warning to be given of the
approach of the steam roller. It was also held that upon the question
whether a warning was necessary, it was proper to consider the fact that the
above section of the Highway Law and of the Penal Law recognized the
necessity of such a warning and that the failure to give it was made a mis-
demeanor, as indicating the view which the people of the state have taken
as to the necessity of such warning. Mullen v. Village of Glens Falls, 11
App. Div. 275; 42 N. Y. Supp. 113; see, also, Rice v. Buffalo Steel House
Co., 17 App. Div. 462; 45 N. Y. Supp. 277.

Damages for failure to comply. Where a steam roller is used upon the
highway without sending a person ahead to warn travelers of its approach,
and the plaintiff’s horse is frightened thereby, a verdict for the plaintiff is
warranted if there be no contributory negligence on his part. Buchanan’s
Sons v. Cranford Co., 112 App. Div. 278, 98 App. Div. 378. In ease of failure
to give warning and a person operating the steam roller is injured in a colli-
sion with a trolley car, the circumstance may be considered in determining
the amount of damages and the liability therefor. Kelly v. New York State
Railways, 207 N. Y. 342.

4a. Application of section extends only to vehicles ‘“‘on wheels” and hence

PLATE COR. — PAGE 1009
1. For form of bond
MISCELLANEOUS PROVISIONS. 967

Highway Law, § 330.

‘thereto a light or lights so placed as to be clearly visible from the front
and from the rear from one-half hour after sunset to one-half hour
before sunrise; provided,however, that this section shall not apply to
a vehicle designed to be propelled by hand or to a vehicle designed
principally for the transportation of hay or straw while loaded with
such commodities.** Upon the written application and presentation of
reasons therefor by the owner of the vehicle, the state commission of
highways may in writing, and subject to such requirements as it may
‘elect to impose, but without expense to the applicant, except said
vehicle from the provisions of this section for such period of time as
the commission may determine. The provisions of this section shall
apply to all cities, towns, and villages of the state except the city of
New York. Nothing in this section shall be construed to affect the
provisions of any existing statute, rule or regulations requiring lights
on motor vehicles or affecting the obligations of operators or occupants
thereof. A person violating the provisions of this section shall be
guilty of a misdemeanor punishable by a fine not to exceed ten dollars.
[Highway Law, § 329a, as added by L. 1914, ch. 32, amended by L.
1915, ch. 367, and L. 1918, ch. 258.]

§ 11. INJURIES TO HIGHWAYS.

Whoever shall injure any highway or bridge maintained at the public
expense, by obstructing or diverting any creek, watercourse or sluce, or by
dragging logs or timber on its surface, of by drawing or propelling over the
same a load of such weight as to injure or destroy the culverts or bridges
along the same, or of such weight that will destroy, break or injure the

 

is not applicable to sleighs upon public streets. Vadney v. United Traction
Co. (1920), 193 App. Div. 329, 183 N. Y. Supp. 926.

4b. Collision between automobile and unlighted wagon while passing at
a turn in the road; contributory negligence; failure to have light on wagon.
Where, in an action for negligence, it appears that the defendant’s automobile,
properly lighted, collided with defendant’s horse-drawn wagon which carried
no light, as required by statute, as they were passing at a turn in the road,
due to the defendant’s being too far toward the left side, it was error for
the court to refuse to charge “‘that the failure to have a light on the plain-
tiff’s vehicle is prima facie evidence of contributory negligence on the part
of the plaintiff.”” The absence of the light on the wagon was under the cir-
cumstances a contributory cause, for the statute intended that such a light
96%a HIGHWAYS AND BRIDGES.

Highway Law, §§ 331, 33la.

surface of any improved state, county or town highway, or by any other
act, or shall injure, deface or destroy any mile-stone or guide-post erected
on any highway, shall for every such offense forfeit treble damages. [High-

way Law, § 330, as amended by L, 1910, ch. 568; B. C. & G. Cons. L., p.
2348. ]

§ 12. WHEN TOWN NOT LIABLE FOR DAMAGES.

No town shall be liable for any damages resulting to person o> property
by the reason of the breaking of any bridge, sluice or culvert, by transporta-
tion on the same of any traction engine, portable piece of machinery, or
of any vehicle or load, together weighing eight tons or over, but any owner
thereof or other person engaged in transporting or directing the same
shall be liable for all damages resulting therefrom.> [Highway Law, § 331;
B. C. & G. Cons. L., p. 2349.]

§12a. EXCESSIVE LOADS ON UNSAFE BRIDGES.

Whenever by order of the town board of any town in which a bridge,
sluice or culvert is located or, if a bridge, sluice or culvert connects two
towns, by order of the town boards of such towns, a notice shall be erected
upon each end of such bridge, sluice or culvert prohibiting the use of such
bridge, sluice or culvert for loads in excess of ten tons, any person, firm
or corporation transporting or causing to be transported over any such
bridge, sluice or culvert any traction engine, tractor, portable piece of
machinery or any vehicle or load weighing ten tons or over shall be guilty

 

should be a signal to aid a person operating a motor vehicle to ‘‘turn the
same to the right of the center of such highway so as to pass without inter-
ference.” Martin v. Herzog (1917), 176 Apm Div. 614, 163 N. Y. Supp. 189,
affd. 228 N. Y. 164, 126 N. E. 814.

5. Bridge maintained by railroad. The provisions of the above section ex-
empting a town from damages resulting from the breaking of a bridge by a
load weighing more than four tons does not apply to bridges constructed by a
railroad as required by section 22 of the Railroad Law, but only to bridges of
a town maintained at public expense. Bush v. D. L. & W. R. R. Co., 166 N. Y.
210; Lee v. D. L. & W. R. Co., 71 N. Y. Supp. 120. Section cited to show
that a railroad company is required to construct bridges of such strength
only as will support vehicles that ordinarily pass over highways. People
ex rel. W. N. Y. & P. R. R. Co. v. Adams, 88 Hun, 122, 34 N. Y. Supp. 579.
MISCELLANEOUS PROVISIONS. 96%

Highway Law, § 332.

of a misdemeanor, and. upon conviction of a first offense shall be liable to
a fine of not to exceed twenty-five dollars. A second offense shall be a mis-
demeanor punishable by a fine or imprisonment or both. [Highway Law,
§ 331a, as added by L. 1917, ch. 568.]

§ 13. LAW OF THE ROAD.

1. Whenever any person traveling with any carriages, or riding horses
or other animals, shall meet on any turnpike road or highway, the persons
so meeting shall seasonably turn their carriages, horses, or other animals to
the right of the center of the road, so as to permit such carriages, horses,
or other animals to pass without interference or interruption.

2. Any carriage or the rider of a horse or other animal, overtaking
another shall pass on the left side of the overtaken carriage, horse or other
animal. When requested to do so, the driver or person having charge of
any carriage, horse or other animal, traveling, shall, as soon as practicable,
turn to the right, so as to allow any overtaking carriage, horse or other
animal free passage on his left.

 

Excessive load. A verdict against a town for the death of a driver caused by
the breaking of a bridge, will be reversed when it appears that the weight of the
wagon and load was over four tons. Kelly v. Town of Saugerties, 110 App. Div.
561, 97 N. Y. Supp. 177.

In an action against a town, for injury received by the collapse of a bridge, it
appeared that q traction engine weighing three and one-half tons was upon the
bridge, that it was hauling a thresher weighing about one and one-half tons,
and that at the time the accident occurred the engine alone was on the bridge;
it was held that evidence may be introduced to show how much was added to
the weight of the engine by reason of the effort of the engine to haul the weight
of the thresher. Heib v. Town of Big Flats, 66 App. Div. 88, 73 N. Y. Supp. 86.
See, also, Vandewater v. Town of Wappinger, 69 App. Div. 325, 74 N. Y. Supp. 699
(1902). os

Application to bridges maintained by State, see O’Brien v. State of New York
(1911), 148 App. Div. 542. Section is limited to town bridges and does not apply
to state bridges over the Erie Canal. Murray v. State of New York (Court of
Claims, 1916), 10 State Dept. Repts., 120. e

Liability of the State for death of a person while driving « traction engine
over a state bridge, see O’ Bryan v. State of New York, 68 Misc. 618, 125 N. Y.
Supp. 489.
968 HIGHWAYS AND BRIDGES.
Highway Law, § 332.

3. In turning corners to the right, carriages, horses or other animals
shall keep to the right of the center of the road. In turning corners to
the left, they shall pass to the right of the center of intersection of the
two roads.

4. Any person neglecting to comply with, or violating any provision
of this section shall be liable to a penalty of five dollars to be recovered
by the party injured, in addition to all damages caused by such neglect or
violation. [Highway Law, § 332; B. C. & G. Cons. L., p. 2349.]

 

6. The amendment of 1902 to the former Highway Law materially changed
the former law, which merely provided that persons meeting should seasonably
turn their carriages to the right of the center of the road so as to permit such
carriages to pass without interference or interruption. Under that law it was
held that it was extremely doubtful whether the law in regard to keeping to the
right on a public highway applies to any one except the drivers of vehicles
of some kind. Mooney v. Trow, etc., Co., 2 Misc. 238; 21 N. Y. Supp. 957; New-
man v. Ernst, 10 N. Y. Supp. 310; 31 N. Y. St. Rep. 1; Smith v. Dygart, 12 Barb.
613. But the present law applies to any person traveling with a carriage or
riding horses or other animals.

For rule as to passing when going in the same direction, before the amend-
ment of 1902, see Adolph v. Cen. Park, N. Y. & E. River R. R. Co., 76 N. Y¥. 530;
Dudley v. Bolles, 24 Wend. 465; Savage v. Gerstner, 36 App. Div. 220, 55 N. Y.
Supp. 306.

Right of the center of the highway. The rule requiring persons meeting to
keep their vehicles to the right of the center of the road, does not apply in
winter when the depth of the snow renders it impossible or difficult to ascer-
tain the center thereof. It is a reasonable construction of the statute to define
the center of the road in such a case, as the center of the traveled track regard-
less of the worked part of the road. Smith v. Dygert, 12 Barb. 613. The right
of the center of the road, as used in this section, means the right of the worked
part of the road and not the right of the most traveled part, although the whole
of the traveled part may be on one side of the center. Earing v. Lansingh, 7
Wend. 185.

The rule with regard to keeping to the right docs not apply when there are ob-
structions on that side of the highway. Mooney vy. Trow Directory, Printing and
Bookbinding Co., 2 Mise. 238, 21 N. Y. Supp. 957. The section applies to the case
of vehicles passing each other on the same side of roads and streets so wide that there
is no necessity for them to turn to the right of the center line of the highway in
order to pass safely. Wright v. Fleischman, 41 Mise. 533, 85 N. Y. Supp. 62.

In approaching the intersection of roads a driver should keep to the right; if
he turns to the left, and an automobile coming from behind, in attempting to pass
to the left, as required in this section, strikes and injures the horse and wagon, the
question as to the liability of the defendant is a question of fact for the jury.
Mendelson v. Van Rensselaer, 118 App. Div. 516, 103 N. Y. Supp. 577.

Id. The provision that vehicles turn to te rig't of the center does not apply
to a strect railroad. Campbell v. Richmond Light & R. R. Co. (1918), 181 App. Div.
320, 168 N. Y. Supp. 813.

When an automobile driver takes the wrong side of the road, and a collision
occurs, the presumption is against him, especially where the collision tal:cs
place in the dark. Borden’s Cond. Milk Co. v. Mosby (1918), 250 Fed. 839.
See, also, Martin v. Herzog (1920), 228 N. Y. 164, 126 N. EH. 814, affg. 170
App. Div. 614, 163 N. Y. Supp. 189.

“Seasonably turn,’ as used in this section, means that travelers shall turn to
the right in such season that neither shall be retarded in his progress by the
MISCELLANEOUS PROVISIONS. 969
Highway Law, § 333.

§ 14. TREES; TO WHOM THEY BELONG,

All trees standing or lying on land within the bounds of any high-
way, shall be for the proper use of the owner or occupant of such land,
except that they may be required to repair the highway or bridges of
the town’ but no growing tree planted by the state or by any county
or town within the bounds of a state or county highway shall be cut
down or destroyed without the written consent of the state commis-
sioner of highways. Where a right of way has been or shall be
acquired, under the provisions of this chapter, for a state or county
highway, the owner of the fee shall have and may harvest for his own
use the fruit upon all fruit-bearing trees left standing from time to
time within the right of way so acquired, until forbidden in writing by
the governing board of the political subdivisions in which the title
to such right of way vests. [Highway Law, § 333, as amended by L.
1916, ch. 147, and L. 1922, ch. 371.]

 

other occupying his half of the way, when he may have occasion to use it in passing.
Spooner v. Brooklyn, etc., R. R. Co., 54 N. Y. 230.

Runaway horses should be guided to the right side of the road to avoid a col-
lision. But if the horses are beyond the control of the driver and he uses due
diligence and the best of his ability as a skillful driver to’ control them the law of
the road does not apply. Cadwell v. Armheim, 81 Hun, 39; 30 N. Y. Supp. 573.

Rights of pedestrians. The law of the road does not apply to persons passing
each other on foot on the sidewalk. Grant v. City of Brooklyn, 41 Barb. 381; nor
does it apply to a carriage meeting a person on foot in the highway. Savage v.
Gernster, 36 App. Div. 220, 55 N. Y. Supp. 306; although there can be no question
as to the right of a person to pass along a highway on foot, and he is entitled to the
exercise of reasonable care on the part of persons driving along the highway. Vehi-
cles and pedestrians have equal rights in the highway, and both should exercise the
care and caution that the circumstances demand.

A person on foot has a right to cross the street, not only at the crosswalk, but
wherever he pleases; and one driving horses is bound to be watchful at all points
so as not to injure persons crossing. Moebus v. Herrmann, 108 N. Y. 349. Footmen
or vehicles have no superior right of way, the one over the other. Each has a right
of passage in common, and in its use is bound to exercise reasonable care for his
own safety, and to avoid injury to the other. For a person crossing a street on
foot, where vehicles are numerous, to fail to look in both directions and ascertain
if any vehicles are approaching, their rate of speed and distance from the crossing,
is negligence. Barker v. Savage, 45 N. Y. 191. A person driving horses along the
streets of a city is bound to look out for travelers on foot and must take reasonab‘e
care to avoid them. Murphy v. Orr, 96 N. Y. 14; Hyland v. Yonkers R. R. Co., 15
N. Y. St. Rep. 824, 1 N. Y. Supp. 363.

Abatement of tax for shade trees transplanted by the side of a highway by
the owner of the adjoining premises. See Highway Law, sec. 63, ante, p. 835.
The town superintendents of highways may authorize the owners of property
adjoining highways to locate and plant trees. See Highway Law, sec. 61, ante,
p. 834.

Shade trees. A right having once been given to the owner of lands adjoining
a highway to plant and have shade trees along the highway, he is entitled to a
continuance of the growth of such trees and is protected against their destruc-
tion by any person, including a highway officer. See Edsall v. Howell, 86 Hun,
424; 33 N. Y. Supp. 892. Although an owner does not own the fee of the high-
way in front of his lot, if he sets out shade trees along the highway in front of
his premises, at his own expense and with the sanction of the municipal
authorities, he is entitled to have such trees protected against negligent or wil-
ful destruction at the hands of third parties and has a right in the nature of an
970 HIGHWAYS AND BRIDGES.
Highway Law, §§ 334-336.

§ 15. INJURING FRUIT OR SHADE TREES. |

It shall be unlawful for any person or persons whatsoever in this state
to hitch any horse or other animal or to leave the same standing near
enough to injure any fruit or forest tree growing within the bounds of the
public highway, or used as a shade or ornamental tree around any school-
house, church or public building, or to cut down or mutilate in any way any
such ornamental or shade tree; but the right of property owners along the
highway to cultivate, train and use such shade trees shall not be impaired
or abridged hereby. Any person or persons guilty of violating the pro-
visions of this section shall be deemed guilty of misdemeanor, and shall be
punishable by a fine of not less than five dollars, nor more than twenty-
five dollars for each such offense. and in case of failure to pay any fine
imposed, may be committed to jail, not exceeding one day for each dollar
of such fine. Courts of special sessions having jurisdiction to try misde-
meanors, as provided by section fifty-six of the code of criminal procedure,
shall have exclusive jurisdiction to try offenders in all cases occurring in
the same manner as in other cases, where they now have jurisdiction, and
subject to the same power of removal, and to render and enforce judgments,
to the extent herein provided. All fines collected under the provisions of
this act shall be paid when the offense is committed in a town outside of
incorporated villages, to the supervisor of the town, to be used as the town
board and town superintendent may direct. When the offense is committed
in any village of the county, which by law is constituted a separate road
district, the fine shall be paid to the treasurer of said village, to be used
as the board of trustees may direct. [Highway Law, § 334; B. C. &
G. Cons. L., p. 2352.]

§ 16. PENALTY FOR FALLING TREES.

Tf any person shall cut down any tree on land not occupied by him, so
that it shall fall into any highway, river or stream, unless by the order
and consent of the occupant, the person so.offending shall forfeit to such
occupant the sum of one dollar for every tree so fallen, and the like sum
for every day the same shall remain in the highway, river or stream.
[Highway Law, § 335; B. C. & G. Cons. L., p. 2353.]

§ 17. FALLEN TREES TO BE REMOVED.
If any tree shall fall, or be fallen by any person from any inclosed land

 

easement for which he may recover compensation if it is taken away from
him. The unlawful cutting down of shade trees in a highway is deemed in
equity irreparable injury. Lane v. Lamke, 53 App. Div. 395; 65 N. Y.
Supp. 1090.

6a. Treble damages in action for trespass because of injury to shade trees,
see Real Property Law, §§ 533, 534. Actual damages may only be recovered
where trees are within limits of highway, see Pfohl v. Rupp, 166 App. Div.
630, 152 N. Y. Supp. 47.
MISCELLANEOUS PROVISIONS. 971
Highway Law, §§ 337-340.

into any highway, any person may give notice to the occupant of the
land from which the tree shall have fallen, to remove the same within
two days; if such tree shall not be removed within that time, but shall
continue in the highway, the occupant of the land shall forfeit the
sum of fifty cents for every day thereafter, until the tree shall be
removed. [Highway Law, § 336; B. C. & G. Cons. L., 2d ed., p. 3667.]

§ 18. PENALTIES, HOW RECOVERED.

All penalties or forfeitures given in this chapter, and not otherwise
specially provided for, shall be recovered by the town superintendent,
in the name of the town in which the offense shall be committed; and
when recovered, shall be applied by them in improving the highways
and bridges in such town, except that if the offense occurs on any
highway included in the systems defined by sections one hundred and
twenty and one hundred and twenty-two of this chapter, such penalties
or forfeitures may be recovered by the state commissioner of highways
and where so recovered shall be paid to the state treasurer to the eredit
of the fund available for the maintenance and repair of state and
am pe [Highway Law, § 337, as amended by L. 1922,
eh, 3871.

§ 19. ACQUISITION OF PLANK ROADS.

The board of supervisors of any county, except a county wholly
within the city of New York, and except the county of Erie, may by a
vote of a majority of the members thereof, by resolution, determine
to acquire the rights and franchises of any individual or corporation,
lawfully entitled to exact toll or charge for walking, riding or driving
over any plank road or turnpike, or a bridge within such county,
erected over any unnavigable stream, or over the Hudson river above
Waterford. Upon the adoption of such resolution, the board of super-
visors shall acquire such rights, franchises and property by purchase,
if able to agree with the owners thereof, and otherwise by condemna-
tion in the name of the county.” [Highway Law, § 338, as amended by
L. 1914, ch. 200; B. C. & G. Cons. L., 2d ed., p. 3667. ]

§ 20. BORROWING MONEY; BONDS.

The board of supervisors of such county may borrow money for the acqui-
sition of such rights, franchises, and property, and may issue the bonds or
other evidences of indebtedness of the county therefor, but such bonds or
other evidences of indebtedness shall not bear a rate of interest exceeding
five per centum per annum and shall not run for a longer period than
twenty years and shall not be sold for less than par. [Highway Law, § 339;
B. C. & G. Cons. L., 2d ed., p. 3668.]

§ 21. RAISING MONEY TO PAY BONDS AND INTEREST.

Except in the counties of Rensselaer, Onondaga, Albany and Columbia,
the amount of such bonds in whole or in part together with the interest
thereon may be apportioned by the board of supervisors upon the towns,

 

7. See Matter of Saratoga Lake Bridge Co. v. Walbridge, 140 App. Div.
718, 821, 126 N. Y. Supp. 468.
972 HIGHWAYS AND BRIDGES.
Highway Law, §§ 341-3438.

cities and villages constituting separate highway districts, in which such
plankroad, turnpike or bridge is located, in such proportions as the boards
may deem just and the amount so apportioned to each municipality for the
payment of the principal and interest of such bonds shall be annually levied
and collected at the same time and in the same manner as money for other
county charges. In the counties of Rensselaer and Columbia, the boards of
supervisors in making up the annual tax budget of the counties, shall each year
levy and assess upon and against the taxable property in said counties, in
addition to the amounts levied and assessed for other county charges, an
amount sufficient to pay the interest falling due and payable on the said
bonds during such year, and also an amount sufficient to pay the proportion
of the years fixed at the time during which said bonds shall run from their
issue to maturity. The amount raised by tax in each year for the payment
of the principal of said bonds shall be preserved intact by the county treas-
urers of said counties until said bonds mature and are payable, and upon
the maturity of said bonds, said county treasurer shall pay the same in full
out of the moneys so raised by annual tax therefor and shall thereupon take
back said bonds with receipts for the payment thereof and deliver them to the
boards of supervisors of said counties for cancellation. Said county treas-
urer shall deposit at interest the said moneys yearly raised by tax for pay-
ment of the principal of said bonds in such bank or depository as shall be
designated by the boards of supervisors of said counties, and the amount
realized from the interest thereon shall be used for the purposes of the said
counties under the direction of the said boards of supervisors. [Highway
Law, § 340; B. C. & G. Cons. L., 2d ed., p. 3668.]

§ 22. ROADS SO ACQUIRED TO BE PART OF HIGHWAY SYSTEM.

A plankroad, turnpike or bridge acquired pursuant to this article shall
become a part of a highway system of such county and of the towns, cities
and villages in which the same is located, and shall thereafter be repaired
and maintained in the same manner as the other highways or bridges therein.
[Highway Law, § 341; B. C. & G. Cons. L., 2d ed., p. 3669.]

§ 23. WHEN ROAD IS IN TWO OR MORE COUNTIES.

When a plankroad, turnpike, toll road or bridge is partly in one county
and partly in another, the boards of supervisors of the said counties shall
act together in the manner prescribed above, and determine the amount to
be paiu to said plankroad, turnpike, toll road or bridge company, by each
county, and such amount against each county, after such determination,
shall be paid by each county. [Highway Law, § 342; B. C. & G. Cons. L.,
2d ed., p. 3669.]

§ 24. ALBANY POST ROAD; RAILROAD TRACKS THEREON.

The old established road along the valley of the Hudson river from the city
of New York to the city of Albany, known as the Albany post road, shall
be a public highway for the use of the traveling public forever. The said
highway shall be kept open and free to all travelers, and shall not be ob-
structed in any way by .any obstacle to free travel. No trustees of any
village or corporation of any city upon its route, or town superintendents of
highways of towns, or any other person or board whatever, shall have any
power or authority to authorize or license the laying of any railroad track
upon said highway, except to cross the same, and any such action shall be
MISCELLANEOUS PROVISIONS. 973
Highway Law, §§ 344, 345.

void and of no effect. This section shall not apply to any portion of said
road within the city of New York or the city of Yonkers, south of Main
street, nor shall it apply to the road of the president, directors and company
of the Rensselaer and Columbia turnpike nor to the town of Cortland or the
village of Sing Sing, in Westchester county. [Highway Law, § 343, as
amended by L. 1910, ch. 658; B. C. & G. Cons, L., 2d ed., p. 3669.]

§ 25. LIGHTING ROADS, HIGHWAYS AND BRIDGES.

The town board of any town, subject to the approval of the commissioner
of highways, may from time to time provide for lighting dangerous portions
of any road or highway defined by section three of this chapter or constructed
or improved under the provisions of section three hundred and twenty of
this chapter, and of bridges located thereon. The initial action of the board
shall be in the form of a proposal for submission to the commissioner. The
roads and portions thereof to be lighted, and the manner of lighting, shall be
set forth in such proposal. Such proposal shall be embodied in a resolution.
The lighting of one or more such roads, highways or bridges, or either,
may be proposed in a single resolution. The board may provide for such
lighting, if its proposal is so approved, or, if modifications are suggested
by the commissioner, may adopt such modifications and provide for such
lighting in conformity therewith. The expense of installing, maintaining
and caring for such lights shall be a town charge, and the moneys therefor
shall be provided and appropriated in the same manner as for other town ex-
penses. The furnishing of light under this section may be provided for by con-
tract or otherwise; but nothing herein contained shall be deemed to authorize
the town board to acquire, construct or establish a gas or electric lighting plant
for the above purposes. The installation of lights, fixtures and connection
shall be done under the supervision of the county superintendent of highways.
The town board may provide for the care of such lights in such manner as it
may deem proper. The board may, in its discretion, at any time discontinue
the lighting of any road, highway or bridge, or portion thereof, provided for
under this section. [Highway Law, § 344, as added by L. 1917, ch. 367.]

§ 26. LIGHTING OF PUBLIC HIGHWAYS OR BRIDGES,

The board of supervisors of any county, subject to the approval of the
state commissioner of highways, may from time to time provide for lighting
public highways, or portions thereof, or bridges, located in such county out-
side of cities and villages. The initial action of the board shall be in the
form of a proposal for submission to the commissioner. The highways, or
portions thereof, or bridges to be lighted, and the manner of lighting, shall
be set forth in such proposal. Such proposal shall be embodied in a resolu-
tion. The lighting of one or more of such highways, or portions thereof,
or bridges may be proposed in a single resolution. The board may provide for
such lighting if its proposal be so approved or, if modifications be suggested
by the commissioner, may adopt such modifications and provide for such
lighting in conformity therewith. The expense of installing, maintaining and
caring for such lights shall be a county charge, and the moneys therefor shall
be provided and appropriated in the same maner as for other county expenses.
The furnishing of light under this section may be provided for by contract
or otherwise, but nothing herein shall be deemed to authorize the board to
acquire, construct or establish a lighting plant for such purposes. The
installation of lights, fixtures and connections shall be done under the super-
vision of the county superintendent of highways. 'The board may provide
for the care of such lights in such manner as it may deem proper. The
board may, in its discretion, at any time discontinue the lighting of any
highway, or portion thereof, or bride provided for under this section. [High-
way Law, § 345, as added by L. 1922, ch. 634.]
974 HIGHWAYS AND BRIDGES.

Highway Law, §§ 350, 361

CHAPTER LXVI.
SAVING CLAUSES; LAWS REPEALED; WHEN TO TAKE EFFECT.

[Highway Law, art XIII.}

SecTion 1. Transfer of powers and duties of State engineer.
2. Transfer of records; eligibility of present employees.
3. County engineers and superintendents of highways to be continued
in office.
. Pending actions or proceedings.
. Saving clause.
County highway maps preserved. (Repealed by L. 1921, ch. 18.)
. Construction.
. When to take effect.
. Laws repealed.

WoNA of

§ 1. TRANSFER OF POWERS AND DUTIES OF STATE ENGINGEER.

On and after the taking effect of this chapter, and the appointment and
qualification of the state commission as herein authorized, all the powers
and duties of the state engineer in respect to highways and bridges, con-
ferred and imposed by any statute of this state, shal] be transferred to the
department of highways to be exercised and performed by the state com-
mission of highways as provided herein. [Highway Law, § 350; B. C.
& G. Cons. L., p. 2356.]

§ 2. TRANSFER CF RECORDS; ELIGIBILITY OF PRESENT EM-
PLOYEES.

The state engineer shall transfer and deliver to the state commission
of highways all contracts, books, maps, plans, papers and recards of what-
ever description, in his possession when such commission is apyuinted and
have qualified, pertaining to the construction, improvement, meiuteuance
and supervision of highways and bridges and such commission is authorized
at such time to take possession of all such contracts, books, maps, plans,
papers and records. The commission may also retain in its employment
resident and other engineers, levelers, rodmen, clerks and employees en-
gaged or connected with the department of highways in the office of the
LAWS REPEALED; WHEN TO TAKE EFFECT. O85

Highway Law, §§ 352-354.

state engineer, or employed by him in connection with the powers and”
duties exercised and performed by him in respect to highways and bridges,
and all such engineers, clerks and employees shall be eligible to transfer
and appointmeut to positions under the commission. [Highway Law, §
351; B. C. & G. Cons. L., p. 2356.]

§ 3. COUNTY ENGINEERS AND SUPERINTENDENTS OF HIGHWAYS
TO BE CONTINUED IN OFFICE.

County engineers and superintendents of highways in office when this
chapter takes effect shall be continued in office during their present term
of office and until the district or county superintendents shall have been
appointed and have qualified as provided in this chapter. Such county
engineers and superintendents of highways shall exercise the powers and
perform the duties hereby conferred and imposed upon district or county
superintendents until the appointment and qualification of a district or
county superintendent as above provided. Upon the appointment and
qualification of a district or county superintendent for the county for which
such county engineer or superintendent of highways is appointed all con-
tracts, books, maps, plans, papers, and records pertaining to the construc-
tion, improvement, maintenance and supervision of highways in such
county shall be transferred to such district or county superintendent.
[Highway Law, § 352; B. C. & G. Cons. L., p. 2357.]

§ 4. PENDING ACTIONS OR PROCEEDINGS.

This chapter shall not affect pending actions or proceedings, civil or
criminal, pertaining to the construction, improvement, maintenance, super-
vision or control of highways and bridges, brought by or against the state
engineer, or county engineer or a county superintendent of highways, or
a commissioner of highways, under the provisions of any statute hereby
repealed, but the same may be prosecuted or defended in the same manner
by the commission or by the officer having jurisdiction in respet there-
to. Any investigation, examination or proceeding undertaken, com-
menced or instituted by the state engineer, county engineer or highway
commissioner or either of them relating to highways or bridges may be
conducted or continued to a final determination by the proper officer
hereunder, in the same manner, and under the same terms and conditions,
and with the same effect as though this chapter had not been passed.
[Highway Law, § 353; B. C. & G. Cons. L., p. 2357.]

§ 5. SAVING CLAUSE.
The repeal of a law, or any part of it specified in the annexed schedule
976 HIGHWAYS AND BRIDGES.

Highway Law, § 355.

shall not affect or impair any contract, or any act done, or right accruing.
accrued or acquired or any penalty, forfeiture or punishment incurred prior
to the time when this chapter or any section thereof takes effect, under or
by virtue of the laws so repealed, but the same may be asserted, enforced,
prosecuted, or inflicted, as fully and to the same extent, as if such laws had
not been repealed. The provisions of this chapter shall not affect or im-
pair any act done or right accruing accrued or acquired under or in pursu-
ance of any resolution adopted by the board of supervisors of a county, on or
before the thirty-first day of December, nineteen hundred and eight, re-
questing the construction or improvement of a highway therein. as pro-
vided in chapter one hundred and fifteen of the laws of eighteen hundred
and ninety-eight, and the acts amendatory thereof, or under or in pursn-
ance of any resolution adopted on or before such date by a board of super-
visors, under such act and the acts amendatory thereof, providing for the
construction or improvement of a highway in a county in accordance with
maps, plans and specifications submitted to such board by the state en-
gineer, or under or in pursuance of any contract for the construction or
improvement of a highway, awarded as provided in such chapter one
hundred and fifteen of the laws of eighteen hundred and ninety-eight and
the acts amendatory thereof. All further proceedings in respect to such
highway shall be taken in accordance with the provisions of this chapter.
[Highway Law, § 354; B. C. & G. Cons. L., p. 2357.]

§ 6. COUNTY HIGHWAY MAPS PRESERVED.1
(Highway Law, § 355, repealed by L. 1921, ch. 18.)

 

1. Former section 355 of the Highway Law, which was repealed by L.
1921, ch. 18, did not apply to state highways specified in § 120 of the High-
way Law. The map only relates to highways not designated and described
as state highways. People ex rel. Wauful v. Reel, 157 App. Div. 128.
LAWS REPEALED; WHEN TO TAKE EFFECT. 977
Highway Law, §§ 356, 357.

§ 7. CONSTRUCTION.

Wherever the term. “state engineer ” shall occur in any law, contract or
document such term shall be deemed to refer to the state commission of
highways as established by this chapter so far as such law, contract or docu-
ment pertains to matters which are within the jurisdiction of such com-
mission of highways. Wherever the term “county engineer” or “ county
superintendent of highways ” is used in any such law, contract or document
such term shall be deemed to refer to and include the county or district
superintendent having jurisdiction of the matter contained in such law,
contract or document.

The provisions of this chapter so far as they are substantially the same,
as those existing at the time they shall take effect, shall be construed as a
ccntinuation of such laws, modified or amended, according to the language
employed in this chapter, and not as new enactments. References in laws
not repealed to provisions of law incorporated in this chapter and repealed,
shall be construed as applying to the provisions so incorporated. [Highway
Law, § 356; B. C. & G. Cons. L., p. 2358.]

§ 8. WHEN TO TAKE EFFECT.

This chapter shall take effect the first day of January, nineteen hundred
and nine, except as to the provisions specified as follows:

1. The provisions of section forty-three, ninety, ninety-one, ninety-four,
ninety-five, ninety-nine, and one hundred, relating to highway commis-
sioners, estimates of expenditures, duties of town board in respect thereto,
levy of taxes, the limitation of amounts to be raised, submission of prop-
ositions at town meetings, assessments of village property and statements
by the clerk of the board of supervisors to the comptroller, shall take effect
immediately.

2. The provisions of sections one hundred and thirty and one hundred
and thirty-one of this chapter, pertaining to the award of contracts for the
construction of county highways shall take effect immediately and shall
apply to contracts to be awarded under chapter one hundred and fifteen
of the laws of eighteen hundred and ninety-eight and the acts amendatory
thereof, prior to January first, nineteen hundred and nine; and until the
commission shall have been appointed and have duly qualified, the state
engineer and surveyor shall exercise the powers and perform the duties
conferred upon the said commission by the foregoing sections.

3. The provisions of.section one hundred and seventy-nine, relating to
the sprinkling of state and county highways and the removal of refuse
therefrom ; the provisions of section three hundred and twenty, relating to
the construction or improvement of highways at the joint expense of a
county and town, and the provisions of section three hundred and fifty-five
$78 HIGHWAYS AND BRIDGES.
Highway Law, § 357.

relating to the modification of maps by boards of supervisors and the pro-
visions of this section shall take effect immediately. [Highway Law, § 357;
B. C. & G. Cons. L., p. 2359.]

§ 9. LAWS REPEALED.

Of the laws enumerated by the schedule hereto annexed that portion
specified in the last column is hereby repealed. Such repeal shall not
revive a law repealed by any law hereby repealed, but shall include all
laws amendatory of the laws hereby repealed. [The schedule of laws re-
‘pealed is omitted. ]
DUTIES OF SUPERVISORS AS TO HIGHWAYS AND BRIDGES. 979

County Law, § 61.

CHAPTER LXVII.

DUTIES OF BOARDS OF SUPERVISORS AS TO HIGHWAYS AND

Section 1.

10.

11.
12.

13.
14.
15.
16.
17.

18.
19.

BRIDGES.

When board of supervisors may lay out, open, alter or discontinue
county highways or construct bridges.

. Boards of supervisors may authorize the change of location or con-

struction of bridges.

. Board of supervisors may provide for construction of bridges de-

stroyed by the elements, in certain cases.

. Board of supervisors may aid towns in the construction and repair

of bridges.

. Apportionment of expenses when a bridge is intersected by town or

county lines.
County’s share of. expenses to be raised and paid to the commis-
sioners of highways of the towns.

. Board of supervisors may authorize a town to construct a bridge out-

side of a boundary line.

. Maintenance of bridges over county lines.
. Boards of supervisors may map out streets and avenues in towns

outside of city limits.

Board of supervisors may authorize commissioners of highways to
cause survey of highways to be made.

Board of supervisors may regulate toll rates.

Powers of boards of supervisors as to highways in counties of
more than 300,000 acres of unimproved land.

Appropriation of certain nonresident highway taxes.

Balance of state appropriations.

Alteration of state roads.

Further povrers of board of supervisors as to highways.

Board of supervisors may pass laws as to use of wide tire on
highways.

Use of abandoned turnpike. plank or macadamized roads.

Definition of ‘“‘ upon its borders.”

8 1. WHEN BOARD OF SUPERVISORS MAY LAY OUT, OPEN, ALTER
OR DISCONTINUE COUNTY HIGHWAYS OR CONSTRUCT
BRIDGES.

A board of supervisors shall, on the application of twenty-five resident
980 HIGHWAYS AND BRIDGES.
County Law, § 61.

taxpayers when satisfied that it is for the interest of the county, lay out,
open, alter or discontinue a county highway therein, or cause the same to
be done, and construct, repair or abandon a county bridge therein, or
cause the same to be done, when the board shall deem the authority con-
ferred on commissioners of highways insufficient for that purpose, or
that the interests of the county will be promoted thereby.’ All expenses
so incurred shall be a county charge. Such powers shall not be exer-
cised unless the applicants therefor shall prove to the board the service
of a written notice, personally or by mail, on a commissioner of high-
ways of each town in the county, at least twelve days prior to the
presentation of such application, specifying therein the object thereof:

 

1. County road system. Boards of supervisors are authorized to adopt by
a resolution the county road system, and may thereupon designate certain lead-
ing market roads in the county to be constructed and maintained at a county
expense. Highway Law, sec. 320, ante, p. 961. Where a county road has been
constructed by a county, without the aid of the state, the state is liable to pay
a part of the cost of maintenance. Highway Law, § 178, ante, p. 904. Where
a road in a county has been designated and constructed by the county, it may
be altered, or discontinued in the manner provided in the above section. Such
section would also seem to authorize a board of supervisors to lay out and open
a new highway.

Power and liability of county as to highways and bridges. At common
law the duty of repairing and constructing bridges rested upon the county,
because of the fact that bridges were regarded as for the common good of the
whole county. But the rule of the common law has never been in force in this
state. As early as 1784 the care and reparation of highways, including bridges,
were committed to town officers. Hill v. Board of Supervisors, 12 N. Y. 52.
In this case Johnson, J., said: “It must, I think, be considered as settled,
that the common law responsibilities of counties for the repair of bridges
never prevailed in this state. Our statutory system introduced the primary
responsibility of the towns in respect to the maintenance of highways and
bridges; and in many cases where the burden was greater than could con-
veniently be borne by the towns, particular acts of the legislature have pro-
vided for the means and method of erecting and keeping in repair the public
bridges.”

County is not liable for failure of supervisors to maintain bridges in a safe
condition, Ahern v. County of Kings, 89 Hun 148, 34 N. Y. Supp. 1023;
Godfrey v. County of Queens, 89 Hun 18, 34 N. Y. Supp. 1052.

Streets and highways. Board cannot rescind a resolution to close a high-
way except on petition of property owners or certificate of the town officers
as to its necessity. Schafhaus v. City of N. Y., 28 App. Div. 475, 51 N. Y. Supp.
111, affd. 159 N. Y. 557.

The legislature may delegate to the board of supervisors power to lay out
streets and to levy and collect assessments therefor; and the board may by
resolution appoint grading commissioners; nor is such resolution within the
inhibition of the Constitution, Article 3, § 16, which applies only to acts of the
legislature. Robert v. Supervisors of Kings, 3 App. Div. 366, 38 N. Y. Supp. 521
affd. 158 N. Y. 673.

The board may authorize improvement of highways in a town even though
it contain a village, the highways in the village being under their control;
DUTIES OF SUPERVISORS AS TO HIGHWAYS AND BRIDGES. 98)
County Law, § 62.

and when the application is to lay out a highway, or construct a bridge, the
route or location thereof; and in all other cases, a designation of the highway
or bridge to be affected thereby. Whenever the board of supervisors of a county
shall determine to construct a bridge in accordance with the foregoing pro-
visions of this section, such board, gn behalf of the county, and the town boara
of a town or in case of a city the board of aldermen or any similar board exer-
cising the functions of aldermen, on behalf of such town or city, may enter into
an agreement with the county, to the effect that such town or city will operate
and maintain such bridge, in case the bridge is located wholly in a town or
city. In case the bridge is constructed over a stream forming the boundary
line between two towns or two cities or between a town and city, then they
may agree with the county to operate and maintain such bridge jointly, in
proportion to the assessed valuation of such town or city. The sum which the
town or towns, city or cities are obliged to pay under such an agreement is a
charge upon such towns or cities and shall be paid as other town or city
charges are paid. [County Law, § 61, as amended by L. 1909, ch. 240, and L.
1914, ch. 233; B. C. & G. Cons. L., p. 752.]

§ 2, BOARDS OF SUPERVISORS MAY AUTHORIZE THE CHANGE OF
LOCATION OR CONSTRUCTION OF BRIDGES.

The board may authorize the location, change of location and construc-
tion of any bridge, applied for by any town, or towns, jointly, or by other
than a municipal corporation, created under a general law, or by any cor-
poration or individual for private purposes;3 and if a public bridge, erected

certiorari is the proper writ to pass on such an action of the board. Trustees of
Jamaica v. Supervisors, 42 St. Rep. 22, 16 N. Y. Supp. 705.

Bridges. In the absence of action by the supervisors the highway commis-
sioner of a town is empowered to erect a bridge and make valid contracts
therefor. Berlin Iron Bridge Co. v. Wagner, 32 N. Y. St. Rep. 407, 10 N. Y.
Supp. 840. But see Birge v. Berlin Iron Bridge Co., 138 N. Y. 477, s. ce. 45
N. Y. St. Rep. 874.

2. For form of application of taxpayers to board of supervisors, see Form
No. 149, post; for form of notice to highway commissioners, see Form No.
150, post; for form of proof of service of notice, see Form No. 151, post; and
for form of order and resolution adop.ied by board of supervisors, see Form
No. 152, post.

3. Location of bridge; powers of board. The power to locate a bridge over
a stream, where a highway on both sides thereof has been laid out and the
town has voted to construct such bridge, is not exclusively vested in the board
of supervisors. Huggans v. Riley, 125 N. Y. 88; 25 N. BH. 993. In this case
it was held in effect that the provisions of the act of 1875, ch. 482, sec. 1,
sub. 3, from which the above section was derived, did not take away the
power vested in the commissioners of highways as to the care and superin-
tendence of the highways; and that under the power given to those officers
to repair highways, the highway commissioner of a town may build a new bridge
when necessary to connect the two portions of a highway interrupted by
an intersecting stream. Boards of supervisors have been granted power to
authorize the construction or location of a bridge, or to permit a change of
location thereof by any town or towns in the county, or by an individual or
corporation residing therein. But, as was said by Gray, J., in the case last
cited: “The town has voted for a bridge in a certain locality and has assumed
and provided for the expense of its location. For the court to hold that because
the precise location had not been made and would not be made by the county
982 HIGHWAYS AND BRIDGES.

County Law, § 64.

other than by a municipal corporation, establish the rates of toll for cross-
ing such bridge ;* but if such bridge is to cross a navigable stream, provi-
sion shall be made in the resolution or permission authorizing the same,
for the erection and maintenance of a suitable draw, to prevent any obstruc-
tion of the navigation of such stream; and if a private bridge, provision
shall be made that the draw shall be kept open as may be required to per-
mit all vessels to pass without loss of headway. When such bridge shall
be intersected by the line of counties, the action of the board of supervisors
of each county shall be necessary to give the jurisdiction herein permitted.
If such bridge is to cross a stream which is navigable in fact, it, including
its abutements, and piers, if any, shall be located and constructed in accord-
ance with maps, plans and specifications to be approved by the state en-
gineer and surveyor and by the superintendent of public works, and not
otherwise, and copies of such maps, plans and specifications showing the
location, character, design and dimensions of such bridge, and the fact
of such approval, shall be filed in the offices of the state engineer and sur-
veyor and of the superintendent of public works. [County Law, § 62, as

amended by L. 1918, ch. 283; B. C. & G. Cons. L., p. 753.]

§ 3. BOARD OF SUPERVISCRS MAY PROVIDE FOR CONSTRUCTION
OF BRIDGES DESTRCYED BY THE ELEMENTS, IN CERTAIN
CASZIS.

If any bridge within a county, or intersected by any boundary line
of a county, shall be destroyed by the elements, and the board of supervisors
of the county shall deem that the expenses of the construction of a new

 

supervisors, no bridge can be constructed at all, would, in my opinion, be
a view of the statutory regulations on that subject, which is quite unwarrantable.
I do not think the legislature meant any such thing, and its acts are not
susceptible of a construction which lodges such exclusive power in the county
poard of supervisors.”

Construction by private individual. Any person owning lands on both
sides of a stream may, without legislative authority and even in defiance of
legislative prohibition, maintain a ferry or bridge for his own use, pro-
viding he does not interfere with the public easement. Such owner cannot,
however, without legislative authority maintain a bridge or ferry for public
use. Chenango Bridge Co. v. Paige, 83 N. Y. 178. And in the case of People
ex rel. Howell v. Jessup,.160 N. Y. 249; 54 N. E. 682, it was held that the
town of Southampton had, in the month of June, 1888, sovereign power as
to lands under water in Great South Bay, and could give authority to an
owner on the main land to construct a bridge to the sand bar on the opposite
side of the bay, also owned by him, where such bridge was not an unreasonable
obstruction to navigation.

4. Rates of toll. Boards of supervisors may regulate rates of toll. See
County Law, sec. 72, post, p. 988; Transportation Corporations Law, sec. 136.
DUTIES OF SUPERVISORS AS TO HIGHWAYS AND BRIDGES. 983

County Law, § 63.

bridge at or near the site of the bridge so destroyed would be too burden-
some upon the town or towns within such county, which would otherwise
be liable therefor, the board of supervisors of any such county may provide
for the construction and completion of a bridge and all necessary approaches
thereto, at or near the site of the bridge so destroyed. If the bridge so
destroyed shall have been constructed by a corporation created under a
general law, and the site thereof, and the approaches thereto, or either,
shall be the property of such corporation, such board of supervisors may
purchase the interest of such corporation, or any other person, in such site
or approaches, if such purchase can be accomplished upon reasonable
terms; but if such site or approaches cannot be lawfully acquired by such
purchase, or otherwise, upon reasonable terms, such board may acquire title
to premises on either side of such site, and provide for the construction of
a bridge and approaches thereto, at such place, at the expense of the county,
or of the two counties jointly, as the case may be, provided such bridge
shall be so located as not to increase the distance to be traveled upon the
highway to reach each end of such bridge more than five rods. Any board
of supervisors providing for the construction of any such bridge may
determine by resolution whether the expenses of the maintenance and
repair thereof shall thereafter be a county charge, or a charge upon such
town or towns. [County Law, § 64; B. C. & G. Cons. L., p. 755.]

§ 4, BOARD OF SUPERVISORS MAY AID TOWNS IN THE CON-
STRUCTION AND REPAIR OF BRIDGES.

If the board of supervisors of any county shall deem any town in the
county to be unreasonably burdened by its expenses for the construction
and repair of its bridges, the board may cause a sum of money, not exceed-
ing two thousand dollars in any one year, to be raised by the county and
paid to such town to aid in defraying such expenses.° [County Law, § 63,
B. C. & G. Cons. L., p. 754.]

 

5. Unreasonable burden. Since 1801 statutes have existed relieving towns
from unreasonable burdens in the construction of bridges. People ex rel. Root
vy. Supervisors of Steuben Co., 81 Hun 216, 30 N. Y. Supp. 729, affd. in 146
N. Y. 107; as to liability of county to contribute. See Hill v. Supervisors of
Livingston, 12 N. Y. 52; People v. Supervisors of Dutchess, 1 Hill 50; Phelps
v. Hawley, 52 N. Y. 27. ;

Aid of county. The board of supervisors may appropriate county moneys
for the aid of a town which is unreasonably burdened by the construction of
bridges, although the town has already bonded itself for such purpose. The
money so appropriated may be expended for the payment of bonds. Knowles
v. Board of Supervisors of Chemung Co., 112 App. Div. 138, 97 N. Y. Supp.
1111.
984 HIGHWAYS AND BRIDGES.
County Law, §§ 65-67.

§ 5. APPORTIONMENT OF EXPENSES WHEN A BRIDGE IS INTER-
SECTED BY TOWN OR COUNTY LINES.

If any public free bridge, intersected by the boundary line of a county
shall also be intersected by the boundary line of two or more towns
in such county, the board of supervisors of such county shall apportion as it
shall deem equitable, between such towns, their respective shares of the
expenses of the construction, maintenance and repair of such bridge, and the
amount to be received by each town of the money raised by the county to
be paid toward defraying the expenses of constructing and repairing such
bridge.®

The provisions of chapter four hundred and thirty-nine of the laws of
eighteen hundred and eighty-one shall apply and continue in force so far as
relates to or affects any bridges constructed thereunder before the sixth
day of May, eighteen hundred and ninety. [County Law, § 65; B. C. &
G. Cons. L., p. 755.]

§ 6. COUNTY’S SHARE OF EXPENSES TO BE RAISED AND PAID TO
THE COMMISSIONERS OF HIGHWAYS OF THE TOWNS.
The board of supervisors shall cause to be raised and collected the amount
to be paid by the county to any town toward the expenses of a bridge and
when collected the same shall be paid to the commissioners of highways
of the town, to be applied by them toward the payment of such expenses.
[County Law, § 66; B. C. & G. Cons. L., p. 756.]

§ 7. BOARD OF SUPERVISORS MAY AUTHORIZE A TOWN TO CON-
STRUCT A BRIDGE OUTSIDE OF A BOUNDARY LINE.

The board of supervisors of any county may authorize any town, on a

 

6. Bridges over county boundaries are to be erected, maintained, and
repaired by the towns, and the county is liable to pay not less than one-sixth
of the expense of such erection, maintenance and repair. See Highway Law,
sec. 130, ante, p. 945.

Apportionment of expense. Supervisors may apportion expense on their own
motion. People ex rel. Morrill v. Supervisors of Queens, 112 N. Y. 585. The
power of apportioning vested in the supervisors is permissive only. Surdam
vy. Fuller, 31 Hun 500. But see People ex rel. Root v. Supervisors of Steuben
Co., 81 Hun 216, 30 S. Y. Supp. 729; People ex rel. Otsego Co. Bank v. Super-
visors, 51 N. Y. 401.

Board of supervisors may compel erection of a bridge between towns and
impose tax on such towns to pay cost thereof, notwithstanding one of the towns
be opposed thereto. Town of Kirkwood v. Newbury, 122 N. Y. 571, affg. 45
Hun 323.
DUTIES OF SUPERVISORS AS TO HIGHWAYS AND BRIDGES. 985

County Law, § 68.

vote of a majority of the electors thereof voting at a regular town meeting,
to appropriate a sum, or pledge its credit, partly or wholly construct and
maintain a bridge outside the boundaries of the town or county, or from
or within the boundary line of any town into another town or county, but
forming a continuation of highways leading from such town or county, and
deemed necessary for the public convenience. [County Law, § 67; B.
C. & G. Cons. L., p 756.]

§ 8. MAINTENANCE OF BRIDGES OVER COUNTY.LINES.

The board shall provide for the care, maintenance, preservation and
repair of any draw or other bridge intersecting the boundary line of
counties or towns, which bridge is by law a joint charge on such counties
or towns, or on the towns in which it is situated; and to severally appor- |
tion, as it may deem equitable, the expenses thereof on the towns respec-
tively liable therefor, or on the respective counties when liable; but when
such bridge shall span any portion of the navigable tide-waters of this state,
forming, at the point of crossing, the boundary line between two counties,
such expense shall be a joint and equal charge upon the two counties
in which the bridge is situated, and the board of supervisors in each of such
counties shall apportion such expense among the several towns and cities
in their respective counties, or upon any or either of such towns and
cities, as in their judgment may seem proper; and if there be in either of
said counties, a city, the boundaries of which are the same as the bound-
aries of the county, then it shall be the duty of the common council of
such city, to perform the duty hereby imposed upon the boards of super-
visors; but no town or city not immediately adjacent to such waters, at
the points spanned by said bridge shall be liable for a larger proportion of
such expense than the taxable property of such town or city bears to the
whole amount of taxable property of such county.7. The board of super-

 

As to power of legislature to impose tax, see People ex rel. Kilmer v.
McDonaid, 69 N. Y. 362; People ex rel. McLean v. Flagg, 46 N. Y. 401.

7. Liability of counties; defective bridge. Whether the maintenance of
highways and bridges is devolved as a duty upon the towns or upon the
counties of the state, it must be regarded as a duty, in its nature, public and
governmental; and this is especially so in respect to the duty imposed by the
above section upon counties of maintaining a bridge which spans navigable
waters of the state, forming a boundary line between two counties. Markey
v. County of Queens, 154 N. Y. 675; 49 N. E. 71. In this case Gray, J., said:
“The conclusion I have reached, after a careful consideration of the subject,
is that, in the work of constructing the bridge in question, the board of super-
visors were executing a certain public duty, imposed upon them as the proper
986 HIGHWAYS AND BRIDGES.
County Law, § 70.

visors of such counties or in any city embracing the entire county, and
having no board of supervisors, the common council shall have full con-
trol of such bridges. No such bridge shall be constructed unless the board
of supervisors in each of such counties, and the common council of the city
whose boundaries are the same as the boundary of the other county adjacent
to such waters, shall first by resolution determine that such bridge is
necessary for public convenience, in which case such common council, with
the consent of the mayor, may authorize the issue of bonds for the purpose
of constructing such bridge, to be issued as other bonds are issued in said
city. Whenever any bridge now spanning any such navigable tide-waters
or hereafter erected across any such navigable tide-waters, shall be con-
demned by the United States authorities as an obstruction to navigation,
and shall be ordered removed, the county and city authorities having charge
of such bridge, if they shall determine that such bridge shall be rebuilt, shall,
as soon as practicable after such determination, cause plans to be prepared
for the erection of the new bridge and the removal of any bridge so con-
demned as foresaid, and within a reasonable time after the approval of any
such plans by the United States authorities, the proper officers shall proceed
with the construction of said new bridge. In case of any unreasonable delay
on the part of the officer or officers charged with the duty of construction
of such new bridge, such duty may be enforced by mandamus upon the
application of any citizen interested in its performance. [County Law.
§ 68; B. C. & G. Cons. L., p. 756.]

§ 9. BOARDS OF SUPERVISORS MAY MAP OUT STREETS AND
AVENUES IN TOWNS OUTSIDE OF CITY LIMITS.

When any territory in a county containing an incorporated city of one
hundred thousand inhabitants or upward, lying outside the limits of such

 

public agents in that particular civil division of the state, and that the county
could not be subjected to a privaté action for injuries occurring in, or by reason
of, the performance of the work.”

The liability only exists where there is a lawful highway which would be
connected by a bridge over navigable waters dividing the counties. Beckwith
v. Whalen, 70 N. Y. 430; People ex rel. Keene v. Supervisors, 151 N. Y. 190;
45 N. EB. 453. In this case it appeared that a turnpike had been abandoned, and
that its road had been carried over a navigable tidal stream forming the bound-
ary between two counties by a bridge which had existed from 1836 to 1878; it
was held that the turnpike upon its abandonment became a public highway,
and that the statutory duty of rebuilding the bridge rests upon the boards of
supervisors of the two counties.
DUTIES OF SUPERVISORS AS TO HIGHWAYS AND BRIDGES. 987

County Law, § 70.

city, has been mapped into streets and avenues pursuant to law, the board
of supervisors may authorize the establishment of a plan for the grade of
such streets and avenues; the alteration of such plan of grades, or of any
plan thereof that shall have been established by law; the laying out,
opening, grading, constructing, closing and change of line or width, of any
one or more of them,® and provide for the assessment on property intended
to be benefited thereby, and fixing assessment districts therefor, and for
the levy, collection and payment of the amount of damages sustained and
the charges and expenses incurred, or which may be necessary to incur in
carrying out such provisions; the laying out of new or additional streets
and avenues upon the established map or plan thereof, the acceptance by
town officers of conveyances of lands, for public highways, the naming and
changing of names of streets and avenues laid down on said map or plan,
and the numbering or renumbering of houses and building lots fronting
on such streets and avenues. But such last named power in regard to the
alteration of said map or plan, laying out, opening, grading, constructing,
closing and change of line, of such streets or avenues, or the numbering or
naming thereof, or defraying the expenses thereof, shall only be exercised
on the petition of the property owners, who own more than one-half of the
frontage on any such street or avenue, or on a certificate of the town board
and commissioners of highways of the town, that the same is, in their
judgment, proper and necessary for the public interest. If the streets and
avenues, in respect to which such action is proposed to be taken, shall lie
in two or more towns, a like certificate shall be required of the town board
and commissioners of highways, of each town. Before making such
certificate, such town board, or boards and commissioners of highways, shall
give ten days’ notice by publication in one of the daily papers of the county,
and by conspicuously posting in six public places in each of such towns, of
the time and place at which they will meet to consider the same, at which
meeting the public, and all persons interested, may appear and be heard in
relation thereto. No such street or avenue shall be laid out, opened or con-
structed, upon or across any lands acquired by the right of eminent domain,
and held in fee for depot purposes by any railroad corporation, or upon or
across any lands now held by a corporation formed for the purpose of im-
proving the breed of horses, without the consent of such corporations.
No town officer shall charge anything for his services under this section,

 

8. Under the Constitution, Article 8, § 27, the legislature is empowered to
grant the powers herein provided. A resolution is not objectionable which
embraces more than one street, under Article 3, § 16, of the Constitution, the
Constitutional inhibition applying only to acts of the legislature. Robert v.
Supervisors of Kings, 3 App. Div. 366, 38 N. Y. Supp. 521.
988 HIGHWAYS AND BRIDGES.

County Law, §§ 71, 72.

nor shall any charge be made against any such town or the property therein,
for the expense of the publication of the notice herein required. [County
Law, § 70; B. C. & G. Cons. L., p. 758.]

§ 10. BOARD OF SUPERVISORS MAY AUTHORIZE COMMISIONERS
OF HIGHWAYS TO CAUSE SURVEY OF HIGHWAYS TO BE
MADE.

The board may authorize and direct the commissioners of highways of
any town to cause a survey to be made, at the expense of the town, of any
or all of the highways therein, and to make or complete a systematic record
thereof, or to revise, collate and rearrange existing records of highways,
and to correct and verify the same by new surveys and to establish the
location of highways by suitable monuments. Such records so made, or
revised, corrected and verified, shall be deposited with the town clerk of the
town, and shall thereafter be the lawful records of the highways which they
describe ; but shall not affect rights pending in any judicial proceeding com-
menced before the deposit of such revised records with the town clerk.
[County Law, § 71; B. C. & G. Cons. L., p. 760.]

§ 11. BOARD OF SUPERVISORS MAY REGULATE TOLL RATES.

Such boards shall have power, by a vote of two-thirds of all the members
elected to authorize an alteration, reduction or change of the rates of
toll charged or received by any turnpike, plank or gravel road, or other
toll road within such county, or by any bridge company or ferry within
such county, or, if within more than one county, then by joint action with
the supervisors of such counties, provided such alteration shall be asked
for by the directors, trustees or owners of such road, bridge or ferry;* but
that no increase of toll shall be so authorized unless notice of intention to
apply for such increase shall have been published in each of the news-
papers published in such county, once in each week for six successive
weeks next before the annual election of supervisors in such county; and
any alteration in rates of toll authorized by any board of supervisors may
be changed or modified by any subsequent board, on their own motion, by
a like vote of two-thirds of all of the members elected to such board; but
nothing herein contained shall affect or abridge the powers of any city.
[County Law, § 72; B. C. & G. Cons. L., p. 760.]

 

9. Tolls of plank road, turnpike and bridge corporations are also to be regu-
lated and controlled under Transportation Corporations Law, sec. 136. Rates
of ferriage to be posted. Highway Law, sec. 274, ante, p. 959.
DUTIES OF SUPERVISORS AS TO HIGHWAYS AND BRIDGES. 989
County Law, §§ 73-76.

§ 12. POWERS OF BOARDS OF SUPERVISORS AS TO HIGHWAYS
IN COUNTIES OF MORE THAN 300,000 ACRES OF UNIM-
PROVED LAND.

‘he board may establish separate highway districts in counties con-
taining more than three hundred thousand acres of unimproved unoc-
cupied forest lands, for the purpose of constructing highways through such
lands ; such highway districts to be established upon the application of the
owners of more than one-half of the non-resident lands therein. Any
such highway district shall consist of contiguous tracts or parcels of land,
and may include parts of one or more towns; and they may be changed,
altered or abolished at any time by the board. Such board may appoint
one or more commisioners to lay out and construct such highways in any
such district, and prescribe the powers and duties, and direct the manner
in which highway taxes shall be assessed, levied and collected upon the
lands within the district, and the manner of expenditure thereof.

They may also authorize such commissioners to borrow money on such
terms as they may deem just, but not exceeding the amount of ten years’
highway taxes upon such lands; and may, for the purpose of repaying such
loan, set apart and appropriate the highway taxes upon such lands, for a
period not exceeding ten years from the time of making such loan. [County
Law, § 73; B. C. & G. Cons. L., p. 760.]

§ 13. APPROPRIATION OF CERTAIN NONRESIDENT HIGHWAY
TAXES.

The board may, upon the application of the owners representing a ma-
jority in value, as shall be ascertained from the last annual assessment-roll
of the real estate lying along the line of any highway, laid out through
unimproved lands, in cases not provided for in the last preceding section
authorize the appropriation of the non-resident highway tax on the lands
lying along such line, for the improvement of such highways. [County
Laws, § 74; B. C. & G. Cons. L., p. 761.]

§ 14. BALANCE OF STATE APPROPRIATIONS.

The board may direct the expenditure of any non-resident highway or
bridge tax, set apart by an act of the legislature, in counties wherein such
nonresident lands are situated, when the official life of commissioners
appointed to receive and expend such taxes has expired. [County Law,
§ 75; B. C. & G. Cons. L., p. 761.]

§ 15. ALTERATION OF STATE ROADS.
The board may authorize the commissioners of highways of any town in
990 HIGHWAYS AND BRIDGES.
County Law, §§ 77-80.

their county to alter or discontinue any road or highway therein, which
shall have been laid out by the state under the same conditions that would
govern their actions in relation to highways that have been laid out by
local authorities. [County Law, § 76; B. C. & G. Cons. L., p. 761.]

§ 16. FURTHER POWERS OF BOARD OF SUPERVISORS AS TO
HIGHWAYS.

The board may make such other local and private laws and regulations
concerning highways, alleys, bridges and ferries within the county, and the
assessment and apportionment of highway labor or taxes therefor, not in-
consistent with law, as it may deem necessary and proper, when the pur-
poses of such laws and regulations cannot be accomplished under the fore-
going provisions or the general laws of the state. [County Law, § 77; B. C.
& G. Cons. L., p. 761.]

§ 17. BOARD OF SUPERVISORS MAY PASS LAWS AS TO USE OF
WIDE TIRE ON HIGHWAYS.

The board of supervisors may enact local and private laws regulating the
width of tires used on vehicles built to carry a weight of fifteen hundred
pounds or upwards, and may provide penalties for the violation thereof.
[County Law, § 78; B. C. & G. Cons. L., p. 762.]

§ 18. USE OF ABANDONED TURNPIKE, PLANK OR MACADAMIZED
ROADS.

Boards of supervisors shall have power to provide for the use of aban-
doned turnpike, plank or macadamized roads within any town as public
highways; but jurisdiction in such a case shall not be exercised without the
assent of two-thirds of all the members elected to such board, to be
determined by yeas and nays, which shall be entered on its minutes.
[County Law, § 79; B. C. & G. Cons. L., p. 762.]

§ 19. DEFINITION OF “UPON ITS BORDERS.”
Whenever the words “upon its borders” are used in this article in
reference to the boundary line between two towns, the same are and were

intended and shall be construed to mean “upon,” “along,” and “ across
its borders.” [County Law, § 80; B. C. & G. Cons. L., p. 762.]
RAILROADS CROSSING HIGHWAYS. 991

Railroad Law, § 89.

CHAPTER LXVIII.
RAILROADS CROSSING HIGHWAYS.

Section 1. Steam surface railroads not to cross highways at grade; public
service commission to determine manner of crossing.
2. Laying out new streets or highways over railroads; notice to
railroad company; manner of crossing.
3. Changes in existing crossings; application to public service com-
mission; notice; decision; appeal.
Acquisition of land right, or easement in crossing.
Repair of bridges and subways at crossing.
Payment of cost of construction.
Proceedings of public service commission for alteration of grade
crossings.
7a. Additional provisions respecting alteration of grade crossing
begun upon petition of a town board of a town, or town boards
of two or more towns, or a board of supervisors of a county,
or the mayor and common council of a city.
8. Proceedings to compel compliance with recommendations of
board of public service commission.
9. Town, village or city may borrow money and issue bonds.

4.
5.
6.
7.

§ 1. STEAM SURFACE RAILROADS NOT TO CROSS HIGHWAYS AT
GRADE; PUBLIC SERVICE COMMISSION TO DETERMINE
MANNER OF CROSSING.

All steam surface railroads built after the first day of July, eighteen
hundred and ninety-seven, except additional switches and sidings, must
be so constructed as to avoid all public crossings at grade, whenever
practicable so to do. Whenever application is made to the public service
commission under section nine of this chapter there shall be filed with
the commission a map showing the streets, avenues, highways and roads
proposed to be crossed by the new construction, and the commission
shall determine whether such crossings shall be under or over the pro-
posed railroad, except where the commission shall determine such
method of crossing to be impracticable. Whenever an application is
made under this section to determine the manner of crossing, the com-
mission shall designate a time and place when and where a hearing will
be given to such railroad company, and shall notify the municipal cor-
poration having jurisdiction over the streets, avenues, highways or roads
proposed to be crossed by the new railroad. The commission shall also
give public notice of such hearing in at least two newspapers, published
992 HIGHWAYS AND BRIDGES.
Railroad Law, § 90.

in the locality affected by the application, and all persons owning land
in the vicinity of the proposed crossing shall have the right to be heard.
Upon such a notice and after a hearing, the public service commission
may determine that alterations or changes may be made in any existing
highway, at or in the vicinity of a proposed crossing for the purpose
of avoiding a crossing at grade.

The decision of the commission rendered in any proceedings under
this section shall be communicated, within twenty days after final hear-
ing, to all parties to whom notice of the hearing in said proceedings
was given, or who appeared at said hearing by counsel or in person.?
[Railroad Law (L. 1910, ch. 481), § 89, as amended by L. 1913, chs.
425, 744, and L. 1914, ch. 378.]

§ 2. LAYING OUT NEW STREETS OR HIGHWAYS OVER RAILROADS;
NOTICE TO RAILROAD COMPANY; MANNER OF CROSSING.

When a new street, avenue, highway or road or new portion or addi-
tional width of a street, avenue, highway or road, or a state or county
highway or county road deviating from the line of an existing high-
way or road, shall hereafter be constructed across a steam surface rail-
road, other than pursuant to the provisions of section ninety-one of
this chapter, such street, avenue, highway or road, or new portion or
additional width of a street, avenue, highway or road, shall pass over
or under such railroad or at grade, as the public service commission
shall direct. Notice of intention to lay out such street, avenue, high-
way or road, or such new portion or additional width of a street,
avenue, highway or road; across a steam surface railroad shall be given
to such railroad corporation by the municipal corporation at least fif-
teen days prior to the making of the order laying out such street,

 

1. Necessity of notice. Notice must be given to the railroad company
over whose tracks it is proposed to lay out a highway, although proceedings
to lay out such highway were instituted prior to the Grade Crossing Act of
1897, which added the above section to the Railroad Law. Matter of Ludlow
Street, 59 App. Div. 180; 68 N. Y. Supp. 1046; see, also, Matter of Village
of Waverly, 35 App. Div. 38; 54 N. Y. Supp. 368.

Requirement that maps be presented to commission showing intersections
of highways and streets by the proposed road clearly was not intended to
facilitate or control the precise location of the route. People ex. rel. N. Y.
Cc. H. R. R. R. Co. v. P. S. Com’n (1919), 227 N. Y. 248, 125 N. E. 438,
revg. 171 App. Div. 366, 156 N. Y. Supp. 10238.

Construction of switch track across public highway, consent of commis-
sioner of highways. People v. D. & H. Co. (1920), 228 N. Y. 279, 127 N. E.
244, affg. 183 App. Div. 149, 170 N. Y. Supp. 240.

When commission has no authority to compel railroad to maintain ap-
proaches to overhead crossings after completion thereof. People ex rel.
N. Y. C. & H. R. R. R. Co. v. Pub. Serv. Com’n (1921), 231 N. Y. 1, revg.
190 App. Div. 126, 179 N. Y. Supp. 438.
RAILROADS CROSSING HIGHWAYS. 993

Railroad Law, § 90.

avenue, highway or road or such new portion or additional width of
a street, avenue, highway or road by service personally on the presi-
dent or vice-president of the railroad corporation or any general officer
thereof. In case of the construction of a state or county highway
which deviates from the line of an existing highway across a steam
surface railroad, a like notice shall be given to such railroad corpora-
tion by the state commission of highways at least fifteen days prior to
the adoption of the maps, plans and specifications for such state or
county highway by such commission. Such notice shall designate the
time when and place where a hearing will be given to such railroad
corporation, and such railroad corporation shall have the right to be
heard before the authorities of such municipal corporation upon the
question of the necessity of such street, avenue, highway or road or
such new portion or additional width of a street, avenue, highway or
road, or before, the state commission of highways, in case of a state
or county highway, on the question of the location of such highway.
If the municipal corporation determines such street, avenue, highway
or road or such new portion or additional width of a street, avenue,
highway or road to be necessary, or if the state commission of high-
ways determines that such state or county highway which deviates
from the line of an existing highway shall be constructed across such
railroad at the place indicated in the maps, plans and specifications
therefor, such municipal corporation or commission of highways shall
then apply to the public service commission before any further pro-
ceedings are taken, to determine whether such street, avenue, high-
way or road or such new portion or additional width of a street,
avenue, highway or road shall pass over or under such railroad or at
grade. The public service commission shall thereupon appoint a time
and place for hearing such application, and shall give such notice
thereof as it shall judge reasonable, not however less than ten days,
to the railroad corporation whose railroad is to be crossed by such
new street, avenue, highway or road, or such new portion or additional
width of a street, avenue, highway or road, to the muniéipal corpora-
tion, or in the case of a state or county highway or a state or county
highway which deviates from the line of an existing highway to the
municipal corporation and state commission of highways, and to the
owners of land adjoining the railroad and that part of the street,
avenue, highway or road to be opened, extended or constructed. The
public service commission shall determine whether such street, avenue,
highway or road or such new portion or additional width of a street,
avenue, highway or road, or state or county highway shall be con-
structed over or under such railroad or at grade. If the application
be made by the state commission of highways in respect of a street,
avenue, highway, or road or new portion or additional width of a
street, avenue, highway or road proposed to be constructed or improved
as part of a state highway, the decision shall state whether such high-
994. HIGHWAYS AND BRIDGES.

Railroad Law, § 90.

way shall cross such railroad above or below the grade thereof, and in
case of a county highway such decision shall state whether such highway
shall cross such railroad at grade, or above or below the grade thereof.
If the public service commission shall determine that such street,
avenue, highway or road or such new portion or additional width of a
street, avenue, highway or road shall be carried across such railroad
above the grade thereof, then said public service commission shall
determine the height, the length and the material of the bridge or
structure by means of which such street, avenue, highway or road or
such new portion or additional width of a street, avenue, highway or
road shall be carried across such railroad, and the length, character
and grades of the approaches thereto. If the public service commis-
sion shall determine that such street, avenue, highway or road or such
new portion or additional width of a street, avenue, highway or road
shall be constructed or extended below the grade of such railroad, said
public service commission shall determine the manner and method in
which the same shall be so carried under, and the length, character and
grades of the approaches; and if said commission shall determine that
such street, avenue, highway or road or such new portion or additional
width of a street, avenue, highway or road shall be constructed or
extended across such railroad at grade, the public service commission
shall determine the manner and method in which the same shall be
carried across such railroad at grade and what safeguards shall be main-
tained. The decision of the public service commission as to the man-
ner and method of carrying such new street, avenue, highway or road,
or such new portion or additional width of a street, avenue, highway
or road, or state or county highway or state or county highway which
deviates from the line of an existing highway, across such railroad
shall be final, subject however to the right of appeal hereinafter given.
The decision of said public service commission rendered in any pro-
ceeding under this section shall be communicated within twenty days
after final hearing to all parties to whom notice of the hearing of
such proceeding was given, or who appeared at such hearing by coun-
sel or in person. This section shall not be construed as authorizing
or permitting any municipality to make application to the public service
commission for a determination as to the manner in which a state or
county highway, or a state or county highway which deviates from the
line of an existing highway. shall cross an existing railroad." [Railroad

 

la. Application of section. This section applies to new streets or portions
thereof, thereafter to be constructed across steam surface railroads, without
qualification, on account of the grade at which the extended highway can be
carried across the railroad track. Opinion of Pub. Ser. Comm., 1st Dist.
(1918), 15 State Dept. Rep. 277.

As to the manner in which streets shall cross tracks at an “additional
width,” see Matter of City of New York (1918), 183 App. Div. 688.

L. 1897, ch. 754 (now Railroad Law, §§ 90-94), provides a general and
RAILROADS CROSSING HIGHWAYS. 995

Railroad Law, § 91.

Law (L. 1910, ch. 481), § 90, as amended by L. 1913, ch. 744, L. 1914,
ch. 378, and L. 1921, ch. 698.]

§ 3. CHANGES IN EXISTING CROSSINGS; APPLICATION TO PUBLIC
SERVICE COMMISSION; NOTICE; DECISION; APPEAL.

The mayor and common council of any city, the president and trus-
tees of any village, the town board of any town, the board of suber-
visors of any county having jurisdiction over a street, avenue, highway
or road which crosses or is crossed by a steam surface railroad at
grade, below grade or above grade by structures heretofore construct-

 

uniform law for new streets and crossings over railroad tracks and repealed
L. 1853, ch. 62, and hence the so-called Harlem railroad depression agree-
ment, entered into by the Harlem Railroad Company and the city of New
York under authority of L. 1887, ch. 721, as to street crossings of the Har-
lem railroad, is no longer applicable, and crossings now are and must be
made under the provisions of the Railroad Law. Therefore the cost of
carrying East 167th Street over the railroad, under proceedings instituted
in 1904, must be shared equally by the city and the railroad, each paying
one-half thereof. N. Y. Central R. R. Co. v. City of New York (1918),
224 N. Y. 219, revg. 181 App. Div. 931. See also matter of City of New
York (1918), 224 N. Y. 708, affg. 184 App. Div. 896.

Where a new highway is laid out across a railroad for the purpose of
getting access to lands which were cut off by the closing of an existing
crossing 210 feet from the proposed crossing, the rights of the parties in
respect to the old crossing should be determined in an appropriate legal pro-
ceeding. Opinion of Pub. Serv. Com’n, 2d Dist. (1919), 19 State Dept.
Rept. 93. :

When highways crossing industrial switching tracks may be at grade.
Opinion of Pub. Serv. Com’n., 2d Dist. (1919), 19 State Dept. Rep. 184.

The words “necessity” and ‘‘necessary” defined. Matter of City of New
York (1919), 189 App. Div. 315, 178 N. Y. Supp. 617.

Application must be made to public service commission to determine
whether street crossing shall be under or over railroad tracks, or at grade,
before proceeding to acquire railroad lands by condemnation. Matter of
City of New York, 204 N. Y. 465, revg. 143 App. Div. 258, 128 N. Y. Supp.
589. See also Matter of City of New York, Opinion of Pub. Ser. Comm.,
ist Dist. (1918), 15 State Dept. Rep. 277.

Matters of public convenience always yield to matters of public safety.
Even though a proposed highway duly laid out by a town board must cross
railroad tracks at grade in order to serve the convenience of the public
desiring access to a neighboring cold storage plant which is the chief purpose
of the highway, the Public Service Commission may, nevertheless, require
that the highway be taken across the railroad tracks on a viaduct if a cross-
ing at grade will be dangerous. Matter of Town Board of Royalton, 138
App. Div. 412, 122 N. Y. Supp. 844.

Failure of municipal corporation to give notice to railroad company, as
required by this section, of its intention to lay out a new street across the
company’s right of way, is jurisdictional, and may be sufficient to defeat
the commission upon an application for a writ of mandamus. Opinion of
Pub. Serv. Com’n (1921), 25 State Dept. Rep. 1.

The commission may require a crossing to be at grade, pursuant to this
section, where the present surroundings do not warrant the expenditure
996 HIGHWAYS AND BRIDGES.

Railroad Law, § 91.

ed, or any steam surface railroad corporation whose railroad crosses
or is crossed by a street, avenue, highway or road at grade, below or
above grade, may bring their petition in writing to the publie service
commission, therein alleging that public safety requires an alteration in
the manner of such crossing, its approaches, the method of crossing, the
location of the crossing, a change in the existing structure by which
such crossing is made, the closing and discontinuance of a crossing
and the diversion of the travel thereon to another street, avenue, high-
way, road or crossing, or if not practicable to change such crossing
from grade, below grade or above grade or to close or discontinue
the same, the opening of an additional crossing for the partial diver-
sion of travel from the grade, below grade or above grade crossing,

 

which would be required to construct a crossing extending over or under the
grade of the railroad. Opinion of Pub. Serv. Com’n (1921), 26 State Dept.
Rep. 271.

Lands may be used for railroad purposes and for a highway crossing at
the same time. When lands in use as a railroad right of way are taken by
condemnation for the purpose of opening a street across such right of way,
the municipality ordinarily obtains a common right with the railroad com-
pany for the use of the land condemned and the railroad company continues
to use its right of way for its corporate purposes not inconsistent with its
use as a street crossing. After the fee of land over which a highway is to
be opened is obtained, if the municipality decides that the public interests
does not require that the lands be immediaely opened as a public highway,
and it consequently delays opening the same, it does not thereby either lose
the title to the land or its right to open the same to public use. New York
Cent. & H. R. R. R. Co. v. City of Buffalo, 200 N. Y. 113.

An appeal from an order of the public service commission providing that
a proposed highway shall cross railroad tracks on an elevated viaduct of cer-
tain clearance, does not lie if the commission reserved its decision as to the
length, character and grades of the approaches to the viaduct—matters which
the statute requires it to determine. Matter of Town Board of Royalton,
138 App. Div. 412, 122 N. Y. Supp. 844.

Extension of street across a railroad by an overhead bridge; easements of
abutting landowner; injunction requiring elimination of crossing in event
of non-payment of damages. Where a street, which did not theretofore cross
a railroad, was extended and carried over the railroad tracks by an overhead
bridge, the opening of the street across the railroad was the opening of a new
street, or new portion of a street, within the statute, and the erection of the
bridge and its approaches without the consent of the public service commis-
sion was an unlawful obstruction of the highway, and an owner of abutting
land, whose easements of light, air and access to the street were injuriously
affected by such bridge and approaches, has a right of action on account of
the resulting injury. He is not entitled, however, to an absolute judgment
requiring the elimination of the overhead crossing in the event of the non-
payment of his damages, but only for its elimination if it is not now or
hereafter made satisfactory to the public service commission. The judg-
ment should be modified so as to enjoin the railroad company from maintain-~
ing the bridge across its railroad unless and until the said bridge and its
approaches shall receive the sanction of the public service commission under
RAILROADS CROSSING HIGHWAYS. 997

Railroad Law, § 91.

and praying that the same may be ordered. Where a street, avenue,
highway or road in a city, village, town or county, which crosses or is
crossed by a steam surface railroad at grade, below grade or above
grade, is a part of a highway which the state commission of highways
has. constructed or improved or shall have determined to construct
or improve as a state or county highway, as provided in the highway
law, such commission of highways may bring a petition containing
any of the allegations above specified and praying for a like order.
Upon any such petition being brought the public service commission
shall appoint a time and place for hearing the petition, and shall give
such personal notice thereof as it shall judge reasonable, of not less
than ten days, however, to such petitioner, the railroad corporation,
the municipality in which such crossing is situated, and if such crdss-
ing is in whole or part in an incorporated village having not to exceed
twelve hundred inhabitants, also to the supervisor or supervisors of the
town or towns in which such crossing is situated, and in all cases to the
owners of the lands adjoining such crossing and adjoining that part of
the street, avenue, highway or road to be changed in grade or location
or to be discontinued, or the land to be opened for a new crossing, and
to the state commission of highways in case of a state or county high-
way. The public service commission” shall cause notice of said hear-

 

section 90 of the Railroad Law. Brush v. New York, New Haven & Hartford
R. R. Co. (1916), 218 N. Y. 264, modfg. 162 App. Div. 731..

This section relates to the longitudinal extension of a widened street across
railroad tracks, rather than to a lateral widening of a street which runs
parallel to such tracks, such as the widening of a street over the tracks for
the length of the entire right of way. Opinion of Pub. Ser. Comm., Ist Dist.
(1917), 12 State Dept. Rep. 53.

Under its authority to eliminate grade crossings, the public service com-
mission, may not ameliorate the danger of such crossings by compelling the
removal of obstructions to a free view of the approach from either direction.
Opinion of Pub. Ser. Comm., 2d Dist. (1916), 11 State Dept. Rep. 409.

As to crossing of highway over railroad tracks by means of a bridge, see
Opinion of Pub. Ser. Comm., 1st Dist. (1917), 11 State Dept. Rep. 328.

The clearance of a highway over a railroad should be at least twenty feet
above the rails. Opinion of Pub. Ser. Comm., 2d Dist. (1916), 11 St. Dept.
Rep. 402.

2. The words “street, avenue or highway’? import ways of a public char-
acter and no other ways whatsoever. This section has no application to pri-
vate rights of way and does not authorize the elimination of such rights.
Hence, no party can be chargeable thereunder with any portion of the ex-
pense of closing ways which are wholly private. Matter of New York Cent.
& H.R. R. R. Co., 200 N. Y. 121.

Power of Public Service Commission. The Public Service Commission,
under this section, has power to make an order directing a railroad company
to close a highway cr divert travel to another highway in order to eliminate
a railroad crossing, by removing a bridge in a street and building an embank-
ment across the street; and the work done by the railroad company in obedi-
ence to such an order cannot be regarded either as an unlawful obstruction
of the street or an actionable nuisance. Danner v. N. Y. & Harlem R. Co.,
998 HIGHWAYS AND BRIDGES.

Railroad Law, § 91.

ing to be advertised in at least two newspapers published in the locality
affected by the application; and upon such notice and after a hearing
or hearings the public service commission shall determine what altera-
tions or changes, if any, shall be made. The decision of said public
service commission rendered in any proceeding under this section shall
be communicated within twenty days after final hearing to all parties
to whom notice of the hearing in said proceeding was given, or who
appeared at said hearing by counsel or in person. Any person ag-
grieved by such decision, or by a decision made pursuant to sections
eighty-nine and ninety hereof, and who was a party to said proceeding,
may within sixty days appeal therefrom to the appellate division of
the supreme court in the department in which such crossing is situated,
and to the court of appeals, in the same manner and with like effect
as is provided in the case of appeals from an order of the supreme
court. This section shall not be construed as authorizing or permitting
any municipality to make application to the public service commis-
sion for a determination as to the manner in which a state or county
highway, or a state or county highway which deviates from the line
of an existing highway, shall cross an existing railroad. [Railroad

 

73 Misc. 113, affd. 213 N. Y. 117. The Railroad Law prescribes the method
of defraying the expense of altering old crossings and constructing new ones,
and the Public Service Commission cannot go beyond its provisions. Matter
of New York Cent. & H. R. R. R. Co., 200 N. Y. 121; opinion of Pub. Ser-
Comm. (1920), 24 State Dept. Rep. 413. The State Highway Commission,
with the consent of a railroad company, has power to enter into negotia-
tions for the purchase of such lands and easements as may be necessary to
eliminate a grade crossing, and by and with the consent of the railroad, may
agree upon the value thereof, and if said values cannot be agreed upon, as
above stated, then it becomes necessary to institute condemnation proceed-
ings through the attorney-general’s office. Rept. of Atty.-Genl., March 23,
1911.

A grade-crossing elimination structure which has already been completed
under the statute can be altered by the commission only where a petition
is presented to it alleging that public safety requires its alteration, or where
the commission proceeds of its own motion on its own opinion that public
safety requires such an alteration. Opinion of Pub. Ser. Comm., 2d Dist.
(1918), 17 State Dept., Rep. 339. :

Where it is desired to change the existing structure of a bridge and not
merely make repairs to the same, recourse must be had to this section rather
than to section 93 of the Railroad Law. Matter of City of New York (1919),
105 Misc. 659, 174 N. Y. Supp. 682. But the erection of a new bridge merely
to replace an old bridge is not within the purview of this section. Opinion
of Pub. Ser. Comm., Ist Dist. (1917), 13 State Dept. Rep. 116. See, also,
opinion of Pub. Ser. Comm. (1920), 24 State Dept. Rep. 251.

As to the right of a railroad company, ordered by the commission to
change and alter its lines, to an allowance for the expense of removing the
tracks and structures of other companies, see People ex rel. Long Island
R. R. Co. v. Public Service Comm. (1918), 181 App. Div. 465.
RAILROADS CROSSING BRIDGES. 9a9

Railroad Law, § 92,

Law (L. 1910, ch, 481), § 91, as amended by L. 1911, ch. 141, L. 1913,
chs. 354, 744, L. 1914, ch. 378, and L. 1921, ch. 698.]

§ 4. ACQUISITION OF LAND, RIGHT OR EASEMENT IN CROSSING.

The municipal corporation having jurisdiction over the street,
avenue, highway or road and in which the crossing is located, may
with the approval of the railroad corporation acquire by purchase any
lands, rights or easements necessary or required for the purpose of
earrying out the provisions of sections eighty-nine, ninety and ninety-
one of this chapter, but if unable to do so shall acquire such lands,
rights or easements by condemnation either under the condemnation
law or under the provisions of the charter of such municipal corpora-
tion. The railroad corporation shall have notice of any such proceed-
ings and the right to be heard therein.

In the case of a street, avenue, highway or road constructed or
improved or to be constructed or improved as a part of a state or
county highway, the county in which the crossing is located shall with
the approval of the railroad corporation acquire in the manner pre-
seribed in sections one hundred and forty-eight to one hundred and
fifty-five-a inclusive of the highway law any lands, rights or easements
necessary or required for the purpose of carrying out the provisions
of sections ninety and ninety-one of this chapter. If it shall be neces-
sary to acquire such lands, rights or easements by condemnation the
railroad corporation shall have notice of any such proceedings and the
right to be heard therein. [Railroad Law (L. 1910, ch. 481), § 92,
as amended by L. 1913, ch. 744, and L. 1921, ch. 698.]

 

See also the following cases which cite this section: People v. D. & H. Co.
(1918), 183 App. Div. 149; City of Mount Vernon v. N. Y., N. H. & H.R. R.
Co. (1918), 182 App. Div. 259; Matter of N. Y. Central R. R. Co. (1917),
222 N. Y. 541, affg. 177 App. Div. 444; Matter of N. Y. C. & H. R. R.
Co. (1917), 181 App. Div. 951.

Objections first raised on appeal. The objection that a petition filed by
the town board of the town of Schaghticoke, for the abolition of a railroad
crossing at Melrose, N. Y. is insufficient in that it does not allege that Melrose
is in the town of Schaghticoke, and the further objection. interposed by a
party represented at the hearing, that proper notice was not given of the
hearing before the railroad commissioners, cannot be raised for the first time
on an appeal from the order granting the prayer of the petition. Matter of
Town Board v. Fitchburg R. R. Co., 53 App. Div. 16, 65 N. Y. Supp. 498.

2a. The words “municipal corporation in which the highway crossing is
located” are broad enough to include a county, and the board of supervisors
may apply for the appointment of commissioners to condemn lands necessary
to change a grade crossing. County of Nassau v. Luessen, 69 Misc. 184,
125 N. Y. Supp. 206.

Damages for closing highway. While this section covers the right of
access, an owner of lands adjacent to a street is not entitled to damages for
closing the street where he is given an improved street in its place, and his
street facilities are better and safer, although he is further removed from the
street. City of Corning v. O’Neill (1917), 180 App. Div. 454.
1000 HIGHWAYS AND BRIDGES.
Railread Law, § 93.

§ 5. REPAIR OF BRIDGES AND SUBWAYS AT CROSSINGS.
When a highway crosses a railroad by an overhead bridge, the frame

work of the bridge and its abutments shall be maintained and kept
in repair by the railroad corporation, and the roadway thereover
and the approaches thereto shall be maintained and kept in repair
by the municipality having jurisdiction over and in which the same
are situated ; except that in the case of any overhead-bridge construct-
ed prior to the first day of July, eighteen hundred and ninety-seven,
the roadway over and the approaches to which the railroad corporation
was under obligation to maintain and repair, such obligation shall
continue provided the railroad corporation shall have at least ten days’
notice of any defect in the roadway thereover and the approaches
thereto, which notice must be given in writing by the town superin-
tendent of highways or other duly constituted authority, and the rail-
road corporation shall not be liable by reason of any such defect unless
it shall have failed to make repairs within ten days after the service
of such notice upon it; and except that in the case of any overhead
bridge constructed in a town after January first, eighteen hundred
and ninety-seven, and prior to January first, nineteen hundred and ten,
if the town paid twenty-five per centum of the cost of such construc-
tion and such bridge, when completed, was upon a state highway
and the state, prior to January ninth, nineteen hundred and sixteen,
made any repairs to the approaches to or roadway on. such bridge, the
roadway on such bridge and the approaches thereto shall be main-
tained and kept in repair hereafter by the state, under the supervision
and control of the state commission of highways in the manner pro-
vided by the highway law for the maintenance and repair of state
and county highways. When a highway passes under a railroad, the
bridge and its abutments shall be maintained and kept in repair by the
railroad corporation, and the subway and its approaches shall be main-
tained and kept in repair by the municipality having jurisdiction over
and in which the same are situated. In case such highway is a part
of a state or county highway constructed or improved as provided in
the highway law, the roadway over such railroad or the subway under-
neath the same, and the approaches thereto, shall be maintained and
kept in repair under the supervision and control of the state commis-

 

Id.; loss of profits of business from grade crossing improvement held too
remote and not recoverable by an abutting owner, but otherwise as to incid-
ental damages while the work was in progress. City of Corning v. Holmes
(1917), 180 App. Div. 458, 167 N. Y. Supp. 746.

Mandamus should not be issued to compel institution of condemnation pro-
ceedings until every reasonable effort has been made to acquire the lands
by purchase. People ex rel. Mott Wheel Works v. Hayes (1917), 178 App.
Div. 301.
RAILROADS AND BRIDGES. 1000a

Railroad Law, § 94.

sion of highways in the manner provided by the highway law for the
maintenance and repair of state and county highways where such road-
way, subway or approaches, or any of them, have been constructed
or improved as a part of a state or a county highway* [Railroad Law
(L. 1910, ch. 481), § 93, as amended by L. 1913, ch. 744, L. 1916, ch.
484, L. 1921, ch. 698, and L. 1922,.ch. 650.]

§ 6. PERFORMANCE OF WORK; DIVISION OF EXPENSE; ACCOUNTING;
CLAIMS FOR DAMAGE; VALUATION.

1. Whenever under the provisions of section eighty-nine of this chap-
ter, a new railroad is constructed across an existing highway, the
expense of crossing above or below the grade of the highway including
any expense incurred in altering or changing the highway under a
determination of the public service commission shall be paid entirely
by the railroad corporation.

2. Whenever under the provisions of section ninety of this chapter
a new street, avenue, highway or road or new portion or additional
width of a street, avenue, highway or road is constructed across an
existing railroad, the railroad corporation shall pay one-half and the
municipal corporation having jurisdiction over such street, avenue,
highway, or road or new portion or additional width of a street, ave-
nue, highway or road shall pay the remaining one-half of the expense

 

8. Application. This section is not limited in its application to railroads
constructed subsequent to its enactment or to bridges over crossings there-
after constructed, but applies to all bridges constituting the highway at rail-
road crossings, whether constructed before or after the law went into effect.
City of Yonkers v. N. Y. C. & H. R. R. R. Co. 165 N. Y. 142. :

Application of this section does not extend to a highway over railroad
yards, but is limited to a highway over a railroad in the common acceptance
of the word. People ex rel. N. Y. C. & H. R. R. R. Co. v. Pub. Ser. Comm,
(1921), 231 N. Y. 1, revg. 190 App. Div. 126, 179 N. Y. Supp. 438.

Maintenance and repair of bridge and abutments is at the expense of the
railroad company, but the approaches must be maintained at the expense of
the state, where a state highway, and the state, county and town, where a
county highway. Opinion Pub. Ser. Comn. (1916), 6 State Dept. Rept. 468.

Mandamus will lie to compel a railroad company to repair or replace a
bridge. Opinion of Pub. Ser. Com. (1917), 13 State Dept. Repts. 116. As
to burden of proof in mandamus proceeding, see Matter of City of New York
(1919), 105 Misc. 659.

“Roadway.” Where a railroad constructed .a bridge twenty feet over its
tracks, which in effect became a substitute for the previous roadway, and
erected barriers along both sides thereof, such barriers constituted part of
the lawful roadway as distinguished from the framework of the bridge.
Burchard v. Payne (1921), 197 App. Div. 829, 189 N. Y. Supp. 249.

Roadway and sidewalk on overhead bridge; liability of railroad to main-
tain. People ex rel. N. Y. C. & H. R. R. Co. v. Pub. Ser. Comn. (1919),
190 App. Div. 126, 179 N. Y. Supp. 438.

Notice of defect. See Burchard v. Payne (1921), 197 App. Div. 829, 189
N. Y. Supp. 249. =
1000b HIGHWAYS AND BRIDGES.

Railroad Law, § 94.

of making such crossing above or below the grade of the railroad
except as hereinafter provided in case of a state or county highway.

3. Whenever a change is made as to an existing crossing or structnre
in accordance with the provisions of section ninety-one of this chapter,
fifty per centum of the expense thereof shall be borne by the railroad
corporation and twenty-five per centum by the municipal corporation
and twenty-five per centum by the state; except that whenever an ex-
isting crossing, in which a change is made under the provisions of sec-
tion ninety-one, is located wholly or partly within an incorporated
village having not to exceed twelve hundred inhabitants, the portion
of expense herein required to be borne by the municipal corporation
shall be borne by the town or towns in which such crossing is situated
and except in the case of a state or county highway, where the petition
for such change is made by the state commission of highways, in which
ease fifty per centum of such expense shall be borne by the railroad
corporation and fifty per centum as hereinafter provided.*

4, Whenever under the provisions of section ninety and ninety-one
of this chapter a highway is to be constructed across an existing rail-
road and is a part of a state or county highway to be constructed or
improved as provided in the highway law, one-half of the expense of
making such crossing above or below grade shall be paid by the rail-
road corporation, and the remaining one-half of such expense shall be
paid by the state in the case of a state highway, and jointly by the
state and county or the state, county and town in the case of a county
highway, in the same proportion as the cost of construction or improve-
ment of such state or county highway is to be paid.

5. Whenever in carrying out the provisions of sections ninety or
ninety-one of this chapter two or more lines of steam surface railroad,
owned and operated by different corporations cross a highway at a
point where a change in grade is made, each corporation shall pay
such proportion of fifty per centum of the expense thereof as shall be
determined by the public service commission.

6. In earrying out the provisions of sections eighty-nine, ninety and
ninety-one of this chapter, except where the highway is a part of a
state or county highway as defined by the highway law, the work
shall be done by the railroad corporation or corporations affected
thereby, subject to the supervision and approval of the public service
commission ; and in all cases, except where the entire expense is paid
by the railroad corporation, or where the highway is a part of a state
or county highway as defined by the highway law, the expense of con-

 

4. Where grade crossing is eliminated on petition of a town, the expense
thereof so far as chargeable to the locality must be borne by the town in
which the grade crossing is situated although the approach to the bridge is
partly in another town. People ex rel. Town of Scarsdale v. Public Service
Commission -(1917), 220 N. Y. 1, revg. 173 App. Div. 164.
RAILROADS CROSSINGS BRIDGES. 1000e

Railroad Law, § 94.

struction shall be paid primarily by the railroad corporation, and the
expense of acquiring additional lands, rights or easements shall be paid
primarily by the municipal corporation having jurisdiction over the
street, avenue, highway or road or new portion or additional width
of a street, avenue, highway or road. Plans and specifications of all
changes proposed under sections ninety and ninety-one of this chapter
and an estimate of the expense thereof shall be submitted to the public
service commission for its approval before the letting of any contract.
In case the work is done by contract the proposals of contractors shall
be submitted to the public service commission, and if the commission.
shall determine that the bids are excessive it shall have the power to
require the submission of new proposals. The commission may employ
temporarily such experts and engineers as may be necessary properly
to supervise any work that may be undertaken under sections eighty-
nine, ninety and ninety-one of this chapter, the expenses thereof to be
paid by the comptroller upon the requisition and certificate of the
commission and included in the cost of the particular change in grade
or in the structure above or below grade on account of which it is
incurred and finally apportioned in the manner provided in this section.

6-a. Whenever under the provisions of sections ninety and ninety-one
of this chapter, a highway is to be constructed across an existing rail-
road and is a part of a state or county highway as defined in the high-
way law, the public service commission shall determine whether the
work shall be done by the railroad corporation or by the state commis-
sion of highways or by both. If the public service commission shall
determine that the work shall be done by the railroad corporation the
entire expense shall be paid primarily by the railroad corporation. If
the public service commission shall determine that the work shall be
physically divided between the railroad corporation and the state com-
mission of highways, the railroad corporation and the state commission -
of highways shall primarily pay respectively the cost of the work per-
formed by each. If the public service commission shall determine that
the work shall be done by the state commission of highways the latter
commission shall advertise for bids on a joint contract which shall be
executed by the railroad corporation and the state commission of high-
ways. For work performed under such contract payments shall be
made to the contractor by the railroad corporation and the state com-
mission of highways on estimates prepared by the state commission of
highways approved by the railroad corporation and the public service
commission. The amount which the railroad corporation and the state
commission of highways shall pay on each such estimate shall be
determined proportionately by including any payments made for lands,
rights or easements, or any other payments made but not included
within the contract so that when the work ordered by the public ser-
vice commission shall have been concluded, the railroad corporation
1000d HIGHWAYS AND BRIDGES.

Railroad Law, § 94.

and the state commission of highways will each have paid one-half of
the total expenditures made in carrying out the order of the public
service commission. In case any such highway is a county highway
or involves county, town or village funds or funds provided by the
federal government such funds shall be considered as a part of the
state’s share of such work, unless such funds are to be used for the
purpose of widening the pavement to a greater width than sixteen feet
or providing a more expensive type. In any case the state commis-
sioner of highways shall by official order set aside the state’s share of
the cost of such work out of any moneys available therefor. The
expense of acquiring additional lands, rights or easements shall be
paid by the county in which the crossing is located. In accounting for
expenditures made in connection with carrying out the order of the
public service commission, or in determining the proportion due by the
railroad corporation and the state commission of highways of estimates
prepared by that commission for work done under contract as herein
provided the state commission of highways shall be credited with such
payments as are made by the county. Plans and specifications for the
work proposed and estimates of work performed shall be prepared by
the railroad corporation or state commission of highways as deter-
mined by the public service commission, and shall be approved by the
railroad corporation, the state commission of highways and the public
service commission. The work shall be subject to the inspection and
approval by the railroad corporation, the state commission of highways
and the public service commission. Section one hundred and thirty of
the highway law shall govern as far as practicable any work under
this section which is performed under the direction of the state com-
mission of highways.

7. Upon the completion of the work and its approval by the public
service commission an accounting® shall be had between the railroad
corporation and the municipal corporation or the state commission of

 

5. Interest on claim against state. Although the statute makes no pro-
vision for interest where the state fails to pay its proportion of the cost of
construction, it contemplates the payment of interest up to the time when
the accounting is made, where the railroad company has acted in good faith.
The interest is a part of the cost or expense of the work and where the
accounting is delayed by reason of a mutual mistake, there is no reason why
it should not be allowed. Matter of State Commission of Highways (1918),
182 App. Div. 108; Opinion of Pub. Ser. Comn. 2d Dist. (1920), 23 State
Dept. Rep. 260.

As to apportionment of expense, see Opinion of Pub. Ser. Comn., 1st Dist.
(1918), 15 State Dept. Rep. 277; Opinion of Pub. Ser. Comn., 2d Dist.
(1916), 11 State Dept. Rep. 402; Matter of State Commission of Highways
(1918), 182 App. Div. 108; Opinion of Pub. Ser. Comn. (1920), 24 State
Dept. Rep. 251; ibid. 258.
RAILROADS AND BRIDGES. 1000e

Railroad Law, § 94.

highways of the amounts expended by each with interest, and if it
shall appear that the railroad corporation or the municipal corporation
or the state commission of highways has expended more than its pro-
portion of the expense of the crossing as herein provided a settlement
shall be forthwith made in accordance with the provisions of this sec-
tion. At any time after the work of elimination of a crossing has been
commenced the public service commission may, upon its own motion
or upon the petition of the railroad corporation or of any municipality
interested or of the state commission of highways, make an order for
an intermediate settlement and direct payments to be made in connec-
tion therewith as in this section provided for a final accounting. All
items of expenditure shall be verified under oath. In case of a dispute
between the railroad corporation and the municipal corporation or the
state commission of highways as to the amount expended which dispute
does not involve the nature or character of the work performed, any
judge of the supreme court in the judicial district in which the muni-
cipality or the state or county highway is situated may appoint a
referee to take testimony as to the amount expended, and the con-
firmation of the report of the referee shall be final. In the event of
the failure or refusal of the railroad corporation to pay its proportion
of the expense, the same with interest from the date of such account-
ing may be levied and assessed upon the railroad corporation and col-
lected in the same manner that taxes and assessments are now collected
by the municipal corporation within which the work is done; and in
the event of the failure or refusal of the municipal corporation to pay
its proportion of the expense an action may be maintained by the rail-
road corporation for the collection of the same with interest from the
date of such accounting, or the railroad corporation may offset such
amount with interest against any taxes levied or assessed against it
or its property by such municipal corporation.

8. In the event of the appropriation made by the state in any one
year being insufficient to pay the state’s proportion of the expense of
any change that may be ordered the first payment from the appropria-
tion of the succeeding year shall be on account of said change, and no
payment shall be made on account of any subsequent change that may
be ordered, nor shall any subsequent change be ordered, until the
obligation of the state on acconut of the first named change in grade
has been fully discharged, unless the same shall be provided for by
an additional appropriation to be made by the legislature. The state’s
porportion of the expense of changing any existing grade crossing or
the structure of any existing crossing above or below grade shall be
paid by the state treasurer on the warrant of the comptroller, to which
shall be appended the certificate of the publie service commission to
1000f£ HIGHWAYS AND BRIDGES,

Railroad Law, § 95.

the effect that the work has been properly performed and a statement
showing the situation of the crossing or structure that has been
changed, the total cost and the proportionate expense thereof; and the
money shall be paid in whole or in part to the railroad corporation or
to the municipal corporation as the public service commission may
direct, subject, however, to the rights of the respective parties as they
appear from the accounting or intermediate accounting to be had as
hereinbefore provided for.

9. No claim for damages to property on account of the change or
elimination of any crossing or change in structure or approaches under
the provisions of this article shall be allowed unless notice of such
claim is filed with the public service commission within six months
after completion of the work necessary for such change or elimination.

10. Upon the acquisition of any railroad by the public, under the
right of eminent domain or by and under any statute providing for
the acquisition, use or operation thereof, any and all sums of money
paid and contributed by the state or any political subdivision thereof
toward the expense of constructing new crossings as in this article
provided, shall be credited, allowed and deducted in determining the
value of such property or the basis of computing or allowing compen-
sation therefor. [Railroad Law (1910, ch. 481), § 94, as amended by
L. 1911, ch. 141, L. 1918, chs. 354, 425, 744, L. 1914, ch. 378, L. 1915,
ch. 240, L. 1919, ch. 439, and L. 1921, ch. 698; subd. 6-a, added by
L. 1921, ch. 698, and subd. 10, added by L. 1919, ch. 489.]

$ 7. PROCEEDINGS BY PUBLIC SERVICE COMMISSION FOR ALTERA-
TION OF GRADE CROSSINGS.

The public service commission may, in the absence of any application
therefor, when in its opinion public safety requires an alteration in an
existing grade crossing or a change in any existing structure above or
below grade, institute proceedings on its own motion for an alteration
in such grade crossing, or structure, upon such notice as it shall deem
reasonable, of not less than ten days however, to the railroad company,
the municipal corporation and the person or persons interested, and
proceedings shall be conducted as provided in section ninety-one of
this chapter. The changes in existing grade crossings or structures
authorized or repaired by the commission in any one year shall be so
distributed and apportioned over and among the railroads and the
municipalities of the state as to produce such equality of burden upon
them for their proportionate part of the expenses as herein provided
for as the nature and circumstances of the cases before it will permit.®
[Railroad Law (L. 1910, ch. 481), § 95, as amended by L. 1913, ch. 354.]

 

6. See Matter of N. Y. C. R. R. Co. (1917), 222 N. Y. 541, affg. 177 App.
Div. 444, 164 N. Y. Supp. 310.
RAILROADS AND BRIDGES. 1000g
Railroad Law, §95-a.

§ 7-a. ADDITIONAL PROVISIONS RESPECTING ALTERATION OF GRADE
CROSSING BEGUN UPON PETITION OF A TOWN BOARD OF A
TOWN, OR TOWN BOARDS OF TWO OR MORE TOWNS, OR A
BOARD OF SUPERVISORS OF A COUNTY, OR THE MAYOR AND
COMMON COUNCIL OF A CITY.

If, pursuant to section ninety-one of this chapter, a town board of a
town, or the town boards of two or more towns, or the board of super-
visors of any county, or the mayor and common council of a city shall
petition, or if two or more of them shall jointly petition, for the altera-
tion of an existing grade crossing, notice of such petition and hearing
thereon shall also be given to the attorney-general and to each city and
town within such county from, to, through or into which the highway,
the crossing of which is proposed to be altered, extends. In such case
the petitioner or petitioners may acquire lands, rights or easements
for the purpose and in the manner specified by section ninety-two of
this chapter. The expense of any change or alteration of such exist-
ing crossing, determined upon by the public service commision after
such petition and hearing, shall be apportioned by the public service
commission between and among the railroad corporation or corpora-
tions, the county, the petitioning town, towns, city or cities, and, sub-
ject to the conditions hereinafter stated, to the state of New York, in
the following proportions: Not less than one-half of such expense
to the railroad corporation or corporations, not less than one-quarter
of such expense to the county, and the balance, if any, of such expense
to the state of New York, if there be funds available to pay the state’s
share of such expense, and the public service commission shall deem
it just that the state of New York share in such expense. If there be
no state funds available for such improvement, or, if the public service
commission deem it not just that the state contribute toward the cost
of such improvement, then and in that event the public service com-
mission shall apportion the balance of such expense to the petitioners
as justice may require and as nearly as may be according to the public
benefit conferred or to be conferred by the change or alteration. Any
sum apportioned to the county or to any other municipal corporation
therein by the public service commission shall be a lawful obligation
of such county or such municipal corporation, respectively. If such
crossing is a part of a highway which the state commission of highways
has constructed or improved, or shall have determined to construct or
improve, as a state or county highway, as provided in the highway
law, the petitioner or petioners shall only be entitled to maintain the
proceeding subject to, and in accordance with, a consent and the con-
ditions therein expressed, duly filed by the state commission of high-
ways with the public service commission. If such consent be duly
filed, such proceeding may be maintained before said publie service
1000h HIGHWAYS AND BRIDGES,

Railroad Law, $$ 96, 97.

commission in accordance with the conditions expressed in such con-
sent, notwithstanding any provision to the contrary herein contained.’
[Railroad Law, § 95-a, as added by L. 1921, ch. 663]

§ 8. PROCEEDINGS TO COMPEL COMPLIANCE WITH RECOMMENDA-
TIONS OF PUBLIC SERVICE COMMISSION.

It shall be the duty of the corporation, municipality or person or
persons to whom the decisions or orders of the public service commis-
sion are directed, as provided in sections eighty-nine, ninety, nincty-
one and ninety-five of this chapter, to comply with such decisions and
orders, and in case of their failure so to do the commission shall there-
upon take proceedings to compel obedience to the decisions and orders
of the commission. The supreme court at a special term shall have
the power in all cases of such decisions and orders by the public ser-
vice commission to compel compliance therewith by mandamus, or under
the provisions of the public service commissions law, subject to appeal
to the appellate division of the supreme court and the court of appeals
in the same manner with like effect as is provided in case of appeals
from an order of the supreme court. [Railroad Law, (L. 1910, ch.
481), § 96.]

§ 9. TOWN, VILLAGE OR CITY MAY BORROW MONEY AND ISSUE
BONDS.

Whenever in carrying out any of the provisions ci sections eighty-
nine to ninety-six inclusive of this chapter any municipality shall incur
any expense or become liable for the payment of any moneys, it shall
be lawful for such municipality temporarily to borrow such money on
the notes or certificates of such municipality, and to include the amount
of outstanding notes or certificates, or any part thereof, in its next
annual tax levy for municipal purposes, or in the discretion of the com-
mon council in case of a city, the board of trustees in case of a village,
the town board in case of a town, or the board of supervisors in case
of a county, to borrow the same, or any part thereof, on the credit
of the municipality, and to issue bonds therefor, which bonds shall be
signed by the mayor and clerk in case of a city, the president and
clerk in case of a village, the town board in ease of a town and the
board of supervisors in case of a county, and shall be in such form
and for such sums and be payable at such times and places with
interest not exceeding five per centum per annum, as the common coun-
cil in ease of a city, the board of trustees in case of a village, the town
board in case of a town and the board of supervisors in the ease of a
county, shall direct. [Railroad Law, (L. 1910, ch. 481), § 97, as
amended by L. 1913, ch. 744, and L. 1914, ch. 498.]

 

7. Limitation of cost to city in elimination of grade crossing. Coykendall
v. Kingston (1921), 115 Mise. 557, 188 N. Y. Supp. 769.
PART IX.

SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.

CHAPTER LXIX.

SCHOOLS AND SCHOOL MONEYS, DUTIES OF TOWN AND COUNTY

Secrion 1.
2.

3.

woaonsa

10.
11.
12.
13.

14,

OFFICERS IN RESPECT THERETO.

State school moneys, when and how apportioned.

Apportionment of moneys appropriated for the support of the
common schools.

Conditions under which cities and districts are entitled to an ap-

portionment from the appropriation for the support of common
schools.

. Apportionment of moneys appropriated to cities, academies, aca-

demic departments and school libraries.

. Manner of certifying and paying apportionment provided for in

preceding section.

. County treasurers to render annual report.

: Certificate of apportionment by commissioner of education.
. Moneys apportioned, when payable.

. Apportionment of school moneys by school commissioners.

Duty of and payment to supervisor.

Power of comptroller to withhold payment of school moneys.

Union free school district and city, a school district.

Supervisor to give bond before receiving school moneys; refusal
to give bond a misdemeanor.

Report by supervisors to county treasurer.

14-a. Penalties of certain bonds.
15. Grant, bequest or devise of property to towns for benefit of

schools.

16. Supervisor to report to superintendent amount of gospel school

17.

18,

19.

funds in his hands.

Disposition of fines and penalties for the benefit of the common
schools; district attorney to report to board of supervisors fines
collected; fines to be paid to county treasurer.

Supervisor to annually return to county treasurer amount of
school moneys remaining in his hands.

Disbursement of school moneys; payment of moneys to district
collector or treasurer; library moneys; accounts of school
moneys; payment of moneys by predecessor.
1002 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.
Education Law, §§ 490, 491.

SECTION 20. Alterations of school districts; refusal of trustees to consent;
supervisors of towns to be associated with commissioner to hear
objections and determine.

21. Duties of supervisor as to the property and effects of dissolved
school districts.

22. Districts in two or more towns; equalization of assessment by
supervisors.

28. District superintendent of schools; powers and duties of boards
of supervisors as to supervisory districts.

24. School directors; election of district superintendents; vacancies.

25. Salary and expenses of district superintendent.

26. Duties of town clerks in respect to the common schools; compen-
sation and expenses a town charge.

27. Unpaid school taxes, collector to return account of to trustees;
trustees to transmit account, with certificate to county treasurer.

28. County treasurer to pay to collector of school district amount of
unpaid taxes returned.

29. County treasurer to lay account of unpaid school taxes before
board of supervisors; action of board thereon; collection of such

taxes.
30. Special provisions of the consolidated school law applicable to town

officers.

§ 1. STATE SCHOOL MONEYS, WHEN APPORTIONED AND HOW
APPLIED.

The amount annually appropriated by the legislature for the support
of common schools shall be apportioned by the commissioner of education
on or before the twentieth day of January in each year as hereinafter pro-
vided; and all moneys so apportioned shall be applied exclusively to the
payment of teachers’ salaries! [Education Law (L. 1910, ch. 140), §
490.]

§ 2. APPORTIONMENT OF MONEYS APPROPRIATED FOR THE SUPPORT OF
COMMON SCHOOLS.

After setting apart therefrom for a contingent fund not more than
ten thousand dollars, the commissioner of education shall apportion the
money appropriated for the support of common schools:

1. To each city and to each union school district which has a popula-
tion of five thousand and which employes a superintendent of schools,
eight hundred dollars. This shall be known as a supervision quota.

2. To each district having an assessed valuation of twenty thousand
dollars or less, two hundred dollars.

3. To each district having an assessed valuation of forty thousand dol-
lars or less, but exceeding twenty thousand dollars, one hundred and
seventy-five dollars. :

4, To each district having an assessed valuation of sixty thousand dol-

 

1. See matter of Hylan v. Finegan (1919), 105 Misc. 685, 174 N. Y. Supp.
45, as to application of school moneys appropriated to the City of New York.

S
SCHOOLS AND SCHOOL MONEYS, 1003

Education Law, § 491-a.

lars or less, but exceeding forty thousand dollars, and to each Indian reser-
vation for each teacher employed therein for a period of one hundred and
eighty days or more, one hundred fifty dollars. [Subd. amended by L.
1917, ch. 74.]

5. To each of the orphan asylums which meet the conditions mentioned
in article thirty-five of this chapter, one hundred and twenty-five dollars.

6. To each of the reniaining districts and to each of the cities in the
state one hundred twenty-five dollars. The apportionment provided for by
subdivisions two, three, four, five and six shall be known as district quotas.

%. To each such districts, city and orphan asylum for each additional
qualified teacher and his successors by whom the common schools have been
taught during the period of time required by law, one hundred dollars.
The apportionment provided for by this subdivision shall be known as the

teachers’ quota.

8. To a school district or a city which has failed to maintain school for
one hundred eighty days or which has employed an extra teacher for a
shorter period than one hundred eighty days such part of a district or
teacher’s quota as seems to him equitable when the reason for such failure
is in his judgment sufficient to warrant such action; but in case such
failure to maintain a school in such district or city for a period of one
hundred eighty days was caused by the prevalence of an infectious or con-
tagious disease in the community, the commissioner may in his discretion
apportion to such district or city full district and teachers’ quotas. [Subd.
amended by L. 1917, ch. 74.]

‘9. To each separate neighbourhood such sum as in his opinion it is
equitably entitled to receive upon the basis of distribution established by
this article.

10. All errors or omissions in the apportionment whether made by the
commissioner of education or by the school commissioner shall be cor-
tected by the commissioner of education. Whenever a school district has
been apportioned less money than that to which it is entitled the commis-
sioner of education may allot to such district the balance to which it is in
his judgment entitled and the same shall be paid from the contingent fund.
Whenever a school district has been apportioned more money than that to
which it is entitled the commissioner of education may, by an order under
his hand, direct such moneys to be paid back into the hands of the county
treasurer by him to be credited to the school fund, or he may deduct such
amount from the next apportionment to be made to said district.

11. The commissioner of education may also in his discretion excuse the
default. of a trustee or a board of education in employing a teacher not
legally qualified, legalize the time so taught and authorize the payment of
the salary of such teacher. [Education Law (L. 1910, ch. 140) § 491.]

Additional apportionment of school moneys, 1. In addition to any
other apportionment or quota provided for in this article, to be applied
to the payment of teachers’ salaries, the commissioner of education shall
apportion ‘and pay annually, at the same time and in the same manner
as public school moneys are apportioned and paid under this article, or
1004 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.

Education Law, § 491a.

prior thereto in the discretion of the commissioner of education, to each
city school district and to each common or union free school district,
from moneys appropriated for the support of common schools, for each
teacher employed in the school or schools of such district who shall have
taught during the period required by law, as follows:

(a) In cities of the first class containing a population of over one
million, six hundred dollars.

(b) In cities of the first class containing a.population of less than
one million; in citics of the second class containing a population, ac-
cording to the federal census of nineteen hundred and twenty, of over
one hundred and fifty thousand; in a city school district in a city of
the third class adjoining a city of the first class containing a population
of less than one million; and in cities of the second and third classes
in a county adjoining a city having a population of over one million,
which county has a population of over three hundred thousand, five hun-
dred and fifty dollars.

(c) In other cities of a population of fifty thousand or more and in
union free school districts wholly situated within such cities, four hun-
dred and fifty dollars.

(d) In other cities of a population of less than fifty thousand and in
union free school districts authorized by law to have superintendents of
schools three hundred and fifty dollars.

(e) In other union free school districts maintaining academic depart-
ments, three hundred and fifty dollars. [Subd. e, amended by L. 1921,
ch, 584.

(f) i each other school district employing more than one teacher,
three hundred dollars. [Subd. f, amended by L. 1921, ch. 584.]

(g) In each other school district employing but one teacher and hav-
ing an assessed valuation exceeding one hundred thousand dollars, two
hundred dollars. [Subd. g, amended by L. 1921, ch. 584.]

(h) In each other school district employing but one teacher and hav-
ing an assessed valuation of one hundred thousand dollars or less, two
hundred dollars, and in addition thereto the suth of three dollars for
each entire thousand dollars that the assessed valuation of such district
is less than one hundred thousand dollars. [Subd. h, amended by L.
1921, ch. 584.]

2. The additional teachers’ quotas herein provided for shall be ap-
portioned subject to the following conditions:

(a) The schedules and schedule conditions required by article thirty-
three-b of this chapter, as hereby amended, shall have been duly filed,
and the salaries and salary increments of members of the teaching and
supervising staffs of city and union free school districts shall be not
less than those prescribed in such article and shall be fixed as therein
provided.

(b) There shall be paid to each teacher in a city, except a city of
the first class, and to each teacher in a union free school district on ac-
count of whom a teacher’s quota is apportioned as herein provided, for
the school year beginning August first, nineteen hundred and twenty, an
SCHOOLS AND SCHOOL MONEYS. 1005
Education Law, § 491a.

amount at least equal to the quota so apportioned, in excess of the an-
nual salary paid to such teacher in such city or union free school district
as provided in schedules or contracts in force on March first, nineteen
hundred and nineteen. If, for sufficient cause shown to the satisfaction
of the commissioner of education, the annual salary of a teacher in such
city or union free school district shall have been increased in an amount
less than that of such teacher’s quota, the commissioner may apportion
to such city or district on account of such teacher the whole or a por-
tion of such quota.

(c) In case new positions are created and additional teachers are
employed, or teachers are employed who were not on the teaching staff
of a city or union free school district when this act takes effect, such
teachers shall receive for the school year beginning August first, nine-
teen hundred and twenty, the salaries prescribed under the schedules
and schedule conditions adopted as provided in article thirty-three-b of
this chapter, as hereby amended, and in force and effect on and after
August first, nineteen hundred and twenty.

(d) The additional teachers’ quotas apportioned as herein provided
shall be based on the number of teachers employed in each city, union
free and common school district for the school year preceding the time
when such apportionment is made.

(e) The commissioner of education may in his discretion withhold
from a city or union free school district the whole or a portion of a
teacher’s quota to be apportioned as herein provided, for a failure on the
part of a board of education to comply with the provisions of article
thirty-three-b of this chapter, as amended, or with the provisions of
this section, or for a refusal or failure to place such teacher in a posi-
tion in the schedule or under such schedule conditions to which she is
justly entitled.

3. The trustees or board of education in each school district, except
a city school district, and a union free school district in which schedules
of compensation or salaries are required to be filed as provided in ar-
ticle thirty-three-b of this chapter, shall pay to each teacher employed
in such district compensation or a salary which shall be not less than
at the rate of eight hundred dollars for a school year of forty weeks.
Such minimum compensation or salary shall become effective for the
school year beginning August first, nineteen hundred and twenty, and
continue annually thereafter. [Subd. 3, amended by L. 1921, ch. 20.]

4, The apportionments of additional teachers’ quotas provided for in
this section are for the purpose of aiding city, union free and common
school districts in paying the increased salaries of teachers as herein
provided, and the sums so apportioned to such city, union free and
common school districts shall be applied for such purpose and such
1005a, SCHOOLS; DUTIES OF TOWN. AND COUNTY OFFICERS.
Education Law, § 492.

sums shall not in any case be placed in the city treasury of any city
to the credit of the general fund of such city for the reduction of taxa-
tion therein, notwithstanding any provision to the contrary contained
in the charter of such city or in any act relating to such city or in any
general, special or local act.t# [Education Law, § 491a, as added by
L. 1919, ch. 645, and amended by L. 1920, ch. 680, and L. 1921, ch. 584.]

§ 3. CONDITIONS UNDER WHICH CITIES AND DISTRICTS ARE EN-
TITLED TO AN APPORTIONMENT FROM THE APPROPRIA-
TION FOR THE SUPPORT OF COMMON SCHOOLS.

1. The commissioner of education shall make no allotment of a super-
vision quota to any city or district unless satisfied that such city or dis-
trict employs a competent superintendent whose time is exclusively de-
voted to the supervision of the public schools of such city or district ;
nor shall he make any allotment to any district in the first instance
without first causing an enumeration of the inhabitants to be made
which shall show the population thereof to be at least four thousand
five hundred, the expense of such enumeration, as certified by said com-
missioner, shall be paid by the district in whose interest it is made.
The population shown by the last state or federal census or village
enumeration may be accepted by said commissioner whenever the vil-
lage and school district boundaries coincide. [Subd. 1, amended by
L. 1920, ch. 141.]

2. No district shall be entitled to any portion of such school moneys
on such apportionment unless the report of the trustee for the preced-

 

1a, Additional compensation of teachers. A trustee may be required to
pay a teacher the difference in salary to which she is entitled pursuant to
this section and the amount actually paid for the school year. Opinion of
Education Dept. (1920), 24 St. Dept. Rep. 694.

Id; duty of district to pay. By virtue of subd. 3, prior to its amendment
by L. 1920, ch. 680, it was held that a district could be required to pay a
teacher sufficient to make her salary one hundred dollars more than the
salary paid the previous year. Opinion of Education Dept. (1921), 25
St. Dept. Rep. 454.

Id; effect of termination of employment. Where at a meeting of a board
of education a motion was made and carried that the teachers receive the
quota apportioned under the provisions of this section “provided the teacher
remains to the end of the year,’ and appellant did not remain in the employ
of the board during the entire school year and consented to the terms of
settlement at the termination of his employment, it was held that he had
no valid claim for further compensation. Matter of Singer (1921) 26 St.
Dept. Rep. 215.
SCHOOLS AND SCHOOL MONEYS. 1005b

Education Law, § 493.

ing school year shall show that a common school was supported in the
district and taught by a qualified teacher or by successive qualified
teachers for at least, one hundred and eighty days, inclusive of legal
holidays that may have oceurred during the term of said school and
exclusive of Saturdays. [Subd. amended by L. 1913, ch. 511.]

3. No Saturday shall be counted as part of said one hundred and
eighty days of school and no school shall be in session on a legal holi-
day, except general election day, Washington’s birthday and Lincoln’s
birthday. A deficiency not exceeding six days during any school year
caused by a teacher’s attendance upon teachers’ conferences held by
district superintendents of schools within a county, shall be excused by
the commissioner of education. In common school districts the term of
school shall begin each year on the first Tuesday of September. ([Subd.
amended by L. 1913, ch. 511; Education Law, Ti, 1910, ch. 140, § 492.]

§ 4. APPORTIONMENT OF MONEYS APPROPRIATED TO CITIES, ACAD-
EMIES, ACADEMIC DEPARTMENTS AND SCHOOL LIBRARIES.

The commissioner of education shall apportion the money annually
appropriated for the support of cities, academies, academic depart-
ments and school libraries in accordance with regulations established
or to be established by him as follows:

1. To each city, union school district and nonsectarian academy two
hundred dollars for each year of academic instruction maintained there-
in up to and including the fourth year of high school work.: This ap-
portionment shall be known as the academic quota. [Subd. amended
by L. 1920, ch. 680.]

2. To each nonsectarian private academy an allowance equal to the
amount raised from local sources but not to exceed two hundred fifty
dollars annually for approved books, reproductions of standard works
of art and apparatus. [Subd. amended by L. 1914, ch. 216.]

3. To each city an allowance equal to the amount raised from local
sources but not to exceed eighteen dollars and two dollars additional
for each duly licensed teacher employed therein for the legal term, and
two hundred fifty dollars for each academic department maintained by
it for approved books, reproductions of standard works of art and
apparatus. [Subd. amended by L. 1914, ch. 216.]

4, To each union free school district maintaining an academic de-
partment an allowance equal to the amount raised from local sources,
but not to exceed two hundred sixty-eight dollars annually and two
1005e SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.

Education Law, § 493.

dollars additional for each teacher employed in said district for the
legal term for approved books, reproductions of standard works of art
and apparatus. [Subd. amended by L. 1914, ch. 216.]

5. To all other school districts an allowance equal to the amount
raised from local sources but not to exceed cighteen dollars annually
and two dollars additional for each duly licensed teacher employed in
said district for the legal term for approved books, reproductions of
standard works of art, geographical maps, a globe and school appara-
tus. [Subd. amended by L. 1914, ch. 216.]

6. To each city and union free school district maintaining an acade-
mic department, fifty dollars per year for at least thirty-six weeks’
instruction or a proportionate amount if for eight weeks or more for
each nonresident academic pupil attending the academic department
of such school from districts not maintaining such academic depart-
ments, and no charge for the instruction of such nonresident pupil in
excess of the quota herein provided shall be made by any district or
city maintaining an academic department unless it shall appear to the
satisfaction of the commissioner that the tax rate for school purposes
of the city or district receiving the nonresident academic pupil is equal
to or in excess of the tax rate for school purposes of that district from:
which such nonresident pupil comes; or that the instruction of such
nonresident pupil adds to the total cost of instruction of academic
pupils in such city or union free school district a sum in excess of the
quota herein provided. Pupils residing in districts not maintaining
a four-year curriculum may be included in this apportionment after
having completed the course of study prescribed for the school in the
district in which they reside. The tuition charged, if any, in excess
of the aforesaid state tuition is hereby declared a charge upon the
district from which such nonresident pupil attends, subject, however,
to the right of such district to designate the academic school or schools
where instruction shall be given at the district’s expense. Such desig-
nation shall be made by each school district at the annual meeting of
such district. Such designation may be reviewed upon appeal to the
commissioners of education in the event the parent or guardian of such
pupils deem themselves aggrievd thereby. In case any school district
shall fail to make such designation at the annual school meeting the
district superintendent of schools in the supervisory district in which
such district is located may make such designation subject to review
on appeal by the commissioner of education. City and union free
school districts shall not refuse to receive nonresident academic pupils
for instruction without valid and sufficient reasons therefor, nor shall
excessive sums be charged for the instruction of such pupils. All acts
SCECCLS AND SCHOOL MONEYS. 1005d

Education Law, § 493.

of the board of education or other district officers relating to such
pupils and the tuition charged for their instruction are hereby declared
subject to review by the commissioner of education. Where a district
is so situated that its academic pupils can be more conveniently in-
structed in the academic department of a school located in another
state, the commissioner of education is hereby authorized to make the
same apportionment to such district, annually, to be applied in payment
of the tuition of each such academic pupil so instructed outside the
state, as he shall be authorized by law to make for the instruction of
academic pupils within the state, and upon the same conditions. Subd.
amended by L. 1912, ch. 276, L. 1913, ch. 399, L. 1915, ch. 214, L. 1919,
ch. 368, L. 1920, chs. 194, 680, and L. 1921, ch. 383.]

6-a. To each city and union free school district maintaining an acad-
emic department an apportionment shall be made for the instruction
of each non-resident pupil attending such academic department from
military reservations located within the boundaries of the state of New
York but under the jurisdiction of the United States in the same
amount and upon the same conditions as specified in subdivision six of
this section. [Subd. 6-a, as added by L. 1920, ch. 501.]

7. After the payment of the allowances herein provided for the bal-
ance shall be divided among the several academies maintaining academ-
emic departmets other than high schools and academic departments
maintained by cities and union free school districts, on the basis of
aggregate days’ attendance of academic pupils therein. [Subd. 7,
amended by L. 1921, ch. 208.]

8. The commissioner shall set aside at the beginning of the fiscal
year a sum which in his opinion will be sufficient ‘to pay the allowances
for books and apparatus herein provided before making the other ap-
portionments as directed by this article. The allowance for books and
apparatus shall be apportioned and paid as often during each year as
the commissioner may determine. All other apportionments above
provided for shall be made so far as possible during the month of Octo-
ber each year on the basis of the reports of the previous year.

9. To entitle a city, academy, academic department or school library
to an apportionment from this fund the school authorities having con-
trol must render a satisfactory report for the preceding year to the com-
missioner of education before the twentieth day of September in each
year unless such neglect is excused by the commissioner for sufficient
reason. They must also have complied with all regents’ laws and
ordinances during the preceding academic year.* [Education Law
(L. 1910, ch. 140), § 493, as amended by L. 1919, ch. 368, and L. 1920,
ch. 680.]

1b. Tuition of non-resident pupils in excess of $40 each must be paid by
the trustee of the home district. Opinion of Comnr. of Education (1919),
20 St. Dept. Rep. 183.

 
1006 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.

Education Law, §§ 494, 495.

§ 5. MANNER OF CERTIFYING AND PAYING APPORTIONMENT PRO-
VIDED FOR IN PRECEDING SECTION.

Payment from this fund shall be made to the county treasurer of
each county for all schools located in such county, by the state treas-
urer on the warrant of the comptroller or the certificate of the commis-
sioner of education.

The commissioner of education immediately after making an ap-
portionment shall certify or cause to be certified to the county treas-
urer of every county included in such apportionment, excepting those
counties included within the territory of the city of New York, with
respect to his county, the name of each academy, the number of each
school district and the town in which it is situated and the name of
each city to which money has been alloted and the amount alloted to
each. The county treasurer shall, upon the receipt of such certificate
and payment from the state treasurer, pay to the treasurer, if there be
one, otherwise to the disbursing officer or collector of each school dis-
trict, academy and city named in the certificate of the commissioner of
education, the amount to which said district, academy or city is entitled
as shown by such certificate.

Any apportionment which shall be made to the city of New York
shall be certified and paid to the chamberlain of the city of New York,
and any apportionment which shall be made to any private academy
situated within the territory of the city of New York, shall be certified
and paid directly to the disbursing officer of the academy to which the
apportionment is made. [Education Law (L. 1910, ch. 140), § 494, as
amended by L. 1912, ch. 77.]

§ 6. COUNTY TREASURERS TO RENDER ANNUAL REPORT.

The county treasurers of the state shall, upon the first day of October
of each year and at such other times as the commissioner of education
may require, make a report for the preceding year to the commissioner
of education, showing the amount of money received by them from this
fund and the school districts, cities or academies to which such money
has been paid and the amount paid to each, and the amount, if any,
remaining in their hands unclaimed by any school district, city or
academy together with any other fact relative to the disbursement of
this fund which said commissioner may require. [Education Law
(L. 1910), ch. 140) § 495.]

 

Where school designated by the district meeting is inaccessible, the dis-
trict must pay tuition for instruction in the nearest and most accessible
school. Opinion of Comnr. of Education (1921) 26 St. Dept. Rept. 46; id.
p. 680.
SCHOOLS AND SCHOOL MONEYS. 1007
Education Law, §§ 496-498.

§ 7. CERTIFICATE OF APPORTIONMENT BY COMMISSIONER OF EDUCA-
TION..

As soon as possible after the making of any annual or general appor-
tionment, the commissioner of education shall certify it, or cause it to be
certified, to the county clerk, county treasurer, district superintendents,
and city treasurer or chamberlain, in every county in the state; and if it
be a supplemental apportionment, then to the county clerk, county treas-
urer and district superintendents of the county in which the school-house
of the district concerned is situated. [Education Law (L. 1910, ch.
140), § 496, as amended by L. 1912, ch. 77.]

§ 8 MONEYS APPROPRIATED, WHEN AND HOW PAYABLE.

At least one-nal: vi tue mMuneys su auNuaLLy appuruoucu by the com-
missioner of education shall be payable on or betore the first day of
March and the remaining part of such moneys on or before the ntteenth
day of May, in each year, next after such apportionment, to the treasur-
ers of the several counties and the chamberlain of the city of New York.
respectively ; and the said treasurers and the chamberlain shal! appiy for
anu receive the same as soon as payable. The county treasurer sbail pay
to the city treasurer of each city and the treasurer of each union tree
school district having a population of five thousand or more inhabitants
and in which a superintendent of schools has been appointed, situated
within his county, all school moneys apportioned to such city or district
as provided by sections four hundred and ninety-one, four hundred and
ninety-two and six hundred and four of this chapter. [Education Law
(L. 1910, ch. 140), § 497, as amended by L. 1914, ch. 52.]

§ 9 APPORTIONMENT OF SCHOOL MONEYS BY DISTRICT SUPERIN-
TENDENTS,

The district superintendent of schools shall, on or before the fifteenth
day of February in each year, apportion the supervision, district and
tcachers’ quotas to the several districts entitled thereto, within his super-
visovy district, as shown by the certificate of the commissioner of educa-
tion to the said district superintendent. He shall procure from the su-
pervisors of the towns in his district a transcript showing the unexpended
moneys in their hands applicable to the payment of teachers’ salaries.
The amounts in each supervisor’s hands shall be charged as a partial
payment of the sums apportioned to the town teachers’ salaries.

He shall procure from the county treasurer a full list and statement
of all payments to him of moneys for or on account of fines and penal-
ties, or accruing from any other source, for the benefit of schools and of
the towns or districts for whose benefit the same were received. Such
of said moneys as belong to a particular district, he shall set apart and
credit to it; and such as belong to the schools of a town he shall set apart
and credit to the schools in that town, and shall apportion them together
with such as belong to the schools of the county as hereinafter provided
for the payment of teachers’ salaries.
1008 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.
Education Law, §§ 499-501, 363.

He shall sign, in duplicate, a certificate, showing the amounts appor
cioned and set apart to each school district and part of a district, and the
towns in which they were situated, and shall forthwith deliver one of
said duplicates to the treasurer of the county and transmit the other to
the commissioner of education.

He shall certify to the supervisor of each town, in his supervisory dis-
trict the amount of school moneys apportioned to each district or part of
a district of his town for teachers’ wages. [Education Law (L. 1910,
ch. 140), § 498, as amended by L. 1918, ch. 130.]

§ 10. DUTY OF AND PAYMENT TO SUPERVISOR.

On receiving the certificate of the school commissioners, each super-
visor shall forthwith make a copy thereof for his own use, and deposit the
original in the office of the clerk of his town; and the moneys so apportioned
to his town shall be paid to him immediately on his compliance with the re-
quirements of section three hundred and sixty-three of this chapter. [Edu-
cation Law, (L. 1910, ch. 140), § 499.]

§ 11. POWER OF COMPTROLLER TO WITHHOLD PAYMENT OF
SCHOOL MONEYS.

The comptroller may withhold the payment of any moneys to which any
county may be entitled from the appropriation of the incomes of the school
fund and the United States deposit fund for the support of common schools,
until satisfactory evidence shall be furnished to him that all moneys
required by law to be raised by taxation upon such county, for the support
of schools throughout the state, have been collected and paid or accounted
for to the state treasurer. [Education Law, (L. 1910, ch. 140), § 500.]

§ 12. UNION FREE SCHOOL DISTRICT AND CITY, A SCHOOL DIS-
TRICT.

Every union free school district and every city having an organized
city system of schools shall, for all the purposes of the apportionment,
distribution, payment and withholding of school moneys, be regarded and
recognized as a school district. [Education Law, (L. 1910, ch. 140) 501.]
501.]

§ 13. SUPERVISOR TO GIVE BOND BEFORE RECEIVING SCHOOL
MONEYS; REFUSAL TO GIVE BOND A MISDEMEANOR.

1. Immediately on receiving the school commissioners’ certificates of
apportionment, the county treasurer shall require of each supervisor, and
each supervisor shall give to the treasurer, in behalf of the town, his bond,
with two or more sufficient sureties, approved by the treasurer, in the
SCHOOLS AND SCHOOL MONEYS. 1009

Education Law, § 364.

penalty of at least double the amount of the school moneys set apart or
apportioned to the town, and of any such moneys unaccounted for by his
predecessors, conditioned for the faithful disbursement, safe-keeping and
accounting for such moneys, and of all other school moneys that may come
into his hands from any other source.*

2. If the condition shall be broken the county treasurer shall sue the
bond in his own name, in behalf of the town, and the money recovered shall
be paid over to the successor of the supervisor in default, such successor
having first given security as aforesaid.*

3. Whenever the office of a supervisor shall become vacant, the county
treasurer shall require the person elected or appointed to fill such vacancy
to execute a bond, with two or more sureties, to be approved by the treas-
urer, in the penalty of at least double the sum of the school moneys re-
maining in the hands of the old supervisor, when the office became vacan',
conditioned for the faithful disbursement and safe-keeping of and account-
ing for such moneys. But the execution of this bond shall not relieve the
supervisor from the duty of executing the bond first above mentionea.

[Education Law (L. 1910, ch. 140), § 363, as, renumbered § 873, by
L. 1917, ch. 328, and again renumbered § 363, by L. 1918, ch. 199.]
The refusal of a supervisor to give such security shall be a misde-
meanor, and any fine imposed on his conviction thereof shall be for the
benefit of the common schools cf the town. Upon such refusal, the
moneys so sct apart and apportione. to the town shall be paid to and
disbursed by some other ofiicer or pcrson to be designated by the county
judge, under such regulations and with such safeguards as he may
prescribe, and the reasonable compensation of such officer or person, to
be adjusted by the board of supervisors, shall be a town charge [Edu-
cation Law (L. 1910, ch. 140), § 364, as renumbered § 374, by L.
1917, ch. 828, and again renumbered § 364, by L. 1918, ch. 199.]

1. For form of bond of supervisor on account of school moneys and the approval
of the county treasurer, see Form No. 153, post.

Undertaking of supervisor. Each supervisor is required to make and deliver to
the town clerk of the town his undertaking, with such sureties as the town board
shall prescribe, conditioned for the faithful keeping and accounting for all moneys
and property, including the local school fund, belonging to his town and coming
into his hands as such supervisor. See Town Law, sec. 100, ante, p. 304. The under-
taking required by the above section is in addition to his regular official undertaking
and runs to the county treasurer rather than to the town. The form of an official
undertaking of a town officer, and the liability of sureties thereon are prescribed by
section 13 of the Town Law, ante, p. 311. As to general provisions respecting
official undertakings, see Public Officers Law, secs. 10-13, ante, p. 312.

2. Liability on bond. The fact that the supervisor of a town in good faith de-
posited as a general deposit the school moneys received by him with a reputable
firm of individual bankers, believed to be solvent, and that thereafter such firm
failed and such moneys were lost, is not a defense to an action brought upon the
bond of such supervisor given pursuant to the provisions of the above section.
Tillinghast v. Merrill, 77 Hun 481; 28 N. Y. Supp. 1089.

3. Refusal to give bond. It is provided by section 1820 of the Penal Law that
a person who executes any functions of a public office without having executed and

 
1010 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.
Education Law, §§ 365, 366, 520.

§ 14. REPORT BY SUPERVISORS TO DISTRICT SUPERINTENDENTS.

On the first Tuesday of February in each year, each supervisor shall make
a return in writing to the district superintendent of schools of the supervisory
district in which the town is situated, showing the amounts of school moneys
in his hands not paid on the orders of trustees for teachers’ salaries, and the
districts to which they stand accredited, and if such moneys remain in his
hands, he shall report that fact; and thereafter he shall not pay out any of
said moneys until he shall have received the certificate of the next apportion-
ment; and the moneys so returned by him shall be reapportioned as directed
in article eighteen of this chapter. [Education Law (L. 1910, ch. 140),
§ 365, as amended by L. 1913, ch. 130, and renumbered § 375, by L. 1917,
ch 328, and again renumbered § 365, by L. 1918, ch. 199.]

§ 14-a. PENALTIES OF CERTAIN BONDS.

Whenever the supervisor of the town or a school district officer is required
to furnish a bond under the provisions of this chapter in the penalty of
double the amount of moneys apportioned or to be received, and such super-
visor or district officer furnishes the bond of a surety or bonding company
authorized by law to transact business in this state and to execute such bond,
the penalty thereof may be fixed at the amount of moneys so apportioned
or to be received, in lieu of the double penalty herein prescribed. [Educa-
tion Law, § 366, as added by L. 1921, ch. 480.]

§ 15. GRANT, BEQUEST OR DEVISE OF PROPERTY TO TOWNS FOR
BENEFIT OF SCHOOLS.

Real and personal estate may be granted, conveyed, devised, bequeathed
and given in trust and in perpetuity or otherwise, to the state, or to the
regents or to the commissioner of education for the support or benefit of the
common schools, within the state, or within any part or portion of it, or of
any particular common schools within it; and to any county, or the school
commissioners of any county, or to any city or any board of officers thereof,
or to any school commissioner district or its commissioner, or to any town,
or supervisor of a town, or to any school district or its trustees, for the sup-
port and benefit of common schools within such county, city, school commis-
sioner district, town or school district, or within any part or portion thereof
respectively, or for the support and benefit of any particular common schools
therein. No such grant, conveyance, devise or bequest shall be held void
for the want of a named or competent trustee or donee, but where no trustee
or donee, or an incompetent one is named, the title and trust shall vest in
the people of the state, subject to its acceptance by the legislature, but such
acceptance shall be presumed.3a_ [Education Law (L. 1910, ch. 140), § 520.]

duly filed the required security is guilty of a misdemeanor. But the acts of
the supervisor are not invalidated because of his failure to execute the bond.
See Penal Law, § 1821.

8a, Trust for benefit of school district for payment of teachers. <A trust
may be created for the support and benefit of any particular common school
in a school district and a trust to pay salaries of teachers is within the intent
of the statute. Although the trustees of a school district have capacity to
take a bequest, a testator may vest the fund in trustees of his own choice
so that the disposition of his gift may be made according to his wishes.
Where a testator directs his executor to convert all of his estate into money
and gives the proceeds to a union free school district to be used for the pay-
ment of teachers’ wages forever, and then directs the trustee to pay for the
benefit of the district to the treasurer ‘‘or the officer performing the duties of
that office” in each year a sum to be fixed by the board of education not to
exceed $1,500, and further provides that it is not his intention to lessen the
burden of taxation but that the teachers shall be the best obtainable and that
the surplus moneys raised by taxation and which would have been reauired
for teachers’ wages shall be expended for buildings, apparatus and better-
ments, and it appears that the trust fund will not, at the usual rate of
interest on investments, produce an income in excess of the amount to be
paid annually, the trust is valid and the testator’s intentions should be car-
ried out. Matter of Sayre (1917), 179 App. Div. 269, 166 N. Y, Supp. 499.
SCHOOLS AND SCHOOL MONEYS. 1011

Education Law, §§ 521-528, 850.

The legislature may control and regulate the execution of all such trusts;
and the commissioner of education shall supervise and advise the trustees,
and hold them to a regular accounting for the trust property and its income
and interest at such times, in such forms, and with such authentications, as
he shall, from time to time, prescribe. [Education Law (L. 1910, ch. 140)
§ 521.]

The common council of every city, the board of supervisors of every
county, the trustees of every village, the supervisor of every town, the
trustees of every school district, and every other officer or person who
shall be thereto required by the commissioner of education, shall report
to him whether any and if any, what trusts are held by them respectively,
or by any other body, officer or person to their information or belief for
school purposes, and shall transmit, therewith, an authenticated copy of
every will, conveyance, instrument or paper embodying or creating the
trust; and shall, in like manner, forthwith report to him the creation and
terms of every such trust subsequently created. [Education Law (L.
1910, ch. 140) § 522.] .

§ 17. SUPERVISOR TO REPORT TO SUPERINTENDENT AMOUNT
OF GOSPEL SCHOOL FUNDS IN HIS HANDS.

Every supervisor of a town shall report to the commissioner of education
whether there be, within the town, any gospel or school lot, and, if any,
shall describe the same, and state to what use, if any, it is put by the town;
and whether it be leased, and, if so, to whom, for what term and upon what
rents; and whether the town holds or is entitled to any land, moneys or
securities arising from any sale of such gospel or school lot, and the invest-
ment of the proceeds thereof, or of the rents and income of such lots and
investments, and shall report a full statement and account of such lands,
moneys and securities.* [Education Law (L. 1910, ch. 140) § 523.]

§ 17. DISPOSITION OF FINES AND PENALTIES FOR THE BENEFIT
OF THE COMMON SCHOOLS; DISTRICT ATTORNEY TO RE-
PORT TO BOARD OF SUPERVISORS FINES COLLECTED;
FINES TO BE PAID TO COUNTY TREASURER.

Whenever, by any statute, a penalty or fine is imposed for the benefit of
common schools, and not expressly of the common schools of a town or

 

4, Gospel and school lots. As to powers and duties of supervisor in regard
to gospel and school lots, see post, p. 1026.
1012 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.

Education Law, §§ 851-853.

school district, it shall be taken to be for the benefit of the common schools
of the county within which the conviction is had; and the fine or penalty,
when paid or collected, shall be paid forthwith into the county treasury,
and the treasurer shall credit the same as school moneys of the county,
unless the county comprise a city having a special school act, in which
case he shall report it to the commissioner of education, who shall appor-
tion it upon the basis of population by the last census, between the city
and the residue of the county, and the portion belonging to the city shall
be paid into its treasury. [Education Law (L. 1910, ch. 140) § 850.]

Every district attorney shall report, annually, to the board of supervisors,
all such fines and penalties imposed in any prosecution conducted by him
during the previous year; and all moneys collected or received by him or
by the sheriff, or any other officer, for or on account of such fines or penal-
ties, shall be immediately paid into the county treasury, and the receipt of
the county treasurer shall be a sufficient and the only voucher for such
money.® [Education Law (L. 1910, ch. 140) § 851.]

Whenever a fine or penalty is inflicted or imposed for the benefit of the
common schools of a town or school district, the magistrate, constable or
other officer collecting or receiving the same shall forthwith pay the same
to the county treasurer of the county in which the school house is located,
who shall credit the same to the town or district for whose benefit it is
collected. If the fine or penalty be inflicted or imposed for the benefit of
the common schools of a city having a special school act, or of any part or
district of a city, it shall be paid into the city treasury. [Education Law
(LL. 1910, ch. 140) § 852.]

Whenever a penalty or fine is imposed upon any school district officer
for a violation or omission of official duty, or upon any person for any
act or omission within a school district, or touching property or the peace
and good order of the district, and such penalty or fine is declared to be
for the use or benefit of the common schools of the town or of the county,
and such school district lies in two or more towns or counties, the town
or county intended by the act shall be taken to be the one in which the
school house, or the school house longest owned or held by the district,
is at the time of such violation, act or omission. [Education Law (L. 1910,
ch. 140) § 853.]

 

5. Money received by district attorney for penalties. The district attorney
is required to pay all money received for a penalty or forfeiture belonging to
the county to the county treasurer, and must render an account to the first
term of the County Court of his county held in each calendar year of all
money collected by him from any person belonging to the county or to the
state. See County Law, § 201.
SCHOOLS AND SCHOOL MONEYS. 1018
Education Law, § 365.

§ 18 SUPERVISOR TO ANNUALLY. RETURN TO DISTRICT SUPERIX-
ae alg AMOUNT OF SCHOOL MONEYS REMAINING iN HIS
On the nrst tuesday of February in each year, each supervisor shall
make a return in writing to the district superintendent of schools of the
supervisory district in which the town is situated, showing the amounis
of school moneys in his hands not paid on the orders of trustees for teach-
ers’ salaries, and the districts to which they stand accredited, and if such
moneys remain in his hands, he shall report that fact; and thereatter
he shall not pay out any of said moneys until he shall lave received the
certificate of the next apportionment; and the moneys so returned by him
shall be reapportioned as directed in article eighteen of this chapter.®
[Education Law (L. 1910, ch. 140), § 365, as amended by L. 1913,
ch. 130, and renumbered § 375, by L. 1917, ch. 328, and again renum-.
bered § 365, by L. 1918, ch. 199.]

§ 19. DISBURSEMENT OF SCHOOL MONEYS; PAYMENT OF MONEYS
TO DISTRICT COLLECTOR OR TREASURER; LIBRARY
MONEYS; ACCOUNTS OF SCHOOL MONEYS; PAYMENT OF
MONEYS BY PREDECESSOR.

It is the duty of every supervisor:

1. To disburse the school moneys in his hands applicable to the payment
of teachers’ wages, upon and only upon the written orders of a sole trustee
or a majority of the trustees, in favor of qualified teachers. But whenever
the collector in any school district shall have given bonds for the due and
faithful performance of the duties of his office as disbursing agent, as re-
quired by section two hundred and fifty-three or whenever any school
district shall elect a treasurer as provided in this chapter, the said super-
visor shall, upon the receipt by him of a copy of the bond executed by said
collector or treasurer as herein required, certified by the trustees, pay over
to such collecter or treasurer, all moneys in his hands applicable to the pay-
ment of teachers’ wages in such district, and the said collector or treasurer
shall disburse such moneys so received by him upon such orders as are
specified herein to the teachers entitled to the same.

2. To pay over all the school money apportioned to a union free school
district, to the treasurer of such district, upon the order of its board of
education.

3. To keep a just and true account of all the school moneys received
and disbursed by him during each year, and te lay the same, with proper
vouchers, before the town board or board of town auditors at each annual
meeting thereof.’

 

6. For form of report of supervisor of school moneys in his hands, see Form

No. 154, post.
7. Audit of accounts by town board. The town officers are required to
1014 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.

Education Law, § 360.

4. To provide a bound blank book, the cost of which shall be a town
charge, and to enter therein all his receipts and disbursements of school
moneys, specifying from whom and for what purposes they were received,
and to whom and for what purposes they were paid out; and to deliver the
book to his successor in office.

5. To make out a just and true account of all school moneys received
by him and of all disbursements thereof, within fifteen days after the termi-
nation of his-office and to deliver the same to the town clerk, to be filed and
recorded, and to notify his successor in office that such account has been
made and filed.

6. To deliver to his predecessor the county treasurer’s certificate show-
ing that he has given to such treasurer the bond requirec by section three
hundred and sixty-three of this chapter and that such bond has been ap-
proved by such treasurer, and to procure from the town clerk a copy of his
predecessor’s account, and to demand and receive from him all school
moneys remaining in his hands.

7%. To pay to his successor upon receipt of such certificate all school
moneys remaining in his hands, and to forthwith file the certificate in the
town clerk’s office.®

8. To sue for and recover, in his name of office, when the duty is not
elsewhere imposed by law, all penalties and forfeitures imposed by this
chapter, and for any default or omission of any town officer or school dis-
trict board or officer under this chapter; and after deducting his costs and
expenses to report the balances to the school commissioner.

9. To act, when legally required, in the erection or alteration of a school
district, as provided in article five of this chapter, and to perform any other
duty which may be devolvcd upon him by this chapter, or any other act
relating to common schools, |Huucation Law (L. 1910, ch. 140), §
360, subds. 1-9, as renumbered § 370, by L. 1917, ch. 328, and again
renumbered § 360, by L. 1918, ch. 199. ]

account to the town board or board of town auditors for all moneys re-
ceived and disbursed by them at the meeting of such board held on the Tues-
day preceding the biennial meeting and on the corresponding date in each
alternate year, or in towns holding town meetings at the same time with the
general election, on the third Tuesday of December in each year. See Town
Law, sec. 132, ante, p. 376, and the notes thereunder relating to accountings by
town officers to the town board.

8. Payments to successor. It is provided in section 91 of the Town Law
(see ante, p. 356), that every supervisor going out of office, when so required,
shall deliver upon oath to his successor all the records, books and papers in his
possession or under his control belonging to the office held by him, and shall at
the same time pay over to his successor the moneys belonging to the town re-
maining in his hands. Ifa supervisor shall refuse to deliver books and papers

 
SCHOOLS AND SCHOOL MONEYS. 1015

Education Law, §§ 123, 124, 140.

§ 20. ALTERATIONS OF SCHOOL DISTRICTS; REFUSAL OF TRUSTEES
TO CONSENT; SUPERVISORS OF TOWNS TO BE ASSOCIATED
WITH DISTRICT SUPERINTENDENT TO HEAR OBJECTIONS
AND DETERMINE.

1. With the written consent of the trustees of all the districts to be af-
fected thereby, the district superintendent may make an order altering the
boundaries of any school district within his jurisdiction, and fix in such order
a day when the alteration shall take effect.8

2. With the written consent of the board of education of a union free
school district having a population of five thousand or more, and employing
a superintendent of schools, and the written consent of the board of educa-
tion or trustees of a district in a supervisory district adjoining such union
free school distrct, the district superintendent having jurisdiction may make
an order altering the boundaries of such districts, and fix in such order a
day when the alteration shall take effect. [Education Law (L. 1910 ch.
140), § 123, as amended by L. 1914, ch. 154.]

‘If the trustees of any district affected thereby refuse to consent, the
school commissioner may make and file with the town clerk his order making
the alteration, but reciting the refusal, and directing that the order shall not
take effect until a day therein to be named, and not less than three months
after the date of such order.8b [Idem, § 124.]

1. Within ten days after making and filing such order the school commis-
sioner shall give at least a week’s notice in writing to the trustees of all
districts affected by the proposed alterations, that at a specified time, and
at a named place within the town in which one of the districts to be affected
lies, he will hear the objections to the alterations.9

2. The trustees of any district to be affected by such order may request
the supervisor and town clerk of each of the towns, within which such districts
shall wholly or partially lie, to be associated with the school commissioner.

3. At the time and place mentioned in the notice, such commissioner,
with the supervisors and town clerks, if they shall attend and act, shall
hear and decide the matter, and the decision shall be final unless duly
appealed from. Such decision must either affirm or vacate such order,
and must be filed with and recorded by the town clerk of the town in
which the district to be affected shall lie, and a tie vote shall be regarded
a decision for the purposes of an appeal on the merits. Upon such

 

pertaining to his office, to his successor, proceedings may be instituted to
compel such delivery, pursuant to section 80 of the Public Officer’s Law.

8a. As to alterations of boundaries of district, see Opinion of Commr. of
Education (1918), 15 State Dept. Rep. 513; Id. (1920), 24 St. Dept. Rep. 697.
District having more than five thousand inhabitants. Opinion of Commr. of
Education (1921), 26 St. Dept. Rep. 351.

A trustee cannot legally consent to an order changing the district’s bound-
aries where such change would make him a non-resident of the district of
which he is trustee, and hence vacate his office. Opinion of Commr. ‘of
Education (1919), 21 St. Dept. Rep. 223.

8b. See Opinion of Commr. of Education (1920), 24 St. Dept. Rep. 292;
Id. 203; (1921), 26 St. Dept. Rep, 156; Id. 425; Id. 683.

9. Necessity of notice. An order altering or dividing a school district,
where the trustees of the districts object, cannot be made without giving
to such trustees at least a week’s notice in writing that at a time and place
specified by the school commissioner he will hear their objections to the
proposed alteration. Neither the superintendent of public instruction nor
the school commissioner can deprive the trustees of this statutory right.
People ex rel. Board of Education v. Hooper, 13 Hun 639. It is also held in
this case that the provisions of the title of the Consolidated School Law
relating to the alteration of school districts, from which the above section
was derived, applied with equal force and effect to a union free school
district.
1016 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.

Education Law, §§ 138, 139.

appeal the commissioner of education may affirm, modify or vacate the
order of the school commissioner or the action of the local board.

The supervisor and town clerk shall be entitled each, to one dollar and
fifty cents a day, for each day’s service in any proceeding under section 125
of this article, to be levied and paid as a charge upon their town.'° [Idem,
§ 140.]

§ 21. DUTIES OF SUPERVISOR AS TO THE PROPERTY AND EF-
FECTS OF DISSOLVED SCHOOL DISTRICTS.

1. When a district is divided into portions, which are annexed to other
districts, its property shall be sold by the supervisor of the town, within
which its school-house is situated, at public auction, after at least five days’
notice.

2. Such notice shall be given by posting the same in three or more
public places of the town in which the school-house is situated and in one
conspicious place in the district so dissolved.

3. The supervisor, after deducting the expenses of the sale, shall apply
its proceeds to the payment of the debts of the district, and apportion the
residue, if any, among the owners or possessors of taxable property in the
district, in the ratio of their several assessments on the las: corrected assess-
ment-roll of the towns, and pay it over accordingly. [Education Law
(L. 1910, ch. 140) § 138.]

The supervisor of the town within which the school-house of the dis-
solved district was situated may demand, sue for and collect, in his name
of office, any money of the district outstanding in the hands of any of its
former officers, or any other person; and, after deducting his costs and ex-.
penses, shall report the balance to the school commissioner who shall appor-
tion the same equitably among the districts to which the parts of the dis-
solved district were annexed, to be by them applied as their district meeting
shall determine. [Education Law (L. 1910, ch. 140), § 139.]

§ 22. DISTRICTS IN TWO OR MORE TOWNS; EQUALIZATION OF
ASSESSMENT BY SUPERVISORS.

When a district embraces parts of two or more towns, the supervisors

 

10. The compensation of supervisor and town clerk for services per-
formed in proceedings relating to the alteration of schoo” districts as pre-
scribed in the above section is exclusive of any further compensation, and the
provisions of section 85 of the Town Law fixing the compensation of town
SCHOOLS AND SCHOOL MONEYS. 1017

Education Law, § 380.

of such towns shall, upon receiving a written notice from the trustees of
such district, or from three or more persons liable to pay taxes upon real es-
tate therein, meet at a time and place to be named in such notice, which
time shall not be less than five or more than ten days from the service there-
of, and a place within the bounds of the towns so in part embraced, and pro-
ceed to inquire and determine whether the valuation of real property upon
the several assessment-rolls of said towns is substantially just as compared
with each other.

2. If it is ascertained that such assessments are not relatively equal
such supervisor shall determine the relative proportion of taxes that ought
to be assessed upon the real property of the parts of such district lying
in different towns, and the trustees of such district shall thereupon assess
the proportion of any tax thereafter to be raised, according to the deter-
mination ef such supervisors, until new assessment-rolls of the town
shall be perfected and filed, using the assessment-rolls of the several towns
to distribute the said proportion among the persons liable to be assessed for
the same. ‘

3. If such supervisors shall be unable to agree, they shall summon a
supervisor from some adjoining town who shall meet with them and unite
in such inquiry and the finding of a majority shall be the determination
of such meeting.

4. Such supervisors shall reteive for their services three dollars per
day for each day actually employed which shall be a town charge upon
their respective towns. [Education’ Law (L. 1910, ch. 140) § 414.]

§ 23. DISTRICT SUPERINTENDENTS OF SCHOOLS; POWERS AND DUTIES
OF BOARDS OF SUPERVISORS AS TO SUPERVISORY DISTRICTS,
Office of district superintendent of schools created.—The office of dis:
trict superintendent of schools is hereby created to begin on the first day
of January, nineteen hundred and twelve. [Education Law, § 380, as
amended by L. 1910, ch. 607, in effect January 1, 1912. |
Supervisory districts—1. The territory embraced in the school com-
missioner districts of the state outside of cities and of school districts of
five thousand population or more, which employ a superintendent of
schools, shall be organized and divided into supervisory districts. In
the formation or division of such territory into such districts no town
shall be divided. The territory of such districts must be contiguous and
compact and towns shall be arranged in districts so that there shall be as
equal a division of the territory and number of school districts as may
be practicable.
2. In a county entitled to two or more supervisory districts the school
1018 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.

Education Law, § 381.

commissioner of each school commissioner district in such county and
the supervisor of each town in such county shall meet at the county seat
of such county on the third Tuesday in April, nineteen hundred and
eleven, at ten o’clock in the forenoon and divide such county into the
number of supervisory distriets to which it is entitled.

3. The county clerk of such county shall give ten days’ notice, in
writing, of such meeting, to each of such school commissioners and
supervisors. The county clerk shall also call such meeting to order at
the proper hour and the school commissioners and supervisors present
shall elect from their number a chairman and a clerk.

4. A copy of the proceedings of such meeting showing the super-
visory districts formed and naming the towns composing each of such
districts, certified by the chairman and clerk, shall be deposited by the
clerk of such meeting in the office of the clerk of the county immedi-
ately after the close of the meeting. The county clerk on reccipt of the
same shall forward a certified copy thereof to the commissioner of edu-
cation.

5. The number of supervisory districts into which each county shall
be organized or divided is as follows:

a. Ilamilton, Putnam, Rockland, Schenectady, each one;

b. Chemung, Fulton, Genesee, Montgomery, Nassau, Schuyler,
Seneca, Yates, each two;

ec. Albany, Columbia, Cortland, Essex, Greene, Livingston, Niagara,
Orange, Orleans, Rensselaer, Schoharie, Suffolk, Sullivan, Tioga,
Torapkins, Warren, Wyoming, each three ;

d. Broome, Clinton, Dutchess, Franklin, Herkimer, Lewis, Madison,
Monroe, Ontario, Saratoga, Ulster, Washington, Wayne, Westchester.
each four;

e. Allegheny, Cattaraugus, Cayuga, Chenango, Erie, Onondaga,
Oswego, each five;

f. Chautauqua, Delaware, Jefferson, Otsego, each six;

g. Oneida, Steuben, each seven;

h. Saint Lawrence, eight districts. [Subd. 5, amended by L. 1919,
ch, 300. ]

6. The district superintendents of two or more supervisory districts
in a county may unite in a petition to the board of supervisors of the
county for a change in the boundaries of such districts by including or
excluding one or more towns, stating the reasons for such change, and
if such change conforms to the territorial requirements of subdivision
one of this section, the board of supervisors may, by resolution, change
such listricts in accordance with such petition. A copy of such reso-
lution, certified by the chairman and clerk of the board of supervisors,
shall Le deposited by the clerk in the office of the clerk of the county,
The ccunty clerk on receipt of the same shall forward a certified copy
thereof to the commissioner of education. [Education Law, § 381, as
amended by L. 1910, ch. 607; subd. 6 added by L. 1916, ch. 238.1]
SCHOOLS AND SCHOOL MONEYS. 1019
Education Law, §§ 382, 383.

§ 24. SCHOOL DIRECTORS; ELECTION OF DISTRICT SUPERINTENDENTS;
VACANCIES.

Schcol directors. 1. Each town included -within a supervisory dis-
trict shall have two school directors who shall serve for terms of four
years each. The school directors who are in office when this act takes
effect shall continue in office until their successors are chosen as pro-
vided by law. School directors shall be elected at the town meetings
held in the years next succeeding the expiration of the terms of the
school directors in office when this act takes effect and one director
shall be elected at the town meeting held in every fourth year thereafter.
Such directors and their successors in office shall serve for terms of four
years each to commence on the first day of January following their
election. Such directors shall be elected in the same manner that town
officers are elected at town meetings held under the provisions of the
town law, and the provisions of the election law relating to the nomina-
tion and election of such town officers shall apply to the nomination and
election of such directors. [Subd. 1, as amended by L. 1920, ch. 285.]

2. A school director shall vacate his office by removal from the town
or by filing a written resignation with the town clerk. A vacancy in
the office of school director shall be filled by the town board of the town
in which such vacancy exists, for the remainder of the unexpired term.
If the town fails to elect a director a vacancy shall be deemed to exist in
such office,

3. A school director before entering upon the discharge of the duties
of his office, and not later than thirty days after the date on which he
was elected to office, shall take the oath of office prescribed by the con-
stitution. Such oath may be taken before a justice of the peace or a
notary public, and must be filed in the office of the clerk of the town.

4. A school director shall receive two dollars per day for each day’s
service and his necessary traveling expenses, and the town board of the
.own for which such director is chosen shall audit and allow the same.!™
| Education Law, § 382, as amended by L. 1910, ch. 607, and L. 1916,
ch. 168, in effect April "7, 1916.]

Election of district superintendent. 1. The school directors of the
several towns composing a supervisory district shall meet for organiza-
tion at eleven o’clock in the forenoon on the third Tuesday in May fol-

 

10a. School director is not entitled to traveling expenses incurred in going to
and from the town for which he was elected. He is only entitled to traveling expenses
where he attends meetings of the board outside of the town. Rept. of Atty. Genl.,
May 25, 1911. Women are not eligible to the office of school director, since it is 8
town office. Rept. of Atty. Genl., March 6, 1911. The only purpose for which a
board of school directors exists is to elect a district superintendent of schools. If
the board fails to elect at the time specified, the duty continues and will not be
terminated by an adjournment sine die. Opinion of Com’n’r of Education (1918),
16 State Dept. Rep. 336.
1030 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.

Education Law, § 328.

lowing their election. Such meeting shall be held at a place in the super-
visory district, designated by the county clerk, at least ten days previous
to the date thereof. At the time the county clerk designates such place
of meeting he shall also mail a notice of the time and place of such meet-
ing to each school director of the district. The school directors present
at such meeting shall organize by electing from their number, a chair-
man, a clerk and two inspectors of election. The school directors at
such meeting shall designate a place for holding future meetings.

2. The school directors of the several towns composing a supervisory
district shall be a board of school directors, and such board of directors
shall meet at eleven o’clock in the forenoon on the third Tuesday in
August, nineteen hundred and eleven, and on the third Tuesday in June
every fifth year thereafter, and elect a district superintendent of schools.
The clerk of such board shall give each director at least ten days’ notice
in writing of the hour, date and place of such mecting.

3. If such directors fail to elect a district superintendent of schools
before the first day of January following the date of such meeting, and
a vacancy exists in such office, the county judge shall appoint such super-
intendent who shall serve until the board of directors shall fill such
vacancy.

4, In the election of such district superintendent the vote shall be by
ballot and the person receiving a majority of all votes cast shall be
elected." Each school director shall be entitled to one vote in such elec-
tion.

5. The clerk of such board shall file a copy of the proceedings of each
meeting and each election, certified by himself and the chairman, in the
office of the clerk of the county in which such meeting or election is held
within three days after the close thereof.

6. The county clerk on receipt of notice of the election of a district
superintendent of schools in any supervisory district of his county shall
deliver to the person elected a certificate of such election attested by his
signature with the seal of the county and shall also transmit to the com-

missioner of education a duplicate of such certificate of election.

7. When a district superintendent enters the military or naval service of the
United ‘States during the continuance of the present war, the board of school
directors of the supervisory district of such district superintendent shall designate
a person to act as the deputy of such district superintendent. This deputy shall
during the absence of said district superintendent perform all the duties and
possess the power and authority conferred by law on a district superintendent.
Such person shall also possess qualifications approved by the commissioner of
education. [Education Law, § 383, as amended by L. 1910, ch. 607; subd. 7 added
by L. 1918, ch. 107.]

Filling vacancy in the office of district superintendent——Whenever a vacancy
occurs it shall be filled for the remainder of the unxepired term by the board of
school directors. Upon direction of the commissioner of education the clerk of the
board in which the supervisory district having such vacancy is located shall imme-
diately call a special meeting of such board for the purpose of electing a district

 

11. As to what constitutes a majority, see Commr. of Education’s Opinion
(1917), 11 State Dept. Rep. 560.

Validity of election. At an election for district superintendent, one can-
didate received four votes and another eight, one of which may have been
illegal. Held, insufficient to justify a reversal or setting aside of the result
of the election. Opinion of Commr. of Education (1917), 11 State Dep. Rep.
523. See, also, Opinion of Commr. of Education (1921), 26 St. Dept. Rep. 346,
SCHOOLS AND SCHOOL MONEYS. 102T
Education Law, §§ 389, 390.

superintendent. The provisions of this title relative to the election generally of a
district superintendent of schools, including notices, filing of the proceedings and
all other matters relating to such an election, shall apply to a special election to
fill a vacancy in such office. [Education Law, § 388, as amended by L. 1910, ch.
607, in effect January 1, 1912.]

§ 25. SALARY AND EXPENSES OF DISTRICT SUPERINTENDENT.

Salary of district superintendent. 1. Each district superintendent
shall receive an annual salary from the state of eighteen hundred dol-
lars, payable monthly by the commissioner of education from moneys
appropriated therefor. [Subd. 1, amended by L. 1917, ch. 794, and L.
1919, ch. 559.]

2. The supervisors of the towns composing any supervisory district
may by adopting a resolution by a majority vote increase the salary to be
paid by such district to its district superintendent. Such supervisors
must thereupon file with the clerk of the board of supervisors a certifi-
cate showing the amount of such increase. The board of supervisors of
each county shall levy such amount annually by tax on the towns com-
posing such supervisory district within the county. [Education Law,
§ 389, as amended by L. 1910, ch. 607. ]

Expense of district superintendents. The commissioner of educa-
tion shall quarterly audit and allow the actual sworn expense incurred
by each district superintendent of schools in the performance of his
official duties, but the amount of such expense allowed shall not exceed
in any year six hundred dollars. Such expenses shall be paid by the
commissioner of education from moneys appropriated therefor.
[Education Law, § 390, as amended by L. 1910, ch. 607, and L. 1920,
ch. 421.]

§ 26. DUTIES OF TOWN CLERKS IN RESPECT TO THE COMMON
SCHOOLS; COMPENSATION AND EXPENSES A TOWN CHARGE.

It shall be the duty of the town clerk of each town:

1. To keep all books, maps, papers, and records of his office touching
common schools, and forthwith to report to the school commissioner any
loss or injury to the same.

2. To receive from the supervisors the certificates of apportionment of
school moneys to the town, and to record them in a book to be kept for
that purpose.

3. To notify forthwith the trustees of the several school districts of
the filing of each such certificate.

4, To see that the trustees of the school districts make and deposit
with him their annual reports within the time prescribed by law, and to
deliver them to the school commissioner on demand.

5. To furnish the school commissioner of the school commissioner dis-
trict in which his town is situated the names and post-office addresses of
the school district officers reported to him by the district clerks.

6. To distribute to the trustees of the school districts all books, blanks
and circulars which shall be delivered or forwarded to him by the com-
missioner of education or school commissioner for that purpose.
1022 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.

Education Law, § 340; Idem, § 341.

7. To receive from the supervisor, and record in a book kept for that
purpose, the annual account of the receipts and disbursements of school
moneys required to be submitted to the town auditors, together with the
action of the town auditors thereon, and to send a copy of the account and
of the action thereon, by mail, to the commissioner of education whenever
required by him, and to file and preserve the vouchers accompanying the
account.

8. To receive and to record, in the same book, the supervisor’s final ac-
count of the school moneys received and disbursed by him, and deliver a
copy thereof to such supervisor’s successor in office.

9. To receive from the outgoing supervisor, and file and record in the
same book, the county treasurer’s certificate, that his successor’s bond has
been given and approved.

10. To receive, file and record the descriptions of the school districts,
and all papers and proceedings delivered to him by the school commissioner
pursuant to the provisions of this chapter.

11. To act, when thereto legally required, in the erection or alteration
of a school district, as in article five of this chapter provided.

12. To receive and preserve the books, papers and records of any dis-
solved school district, which shall be ordered, as hereinafter provided, to
be deposited in his office.

13. To perform any other duty which may be devolved upon him by
this chapter, or by any other act touching common schools. [Educa-
tion Law (L. 1910, ch. 140) § 340; renumbered § 364, by L. 1917, ch.
328; again renumbered § 340, by L. 1918, ch. 199.]

Expenses and disbursements a town charge.—The necessary expenses
and disbursements of the town clerk in the performance of his said
duties, are a town charge, and shall be audited and paid as such. [Idem,
§ 341; renumbered § 365, by L. 1917, ch. 328; again renumbered § 341,
by L. 1918, ch. 199.]

§ 27. UNPAID SCHOOL TAXES, COLLECTOR TO RETURN ACCOUNT OF TO

TRUSTEES; TRUSTEES TO TRANSMIT ACCOUNT WITH CER-
TIFICATE TO COUNTY TREASURER.

If any tax on real estate placed upon the tax-list and duly delivered to
the collector, or the taxes upon nonresident stockholders in banking associ-
ations organized under the laws of congress, ” shall be unpaid at the time

 

12. Bank shares, now taxed. Under section 24 of the Tax Law, ante, p. 520,
the rate of tax upon the shares of stock of banks and banking asso-
ciations is one per centum upon the value thereof. Such tax is in lieu of all
other taxes including those for school purposes, Under such section the board
of supervisors is required to ascertain the tax rate of each of the several
towns, village, city, school and other tax districts in the county for ' the
SCHOOLS AND SCHOOL MONEYS. 1023

Education Law, §§ 433, 434, 435.

the collector is required by law to return his warrant, he shall deliver to
the trustees of the district an account of the taxes remaining due, contain-
ing a description of the lands upon which such taxes were unpaid as the
same were placed upon the tax-list, together with the amount of the tax so
assessed, and upon making oath before any justice of the peace or judge
of a court of record, notary public or any other officer authorized to ad-
minister oaths, that the taxes mentioned in any such account remain un-
paid, and that, after diligent efforts, he has been unable to collect the same,
he shall be credited by said trustees with the amount thereof. | Education
Law (L. 1910, ch. 140) § 433.]

Upon receiving any such account from the collector, the trustees shall
compare it with the original tax list, and, if they find it to be a true tran-
script, they shall add to such account their certificate, to the effect that
they have compared it with the original tax list and found it to be correct,
and shall immediately transmit the account, affidavit and certificate to the
treasurer of the county. [Idem, § 434.]

§ 28. COUNTY TREASURER TO PAY TO COLLECTOR OF SCHOOL
DISTRICT AMOUNT OF UNPAID TAXES RETURNED.

Out of any moneys in the county treasury, raised for contingent ei-
penses,?? or for the purpose of paying the amount of the taxes so returned

 

year for which the tax is imposed and the proportion of the tax on bank stock
to which each of such districts shall be respectively entitled. This proportion
is to be ascertained by taking such proportion of the tax upon the shares
of stock as the tax rate of the school district shall bear to the aggregate
tax rate of all the tax districts in which such shares of stock shall be taxable.
The evident meaning of this provision is that if the tax rate of a town is
five mills, that of a village is five mills, and that of a school district is
five mills, that the school district will be entitled to one-third of the tax
paid upon the stock of the bank located in the tax district. The board of
supervisors is required by such section of the Tax Law to issue its warrant
to the county treasurer directing him to pay to the collector or treasurer of
the school district the proportion of such tax ascertained by it to belong to
such school district.

13. Duty of county treasurer. Under the provisions of the above section,
which require the treasurer of a county to pay to the trustees of a school
district, out of any moneys in the county treasury raised for contingent ex-~
penses, the amount of taxes upon lands of non-residents returned by such
trustees as unpaid, the authority of the county treasurer is limited to the
particular fund specified; and if no such fund has been raised, or if it has been
exhausted, he has no authority, and consequently no duty is imposed upon
him to pay.

It is provided by section 242 of the County Law, ante, p. 50, that: “In
order to enable the county treasurer to pay such expenses as may become
1024 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.

Edueation Law, §§ 436-438.

unpaid, the treasurer shall pay to the district treasurer, if there be such
an officer, otherwise to the collector, the amount of the taxes so returned
as unpaid, and if there are no moneys in the treasury applicable to such
purpose, the board of supervisors, at the time of levying said unpaid
taxes, as provided in the next section, shall pay to the district treasurer,
if there be such an officer, otherwise to the collector of the school district
the amount thereof which has been relevied, by voucher or draft on the
county treasurer, in the same manner as other county charges are paid,
end the collector shall be charged by the trustees with the amount so
relevied. [Idem, § 435, as amended by L. 1910, ch. 284, and L. 1915,
ch. 136, in effect Sept. 1, 1915. ]

§ 29. COUNTY TREASURER TO LAY ACCOUNT OF UNPAID SCHOOL
TAXES BEFORE BOARD OF SUPERVISORS; ACTION OF
BOARD THEREON; COLLECTION OF SUCH TAXES.

Duties of board of supervisors——Such account, affidavit and certificate
shall be laid by the county treasurer befcre the board of supervisors of the
county, who shall cause the amount of such unpaid taxes, with seven per
cent. of the amount in addition thereto, to be levied upon the lands on
which the same were imposed; and if imposed upon the lands of any in-
corporated company, then upon such company ; and when collected the same
shall be returned to the county treasurer to reimburse the amount so ad-
vanced, with the expenses of collection. [Education Law, (I.. 1910, ch.
140) § 436.]

When owner may pay school tax to county treasurer—Any person whose
lands are included in any such account may pay the tax assessed thereon,
with five per centum added thereto, to the county treasurer, at any time
before the board of supervisors shall have directed the same to be levied.
[Idem, § 437.]

Collection of unpaid tax, how made.—The same proceedings in all
respects shall be had for the collection of the amount so directed to be
raised by the board of supervisors as are provided by Jaw in relation to the
county taxes; and, upon a similar account, as in the case of county taxes
of the arrears thereof uncollected, being transmitted by the county treas-
urer to the comptroller, the same shall be paid on his warrant to the treas-
urer of the county advancing the same; and the amount so assumed by the
state shall be collected for its benefit, in the manner prescribed by law in
respect to the arrears of county taxes upon land of non-residents; or if any
rart of the amount so assumed consisted of a tax upon any incorporated

 

payable from time to time, the board of supervisors shall annually cause
such sum to be raised in advance in their county, as they may deem necessary
for such purpose.”
SCHOOLS AND SCHOOL MONEYS. 1025
Education Law, §§ 855-857.

company, the same proceedings may also be had for the collection thereof
as provided by law in respect to the county taxes assessed upon such com-
pany. [Idem. § 438.]

§ 30. SPECIAL PROVISIONS OF THE EDUCATION LAW APPLI-
CABLE TO TOWN OFFICERS.

Liability of officers for loss of school moneys.—Whenever the share of
school moneys er any portion thereof, apportioned to any town or school
district, or any money to which a town or school district would have been
entitled, shall be lost, in consequence of any wilful neglect of official duty
by any school commissioner, town clerk, trustees or clerks of school districts,
the officer guilty of such neglect shall forfeit to the town, or schoo!
district so losing the same, the full amount of such loss with intere-t
thereon. [Education Law (L. 1910, ch. 140) § 855.]

Penalty for refusal or neglect to sue for penalty imposed for benefit of
schools.—Where any penalty for the benefit of a school district, or of the ~
schools of any school district, town, school commissioner district or courty,
shall be incurred, and the officer, whose duty it is-by law to sue for the
same, shall wilfully and unreasonably refuse or neglect to sue for the same,
such officer shall forfeit the amount of such penalty to the same use, and it
shall be the duty of his successor in office to sue for the same. [Idem,
§ 856.]

Actions against school officers, including supervisors.—1. In any activu
against school officers, including supervisors of towns, in respect to their
duties and powers under this act, for any act performed by virtue of or
under the color of their offices, or for any refusal or omission to perform
any duty enjoined by law, and which might have been the subject of an
appeal to the commissioner of education; no costs shall be allowed to the
plaintiff, in cases where the court shall certify that it appeared on the tria!
that the defendants acted in good faith.

2.-The provision of subdivision one of this section shall net extend {o
suits for petialties, nor to suits or proceedings to enforce the decisions of
the commissioner of education. [Idem, § 857.]
10254 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.

Education Law, §§ 610, 611.

CHAPTER LXIX-A

FARM SCHOOLS IN COUNTIES.

Establishment of farm schools.
. Acquisition of lands and erection of buildings.
- Board of managers.
. Powers and duties of board.

SEcTION 1.
2.
3
4
5. Powers of superintendent; discipline of school.
6
7
8
9

. Course of instruction.
. State aid.
. Children admitted to such school.
. Agreements with parents and guardians to pay expense of maintenance;
compulsory support.
10. Maintenance by county.
11. Reports to board of supervisors; inspection.
12. Powers of commissioner of education and state department of education.

§ 1. ESTABLISHMENT OF FARM SCHOOLS.

The board of supervisors of any county outside of the city of New
York may adopt a resolution by a majority vote of the members of the
board establishing a farm school for the purpose of giving instruction
in the trades and in industrial, agricultural and homemaking subjects
to children of the county not more than eighteen nor less than eight
years of age who may be admitted thereto as provided by law. [Edu-
cation Law, § 610, as added by L. 1915, ch. 307.]

§ 2. ACQUISITION OF LANDS AND ERECTION OF BUILDINGS.

Upon the adoption of the resolution as provided in the foregoing sec-
tion the board of supervisors shall purchase land in some conveniently
accessible place in the county to be used for the purpose of such school.
Thev may acquire such land by gift, purchase or condemnation. ‘The
land when so acquired shall be held in the name of the county for the
benefit of such school. Upon the acquisition of such land the board of
supervisors shall erect the necessary buildings and suitably equip them
for use. Such board may also provide for the improvement of existing
buildings and make such repairs and alterations on the buildings upon
the land used for the purpose of the school as may be necessary for the
maintenance and operation thereof. [Education Law, § 611, as added
by L. 1915, ch. 307.]
FARM SCHOOLS IN COUNTIES. 1025b
Education Law, §§ 612, 613.

§ 3. BOARD OF MANAGERS.

The board of managers of such school shall consist of not less than
five members and shall be composed of all the city, village and district
superintendents of schools of the county in which it is located, in addi-
tion to such other members as may be necessary to make a total mem-
bership of such board of not Jess than five. Such additional members
of the board shall be appointed by the board of supervisors from the.
resident taxpayers of the county, who shall serve for terms of four years
commencing on the first day of January succecding their appointment.
Such terms shall be so arranged that the terms of no two of the mem-
bers so appointed shall expire in the same year, and for this purpose the
terms of the members first appointed hereunder shall be as follows:
In case one member shall be appointed, the term shall be four years, in
ease two members shall be appointed, the terms shall be four and two
years, respectively, in case three members shall be appointed, the terms
shall be four, three and two years, and in case four members shall be
appointed, the terms shall be four, three, two and one year, respectively,
which terms shall commence on the first day of January succeeding their
appointment, and their successors shall be appointed for full terms of
four years as above provided. Appointments to fill vacancies shall be
for the unexpired portion of the terms. The members of the board
shall serve without compensation. They shall receive their necessary
expenses incurred in the performance of their duties. The amount of
such expenses shall be charged against the county and shall be paid in
the same manner as other county charges. The board shall organize by
the election of one of its members as chairman and another as secretary.
[Education Law, § 612, as added by L. 1915, ch. 307.]

§ 4. POWERS AND DUTIES OF BOARD.

The board of managers of such school shall be responsible for the
operation and maintenance of the school; employ a superintendent and
such teachers and assistants as may be required for the operation and
maintenance of the school when authorized so to do by the board of
1025e¢ SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.

Education Law, §§ 614, 615.

supervisors of the county; fix the compensation of such superintendent,
teachers and assistants within the amount made available therefor by
the said board of supervisors; prescribe rules and regulations for the
management of the school and for the purpose of carrying into effect
the object thereof; provide for the detention, maintenance and instruc-
tion of all children who are admitted to the school. [Education Law,
§ 613, as added by L. 1915, ch. 307.]

§ 5. POWERS OF SUPERINTENDENT; DISCIPLINE OF SCHOOL.

The superintendent of the school shall, subject to the regulations of
the hoard of managers:

1. Have the general management of the school and the land, buildings
and equipment thereof, and devote his entire time to its affairs ;

2. Be responsible for the welfare of pupils of the school and see that
the regulations and directions of the board of managers are carried into
effect ;

3. Supervise and direct the meihods of instruction and the perform-
ance of duties by the teachers, assistants and employees of such school ;

4, Prescribe rules for the government and discipline of the pupils of
the school and cause such rules to be enforced ;

5. Protect and care for the property of the school;

6. Give special attention to the proper instruction, detention, re-
straint, discipline, comfort and physical and moral welfare of the pupils
of the school, and perform such other duties as may be required of him
by the board of managers, with a view of carrying out the purposes of
this article. [Education Law, § 614, as added by L. 1915, ch. 307.]

§ 6. COURSE OF INSTRUCTION.

The board of managers shall prescribe the courses of instruction to
be followed in such school, subject to the approval of the commissioner
of education. Such instruction shall include instruction in agriculture,
mechanic arts, trades and homemaking. The provisions of this chapter
and of the regulations of the education department relating to voca-
tional instruction in the public schools shall apply to such school so far
FARM SCHOOLS IN COUNTIES, 1025d

Education Law, §§ 616, 617, 618.

as they do not conflict with the provisions of this article and may be
made applicable thereto. [Education Law, § 615, as added by L. 1915,
ch. 307.]

§ 7%. STATE AID. :

There shall be annually apportioned to such school from the moneys
appropriated by the state legislature for the support of the public
schools of the state the sum of one thousand dollars and an additional
sum of two hundred dollars for each teacher employed therein for a
period of thirty-six weeks during each school year, whose entire time is
given to the instruction of pupils in such school. No such apportion-
ment shall be made unless there are at least fifteen pupils enrolled and
actually in attendance at such school during such period of thirty-six
weeks, and unless such school maintains an organization and a course
of study and is conducted in a manner approved by the commissioner of
education. [Education Law, § 616, as added by L. 1915, ch. 307. ]

§ 8. CHILDREN ADMITTED TO SUCH SCHOOL.

Children not more than eighteen nor less than eight years of age may
be admitted to or received in such school, either (1) upon the applica-
tion of the parents or guardians having the legal custody or control of
such children, accompanied by the written consent of such parents or
guardians, or (2) upon commitment thereto as truants or incorrigible
pupils as provided in section six hundred and thirty-five of this chapter,
or (3) upon commitment thereto as juvenile delinquents as provided by
law, provided that children convicted of crime shall not be committed
to such school. Children who have no homes or who are without proper
parental control or who are under improper guardianship may be sent
to and received in such school, in the same manner and under the same
authority as in case of other children who are improperly provided for
at home. [Education Law, § 617, as added by L. 1915, ch. 307.]

§ 9. AGREEMENTS WITH PARENTS AND GUARDIANS TO PAY EX-
PENSE OF MAINTENANCE; COMPULSORY SUPPORT.

The board of managers may make an agreement with the parents or

guardian of a child in such school for the payment of an amount therein
10256 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.

Education Law, §§ 619, 619-a.

specified for the instruction and maintenance of such pupil. An appli-
cation for the admission of a child with the consent of the parents or
guardian shall not be granted unless suitable provision be made for the
clothing for such child. The amount agreed to be paid for instruction,
maintenance and clothing shall be secured to the satisfaction of the
board of managers. Such board shall ascertain by investigation the
financial ability of parents, guardians, and other persons legally liable
for the support of pupils admitted to such school upon commitment, and
may demand of such parents, guardians or persons the payment of an
amount reasonably sufficient to pay all or a portion of the cost of the
instruction, maintenance and clothing of such pupils. The board may
proceed against such parents, guardians or persons, by proper suit or
proceeding in a court of competent jurisdiction for the recovery of the
amount agreed or required to be paid, as herein provided. The amount
so recovered, after the payment of the necessary costs and expenses of
such suit or proceeding, shall be paid into the treasury of the county,
and shall be applied to the payment of the cost of the instruction, main-
tenance and clothing of such pupils. [Education Law, § 618, as added
by L. 1915, ch. 307.]

§ 10. MAINTENANCE BY COUNTY.

The board of supervisors shall provide for the maintenance of such
school, the repair and improvement of the lands and buildings used or
occupied thereby, and the equipment thereof with necessary machinery,
tools, apparatus and supplies. The cost thereof, and the expenses in-
curred for such purposes, shall be charges against the county and shall
be audited and paid in the same manner as other charges against the
county. The maintenance herein provided for shall include the sup-
port, instruction, care, board and clothing of pupils and such other
expenses as are necessarily incurred in the operation of the school.
[Education Law, § 619, as added by L. 1915, ch. 307.]

§ 11. REPORTS TO BOARD OF SUPERVISORS; INSPECTION.
The board of managers of such school shall report in writing to the
board of supervisors of the county when called upon to do so, and shall
FARM SCHOOLS IN COUNTIES. 1025f

Education Law, § 619-b.

transmit to the clerk of the board, annually, on or before the thirtieth
day of June. Such annual report shall state such facts in respect to
the school as the board of managers may deem advisable and as the
board of supervisors may require. The board of supervisors may, by
a committee or any of its members or appointees, inspect such school,
and for such purpose may enter upon the land and into the buildings of
such school at all reasonable times. [Education Law, § 619a, as added
by L. 1915, ch. 307.]

§ 12. POWERS OF COMMISSIONER OF EDUCATION AND STATE DE-
PARTMENT OF EDUCATION.

A school established as provided herein shall be deemed a part of
the public school systém of the state, and shall be subject to the super-
vision and control of the commissioner of education and the state de-
partment of education in the same manner as other public schools, and
shall not be subject to any of the laws of the state relating to charitable
or penal institutions. [Education Law, § 619b, as added by L. 1915,
ch. 307.]
102G SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.

Education Law, § 360.

CHAPTER LXX.
GOSPEL AND SCHOOL LOTS.

Section 1. Dutiees of supervisors as to gospel and school lots.
2. Sale of gospel or school lots on division of town.
3. Payment of proceeds of sale of gospel or school lots.
4, Apportionment of gospel and school lot funds among school districts.

§ 1. DUTIES OF SUPERVISORS AS TO GOSPEL AND SCHOOL LOTS.

The supervisors shall have power, and it shall be their duty,

1. To take and hold possession of the gospel and school lots of their
respective towns.

2. To lease the same for such time not exceeding twenty-one years, and
upon such conditions as they shall deem expedient.

3. To sell the same with the advice and consent of the inhabitants of the
town, in town-meeting assembled, for such price and upon such terms of
credit as shall appear to them most advantageous.

4. To invest the proceeds of such sales in loans, secured by bond and
mortgage upon unincumbered real property of the value of double the
amount loaned.

5. To purchase the property so mortgaged upon a foreclosure, and to
hold and ‘convey the property so purchased whenever it shall become
necessary.

6. To re-loan the amount of such loans repaid to them, upon the like
security.

7. To apply the rents and profits of such lots, and the interest of the
money arising from the sale thereof, to the support of schools, as may be
provided by law, in such manner as shall be thus provided.

8. To render a just and true account of the proceeds of the sales and the
interest on the loans thereof, and of the rents and profits of such gospel
and school lots, and of the expenditure and appropriation thereof, on the
last Tuesday next preceding the annual town-meeting in each year, to the
town. board.

9. To deliver over to his successor in office, all books, papers and
securities relating to the same, at the expiration of their respective offices.
GOSPEL AND SCHOOL LOTS. 1027

Education Law, §§ 361, 362, 524, 525.

10. To take therefor a receipt, which shall be filed in the clerk’s office
of the town; and,

1i. To commence and prosecute in and by the name and style of the
supervisor of the town any suits against any of his predecessors in office
or against any other person to recover any debt, dues or demands in any
wise arising from such public lot; and no such suit shall abate by the
death, resignation or removal from office of the said supervisor but the
same shall and may be prosecuted to judgment and execution by his
successor in office. [Education Law (L. 1910, ch. 140), § 360, subd.
10-20, as renumbered § 370, by L. 1917, ch. 328, and again renum-
bered § 360, by L. 1918, ch. 199.]

§ 2. SALE OF GOSPEL OR SCHOOL LOTS ON DIVISION OF TOWN.

Whenever a town having lands assigned to it for the support of the
gospel or of schools, shall be divided into two or more towns, or shall
be altered in its limits by the annexing of a part of its territory to other
towns, such lands shall be sold by the supervisor of the town, in which
such lands were included immediately before such division or altera-
tion; and the proceeds thereof shall be apportioned between the towns
interested therein, in the same manner as the other public moneys of
towns, so divided or altered, are apportioned. [Education Law (L.
1910, ch. 140), § 361, as renumbered § 371, by L. 1917, ch. 328, and
again renumbered § 361, by L. 1918, ch. 199.]

§ 3. PAYMENT OF PROCEEDS OF SALE OF GOSPEL OR SCHOOL LOTS.

The shares of such moneys, to which the towns shall be respectively
entitled, shall be paid to the supervisors of the respective towns, and
shall thereafter be subject to the provisions of this article. [Education
Law (L. 1910, ch. 140), § 362, as renumbered § 372, by L. 1917, ch.
328, again renumbered § 362, by L. 1918, ch. 199.]

§ 4. APPORTIONMENT OF GOSPEL AND SCHOOL LOT FUNDS
AMONG SCHOOL DISTRICTS.

It shall be lawful for the supervisor of any town having money arising
from the sale of gospel lands, and known as gospel funds, to apportion such
funds among the several school districts of his respective town as hereinafter
provided. [Education Law, (L. 1910, ch. 140) § 524.]

Authorization of apportionment of gospel funds.—1. The town board
of any town having a gospel fund of five hundred dollars or less may
authorize the supervisor of the town to apportion such fund among the
several school districts of the town.

2. The voters of any town having a gospel fund of more than five
hundred dollars may at any regular or special town meeting authorize the
supervisor of the town to apportion such fund among the several school
districts of the town. [Idem, § 525.]
1028 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS.
Education Law, §§ 526-528.

Payment of apportionment of gospel funds:—When such apportion-
ment is authorized the supervisor shall pay to the collector, or if the district
has a treasurer to the treasurer, of the several school districts of his town
its pro rata share according to the aggregate school attendance of each
school district in the preceding year. [Idem, § 526.]

Bond required of collector or treasurer—The collector or the treasurer
if the district has a treasurer, of each of such school districts shall execute
and file with the supervisor of such town a bond of twice the amount of
such apportionment with sufficient sureties, to be approved by such
supervisor. [Idem, § 527.]

Application of moneys.—Such moneys shall be held by such collector
or treasurer and paid upon the written order of the trustee of the district
for such purposes as the annual or a special meeting of the district shall
direct. [Idem, § 528.]
PART X.

JURORS.

CHAPTER LXXI.

GRAND AND TRIAL JURORS; COMMISSIONERS OF JURORS.

Section 1.

wm 09

CO 3 > OF

9.
10.
11.
12.
138.
14.
15.
16.
17.
18.
19.
20.
21,
22.
23.

Preparation of grand jury lists by board of supervisors;. persons
to be placed on lists.

. Increase in number of jurors; duties of supervisors.
. Inserting new names in box when list is nearly exhausted.
. Supervisor, town clerk and assessors to make lists of trial jurors;

names to be taken from assessment-roll.

. Qualifications of trial jurors.

. Who are disqualified to serve as trial jurors.

. Who are entitled to be exempted from jury service.
. Duplicate jury lists to be made and filed.

Proceedings where county clerk does not receive lists.
Jurors so returned to serve for three years.
Commissioner of jurors; office established; appointment.
Term of office; salary; rooms and accommodations.
Assistants and clerks.

Selection of trial jurors; aid of tax officers.
Preparation of list of trial jurors; notice to jurors.

Lists to be filed.

List of grand jurors.

Drawing jurors; ballots.

Removal of commissioner.

Application of act.

Fees of trial jurors.

Supervisors may make allowance to grand and trial jurors.
Extra allowance to trial jurors.

$ 1. PREPARATION OF GRAND JURY LISTS BY BOARD OF SUPER.
VISORS; PERSONS TO BE PLACED ON LISTS.

Unless otherwise specially provided by law, the supervisors of the
several counties of this state, except the county of New York, at their

1029
1030 JURORS.

Code Criminal Procedure, §§ 229-b-229-d.

annual meetings in each year, shall prepare a list of the names of three
hundred persons, to serve as grand jurors at the terms of the supreme
court and county courts, to be held in their respective counties during the
then ensuing year and until new lists shall be returned [Code Crim. Pro.,
§ 229-a.]

In preparing such lists the said boards of supervisors shall select such
persons only, whose names appear upon the last assessirent roll of the town
or ward, as they know, or have good reason to believe, are possessed of the
qualifications by law required of persons to serve as jurors for the trial
of issues of fact, and are of approved integrity, fair character, sound judg-
ment and well informed. [Idem, § 229-b.]

Persons exempt by law from serving as jurors for the trial of issues
of fact, shall not be placed on any list of grand jurors, required by the
preceding provisions.? [Idem, § 229-c.]

The lists so made out by the said boards of supervisors shall contain

 

1. Duties of supervisors as to grand juror lists. This section of the Criminal
Code makes it the duty of boards of supervisors to prepare a grand jury list
for the county at each annual session of the board. The number of grand
jurors, unless increased as hereinafter provided, is limited to three hundred.
The board should, by a committee appointed for that purpose, apportion the
grand jurors among the several towns and the wards of the several cities
according to the population thereof, or by some other just and equitable method
of apportionment. The apportionment having been made, it is the usual practice
for the supervisor of each town and ward to present to the board a list of the
persons who, in his judgment, are qualified to serve as grand jurors. These
lists are usually accepted by the board, although the primary duty of making
the selection rests with the board itself. Notwithstanding the practice of each
supervisor preparing the list from his own town or ward, selection of the
jurors and the adoption and preparation of the list is the act of the board and
this should plainly appear upon the record, and in the public proceedings of the
board.

There is usually in each board a committee on grand juries. The lists
presented to the board by the individual supervisors should be submitted to
this committee, and the committee should carefully consider the qualifications
of the persons included in each list, and thereupon consolidate the lists and
make a report to the board. Upon the adoption of the report by the board
the lists as so consolidated and prepared will become the grand jury list for the
county. Such list should then be certified by the clerk of the board of super-
visors and filed in the office of the clerk of the county on or before the 10th day
of December in each year.

The above statute as to the preparation of grand jury lists by boards of super-
visors does not apply where the office of commissioner of jurors has been
established, under L. 1899, ch. 441. See post, p. 1036.

2. As to exemptions from serving as jurors for the trial of issues of fact,
see Judiciary Law, § 546, post, p. 1032.
GRAND AND TRIAL JURORS; COMMISSIONERS OF JURORS. 1031
Code Criminal Procedure, §§ 229-f, 229-g, 229-r.

the christian and surnames, at length, of the persons named therein, their
respective places of residence, and their several occupations; it shall be
certified by the clerk of the board of supervisors and shall be filed in the
office of the clerk of the county on or before the tenth day of December
in each year.* [Idem, § 229-d.]

§ 2. INCREASE IN NUMBER OF JURORS; DUTIES OF SUPERVI-
SORS.

If the county judge of any county of this state, except the county of
New York, shall at any time be of opinion that a greater number of persons
than that herein required, should be returned to serve as grand jurors in
their county, he may, by an order under his hand, direct such number
to be increased ; but such increase shall not exceed one-half the number
herein required ‘to be selected for such county. [Idem, § 229-f.]

Upon any order which is authorized by the two last sections, being served
upon the board of supervisors, they shall at their next annual meeting,
increase the number of persons returned by them to serve as giand jurors,
pursuant to such order. [Idem, § 229-g.]

§ 3. INSERTING NEW NAMES IN BOX WHEN LIST IS NEARLY EX-
HAUSTED.

When it shall appear upon the representation of a county clerk, that
there are less than fifty names remaining in the box containing the names
of persons returned to serve as grand jurors, the judge of the county court
may select from the citizens of the county qualified to serve as grand jurors,
and who shall not have served during the preceding twelve months, the
names of fifty persons, to serve as grand jurors.

Such names shall be certified to the county clerk, who shall file such
certificate in his office, and shall cause such names to be written on
distinct pieces of paper, and deposited in the box containing any undrawn
names of persons returned to serve as grand jurors, or if there be none,
then in a proper box; and from such box, in either case, the clerk shall
draw a grand jury to serve for any court to be held ‘itimodintely after such
drawing.

 

3. Defective list. Where it appears that a few persons named in a grand
jury list are not possessed of the qualifications required by law, the whole list
is not therefore to be declared irregular and null and void, especially when it
appears that the names were so added without fraud or design, but by accident
or oversight. Dolan v. People, 64 N. Y. 485.

4. The power formerly conferred upon the judges of common pleas of the
several counties is now imposed upon the county judge of the county.
1032 JURORS.

Judiciary Law, §§ 500-502.

Such drawing shall be made at the time, and in the same manner,
in all respects, as herein provided in respect to persons returned by the
supervisors, and the persons drawn shall be summoned in like manner,
and subject to the same penalties for neglect. [Idem, § 229-r.]

+

§ 4. SUPERVISOR, TOWN CLERK AND ASSESSORS TO MAKE LISTS
OF TRIAL JURORS; NAMES TO BE TAKEN FROM ASSESS-
MENT-ROLL.

The supervisor, town clerk and assessors of each town must meet on the
first Monday of July, in the year one thousand eight hundred and seventy-
eight, and in each third year thereafter, at a place within the town,
appointed by the supervisor; or, in case of his absence, or of a vacancy in
his office, by the town clerk; for the purpose of making a list of persons to
serve as trial jurors for the then ensuing three years. If they fail to meet
on the day specified in this section, they must meet as soon thereafter as
practicable.> [Judiciary Law, § 500; B. C. & G. Cons. L., p. 2829.]

At the meeting specified in the last section, the officers present must
select from the last assessment-roll of the town, and make a list of the
names of all persons whom they believe to be qualified to serve as trial
jurors, as prescribed in this article. [Judiciary Law, § 501; B. C. & G.
Cons. L., p. 2829.]

§ 5. QUALIFICATIONS OF TRIAL JURORS.

In order to be qualified to serve as a trial juror, in a court of record, a
person must be:

1. A male citizen of the United States, and a resident of the county.

2. Not less than twenty-one, nor more than seventy years of age.

3. Assessed, for personal property, belonging to him, in his own right,
to the amount of two hundred and fifty dollars; or the owner of a free-
hold estate in real property, situated in the county, belonging to him in
his own right, of the value of one hundred and fifty dollars; or the hus-
band of a woman who is the owner of a like freehold estate, belonging
to her, in her own right,® except that in the counties of Queens and Rich-

 

5. Mere irregularities by public officers in making a list of persons to serve
as trial jurors which cannot in any way effect the rights of the parties may be
disregarded. Ferris v. People, 35 N. Y. 125. The statutes as to selecting, draw-
ing and summoning jurors are merely directory. Friery v. People, 2 Abb. Ct.
App. Dec. 215.

6. The property qualification must appear on and be evidenced by the assess-
ment rolls. Armsby v. People, 2 T. & C. 157. It was held in accordance with
GRAND AND TRIAL JURORS; COMMISSIONERS OF JURORS. 1033

Judiciary Law, § 503.

mond a person, to be qualified to serve as such trial juror, shall pussess
the property qualifications specified in subdivision three of section six
hundred eighty-six of this chapter. [Subd. amended by L. 1910, ch. 96.]

4, In the possession of his natural faculties and not infirm or decrepit.

5. Free from all legal exceptions; of fair character ; of approved integrity ;
of sound judgment; and well informed. ;

But a person who was assessed, on the last assessment-roll of the town,
for land in his possession, held under a contract for the purchase thereof,
upon which improvements, owned by him, have been made to the value of
one hundred and fifty dollars, is qualified to serve as a trial juror, although
he does not possess either of the qualifications, specified in subdivision third
of this section, if he is qualified in every other respect. [Judiciary Law,
§ 502; B. C. & G. Cons. L., p. 2829.]

§ 6. WHO ARE DISQUALIFIED TO SERVE AS TRIAL JURORS.

Hach of the following officers is disqualified to serve as a trial juror:

1. The governor; the lieutenant-governor; the governors private secre-
tary.

2. The secretary of state; the comptroller; the state treasurer; the at-
torney-general; the state engineer and surveyor; a canal commissioner: an
inspector of state prisons ; a canal appraiser ; the commissioner of education ;
the superintendent of banks; the superintendent of insurance; and: the-
deputy of each officer, specified in this subdivision.

3. A member of the legislature, during the session of the house, of which
he is a member.

4. A judge of a court of record, or a surrogate,

5. A sheriff, under sheriff, or deputy sheriff.

6. The clerk or deputy clerk of a court of record. [Judiciary Law, §
503; B. C. & G. Cons. L. p. 2830.]

§ 7. WHO ARE ENTITLED TO BE EXEMPTED FROM JURY SER-
VICE.

Each of the following persons, although qualified, is entitled to exemp-

 

this proposition that where, upon challenge of the juror, it appeared that when
he was placed on the jury list he was the owner of a farm for which he was
assessed, but was not assessed for personal property, and before the trial he
sold his farm, taking back a mortgage, that he was not eligible and that the
challenge was properly sustained. Kelly v. People, 55 N. Y. 565. Mere pos-
session of the amount of property is not enough. It must be assessed to him
upon the town assessment-roll. Valton v. Nat. L. F. Ass. Soc., 17 Abb. 268.
1034 JURORS.

Judiciary Law, § 546.

fs from service as a trial juror, upon his claiming exemption there-
rom:

1. A clergyman, or a minister of any religion officiating as such, and
not following any other calling.

2. A resident officer of, or an attendant, assistant, teacher, or other
person actually employed in a state asylum for lunatics, idiots or habit-
ual drunkards.

3. The agent or warden of the state prison, the keeper of a county
jail, or a person actually employed in a state prison or county jail, and
the keeper of every alms-house.

4. A practicing physician or surgeon, having patients requiring his
daily professional attention, a duly registered optometrist actually en-
gaged in his profession as a means of livelihood, a licensed pharmacist
actually engaged in his profession as a means of livelihood, a duly
registered veterinary surgeon actually engaged in his profession as 2
means of livelihood, and a duly licensed embalmer actually engaged in
his profession as a means of livelihood. [Subd. 4, as amended by L.
1921, ch. 703.]

5. An attorney or counselor at law regularly engaged in the practice of
the law as a means of livelihood.

6. A professor or teacher, in a college or academy, or an editor, editorial
writer, artist or reporter of a daily newspaper or press association regu-
larly employed as such and not following any other vocation.

7. A person actually employed in a glass, cotton, linen, woolen or iron
manufacturing company, by the year, month or season.

8. A superintendent, engineer, or collector on a canal, authorized by the
law of the state, which is actually constructed and navigated.

9. A master, engineer, assistant engineer or fireman, actually employed
upon a steam vessel, making regular trips.

10. A superintendent, conductor, or engineer, employed by a railroad
company, other than a street railroad company; or an operator or an assist-
ant operator, employed by a press association or a telegraph company, who
is actually doing duty in an office, or along the railroad or telegraph line
of the company or association, by which he is employed.

11. An officer, non-commissioned officer, musician or private of the
national guard of the state, performing military duty, or a person who has
been honorably discharged from the national guard, after five years’ service
in either capacity.

12. A person who has been honorably discharged from the military forces
of the state, after seven years’ faithful service therein. But in order to en-
title a person to exemption, under this subdivision, his service must have
been performed before the twenty-third day of April, eighteen hundred and
sixty-two, either as a general or staff officer, or as an officer, non-commis-
sioned officer, musician or private in a uniformed battalion, company or
troop of the militia of the state, and armed, uniformed and equipped ac-
GRAND AND TRIAL JURORS; COMMISSIONERS OF JURORS. 1035

Judiciary Law, §§ 505, 509-512.

cording to law; or a portion thereof, during that period and in that ca-
pacity, and the remainder since the twenty-third day of April, eighteen
hundred and sixty-two, as a member of the national guard of the state.

13. A member of a fire company or fire department duly organized ac-
cording to the laws of the state and performing his duties therein; or a
person who, after faithfully serving five successive years in such a fire com-
pany or fire department has been honorably discharged therefrom.

14. A duly licensed engineer of steam boilers, actually employed as
such.

15. <A person otherwise specially exempted by law. [Judiciary Law, §
546; B. C. & G. Cons. L. p. 2840. ]

§ 8. DUPLICATE JURY LISTS TO BE MADE AND FILED.

Duplicate lists of the names of the persons selected as prescribed in sec-
tion five hundred and one, showing the place of residence, and other proper
additions, of each of them, as far as those particulars can be conveniently
ascertained, must be made out and signed by the officers, or a majority of
them. Within ten days after the meeting, one of the lists must be trans-
mitted by those officers to the county clerk, and filed by him; and the other
must be filed with the town clerk. [Judiciary Law, § 505, B. C. & G. Cons.
L., p. 2831.]

§ 9. PROCEEDINGS WHERE COUNTY CLERK DOES NOT RECEIVE
LISTS.

Before depositing the ballots, the county clerk must destroy each ballot,
remaining in either of the boxes kept by him, and containing the name of
a resident of a town, for which a new list has been transmitted. [Judi-
ciary Law, § 509; B. C. & G. Cons. L., p. 2832.]

If, for any reason, the list from a town is not received by the county clerk
by the first Monday of August, he shall give immediate notice thereof to
the town clerk, and it must be transmitted as soon thereafter as practicable.
[Judiciary Law, § 510; B. C. & G. Cons. L., p. 2832.]

If, after the list from a town is received by the county clerk, it has been
or shall be lost or destroyed, he must forthwith give notice thereof to the
town clerk, and a copy of the duplicate list on file in the town clerk’s office,
certified by him to be correct, must be transmitted to the county clerk as
soon thereafter as practicable. [Judiciary Law, § 511; B. C. & G. Cons.
L., p. 2832.]

If the duplicate list, placed on file in the town clerk’s office, is also lost
or destroyed, or can not be found, a new list, to be made forthwith, as pre-
scribed for making the original list, must be transmitted to the county clerk
1036 JURORS.

Judiciary Law, § 506; L. 1899, ch. 441, § 1.

as soon thereafter as practicable; and the county clerk must prepare new
ballots, and destroy the old ballots containing the names of residents of that
town, immediately after the receipt by him of the list therefrom. [Judi-
ciary Law, § 512; B. C. & G. Cons. L., p. 2832.]

§ 10. JURORS SO RETURNED TO SERVE FOR THREE YEARS.

Each person. whose name is contained in a list. so transmitted, must,
unless he is excused or discharged, serve, as a trial juror, for three years
from the first Monday of August of that year, and thereafter until another
list from his town is received and filed. [Judiciary Law, § 506; B. C. & G.
Cons L., p. 2831.]

§ 11. COMMISSIONER OF JURORS; OFFICE ESTABLISHED; AP-
POINTMENT.

Office established.— The office of commissioner of jurors is hereby es-
tablished in and for cach of the counties of Schenectady, Saratoga, Rich-
mond, Queens, Oneida. Herkimer, Nassau and Niagara, and the board
of supervisors in any other county of the state may adopt a resolution
at its annual or a special mecting called for that purpose, to establish
the office of commissioner of jurors in such county. A copy of such reso-
lution certified by the clerk of such board of supervosors, shall be filed
in the office of the clerk of the county within ten days after its adoption
and a certified copy thereof delivered within the same time to each of the
‘officers herein authorized to appoint a commissioner of jurors for such
county.” [L. 1899, ch. 441, § 1, as amended by L. 1903, ch, 201, L.
1905, chs, 102, 510, L. 1906, ch. 221, and L. 1911, ch. 705.]

 

7. Commissioners of jurors in other counties. As to the appointment of a
commissioner of jurors in the counties of New York and Kings, and the drawing
of special juries therein, see L. 1901, ch. 602, as amended by L. 1904, ch. 458,
and L, 1906, ch. 499.

As to the office of commissioner of jurors in the county of Erie, see L. 1895,
ch. 869, as amended by L. 1896, ch. 97; L. 1897, ch. 21, and L. 1901, ch. 230, L.
1905, ch. 31, L. 1911, ch. 690, and L. 1912, ch. 147.

As to the office of commissioner of jurors in the county of Monroe, see L.
1897, ch. 346, as amended by L. 1900, ch. 565, L. 1901, ch. 877, and L. 1902, ch. 408.

Ag to the office of commissioner of jurors in the county of Oneida, see L. 1906,
ch. 484, as amended by L. 1908, ch. 179.

As to office of commissioner of jurors in Westchester county and the regu-
lation of his powers and duties, see L. 1892, ch. 491, as amended by L. 1893,
ch. 269, and L. 1904, ch. 232, as amended by L. 1907, ch. 240.

As to the office of commissioner of jurors in Rensselaer county, see L. 1913, ch. 553,
which confers upon the county clerk the duties of this office as it was established by
L. 1894, ch. 557, as amended by L. 1896, ch. 679. The act of 1894 originally applied
to both Albany and Rensselaer counties, but by L. 1900, ch. 320, § 2, it is provided
that ch. 557 of L. 1894 shall not hereafter apply to the county of Albany, but such
GRAND AND TRIAL JURORS; COMMISSIONERS OF JURORS. 1037

Idem, § 2; L. 1899, ch. 441, § 3.

Appointment.—In any county in which the office of commissioner of
jurors is established as provided in the preceding section, and in the county
of Albany, such commissioner and his successor shall be appointed in the
following manner:

1. If only one justice of the Supreme Court resides in such county, he
and the county judge and the county clerk shall make the appointment.

2. If two or more justices of the Supreme Court resid? in such county,
they and the county judge shall make the appointment.

3. If no justice of the Supreme Court resides in such county, and the
county has a separate surrogate, the county judge, surrogate and county
clerk shall make the appointment.

4, Ifno Supreme Court justice resides in such county and such county
has no separate surrogate, the county judge, district attorney, and county
clerk shall make the appointment. The first appointment shall be made in
the counties of Saratoga and Schenectady within thirty days from the date
this act shall take effect, and in the other counties to which this act applies
within thirty days after the adoption of the resolution to establish the office.
The officers herein authorized to appoint a commissioner of jurors in a
county shall constitute a board for that purpose and an appointment of a
commissioner by them must be in writing, signed by a majority of such
officers and filed in the office of the clerk of the county. [Idem, § 2, as
amended by L. 1900, ch. 320, L. 1903, ch. 201, and L. 1905, ch. 102.]

§ 12. TERM OF OFFICE; SALARY; ROOMS AND ACCOMMODATIONS.

Term of office; undertaking.—A commissioner of jurors first appointed
under this act shall take office immediately, and shall hold office for a term
which shall expire five years from the first day of January next suceeding
his appointment, and each commissioner thereafter appointed under this
act, except to fill a vacancy, shall hold his office for a term of five years,
from the expiration of the term of his predecessor in office. All terms shall
expire on the thirty-first day of December, and before entering upon the
duties of his office, he shall execute an undertaking to the county in a sum
to be fixed and approved by the appointing authority, not less than two
thousand dollars, nor more than five thousand dollars, conditioned that he
will faithfully perform the duties of his office, and account for and pay
over all moneys which come into his hands by virtue thereof, which shall be

 

county shall be subject to the provisions of ch. 441 of L. 1899, which is the
general act applying to all counties where the board of supervisors have adopted
a resolution as provided in the above section.
1038 JURORS.

L. 1899, ch. 441, §§ 4-7.

filed in the office of the county clerk. [L. 1899, ch. 441, § 3, as amended
by L. 1900, ch. 320.]

Salary—A commissioner of jurors shall be entitled to receive an an-
nual salary payable monthly by the county treasurer.

1. In counties having a population of one hundred thousand and not
more than one hundred and fifty thousand, fifteen hundred dollars, ex-
cept in the county of Suffolk where it shall be fixed by the board of
supervisors. [Subd. 1, amended by L. 1921, ch. 259.]

2. In counties having a population of more than one hundred and fifty
thousand and not more than three hundred thousand, not exceeding
three thousand dollars to be fixed by the resolution creating the office.
Except in the county of Queens where it shall be fixed by the board
which makes the appointment not exceeding six thousand dollars.
[Subd. 2, amended by L. 1920, ch. 819.]

3. In counties having a population less than one hundred thousand a
sum to be fixed by the resolution creating the office, except in the coun-
ties of Richmond, Niagara, Saratoga, Herkimer and Schenectady,
where it shall be fixed by the board which makes the appointment, not
exceeding twenty-five hundred dollars. [Subd. 4, amended by L. 1920,
ch. 376.] [Idem, § 4, as amended by L. 1903, ch. 201, L. 1905, ch. 102,
L. 1906, ch. 221, L. 1911, ch. 705, L. 1914, ch. 875, and L. 1920, chs.
376, 819.]

Rooms and accommodations.—In the city of New York, the municipal assem-
bly shall provide suitable rooms and accommodations for the commissioner
of jurors in each county within such city, and shall also make provision for
necessary printing and advertising, and for supplying him with necessary
books, stationery and other articles. In any other county such rooms, accom-
modations and supplies shall be provided for by the board of supervisors.
Until such provision has been made a commissioner of jurors shall use the
county clerk’s office of his county to transact the necessary duties of his office
and shall be supplied by the county clerk with necessary books and other
articles, which shall be a county charge. [Idem, § 5.]

§ 13. ASSISTANTS AND CLERKS.

A commissioner of jurors in a county of more than sixty-five thousand
population according to the last preceding state or federal census shall ap-
point one assistant commissioner of jurors whose compensation shall be fixed
by the board appointing the commissioner, and one clerk and in a county of
more than four hundred and fifty thousand population, two clerks, one jury
notice server, and one stenographer additional, whose compensation shall be
fixed in the same manner; such compensation shall be paid by the county in
equal monthly installments and an assistant commissioner of jurors may be
designated by the commissioner appointing him to perform any of the duties
of a commissioner of jurors in his absence. A commissioner of jurors, or an
assistant whom, he designates for the purpose by a certificate filed in the
office of the county clerk, may administer an oath or affirmation in relation
to any matter embraced within the provisions of this act. [L. 1899, ch. 441,
§ 6, as amended by L. 1906, ch. 222, and L. 1921, ch. 640.]

§ 14. SELECTION OF TRIAL JURORS; AID OF TAX OFFICERS.

Trials jurors must be selected by the commissioner of jurors, who must
GRAND AND TRIAL JURORS; COMMISSIONERS OF JURORS. 1039

L. 1899, ch. 441, §§ 8-10.

alone decide upon their qualifications and exemptions, except as otherwise
expressly prescribed by law. But this section does not impair the right to
challenge a particular juror at the trial. The commissioner may issue, to a
person entitled to an exemption, a certificate of that fact, which exempts the
person to whom it is granted from jury duty during the time limited there-
in. He must keep a record of all proceedings before him, or in his office.
[L. 1899, ch. 441, § 7.] ;

Taz officers to give aid—The president and commissioners of the depart-
ment of taxes and assessments in the city of New York must render to the
commissioner of jurors-of each of the counties of Richmond and Queens all
the assistance in their power to enable him to procure the names of persons
liable to serve as trial jurors, and in the other counties of this state in which
commissioners of jurors shall be appointed in pursuance of this act, the
supervisors, town clerk and assessors of each town must furnish like assis-
tance. The officers herein mentioned shall forthwith upon the request of the
commissioner of jurors of any county furnish him a jury list made by se-
lecting and entering thereon from the last revised assessment-roll in their
possession the names of all persons whom they believe possess the qualifica-
tions for trial jurors as prescribed by law; such a list must show the places
of residence and other proper additions of each person so selected, so far
as these particulars can be conveniently ascertained, and must be certified
by the officers making the same. [Idem, § 8.]

§ 15. PREPARATION OF LIST OF TRIAL JURORS; NOTICE TO JURORS.

List of trial jurors— Immediately upon the receipt of the list mentioned in
the last section, the commissioner of jurors must commence the preparation
of the list of trial jurors in his county, and for that purpose the names of per-
sons liable to serve as trial jurors must be entered in suitable books alphabeti-
cally with the occupation, places of business and residence of each as far as
those particulars can be conveniently ascertained. Upon the completion of
such list by the commissioner he shall give notice by mail to the persons named
in said list, that their claims for exemption will be heard by him upon a day
named in said notice, and he may also include in said notice such portions of
the law relating to jurors as may seem to him proper and expedient. He must
hear and determine all claims for exemption and must keep a record of all
persons exempted and the period of time for which exemption is allowed. In
the county of Queens the hearing of claims for exemption shall in the first
instance be had ‘n at least two convenient places within the ward in which the
persons named .n said list reside, and the commissioner shall hold a sufficient
number of evening sessions from seven o’clock to ten o’clock to permit such
bersons to appear and be heard. Any person who, after having been notified
to attend, shall fail to appear at such hearing held within the ward in which he
resides shall be heard at the office of the commissioner. [L. 1899, ch. 441, § 9,
as amended by L. 1913, ch. 438.]

Notice to jurors, ete-—The commissioner May cause to be personally served,
upen any person within the county, a notice requiring him to attend
at the commissioner’s office at a specified time, not less than twenty-four
kours after service of the notice, for the purpose of testifying concerning his
1040 JURORS.

L. 1899, ch. 441, §§ 11-13.

own liability, or the liability of any other person to serve as a juror. A
person so notified must attend and testify accordingly. If he fails to at-
tend, as specified in the notice, for any cause, except physical inability,
or if he refuses to be sworn or to answer any legal and pertinent question
put to him by the commissioner, he forfeits fifty dollars for each failure or
refusal. One or more successive notices may be served upon the same per-
son, where he fails to attend, as required by a former notice, and he is lia-
ble to the same penalty for each failure so to attend. But the commissioner
may, in his discretion, dispense with the personal attendance of a person so
notified, where another person cognizant of the facts is produced and testi-
fies in his stead; and where a person has so attended twice they cannot be
required to attend again in the same jury year. [Idem, § 10.]

§ 16. LISTS TO BE FILED.

On or before the first day of December in each year the commissioner
must return to the county clerk, to be filed in his office, certified copies of
the lists prepared by him of the persons liable to serve as trial jurors in the
courts of record for the ensuing jury year. Before filing such certified lists,
however, he must select therefrom and strike off therefrom, two hundred
persons for each district of the Municipal Court of the city of New York in
his county, if he be commissioner for a county in the city of New York,
and he must on or before the first day of December in each year file
with the respective justices of said Municipal Court, in his county, cer-
tified lists of the persons so selected and struck off by him—the,persons
so selected to be residents of the Municipal Court district for which
they are selected. The list so filed shall constitute the jury lists for
trials in the respective districts where they are filed until a new list
shall be filed in accordance with the provisions of this act. He may
from time to time thereafter strike from the list kept by him the name
of a person who is found by him to be exempt or disqualified, in that
ease he must record the reason why the name is struck off as exempt
or disqualified, and he shall thereupon file with the county clerk a list
of the names so struck off as exempt or disqualified and the county
clerk shall remove from the jury box when drawn and from the list of
trial jurors on file in his office the names of such persons so struck off
as exempt or disqualified. [L. 1899, ch. 441, § 11, as amended by L.
1901, ch. 172, and L. 1921, ch. 280.]

In a county which has a commissioner of jurors, other than a county
included in the city of New York, the commissioner shall, on or before
the fifteenth day of December, in each year, file with each town and
city clerk in such county a list of the names of the residents of such
town or city which have been placed by him on the trial jury list for
such county. [Idem, § 12.]

§ 17. LIST OF GRAND JURORS,

In a county which has a commissioner of jurors such commissioner
GRAND AND TRIAL JURORS; COMMISSIONERS .OF JURORS. {041

L. 1899, ch. 441, §§ 14-17; Civil Prac. Act, § 1542.

and the board appointing him shall prepare in the month of December of
each year from the trial jury list filed as herein provided a list of the
names of three hundred persons to serve as grand jurors in said county
during the next ensuing jury year, and until a new list shall be re-
turned. The list shall contain the christian names and surnames at
length of persons named therein, their respective places of residence,
and their several occupations. It shall be certified by said board and
filed in the office of the county clerk within ten days thereafter. The
names of the persons so selected as grand jurors shall be removed by
the county clerk from the list of trial jurors during the ensuing
year when drawn and until a new list of grand jurors is returned, and
the persons so selected as grand jurors shall be exempt from service
as trial jurors during the period in which their names remain upon the
list of grand jurors. [Idem, § 13, as amended by L. 1921, ch. 280.]

§ 18. DRAWING JURORS; BALLOTS.

Ballots for drawing grand jurors.—The county clerk on the last day
of December after the list has been transmitted to him, must prepare
suitable ballots by writing, on a separate piece of paper, the name of
each person thus selected, as contained in the list, with his place of
residence and other additions. The ballots must be uniform in appear-
ance as nearly as may be, and the clerk must deposit them in the boxes
now required by law to be kept for the purpose of drawing grand and
trial jurors. The county clerk before depositing the ballots, must
destroy each ballot remaining in either of the boxes kept by him, and
containing the name of a resident of a town for which a new list has
been transmitted. [L. 1899, ch. 441, § 14.]

Drawing jurors.—The grand and trial jurors shall be drawn as now
provided by law by the county clerk in the presence of the county
judge, the sheriff and the commissioner of jurors, or a majority of
them. [Idem, § 15.]

§ 19. REMOVAL OF COMMISSIONER,

Any commissioner of jurors appointed pursuant to the provisions of
this act may be removed for cause by the board by whom the appoint-
ment was made. He may also be removed upon order of the appellate
division of the Supreme Court of the department embracing the county
in which he resides. The commissioner is entitled to notice of applica-
tion to the appellate division for his removal. [L. 1899, ch. 441, § 16.]

§ 20. APPLICATION OF ACT.

This act shall not apply to the counties of New York, Kings, Erie,
. Monroe, Onondaga, Westchester or Rensselaer. [L. 1899, ch. 441, § 17.
as amended by L. 1900, ch. 320.]

§ 21. FEES OF TRIAL JURORS.

A trial juror in an action or a special proceeding in a court of record
is entitled, except as otherwise specially prescribed by or pursuant to
1042 JURORS.

Code Crim. Proc., § 267-a.

statute in a particular court or a particular county, to the following
fees: twenty-five cents for each cause in which he is empanelled, to be
paid by the party noticing the cause for trial; or, if it is noticed by
more than one party, by the party whom the court directs to pay it.
[Civil Practice Act, § 1542, as transferred from Code Civ. Proe., § 3318,
by L. 1920, ch. 925.]

§ 22. SUPERVISORS MAY MAKE ALLOWANCE TO GRAND AND TRIAL

JURORS.

Fees and mileage of grand jurors. 1. In the counties within the city
of New York the board of aldermen, may direct that a sum not ex-
ceeding three dollars, and in any other county the board of supervisors,
may direct that a sum, not exceeding four dollars in addition to the
fees prescribed in any other statutory provision, be allowed to each
grand juror, for each day’s attendance at a term of a court of record
held within his county, or in any county in which the grand jury holds
evening or night sessions, the board of supervisors may direct that a
sum, not exceeding one dollar and fifty cents in addition to the fees pre-
scribed in this section or in any other statutory provision, be allowed to
each grand juror for each evening or night’s attendance at a term of a
court of record held within his county. If a different rate is not other-
wise established as herein provided, each juror is entitled to five cents
for each mile necessarily traveled by him in going to and returning from
the term; but such board of aldermen or board of supervisors may
establish a lower rate.

2. A grand juror is entitled to mileage for actual travel once in each
calendar week during the term, except:

a. That in the counties of Queens, Rockland and Orange, such jurors
may be paid four cents a mile for each mile necessarily traveled in going
to and returning, for each day of actual travel during the term, in lieu
of any other mileage. The sum so established or allowed must be paid
by the county treasurer upon the certificate of the clerk of the court,
stating the number of days that the juror actually attended, and the
number of miles traveled by him in order to attend. If a grand juror
in attendance at a term of a court of record cannot reach his home upon
the day he is excused from attendance, he shall be entitled to compen-
sation for an additional day, and the clerk shall certify accordingly upon
satisfactory proof of such fact by affidavit. The amount so paid is a.
county charge and must be raised in the same manner as other county
charges are raised.

b. In Westchester county, the board of supervisors may direct that
a sum equal to the actual necessary carfare paid out by grand and trial
GRAND AND TRIAL JURORS; COMMISSIONERS OF JURORS. 10492a

Judiciary L., § 749-h.

: jurors in going to and returning from each day of actual necessary tra-
vel, during the term, be paid such grand and trial jurors in lieu of
any other mileage and in addition to the compensation that may be ~
allowed under subdivision one of this section. The sum so established,
or allowed, must be paid by the county treasurer upon the certificate
of the clerk of the court, stating the number of days the juror actually
attended, and the amount of carfare actually paid out by him for each
day of actual travel, to be evidenced by the affidavit of said juror which
affidavit is to be attached to the certificate of the clerk. [Code Crim.
Proe. § 267-a, as transferred from Code Civ. Proc., § 3314, L. 1920,
ch. 920.]

Fees and mileage of trial jurors. 1. In the counties within the city
of New York the board of aldermen may direct that a sum not exceed-
ing three dollars, and in any other county the board of supervisors,
may direct that a sum, not exceeding four dollars in addition to the
fees prescribed in section fifteen hundred forty-two of the civil practice
act, or in any other statutory provision, be allowed to each trial juror
for each day’s attendance at a term of a court of record of civil or
eriminal jurisdiction held within his county, and in any county wherein
a court holds evening or night sessions, the board of supervisors may
direct that a sum, not exceeding one dollar and fifty cents in addition to
the fees prescribed in this section or in any other statutory provision,
be allowed to each trial juror for each evening or night’s attendance
at a term of a court of record of civil or criminal jurisdiction held
within his county. If a different rate is not otherwise established as
herein provided, each juror is entitled to five cents for each mile neces-
sarily traveled by him in going to and returning from the term; but
such board of aldermen or board of supervisors may establish a lower
rate,

2. A trial juror is entitled to mileage for actual travel once in each
calendar week during the term, except that:

a. In the counties of Queens, Rockland and Orange, trial jurors may
be paid four cents a mile for each mile necessarily traveled in going to
and retuening, for each day of actual travel during the term, in lieu of
any other mileage. The sum so established or allowed must be paid
by the county treasurer upon the certificate of the clerk of the court,
stating the number of days that the juror actually attended, and the
number of miles traveled by him in order to attend. If a juror in at-
tendance at a term of a court of record cannot reach his home upon the
day he is excused from attendance, he shall be entitled to compensation
for an additional day, and the clerk shall certify accordingly upon
1042b JURORS.

Judiciary L., § 749-i.

satisfactory proof of such fact by affidavit. The amount so paid is a
county charge and must be raised in the same manner as other county
charges are raised.

b. In Westchester county, the board of supervisors may direct that
a sum equal to the actual necessary carfare paid out by trial jurors in
going to and returning for each day of actual necessary travel, during
the term, be paid such trial jurors in lieu of any other mileage and in
addition to the compensation that may be allowed under subdivision
one of this section. The sum so established, or allowed, must be paid
by the county treasurer upon the certificate of the clerk of the court,
stating the number of days the juror actually attended, and the amount
of carfare actually paid out by him for each day of actual travel, to be
evidenced by the affidavit of said juror, which affidavit is to be attach-
ed to the certificate of the clerk. [Judiciary Law, § 749-h, as transfer-
red from Code Civ. Proe. § 3314, by L. 1920, ch. 938, and amended by
L. 1921, ch. 413.]

§ 23. EXTRA ALLOWANCE TO TRIAL JURORS.

Where the trial, by a jury, of an issue of fact, in either a civil or a
criminal action or special proceeding in a court of record, occupies
more than thirty days, the court, by an order entered in the minutes,
may fix and allow to each juror such an extra compensation as it deems
reasonable for his services thereupon; the amount of which compensa-
tion, together with the expenses actually and necessarily incurred for
food for the jurors during the trial, is a county charge. [Judiciary
Law, § 749-i, as transferred from Code Civ. Proe., § 3315, by L. 1920,
ch. 938.]
PART XI.

PROVISIONS RELATING TO COUNTIES AND TOWNS.

CHAPTER LXXII.
ACTIONS BY AND AGAINST TOWN AND COUNTY OFFICERS.

Section 1. Investigation by Supreme Court into the expenditure of town, moneys
by town officers.

2. Actions against town and county officers to prevent illegal acts;
bonds; order restraining improper audit or fraudulent judg-
ments; books, papers, etc., open to inspection.

38. Actions against municipal officers to prevent waste, etc. [Re-
pealed by L. 1920, ch. 925.]

4, Actions by and against certain town officers in their official cap-
acities. [Repealed by L. 1920; ch. 925.]

5. Officer, how described in summons. [Repealed by L. 1920, ch.
925.]

6. Successor, when to be substituted. [Repealed by L. 1920, ch.
925.]

7. When execution upon judgment cannot be issued against officer
personally. [Repealed by L., 1920, ch. 925.]

§ 1. INVESTIGATION BY SUPREME COURT INTO THE EXPENDI-
TURE OF TOWN MONEYS BY TOWN OFFICERS.

If twenty-five freeholders in any town or village shall present to a jus-
tice of the Supreme Court of the judicial district in which such town or
village is situated, an affidavit, stating that they are freeholders and have
paid taxes on real property within such town or village within one. year,
that they have reason to believe that the moneys of such town or village are
being unlawfully or corruptly expended, and the grounds of their belief,
such justice, upon ten days’ notice to the supervisor, and the officers of the
town disbursing the funds to which such moneys belong, or the trustees and
treasurer of the village, shall make a summary investigation into the finan-
cial affairs of such town or village, and the accounts of such officers, and, in
his discretion, may appoint experts to make such investigation, and may

1048
1044 PROVISIONS RELATING TO COUNTIES AND TOWNS.
General Municipal Law, § 4.

cause the result thereof to be published in such manner as he may deem
proper.*

The costs incurred in such investigation shall be taxed by the justice,
and paid, under his order, by the officers whose expenditures are in-
vestigated, if the facts in such affidavit be substantially proved, and other-
wise, by the freeholders making such affidavit. If such justice shall be sat-
isfied that any of the moneys of such town or village are being unlawfully
or corruptly expended, or are being appropriated for purposes to which
they are not properly applicable, or are improvidently squandered or wasted,
he shall forthwith grant an order restraining such unlawful or corrupt ex-
penditure, or such other improper use of such moneys.? [General Muni-
cipal Law, § 4; B. C. & G. Cons, L., p. 2108.]

 

1. Taxpayer’s action to restrain the unlawful expenditure of town and county
money by public officers, See General Municipal Law, § 51, and Code Viv. Proc.,
sec. 1925.

2. Object and nature of proceedings. The above section provides for a
judicial investigation of the financial affairs of a town or village, and is a
remedial statute. It is designed to: (1) Prevent the present or future illegal
appropriation of public moneys; and (2) determine the financial condition of
the town and prevent future illegal appropriations of public moneys by point-
ing out what proper and what improper charges may have been allowed by a
former town board. Thus, while the proceeding must be based upon present
acts which contemplate the unlawful expenditure of money already on hand, or
which may thereafter be produced from the sources of revenue of the town, the
experts in their investigation are not limited to the particular year in which
the illegal appropriation sought to be restrained is made. Matter of Town of
Hempstead, 36 App. Div. 320; 55 N. Y. Supp. 345; affd., 160 N. Y. 685.

A justice has no power to investigate or correct evils resulting from mere
error in judgment upon the part of the town officers; it is only unlawful or
corrupt expenditures of public ‘moneys which come within the terms of the
statute. See Matter of East Syracuse, 20 Abb. N. C. 131. The proceeding should
not be instituted unless it can be shown that the officer acted illegally and
without statutory authority; the proceeding will not be sustained in case it be
shown that the officer acted in good faith and without intent to defraud the tax-
payers. See N. Y. C. & H. R. R. R. Co. v. Maine, 54 N. Y. St. Rep. 384; 24 N. Y.
Supp. 962.

Appeal. An order made by a justice of the Supreme Court, and affirmed by
the Appellate Division, determining the result of a summary investigation into
the financial affairs of a town or village, instituted by taxpayers and free-
holders under the above section, is reviewable by the Court of Appeals as a
final order in a special proceeding. Matter of Taxpayers of Plattsburg, 157
N. Y. 78; 51 N. E. 512, revg. 27 App. Div. 353, 50 N. Y. Supp. 356. A proceeding
under the above section is a special proceeding within the definition contained
in sections 3333 and 3334 of the code, and the decision of the justices therein
is not, under section 2121 of the code, reviewable by a writ of certiorari. People
ex rel. Guibord v. Kellogg, 22 App. Div. 177; 47 N. Y. Supp. 1023: see, also, Mat-
ter of Town of Hempstead, 32 App. Div. 6; 52 N. Y. Supp. 618, in which case it
ACTIONS BY AND AGAINST OFFICERS. 1045
General Municipal Law, § 51.

§ 2. ACTIONS AGAINST TOWN AND COUNTY OFFICERS TO PRE-
VENT ILLEGAL ACTS; BONDS; ORDER RESTRAINING IM-
PROPER AUDIT OR FRAUDULENT JUDGMENTS; BOOKS,
PAPERS, ETC., OPEN TO INSPECTION.

All officers, agents, commissioners and other persons acting, or who have
acted, for and on behalf of any county, town, village or inunicipal corpora-
tion in this state, and each and every one of them, may be prosecuted, and
an action may be maintained against them to prevent any illegal official act
on the part of any such officers, agents, commissioners or other persons, or to
prevent waste or injury to, or to restore and make good, any property, funds
or estate of such county, town, village or municipal corporation by any per-
son or corporation whose assessment, or by any number of persons or cor-
porations, jointly, the sum of whose assessments shall amount to one thou-
sand dollars, and who shall be liable to pay taxes on such assessment in the
county, town, village or municipal corporation to prevent the waste or injury
of whose property the action is brought, or who have been assessed or paid
taxes therein upon any assessment of the above-named amount within one
year previous to the comméncement of any such action. Such person or
corporation upon the commencement of such action, shall furnish a bond to
the defendant therein, to be approved by a justice of the supreme court or
the county judge of the county in which the action is brought, in such pen-
alty as the justice or judge approving the same shall direct, but not less than
two hundred and fifty dollars, and to be executed by any two of the plain-
tiffs, if there be more than one party plaintiff, providing said two parties
plaintiff shall severally justify in the sum of five thousand dollars. Said
bond shall be approved by said justice or judge and be conditioned to pay
all costs that may be awarded the defendant in such action if the court
shall finally determine the same in favor of the defendant. The court

 

was held that the proper way to review the order of a justice in such proceed-
ings was by an appeal.

Costs. Since the proceeding under the above section is a special proceeding
the costs are to be awarded in the discretion of the court at the rates allowed
for similar services in an action brought in the same court; in the absence of
a stipulation stenographers’ fees cannot be taxed as costs in such a proceeding;
brt the fees of the experts employed therein are to be treated as similar to
those of a referee, and are, therefore, properly taxable. The costs of such an
investigation cannot be taxed against the officers of the town, who were not
made parties to the proceeding, although their bills may have been found to be
irregular. Matter of Town of Hempstead, 36 App. Div. 321; 55 N. Y. Supp. 345.

The costs of an investigation, if any are awarded, must be restricted by force
of § 3240 of the Code of Civil Procedure (now § 1492 of the Civil Practice
Act), to those allowed for similar services in an action. Matter of taxpayers
of Plattsburgh, 157 N. Y. 78, revg. 27 App. Div. 353, 50 N. Y. Supp. 356,
on other points.
1046 PROVISIONS RELATING TO COUNTIES AND TOWNS.
General Municipal Law, $ 51.

shaJl require, when the plaintiffs shall not justify as above mentioned, and in
any case may require two more sufficient sureties to execute the bond above
provided for. Such bond shall be filed in the office of the county clerk of the
county in which the action is brought, and a copy shall be served with the sum-
mons in such action. If an injunction is obtained as herein provided for, the
same bond may also provide for the payment of the damages arising therefrom
to the party entitled to the money, the auditing, allowing or paying of which
was enjoined, if the court shall finally determine that the plaintiff is not en-
titled to such injunction. In case the waste or injury complained of consists
in any board, officer or agent in any county, town, village or municipal corpora-
tion, by collusion or otherwise, contracting, auditing, allowing or paying, or
conniving at the contracting, audit, allowance or payment of any fraudulent,
illegal, unjust or inequitable claims, demands or expenses, or any item or part
thereof against or by such county, town, village or municipal corporation, or
by permitting a judgment to be recovered against such county, town, village
or municipal corporation, or against himself in his official capacity, either by
default or without the interposition and proper presentation of any existing
legal or equitable defenses, or by any such officer or agent, retaining or failing
to pay over to the proper authorities any funds or property of any county,
town, village or municipal corporation, after he shall have ceased to be such
officer or agent, the court may, in its discretion, prohibit the payment or colJ-
lection of any such claims, demands, expenses or judgments, in whole or in
part, and shall enforce the restitution and recovery thereof, if heretofore or
hereafter paid, collected or retained by the person or party heretofore or here-
after receiving or retaining the same, and also may, in its discretion, adjudge
and declare the colluding or defrauding official personally responsible there-
for, and out of his. property, and that of his bondsmen, if any, provide for the
collection or repayment thereof, so as to indemnify and save harmless the said
county, town, village or municipal corporation from a part or the whole thereof;
and in case of a judgment the court may, in its discretion, vacate, set aside
and open said judgment, with leave and direction for the defendant therein to
interpose and enforce any existing legal or equitable defense therein, under
the direction of such person as the court may, in its judgment or order, desig-
nate and appoint. All books of minutes, entry or account, and the books, bills,
vouchers, checks, contracts or other papers connected with or used or filed in
the office of, or with any officer, board or commission acting for or on behalf
of any county, town, village or municipal corporation in this state are hereby
declared to be public records, and shall be open, subject to reasonable regula-
tions to be prescribed by the officer having the custody thereof, to the inspection
of any taxpayer.2@ This section shall not be so construed as to take away any
right of action from any county, town, village or municipal corporation, or from

 

2a. The right to inspect books and papers filed with an officer, board or com-
missioner acting on behalf of a county, town or other municipality, which is
given by this section, is as broad as the language used to bestow it and there
is no limitation thereof save that found in the provision itself. Matter of Egan
(1912), 205 N. ¥. 147.
ACTIONS BY AND AGAINST OFFICERS. 1047

General Municipal Law, § 51.

any public officer, but any right’ of action now existing, or which may here-
after exist in favor of any county, town, village or municipal corporation, or
in favor of any officer thereof, may be enforced by action or otherwise by
the persons hereinbefore authorized to prosecute and maintain actions; and
whenever by the provisions of this section an action may be prosecuted or
maintained against any officer or other person, his bondsmen, if any, may
be joined in such action or proceeding and their liabilities as such enforced
by the proper judgment or direction of the court; but any recovery under
the provisions of this article shall be for the benefit of and shall be paid to
the officer entitled by law to hold and disburse the public moneys of such
county, town, village or municipal corporation, and shall, to the amount
thereof, be credited the defendant in determining his liability in the action
by the county, town, village or municipal corporation or public officer. The
provisions of this article shall apply as well to those cases in which the body,
board, officer, agent, commissioner or other person above named has not.
as to those in which it or he has jurisdiction over the subject-matter of its
action. [General Municipal Law, § 51; B. C. & G. Cons. L., p. 2122.]

 

8. The object of the act is to secure the protection of public property, and to
subordinate the acts of officials in its disposition or appropriation to the re-
straint of the law. It must be liberally construed and applied to carry this
object into effect. Starin v. Mayor, 42 Hun, 549; 4 .N. Y. St. Rep. 588; revd. on
other grounds, 112 N. Y. 206. In the case of People v. N. Y. & M. B. Ry. Co., 84
N. Y. 565, it was held that the act of 1875, similar in many respects to the
above act, was for the main purpose of authorizing the pursuit of the funds
wrongfully abstracted from municipal treasuries into the hands of officials or
other persons who wrongfully obtained or received them. Such statutes are
intended to provide ample remedy and protection to taxpayers against all
wrongful acts to their prejudice of the officers and agents of a municipal cor-
poration, affecting not only its property rights but its credit; and every process
or means by which the corporation can be charged pecuniarily, or the taxable
property within its limits be burdened, are embraced within their provisions.
Ayers v. Lawrence, 59 N. Y. 192.

In speaking of the above act Judge O’Brien says, in the case of Talcott v.
City of Buffalo, 125 N. Y. 280; 26 N. HE. 263: “In a single section, authority
was given to any person residing in the county, town or municipal corporation,
assessed for and liable to pay taxes therein, or who had paid taxes therein
within one year previous to maintain an action against all officers, agents, com-
missioners and other persons acting for or in behalf of such county, town or
municipal corporation, to prevent waste or injury to any property, funds or
estate of such county, town or municipal corporation. That this legislation was
aimed at ‘frauds, embezzlements, and wrongful acts of public officers and
agents,’ as indicated by the title, is also clear when the causes that moved
the legislature to its enactment and which are matters of public history are
considered. The origin of the statute is to be found in certain well known
fraudulent and corrupt acts on the part of officers and commissioners in the
1048 PROVISIONS RELATING TO COUNTIES AND TOWNS.
General Municipal Law, § 51.

city and county of New York, whereby public funds were abstracted from the
treasury mainly by the audit and allowance of fictitious claims and corrupt
contracts, and the proceeds converted to the individual benefit and use of
these officers and agents. The terms ‘waste’ and ‘injury’ used in this statute
comprehend only illegal, wrongful or dishonest official acts, and were not
intended to subject the official action of boards, officers or municipal bodies
acting within the limits of their jurisdiction and discretion, but which some
taxpayer might conceive to be unwise, and improvident or based on errors cf
judgment, to the supervision of the judicial tribunals. It is believed that no
action was ever maintained under this statute with the sanction of this court,
without some proof or allegation that the official act or proceeding com-
plained of was without power or was tainted by corruption or fraud.”

The equitable remedy of an injunction under the General Municipal Law
is to be granted or withheld in accordance with the general principles which
govern the exercise of equitable jurisdiction. Mere inaction by a public
officer will not justify the intervention of a court of equity where the legal
remedy by mandamus is available and adequate. Southern Leasing Co. v.
Ludwig (1916), 217 N. Y. 100, revg. 168 App. Div. 233, 153 N. Y. Supp. 545.

The provisions of this section are broader than those of § 1925 of the Code,
because not only is the right given to a taxpayer to maintain an action to
prevent waste or injury to the property, etc., of the town, city, or county,
but also to prevent any illegal official act on the part of any officers, agents,
commissioners or other persons. Schiefflin v. Craig (1918), 183 App. Div.
515, 170 N. Y. Supp. 603.

Neither the above act nor section 1925 of the code were intended as a mode
of putting an incapable or a confiding official under the protecting guardian-
ship of the court, and of making him a ward in chancery to be shielded from
the effects of his own folly, nor to enable a taxpayer to try a question of fraud
between the officer and those who are dealing with him. If the officer is
honest and faithful no suit against him is needed. The taxpayer may explain
to him the facts and discover to him the fraud and the courts are open for his
protection and the means of redress are at hand. It is only when, in the
face of explanation and knowledge, he still refuses to act and persists in
earrying out the wasteful contract that the action against him is needed; and
then it rests upon his misconduct, upon his collusion and fraud, which must
be alleged and proved. The legislature could not have intended that the
courts should supply intelligence and prudence to incapable officials at the
demand of a taxpayer, but manifestly did intend to give the latter protection
against the dishonesty or fraud of the municipal agents. Finch, J., in Ziegler
v. Chapin, 126 N. Y. 342, 348; 27 N. E. 471. The only acts which can be
complained of and against which the above statute may be invoked are those
performed by the municipal officers in the exercise of their official duties.
See Potter v. Collis, 19 App. Div. 392; 46 N. Y. Supp. 471; affd. 156 N. Y.
16; Sheehy v. McMillan, 26 App. Div. 140; 49 N. Y. Supp. 1088; Paul v.
City of New York, 46 App. Div. 69; 61 N. Y. Supp. 570.

The word “otherwise” in the phrase “‘by collusion or otherwise, contracting,
auditing, etc.,” is to be interpreted according to the rule of ejusdem generis.
It does not mean any auditing, but an audit due to some sinister or improper
motive and in violation of a public trust. The allegation that a member of
a board of supervisors consisting of three members, presented his own fraud-
ACTIONS BY AND AGAINST OFFICERS. 1049
General Municipal Law, § 51.

ulent bills to the board for audit, is not a sufficient declaration as against the
two members not presenting claims, to hold them liable for the amount of the
claims presented. Wallace v. Jones, 83 App. Div. 152, 82 N. Y. Supp. 449.

Who may bring the action. At common law a taxpayer, as such, has no
right of action against a public officer to restrain or prevent the waste of
public funds or injury to public property or to restrain a threatened illegal
official act. The taxpayer has no right to demand either at law or in equity
the vindication of the public rights unless the violation of that right affected
him injuriously in some peculiar manner in which other members of the com-
munity were not equally affected. The right of a taxpayer to bring such an
action must be found in the statute. Schiefflin v. Craig (1918), 183 App. Div.
515, 523, 170 N. Y. Supp. 603. The action can only be brought by one who
is a taxpayer, acting in good faith to protect his interests. Hull v. Ely, 2 Abb.
N. C. 440. The object of the action being to prevent waste or injury to the
property, funds or estate of a municipal corporation, it is the duty of the
court to see to it that he who undertakes to champion the public cause is
actuated by public motives, and that he is not making use of the power of the
court to accomplish some private end. Kimball v. Hewitt, 17 N. Y. St. Rep.
743; 2 N. Y. Supp. 697; affd. 15 Daly, 124.

In a taxpayer’s action under this act the plaintiff is not bound to show that
he will suffer peculiar injury; he is appearing in behalf of himself and all
other taxpayers, and it is enough for him to show that he has the status of
a taxpayer which the statute prescribes, and that the act of the defendant is
one which the law forbids. Rogers v. Board of Supervisors, 77 App. Div.
501, 78 N. Y. Supp. 1081. Motive of plaintiff is immaterial. Kingsley v.
Bowman, 33 App. Div. 1, 53 N. Y. Supp. 426 (1898). And injury to him as
an individual need not be shown. Warrin v. Baldwin, 105 N. Y. 534, reve.
35 Hun 334; Gerlach v. Brandreth, 34 App. Div. 197, 54 N. Y. Supp. 479.

As to the legal capacity of a plaintiff to maintain such an action, who is a
tenant in common of the lands assessed on which he has paid the taxes, but
that are listed on the assessment rolls in the name of the estate of plaintiff’s
ancestor, see Smith v. Hedges (1915), 169 App. Div. 115, 154 N. Y. Supp.
867, revd. (1918), 223 N. Y. 176.

Bond to be furnished by plaintiff. The bond given by the plaintiff in
bringing an action under the above act must be in the form prescribed by the
act or it will not be sufficient to comply with the provisions of sections 620
and 621 of the Code of Civil Procedure as to bonds in injunction proceedings.
Tappen v. Crissey, 64 How. Pr. 496.

When action may be maintained. The taxpayer’s action was not intended
as a substitute for the action to restrain public nuisances, brought by public
authorities, nor as a substitute for an action maintainable by an individual
who has suffered, or is likely to suffer special injury therefrom. Gallagher
v. Keating, 40 App. Div. 81; 57 N. Y. Supp. 632. In this case a taxpayer,
who did not claim to be the owner of property abutting on an avenue upon
which it was proposed to erect an elevated railroad, sought to restrain the
erection of such railroad and to enjoin the city from authorizing the construc-
tion thereof, and it was held that such an action would not lic under this
statute, especially since it appeared that the proper city officers had issued
a permit for the construction of such railroad more than a week before the
ecmmencement of the suit.
1050 PROVISIONS RELATING TO COUNTIES AND TOWNS.
General Municipal Law, § 51.

The statute giving a taxpayer a right of action was not intended to subject
the official acts of boards, officers or municipal bodies acting within their
jurisdiction and discretion to the supervision of the courts, simply because
some taxpayer might conceive the same to be unwise, improvident or based
on errors of judgment. McBride v. Ashley (1915), 91 Misc. 585, 154 N. Y.
Supp. 1010.

An action, relating only to the manner of raising funds to pay an obliga-
tion that a city is lawfully required to pay cannot be maintained hereunder.
Schiefflin v. Craig (1918), 183 App. Div. 515, 170 N. Y. Supp. 608.

To justify an injunction it is not necessary that both illegal acts and waste
or injury are threatened. Either is sufficient. Bull v. Miller, 140 App. Div.
602, 125 N. Y. Supp. 865. But relief by injunction should not be granted
against mere irregularities of taxation, without fraud, corruption or waste
amounting to bad faith. Falhys & Co. v. Vaughn, 68 Misc. 541, 125 N. Y.
Supp. 280.

A taxpayer may maintain an action under this section to enjoin either an
illegal act by municipal officers, or a waste of or injury to public property or
funds. Brill v. Miller, 140 App. Div. 602, 125 N. Y. Supp. 865.

Bad faith and breach of official duty is sufficient under the above act to
enable a taxpayer to maintain an action against municipal authorities.
Adamson v. Union R. R. Co., 74 Hun, 3; 56 N. Y. St. Rep. 214; 26 N. Y.
Supp. 136.

An action pursuant to this section is maintainable only when the official
act complained of is illegal or wrongful; thus, the mere disregard by a
common council of a city of legal formalities or orderly mode of procedure
prescribed by its charter will not necessarily render a resolution “illegal”
within the meaning of this section. Faley v. City of Lockport, 61 Mise, 417;
113 N. Y. Supp. 702.

Action will only lie where the acts complained of are without power or
where corruption, fraud or bad faith amounting to fraud is charged. It will
not lie to restrain a board of town highway commissioners from granting a
franchise to a lighting company without compensation. Craft v. Lent, 53
Mise. 484; 103 N. Y. Supp. 366.

A taxpayer’s action may be maintained to restrain the collection of rents by
the comptroller of the city of New York under leases of certain lands of a de-
funct town to whose rights the city has succeeded, which were invalid for
collusion of the former town officers. In such an action the proper parties
defendant are the comptroller as the acting fiscal official, the city of New
York, and the lessees and other successors in interest. The officers of the
former town are neither necessary nor proper parties. Any resident taxpayer
of the city of New York, who is assessed the required amount, may maintain
the action. Wenk v. City of New York, 171 N. Y. 607, reversing 69 App.
Div. 621, 75 N. Y. Supp. 1135, 36 Misc. 496, 73 N. Y. Supp. 1003.

In the case of Kittenger v. Buffalo Traction Co., 160 N. Y. 377; 54 N. EB.
1081, it was held that a taxpayer was not entitled to maintain an action un-
der the above act to procure a judgment declaring a consent already obtained
by a traction company for the construction and maintenance of a street sur-
face railroad, to be illegal and void, and to enjoin in such an action the
building of the road.

In the case of Ziegler v. Chapin, 126 N. Y. 342; 27 N. E. 471, it was said
ACTIONS BY AND AGAINST OFFICERS. 1051
General Municipal Law, § 51.

that an action ought not to be maintained by a taxpayer to restrain the pur-
chase of property by municipal trustees merely on the ground that the pro-
posed price is an extravagant one, and that the proceedings of the municipal
officers show a want of prudence and good judgment. The action can only
be sustained upon allegations of fraud, collusion, or bad faith. And facts
must be alleged showing that the officer acted fraudulently, collusively, and
in bad faith; it will not be sufficient to allege, as a mere conclusion, that he
so acted. Wallace v. Jones, 82 N. Y. Supp. 449 (App. Div., 2d Dept., May
28, 1903).

Where public officials are in good faith insisting upon a right of property
in the municipality against a person, although they may be wrong in their
legal position, the act does not authorize another taxpayer to interfere to
restrain them, nor can the person against whom the right is asserted interfere
in his right as a taxpayer merely. Rogers v. O’Brien, 1 App. Div. 397; 37
N. Y. Supp. 353. The authority conferred by the act extends only to official
acts which, if performed, would produce a public injury, and the remedy for
which by injunction was previously available to the attorney-general or some
body or officer acting on behalf of the public. Rogers v. O’Brien, 153 N. Y.
3857; 47 N. Y. Supp. 456.

A taxpayer’s action cannot be maintained under the above act to set aside
grants of franchises by municipal authorities to street railway companies
because they were made for a less sum in return to the municipality than
might, by the exercise of due diligence, have been obtained, and because of
fraud, there being no charge of corruption and the proceedings being regular.
Adamson v. Nassau Electric R. Co., 89 Hun, 261; 34 N. Y. Supp. 1073.

Where a bid of a corporation for street lighting was the lowest and was
made in good faith, it was held that a taxpayer’s action to restrain the muni-
cipality from entering into the contract could not be maintained, on the ground
that the corporation had no right to erect its poles in the streets, and that
hence the contract would be illegal. The corporation would be bound on
entering into the contract to obtain the necessary rights to enable it to per-
form. Boyle v. Grant, 12 N. Y. Supp. 801; 36 N. Y. St. Rep. 207.

Although a mere error in judgment as to price on a proposed purchase
by a municipality may not suffice to sustain a taxpayer’s action, yet an ex-
cessive valuation so large as to indicate that the officers acting are not
exercising the same fidelity, care, and caution as would. be expected of an
individual purchasing for himself with his own money, will sustain an action
to enjoin the purchase. Winklen v. Summers, 22 Abb. N. C. 80; 5 N. Y.
Supp. 723. In the case of Warrin v. Baldwin, 105 N. Y. 534; 12 N. E. 49, it
appeared that a county treasurer had been in the habit of paying himself
the fees allowed by law upon the sale of lands for unpaid taxes out of the
trust funds belonging to the town chargeable with such fees which were in
his possession, without previous audit by the board of supervisors. It was
held that an action was maintainable under the Taxpayer’s Act of 1881, by
a taxpayer of the town to restrain such illegal payment.

A taxpayer may maintain an action to annul a contract made by a town
board which creates a monopoly of lighting the town for the specified period
as an act tending to injure the taxpayers, though the direct effect is not a
loss or a waste of public property. Parfitt v. Ferguson, 3 App. Div. 176;
88 N. Y. Supp. 463; affd. 159 N. Y. 111.

Individual taxpayers cannot maintain an action against the school commis-
1052 PROVISIONS RELATING TO COUNTIES AND TOWNS.
General Municipal Law, § 51.

sioner of a school district in which they live and certain villages which had
been created as separate school districts therein to restrain the defendant
school commissioner from declaring the villages to be separate districts, or
from taking any other proceedings in that respect, on a complaint alleging
that the villages had been created in pursuance of a fraudulent scheme on
the part of their residents to avoid their due share of taxation for school
purposes. Such a writ is not within the scope of this section. Prankard v.
Cooley, 147 App. Div. 145.

An action to restrain the nomination and election of delegates to a con-
stitutional convention cannot be maintained under this section. Schieffelin
v. Komfort (1914), 212 N. Y. 520.

A taxpayer’s action may be brought to restrain a county clerk from ap-
pointing deputies and assistants in contravention of the civil service law.
Olmstead v. Meahl (1916), 219 N. Y. 270.

Taxpayers’ action may be brought to compel restoration of town funds
paid upon purchase price of steam roller under conditional contract of sale,
void under the Highway Law. Shoemaker v. Buffalo Steam Roller Co.
(1915), 165 App. Div. 836, 151 N. Y. Supp. 207.

Where a taxpayer’s action brought under this section, proceeds upon the
assumption that the scheme of assessment adopted by the board of estimate
and apportionment of the city of New York for raising money to defray the
cost of extending Seventh avenue and widening Varick street is illegal, but
there is no evidence that such scheme is unfair, that the percentage assessed
by way of special benefit is greater than should justly be borne by the prop-
erty within the special assessment district, or that the percentage of the
cost assesed on each three boroughs is in fact excessive or unequal, the com-
plaint should be dismissed upon the merits. Goodale v. City of New York
(1914), 85 Misc. 603; 148 N. Y. Supp. 1076.

A public officer receiving public moneys without right may be charged with
the duty of restitution at the instance of a taxpayer though he received them
without fraud. Steller v. McFarlane (1921), 230 N. Y. 400, 130 N. E. 591,
revg. 181 App. Div. 957, 168 N. Y. Supp. 1131.

The term “waste or injury” as used in this section includes only illegal,
wrongful or dishonest acts. Daly v. Haight (1915), 170 App. Div. 459; 156
N. Y. Supp. 538.

The mere illegality of an official act in and of itself does not justify injunc-
tive relief in the actions authorized to be brought by a taxpayer under this
section, but when waste or injury is not involved, it must appear that in
addition to being an illegal official act the threatened act is such as to imperil
the public interests or calculated to work public injury or produce some pub-
lic mischief. Altschul v. Ludwig (1916), 216 N. Y. 459; affg. 170 App. Div.
957, 155 N. Y. Supp. 1091.

A taxpayer’s action is maintainable either to prevent an illegal act against,
or waste or injury to, the property of a municipality. Carpenter v. Wise
(1915), 92 Misc. 246; 155 N. Y. Supp. 996.

A taxpayer may by action under this section prevent any illegal official act
or waste or injury and may compel the restoration of all property and funds.
But it is only when the waste or injury is by collusion or otherwise or by
default in permitting a wrongful judgment or by retaining or failing to pay
over any public funds or property that the court will enforce the restitution
ACTIONS BY AND AGAINST OFFICERS. 1053
General Municipal Law, § 51.

and recovery, and also in its discretion declare the official responsible, finan-
cially, therefor. Daly v. Haight (1915), 170 App. Div. 469; 156 N. Y.
Supp. 538.

Action against state officers. This section authorizes actions only against
municipal corporations and their officers, not against state officers. Hence,
an action to restrain the expenditure of state moneys on highways can only
be brought by the people of the state. County of Albany v. Hooker, 204
N. Y.. 1.

Action to restrain execution of illegal contracts, A taxpayer may bring an
action under the above act to enjoin the execution by public officials of an
illegal contract. Armstrong v. Grant, 56 Hun, 226; 9 N. Y. Supp. 388.

A city council will be enjoined at the suit of taxpayers from making a
contract for paving streets with a specified material, which is the subject of
a monoply, although two-thirds of the abutting property owners petitioned
for the use of such material, and the city charter provides that, in such case,
the council has no power to contract for a different kind of pavement. Boon
v. City of Utica, 26 N. Y. Supp. 932; 5 Misc. 391.

A taxpayer may, under the above statute, maintain an action to enjoin a
municipality from paying for the services of an officer appointed in violation
of the Civil Service Law. Rogers vy. Common Council of Buffalo, 22 Abb.
N. C. 144; 2 N. Y. Supp. 326; Chittenden v. Wurster, 152 N. Y. 345, 368.
In the case of Peck v. Belknap, 130 N. Y. 394; 29 N. E. 977, it was held
that such an action could be maintained against city officials to restrain them
from entering into a contract of employment, in a position where a civil ser-
vice examination is required, with one who has not passed the examination,
or to restrain the payment of the salary of such an employee out of the funds
of the city. It is not a defense to such an action that the employment by the
city of some person for the purpose specified is proper and lawful, and that
the compensation agreed to be paid was not extravagant.

Action ‘to restrain letting of contract. Where it appears that a contract
was let to a person bidding a number of thousand dollars lower than his
nearest competitor, an action will not lie against the officers authorized to
award the contract because of a failure to comply with certain technicalities
not involving the merits of the transaction. So an action cannot be main-
tained by a taxpayer to set aside a contract awarded to a bidder because of
the fact that the bid was not deposited in the proper box, or because it was
not opened immediately, as required by the rules and regulations of the board
awarding the contract. McCord v. Lauterbach, 91 App. Div. 315; 86 N. Y.
Supp. 503.

Where a statute under which a county or town officer or board acts requires
a contract to be let to the lowest responsible bidder, an action under the
above act will lie to restrain the awarding of such a contract to a person who
does not appear to be the lowest bidder. As, for instance, a board of super-
visors had four bids for work on a county building, but refused to award the
contract to the lowest bidder because of his refusal to contract to employ only
union labor, the grounds of such action being a resolution of the board that
only union labor should be employed, and that, if non-union men were em-
ployed, the work might be delayed by strikes. It was held that a taxpayer’s ac-
tion would lie to prevent waste of the county funds and to restrain the award-
ing of the contract to a higher bidder, which contract contained the clause as to
1054 PROVISIONS RELATING TO COUNTIES AND TOWNS.
General Municipal Law, § 51.

employment of union labor objected to by the lowest bidder. Davenport v.
Walker, 57 App. Div. 221; 68 N. Y. Supp. 161. See, also, Larned v. City of
Syracuse, 17 App. Div. 19; 44 N. Y. Supp. 857. But the determination of the
question as to what constitutes the lowest bid is quasi judicial and will not
be reviewed by the courts in a taxpayer’s action. Moran v. Trustees of White
Plains, 12 N. Y. Supp. 61; 35 N. Y. St. Rep. 335; affd. 128 N. Y. 578.

Action to enjoin purchase of site and erection of school building. An
action will not lie on behalf of a taxpayer to enjoin a board of education from
purchasing a site and erecting a school building thereon, where it appears
that the application is based solely upon the objection that the board of
education had not strictly complied with all the required technical and legal
formalities, if there has been a substantial compliance with the law, and the
facts show that public necessity requires the construction of the school build-
ing, and that there is no bad faith upon the part of the board. Lawson v.
Lincoln, 86 App. Div. 217, 83 N. Y. Supp. 667; affd. 178 N. Y. 636.

Action restraining payment or audit of claim. Where expenses are not
a proper charge against a town, or are unauthorized, their audit is illegal, and
payment of such expenses may be enjoined at the suit of a taxpayer. Rocke-
feller v. Taylor, 69 App. Div. 176; 74 N. Y. Supp. 812. A preliminary
injunction will be granted in taxpayer’s action to restrain payment of un-
authorized claim for compensation. Beresford v. Donaldson, 54 Mise. 138;
103 N. Y. Supp. 600.

A board of supervisors in auditing claims against a county exercises a judicial
function; and if they act within their jurisdiction they cannot be held person-
ally responsible for their audits. Wallace v. Jones, 122 App. Div. 497, 499;
107 N. Y. Supp. 288.

Under the act of 1872, similar in some respects to the above act, it was
held that a taxpayer might properly maintain an action to vacate an audit by
a town board of a claim which the board had no authority to allow, or where
the audit was fraudulent and collusive. Osterhoudt v. Rigney, 98 N. Y. 222.
But it was also held in thé same case that the statute did not abrogate the
rule that the acts of a board of audit within its jurisdiction, in the absence of
fraud or collusion, are final and conclusive and cannot be questioned in a
collateral proceeding. An excessive allowance or an erroneous conclusion by
the board upon the facts, does not constitute waste or injury to the property
of the town within the meaning of the act.

A complaint in a taxpayer’s action brought against the supervisor, auditors
and clerk of a town, which in substance merely alleges that during a certain
year the supervisor unlawfully paid the town clerk a certain sum of money
and that the town auditors unlawfully audited the claim, fails to state a cause
of action. It is necessary to set out facts showing the illegality or fraudulent
character of the claim.

A taxpayer in order to maintain an action against the supervisor and
auditors of a town must specifically allege facts which entitle him to maintain
the action under the provisions of the Taxpayers’ Acts. Persons to whom
payments have been made by the supervisor of a town upon an alleged illegal
audit by the board of auditors are necessary parties to a taxpayer’s action
brought against the supervisor and board of auditors. Daly v. Haight
(1914), 163 App. Div. 234; 148 N. Y. Supp. 42.
ACTIONS BY AND AGAINST OFFICERS. 1055
General Municipal Law, § 51.

In an action brought by a taxpayer against a town supervisor and the super-
intendent of highways to compel them to restore moneys to the town, the town
itself is not a necessary party. It seems, however, that the town may vol-
untarily come in and make itself a party. Neither need the persons to whom
the illegal payments are alleged to have been made be necessarily joined as
defendants, for the action is not to cancel a contract or to annul their per-
sonal rights. An allegation that the moneys were misapplied and illegally
paid with knowledge that it was without warrant of law is sufficient, and it
need not be averred in the words of the Code that the misappropriations were
“waste or injury to”? the funds of the town, for that would be a mere conclu-
sion of law. Hicks v. Cocks (1915), 167 App. Div. 862; 153 N. Y. Supp. 776.

A member of the board of supervisors cannot act as attorney for the board.
See Penal Law, § 1868. In the case of Beebe v. Supervisors of Sullivan
County, 64 Hun, 377; 19 N. Y. Supp. 629; affd., 142 N. Y. 631, it appeared
that a board of supervisors, desiring to take proceedings against a county
treasurer to recover money not accounted for by him, employed one of its
members, an attorney, to bring the action. The attorney subsequently pre-
sented a‘bill for his services which was audited by the board. The attorney
did not vote upon his own appointment, nor upon the audit of his account.
It was held that an action might be maintained by a taxpayer to restrain the
payment of such claim, and that the contract between such board and one of
its members, involving the services of a member and the payment by the
county therefor, was against public policy and was void.

Where mandamus to compel payment by a town of notes made by its super-
visor eleven years before had been denied, and the order of denial affirmed on
the ground that the claim was unauthorized in its origin, was barred by the
statute of limitations, and questionable on its merits, and where pending an
appeal from such order of the Court of Appeals the board of town auditors
allowed the claim on an oral assurance that the appeal would be withdrawn,
two of them having an interest in the transaction, it was held that an action
would lie at the suit of a taxpayer to restrain a payment of the order for the
amount of the claim. Webb v. Bell, 22 App. Div. 314; 47 N. Y. Supp. 989.

An action may be brought by a taxpayer to set aside audits made by the

“board of supervisors and to recover on behalf of the county moneys alleged
to have been allowed to a supervisor for services in preparing the tax rolls of
the town, where certain items for which payment had been made were not
properly chargeable to the county under section 23 of the County Law.
Smith v. Hedges (1915), 169 App. Div. 115; 154 N. Y. Supp. 867; reversed
on other grounds, 223 N. Y. 176, in which it was held that the court has no
power in a taxpayer’s action to re-audit a claim except on findings of fact
showing that the audit was illegal either for fraud or collusiom or for lack of
jurisdiction, thus precluding on honest mistakes on the facts merely, as a
basis of the audit.

Where in a taxpayer’s action against a supervisor and a person employed
pursuant to a resolution of the town board to recover town moneys paid by
the former to the latter for services rendered the court finds that there was
no intentional wrongdoing by either of the defendants; that all the moneys
were paid before the commencement of the action, and that the supervisor
1056 PROVISIONS RELATING TO COUNTIES AND TOWNS.
General Municipal Law, § 51.

did not receive any of them, it was error to give judgment for the plaintiff.
Daly v. Haight (1915), 170 App. Div. 469; 156 N. Y. Supp. 538.

In a taxpayer’s action to enforce restitution and recovery for collusive audit
or payment, collusion is the gravemen of the action, and where in such an
action collusion is not proved, it is unnecessary to decide the legality of the
elaim. Crozier v. Richardson (1919), 226 N. Y. 39 (Mem.), affg. 178 App.
Div. 927, 165 N. Y. Supp. 1082. In the following case it was held that the
individual members of a board of supervisors are personally responsible for
moneys paid out on a collusive audit. Shiebler v. Smith (1919), 226 N. Y.
35 (Mem.), affg. 178 App. Div. 925, 165 N. Y. Supp. 1112. See also Smith
v. Hedges (1918), 223 N. Y. 176, revg. 169 App. Div. 115, 154 N. Y. Supp.
867.

Where an allowance by a board of supervisors for extending liens upon the
tax rolls and for incidental computation appears to be void for want of juris-
diction rather than merely an erroneous audit, the allowance must be set
aside. Where some of the bills presented by a supervisor for audit and
allowance are criticised as inadequately itemized, others'as imperfectly veri-
fied or based upon an error in dates, such defects are insufficient of them-
selves to make out a case for restitution of the payments made under the
allowance of such bills. Steller v. McFarlane (1921), 230 N. Y. 400, 130
N. E. 591, revg. 181 App. Div. 957, 168 N. Y. Supp. 1131.

Action to prevent payment of salaries to public officers. A taxpayer’s
action cannot be brought under the above act to restrain the payment of
salaries to public officers holding presumptively valid appointments in the
civil service, upon the ground that although the appointments are valid in
form, they are invalid in fact. When the question of title to the office is not
collateral or incidental, but is the central and pivotal question, the proper
remedy is a proceeding by que warranto Greene v. Knox, 175 N. Y. 432;
affirming 76 App. Div. 405, 78 N. Y. Supp. 779.

Action to restrain collection of judgment against village. A contractor
secured a judgment against a village. The trustees by a vote of seven to six
decided not to appeal but to pay the judgment. In a taxpayer’s suit brought
by the minority trustees against the village, officials and the contractor to
enjoin the collection of his judgment, held, that a court of equity has no
power to grant such relief, as it would not only deprive the contractor of his
judgment, but would also deny him and the village the constitutional right
to have the matter determined in an action at law with a trial by jury.
Childs v. Tompkins (1917), 180 App. Div. 855, 168 N. Y. Supp. 174.

Action in relation to town bonds. A taxpayer may maintain an action
under the above act to restrain the payment of town bonds, illegally issued;
such an action is not subject to the objections which would defeat an action
dependent upon the general equity power of the court, nor is it barred by any
of the statutes of limitation. Strang v. Cook, 47 Hun 46. But such an
action will not lie to restrain a town supervisor from paying over the interest
on town bonds, from moneys in his hands levied and collected for that pur-
pose, where the bonds are apparently valid and have been so treated by the
town and its taxpayers, and where no fraud is imputed. Calhoun v. Millard,
121 N. Y. 69; 24 N. E. 27.
ACTIONS BY AND AGAINST COUNTY OFFICERS. 1056a
General Municipal Law, § 51.

Any taxpayer residing in any municipality which has, in compliance with
the Railroad Bonding Act of 1869, ch. 907, as amended, issued its bonds to
aid in the construction of a railroad, may, by petition, institute proceedings
to compel the county treasurer to observe the duties imposed upon him by
such statute requiring him to use and invest the moneys paid to him, derived
from taxes upon the railroads aided in their construction to the redemption
of the bonds. Spaulding v. Arnold, 24 N. Y. St. Rep. 897; 6 N. Y. Supp. 336.

As to pleadings and practice in actions brought under the above section,
see cases cited under section 1925 of the Code of Civil Procedure in Gilbert’s

“Code (1910). Section cited in Matter of Mitchell v. Cropsey (1917), 177
App. Div. 663, 667, 164 N. Y. Supp. 336.

As to the right of a taxpayer to an inspection of the records of a depart-
ment under a writ of mandamus, and the effect of a removal of records to
another department, see Matter of Ihrig v. Williams (1918), 181 App. Div.
865, 169 N. Y. Supp. 273.

The following cases arise under §§ 1925-1931 of the Code of Civil Pro-
cedure which were repealed by L. 1920, ch. 925:

Boundary lines. It was held in the case of Govers v. Supervisors of West-
chester County, 171 N. Y. 40, that the authorized action of a board of super-
visors in ascertaining and locating a boundary line established and settled by
statute between towns within the county by reference to ancient maps, cannot
in the absence of fraud, collusion or bad faith on the part of the board, be
attacked in an action brought under section 1925 of the code since the words
“waste and injury” used in that section include only illegal, wrongful or dis-
honest action.

Action under former § 1925 of Code of Civil Procedure, now repealed.
A taxpayer’s action to restrain waste or injury to the property or funds of a
municipality, or to prevent any illegal official act on the part of the officers
of such municipality, will, in a proper case, lie under the provisions of section
1925 of the Code of Civil Procedure, or section 51 of the General Municipal
Law. The provisions of section 51 of the General Municipal Law are some-
what broader in their scope, and provide somewhat more specifically for an
action to prevent illegal official acts, and, in a proper case, restitution; but
the principles governing an action brought under either of the aforesaid pro-
visions are substantially the same. McBride v. Ashley (1915), 91 Misc. 585,
154 N. Y. Supp. 1010.

Application of former section 1926. In respect to an action brought by a
supervisor it was held, prior to the amendment of 1897, that the section
merely prescribes the mode of enforcing such rights and claims as belong to
the supervisor of the town without defending them or declaring their nature
or extent. Bidelman v. State, 110 N. Y. 232; 18 N. E. 115. The section
does not create new causes of action, but confers upon the officers named the
right to maintain actions in their own name upon existing causes of action
in favor of the bodies represented by them, or of predecessors, or upon a
contract made by them. Chrigstrom v. McGregor, 74 Hun, 343; 26 N. Y.
Supp. 517.

Section 11 of the Town Law, ante, p. 393, provides that an action on a
contract made with any of the officers by whom a town is represented to en-
force the liability of the town thereon, shall be in the name of the town. This
section of the Town Law requires that an action on a contract of a town over-
1056b ACTIONS BY AND AGAINST COUNTY OFFICERS.
General Municipal Law, § 51.

seer of the poor shall be against the town and not against such officer al-
though there is no express repeal of the above section of the code in the Town
Law. This is so since section 1928 of the code provides that sections 1926
and 1927 do not apply to a case where it is especially provided by statute
that an action may be maintained by or against the body represented by the
officers designated in such sections. Miller v. Bush, 87 Hun, 507; 34 N. Y.
Supp. 286. The effect of such section of the Town Law would seem to super-
sede as to all officers named in the above section of the code the power of
town officers of maintaining actions on contracts in their own names.
Actions against county. In a suit against a county, the board of super-
visors should be named as defendants and the individual members of the
board should not be named. Hill v. Supervisors of Livingston County, 12
N. Y. 52; see, also, Wilde v. Supervisors of Columbia County, 9 How. Pr. 315.
TOWN AND COUNTY FINANCES AND PROPERTY. 1057

CHAPTER LXXIII.
TOWN AND COUNTY FINANCES AND PROPERTY.

Section 1. Temporary loans, when to be made.

2. Funded debt not to be contracted except for specific object.

3. Municipal bonds, how paid.

4. Retirement of bonds by new issue; sale of new bonds; certificate
of amount of existing bonds; town meeting may authorize issue
of bonds.

Municipal bonds, how issued.

Municipal bonds may be registered; fees for registry; effect of

registry.

Coupon bonds may be converted into registered bonds.

Municipal bonds not invalidated by certain defects.

Limitation of indebtedness of town and county under authority

of board of supervisors. .

10. Limitation of indebtedness in county containing city of more tha
one hundred thousand inhabitants.

11. Constitutional provisions as to loan of credit or gifts by ~— wns,
cities and counties; limitation of indebtedness.

12. Resolutions of boards of supervisors authorizing issue of obligations
by town or county officers. '

13. Actions by bond holders and municipal corporations against officers
for misfeasance, malfeasance or negligence of officers in relation
to the issue of municipal bonds.

14. Board of supervisors may abolish office of railroad commissioner.

15. County judge to appoint commissioners; term of office; compensation.

16. Oath and undertaking of commissioners.

17. When railroad stock and bonds may be sold or exchanged; dis-
position of proceeds of sale.

18. Annual report of railroad commissioners and payment of railroad
bonds.

19. Accounts and loans by railroad commissioner.

20. Re-issue of lost or destroyed bonds.

21. Payment of judgments against town or county.

22. Liability for damages by mobs and riots.

23. Condemnation of real property.

24. Insurance of town or county property.

25. Supervisor to report to board of supervisors amount of town bonds
outstanding; form of report; publication.

ot

Soo A
1058 PROVISIONS RELATING TO COUNTIES AND TOWNS.

General Municipal Law, § 5.

Section 26. Duplicate report to be presented to town meeting and filed in the
office of town clerk.
27. Town board to cancel bonds and coupons which have been paid.
28. Limitation of indebtedness.
29. Legalizing bonds of municipalities; procedure.
80. Minimum rate of interest on municipal bonds.
81. Retained percentages under contracts may be withdrawn.
32. Disposition of deposit accompanying bid.
32a. Separate specifications for certain contract work.
33. Workmen’s Compensation insurance on public works.

§ 1. TEMPORARY LOANS, WHEN TO BE MADE.

Moneys shall not be borrowed by a municipal corporation on tempo-
rary loan, except in anticipation of the taxes of the current fiscal year,
and for the purposes for which such taxes are levied, and shall not be in
excess of the amount of such taxes.t Such loans shall be payable out of
the taxes on account of which such loans are made, and in no case shall
interest run on any such loan after such taxes are paid into the treasury

 

1. Power to borrow money. According to a large number of decided cases
in this and other states, the power to borrow money, if not expressly granted
by charter or by statute, does not exist by implication in a municipal corpora-
tion. See Mayor of Nashville v. Ray, 19 Wall. (U. S.) 468; Police Jury v.
Britton, 15 Wall. (U. S.) 566; Wells v. Supervisors, 102 U. S. 625; Minot v.
West Roxbury, 112 Mass. 1; 17 Am. St. Rep. 52; Hawkins v. Carroll County, 50
Miss. 762; Hackettstown v. Swackhamer, 37 N. J. L. 191; Wells v. Town of
Salina, 119 N. Y. 280; 23 N. E. 870.

The case of Wells v. Town of Salina, supra, is the leading New York case
upon this subject. In this case Judge Earl says: “It is the policy of the
laws that town charges shall be met by annual recurring taxation, and thus
extravagance and improvidence are in some degree checked, as those who
create town charges or are the taxpayers when they arise, must bear the
burden of taxation to meet them. It is quite easy for the taxpayers of
to-day to create a debt which they are not to feel and which the taxpayers
of the future are to discharge. The system of laws relating to towns requires
that all bills for moneys expended or materials furnished, or services ren-
dered to the town shall be verified and presented to the board of town
auditors and audited by them, and then enforced by warrants of the board of
supervisors against the taxpayers of the town. This whole system would
be subverted if towns could borrow money upon credit to meet town charges.
Then the money would have to be repaid whether the town had had the bene-
fit thereof or not, and the wise provisions of the statutes to secure economy
and safety by the audit of accounts would be entirely frustrated.”

In the case of Starin v. Town of Genoa, 23 N. Y. 439, Lott, J., said: “ The
towns of this state have not the general power to borrow money, nor are their
officers, in the exercise of their ordinary duties, authorized to issue bonds or
any other evidence of indebtedness in the name of the towns represented by
them, for loans or other debts contracted or incurred on their behalf.”

And in the case of Parker v. Supervisors of Saratoga County, 106 N. Y.
392; 13 N. E. 308, Andrews, J., said: “The contention that boards of super-
visors have no inherent power to borrow money or to issue negotiable paper,
accords with the general understanding and with the tenor of the adjudged
cases and the course of legislation which pre-supposes the necessity of ex-
press legislative sanction in order to justify the exercise of this authority. .
In this state the powers of boards of supervisors are not only the subject
TOWN AND COUNTY FINANCES AND PROPERTY. 1059

General Municipal Law, § 6.

of the corporation. [General Municipal Law, § 5, as amended by L.
1916, ch. 166; B. C. & G. Cons. L., p. 2109.]

§ 2. FUNDED DEBT NOT TO BE CONTRACTED EXCEPT FOR SPECI-
FIC OBJECT.

A funded debt? shall not be contracted by a municipal corporation, ex-
cept for a specific object, expressly stated in the ordinance or resolution pro-
posing it; nor unless such ordinance or resolution shall be passed by a two-
thirds vote of all the members elected to the board or council adopting it, or
submitted to, and approved by the electors of the town or county, or tax-
payers of the village or city when required by law; provided, however,
that a funded debt contracted by a city of the second class for the
building of a school building or for the construction or reconstruction
of a school building shall require for’its passage only a majority vote
of all the members elected to the common council adopting it. Such
ordinance or resolution shall provide for raising annually, by tax, a
sum sufficient to pay the interest and the principal, as the same shall
become due. Whenever bonds have been issued and sold, prior to January
first, nineteen hundred and eighteen, pursuant to this section, by a city
of the second class, located in a county having a population of not less than
two hundred thousand nor more than two hundred and fifty thousand,
the proceeds or any part thereof may be used for any purpose for which
bonds may be issued if authorized by a two-thirds vote of all the members
elected to the common council and such action of the common council is
ratified by a two-thirds vote of the members of the board of estimate and
apportionment of such city. [General Municipal Law, § 6, as amended by
L. 1910, ch. 677%, and L. 1918, ch. 210; B. C. & G. Cons. L., p. 2110.]

 

of express affirmative definition, but for the purpose of confining the action
of these bodies to the exercise of enumerated powers, it is Ceclared that ‘no
county shall possess or exercise any corporate powers, except such as are
enumerated or shall be specially given by law, or shall be necesary to the
exercise of the powers so enumerated or given.” The power of borrowing
money is incident to the powers of a business corporation, unless excluded by
its charter. Boards of supervisors have the recourse of taxation for the rais-
ing of money for county purposes. The power to borrow money is not neces-
sary to the execution of powers expressly given. But the denial of this power
to those quasi public corporations also stands strongly upon considerations
of public policy, and the doctrine that they have no implied power to borrow
Money is an important safeguard to the protection of political communities
against the creation of ruinous liabilities through the action of incapable,
negligent or unfaithful public agents. We concur, therefore, with the proposi-
tion that the power of the board of supervisors to extend the original debt by
means of new loans, or by renewals of prior obligations, if it existed, must be
found in the statute, given either expressly or by implication.”

The above section of the General Municipal Law expressly limits the power
of municipal corporations to borrow money upon a temporary loan except where
taxes have been levied for the current fiscal year, and then only can money
be borrowed for the purposes for which such taxes were expressly levied. The
object and intent of the statute was to limit the power of municipal corpora-
tions to borrow money to those cases where the obligation of the municipality
had been recognized and steps had been taken for the raising of money by
taxation to meet such obligation. See People ex rel. Moody Engineering Co.
v. Hamilton (1919), 108 Misc. 585, 178 N. Y. Supp. 702.

By subdivision 6 of section 12 of the County Law, ante, p. 55, boards of
supervisors are authorized to borrow money for certain specified purposes and
to issue county obligations therefor, and may authorize a town to borrow
money and issue its obligations for town uses and purposes.
1060 PROVISIONS RELATING TO COUNTIES AND TOWNS.
General Municipal Law, § 7.

§ 3. MUNICIPAL BONDS, HOW PAID.

Where the bonds of a municipal corporation have been lawfully issued,
and the payment of the principal or interest thereof shall not have been
otherwise paid or provided for, the same shall be a charge upon such cor-

 

2. Funded debt. The words “funded debt,” as used in the above section
include all municipal indebtedness embraced within or evidenced by a bond, the
principal of which is payable at a time beyond the current fiscal year of its
issue, with periodical terms for the payment of interest, and where provision is
made for payment by the raising of the necessary funds by future taxation and
the quasi pledging, in advance, of the municipal revenue. People ex rel. Peene
v. Carpenter, 31 App. Div. 603; 52 N. Y. Supp. 781. Where a.proposition to
establish village water ‘works and issue bonds to be refunded by an annual tax
upon property within the village is submitted to voters at a special election, the
bonds when issued become “a funded debt.” Gould v. Village of Seneca Falls,
137 App. Div. 417, 121 N. Y. Supp. 723, affd. 200 N. Y. 523.

A fund raised by a fire district under a duly adopted resolution is a funded
debt within the meaning of this section. American Metal Ceiling Co. v. New Hyde
Park Fre District (1915), 91 Misc. 236, 154 N. Y. Supp. 661.

3. For form of resolution providing for the issue of town and county bonds
adopted by a board of supervisors, see Form No. 115, post. Bach such resolu-
tion must contain a provision for raising annually by taxation a sum sufficient
to pay the interest and the principal as the same shall become due. Without
such provision the bonds issued pursuant to the resolution would be of doubtful
validity.

App:ication. This section does not apply to a proposition submitted to tax-
payers to acquire property at a maximum figure, since the extent of the liability
therefor cannot be ascertained at the time of the passage of the resolution.
Village of Waverly vy. Waverly Water Co., 127 App. Div. 440, 444, 112 N. Y. Supp.
1149.

When municipal improvements are voted with the provision that 90 per cent.
of their cost shall be borne by abutting property owners and 10 per cent. by
the village at large, bonds for the whole cost are not authorized by such vote;
but where legislative authority is subsequently given for an issue of bonds for
the whole amount of certain of the improvements, and bonds for the full amount
of the remainder of the improvements are expressly authorized by a subse-
quent vote of the electors, they may constitute valid obligations of the munici-
pality. Matter of Village of Kenmore, 59 Misc. 388, 110 N. Y. Supp. 1008.

This section does not require the resolution to specify the sum which shall be
raised. Thus, a bonding proposition submitted to the taxpayers of a village
which provides for “a sum to be raised annually by levying a tax on all taxable
property in said village sufficient to pay the interest and principal of all said
bonds as the same become due, complies with this section. Village of Branx-
ville v. Seymour, 122 App. Div. 377, 106 N. Y. Supp. 834.

Where a resolution proposing an issue of bonds does not comply with the
provisions of the above section to the effect that such resolution shall provide
for raising annually by a tax a sum sufficient to pay the interest and the princi-
pal of such bonds as the same shall become due it is fatally defective. A state-
ment in a resolution “that a sum sufficient to pay the interest and principal of
said bonds as the same shall become due, be raised by an annual tax, as other
taxes for general purposes in said village are raised.” is not sufficient, It
should state the installments in which the bonds were to be made payable and
the nT DEy mnie eee in each year. Village of Canandaigua v.
Peves ON Ann Diy, 326, . Y. Supp. 488. See Lyon v. B :
Div. 222, 145 N. Y. Supp. 424. : Inghamton, 160 Apn.
TOWN AND COUNTY FINANCES AND PROPERTY. 1061

General Municipal Law, § 8.

poration, and shall be levied and assessed, collected and paid the same as
other debts and charges. When for any reason any portion of the principal
or interest due upon such bonds shall not have been paid, the same shall be
assessed, levied and collected at the first assessment and collection of taxes
by such corporation after such omission.* [General Municipal Law, § 7;
B. C. & G. Cons. L., p. 2110.]

§ 4. RETIREMENT OF BONDS BY NEW ISSUE; SALE OF NEW
BONDS; CERTIFICATE OF AMOUNT OF EXISTING BONDS;
TOWN MEETING MAY AUTHORIZE ISSUE OF BONDS.

The bonded indebtedness of a municipal corporation, including interest
due or unpaid, or any part thereof, may be paid up or retired by the issue
of the new substituted bonds for like amounts by the board of supervisors
or supervisor, board, council or officers having in charge the payment of
such bonds. Such new bonds shall only be issued when the existing bonds
can be retired by the substitution of the new bonds therefor, or can be
paid up by money realized by the sale of such new bonds. Where such
bonded indebtedness shall become due within two years from the issue of
such new bonds, such new bonds may be issued and sold to provide money
in advance to pay up such existing bonds when they shall become due.
Such new bonds shall contain a recital that they are issued pursuant to this
section, which recital shall be conclusive evidence of their validity and of
the regularity of the’ issue; shall be made payable not less than one or more
than thirty years from their date; shall bear date and draw interest from
the date of the payment of the existing bonds, or the receipt of the money
to pay the same, at not exceeding the rate of five per centum per annum,
payable quarterly, semi-annually or annually; and an amount equal to not
less than two per centum of the whole amount of such new bonds may be
payable each year after the issue thereof. Such new bonds shall he sold and
negotiated at the best price obtainable, not less than their par value; shall
be valid and binding on the municipal corporation issuing them. All bonds
and coupons retired or paid shall be immediately canceled. A certificate
shall be issued by the officer, board or body issuing such new bonds, stating

 

4, Payment of town bonds. It is the duty of a town to provide mears for the
payment of its bonds lawfully issued. In case of failure to perform its duty,
the holder of the bonds may maintain an action against the town thereon, and
this, although by the act under which they were issued, it is made the duty of
the board of supervisors of the county to impose and levy a tax to pay the bonds.
Such settled and admitted obligations of the town need not be audited and
‘ allowed by the board of town auditors. Marsh v. Town of Little Valley, 64 N. Y.
112; see, also, Horn v. Town of New Lots, 83 N. Y. 100.
1062 PROVISIONS RELATING TO COUNTIES AND TOWNS.

General Municipal Law, § 9.

the amount of existing bonds, and of the new bonds so issued, which shall
be forthwith filed in the office of the county clerk. Except as provided in
this section, new bonds shall not be issued in pursuance thereof, for bonds
of a municipal corporation adjudged invalid by the final judgment of a
competent court. A majority of the taxpayers of a town, voting at a general
town meeting, or special town meeting duly called, may authorize the issue
in pursuance of this section of new bonds for such invalid bonds, and each
new bond so issued shall contain substantially the following recital: “The
issue of this bond is duly authorized by a vote of the taxpayers of the said
town,” which shall be conclusive evidence of such fact. The payment,
adjustment or compromise of a part of the bonded indebtedness of a muni-
cipal corporation shall not be deemed an admission of the validity or a
recognition of any part of the bonded indebtedness of such municipal corpo-
ration not paid, adjusted or compromised. All bonds of a municipal
corporation, until payable, shall be exempt from taxation for town, county,
municipal or state purposes. [General Municipal Law, § 8; B. C. & G.
Cons. L., p. 2111.]

§ 5.. MUNICIPAL BONDS, HOW ISSUED.

Each bond issued by a municipal corporation shall be signed by each
officer issuing the same, with the designation of his office; and the interest
coupons attached thereto, if any, shall be signed by one of their number.
Each such bond shall state the place of payment and, if no coupons are
attached thereto, the name of the payee shall be inserted therein and
registered with the treasurer, chamberlain, comptroller, supervisor, clerk
or other designated official of such municipal corporation before any
interest shall be paid thereon ;

All bonds hereafter issued by any municipal corporation, or by any
school district or civil division of the state, shall be sold, in the case of a
city of the first class as required by its charter or by any special act under
which such bonds are issued, in the case of a city of the second class as
required by section sixty-one of the second class cities law, and in all other
cases at public sale not less than five or more than thirty days after a
notice of such sale, stating the amount, date, maturity and rate of interest,
has been published at least once in the official paper or papers, if any, of
any such municipality, provided that if there is no official paper, then such
notice of sale shall be published in a newspaper published in the county
in which such bonds are to be issued, or a copy thereof shall be sent to and
published in a financial newspaper published and circulating in New

5. Issue of new bonds for existing bonds. The law, as it existed prior to the
amendment of 1897 to the section of the former law, did not expressly permit the
issue of new bonds by a municipal corporation to take the place of bonds which
had been declared invalid. But under the law prior to such amendment it was)
held that where bonds were issued in exchange for others, which were con-
tested, and the validity of which was in dispute, the town will be deemed to
have elected to compromise by the issue of the new bonds, and cannot thereafter
contest the validity of such new bonds on the ground of the illegality of those
which had been retired. Hills v. Peekskill Sav. Bank, 101 N. Y. 490; 5 N. E. 327.

Wherever under the present law it is sought to cure the defects in existing
bonds by the issue of new bonds the provisions of the above section relating thereto
must be complied with.
TOWN AND COUNTY FINANCES AND PROPERTY. 1063

General Municipal Law, § 10.

York city. [General Municipal Law, § 9, as amended by L. 191%, ch.
534; B. C. & G. Cons. L., p. 2112.]

§ 6. MUNICIPAL BONDS MAY BE REGISTERED; FEES FOR REG-
ISTRY; EFFECT OF REGISTRY.

Each municipal corporation shall keep in the office of its clerk suitable
books, in which shall be entered a full description of the amount, rate of
interest, class, number, date of issue, pursuant to what law and maturity
of all bonds issued by any of its officers and, if such statement is not already

 

6. Compliance with statute. The rule is settled in this state, that to entitle a
party to recover in an action upon bonds issued by a municipality there must be
affirmative and extrinsic proof that all the preliminary conditions required to
authorize the issue of such bonds have been complied with. Dodge v. County of
Platte, 82 N. Y. 218; Town of Venice v. Woodruff, 62 N. Y. 465; People v. Mead,
24 N. Y. 114; Starin v. Town of Genoa, 23 N. Y. 439.

Although where towns are authorized to issue bonds under special statutes te
pay the expenses of improvements, the holder of the bonds must show that the
requirements of the law have been complied with, yet where the plaintiff shows
the taking of the oath by the commissioners appointed to carry out the im-
provement, that they entered upon the discharge of their duties, that the im-
provement was made by them, and that the bonds were issued by the town on
the requisition from the commissioners for such improvement, and the defend-
ants admit that the bonds set forth in the complaint were made, signed and
countersigned as therein mentioned, a prima facie case of the due and proper
ae of the bonds is established. Manhattan Sav. Inst. v. Town of Hast Chester, 44

un, 537.

The fact that the names of the commissioners authorized to issue the bonds
were lithographed on the coupons of such bonds was held not to make them
invalid, as the commissioners adepted and delivered as their own the signatures
in that form. Reattys-v. Town of Solon, 64 Hun, 120; 19 N. Y. Supp. 37.

Execution by two of three commissiozers. Where town bonds are executed
by two only of three commissioners authorized to issue such bonds, it will be pre-
sumed, in absence of any proof to the contrary that the third commissioner had
notice of the meeting when the bonds were issued, and consulted with those who
acted: and the absence of his signature will not, therefore, invalidate the bonds.
Hilis v. Peekskill Sav. Bank, 46 Hun, 180.

Recital in bonds. The recital contained in a municipal bond should show
the authority under which the officer acted who executed the bond. It was held
in the case of Dodge v. Platt, 82 N. Y. 218, 230, that since the recital in the
bonds did not show or tend to establish any power or, authority to issue the
same, that the plaintiff could not be regarded as a bona fide holder of the coupons
for value without notice; for no presumption is to be indulged in favor of the
validity of bonds issued under statutory authority where the recital is such as
to put the holder upon inquiry. A recital that all necessary legal steps and pro-
ceedings have been taken to comply with the laws under which the bonds were
issued, does not estop the town board from disputing their validity, even in the
hands of a bona fide holder. Starin v. Town of Genoa, 23 N. Y. 489; Craig v.
Town of Andes, 93 N. Y. 405.

Services in sale of bonds. An express power in a board of water commission-
ers to sell water bonds carries with it the implied power to employ such reason.
able or proper assistance as may be requisite to bring about an advantageous
sale; and this power is not limited to the employment of a broker to sell the
bonds. Armstrong v. Village of Ft. Edward, 159 N. Y. 315: 53 N. E. 1116, revg.
84 Hun, 261, 32 N. Y. Supp. 433.
1064 PROVISIONS RELATING TO COUNTIES AND TOWNS.
General Municipal Law, § 11.

entered, of all bonds converted from coupon into registered bonds. A bond to
which no coupons are attached may be registered, at the request of the payce,
in the books so kept in the office of such clerk, and a certificate of such regis-
try shall be indorsed upon the bond by such clerk, and attested by his seal, if
he has one. The clerk shall be entitled to a fee of twenty-five cents for each
bond so registered. The principal and interest of w registered municipal bond
shall be payable only to the payee, his legal representatives, successors or as-
signs, and shall be transferable only upon presentation to such clerk, with a
written assignment duly acknowledged or approved. The name of the assignce
shall be entered upon such bond so transferred and the books so kept in the
office of the clerk. It shall be the duty of the clerk or other officer having charge
of the office where such registry is kept, to transmit a statement of such
indebtedness to the clerk of the board of supervisors of the county in which
such office is situated, annually, on or before the first day of November. Except
that in cities of the second class, the books of the municipal corporation in
which there shall be entered a description of the amount, rate of interest, class,
number, date of issue, pursuant to what law, and the maturity of all bonds
issued by any of its officers, and of all bonds converted from coupon into regis-
tered bonds, as above provided, shall be kept in the office of the comptroller of
said city instead of in the office of the city clerk, and all the duties to be performed
by the clerk of the municipal corporation, as hereinbefore provided, shall, in
cities of the second class, be performed by the comptroller of said city instead of
by the clerk; and all municipal bonds in cities of the second class shall be regis-
tered with the comptroller instead of with the clerk. And, except further, that
in the case of the issuance of county bonds the books in which there shall be
entered a description of the amount, rate of interest, class, number, date of issue,
pursuant to what law, and the maturity of all bonds issued by any of its officers
and of all bonds converted from coupons into registered bonds, as above provided,
shall be kept in the office of the county treasurer of such county and all the
duties to be performed by the clerk of the municipal corporation, as hereinbefore
provided, shall, in the case of county bonds, be performed by the county treasurer
of such county; and all such county bonds shall be registered by the treasurer of
the county instead of the clerk of such municipal orporation. [General Municipal
Law, § 10, as amended by L. 1910, ch. 129, and L. 1915, ch. 382; B. C. & G. Cons.
L., p. 2113.]

§ 7% COUPON BONDS MAY BE CONVERTED INTO REGISTERED
BONDS.

When the owner of coupon bonds of a municipal corporation shall present
any such bonds to the officers who issued the same, or their successors, with
a written request for their conversion into registered bonds, such officer
shall cut off and destroy the coupons and stamp, print or write upon each
of the bonds a statement, properly dated, of the amount and value of such
coupons, and that the interest, at the rate and on the date, as was provided
by the coupons, as well as the principal, is to be paid to such owner, his
legal representatives, successors or assigns, at a place therein stated, which
shall be the place stated in the coupons, unless changed with the written
consent of the owner; and thereupon such bonds may be registered in the
office of the clerk of the municipal corporation. This section shall not apply

 

Duty to provide for payment. It is the duty of a town to provide means
for the payment of its bonds lawfully issued. In case of failure to perform this
duty the holder of the bonds may maintain action against the town thereon,
even if it is made the duty of the Board of Supervisors to levy a tax to pay the
bonds. Marsh v. Town Little Valley, 64 N. Y. 112.

Town bonds are not negotiable paper. There can be no bona fide holder
of town bonds within the meaning of the law applicable to negotiable paper, as
they can only be issued by virtue of special authority conferred by some statute,
and are only binding upon the town when issued in a way pointed out by the
statute. Persons taking them must show that the provisions of the statute are
complied with. Cagwin v. Town of Hancock, 84 N. Y. 532.
TOWN AND COUNTY FINANCES AND PROPERTY. 1063
County L., § 13; General Municipal Law, §§ 3, 12.

where provision is otherwise made by law or local ordinance, for the con-
version or exchange of coupon for registered bonds. [General Municipal
Law, § 11; B. C. & G. Cons.'L., p. 2113.]

§ 8. MUNICIPAL BONDS NOT INVALIDATED BY CERTAIN DE-
FECTS.

When the bonds of a municipal corporation have been issued and sold
by the proper authorities, and the time fixed for their maturity shall be for
a longer period than provided by the law under which they were issued, a
variance of not exceeding sixty days shall not affect their validity. [Gen-
eral Municipal Law, § 12; B. C. & G. Cons. L., p. 2114.]

§ 9. LIMITATION OF INDEBTEDNESS OF TOWN AND COUNTY
UNDER AUTHORITY OF BOARD OF SUPERVISORS.

An issue of town or county obligations shall not be authorized when such
issue, with the amounts issued and outstanding under any previous or other
authority of the board, shall exceed ten per centum of the assessed valuation
of the real estate of such town or county, as it shall appear on the last
assessment-rolls thereof, except that in towns such obligation may be issued
in excess of such amount with the assent of a majority of the electors of
such town whose credit is proposed to be given, voting on the question at a
regular town meeting of such town; but in no case shall the amount of such
town obligations, issued and outstanding, exceed one-third of such assessed
valuation. This section shall not include any case where special authority
has been given by the legislature to issue such town obligations in excess of
the amounts herein authorized. [County Law, § 13; B. C. & G. Cons. L.,
p. 716.]

§ 10. LIMITATION OF INDEBTEDNESS IN COUNTY CONTAINING
CITY OF MORE THAN ONE HUNDRED THOUSAND INHAB-
ITANTS,

No county containing a city of more than one hundred thousand in-
habitants, nor any such city shall contract any debt, the amount of which,
exclusive of its outstanding debt shall exceed a sum equal to five per
centum of the aggregate valuation of the real property within its bounds,
as assessed for state and county purposes upon the then last corrected
assessment-roll, nor shall it contract any such debt if the amount thereof
inclusive of its outstanding debts shall exceed a sum equal to ten per centum
of such valuation. This section shall not be construed to prevent the issu-
ing of certificates of indebtedness or revenue bonds issued in anticipation
of the collection of taxes of amounts actually contained or to be contained
1066 PROVISIONS RELATING TO COUNTIES AND TOWNS.

Constitution, art. 8, § 10.

in the taxes for the year when such certificates or revenue bonds are issued
and payable out of such taxes. Nor shall this section be construed to pre-
vent the issuing of bonds to provide for the supply of water, but the term of
the bonds issued to provide for the supply of water shall not exceed twenty
years, and the sinking fund shall be created on the issuing of said bonds
for their redemption by raising annually a sum which will produce an
amount equal to the amount of the principal of said sum and interest of
said bonds at their maturity. This section shall not apply to debts con-
tracted for the purpose of retiring or paying any existing indebtedness pur-
suant to the provisions of this chapter. [General Municipal Law, § 3;
B. C. & G. Cons. L., p. 2108.]

§ 11. CONSTITUTIONAL PROVISIONS AS TO LOAN OF CREDIT OR
GIFTS BY TOWNS, CITIES AND COUNTIES; LIMITATION
OF INDEBTEDNESS.

No county, city, town or village shall hereafter give any money or prop-
erty, or loan its money or credit to or in aid of any individual, association
or corporation, or become directly or indirectly the owner of stock in, or
bonds of, any association or corporation; nor shall any such county, city,
town or village be allowed to incur any indebtedness except for county,
city, town or village purposes.”

 

7. County, city or town purposes. The credit of the county, city or town
cannot be loaned, nor can any such county, city or town incur any indebtedness
except for a county, city or town purpose. Such a purpose is one which is
necessary for the common good and general welfare of the municipality sanc-
tioned by its citizens, public in character and authorized by the legislature.
Sun Printing Co. v. Mayor, 152 N. Y. 257; 46 N. E. 499. In the case of Parsons
v. Van Wyck, 56 App. Div. 329, 337; 67 N. Y. Supp. 1054, the court said:
“Speaking generally, what undoubtedly was aimed at by the constitutional
provision, was to prevent the appropriation of moneys raised by taxation for
private enterprises and purposes as distinguished from public, and although
every public purpose is not necessarily a city purpose, yet where the object
sought is to promote the welfare of all the citizens and the advantages to
be derived from the proposed appropriation are common property and are
within the legitimate scope of municipal enterprises in the way of securing the
advancement, education, the convenience or health of the people ard the adorn-
ment of the city, it is competent for the legislature to authorize the expendi-
ture.” This remark is evidently as appropriate in the case of a town or count’
purpose as in that of a city purpose. In this case it was held that an ac~
authorizing the construction of a soldiers’ monument and the issue of bonds in
payment thereof are a proper exercise of legislative function, and that the bonds

so issued were for a legitimate city purpose. As to what constitutes indebtedness
within the meaning of this section see O’Reilly v. City of Kingston (1916), 175 App.
Div. 207, 161 N. Y. Supp. 632.

In the case of Deady v. Village of Lyon, 39 App. Div. 139, 57 N. Y. Supp. 448,
TOWN AND COUNTY FINANCES AND PROPERTY. 1067

Constitution, art. 8, § 10.

This section shall not prevent such county, city, town or village from
making such provision for the aid or support of its poor as may be author-
ized by law. No county or city shall be allowed to become indebted for any
purpose or in any manner to an amount which, including existing indebted-
ness, shall exceed ten per centum of the assessed valuation of the real
estate of such county or city subject to taxation, as it appeared by the
assessment rolls of said county or city on the last assessment for the state
or county taxes prior to the incurring of such indebtedness; and all in-
debtedness in excess of such limitation, except such as now may exist, shall
be absolutely void, except as herein otherwise provided. No county or city
whose present indebtedness exceeds ten per centum of the assessed valuation
of its real estate subject to taxation, shall be allowed to become indebted in
any further amount until such indebtedness shall be reduced within such
limit. This section shall not be construed to prevent the issuing of certifi-
cates of indebtedness or revenue bonds issued in anticipation of the col-
lection of taxes for amounts actually contained or to be contained in the
taxes for the year when such certificates or revenue bonds are issued and
payable out of such taxes; nor to prevent the city of New York from
issuing bonds to be redeemed out of the tax levy for the year next suc-
ceeding the year of their issue; provided that the amount of such bonds
which may be issued in any one year in excess of the limitations herein
contained shall not exceed one-tenth of one per centum of the assessed
valuation of the real estate of said city subject to taxation.. Nor shall
this section be construed to prevent the issue of bonds to provide for
the supply of water; but the term of the bonds issued to provide the
supply of water, in excess of the limitation of indebtedness fixed herein,
shall not exceed twenty years, and a sinking fund shall be created on
the issuing of the said bonds for their redemption, by raising annually
a sum which will produce an amount equal to the sum of the principal
and interest of said bonds at their maturity. All certificates of indebt-
edness or revenue bonds issued in anticipation of the collection of taxes,
which are not retired within five years after their date of issue and
bonds issued to provide for the supply of water, and any debt hereafter

 

it was held that an expenditure of money by a village for the purpose of retaining
a county court house therein, and preventing its removal to another village, is in
violation of the provisions of the above section to the effect that no county, city,
town or village shall ‘‘give any. money or property, or loan its money or credit to,
or in aid of, any individual, association or corporation;’’ this prohibition includes
gifts to public as well as to private corporations.

Public purpose; engaging in trade by municipality. See Atty. Genl. Opiniong
(1917), 11 St. Dept. Rep. 540.

Firemen; payment for injuries of, not within prohibition. Matter of Hammond
vy. City of Fulton (1917), 220 N. Y. 337,115 N E. 998, revg. 176 App. Div. 343, 163
N. Y. Supp. 51.

County Law, § 240, subd. 16, as to expenses of county officer in defending him-
self does not offend this section. Gavin v. Supervisors (1917), 221 N. Y. 222, 116
N. E. 996, affg. 174 App. Div. 900, 159 N. Y. Supp 1114.

See also Matter of Goldschmidt v. Hardy (1917), 177 App. Div. 547, at 551, 163
N. Y. Supp. 305, which cites this section.
1068 PROVISIONS RELATING TO COUNTIES AND TOWNS.
Constitution, art. 8, § 10.

incurred by any portion or part of a city if there shall be any such debt,
shall be included in ascertaining the power of the city to become other-
wise indebted ; except that debts incurred by any city of the first class
after the first day of January, nineteen hundred and four, and debts
incurred by any city of the second class after the first day of January,
nineteen hundred and eight, and debts incurred by any city of the third
class after the first day of January, nineteen hundred and ten, to pro-
vide for the supply of water, shall not be so included; and except further
that any debt hereafter incurred by the city of New York for a public
improvement owned or to be owned by the city, which yields to the city
current net revenue, after making any necessary allowance for repairs
and maintenance fcr which the city is Hable, in excess of the interest
on said debt and of the annual instalments necessary for its amortiza-
tion may be excluded in ascertaining the power of said city to became
otherwise indebted, provided that a sinking fund for its amortization
shall have been established and maintained and that the indebtedness
shall not be so excluded during anv period of time when the revenue
aforesaid shall not be sufficient to equal the said interest and amortiza-
tion instalments, and except further that any indebtedness heretofore
ineurred by the city of New York for any rapid transit or dock invest-
ment may be so excluded proportionately to the extent to which the
current net revenue received by said city therefrom shall meet the in-
terest and amortization instalments thereof, provided that any increase
in the debt incurring power of the city of New York which shall result
from the exclusion of debts heretofore incurred shall be available only
for the acquisition or construction of properties to be used for rapid
transit or dock purposes. The legislature shall prescribe the method
by which and the terms and conditions under which the amount of any
debt to be so excluded shall be determined, and no such debt shall be
excluded except in accordance with the determination so prescribed.
The legislature may in its discretion confer appropriate jurisdiction
on the appellate division of the supreme court in the first judicial de-
partment for the purpose of determining the amount of any debt to be
so excluded. No indchtedness of a city valid at the time of its incep-
tion shall thereafter become invalid by reason of the operation of any
of the provisions of this section. Whenever the boundaries of any city
are the same as those of a county, or when any city shall include within
its boundaries more than one county, the power of any county wholly
included within such city to become indebted shall cease, but the debt
of the county, heretofore existing, shall not, for the purposes of this‘
section, be reckoned as a part of the city debt. The amount hereafter.
to be raised by tax for county or city purposes, in any county contain- |
ing a city of over one hundred thousand inhabitants, or any such city
of this state, in addition to providing for the principal and interest of
existing debt, shall not in the aggregate exceed in any one year two per
centum of the assessed valuation of the real and personal estate of such
county or city, to be ascertained as prescribed in this section in respect
TOWN AND COUNTY FINANCES AND PROPERTY. 1069
County Law, § 14; General Municipal Law, § 52.

to county or city debt.. [Constitution, art. 8, § 10, as amended by vote
of the people, November 6th, 1917.]

§ 12. RESOLUTIONS OF BOARDS OF SUPERVISORS AUTHORIZING
ISSUE OF OBLIGATIONS BY TOWN OR COUNTY OFFICERS.
Every resolution of any such board, authorizing the issue of such obliga-
tions, shall specify the form thereof, the place of payment, in annual instal-
ments or otherwise, within a period not exceeding thirty years from the
date of such obligation, and the rate of interest to be paid thereon, not ex-
ceeding the legal rate; and no such obligation shall be sold for less than
par. Such resolution shall also contain a provision requiring adequate
security to be given by the officer, or board of officers authorized to issue
such obligations, for the faithful performance of his, or their duty, in issu-
ing the same, and the lawful application of the funds arising therefrom,
and of the funds which may be raised by tax for the payment thereof, which
may come into their hands.* [County Law, § 14; B. C. & G. Cons. L.,
p. 717.]

§ 13. ACTIONS BY BOND HOLDERS AND MUNICIPAL CORPORA-
TICNS AGAINST OFFICERS FOR MISFEASANCE, MALFEAS-
ANCE OR NEGLIGENCE OF OFFICERS IN RELATION TO THE
ISSUE OF MUNICIPAL BONDS.

Recovery against officer by bona fide holder—Any bona fide purchaser
and holder of any bonds or other obligations for the payment of money
payable to bearer and transferable by delivery, and any such purchaser and
holder of any interest-bearing coupon or obligation originally attached to
such bonds, which said bonds or coupons shall have been issued or put in
circulation by means of the misfeasance, malfeasance, or negligence of any
public officer, of any of the civil or municipal divisions of this state, whose
right of recovery or cause of action upon any such bond or coupon has
been, or shall be determined by the judgment of a court of competent
jurisdiction in any suit or action, or who has been or shall be a privy to
such suit or action, may within three years after the determination of said
right of recovery and cause of action begin an action against such officer,
and recover all damages which said purchaser, holder or privy shall have

 

8. For form of resolution of board of supervisors authorizing the issue of
town and county obligations, see Form No. 115, post.

Section prescribes form and term of obligations, which shall not exceed thirty
years. and limits the rate of interest to the legal rate. Ghiglione v. Marsh, 23
App. Div. 61, 48 N. Y. Supp. 604.
1070 PROVISIONS RELATING TO COUNTIES AND TOWNS.
General Municipal Law, §§ 53-55.

suffered because of the misfeasance, malfeasance or negligence of such public
officer. [General Municipal Law, § 52; B. C. & G. Cons. L., p. 2128.]

Recovery against officer by municipal corporationAny municipal cor-
poration within this state, or any civil division of this state, which
has been or shall be compelled to pay any negotiable bond, or any cou-
pon originally attached to such bond, by the judgment of a court of
competent jurisdiction, because of the misfeasance, malfeasance, or neg-
ligence of any public officer or agent of such municipal corporation or
civil division, may within three years from the time when such payment
shall have been compelled as aforesaid, begin an action against any such
officer in any court of competent jurisdiction and recover the amount so
paid with interest from the time of such payment. [General Municipal
Law, § 53; B. C. & G. Cons. L., p. 2129.]

Statute of limitations——No limitation of the time for commencing an
action shall affect any of the actions hereinbefore mentioned except as herein
provided, and in such action an order of arrest and an execution against
the person of the defendant may be issued in the manner and form pro-
vided by the Code of Civil Procedure against a person who shall have
wrongfully misappropriated money held by him in a fiduciary capacity.
[General Municipal Law, § 54; B. C. & G. Cons. L., p. 2129.]

Appeals——In any suit or action upon any coupon hereinbefore men-
tioned, or upon any bonds hereinbefore mentioned, or to recover any damages
hereinbefore mentioned, any party to such action shall have and is hereby
granted a right of appeal, to the general term or appellate division of the
Supreme Court from the judgment of any trial court, or to the Court of
Appeals from any judgment of the general term or of the appellate division
of the Supreme Court, althongh the amount in controversy in such action
has been or may be, less than five hundred dollars. Appeals from any
inferior court to any appellate court, including an appeal to the Court of
Appeals although the amount in controversy may be less than five hundred
dollars, from any judgment in any suit or action to recover against any
municipal corporation or civil division of this state upon any negotiable
bonds or upon any coupon originally attached thereto, issued or put in circu-
lation by the agents or officers of such municipal corporation or civil di-
vision of this state, may be taken by any person who has been or shall be
bound as a privy by such judgment within sixty days after such privy shall
have been served by any of the parties to such civil action, with a copy of
the said judgment and with a written notice of the entry thereof, and said
appeal may be taken in the name of such party without entering an order
of substitution as such party by said person so bound as a privy, upon his
giving the security and serving the notices of appeal prescribed by the
Code of Civil Procedure concerning an appeal by a party to such an action,
and also upon giving to the party in whose name such an appeal is taken
TOWN AND COUNTY FINANCES AND PROPERTY. 1071

General Municipal Law, § 16.

an undertaking with two sufficient sureties conditioned in the penal sum of
five hundred dollars, to save such party to such action in whose name such
appeal shall be taken harmless of and from all costs and disbursements
which may be recovered against him upon such appeal, which said under-
taking shall be approved as to its form and as to the sufficiency of the
sureties thereon by justices of the Supreme Court. Said appeal when so
taken by said privy shall be conducted and determined in the same manner
as if taken by said party of the said action, except as herein otherwise pro-
vided. [General Municipal Law, § 55; B. C. & G. Cons. L., p. 2129.]

§ 14. BOARD OF SUPERVISORS MAY ABOLISH OFFICE OF RAIL-
ROAD COMMISSIONER.

The board of supervisors of any county may, upon the application of the
auditing board of any municipal corporation therein, by resolution, abolish
the office of rairoad commissioners of such municipal corporation, and
direct the manner of the transfer of their duties to the supervisor of the
town, or the treasurer of the municipal corporation other than a town, and
upon his compliance with such directions, such transferee shall be vested
with all the powers conferred upon such railroad commissioners and subject
to all the duties imposed upon them.?? [General Municipal Law, § 16; B.
C. & G. Cons. L., p. 2117.]

 

9. Right of appeal. The provision of the act for the protection of bona fide
holders of negotiable municipal bonds put in circulation through official mis-
feasance to the effect that a party or privy of a party to any action upon such
bonds, or upon coupons thereof is given a right of appeal to the several appel-
late courts of the state, including “an appeal to the Court of Appeals, although
the amount in controversy may be less than $500,” applies to those actions only
in which the right of appeal had not been exhausted when the act was passed.
Germania Sav. Bank v. Supension Bridge, 159 N. Y. 362; 54 N. B. 33.

10. Office of railroad commissioner abolished. The above section of the
General Municipal Law was inserted as a new section by the Statutory Revision
Commission. See report of Statutory Revision Commission, 1892. General
Municipal Law, §§ 226-230, authorizes towns having railroad commissioners to
transfer the powers and duties of such officers to the supervisors of such towns,
and to abolish the office of railroad commissioner. The above section of the
General Municipal Law would seem to provide additional means for abolishing
the office of railroad commissioner, and notwithstanding this enactment action
may properly be taken under §§ 226-230. Such sections are, therefore, inserted
and are as follows:

“Transfer of powers of railroad commissioner to supervisor. Every town
in which railroad commissioners heretofore appointed or elected under the
provisions of any general or special statute of this state authorizing towns to
incur indebtedness in aid of the construction of any railroad, remain in office,
and in which the duties imposed by such statutes, upon such commissioners, are
1072 PROVISIONS RELATING TO COUNTIES AND TOWNS.
General Municipal Law, § 14.
§ 15. COUNTY JUDGE TO APPOINT COMMISSIONERS; TERM OF

OFFICE; COMPENSATION.

The county judge of any county within which is a municipal corporation
having or being entitled to have railroad commissioners, on October first,
eighteen hundred and ninety-two, and in which the duties imposed upon

 

not yet fully performed, is hereby authorized and empowered, at an annual
town meeting, or at a special town meeting called for such purpose in the
manner prescribed by law, to authorize the transfer of the powers and duties
of such railroad commissioner or commissioners to the supervisor of such town,
by a resolution to such effect passed and adopted by a majority vote of all per-
sons voting at such town meeting. [General Municipal Law, § 226; B. C. & G.
Cons L., p. 2152.]

“ Supervisor’s bond. Within twenty days after the passage of such resolution
at such town meeting the said supervisor shall file in the office of the town
clerk of said town a bond running to the people of the state of New York, exe-
cuted by himself and two or more sureties, in a penalty to be fixed by the board
of town auditors of said town as hereinafter provided, and conditioned for the
faithful performance of the duties of railroad commissioners transferred to him
under said resolution, and the payment over according to law of all moneys
coming into his hands by reason of such transfer; such bonds also to be ap-
proved as to form and sufficiency of sureties by the county judge of the county
in which said town is located. [General Municipal Law, § 227; B. C. & G. Cons.
L., p. 2152.]

“ Transfer, when to take effect. Forthwith, upon the filing of such bond as
aforesaid, the town clerk of the town shall indorse upon copies of such bond
to be provided by the said supervisor, a certificate to the effect that the said
bond has been filed in the office of such town clerk, and said supervisor shall
serve such copies and certificate upon the railroad commissioners respectively,
and thereupon it shall be the duty of such railroad commissioners to pay over
to such supervisor all moneys remaining in their hands as railroad commis-
sioners of such town, and to deliver all books, papers, securities and other prop-
erty belonging to said town and remaining in their hands as such commissioners
unto the said supervisor, and to take his receipt therefor, which receipt shall be
to them a proper and sufficient voucher. Immediately upon the delivery of
said moneys and property by the said railroad commissioners to the super-
visor, as aforesaid, and in the manner aforesaid, the office of railroad com-
missioner of such town shall wholly cease, and the said supervisor shall there-
upon be invested with all the powers conferred upon such railroad commissioners
by the statute and proceedings under and by which they were appointed, and
shail be subject to all the duties imposed upon such commissioners by such stat-
ute, and all securities and evidences of debt transferred by said commissioners
to said supervisor as aforesaid, which by the terms thereof are payable to the
said railroad commissioners, shall be paid when due to said supervisor, upon his
indorsement as supervisor, in the same manner and to the same effect as if
indorsed by said railroad commissioners. [General Municipal Law, § 228; B. C.
and G. Cons. L., p. 2153.]

“ Amount of bond, how fixed. The board of town auditors shall meet for the
TOWN AND COUNTY FINANCES AND PROPERTY. 1073

General Municipal Law, § 15.

such commissioners are not fully performed, shall continue to appoint and
commission, upon the application of twenty freeholders within such corpo-
ration, three persons, who shall be freeholders and resident taxpayers
therein, commissioners for the purpose of performing the duties and com-
pleting the business required of them pursuant to this chapter or any law.
Such commissioners shall hold their office for five years, and until others
are appointed by the county judge, unless their duties shall be sooner per-
formed, or the office shall be abolished, who shall also, in like manner, fill
any vacancies that may exist therein. Such commissioners shall each re-
ceive the sum of three dollars per day for each day actually engaged in the
discharge of their duties, and the necessary disbursements to be audited and
paid by the usual auditing and disbursing officers of such municipal corpo-
ration. A majority of such commissioners, at a meeting of which all have
notice, shall constitute a quorum." [General Municipal Law, §14;B.0.&
G. Cons. L., p. 2116.] |

§ 16. OATH AND UNDERTAKING OF COMMISSIONERS.
Before entering upon their duties such commissioners shall take the

 

purpose of fixing the penalty of the bond of said supervisor, as provided in
section two hundred and twenty-seven of this article, at the office of the town
clerk within ten days after the town meeting at which the resolution herein-
before provided for was passed, upon a day to be fixed by said town clerk,
whereof each member of said board shall be notified by said clerk either person-
ally or by mail, at least three days before the time fixed for said meeting. In fix-
ing the penalty of the bond to be given by said supervisor under the provisions
of section two hundred and twenty-seven of this article, said board of town au-
ditors shall take into consideration the amount of moneys likely to come into
the hands of such supervisor by reason of the additional duties imposed upon
him by this article. Hereafter, in a town in which the duties of railroad com-
missioner have been transferred to the supervisor, the general bond given by
such officer, conditioned to safely hold and pay over all moneys coming into his
hands and belonging ‘to said town, shall be deemed to include and be a security
for the payment over of all moneys coming into the hands of such supervisor
under and by reason of the provisions of this article. [General Municipal Law,
§ 229: B. CG. and G. Cons. L., p. 2154.]

“ Additional compensation of supervisor. For the performance of the addi-
tional duties devolved upon him under the provisions of this article, such
supervisor shall be entitled to reasonable compensation, to be fixed by the
board of town auditors of such town.” [General Municipal Law, § 280; B. C. and
G. Cons. L., p. 2154.)

11. Commissioners not town officers. Under the former law it was held that
town commissioners are not town officers and that a town was not bound by the
acts of its commissioners beyond the authority of the act under which they were
appointed. Horton v. Town of Thompson, 71 N. Y. 513.
1074 PROVISIONS RELATING TO COUNTIES AND TOWNS.

General Municipal Law, §§ 17, 18.

constitutional oath of office, and make and file with the county clerk
of their county, their joint and several undertaking, with two or more
sureties to be approved by the county judge of their county, to the effect
that they will faithfully discharge their duties as such commissioners,
and truly keep, pay over and account for all moneys belonging to such
corporation coming into their hands. [General Municipal Law, § 15;
B. C. & G. Cons. L., p. 2117.]

§ 17. WHEN RAILROAD STOCK AND BONDS MAY BE SOLD OR EX-
CHANGED; DISPOSITION OF PROCEEDS OF SALE.

The railroad commissioners or officers of a municipal corporation, having
the lawful charge and control of any railroad steck or bonds, for or in
payment of which the bonds of such municipal corporation have been law-
fully issued in aid of such railroad corporation, may exchange the stock
or bonds of such railroad corporation for and in payment of such bonds,
or the new substituted bonds of such municipal corporation, when
such exchange can be made for not less than the par value of the stocks
or bonds so held by them. If they cannot make such exchange they may
sell such stocks or bonds at not less than par; but they may, on the
application and with the approval, of the governing board of the muni-
cipal corporation, owning such stock or bonds, exchange, sell or dispose of
such stock or bonds, at the best price and upon the best terms obtainable,
for the municipal corporation they represent, and shall execute to the
purchaser the necessary transfers therefor. All moneys received for any
stock or bonds shall only be applied to the payment and extinguishment
of the bonds of the municipal corporation, lawfully issued in aid of any
such railroad, or substituted therefor; except that if the bonds so issued
or substituted have all been paid, or the moneys so realized shall be more
than sufficient to pay them in full, and all the costs and expenses of the
sale, such proceeds or balance thereof shall be paid by the officers making
the sale, to the supervisor of the town, or the treasurer of the municipal
corporation, and applied to such lawful uses as the governing board of
the municipal corporation, entitled to the same, may direct. The pro-
visions of this section shall apply to all such commissioners or officers
of a muunicipal corporation elected or appointed or acting under the
provisions of any special act, and the authority hereby conferred shall
not be limited by the provisions of any such special act. [ General
Municipal Law, § 17; B. C. & G. Cons. L., p. 2117]

§ 18. ANNUAL REPORT OF RAILROAD COMMISSIONERS AND PAY-
MENT OF RAILROAD BONDS.

The railroad commissioners of a municipal corporation, having in charge
TOWN AND COUNTY FINANCES AND PROPERTY. 1045

General Municipal Law, §§ 19, 20.

the moneys received and collected, and who are responsible for the pay-
ment of the interest of the bonds lawfully issued by such municipal cor-
poration, in aid of railroads, shall annually report to the governing board
of the municipal corporation, the total amount of the municipal indebted-
ness of the municipal corporation they represent, upon such bonds or such
new bonds substituted therefor, the date of the bonds and when payable,
the rate of interest thereon, the acts under which they were issued, the
amount of principal and interest that will become due thereon before the
next annual tax levy and collection of taxes for the next succeeding year,
and the amount in their hands applicable to the payment of the principal
or interest thereon. Each year such governing board shall levy and collect
of the municipal corporation sufficient money to pay such principal and
interest, as the same shall become due and payable. When collected, such
moneys, with the unpaid sums on hand, shall be forthwith paid over to
such commissioners, and applied by them to the purposes for which col-
lected or held. When paid, such bonds shall be presented by such railroad
commissioners to the governing board of the municipal corporation, at
least five days before the annual town meeting, village or city election, or
meeting of the board of supervisors, next thereafter held, who shall cancel
the same, and make and file a record thereof in the clerk’s office of the
municipal corporation, whose bonds were so paid or cancelled. [General
Municipal Law, § 18; B. C. & G. Cons. L., p. 2118.]

§ 19. ACCOUNTS AND LOANS BY RAILROAD COMMISSIONERS.

Such railroad commissioners shall present to the auditing board of the
municipal corporation they represent, at each annual meeting of such
board, a written statement or report, showing all their receipts and ex-
penditures, with vouchers. They shall also loan on proper security or
collaterals, or deposit in some solvent bank or banking institutions, at
the best rate of interest they can obtain, or invest in the bonds of the
municipal corporation they represent, or in bonds of the state, or of
any town, village, city or county therein, issued pursuant to law, or
in the bonds of the United States, all moneys that shall come into their
hands by virtue of their office, and not needed for current liabilities ;
and all earnings, profits or interest accruing from such loans, deposits
or investments, shall be credited to the municipal corporation they rep-
resent, and accounted for in their annual settlement with the govern-
ing board thereof. [General Municipal Law, § 19; B. C. & G. Cons.
L., p. 3260.]

§ 20. RE-ISSUE OF LOST OR DESTROYED BONDS.

The board of estimate and apportionment of a city of the first or
second class, and the governing board of any other municipal corpora-
tion, may issue or cause to be issued to the owner of bonds of the
municipality which shall have becn lost or destroyed new bonds to
replace the same, if the owner shall give to the municipality security
1076 PROVISIONS RELATING TO COUNTIES AND TOWNS.
General Municipal Law, §§ 70. 71.

to be approved by such board to indemnify the municipality against
loss or damage that may be incurred by it on account of the bonds so
lost or destroyed. If such board shall refuse to issue or cause to be
issued, new bonds, in a case above provided for, the owner of the
bonds so lost or destroyed may apply to the supreme court at a special
term to be held in the district where the municipal corporation is situ-
ated, for an order requiring such board to show cause why it should
not be required to issue or cause to be issued such new bonds in place
of those lost or destroyed. The application shall be by petition. The
court shall inquire into the truth of the facts stated in the petition and
hear the proofs and allegations of the petitioner in relation thereto, and
if satisfied that the petitioner is the lawful owner of the bonds described
in the petition and that they have been lost or destroyed and cannot
after due diligence be found, and that no sufficient cause has been
shown why new bonds should not be issued, it shall make on order re-
quiring such board to issue and deliver or cause to be issued and de-
livered to the petitioner new bond or bonds in place of the lost or de-
stroyed bond or bonds, upon giving such security to the municipal cor-
poration as the court may direct. Every new bond so issued shall state
upon its face the number and denomination of the bond for which it
is issued, that it is issued in the place of such bond claimed to have been
lost or destroyed, that it is issued as a duplicate thereof, and that but
one is to be paid. The security required by this section, duly indorsed
as approved, shall be filed in the office of the clerk of the municipal
corporation. [General Municipal Law, § 20, as amended by L. 1919,
ch. 253; B. C. & G. Cons. L., p. 3260.]

§ 21. PAYMENT OF JUDGMENTS AGAINST TOWN OR COUNTY.

When a final judgment for a sum of money shall be recovered against
a municipal corporation, and the execution thereof shall not be stayed
pursuant to law, or the time for such stay shall have expired, the treas-
urer or other financial officer of such corporation having sufficient
moneys in his hands belonging to the corporation not otherwise speci-
fically appropriated, shall pay such judgment upon the production of a
certified copy of the docket thereof.” [General Municipal Law, § 70;
B. C. & G. Cons. L., p. 3289. ]

§ 22. LIABILITY FOR DAMAGES BY MOBS AND RIOTS.

A city or county shall be liable to a person whose property is destroyed
or injured therein by a mob or riot, for the damages sustained thereby,
if the consent or negligence of such person did not contribute to such
destruction or injury, and such person shall have used all reasonable
diligence to prevent such damage, shall have notified the mayor of the
city, or sheriff of the county, of a threat or attempt to destroy or injure
his property by a mob or riot, immediately upon acquiring such knowl-
edge, and shall bring an action therefor within three months after such

 

12. Judgments against county and town. By section 240 of the County Law,
ante, p. 37, a judgment against the county is made a county charge, and by section
170 of the Town Law, ante, p. 388, a judgment against a town is made a town
charge. Money may be borrowed by a town to pay a judgment. See Town Law,
sec. 139, post, p. 398.
TOWN AND COUNTY FINANCES AND PROPERTY. 1077

General Municipal Law, § 71.

damages were sustained. A mayor or sheriff receiving notification of a
threat or attempt to destroy or injure property by a mob or riot shall
take all lawful means to protect such property; and if he shall neglect
or refuse, the person whose property shall be destroyed or injured, may
elect to bring his action for damages against such officer instead of the
eity or county.4* [General Municipal Law, § 71; B. C. & G. Cons. L.,
p. 2131.]

 

13. Quelling riots and mobs. It is provided in section 106 of the Code of
Criminal Procedure that “ when persons to the number of five or more armed
with dangerous weapons, or to the number of ten or more whether armed or
not, are unlawfully or riotously assembled in a city, village or town, the sheriff
of the county and his under-sheriff and deputies, the mayor and aldermen of a
city, or the supervisor of a town, or president or chief executive officer of a
village, and the justices of the peace or police justices of the city, village or
town, or such of them as can forthwith be collected, must go among the persons
assembled, and command them, in the name of the people of the state, im-
mediately to disperse.”

If any of such officers having notice of an unlawful or a riotous assembly,
neglect to perform their duties under the above section, he is guilty of a mis-
demeanor. Code Crim. Proc., sec. 109. Such officers may arrest the persons so
assembled and for that purpose may command the aid of all persons present
or within the county. If a person commanded to aid neglects to do so, he is
deemed one of the rioters and is punishable accordingly. See Code Crim. Proc.,
secs. 107, 108.

The governor may declare the county in a state of insurrection whenever it
appears that the power of the county has been exerted and is insufficient to
quell a riot or enforce obedience to lawful mandates. After a proclamation
issued by the governor, he may call out the militia. See Code Crim. Proc., secs.
115-117.

Riot defined. Section 2090 of the Penal Law defines a riot as follows:
“ Whenever three or more persons, having assembled for any purpose, disturb
the public peace, by using force or violence to any other person, or to property,
or threaten or attempt to commit such disturbance, or to do any unlawful act
by the use of force or violence, accompanied with the power of immediate ex.
ecution of such threat or attempt, they are guilty of riot.”

Liability of municipality for damages. The above section makes a county
Hable for damages occasioned by a mob or riot. It has been held that such
10%8 PROVISIONS RELATING TO COUNTIES AND TOWNS.
General Municipal Law, § 74.

§ 23. CONDEMNATION OF REAL PROPERTY.

A municipal corporation authorized by law to take and hold real prop-
erty for the uses and purposes of the corporation, may, if it is unable
to agree with the owners for the purchase thereof, acquire title to such
property by comdemnation. [General Municipal Law, § 74; B. C. &
G. Cons. L., p. 2133.]

 

liability exists although the trespassers in doing the damages did not commit
the crime of riot or any other offense. To recover for such damages it is only
necessary to show, by a preponderance of evidence, facts and circumstances
from which the jury might infer that the property was destroyed by a mob or
riot within the spirit, true intent and meaning of the statute. Marshall v. City
of Buffalo, 50 App. Div. 149; 64 N. Y. Supp. 411. In this case it appeared that
the property destroyed consisted of several unoccupied buildings, located in a
residence and business part of the defendant city. There was evidence that
one morning a crowd of men, women, boys and girls appeared upon the premises
with shovels, axes and other tools and commenced to abolish the buildings and
take the material away in wagons; that from one to two hundred people were en-
gaged in the work of destruction, which continued for three days, until only the
foundation walls were left. It was held that there was sufficient evidence to
warrant the jury in finding that the buildings were unlawfully and with force
and violence demolished and removed by a riotous and disorderly mob or in a
riotous and disorderly manner by a mob in the execution of a common purpose
in defiance of law and order. It was further held that where the property of
an individual is destroyed by a mob, without any previous threat or attempt to
injure it, and without any warning or notice to the owner thereof until after
the damage is done, the city or county in which the property is situated is liable
to the owner under the above section. This liability exists whether or not the
authorities had notice or could have prevented the damages.

In the case of Solomon v. City of Kingston, 24 Hun, 562, the facts were as
follows: A building in which the plaintiff occupied a store caught fire; the fire
not having as yet reached his store, he remained in it keeping the shutters and
doors closed. A crowd which had assembled to see the fire, having shown an
inclination to break into the store, the chief engineer turned a stream of water
upon them, whereupon he was struck with a brick and went away to get a
revolver. While he was gone a crowd burst open the door, went into the store
and broke the show cases therein, threw and left upon the floor a portion of the
plaintiff's goods and carried other portions of them away. It was held that the
plaintiff could recover; that the fact that the crowd assembled for a lawful
purpose, that is, to see the fire, did not constitute a defense, since they after-
ward united in unlawful conduct and wrongfully entere: the store; and that
under the circumstances the plaintiff was not bound to notify the mayor or the
sheriff of the threatened danger to his property.

In the case of Marshall v. City of Buffalo, above cited, Laughlin, J., in speaking
of the liability of cities and counties for damages occasioned by mobs and riots
uses the following language, which seems to appropriately define the purpose and
intent of the above statute: “ The liability does not depend upon the diligence
of the public authorities. It is an extension of the ancient English law which
TOWN AND COUNTY FINANCES AND PROPERTY. 1079
General Municipal Law, § 78.

§ 24. INSURANCE OF TOWN OR COUNTY PROPERTY.

Public officers having by law the care and custody of the public buildings
and other property of municipal corporation, may insure the same at
the expense and for the benefit of such corporation. [General Municipal
Law, § 78; B. C. & G. Cons. L., p. 2134.]

 

made the inhabitants of the respective hundreds liable for burglaries and un-
lawful destruction of property. The theory of the statute is that it is the duty of
municipalities to preserve the peace and protect the property of all persons
within their limits, and that imposing such liability would not only tend to
incite the citizens and officials to greater vigilance, but that the compulsory
payment of losses occasioned by riots would be a proper and just penalty for
the negligence of which they have been presumptively guilty. The statute
was intended to punish the inhabitants for permitting riots and unlawful
assemblages and to incite them to prevent and suppress the same by making it
a matter of interest to the taxpayers to give their moral support to the enforce-
ment of law and order.”

The following cases are cited in this connection: Darlington v. Mayor, 31 N.
Y. 164; Ely v. Supervisors,of Niagara County, 36 N. Y. 297; Sarles v. Mayor, 47
Barb. 447; Moody v. Supervisors of Niagara County, 46 Barb. 659; Luke v.
City of Brooklyn, 43 Barb. 54; Wolfe v. Supervisor of Richmond County, 11
Abb. Pr. 270; Eastman v. Mayor, 5 Robt. 389; Davidson v. Mayor, 2 Robt. 258.
In the case of Duryea v. Mayor, 10 Daly, 300; affd., 100 N. Y. 625, it was held
that the city was not liable where it appeared that three or four boys in the
day time, without any tools or implements, began tearing down the stoop of an
old unoccupied wooden building. They were soon joined by from fifty to seventy-
five other boys, ranging in age from eight to seventeen years. It was shown
that they had no common purpose and were merely gratifying individual pro-
pensities. The work was continued for only an hour and the boys fled on the
arrival of a police officer.

What constitutes destruction by riot. The destruction of an unoccupied
frame building by a varying crowd of young men and boys numbering from
eight to thirty, there being no evidence of any purpose to accomplish the
destruction by violence and in spite of any resistance does not constitute the
destruction of a building by a riot rendering the city liable for the damages
sustained thereby. Adamson v. City of New York, 188 N. Y. 255, affg. 110 App.
Div. 58, 96 N. Y. Supp. 907.

Evidence. Where there is no dispute that the property of the plaintiff was
destroyed unlawfully by a mob, the fact that the mob proceeded to accomplish
the purpose for which it was gathered as peaceably as might be, in the absence
of any opposition to its course, and that it had no malice towards the plaintiff
or anyone else, but simply a desire to possess itself of the material of which
the buildings destroyed were made, does not affect the plaintiff’s right to recover.
Marshall v. City of Buffalo, 63 App. Div. 603, 71 N. Y. Supp. 719, affd. 176 N. Y.
545.

Judgments rendered pursuant to this section for riot damages have the same
force against the property of a city as judgments recovered for any other cause
of action. Darlington v. Mayor, ete., of New York, 31 N. Y. 164.
1080 PROVISIONS RELATING TO COUNTIES AND TOWNS.
Town Law, §§ 190-195.

§ 25. SUPERVISOR TO REPORT TO BOARD OF SUPERVISORS
AMOUNT OF TOWN BONDS OUTSTANDING; FORM OF RE-
PORT; PUBLICATION.

When a town has a public debt, consisting of bonds, or other evidence
of debt issued on the credit of the town, the supervisor thereof, shall make
a report to the board of supervisors of the county, at every annual session
thereafter, of the amount of such indebtedness..* [Town Law, § 190;
B. C. & G. Cons. L., p. 6200.]

Such report shall be in tabular form, specifying the different acts
under which the bonds or debts were issued, with the rate of interest
thereon, the amount unpaid at the time of the election of the supervisor,
and the amount of debt paid at the date of his report, and coming due
during his term of office. [Idem, § 191; B. C. & G. Cons. L., p. 6200. ]

The report so made, shall be published in the annual report of the
proceedings of the board of supervisors. [Idem, § 192; B. C. & G. Cons.
L., p. 6201.]

§ 26. DUPLICATE REPORT TO BE PRESENTED TO TOWN MEET-
ING AND FILED IN THE OFFICE OF TOWN CLERK.

The supervisor shall also, at the expiration of his term of office, at
the biennial town meeting, make and present thereto a duplicate copy of
such report to the board of supervisors, including and adding thereto
the amount of bonds issued, and the amounts and interest paid, since
the date of the report up to the day and date of the expiration of his
term of office, duly attested before a justice of the peace of his town, which
report shall be filed in the town clerk’s office of the town, subject to the
inspection by any elector thereof. [Town Law, § 193; B. C. & G. Cons.
L., p. 6201.]

§ 27. TOWN BOARD TO CANSEL BONDS AND COUPONS WHICH
HAVE BEEN PAID.

All such bonds and coupons thereof paid, shall be canceled by the town
board of the town, at a meeting thereof to be held for that purpose, within
ten days previous to the annual town meeting; and a record thereof shall
be filed, signed by the board, in the office of the clerk of the town. [Town
Law, § 194; B. C. & G. Cons. L., p. 6201.]

§ 28 LIMITATION OF INDEBTEDNESS.

No town including a portion of the Adirondack park and having staie
lands within the boundaries of the town sksll hereafter contract any debi
or debts which shall exceed the sum of three thousand dollars, except

 

14. For form of annua} report of town indebtednear see Form No. 155, post.
TOWN AND COUNTY FINANCES AND PROPERTY. 1081

Town Law, § 195, General Municipal Law, §§ 22, 23.

upon the duly verified petition of the owners of at least sixty-five per
centum of the taxable real property therein, as such real property ap-
pears on the last preceding completed assessment-roll of such town. For
the purposes of this article the consent of the comptroller shall be deemed
to be the consent of the state. This section shall not apply to debts con-
tracted for the purpose of retiring or paying any existing indebtedness
pursuant to law, nor shall it apply to any town within the boundaries of
which there is wholly or partly contained an incorporated village having
a population of least three thousand inhabitants as shown by the last pre-
ceding state or federal census. [Town Law, § 195, as amended by L. 1913,
ch. 116, and L. 1917, ch. 120; B. C. & G. Cons. L., p. 6201.]

§ 29. LEGALIZING BONDS OF MUNICIPALITIES; PROCEDURE.

Legalizing proceedings Proceedings heretofore or hereafter taken
by a municipal corporation authorized by law to issue bonds, or by its
officers, agents or voters, pursuant to a statute authorizing or requiring
such proceedings, may be legalized and confirmed by the supreme court
in the manner and with the effect provided by this article. A proceed-
ing may be instituted hereunder for the purposes of legalizing and con-
firming such proceedings taken prior to the issuance and sale of such
bonds, or for the purpose of legalizing and confirming such preliminary
proceedings and also the issuance, sale and form of such bonds. Such
a proceeding may be instituted by the officer or officers of such municipal
corporation authorized or required by law to sell such bonds, or if the
purpose of such proceeding also includes the legalizing and confirming of
the proceedings in respect to the issuance, sale and form of such bonds,
by any taxpayer of the municipal corporation or by a purchaser or holder
of such bonds. [General Municipal Law, § 22, as inserted by L. 1911,
. ch. 769.]

Petition.— The officer or person commencing such proceeding shall
present a verified petition to a special term of the supreme court held
within the judicial district in which such municipal corporation is wholly
or partly situated, stating the statute under which it is proposed to issue
such bonds or under which such bonds were issued, the purpose thereof,
the aggregate amount of bonds proposed to be issued or issued, the time
when such bonds are payable, and all proceedings that have been taken
by the municipal corporation, or by its officers, agents or voters, in re-
spect to the issuance and sale of such bonds, and praying that such court
shall investigate the law and facts in relation to such proceedings and de-
termine whether such proceedings substantially complied with the statute
under which it is proposed to issue and sell such bonds, or under which
such bonds were issued and sold. Such petition may also state any par-
ticular in which the petition deems that such proceedings may not have
complied with the statute under which it is proposed to issue and sell
such honds or under which the same were issued and sold. [Td. § 23, as
ireerted by L. 1911, ch. 769.)
108la PROVISIONS RELATING TO COUNTIES AND TOWNS.
General Municipal Law, §§ 24, 25, 26,

Notice of presentation of petition; filing; answer—A notice stating
the time and place of the presentation of such petition and briefly de-
scribing the proceedings sought to be legalized and confirmed shall be
published at least twice in a newspaper, if any, published in the muni-
cipal corporation, or if no newspaper be published therein, in a news-
paper published in the city, village or town nearest to such municipal
corporation. Such publication shall be made at least twenty and not
more than thirty days prior to the date of such hearing. Such notice
shall also be posted in at least ten conspicuous public places in the muni-
cipal corporation. If such proceeding be instituted by a taxpayer, or a
purchaser or holder of bonds which have been issued, such notice shall
also be served upon the mayor of a city, the president of a village, the
supervisor of a town, or the officer, board or commission authorized or
required by law to sell such bonds, and upon any known purchaser or
holder of such bonds. Such notice shall be so served personally or by
mail at least twenty days before the date of such hearing and shall be
accompanied by the petition proposed to be presented at such hearing,
and at least ten days prior to such hearing such municipal corporation
may serve on the petitioner a verified answer to such petition. If such
proceeding be instituted by a municipal officer or officers, a copy of the
petition proposed to be presented at the hearing shal] be filed in the office
of the officer or officers authorized or required by law to sell such bonds.
At any time prior to such hearing a taxpayer of such municipality, or if
such bonds have been issued, a holder or purchaser may file in such office
a verified answer to such petition. [Id. § 24, as inserted by L. 1911,
ch. 769.]

Hearing.—At the time of such hearing any taxpayer of the municipal
corporation, or if such bonds have been issued, any holder or purchaser
thereof may intervene and with the consent of the court be made a party
thereto. Upon such hearing any party to such proceeding’ may appear,
by counsel, and may produce and examine witnesses as to the proceedings
taken in respect to the issue and sale of such bonds. Such witnesses shall
be subject to cross-examination by any party appearing at such hearing.

The court may appoint a referee to take testimony in respect to the
proceeding for the issuance and sale of such bonds and may otherwise re-
quire the parties thereto to produce proof, by affidavit or otherwise, of
anv facts which mav tend to enable the court to make a full and com-
plete determination in respect to the proceedings for the issuance and
sale of such bonds. [Id. § 25. as inserted by L. 1911, ch. 769.]

Determination of court.—If, after such hearing and investigation,
euch court is satisfied that the statute under which such proceedings were
taken authorized bonds to be issued by the municipa: corporation for the
aggregate amount for which it is proposed to issue the same, or for the
TOWN AND COUNTY FINANCES AND PROPERTY. 1081b

General Municipal Law, § 27.

amount of bonds issued and sold thereunder if such bonds have been al-
ready issued and sold, and that the proceedings taken by such municipal
corporation, its officers, agents or voters, prior to the issuance and sale of
such bonds, or including the issuance and sale of such bonds have been
already issued, substantially complied with the statute under which it is
vroposed to issue such bonds, or under which such bonds were issued and
sold, the court may, by order, legalize and confirm the proceedings taken
prior to the issue and sale of such proposed bonds, or if such bonds have
ceen issued, including the proceedings on the issuance and sale thereof
and the form of the bonds issued thereunder, with the same force and
effect as though all the provisions of law in relation to such proceedings
and form had been strictly complied. with. The court may determine
that such statute was substantially complied with if it authorized the
aggregate amount of bonds proposed to be issued or issued thereunder,
that the proposition to issue such bonds was adopted at the election, if
any, to which it was submitted or by the required vote of the meeting
of the body or board to which it was submitted, and that such bonds, if
issued and sold were sold at not less than par and at a rate of interest
no greater than was authorized by the statute under which such bonds
were issued, notwithstanding any irregularity or technicality in the form
of proposition or resolution proposing or authorizing such issue, or in
the notice of the election or of the meeting of the board or body adopting
such reslution or authorization, or in the time or manner of service
thereof, or in the conduct of the election or meeting at which such propo-
sition or authorization was adopted, or in that such proposition was sub-
mitted more than once within one year or other shorter period than au-
thorized by law, or, if such bonds have already been issued in the man-
ner of issuance or sale thereof, or in the time or times of payment thereof,
or notwithstanding any other technical or formal irregularity of like
nature in such proceedings. If the court is satisfied that the proceedings
Tor the issuance and sale of such bonds did not substantially comply with
the statute under which it was proposed to issue and sell the same or un-
der which the same were issued and sold he may make an order accord
ingly specifying the particulars in which he deems that such proceedings
failed to comply with such statute. [Id. § 26, as inserted by L. 1911,
ch. 769.]

Appeal.—An appeal may be taken to the appellate division from the
order of the supreme court legalizing and confirming such proceedings,
or refusing to legalize and confirm the same. Such appeal must be taken
within ten days after the entry of the order, by the service of the notice
of appeal upon all the parties to such proceeding who appeared per-
sonally or by counsel at the hearing before the supreme court. The de-
cision of the appellate division thereon shall be final. [Id. § 27, as
inserted by L. 1911, ch. 769.]
1081¢ PROVISIONS RELATING TO COUNTIES AND TOWNS.
General Municipal Law, §§ 28, 29, 21, 86-b.

Effect of determination. If the order of the supreme court legalizes and
confirms such proceedings, upon the expiration of the time to appeal there-
from if no appeal be taken, or upon the entry of the final order of the appel-
late division confirming such order of the supreme court, such proceedings
shall be deemed legalized and confirmed. If such proceeding was instituted
to legalize and confirm proceedings prior to the issuance and sale of such
bonds, the officer or officers of such municipal corporation authorized to issue
such bonds may issue and sell the same accordingly, and the validity of such
bonds shall not thereafter be in any manner questioned by reason of any
defect or irregularity in such preliminary proceedings, and notwithstanding
any such irregularity or defect shall be binding and legal obligations upon
the municipal corporation issuing and selling the same. If such proceeding
was instituted to legalize and confirm the proceedings for the issue and sale
of bonds that were issued and sold at the time such proceeding was instituted,
such bonds shall be valid and binding obligations upon the municipal corpora-
tion, in like manner, and the validity thereof shall not in any manner be
questioned by reason of any irregularity or defect in the proceedings for the
issue and sale of such bonds, or in the form thereof. [Id., § 28, as inserted
by L. 1911, ch. 769.]

Definitions. The term ‘‘municipal corporation’”’ as used in this article in-
cludes a city, county, village, town, school district, sewer district, water dis-
trict, lighting district or any other district or territory authorized by law
to issue bonds.

The term ‘‘bonds” as used in this article includes bonds, corporate stock,
certificates of indebtedness or any other obligations whereby a municipal cor-
poration agrees to pay a stated sum of money. [Id., § 29, as inserted by L.
1911, ch. 769.]

§ 30. MAXIMUM RATE OF INTEREST ON MUNICIPAL BONDS.

If in any general or special law passed before January first, ninetecn hun-
dred and eighteen, authorizing or requiring an issue of bonds by a municipal
corporation, or by any department, board, commission, or officer thereof, a
maximum rate of interest on the bonds to be issued thereunder be prescribed,
_the rate of interest on such bonds hereafter issued in pursuance of such
general or special law may be fixed by the department, board, commission or
officer charged by law with the duty of issuing such bonds at any rate not
more than the legal rate of interest, notwithstanding the provisions of such
general or special law prescribing a different maximum rate, The term
“municipal corporation’ as used in this section includes a city, county, vil-
lage, town, school district, sewer district, water district, lighting district or
any other district or territory authorized by law to issue bonds, and the term
“bonds” includes bonds, corporate stock, certificates of indebtedness or any
other obligation whereby a municipal corporation agrees to pay a stated sum
of money.15 [General Municipal Law, § 21, as added by L. 1911, ch. 573,
and amended by L. 1918, ch. 23.]

§ 31. RETAINED PERCENTAGES UNDER CONTRACTS MAY BE WITH-
DRAWN.

Under any contract heretofore or hereafter made or awarded by any muni-
cipal corporation, or any public department or official thereof, the contractor
may, from time to time, withdraw the whole or any portion of the amount

15. Interest on village bonds. The bonds of a village issued for the perm-
anent improvement of streets of the village can bear interest at any rate at
which they can be negotiated up to but not exceeding six per cent per annum,
Opinion of Atty. Genl. (1920), 23 St. Dept. Rep. 55.
TOWN AND COUNTY FINANCES AND PROPERTY. 1081d

General Municipal Law, §§ 86c, 88, 90.

retained from payments to the contractor pursuant to the terms of the con-
tract, upon depositing with the comptroller or disbursing officer of the muni-
cipality, corporate stock or bonds of the municipality, or securities of the
United States government, of a market value equal to the amount so with-
drawn. The municipality shall, from time to time, collect all interest or
income on the stock or bonds so deposited, and shall pay the same, when and
as collected to the contractor who deposited the stock or bonds. If the de-
posit be in the form of coupon bonds, the coupons as they respectively become
due shall be delivered to the contractor. The contractor shall not be en-
titled to interest or coupons or income on any of the deposited stock or bonds,
the proceeds of which shall be used or applied by the municipality, pursuant
to the terms of the contract. The provisions of this section, as amended,
shall supersede the provisions of any general, special or local act inconsistent
herewith. [General Municipal Law, § 86b, as added by L. 1916, ch. 176,
and amended by L. 1920, ch. 857, L. 1921, ch. 394, and L. 1922, ch. 193.]

§ 32. DISPOSITION OF DEPOSIT ACCOMPANYING BID.

Whenever as a condition precedent to the reception or consideration of a
proposal for furnishing supplies or doing work for a municipal corporation
or any department or officer theerof, a deposit of a certified check, money,
bonds, corporate stock, certificates of indebtedness, or otherwise, is required,
a bidder under such proposal may withdraw his bid if no award of the contract
be made within forty-five days after the receipt of the bids, and upon such
withdrawal his deposit shall be forthwith returned to him.16 A check,
money, corporate stock, bond, or other security, deposited to secure a bid
upon such a proposal shall be retained under the jurisdiction and control of
the department or officer with which the deposit is made, until returned to
the bidder, or forfeited as provided by the law pursuant to which such pro-
posal was made. The provisions of this section shall supersede the provisions
of any general, special or local act inconsistent herewith. [General Muni-
cipal Law, § 86c, added by L. 1920, ch. 856.]

§ 32-2, SEPARATE SPECIFICATIONS FOR CERTAIN CONTRACT WORK.

Every officer, board, department, commission or commissions, charged with
the duty of preparing specifications or awarding or entering into contracts for
the erection, construction or alteration of buildings in any county or city, or
the borough of any city, when the entire cost of such work shall exceed
twenty-five thousand dollars, must have prepared separate specifications for
each of the following branches of work to be performed:

1. Plumbing and gas fitting.

2. Steam heating, hot water and ventilating apparatus.

Such specifications must be so drawn as to permit separate and independent
bidding upon each of the classes of work enumerated in the above subdivi-
sion. All contracts hereafter awarded by any county, city or borough, or a
department, board, commission or commissioner, or officer thereof, for the
erection, construction or alteration of buildings or any part thereof, shall
award the respective work specified in the above subdivisions separately to
responsible and reliable persons, firms or corporations. Nothing in this sec-
tion shall be construed to prevent the authorities in charge of any county
or municipal building from performing any such branches of work by or
through their regular employees, or in the case of public institutions, by the
a thereof. [General Municipal Law, § 88, as added by L. 1921, ch.

§ 33. WORKMEN’S COMPENSATION INSURANCE ON PUBLIC WORKS.

Each contract to which a municipality, or any public department or official
thereof, is a party and which is of such-a character that the employees en-
gaged thereon are required to be insured by the provisions of chapter forty-
one of the laws of nineteen hundred and fourteen, known as the workmen’s
compensation law, and acts amendatory thereto, shall contain a stipulation
that the same shall be void and of no effect unless the person or corporation
making or performing the same shall secure compensation for the benefit of,
and keep insured during the life of said contract, such employees, in compli-
ance with the provisions of said law. [General Municipal Law, § 90, as
added by L. 1916, ch. 478.]

16. As to withdrawal of bid after lapse of thirty-nine days, see People v.
Board of Education (1921), 197 App. Div. 5, 188 N. Y. Supp. 686.
1082 PROVISIONS RELATING TO COUNTIES AND TOWNS.

Penal Law, $$ 1820-1822.

CHAPTER LXXIV.
PENAL PROVISIONS APPLICABLE TO TOWN AND COUNTY OFFICERS.

SEcTION 1. Acting in public office without having qualified.

. Bribery in executive office.

. Prevention of officers from performance of duties.

. Taking unlawful fees or rewards for doing or omitting to do official
acts; taking fees for services not rendered.

Corrupt bargains for appointments to office.

. Grants of rights to make appointments or perform official duties.

. Wrongful intrusion into public office; officer refusing to surrender

to successor.

. Neglect of public officer to perform duties of his office.

. Misappropriation of public funds and falsification of public accounts

by public officers,
10. Public officers not to be interested in contracts.

wm OO db

eo 00 ANN

§1. ACTING IN PUBLIC OFFICE WITHOUT HAVING QUALIFIED.

A person who executes any of the functions of a public office without having
taken and duly filed the required oath of office, or without having executed
and duly filed the required security, as prescribed by law, is guilty of a mis-
demeanor. [Penal Law, § 1820; B. C. & G. Cons. L., p. 4041.]

1. Any person who holds himself out to the public as being entitled to act
as a notary public or commissioner of deeds, or who assumes, uses or adver-
tises the title of notary public or commissioner of deeds, or equivalent terms
in any language, in such a manner as to convey the impression that he is a
notary public or commissioner of deeds without having first been appointed
as notary public or commissioner of deeds, or

2. A notary public or commissioner of deeds, who in the exercise of the
powers, or in the performance of the duties of such office shall practice any
fraud or deceit, the punishment for which is not otherwise provided for by this
act, shall be guilty of a misdemeanor.t [Penal Law, § 1820a, as added by L.
1910, ch. 471.] :

The last section must not be construed to affect the validity of acts done by
a person exercising the functions of a public office in fact, where persons other
than himself are interested in maintaining the validity of cuch acts. [Idem,
§ 1821; B. C. & G. Cons L., p. 4041.]

§ 2, BRIBERY IN EXECUTIVE OFFICE.

A person who gives or offers a bribe to any executive officer of this state
with intent to influence him in respect to any act, decision, vote, opinion or
other proceeding as such officer, is punishable by imprisonment in a state
prison not exceeding ten years, or by fine not exceeding five thousand dollars,
or by both. [Penal Law, § 1822; B.C. & G. Cons. L., p. 4041.]

 

J, A notary public who draws and takes the affidavit of an individual in such
form as to lead the affiant to believe that it is of the general character of a
passport, violates subdivision 2 of this section. Rept. of Atty.-Gen. (1911),
vol. 2, p. 550.
PENAL PROVISIONS. 1083

Penal Law, §§ 1823-1825, 1829.

An executive officer, or person elected or appointed to an executive
office, who asks, receives or agrees to receive any bribe, upon an agree-
ment or understanding that his vote, opinion or action upon any matter
then pending or which may by law be brought before him in his official
capacity, shall be influenced thereby, is punishable by imprisonment in
a state prison not exceeding ten years, or by a fine not exceeding five
thousand dollars, or by both; and in addition thereto forfeits his office
and is forever disqualified from holding any public office under this
state." [Idem, § 1823; B. C. & G. Cons. L., 2d ed., p. 5990.]

§ 3. PREVENTION OF OFFICERS FROM PERFORMANCE OF DUTIBS..

A person who attempts, by means of any threat or violance, to deter
or prevent an executive officer from performing any duty imposed upon
such officer by law, is guilty of a misdemeanor.” [Penal Law, § 1824;
B.C. & G. Cons. L., 2d ed., p. 5990.]

A person who knowingly resists, by the use of force or violence, any
executive officer, in the performance of his duty, is guilty of a misde-
meanor. [Idem, § 1825; B. C. & G. Cons. L., 2d ed., p. 5991.]

§ 4. TAKING UNLAWFUL FEES OR REWARDS FOR DOING OR OMIT-
TING TO DO OFFICIAL ACTS; TAKING FEES FOR SERVICES
NOT RENDERED.

A public officer or a deputy clerk, assistant or other subordinate of a
public officer, or any person appointed or employed by or in the office
of a public officer, who shall, in any manner, act for or in behalf of any
such officer, who asks or receives, or consents or agrees to receive any
emolument, gratuity or reward, or any promise of emolument, gratuity
or reward, or any money, property or thing of value or of personal
advantage, except such as may be authorized by law for doing or omit-
ting to do any official act, or for performing or omitting to perform,
or for having performed or omitted to perform any act whatsoever
directly or indirectly relating to any matter in respect to which any
duty or discretion is by or in pursuance of law imposed upon or vested
in him, or may be exercised by him by virtue of his office, or appoint-
ment or employment, or his actual relation to the matter, shall be
guilty of a felony, punishable by imprisonment for not more than ten
years or by a fine of not more than four thousand dollars, or both.
[Penal Law, § 1826; B. C. & G. Cons. L., 2d ed., p. 5991.]

An executive officer who asks or receives any emolument, gratuity or
reward, or any promise of any emolument, gratuity or reward, for
omitting or deferring the performance of any official duty, is guilty of
a misdemeanor. [Idem, § 1829; B. C..& G. Cons. L., 2d ed., p. 5992.]

 

la, Resisting officer in performance of his duty. Benner v. Walsh (1920),
193 App. Div. 962, 184 N. Y. Supp. 340.

1b. Attempt by deputy police commissioner to prevent police officers from
making arrest. People v. Porter (1921), 115 Misc. 301.
1084 PROVISIONS RELATING TO COUNTIES AND TOWNS.
Penal Law, §§ 1830, 1832-1834,

An executive officer who asks or receives any fee or compensation for
any official service which has not been actually rendered except in cases
of charges for prospective costs, or of fees demandable in advance in the
cases allowed by law, is guilty of a misdemeanor.’ [Idem, § 1830; B.
C. & G. Cons. L., p. 5992. ]

§ 5. CORRUPT BARGAINS FOR APPOINTMENTS TO OFFICE.

1. A person who gives or offers to give any gratuity or reward, in con-
sideration that himself or any other person shall be appointed to a public
office, or to a clerkship, deputation, or other subordinate position, in such
an office, or shall be permitted to exercise, perform or discharge any
prerogatives or duties, or to receive any emoluments of such an office,
is guilty of a misdemeanor.

2. A person who asks or receives, or agrees to receive, any gratuity or
reward, or any promise thereof, for appointing another person, or pro-
euring for another person any appointment to a public office or to a
clerkship, deputation or other subordinate position in such an office, is
guilty of a misdemeanor. If the person so offending is a public officer,
a conviction also forfeits his office.* [Penal Law, § 1832; B. OC. & G.
Cons. L., p. 5993.]

§ 6. GRANTS OF RIGHTS TO MAKE APPOINTMENTS OR PERFORM OFFICIAL
DUTIES.

A public officer who, for any reward, consideration or gratuity, paid
or agreed to be paid, directly or indirectly, grants to another the right
or authority to discharge any functions of his office, or permits another
to make appointments or perform any of its duties, is guilty of a mis-
demeanor, and a conviction for the same forfeits his office and disquali-
fies him forever from holding any office whatever under this state.
[Penal Law, § 1833; B. C. & G. Cons. L., p. 5993. ]

A grant, appointment, or deputation, made contrary to the provisions
of either of the last two sections is avoided and annulled by a convie-
tion for the violation of either of those sections, in respect to such grant,
appointment or deputation; but any official act done before conviction,
is unaffected by the conviction. [Idem, § 1834; B. C. & G. Cons. L.,
p. 5994.]

 

1, A notary public who asks and receives unauthorized fees for services, makes
himself liable to criminal prosecution, civil action and possible removal. Opinion
of Atty. Genl. (1917), 12 State Dept. Rep. 507.

la. An agreement by an applicant for deputy sheriff to pay to the sheriff a portion
of the fees received by him is prohibited by this section and cannot be enforced.
Deyoe v. Woodworth, 144 N. Y. 448, affg., 70 Hun, 599, 24 N. Y. Supp. 373.
PENAL PROVISIONS. 1085
Penal Law, §§ 1835, 1836, 1841, 1865, 1866,

§ 7 WRONGFUL INTRUSION INTO PUBLIC OFFICE; OFFICER RE-
FUSING TO SURRENDER TO SUCCESSOR.

A person who wilfully intrudes himself into a public office, to which he
has not been duly elected or appointed, or who, having been an executive
or administrative officer, wilfully exercises any of the functions of his office,
after his right so to do has ceased, is guilty of a misdemeanor. [Penal
Law, § 1835; B. C. & G..Cons. L., p. 4044.]

A. person who, having been an executive or administrative officer, wrong-
fully refuses to surrender the official seal, or any books or papers, apper-
taining to his office, upon the demand of his lawful successor, is guilty of
a misdemeanor. [Penal Law, § 1836; B. C. & G. Cons. L., p. 4044.]

§ 8. NEGLECT OF PUBLIC OFFICER TO PERFORM DUTIES OF HIS
GELTIcE.

A public officer, or person holding a public trust or employment, upon
whom any duty is enjoined by law, who wilfully neglects to perform the
duty, is guilty of a misdemeanor. This and section eighteen hundred and
forty do not apply to cases of official acts or omissions, the prevention or
punishment of which is otherwise specially provided by statute. [Penal
Law, § 1841; B. C. & G. Cons. L., p. 4045.] .

§ 9. MISAPPROPRIATION OF PUBLIC FUNDS AND FALSIFICATION
OF PUBLIC ACCOUNTS BY PUBLIC OFFICERS.

A public officer, or a deputy, or clerk of any such officer, and any other
person receiving money on behalf of, or for account of the people of this
state, or of any department of the government of this state, or of any
bureau or fund created by law, and in which the people of this state are
directly or indirectly interested, or for or on account of any city, county,
village or town, who

1. Appropriates:to his own use, or to the use of any person not entitled
thereto, without authority of law, any money so received by him as such
officer, clerk or deputy, or otherwise ; or,

2. Knowingly keeps any false account, or makes any false entry or
erasure in any account of, or relating to, any money so received by him; or,

3. Fraudulently alters, falsifies, conceals, destroys or obliterates any such
account ; or,

4. Wilfully omits or refuses to pay over to the people of this state or
their officer or agent authorized by law to receive the same, or to such city,
village, county or town, or the proper officer or authority empowered to
demand and receive the same, any money received by him as such officer
when it is his duty imposed by law to pay over, or account for, the same,
1086 PROVISIONS RELATING TO COUNTIES AND TOWNS.

Penal Law, § 1868.

Is guilty of a felony. [Penal Law, § 1865; B. C. & G. Cons. L., p. 4051.]

An officer or other person mentioned in the last section who wilfully dis-
obeys any provision of law regulating his official conduct, in cases other
than those specified in that section, is guilty of a misdemeanor, punishable
by a fine not exceeding one thousand dollars, or imprisonment not exceeding
two years, or both. [Idem, § 1866; B. C. & G. Cons. L., p. 4052.]

§ 10. PUBLIC OFFICERS NOT TO BE INTERESTED IN CONTRACTS.

A public officer, or school officer, who is authorized to sell or lease any
property, or to make any contract in his official capacity, or to take part
in making any such sale, lease or contract, who voluntarily becomes in-
terested individually in such sale, lease or contract, directly or indirectly,
except in cases where such sale, lease or contract, or payment under the
same, is subject to audit or approval by the commissioner of education, is
guilty of a misdemeanor.? [Penal Law, § 1868; B. C. & G. Cons. L., p.
4052.]

 

2. Application of section. The assignment to the superintendent of the poor
of a claim for services in finding homes for orphans is not prohibited by this
section. People ex rel. Spaulding v. Supervisors, 66 App. Div. 117, 72 N. Y.
Supp. 782. Assignment in contravention of section. Banigan v. Village of
Iyyack, 25 App. Div. 150, 49 N. Y. Supp. 199.

A contract between a board of supervisors and one of its members an at-
torney at law, for legal services to be rendered the board, is void. Beebe v.

Board, etc., 19 N. Y. Supp. 629, 630.
A contract made by a board of supervisors for the necessary purchase of Magda

lamps, at their fair market value, with relator, a corporation of which a member
of the board of supervisors is a stockholder, officer and director, is clearly illegal
under section 1868 of the Penal Law; such contract is unenforcible because the
said member of the board of supervisors had some, though not necessarily a money,
interest in conflict with his duty as a public officer. Schenectady Illuminating
Co. v. Supervisors of Schenectady (1914), 88 Misc. 226, 151 N. Y. Supp. 830, affd.
166 App. Div. 758.

Purchase from corporation of which supervisor is officer. A board of
supervisors acting for a county cannot make a valid contract to purchase chattels
from a corporation of which a member of the board is an officer and stockholder.
And this is true although the supervisor knew nothing of the transaction and did
not participate therein personally on behalf of either party, and although the sum
involved is insignificant and the goods were fully worth the contract price. People
ex rel. Schenectady Hluminating Co. v. Board of Supervisors (1915), 166 App.
Div. 758.
WEIGHTS AND MEASURES. 1087

Conservation Law, § 492.

CHAPTER LXXV.
MISCELLANEOUS PROVISIONS; WEIGHTS AND MEASURES.

Section 1. Proceedings for assessment and collection of cost of drainage im-
provements.

la. Duties and qualifications of collectors and other officers.

1b. Supervisor may cause dead bodies to be removed from one

cemetery to another.

le. Power of certain municipalities in relation to fixing standard

time in the municipality.

2. Neglect of town clerk to return names of constables.

8. Duties of Commissioner of Farms and Markets in relation to

weights and measures.

4. Copies of standard weights and measures.

5. County sealer; duty of supervisors.

5a. Sealing of approved weights and measures,

6. Definitions of term “‘container.’

6a. Sealing of false weights and measures.

6b. Condemnation and seizure of false weights and measures.

7. Method of sale of certain commodities.

9. Net contents of containers to be indicated on the outside thereof.
10. When sections sixteen, seventeen-a and seventeen shall not apply.
11. Guaranty furnished by wholesaler, jobber or manufacturer.

12. Examination and prosecution.
13. Penalties,

§ 1. PROCEEDINGS FOR ASSESSMENT AND COLLECTION OF COST OF
DRAINAGE IMPROVEMENTS.

The commission shall, on or before September first following the
issuing of bonds and annually thereafter, prepare a statement of the
amount to be raised during the ensuing year, in order to retire the
bonds and certificates maturing during such year, together with the in-
terest thereon and the estimated cost of maintenance of such improve-
ment for the ensuing calendar year. Such statement shall be approved
by the comptroller and shall show and shall include a statement of the
amount of the proportion thereof to be paid by the state during such
year, in conformity with the determination of the commission in re-
spect thereto as provided in this article, and such amount shall be by
the comptroller.paid into the drainage improvement fund herein men-
tioned applicable to such improvement out of the moneys of the state
appropriated for that purpose; it shall also show the amount of the
proportional share thereof to be paid by each county, town, city or
village respectively as determined by the commission, and such county,
town, city or village shall cause the same to be assessed, levied and col-
lected in the same manner as provided by law with reference to general
taxes, and paid to the treasurer of the county, who shall forthwith for-
1087a PROVISIONS RELATING TO COUNTIES AND TOWNS.

Conservation Law, § 492.

ward the same, less his legal fees therefor, to the comptroller to be by
him paid into the drainage improvement fund applicable to such im-
provement; it shall also show the amount of the proportional share
thereof to be paid by the lands and properties collectively in such im-
provement district within each county during such year, to be assessed,
levied and collected as hereinafter provided. Copies of this statement
shall be transmitted on or before September first to the comptroller, the
clerk of the board of supervisors of each county, the clerk of each town,
the mayor of each city and the president of each village affected by such
improvement. The assessors of each town and city included in such
improvement district are hereby required to enter upon a separate page
in the annual assessment-roll of such town or citv before the delivery
thereof to the board of supervisors the description by number corres-
ponding with the number thereof on said survey, map and descriptions
so filed in the county clerk’s office, each parcel of land and each desig-
nation or description of property within the county in such improve-
ment district, together with the name of the then owner or owners
thereof so far as the same can be ascertained by the assessors, and set
opposite such number and description of each separate parcel or prop-
erty in the column of said roll for the total assessed valuation of prop-
erty the amount of benefit by reason of such improvement received by
such parcel or property as stated and specified in the determination of
the commission as modified by the court if so modified, on file in the
office of the clerk of the county. And the board of supervisors shall
each year at the time the annual tax levy is made, levy upon each separ-
ate parcel and property in said county within such improvement dis-
trict appearing upon the assessment-rolls of the town and cities in-
cluded therein as herein provided such portion of the amount to be paid
by all of the property in said county within such improvement district
appearing by the statement of the commission and the comptroller made
to said board as in this article provided as the amount so assessed against
such parcel or property on said rolls for benefit accruing thereto bears
to the aggregate amount so assessed on said rolls against all of said
lands and properties, and the said taxes so levied shall be collected in
the same manner as general taxes are levied and collected, and shall be
a like lien as general taxes until the amount thereof is paid to the
county treasurer of the county, superior in force and effect to all other
liens except unpaid general taxes; provided, however, that the collection
of such tax shall only be enforced by a sale of the land or property as-
sessed. Such taxes when collected shall be paid to the treasurer of said
county who shall forthwith pay the same less his legal fees to the comp-
WEIGHTS AND MEASURES. 1087b
Conservation Law, § 493; Mem. Corp. Law, § 77.

troller, who shall pay the same into the drainage improvement fund.

[Conservation Law, § 492, as added by L. 1919, ch. 493. ]

§ la. DUTIES AND QUALIFICATIONS OF COLLECTORS AND OTHER
OFFICERS.

It shall be the duty of each collector and other official to whom is
delegated. the performance of any service under the provisions of this
article to faithfully perform the same, and the collector of each town
and the treasurer or collecting officer of each city whose duty it shall
be to collect assessments as herein provided shall before entering upon
the discharge of his duties execute to the people of the state an under-
taking with two or more sureties in the penal sum of twice the amount
to be collected by him, and such undertaking shall be approved and
filed in the same manner and with the same force and effect as pro-
vided by law with reference to an undertaking for the collection of gen-
eral taxes, and shall provide that he will well and faithfully perform
his duty as collector and will pay over to the treasurer of his county and
fully account for all moneys received by him under the provisions of
this article within the same time as provided by law with reference to
general taxes. And each county treasurer whose duty it shall be to
receive any assessments or moneys as herein provided shall, before en-
tering upon the discharge of his duties, execute to the people of the
state an undertaking in such amount and with such sureties as shall
be required by the comptroller, conditioned that he will forthwith
pay over to the comptroller upon the receipt thereof by him and account
for all moneys which shall come into his hands under the provisions of
this article and will well and faithfully perform all the duties required
of him thereunder. [Conservation Law, § 493, as added by L. 1919,
ch. 493. ]

§ 1b. SUPERVISOR MAY CAUSE DEAD BODIES TO BE REMOVED FROM ONE
CEMETERY TO ANOTHER.

The supervisors of any town containing a private cemetery may remove
any dead bodies or human remains interred in such cemetery to any
other cemetery within such town, if the owners of such cemeteries and
the persons residing within the state who are next of kin of such de-
ceased persons consent to such removal. The owners of such cemeteries
may remove the remains of deceased persons interred therein to any
cemetery within such town, or to some cemetery designated by the per-
sons who are next of kin of such deceased persons. Notice of such
removal shall be mailed or served personally upon the next of kin of
1088 PROVISIONS RELATING TO COUNTIES AND TOWNS.

General Municipal Law, § 91; Penal Law, § 1859;
Farms and Markets Law, § 180.

such deceased persons, if known to such owners, within ten days of such
removal. [Membership Corporation Law, § 77; B. C. & G. Cons. L.,
2d ed., p. 5206.]

§ 1-c. POWER OF CERTAIN MUNICIPALITIES IN RELATION TO FIXING
STANDARD TIME IN THE MUNICIPALITY.

The governing board of a city or village, by ordinance, may provide
that at two o’clock ante meridian of a day to be fixed by the ordinance
not earlier than the last Sunday in March of each or any year the
standard time within the corporate limits of the city or village shall
be advanced one hour from that of the seventy-fifth meridian of longi-
tude west from Greenwich, and that at two o’clock ante meridian of
a day to be fixed by the ordinance not later than the last Sunday of
October of the same year such standard time, as so advanced, shall be
retarded to the mean astronomical time of such seventy-fifth meridian
west from Greenwich; and all courts and public officers and legal and
official proceedings within the city or village shall be regulated by
such ordinance, notwithstanding the provisions of section fifty-two of
the general construction law, as amended. [General Municipal Law,
§ 91, as added by L. 1921, ch. 90, and amended by L. 1921, ch. 260.]

§ 2. NEGLECT OF TOWN CLERK TO RETURN NAMES OF CONSTABLES.

A town clerk who wilfully omits to return to the county clerk the
name of a person who has qualified as constable, pursuant to law, is
punishable by a fine not exceeding ten dollars. [Penal Law, § 1859;
B. C. & G. Cons. L., 2d ed., p. 6000.

§ 8. DUTIES OF COMMISSIONER OF FARMS AND MARKETS IN RELA-
TION. TO WEIGHTS AND MEASURES.

The commissioner shall take charge of the standards adopted by this
article as the standards of the state; cause them to be kept in a fire
proof building belonging to the state, from which they shall not be
removed, except for repairs or for certification, and take all other
necessary precautions for their safe-keeping. He shall maintain the
state standards in good order and shall submit them once in ten years
to the national bureau of standards for certification. He shall correct
the standards of the several cities and counties, and, as often as once
in five years, compare the same with those in his possession, and shall
keep a record of the same, and where not otherwise provided by law
he shall have a general supervision of the weights, measures and meas-
uring and weighing devices of the state, and offered for sale, hire,
award, or sold or in use in the state. He shall, upon the written
request of any citizen, firm, corporation or educational institution of
the state, test or calibrate weights, measures, weighing or measuring
devices and instruments or apparatus used as standards in the state.
He shall at least once annually test all weights and measures, and
weighing and measuring devices used in checking the receipt or dis-
WEIGHTS AND MEASURES. 1089
Farms and Markets Law, § 181.

bursement of supplies in every state institution and he shall report in
writing his findings to the executive officer of the institution concerned ;
and at the request of said officers the superintendent of weights and
measures shall appoint in writing cne or more employees, then in actual
service, of each institution, who shall act as special deputies for the
purpose of checking the receipt or disbursement of supplies. He shall
keep a complete record of the standards, balances and other apparatus
belonging to the state and take receipt for the same from his successor
in office. The commissioner shall inspect all standards used by the
counties or cities at least once in two years and shall keep a record
of the same. He shall, at least once in two years, visit the various
cities and counties of the state in order to inspect the work of the local
sealers and in the performance of his duties he may inspect the weights,
measures, balances or any other weighing or measuring appliances of
any person, firm or corporation. He shall establish amounts of toler-
ance, or reasonable variations allowable for weights, measures, and
weighing and measuring devices, and shall issue instructions to the
county and city sealers, and these shall be binding upon and govern
said sealers in the discharge of their duties1 [Farms and Markets
Law (L. 1922, ch. 48), § 180.]

§ 4. COPIES OF STANDARD WEIGHTS AND MEASURES.

The state shall have a complete set of copies of the original standards
of weights and measures adopted by this article, which shall be used
for adjusting county standards, and the original standards shall not
be used except for the adjustment of this set of copies and for scientific
purposes.

The commissioner shall see that the foregoing provisions of this sec-
tion are complied with and procure such apparatus and fixtures, if the

 

1. The scheme of the statute is that the county and city sealers shall en-
force the observation by individuals of the standards of weights and meas-
ures, and that the State Superintendent shall enforce the performance of this
duty by the county sealers and city sealers. While there is no express pro-
vision of law as to the manner in which the State Superintendent shall
enforce the performance of their statutory duty by the county and city seal-
ers, yet his general powers of supervision over them and over the standards
of the State are sufficient to support his authority to direct them in the
performance of their duties and to insist that the mandates of the statute be
observed. Rept. of Atty. Genl. (1911), vol. 2, p. 661.

A regulation by the State Supt. of Weights and Measures to the effect that
all scales of a certain kind must be equipped with automatic devices result-
ing in injury to the business of the manufacturer of the scales specified but
not equipped with such devices, not being a rule or regulation of a legisla-
tive character, does not impair such manufacturer’s constitutional rights
under the 14th amendment, or the commerce clause of the Federal Constitu-
tion. Standard Scales Co. v. Farrell (1919), 249 U. S. 571.

Powers of State Superintendent of Weights and Measures conferred upon
Denartment of Farms and Markets. See Farms and Markets Law, § 180.
1090 PROVISIONS RELATING TO COUNTIES.

Farms and Markets Law, § 182.

same have not already been procured, as are necessary in the compari-
son and adjustment of the county standards.

He shall cause all the city and county standards to be impressed with
the emblem of the United States, the letters ‘‘N. Y.,’’ and such other
device as he shall direct for the particular county. [Farms and Mar-
kets Law (L. 1922, ch. 48), § 181.]

§ 5. COUNTY SEALER; DUTY OF SUPERVISORS.

There shall be a county sealer of weights and measures in each
county, except where such county is wholly embraced within a city,
who shall be appointed by the board of supervisors and hold office
during the pleasure of such board. He shall be paid a salary deter-
mined by the board of supervisors and shall be provided by them with
the necessary working equipment of standard weights and measures,
He shall take charge of and safely keep the county standards, and at
least once in every five years shall submit such standards to the com-
missioner at the place where the standards of the state are kept for
calibration and certification. Where not otherwise provided by law,
the county sealer shall have the power within his county to inspect,
test, try and ascertain if they are correct, all weights, scales, beams,
measures of every kind, instruments or mechanical devices for measure-
ment and the tools, appliances or accessories connected with any or all
such instruments or measurements used or employed within the county
by any proprietor, agent, lessee, or employee in determining the size,
quantity, extent, area or measurement of quantities, things, produce,
articles for distribution or consumption offered or submitted by such
persons or person for sale, for hire or award. He shall at least twice
in each year and as much oftener as he may deem necessary see that
the weights, measures and all apparatus used in the county are correct.
He may for the purposes above mentioned, and in the general perform-
ance of his official duties, enter or go into or upon and without formal
warrant, any stand, place, building or premises or may stop any vender,
peddler, junk dealer, coal wagon, ice wagon or any dealer whatsoever,
for the purposes of making the proper tests. Whenever the county
sealer finds a violation of the statutes relating to weights and measures
he shall cause the violator to be prosecuted. The county sealer shall
keep a complete record of the work done by him and shall make an
annual report to his board of supervisors, and an annual report, duly
sworn to, not later than the first day of December to the commissioner.
The county sealer of weights and measures shall forthwith on his
appointment give a bond, with sureties to be approved by the appoint-
ing power, for the faithful performance of the duties of his office and
for the safety of the local standards and such appliances for verification
as are committed to his charge and for the surrender thereof immedi-
.ately to his successor in office or to the person appointed by the proper
authority to receive them.2, [Farms and Markets Law (L. 1922, ch.
48), § 182.]
WEIGHTS AND MEASURES. 1090a

Farms and Markets Law, §§ 184, 192, 185, 186, 193.

§ 5a. SEALING OF APPROVED WEIGHTS AND MEASURES. z

Whenever a city or county sealer inspects any weight or measure
and finds that it corresponds or causes it to correspond with the stand-
ards in his possession, he shall seal or mark the same with an approp-
riate device. [Farms and Markets Law (L. 1922, ch. 48), § 184.]

§ 6. DEFINITION OF TERM “CONTAINER.”

‘A container,’’ as used in the following sections of this article, shall
include any carton, box, crate, barrel, half-barrel, hamper, keg, drum,
jug, jar, crock, bottle, bag, basket, pail, can, wrapper, parcel, or pack-
age. [Farms and Markets Law (L. 1922, ch. 48), § 192.]

§ 6a. SEALING OF FALSE WEIGHTS AND MEASURES.

Whenever any city or county sealer inspects any weight or measure
and finds that it does not correspond and does not cause it to corres-
pond with the standards in his possession he shall seal or mark the
same.

No person shall use or attempt to use any weight or measure to which
there has been affixed or upon which there has been placed any such
last mentioned seal, mark or device, for the purpose of determining the
weight or quantity of any commodity or article of merchandise, unless
such seal, mark or device shall have been removed therefrom by a city
or county sealer.

No person shall remove from any such weight or measure any seal
or mark which has been affixed thereto, or placed thereon by a city or
county sealer or obliterate or deface the same. [Farms and Markets
Law (L. 1922, ch. 48), § 185.]

§ 6b. CONDEMNATION AND SEIZURE OF FALSE WEIGHTS AND
MEASURES.

A city or county sealer may condemn and seize any weight or meas-
ure found by him to fail to conform to the standards in his possession
and which is not caused by him to conform to such standards and
cause the same to be destroyed or disposed of under such regulations
as the commissioner of farms and markets may prescribe. [Farms
and Markets Law (L. 1922, ch. 48), § 186.]

§ 7. METHOD OF SALE OF CERTAIN COMMODITIES,

All meat, meat products and butter shall be sold or offered for sale
by net weight; all other commodities not in containers shall be sold or
offered for sale by standard net weight, standard measure, or numerical

 

2. Jurisdiction of a county sealer of weights and measures does not extend
to the cities within his county. Rept. of Atty. Genl., Oct. 19, 1910.

Id.; residence, A county sealer of weights and measures should be a
resident of that part of the county not included within a city, his jurisdiction
not extending therein. Opinion of Atty. Genl. (1919), 20 St. Dept. Rep. 220.
1090b-e-d PROVISIONS RELATING TO COUNTIES,

Farms and Markets Law, $§ 194, 195, 196.

count; and such net weight, measure or count shall be marked thereon,
or on a label or a tag attached thereto; provided, however, that veget-
ables may be sold by the head or bunch. [Farms and Markets Law
(L. 1922, ch. 48), § 193.]

§ 9. NET CONTENTS OF CONTAINERS TO BE INDICATED ON THE OUT-
SIDE THEREOF. .

When commodities are sold or offered for sale in containers whose
sizes are not otherwise provided by statute, the net quantity of the
contents of each container, or a statement that the specified weight
includes the container, the weight of which shall be marked, shall be
plainly and conspicuously marked, branded or otherwise indicated on
the outside or top thereof or on a label or a tag attached thereto, in
terms of weight, measure or numerical count; provided, however, that
reasonable variations shall be permitted. [Farms and Markets Law
(i. 1922, ch. 48), § 194.]

§ 10. EXCEPTIONS.

The provisions of the last two sections shall not apply to containers
or commodities in containers with ornamentations or decorations ex-
clusively for gifts or social favors, or to commodities dispensed for con-
sumption on the premises, or to commodities or containers put in recep-
tacles used merely for the purpose of carrying or delivering of commo-
dities or containers complying with the provisions of such sections or
when the numerical count of the individual units is six or less, or in the
ease of liquids when the contents is two fiuid ounces or less, or when
the weight of the contents is three avoirdupois ounces or less, or to
barrels, half-barrels, quarter-barrels, casks, kegs and packages used
for the purpose of containing maltous beverages. [Farms and Markets
Law (L. 1922, ch. 48), § 195.]

§ 11. GUARANTY FURNISHED BY WHOLESALER, JOBBER OR MANU-
FACTURER.

No person shall be prosecuted under the provisions of the last three
sections when he can show a guaranty signed by a wholesaler, jobber
or manufacturer, residing in the state of New York from whom he
purchased the commodity in containers to the effect that they were
not incorrectly marked within the meaning of such sections. The per-
son making the sale and guaranty shall then be amenable to the pro-
secution, fines, and other penalties which would in due course attach
to the dealer under the provisions of such sections. The name appear-
ing on the container and the marking as provided by next to the last
preceding section shall be deemed to constitute a guaranty2 [Farms
and Markets Law (L. 1922, ch. 48), § 196.]

3. Penalties, see, Farms and Markets Law (L. 1922, ch. 48), §8§ 39, 40.

Prosecution for penalties, see, Farms and Markets Law (L. 1922, ch. 48),
§ 44,
FORESTS; PREVENTION OF FIRE. 1090e-f-g

Conservation Law, §§ 60, 52.

CHAPTER LXXV-A.
FORESTS; PREVENTION OF FIRE.

. Communal forests.
. Fire districts and fire towns,

Section 1
3
4. Fire moneys and accounts.
5
6

. Forest fire prevention.
. Railroads in forest lands.
7. Damages on account of forest fires.

§ 1. COMMUNAL FORESTS.

A county, city, town, or school district may acquire by purchase, or
gift, or take over lands in its possession within the boundaries thereof
and use the same for forestry purposes.

1. Power and authority. The governing board of a county, city,
town or school district may appropriate money or issue bonds either
for purchase of lands for the purposes herein provided, to establish
forest plantations or for the care and management of forests. Such
boards may undertake such work at regular or special meetings by
majority vote of such board after two weeks public notice setting forth
the fact that such plan is contemplated and that moneys are to be
appropriated for such purpose.

2. Assistance and trees. The conservation commission may assist
and advise such boards in its reforesting work, and the commission may
furnish trees for reforesting such publicly owned lands without charge
provided they are planted in accordance with the instructions of the
commission.

3. Use. Such governing board shall have full power and authority
to acquire, maintain, manage and operate such forests for the benefit
of the inhabitants of the district.

4, Revenue. The net income from such lands shall be paid into the
general fund of such municipal division and shall be used only upon
order of its governing board. [Conservation Law, § 60, as amended by.
L. 1916, ch. 451.]

§ 3. FIRE DISTRICTS AND FIRE TOWNS.

The following classification of districts is made for the purpose of
protecting the forests from fire.

1. Fire towns. The commission, for the prevention of forest fires
and the extinguishment of fires burning or threatening forests, shall,
in the fire towns, maintain a force of forest rangers, observers and fire
wardens. It shall maintain an approved fire protective system, includ-
ing fire observation stations and other equipment necessary to prevent
and extinguish forest fires. The territory included within the fire
towns shall be divided into five districts, each of which shall be in
charge of a district forest ranger. The commission may when neces-
sary in its judgment, in order to protect the forests in the fire towns
from fire, take steps to extinguish fires actually burning in any town
adjacent to a fire town. ([Subd.1, as amended by L. 1917, ch. 266, and
Li. 1922, ch. 35.]
1090h PROVISIONS RELATING TO COUNTIES AND TOWNS.
Conservation Law, § 62.

2. Fire districts. The commission may establish a forest fire pro-
tective system in such other parts of the state as it may deem necessary
where there are contiguous areas of forest land aggregating seventy-five
thousand acres or upwards. In such regions the commission may es-
tablish, equip and operate fire observation stations with the necessary
accessories, prepare and post fire notices, organize a fire protective force,
and require the town authorities to perform their duties in forest fire
protection. If the town supervisor fails to certify to the conservation
commission by February fifteenth of any year a list of the fire wardens
for such town then the conservation commission may appoint necessary
fire wardens. <A report of every forest fire which occurs in any town
within a fire district shall be prepared by the supervisor of the town
or by a fire warden or forest ranger designated by him, upon blanks
furnished by the commission, and filed in the office of the commission
within ten days after such fire is extinguished. [Subd. 2, amended by
L. 1919, ch. 540.]

3. Towns generally. In the towns other than the fire towns the
town supervisor shall be superintendent of fires in his town and he
shall be charged with the duty of preveting and extinguishing forest
fires. He shall have the power and is hereby required to appoint neces-
sary and competent fire wardens. On or before February fifteenth of
each year, the town supervisor shall state to the commission, in writing,
the names of the persons whom he appoints to’ act as fire wardens dur-
ing the current calendar year. [Conservation Law, § 52, as added, by
L. 1916, ch. 451, and amended by L. 1917, ch. 266, L. 1919, ch. 540, and
L. 1922, ch. 35.]

10. Fire towns are as follows: All towns in Hamilton county; the
towns of Altona, Ausable, Black Brook, Dannemora, Ellenburg and
Saranac, Clinton county; the towns of Andes, Colchester, Hancock and
Middletown, Delaware countv; the towns of Chesterfield, Elizabeth-
town, Jay, Keene, Lewis, Minerva, Moriah, Neweomb, North Elba,
North Hudson, Saint Armand, Schroon and Wilmington, Essex county ;
the towns of Altamont, Belmont, Brighton, Duane, Franklin, Harrietts-
town, Santa Clara and Waverly, Franklin county ; the towns of Bleecker,
Caroga, Mayfield and Stratford, Fulton county; the towns of Hunter,
Jewett, Lexington and Windham, Greene county; the towns of Ohio,
Russia, Salisbury, Webb and Wilmurt, Herkimer county; the towns of
Croghan, Diana, Greig, Lyonsdale and Watson, Lewis county ; the towns
of Forestport and Remsen, Oneida county; the towns of Corinth, Day,
Edinburg and Hadley, Saratoga county; the towns of Clare, Clifton,
Colton, Fine, Hopkinton, Parishville, Piercefield, Pitcairn, Saint Law-
rence county; the towns of Neversink, Rockland, Sullivan county; the
towns of Denning, Gardiner, Hardenburgh, Olive, Rochester, Shan-
daken, Shawangunk, Wawarsing and Woodstock, Ulster county; the
FORESTS; PREVENTION OF FIRE. 10901

Conservation Law, § 53.

towns of Bolton, Caldwell, Chester, Hague, Horicon, Johnsburgh, Lu-
zerne, Queensbury, Stony Creek, Thurman and Warrensburgh, Warren
county; the towns of Dresden, Fort Ann and Putnam, Washington
county. [Conservation Law, § 62, subd. 10, as amended by L. 1916,
ch. 451.]

§ 4. FIRE MONEYS AND ACCOUNTS.

In order to carry into effect the provisions of this article the follow-
ing is prescribed.

1. Temporary loan. The state comptroller shall have, subject to the
approval of the governor, the authority to make, on behalf of the state,
a temporary loan not exceeding one hundred thousand dollars in any
fiscal year, for the use of the conservation commission in protecting the
forests and extinguishing fires as provided by this article upon the
certification of the conservation commission that an emergency exists
whereby through insufficiency of appropriations it is found to be impos-
sible to protect the forests from fire. The comptrol'er shall thereupon
borrow such sums as may be directed by the governor for such purposes
and shall report such transactions to the legislatrre which shall there-
upon appropriate the moneys borrowed. Secticn thirty-five of the
finance law shall not apply to any indebtedness so incurred.

2. Payment of fire bills. All salaries and other expenses incurred
by the commission and its employees in protecting the forests in the
fire towns from fire shall be paid by the state?

3. Rebate by towns. One-half of all expense incurred under subdivi-
sion two of this section in extinguishing fires actually burning, except
salaries and expenses of regular employees, shall be a charge upon the
town in which the fire burned. The commission shall, on or before
November twentieth of each year, transmit to the clerk of the board
of supervisors of each county containing fire towns a summary state-
ment of expenses incurred together with the amount charged against
each town in such county. The said clerk shall immediately deliver
such statement to the board of supervisors who shall thereupon levy
the said amount due from each town to the state upon the taxable prop-
erty of such town by including the said amount in the sums to be
raised and collected in the next levy and assessment of taxes therein,
and the same shall be collected as other town taxes are collected and
the amount due the state shall be paid by the supervisors to the con-
servation commission on or before May first following the levy thereof.
‘Subd. 3, as amended by L. 1922 ch. 35.]

1, Where expenditures are made by the conservation commission, questions con-
cerning the liability of the town therefor, should be raised in connection with the
assessment and levy of the tax. Matter of Atty. Genl. v. Taubenheimer (1917), 178
App. Div. 321, 164 N. Y. Supp. 904. As to when mandamus will lie to compel super-
visor to pay over money collected for payment of expenses in fighting fires, see
Matter of Atty. Genl. v. Taubenheimer, supra.
1090} PROVISIONS RELATING TO COUNTIES AND TOWNS.

Conservation Law, § 54.

4, May pay accounts. If any person incurs expenses fighting forest
fires in a fire town, the commission may upon the receipt of satisfactory
proof and accounts filed in its offices within sixty days from the time the
expense was incurred audit and pay all or such portion thereof as in its
judgment the public interest requires.

5. Recovery of expenses. Any moneys necessarily expended by the
state, a municipality, or any person in fighting forest fires may be sued
for by the state, municipality or person expending the same and recov-
ered from the person causing the fire. Such actions may be maintained
in addition to other actions for damages or penalties and may be
demanded in the same or separate actions.

6. Certain towns raise fire fund. Towns other than fire towns may
raise necessary funds for prevention and extinguishment of forest fires
in their towns either by levy or by the supervisor making temporary
loans.

7. Advance by comptroller. The comptroller may upon request of
the conservation commission advance, not to exceed five thousand dollars
at any time, to said commission for the purpose of facilitating payment
of fire accounts. [Conservation Law, § 53, as added by L. 1916, ch.
451, and amended by L. 1922, ch. 35.]

§ 5. FOREST FIRE PREVENTION.

The following provision* shall apply in protecting forests from fire:

1. Proclamation by governor. Whenever, by reason of drought, the
forests of the state are in danger of fires which may be caused by
hunters, fishermen, trappers, or campers, the governor shall have the
power to determine and shall determine and declare that such pursuits
are contrary to the public interest, and shall have the further authority
to forbid by proclamation any person or persons carrying on such pur-
suits in so much of the territory included within the fire towns as he
deems the public interest requires. Such proclamations shall be in
full force and effect at the expiration of twenty-four hours after notice

is given in the manner the governor may determine.

 

* So in original.
FORESTS; PREVENTION OF FIRE. 1090k

Conservation Law, § 54.

2. Top lopping evergreen trees. Every person who shall within any
of the fire towns fell or cause to be felled or permit to be felled any
evergreen tree for sale or other purposes shall cut off or cause to be cut
off from the said tree at the time of felling the said tree, unless other-
wise authorized by the commission before the trees are felled, all the
limbs thereof up to a point where the trunk of the said tree has a longest
diameter which does not exceed three inches, unless the said tree be
felled for sale and use with the limbs thereon or for use with the limbs
thereon.

3. Fires generally. No fires shall be set on or near forest land and
left unquenched ; no fire shall be set which will endanger the property
of another ; no person shall set forest land on fire; no person shall negli-
gently suffer fire on his own property to extend to property of another ;
no person shall use combustible gun wads or carry naked torches on
forest lands; no fire shall be set in or near forest land in connection with
camping without all inflammable material having first been removed for
a distance of three feet around the fire; no person shall drop, throw, or
otherwise scatter lighted matches, burning cigars, cigarettes or tobacco;
no person shall deface or destroy any notice posted containing forest fire
warnings, laws, or rules and regulations.

4, Unpiloted hot air balloons. No unpiloted hot air balloon shall be
sent up in any fire town or in a town adjacent thereto.

5. Fires to clear land. No person shall set or cause to be set fire
for purpose of clearing land or burning logs, brush stumps, or dry grass,
in any of the fire towns, without first having obtained from the com-
mission a written permit so todo. If such burning is done near forest
lands and if there is danger of the fire spreading, a person designated to
issue such permits must be present.

6. Protection on steam plants. No device for generating power which
burns wood, coke, lignite or coal shall be operated in, through or near
forest land, unless the escape of sparks, cinders or coals shall be prevented
in such manner as may be required by the commission.

’. Material adjoining rights of way. In fire any of the towns, brush,
logs, slash or other inflammable material resulting from the cutting of
1090] PROVISIONS RELATING TO COUNTIES AND TOWNS.
Conservation Law, §§ 54, 55.

trees hereafter shall not be left or allowed to remain on land within twenty-
five feet of the right of way of a railroad or within twenty feet of the
right of way of a public highway.

8. Deposit of inflammable material. No person shall deposit, and leave
in any of the fire towns, brush or inflammable material upon the right of
way of highways. [Conservation Law, § 54, as added by L. 1916, ch. 451,
and amended by L. 1917, ch. 266.]

§ 6. RAILROADS IN FOREST LANDS.
In order to secure proper protection to the forests from fire the rail-

roads which operate through such territory shall be subject to the following
restrictions.

1. Railroad patrol. All railroads shall, on such parts of their rights
of ways as are operated through forest lands, maintain from April first
to November fifteenth of each year a sufficient number of competent fire
patrolmen unless relieved by the commission. The railroad shall file in
the office of the commission on or before April first of each year a complete
list of such patrol indicating the names of the men, their post-office
addresses and portion of right of way assigned to each patrolman. If any
changes are subsequently made similar data shall be furnished on request
of the commission. .

2. Clearing rights of way. The right of way of all railroads which are
operated through forest lands shall be kept cleared of all inflammable
material whenever required by the commission.

3. Locomotives to be equipped. No locomotive shall be operated unless
equipped with fire protective devices of ash pan and front end which have
been approved by the commission. Such devices shall be maintained and
properly used.

4, Reports of fires. A verified report of every forest fire which originates
on the right of way or within two hundred feet thereof, in any of the fire
towns or protected forest lands, shall be prepared by the railroad concerned,
upon blanks furnished by the commission, and filed in the office of the
commission within ten days after such fire occurs.
FORESTS; PREVENTION OF FIRE. 1090m
Conservation Law, § 56.

5. Examination of engine and records. Every railroad company shall
examine each coal burning locomotive each day it is operated between
March first and December first, and record the condition of the fire pro-
tective devices in a book, or books, kept for that purpose. Such book, or
books, shall be kept on file at such place or places in this state, as may be
selected by each railroad company, and shall at all times at such places
be accessible to inspectors of the conservation commission. Hach railroad
company shall within thirty days after the taking effect of this act file with
the conservation commission a statement of the place or places at which it
keeps such books; and in the event of a change of such place or places by
said company, it shall file a statement of such change within five days after
such change takes effect. [Subd. 5, amended by L. 1917, ch. 266.]

6. Deposit of coals, et cetera. Fire, live coals or hot ashes shall not be
deposited unless properly protected upon any track or right of way on or
near forest land.

7. Use of protective devices. Employees of a railroad shall at all times
use in a proper and effective manner the fire protective appliancs provided
by such railroad. [Conservation Law, § 55, as added by L. 1916, ch. 451.]

§$ 7. DAMAGES ON ACCOUNT OF FOREST FIRES.

In case of damages by forest fires negligently caused the injured party
may maintain actions in accordance with such of the following provisions
as are applicable thereto and shall have redress therefor.

1. Injury to state lands. Any person who causes a fire which burns
on or over state lands shall be liable to the state for treble damages and, in
addition, to a penalty of ten dollars for every tree killed by such fire.

2. Injury to municipal or private lands. Any person who causes a fire
which burns on or over lands belonging to another person or to a munici-
pality shall be liable to the party injured for actual damages in case of
fire negligently caused or for damages at the rate of one dollar for each
tree killed or destroyed in case of fire wilfully caused.

3. Recovery for damages from fires. The state, a municipality or any
person may sue for and recover under subdivision one or two of this
section, however distant from the place where the fire was set or started
and notwithstanding the same may have burned over and across several
separate, intervening and distinct tracts, parcels or ownerships of land.
1090n PROVISIONS RELATING TO COUNTIES AND TOWNS.

Conservation Law, § 56.

4. Method of computing value of state property. Damages to state
lands and timber shall be ascertained and determined at the same rate
of value as if such property were privately owned.

5. Prima facie cause on right of way. The fact that a fire originates
upon the right of way of a railroad shall be prima facie evidence that
the fire was caused by negligence of the railroad company.

6. Prima facie cause in clearing lands. Whenever a fire has been
set for the purpose specified in subdivision five of section fifty-four in
any of the fire towns it shall be prima facie evidence that the fire was
started by the owner or occupant of the land. [Conservation Law,
§ 56, as added by L. 1916, ch. 451. ]
PROVISIONS RELATING TO COUNTIES AND TOWNS.

CHAPTER LXXVI.

FEES OF COUNTY AND TOWN OFFICERS,

SECTION : Assessors.
2. Auditors, town.
. Collectors.
Constables.
. Coroners.
. County clerks.
. County treasurer.
. Court criers.
District superintendent,
9. Election officers.
10. Fence viewers.
11. Health officer.
12. Jurors.
13. Jurors, commissioners of.
14. Justices of the peace.
15. Overseers of the poor.
16. Physicians.
17. Pound masters.
18. Printers’ fees.
19, Railroad commissioner.
School director.
20. Sheriffs.
21. Supervisors.
22. Town clerks.
23. Town syperintendents of highways.
24. United States loan commissioners.

BAD OP WD

§ 1. Assessors.
Compensation, chargeable to towns, for each day’s services for the town
in completing assessment [Town Law, § 85, ante.].............-3 00 to
As fence viewers, compensation for services performed in settling disputes
as to all questions submitted to them relating to division fences, per
day [Town Law, § 364, ante.] a siete s sistoaaameis batee ening ta cneesd 3
Fees for traveling to place where strayed animals are kept, per mile....
Fees for certificate of charges in proceedings relative to strayed animals
[Town Law, § 385, ante.]..cecccccre cscs ccc cece sere nvnece Bees ‘i
Compensation for services in determining damages for injuries to sheep
caused by dogs, under Agricultural Law, § 138, for all services....
and for each mile necessarily traveled............ sdb Grape teticarsvertye
Compensation for listing each dog to be taxed......ccccssescececes
[For special provisions relating to compensation of assessors in towns hav-
ing an assessed valuation of $20,000,000 and in the towns in Monroe and
Nassau counties, see Town Law, § 85.]

1091

§ 00

1 50

10

75

2 00
05
1092 FEES OF COUNTY AND TOWN OFFICERS.

Meeting with state board of tex comrissioners. Section 173 of the Tax
.Law (ante), requires one or more of the state tax commissioners to visit
each county at least once in two years, “and inquire into the methods of
assessment and taxation, and ascertain whether the assessors faithfully dis-
charge their duties.’’? It is customary for the several town assessors to
meet such state tax commission on such visits at some place within the
county. Section 241a of the county Law (ante), provides that ‘‘town as-
sessors shall be entitled to receive compensation at the rate of four dollars
per day for each calendar day actually and necessarily spent in attending
a meeting within the county held for the purpose of conference with the
state board of tax commissioners or a member of such board, and mileage
at the rate of eight cents per mile by the most direct route from his resi-
dence, in going to and returning from the place within the county where
such meeting is held. Such compensation and mileage shall be a county
charge.’? See also Tax Law, § 171b, which requires town assessors to meet
with the state tax commission at a place to be designated, once in two
years. The expenses incurred by such assessors in attending such conference
are a charge against the county.

§ 2. Auditors, town.

Compensation:
In any town having a separate board of town auditors, for each day
not: exceeding twelve i s.sccsccedeae eee nes ieas ee sowees eee 3 00 to
In towns having no separate board of town auditors, for each day not
CXCOEMITIO: TWELVE: siniig odaarrarie wincle some eg wamuene Medes a ohview.e ote :
In towns of twelve thousand inhabitants and upwards, for each day
not exceeding thirty in any one year.............eeeeeee++-3 00 to

In towns of eighteen thousand inhubiinits ‘ana upwards, for ehh day,
not exceeding sixty in one year.........ecceeeeeeeeeeseees sd 00 to

In towns of forty thousand inhabitants and upwards, for each day,
not exceeding eighty days in one year to be fixed by the town board

Sit ER OM Looe cicean co Sab es euetisyan an ehoun outa -oye sa. e-a ouanacdoe avec anenre eueuaiene coeciaeus 3 00 to
In towns in a county adjoining a city of first class, for each day, not
exceeding one hundred days in one year.............eeeeeee 3 00 to

In towns of sixty thousand or more the town board shall have authority
to designate the number of days of service of the town auditor
actually and necessarily devoted by him to the service of the town,
in the duties of said office. [Town Law, § 154, ante.]

§ 3. Collectors.
Fees:
On all taxes paid within thirty days from date of notice of receipt

5 00

3 00

5 00

5 00

5 00

5 00

of assessment-roll, on amount of $2,000 and less................2 per cent.
On amounts of over $2,000..............44. see ceeeeceeccnceeeeesl per cent.
On taxes collected after expiration of thirty days.................5 per cent.

On taxes returned to county treasurer as unpaid [Tax Law, § 81,

GNEE.] vs eerccccccerccccerccccccncececrsceeesseceecscescesseed per cent,

§ 4. Constables.
In civil actions:
In an action brought before a justice of the peace, or in a justice’s
court of u city:
For serving @ SUMMONS.......cccccccccccccccccccccssccscsccces
' For serving a summons and executing an order of arrest.......00
For serving a summons and levying a warrant of attachment........
PROVISIONS RELATING TO COUNTIES AND TOWNS.

In civil actions—(continued) :

For serving a summons and affidavit and executing a requisition, in
an action for a chattel..... Saiik Wael aoe Sainte asaiacaneadats Shere ee

For serving an order directing the action to be continued before a
justice other than the one before whom it is pending and for at-
tending before the latter. . cc... cee cece cette eee cette eee n eens

And in addition if he so attends with a person in his custody........

For collecting money by virtue of an execution, for every dollar col-
lected, to the amount of twenty-five dollars.......... cc cee eee e eee

For every dollar collected over twenty-five dollars.............000005

And where a judgment or an execution is settled after a levy, the con-
stable is entitled to poundage on the sum at which the settlement is
made, not exceeding the value of the property levied on.

For each mile necessarily traveled, going and returning to serve a
summons or to serve or to execute any other mandate, except a
venire, the distance to be computed from the place of abode of the
person served, or the place where it is served, to the place where
it is returnable ............ Bene Sy eciCeiuah We “Suess 8-8 7e esto. Seenlousle dal ac avetaia a AG's

But where two or more mandates in one action are served or executed
on one journey, or where a mandate is served on or executed against
two or more persons in one action, he is entitled, in all, for each
mile necessarily traveled, to only........ccccceee eee ee ee ett eee

For notifying the plaintiff of the execution of an order of arrest....

And for going to the plaintiff’s residence, or, if he is found else-
where, to the place where he is found, to serve such a notice, for each
mile traveled going and TOULPDING cinein’s sabtie vives vadaisn atatics snk

For subpenaing each witness, not exceeding four............/......
For notifying the jurors to attend a trial............... a Wace ow yaaa
For taking charge of a jury during their deliberations.......... tees

Where witnesses, not exceeding four, are subpenaed by any person
other than a constable, the fee therefor, is, each [Justice Court Act,
§ 926, (subds: Lllses coated sxciwee'e wow s donw s saws eaaiea es Ree ee

In a special proceeding:
For notifying jurors to attend to assess damages, in proceedings relat-
ing to highways..........-esecseeeeeeee sin iene cah came. s debates sais :
For notifying jurors to attend in any other case, unless a fee there-
for is specially prescribed by law, for each person notified........
And for each mile actually and necessarily traveled, going from and
returning to his place of residence....... cece cece cece eee eeeeeee
For serving a precept or other mandate, by which the special proceed-
ing is COMMENCED ... cess e cece ese e rear ereseseeeeeenetereennes
For serving a warrant, in any case where a fee therefor is not specially
prescribed by law. .... cc ccee cece cece cece renee tenet e tee eenee
For serving an order, directing the special proceeding to be continued
before justice other than the one before whom it is pending, and
for attending before the latter, with or without a person in his
CUBtOd ys cates) serine se ie Pape dearer Be WwECeie aletels a han een Te
For arresting and committing any person, pursuant to process......
For subpenaing each witness, not exceeding four.........-...-.+++8
For each mile necessarily traveled, going and returning, to serve or
execute a mandate, the distance to be computed from the place where
it is served or executed, to the place where it is returnable, unless a

1093

1 50

15

15
50

15
50

10

10
10
25

50

25
1094 FEES OF COUNTY AND TOWN OFFICERS.

In a special proceeding—(continued) :
different rate of travel fees upon the service or execution thereof is
specially prescribed by statute. ........ cece cece cece eee eens 10
Where two or more mandates are served or executed in one special
proceeding, the limitation upon the amount of travel fees specified
in the preceding subdivision applies [Justice Court Act, § 333].
For attending a sitting of a court of record, pursuant to a notice from
the sheriff, to a fee for each day’s actual attendance, to be fixed by
the board of supervisors, and mileage as allowed by law to trial
jurors in courts of record. Also compensation for an additional
day when unable to reach home upon the day he is excused from
attendance. [Town Law, § 85, subd. 4]........... cece ee eee eee 4 00
For compensation for attending evening or night sessions of court or
grand jury, an amount as may be provided by the board of super-
visors [Town Law, § 85, subd. 4.]

In criminal cases:

For executing a warrant of arrest and making an arrest thereunder.. 1 50
For making an arrest without a warrant............sseeceeeeee iets 1 00
For every mile traveled, going and returning.................ee00ee 15
For taking a defendant in custody on a commitment..............55 50
For each mile traveled in taking a prisoner to a jail, going and

TECUIMING 26 aie ss asis Kewanee a RES «CaO NTS Med KaO TOR ae Hes SHwS4 15
For serving every subpoena ..... cece cece tee eee crete eee e ee eeeees 50
For every mile traveled in serving a subpoena, going and returning.. 15
For notifying a complainant............ cece eee eee e cece eee nees 50
For each mile traveled in notifying a complainant, going and re-

SPRLTTNT TN 5 a5 eeepc gk oe ea tes tna spmecny au eg doh BG Cot ateagb ore Sarveuel Sos od ete. s Arouarane aa 15
For keeping a prisoner after being brought before a justice, and by

his direction in custody, per day.......... cc cee cece cece ee eeeees 3 00
For taking charge of a jury during their deliberations......... sero 1 00

For attending any court, pursuant to a notice from the sheriff for that
purpose, a fee for each day’s actual attendance in any county in
the state, to be fixed by the board of supervisors thereof and mile-
age as allowed by law to trial jurors in courts of record, which fees
shall be chargeable to the county and shall be paid by the treasurer
thereof in the same manner as fees of other court officers are paid.
[Code Crim. Proc., § 740b, added by L. 1920, ch. 310.]

The board of supervisors may allow such further compensation for
the service of process, and the expenses and trouble attending the same,
as they shall deem reasonable:

For services in criminal cases, for which no compensation is specially
provided by law, such sum as the board of supervisors of the county
shall allow. [County Law, § 240, subd. 6.]

Mileage. Whenever a subpoena for witnesses in criminal cases or
complaints, containing one or more names, shall be served by a con-
stable or other officer, such officer shall be allowed for mileage only
for the distance going and returning, actually traveled to make such ser-
vice upon all the witnesses in such case or complaint, and not separate
mileage for each witness, unless the board of supervisors auditing ac-
counts for such services shall deem it equitable to make a further
allowance. [Code Crim. Proc., § 619b.]
PROVISIONS RELATING TO COUNTIES AND TOWNS.

§ 5. Coroners.

Board of supervisors may prescribe that coroners receive a salary
instead of fees and may fix the amount of such salary. [County
Law, § 191.]

Reasonable allowance as salvage may be allowed to a coroner for
services in the recovery of wrecked property. [Navigation Law,
§ 88.]

Fees upon inquest. The coroners in and for the State of New York,
except in the counties of New York and Kings, and such other coun-
ties as shall have prescribed a different compensation, shall be entitled
to receive the following compensation for services performed, charge-
able to the county:

Mileage to the place of inquest and return, per mile...............

Viewing Dody* jena soc cence cyaeicg cans wegen gitte ce Bee read gone as

Serving of subpoena, per mile traveled............-..--s eee eens

Swearing each witness............ 0c e eee ec cnet eee eae

Drawine Gecision: tis sg sucxeena saw ave ssacasn wis ath srinre diy ted arte Butea Sado

Copying decision for record, per folio............. cece cece eens
(But such officers shall receive pay for one copy only.)

For making and transmitting statement to board of supervisors,
CaCH (CECISION: (65 sear wae is ieoawaarea Ka a Aaa ES Rees

For warrant, of commitment............. 0.26 cece cece eee

For arrest and examination of offenders, fee shall be the same as
justices of the peace in like cases. (See Justices of the 7eace.)
[County Law, § 192.]

A coroner is entitled to fees where an inquest is held but is not
entitled to disbursements in addition thereto. Where no inquest is held
he is entitled to actual and necessary disbursements but no fee. Rept.
of Atty. Genl., March 3, 1911.

Fees when performing duties of sheriff. For performing any duty of
a sheriff, in an action or a special proceeding, in which the sheriff
is, for any cause, disqualified, the same fees to which a sheriff
is entitled for the same services.

For confining a sheriff in a house, by virtue of a mandate, and
maintaining him while there, for each day, to be paid by the
sheriff before he is entitled to be discharged. [Civil Practice Act,
§ 15605) sane sece cvemames aes qe

Shall be reimbursed for all moneys paid out aetually, and neces-
sarily, by him in the discharge of official duties as shall be allowed
by the board of supervisors

Shall receive for each and every day and fractional part thereof spent
in taking an inquisition............ sah opuyex Gah ie fo rncenaranNaverecesatorsoretintie

For performing the requirements of law in regard to wrecked vessels,
for each day and fractional part thereof..............eee eee eee

And a reasonable compensation for all official acts performed, and
mileage to and from such wrecked vessel, per mile.............---

For taking ante-mortem statement he shall be entitled to the same rates
of mileage as before mentioned, and for each day and fractional
part thereof......ccesecsccccucecsccece sxeceevenraaavece siete

For taking deposition of injured person in extremis [County Law,

1095

10

10
1b

25

50

10
1096 FEES OF COUNTY AND TOWN OFFICERS.

Fees as a witness. Whenever, in consequence of the performance of his
official duties, a coroner becomes a witness in a criminal proceeding,
he shall be entitled to receive mileage to and from his place of

residence, per mile...... pias Valea ss hte Sacer e SWING s este SeseeAs ois
And for each day or fractional part thereof, actually detained as a
witness. [County Law, § 193.].......ccceeee seer e eee rteeees sake

§ 6. County clerks.

Fees generally. A county clerk is entitled, for the services specified,
except where another fee is allowed therefor by special statutory
provision, to the following fees to be paid in advance:

For searching and certifying the title to, and ineumbrances upon real
property, for each year for which the search is made, for each name,
and each kind of conveyance or lien.......ceee cece eee etc eees

For a copy of an order, record or other paper, entered or filed in his
Office, for each folio...... cece cece ee eee e ee eens severe auanaretseays

For filing a transcript of a docket of judgment and making an entry
of the suspension of the judgment....... ear es Haas Oa Bunn alate co 8

For issuing'an execution upon a judgment, a transcript whercof, or of
the docket of which, has been filed in his office, to'be paid by the
party at whose request the execution is issued, and to be collected by
the sheriff in addition to the sum due upon the judgment........

For recording and indexing a notice of the pendency of an action filed
in his office, for each folio contained in the notice.......... afeieiesass

For cancelling such a notice, or a notice of attachment filed in his
OTGEY vas siold i: ayaiaiaie Sibvelee sens ala Guenadolenetaiaeietaye Po Meee Be me

For recording any instrument, which must or may legally be recorded
by him, for each folio...............0000- Sidio ik Vines BEC #4 Gee

For entering a minute that a mortgage has been foreclosed........

For filing and entering a satisfaction or an assignment of a judgment

For fiiling any paper required by law to be filed in his office, other
than as expressly provided for in this section. sider @\suaua ya aa Ahadevene

For a certificate, other than that a paper, for the copying x which he
is entitled to a fee, is a COPY....e cc cece cece cece ee cseeeeeeeeas e

For making the entries required of him by law of moneys deposited
with the county treasurer, in such case, to be paid by the party to
the action or proceeding, and taxed as a disbursement therein....

10

3 00

05

08

12

50

10

25

10

10

12

06

25

50
PROVISIONS RELATING TO COUNTIES AND TOWNS.

But the county clerk is not entitled to any fee, under this section, for
a copy of, or for filing or certifying, any paper, in a civil action or
special proceeding, in a court of which he is ex officio clerk. [Civil
Practice Act, § 1554 (L. 1920, ch. 927), in effect April 15, 1921.]

Fees as clerk of a court.
Upon the trial of an action, or the hearing, upon the merits, of the
special proceeding, from the party bringing it on................
For entering final judgment in the action, or entering a final order in
the special proceeding, including the filing of the judgment-roll,
and a copy of the judgment to insert therein.................66.

And in addition for each folio exceeding ten, contained in the order
OF JUdgMEN Es v:sia.e4. sede 6 gees 6 Hees oe. H18'9.9 04 iis se hans aera oi a5 'eeney es
For entering any other order or an interlocutory judgment, for each
folio, exceeding five.............. (Slat FisRGa ee Pees ded Mesa es
For a certified or other copy of an order, record or other paper,
entered or filed in his office, for each folio...............-e ee eee
Where, on an appeal from a judgment or order, a party shall present
to the clerk a printed copy of the judgment-roll or order appealed
from, it shall be the duty of the clerk, as required, to compare and
certify the same, for which service he shall be entitled to be paid
at the rate of, per folio....... ida ae avn i Sa opaaa poaver alana “ovevacarolare. osnasea tye a

For a certified transcript of the docket of a judment..............
For filing a transcript and docketing or redocketing a judgment there-
upon. [Civil Practice Act, § 1553.]..............5. ee Grate aka vetis
For any other service in an action or a special proceeding in the court
he is not entitled to any fee or other compensation, except that
when he is also county clerk, he may charge fees as prescribed in

1097

1 00

50
10
10

05

01
12

06
1098 FEES OF COUNTY AND TOWN OFFICERS.

Fees as clerk of court—(continued) :
: the next section (Civil Practice Act, § 1554), subject to the
limitations therein contained. [Civil Practice Act, § 1553.]
For all services, upon the filing of a declaration of intention by an
alien to become a citizen, including the oath or affirmation, the
recording of the same, and a certificate thereof delivered to the
UAT i 25 hearin: uyarcsvewl wn & lors iG Sv eviausi.e cap Svaniestin Scous lol Dee Sk aes eG GUE RIS Behe Bechet 20
For all services, upon the admission of the alien to be a citizen,
including the recording of the papers, and a certified copy of the
record, which must be delivered to any person requiring it (Judiciary

Law, § 253). [Civil Practice Act, § 1553.]..........-e eee fre semes 50
Other fees:
Notary public, of the fees payable by a, the county clerk of

every county, except New York, Kings and Erie may retain.... 50
Of the fees payable by a notary public in Erie county, may retain.. . 1 30
In New York and Kings county, not exceeding in the total $1,500

in Kings county or $3,000 in New York county [Executive Law,

§ OA] eiekags dad igs aE ee Oe Rees DR ee ES ee ee BEET foe 3 00
From each commissioner of deeds qualifying shall receive [Ex-

ecutive: Liaw y'$ 106] awit aw see ain tee gig Peta eaten ee wake hart 1 00
For recording official bonds and undertakings, the same fees as are

allowed for recording conveyances [County Law, § 247]......--

For registering county bonds, for each bond [General Municipal

Tea we 10 ]scc-ne ceed eens eee Stam sien Geena aan sede See ae 25
For registering each physician [Public Health Law, § 170]........ 1 co
When registered in another county [Public Health Law, § 171].... 25
For registering each dentist........... 00. eee eee eee 1 00
When registered in another county [Public Health Law, § 199].... 25
For registering each veterinary surgeon [Public Health Law, § 220] 1 00
When registered in another county [Public Health Law, § 221].... 25
For registering each chiropodist [Public Health Law, § 280]...... 2 06
For recording an optometrist’s certificate of registration or exemp-

tlOM 6.66 RES he FG bo oe a aew Rela Se HO Va Go eis TOE LOE AAS 50
For fees as to filing chattel mortgages, see Town Clerks, post.

For filing and recording certificate of partnership................ 1 00
For each additional name of a partner beyond two................ 10
For a certified copy of certificate of partnership [Partnership Law,

§ 01] sac uaae ee tees yes beet pined ogee nee Slew d bsiwtee a canals ane teens 50
For filing a building loan contract or modification thereof [Lien

Daiwa 8 22] 2 esa sence earns Bees koe SGe oti oe oe Shea Pee 20
For countersigning and delivering hunting license, to a non-resi-

Gent Gh AlGNi sk oars ehws ees BHR Oe ee ROTA WEEK Deere ee eee Dee ee 59
To a resident [Conservation Law, § 185, subd. 3]................. 10
For recording the statement of the description and pedigree of a

stallion kept for services, and for the certificate that such cer-

tificate has been filed and recorded, per folio [Lien Law, § 161]. 10

§ 7. County treasurer.

Fees as to moneys paid into court:
For receiving money paid into court upon the sum so received. .% per cent.
For paying out the same, upon the sum so paid out............ Y% per cent.
For investing money, pursuant to the direction of a court, upon
PROVISIONS RELATING TO COUNTIES AND TOWNS. 1099

Fees as tc moneys paid into court—(continued) :
the sum invested, not exceeding two hundred dollars......... Y% per cent,
And upon the excess, over two hundred dollars................ , per cent.
For receiving the interest upon an investment, and paying the
same to the person entitled thereto, upon the interest so received
and paid [Code Civ. Proc., § 3321].....-.-. 0c cece eee eee eee W% per cent.

Fees as administrator:
For receiving and paying out all sums not exceeding one thousand

COMERS: 255 05: duet creseracne ns Meise ares Sa eerie SO Seuss auaidee:dperorose eres 5 per cent.
For receiving and paying out all additional sums not amounting
to more than ten thousand dollars...................00c0ee 2% per cent.

For all sums above eleven thousand dollars and all necessary expenses
[Code Civ. Proc., §§ 2593, 2753; transferred to Surrogate Court Act
as §§ 123, 285, by L. 1920, ch. 928, in effect April 15, 1921.]......1 per cent.

Fees for receiving and paying over taxes:
The county treasurer may retain on all taxes paid and accounted for
on account of the state tax... .... ccc cece n eee cere rene eneee 1 per cent.
Not exceeding in any one year on account of all taxes for state pur-
poses received and paid out by him, including schools [Tax Law,
§ 91, as amended by L. 1919, chs. 55, 249.]........... 0c cece ee eee 1,500 00

Fees for recewwing and paying over on account of taxable transfers:
On all taxes paid and accounted for by him each year on the first fifty

thousand:..dollars: io. ssid et daw be oR as otee Cod See de BK Ow Mey 5 per cent.
On the next fifty thousand dollars........... see cess sees eee eee 21% per cent.
On all additional sums [Tax Law, § 237].......... cc cee eee ee eens 1 per cent.

Fees an account of the collection of the liquor tax:
Of all taxes, penalties and fines collected in counties containing a

city of the first or second Class......... ccc c cece e eee e eee eeeneees 1 per cent.
In counties containing a city of the third class but not a city of the first
or second ClasS .......ccesecaerenacces eis 4 ee va ween areas ae 2 per cent.

In all other counties [Liquor Tax Law, § 11]............e cece ne eeee 3 per cent.

§ 8. Court criers.
The compensation of criers of courts of record for attendance thereat,

US: POTS CLAY ~ isisire- sis ysieey oP ay Sets eusunr enact atone ooeavaseih <a opal elsvace aneaa ee ubieme a iy as 3 00
Traveling fees going to and returning from the place of attendance,

PCT MUC! caivecosisue viuieas isieeteoeewe omnes es neds eee ee aee Es ee 05
In the county of Queens the crier receives a yearly salary of [County

Law} 8: 240; SUb 4, 665] aus as sins scanioinse grates a weevie a ching we iene eee Sas 1,200 00
In county of Westchester, compensation to be fixed by the county

judge at not to exceed, per annum [Judiciary Law, § 365.]........ 1,200 00

§ 8a. District superintendents of schools.
Each district superintendent of schools shall receive an annual salary
Trom; the: state: OF ai esecds siaed sani easy aude godin a ana aaronarse a 1,800 00
The supervisors of the towns composing any supervisory district may by
adopting a resolution by a majority vote increase the salary to be paid by
such district to its superintendent [Education Law, § 389, as amended
by L. 1919, ch. 559.] j
1100 FEES OF COUNTY AND TOWN OFFICERS.

§ 9. Election Officers.

Inspectors of election, in towns:

For each day actually and necessarily devoted by them to the ser-
vice of the town upon days of registration and election day [Town
Law, § 85, as amended by L. 1920, ch. 30].......-- cece eens sits

For compensation for services for filing returns in office of county
CLOT G sciis se aahn sa Misi ayers Res Sp ealG ww ane Fs hs ela avedoae. ee eee Bra Ara = Rain

For mileage in going to and returning from clerk’s office, for each mile
[Election Law, § 319, as amended by L. 1919, ch. 504]............

Ballot clerks cnd poll cierks are entitled to the same compensation as
inspectors for services performed on election and primary days.

But the board of supervisors may establish in their county a higher rate,
not exceeding ten dollars per day for election day and primary days, and not
exceeding six dollars per day for other services. [Town Law, § 85, as
amended by L. 1920, ch. 30.]

§ 10. Fence viewers.

The compensation of assessors and highway commissioners as fence
viewers for services performed in settling disputes as to division
fences, per day [Town Law, § 364, ante].......... Seaeweretans oes

Fees for traveling to place where strayed animals are kept, per mile..

Fees for certificate of charges in proceedings relative to strayed animals
[Town Law}, § 385) ante] oc scnsouss weecs swan ds aati same paeoe sees

Compensation in drainage proceedings is the same as in settling dis-
putes as to division fences. [Drainage Law, § 93.]

§ 11. Health Officer.

The annual compensation of the health officer of a town is to be fixed by
the town board acting as a local board of health, at not less than ten cents
per capita for each inhabitant in a town having a population of 8,000, and
not less than $800 in all towns having a population of more than 8,000.
[Public Health Law, § 21, ante.]

In addition to such compensation the town board, as a local board of
health, may allow the reasonable expense of such health officer in going
to, attending and returning from the annual sanitary conference of health
officers; and may also, whenever the services rendered by such health officer
are extracrdinary or extra hazardous by reason of epidemic or otherwise,
allow to him such further sum in addition to his fixed compensation as
shall be audited by the town board. [Idem.]

Fees for reporting to the state department of health, for each case of
infectious or contagious disease to be paid by the town [Health
Law, $26). Gnte] su sc asaw as nee wes sian a area o ees ea ease ws Gave 6 a6.

§ 12. Jurors.

For each cause in which he is empanelled, trial juror is entitled to
[Code Civ. Proe., § 3313; transferred to Civil Practice Act as § 1504,
by L. 1920, ch. 925, in effect April 15, 1921.].............. tae atte

Compensation of grand jurors may be fixed by the board of supervisors
not exceeding in addition to the fee of twenty-five cents for each
cause in which a trial juror is empanelled for each day’s attend-
ance at a term of a court of record the sum of and for an additional
day when unable to reach home upon the day when excused for
BUCeNA ANCE? ccs icaieiese. a ayece csecwinare dWeeiateee ei Sie'e Seiwa’ etwas © eonwwi 8 410%

For night sessions, where same are held...... ...ccceceeceececccces

3 00

5 00

75

4 00
1 50
PROVISIONS RELATING TO COUNTIES AND TOWNS.

Jurors— (continued) :
Mileage is allowed, going to and returning from such courts, unless
a lower rate is fixed by the board of supervisors for each mile [Code
Civ. Proc., § 3314; transferred, except as to trial jurors, to Code
Crim. Proe. as § 267a, by L. 1920, ch. 920, in effect April 15, 1921.]
In a special proceeding, before a judge of a court of record; or upon
a writ of inquiry; or upon a trial, before a sheriff, of a claim
personal property, seized by virtue of a warrant of attachment or
an execution [Code Civ. Proe., § 3316; transferred to Civil Practice
Act, as § 1505, by L. 1920, ch. 925, in effect April 15, 1921]......
A juror is entitled to mileage for actual travel once in each calendar
week during the term, except’ that in the counties of Queens, Rockland
and Orange, grand and trial jurors may be paid four cents a mile for each
mile necessarily traveled in going to and returning for each day of actual
travel during the term in lieu of any other mileage. [Code Civ. Proe.,
§ 3314; see above.]

Where the trial occupies more than thirty days the court may fix
and allow to each juror an extra compensation for his services there-
upon to be paid, including all necessary expenses for food by the
county. [Judiciary Law, § 749i.]

The fees of jurors necessarily summoned upon any coroner’s inquest
shall be not to exceed one dollar for each day’s service, shall be a
county charge and shall be audited and allowed by the boards of
supervisors in the s2me manner as Other fees and charges mentioned
in this act. But the coroner holding such inquest and summoning said
jurors shall make report to the next succeeding board of supervisors
after every such inquest of the names of such jurors and the term of
service of each, and upon what inquest rendered, on or before the third
day of the annual session in each year. [Code Crim. Proc., § 774.]

§ 13. Jurors, commissioners of.

In counties where a commissioner of jurois is appointed, having
a population of less than 100,000, the salary of such comm ssioner is
fixed by the board of supervisors, except in the counties of Nassau,
Niagera, Saratoga, Herkimer and Schenectady, where it shall be fixed
by the board which makes the appointment, not exceedinug...........

In counties of over 100,000 and not more than 150,000 the annual
salary is fixed by statute at........... ccc cee cece cece ee eee nee
In counties of more than 150,000 and not more than 300,000 the
annual salary is fixed by the board of supervisors not exceeding
([. 1899; ch; 441, 8 4, ante] casi s cease g tea gus stew neg nw ees bec es

§ 14. Justices of the peace.

Compensation, chargeable to town for services rendered, per day
[Town Law, § 85, anté] oss. s0scsssanse sea eesawereeramvee vue cs
Fees in civil actions, In an action brought before a justice of the

peace:
FOr a: SUMMONS s « s wiciece » eisieie'e 6 Hoss os Foes 8 Mies ews o Seige eis w's Clee
Wor an order Of Arrests. <i ssexs d's. spavese sccteiecers' steels s'acaierg vies aerelee BaKeSs WOS
For a warrant of attachment......ccceecsecevesecece isthes Gediars Gimetaes
For a requisition in an action for a chattel................ eee
For a subpoena, including all the names inserted therein............
For the acknowledgment of a power of attorney.........ccssveerese

1101

05

25

. 2,500 00

1,500 00

3,000 00

2 00

50
50
50
50
50
25
4102 FEES OF COUNTY AND TOWN OFFICERS.

Fees in civil action—(continued) : .

For taking an affidavit or administering an oath.............44. sae
For drawing an affidavit, application or notice required by statute,
each fOl0: <.ne0 sc cee ee cmies sade d oe ped Meee ba sieve ww RS ee
For drawing a bond or an undertaking...........-e eee eee eee eee
For hearing an application for a commission to examine one or more
WALTOSSES 55 ese.sceyorss 3h apne Geter Saati Race awels tee Cees thao
For an order for such « commission, and attending, settling, and
certifying interrogatories... 1... cc cece eee ee eee eee eeeeeee
For hearing an application to discharge a defendant from arrest, or
to vacate or modify a warrant of attachment, or increase the plain-

tiff’s security thereupon........ ccc cece eee eee etter eee enenees
For an adjournment, except where it is madc by the justice upon his
OWD “MOCO s geese dear uae taarins bet Maes 4 TOES Ree Eee Meh ee Bek eee
TSOP AG). VETTE 4: sous) suse; aigponele die quate, pevegrdueré Seige PU AIDS OU GME ESS 2 aaa
For empanelling and swearing @ JUTY...... cece eee eee eect ee ences
For hearing the plaintiff’s evidence, where the defendant docs not
UDP OAL sie fares asian eplale orev area ait avalare de Save ve shies oislah a Siaeaun dasa ohade OS Sheetese
For the trial of a demurrer... ..... ccc ccc eee eee cee eee e et eeeeeee
For the trial of an issue of fact, where the defendant appears, for
each day actually spent in the trial......... cc. eee eee eee ee Bi das
For receiving and entering the verdict of a jury.............-ee0e-
For entering’ judgment... sccscsusesdscewe ceannece ses esesen cence re
For filing each paper required by statute to be filed................
For -a. transcript, of a, judgments... geese ssise sce weee cee cenexe ys
For a copy of any paper for which a fee is not expressly prescribed
by law, for each folio............ 0 eee eee ee Se Cee core i
For an execution, or the renewal of an execution....... siete eer
For making a return upon an appeal from a judgment......... Siete
For an order, directing an action or a special proceeding to be con-
tinued before another justice... ... ce. cece eee eee e tenn eens “

For services when associated with another justice, in any case where
a fee therefor is not expressly prescribed by law, for each day
actually spent [Justice Court Act, § 324, as amended by L. 1921,

ch. 621, in effect October 1, 1921.].............. cages eaten es agi

For each animal sold in a proceeding relative to animals straying upon

a highway [Justice Court Act, § 355.]...... 0... cee cece eee eee

In @ special proceeding, or an action not brought before a justice of the
peace:

For a warrant, in case where a fee therefor is not expressly prescribed,

DY? LAWS aria as seit Weare Ok Sea ateeie gs ative t srevale Os waaw are ute bra decote i

For a warrant for the apprehension of a person charged with being the

father of a. bastards. sisiscs cence s sepa ee see a ees Esigorsswls ea acelats

For indorsing a warrant, issued from another county..........eeeee ee
For services when associated with another justice, in any case where
a fee therefor is not expressly prescribed by law, for each day
actually spent....... steeds Melee homed ies RsSraitec Bc ssevacs: averare ina Austerd
For a precept or other mandate, whereby a special preceeding is com-
menced, in a case where a fee therefor is not specially prescribed

For a view of real property, in a case where it is required by law..”

20

10
50

00

75

00
25
50
50

50
50

00
50
50
10
50
10
50
00

50

00

00

50
75
50

00

50
75
PROVISIONS RELATING TO COUNTIES AND TOWNS.

In special proceeding—(continued) :
For a warrant of attachment to arrest a delinquent juror or witness..
For drawing, signing and depositing with the clerk, a minute or
record of conviction of such a juror or witness, or of any person
for contempt, in any case where a fee therefor is not specially
prescribed by law....ccceeeecscceeecee neces Sao ethe L PS Sade ees sc
For an execution upon such a conviction before him................
For drawing, copying and certifying a bond, an undertaking, a recog-
nizance or other written security, and filing the same with the
county clerk or other officer with whom it must be filed...........

For a warrant of commitment for any cause..............0.00- bb aa
For a subpoena, including all the names inserted therein...........
For a precept to notify @ jUTY... cece cee cece eee cece teen neee
For empanelling and swearing a jury......... ce eee cece eee eee
For empanelling and swearing «a jury in proceedings to alter or lay

OU: a. IBN WAY Ss seis cise eo etree eae ats Jae etapa ook Resigns Giger wg
For hearing the matter, concerning which a jury is called for each

day actually ‘Spetitis cs nee ssese 24 ves So cee Ee Oe He Se es KE SE Dae
For receiving and entering the verdict of the jury, and the order, if

BBY; TELE U POW sa jiodis- sixes a aie as Bg Ne 0 a sie Pa sree es RS Gala EES Mille Viet Be

For any service for which a fee is not expressly allowed by this sub-
division, and for which, if rendered in an action before a justice,
a fee is allowed by the first subdivision of this section, the fee
allowed in such an action for the same service.

For taking the deposition of a witness, upon an order made, or com-
mission issued, by a court of record of the state, or a court in
another state or territory, or a foreign country, for each folio....

For making the necessary return and certificate thereto............. 3

For taking an affidavit or administering an oath [Justice Court Act,
§ 325, as amended by L. 1921, ch. 641, in effect October 1, 1921.]..

Fees upon a commission. Where a commission has been issued in an
action before a ‘justice of the peace, a party recovering costs in such action
is entitled to recover his actual disbursements upon such commission not
exceeding the following sums:

Commissioner’s fees for taking and returning testimony..............
For each subpoena issued and oath administered by commissioner....
For expense of serving each subpoena.......... cece cece eee eee eee
Witnesses’ fees for each day’s attendance before the commissioner. .
Postage for sending and returning the commission and papers annexed

[Justice Court Act, § 328.]....ccccccecccvccccccecvercsscseceens

Fees in criminal cases:
For administering an oath......ccecscccccccccvcccccevcsccsccresee
For drawing an information................. shoidia a’ eleven 'e Fis Gale Be ehiave
For taking a deposition of a witness on information.............00+
For examination of information and deposition and issuing awarrant

of arrest...... aie seals Sawai SSSI SARSe ease alee bias s Saisie wawee.n ss atoms
For endorsing a warrant from another county..........eceeeseeees ts
For each day’s necessary attendance upon the hearing or examination
of the accused....... aint shales stisa tein 8418 sah Baad vats ese ners crasees
For every necessary adjournment of the hearing or examination.......

1103

50

75
50

50
50
50
50
50

50

10

20

06
25
25

10
50
25

50
25

25
1104 FEES OF COUNTY AND TOWN OFFICERS.

Fees in criminal cases— (continued) :

For a subpoena, including all the names inserted therein..... Jiartenisis'n's
For each copy of a subpoena for service......+.+-+eeeeeeeeeees eaeeewe
For filing each paper required by law......--.-..eseeee eee eeteeeerres

For furnishing copies of papers in any proceeding, at the rate, per folio.
For each application, order, certificate or report or other paper to be

filed, or copies thereof, required by law.........--.. cess sere cece eens
For drawing an undertaking of bail...........-. cece eee eee e eens vee
For taking an acknowledgment........... 00 eee eee e eee eee eee eens
For return and filing papers in county clerk’s office when defendant is

Weld. £6: ANS WEP, oi sccucicune ee cerned sae PANM SURE Sees ee Tee SHS cee eeees,

Courts of special sessions, fees of justice:

FOr ti VETITC siiscsiescasieaae 6408 44 pone Sma eee reminetecere Se ea kewiee eee c ee veees
For swearing each witness on the trial ...... aie eleva Sis a giapaibrere aie Gaia. see's
For swearing & Jury ......... ccc cess eee eneeeeees ie itanswiiaunndee ese
For swearing a constable to attend jury......... aie e'e'e 6 Sieh areueiasints e's Sis.0re
For a. trial fee, per day siinccs ssid iiarnveceaewevans # ia elaaraet wishes aes
For receiving and entering verdict of jury....... Tisai es
For entering sentence or adjudication of court............eeeeeeeeeees
For temporary commitment ............ ccc eee eee a eeoauauarnds BireUaSa ase .
For warrant of commitment..............0..0005 a hi Pee Aa Se eee

For record of conviction and filing same........... ccc cece ee eee eee

But all such charges in any one case shall not exceed five dollars, unless

such court continue more than one day; in such case the costs of such addi-

tional day may be added thereto:

For return to any appeal, to be paid by the county....................

For services when associated with another justice of the peace or in cage

of bastardy, per day [Code Crim. Pro., § 740-a, as amended by L. 1918,

Clie PSI] assis a Siguhounsenee ys a= See epee Slama sae eae Saeed ee PesG we

For application and license to carry concealed weapon to be paid by per-

son applying therefor: soc<05 208 cicawedsiowwn se Cease acm@nede dest

No magistrate in a criminal proceeding shall charge or be allowed for more

than six subpoenas in any one criminal case, nor shall any board of super-

visors allow any charge for issuing or serving any subpoena in any criminal

case or proceeding issued or served on behalf of the defendant. [Code Crim.
Pro., § 611-a, and see Town Law, §§ 107, 171, ante.] ;

§ 15, OVERSEERS OF THE POOR.
Compensation chargeable to town for each day’s service [Town Law, § 85,
ONEE] 6 ow cece eee eeceanene Bae SSE ote re io oie 9.5 4.4. /a ee ave W Riigee Shale 4%

§ 16. PHYSICIANS. .

Compensation of physician as health officer, see Health Officer.

The county superintendent of the poor may appoint physicians for alms-
houses, unless keepers of such alms-houses are appointed by the board 07
supervisors. [Poor Law, § 3, sub. 4, ante.]

Compensation of such physicians is to be paid by the county treasurer
upon the draft of the superintendent.

The district attorney is authorized to employ a physician to assist him in
examining physically or chemically a dead body or any portion thereof; the
expense for such services is a county charge, to be paid by the county
treasurer on the certificate of the district attorney. [Penal Law, § 2213.]

25
10
08
10

25

50
25

25
10
25
A)
25
25
25

1 00

2 00

2 00

1 50

2 00
PROVISIONS RELATING TO COUNTIES AND TOWNS, 1105

Physictans— (continued) :

The cost necessarily incurred in determining the question of the in-
sanity of a poor or indigent person is a charge upon the town or
county securing his commitment. Such costs include the fees allowed
by the judge or justice ordering the commitment and the medical ex-
aminers. [Insanity Law, § 84, ante.]

The board of supervisors of each county is authorized to appoint a
jail physician and may fix his compensation. [Prison Law, § 348.]

§ 17. Poundmasters.

Fees:
For keeping in the pound each horse or mule, not exceeding per
LAY Ses “aets Aenea sistant tea ae Balen ioe mecha wieyeehig ne aided a doa thia dees 50
For keeping each head of cattle, not exceeding per day........... ag

For keeping each other beast, not exceeding per day [Town Law,

BEB 08 MLO eG ch taaijectanerl eranalehadbsarwte ease tabs Gigaee alas 9 G cacauepuas enue (ose en oee aM eee 1S
For taking into the pound and discharging therefrom any horse,

mule or head of cattle..........-....- Ce eee eee eed eres ieee eae Ke 16
For taking into pound and discharging therefrom any other beast

[Town Law, § 142, @nt6].... 6.0 ee reece eee eu center ene es 16

§ 18. Printers’ fees.
Unless otherwise especially prescribed by law there shall be al-
lowed, for the publication of notices, orders, ete., except session laws,
for each inch of agate twenty-nine ems to the line for the first
INSEMHOD, s664 ewes 4 oa Sea EES W EN HES EA CRO WaE SEs HORA Se TREY ee 75
For each subsequent insertion [Code Civ. Proc. § 3317, as amended
by L. 1920, ch. 487; transferred to Civil Practice Act, as § 1513,
by L. 1920, ch. 925, in effect April 15, 1921.]..................005 50
In counties containing wholly or partly a city of the second class, for
each inch of agate twenty-nine ems to the line for the first insertion 1 25

For each folio for each subsequent insertion...............cceeeeeee 1 00
In all cities of the first class, per agate line of twenty-nine ems, for
CHC ANSETELOU? oils ecsieiile:d everecsuo’ avers 5.010 dnligraied iatenevavenenakehors SmatcRged atatay 20

For printing session laws, a sum to be fixed by the board of supervisors,

for each inch of agate twenty-nine ems to the line, not more than

[Code Civ. Proc., § 3317, as amended by L. 1920, ch. 487; transferred

to Civil Practice Act, as § 1513, by L. 1920, ch. 925, in effect April

15, D9QL) veciscomacaaa yeu isaas eaiead thie oalnekieweeeed eae se Wee hee 75
For printing election notices, and the official canvass, the compensa-

tion is to be fixed by the board of supervisors. [County Law, § 22,

ante.]

The expense of printing the copies of the calendar for a term of court
other than calendars for the term of the Appellate Division of the Supreme
Court, is a charge upon the county in which the term is held and must
be audited by the board of supervisors and paid in the same manner as
other contingent charges. [County Law, § 240.]

§ 19. Railroad commissioner.

The compensation for services performed by railroad commissioners
relative to bonds issued by a town in aid of the construction of
railroads, for each day actually engaged in the performance thereof
[General Municipal Law, § 14, ante.]........ 0. ccc cece cee eeceues 3 00

Where a supervisor acts as railroad commissioner his compensation is
fixed by the board of town auditors. [General Municipal Law, § 230, ante.]
1106 FEES C> CCUNTY AND TOWN OFFICERS,

§ 19a. School director.
A school director shall receive his necessary travelling expenses, and
for each day’s service [Education Law, § 382]........... ale tReet

§ 20. Sheriffs.
Fees generally:
For service of a summons with or without, either a copy of the com-
plaint, or a notice stating that the sum of money for which judgment
will be taken or a notice of no personal claim...........+-.2005: ‘i
For serving or executing an order of arrest, or any other mandate,
for the service or execution of which no other fee is specially pre-

scribed by law, except a subpoena Eh BoS GRAS aE GI aS NVgtORS  eelee tes
In counties of New York, Kings, Bronx, Queens and Richmond, for
each person served or as to whom executed..........0..ee eee enee
For necessary travelling to serve or execute the same, for each mile
traveled, going and returning.............ceseeeeee eeoe wae spate
For levying a warrant of attachment or executing a requisition to
replevy one or more: chattels, o.ccscccses swenceeaw a eectedee eee esos ‘
In counties of New York, Kings, Bronx, Queens and Richmond.......

(Also, such additional compensation for his trouble and expenses in
taking possession of and preserving the property as the judge issu-
ing the warrant, or in the case of a replevin as the court or a judge
thereof, allows; and the judge or court may make an order requiring
the party liable therefor to pay the same to the sheriff.)

For making and filing a description of real property, or an inventory
of personal property attached, for each folio......... ASie a Needs wie

For each necessary copy thereof, for cach folio................... acs

In counties of New York, Kings, Bronx, Queens and Richmond, for
Coach: LONG es Giewadietcyesnine s IHAes Fees aed ene a ne ihe Bigiate tues .

(Together with such compensation to the appraisers as the judge issu-
ing the warrant allows, not exceeding, to each appraiser, for each
day actually employed) ......... see cece teense cere en ene ence esate

For advertising during the pendency of the action, personal property
attached, the same fees as are allowed to a sheriff for advertising
personal property for sale by virtue of an execution. If the action
is settled either before or after judgment, the sheriff is entitled to
poundage upon the value of the property attached, not exceeding the
sum at which the settlement is made.

For mileage upon an attachment or to execute a requisition, for each
mile, going and returning....... sRewa bs RAE LS a hose Ye Teus by uandiess eee

For a copy, necessarily made by him, of a summons or other mandate,
or of a complaint, affidavit or other paper served by him, where no
fee therefor is specially prescribed by law, for each folio........

00

50

00

00

10

00
00

50
12
20

00

10

20
PROVISIONS RELATING TO COUNTIES AND TOWNS. 1106a

Fees generally—(continued) :
For notifying jurors to attend a trial term of a court of record, for
each cause placed upon the calendar for trial by jury, to be paid
by the party first putting the cause on the calendar for that term.. 50
(But the sheriff is not entitled to more than one dollar and fifty cents
for calendar fees in one action. Sheriff not entitled to this fee where
office is salaried.)
For notifying jurors to attend writ of inquiry, to try the validity of

a claim to personal property, etc., for each juror notified........... 50
For attending a jury in such Cas€....... ccc cece cece cece eens - 3 00
In counties of New York, Kings, Bronx, Queens and Richmond....... 5 00

For receiving an execution against property, entering it in his books,
searching for property, and postage on the return, when made

through the Post Office...........e eee adsnals ocauialae.6 Siereidew pd Yor ocOloens 1 00
In counties of New York, Kings, Bronx, Queens and Richmond...... 1 50
For mileage upon an execution, for each mile, going and returning..... 10

For collecting money by virtue of an execution, a warrant of attach-

ment, or an attachment for the payment of money in an action or

special proceeding, or by virtue of a warrant for the collection of

money issued by the comptroller or by a county treasurer (except

in New York, Kings, Bronx, Queens, Richmond or Westchester), upon

sum collected not exceeding $250.00..........e000. ieee ae Beds, See Gie S 5 per cent
Upon the residue of the sum collected...... Sibi SRR 6 BA ts Sta a esaa 3 per cent
In either of the counties of New York, Kings, Bronx, Queens and

Richmond, upon the first $1000.00 collected...........0.2+-202--+-5 per cent

On the next $9000.00 collected...... sails io iatetgia's Gis iste Sintee eeeeare 2% per cent
On all sums over and above $10,000.00.........cecceeeeeececer scene 1 per cent
In the county of Westchester upon the sum collected not exceeding
$250.00... ies cs wows esiewen vec y eee ie SHORE Fa ES FEET Rees ..-24%% per cent
Upon the residue of the sum collected......... ie Sco gmuaehvese snaiecere avine 11% per cent

(Also, where an execution stayed after a levy, by order of the court
or otherwise, or where a levy is upon a live animal or speedily perish-
able property, such additional compensation for his trouble and
expenses in taking care of and preserving the property as the court
or a judge thereof allows.)

(Where a settlement is made after a levy by virtue of an execution,
a sheriff is entitled to poundage upon the value of the property
levied upon, not exceeding the sum at which the settlement is made,
and to the additional compensation, if any, provided for in subdivi-
sion 7 of § 1558 of Civil Practice Act.)

For advertising real or personal property for sale by virtue of an
execution, warrant of attachment, etc........ niemidin ccna +8 Ralee peels 2 00
1106b FEES OF COUNTY AND TOWN OFFICERS.

Fees generally—(Continued) :

If it is stayed or settled before sale.......... cee eee eee eet eennes 1 00
For making duplicate certificates of sale of real property by virtue of
an execution, for cach LOMO. sisiss views s uve eeeee cemies comes ees 25

For drawing and executing a conveyance upon a sale of real property,
to be paid by the grantee....... cece cece cee ence e een eeees 5 00
(Also printer’s fees, as prescribed by law, paid by him for the publica-
tion, not more than six weeks, of a notice of the sale of real property,
and he may require the party directing the sale to advance the
printer’s fees, in which case he must repay the same out of the
proceeds. )
For returning any mandate which he is required by law to return.. 25
For a certified copy of an execution, and of the return of satisfaction
thereupon 1.2... ccc es eecce ee ceees f ehpald tha. Cara ee wd awe aromas 50
For posting and publishing the notice of sale, selling and conveying
real property, in pursuance of the directions contained in a judg-
ment, the like fees as for the same services upon the sale of real
property by virtue of an°execution; but where real property is sold
under a judgment in an action to foreclose a mortgage, the sheriff’s

entire compensation cannot exceed.............64. Deities diece. sees 50 00
For taking a bond for the liberties of the jail............. gies chage 1 00
For taking any other bonds or any undertaking which he is authorized

TO: tae ccc ines thine Sad, sala Gara we nents ac wae sel eanaeieeanstovais sieve 1 00
(Also the notary’s fees to any affidavit or acknowledgments.)

For a certified copy of such a bond or undertaking.............. se 50

For executing any mandate requiring him to put a person into posses-

sion of real property, other than a warrant specified in subdivision 18

of § 1558 of Civil Practice Act and removing the person in possession 3 00
In the counties of New York, Kings, Bronx, Queens and Richmond.... 5 00
(Also, to such additional compensation for his trouble and expenses,

if any, which he may have incurred in removing the person in pos-

session or the said person’s property from the real property specified

in such mandate, and the same travel fees as upon service of a

summons. )
For each person committed to or discharged from prison, in an action

or special proceeding, to be paid by the person at whose instance

he is in prison...... Hee diodes Sieg ie eeGiaee'e aaa 6 sees wear es 1 00
For attending before an officer for the purpose of surrendering a

prisoner or receiving into custody a prisoner surrendered, in exonera-

tion of his bail, including all his services upon such surrender or

PO COL DE: seg) h. so sess eek seas: serail borenanese Sug ayeue.seeapacenace alekere ere sik aeaeroemiatayen 1 00
For attending a view, for each day..... wie ean ee a hae Sabie Sees 2 00
For traveling, going and returning; for each mile traveled........ os 10

For bringing up a prisoner upon a writ of habeas corpus to inquire
into the cause of detention ..% 6: ..0005 sews cs tw senses Hea s UME S 3 00
PROVISIONS RELATING TO COUNTIES AND TOWNS.

Fees generally—(Continued) :
For traveling to and from the jail for each mile................ sie

For bringing up a prisoner upon any order substituted by this act or
any other writ of habeas corpus the same fees; and for attending the
court or judge thereupon, for each day

(The sheriff is entitled in addition to the above sums, to his actual
and necessary expenses.)

For any services which may be rendered by a constable, other than
those specifically provided for herein, the same fees as are allowed
by law to a constable for those services. (See Fees of Constable,
ante.)

In all counties where a levy has been made under a warrant of attach-
ment and the warrant of attachment is vacated or set aside by
order of the court, the sheriff is entitled to poundage upon the value
of the property attached not exceeding the amount specified in the
warrant, and such additional compensation for his trouble and
expense in taking posession and preserving the property as the judge
issuing the warrant allows, and the judge or court may make an
order requiring the party at whose instance the attachment is issued
to pay the same to the sheriff; and when said attachment has been
otherwise discharged by order of the court, he shall be entitled to
the poundage aforesaid and to retain the property levied upon until
his fees and poundage are paid by the party at whose instance the
attachment is discharged.

In all counties where an execution has been vacated or set aside, the
sheriff is entitled to poundage upon the value of the property levied
upon not exceeding the amount specified in the execution, and to
his fees, and to such additional compensation for his trouble and
expenses in taking possession and preserving the property, if any,
and the judge or court may make an order requiring the party liable
therefor to pay the same to the sheriff. [Civil Practice Act, § 1558,
as amended by L. 1922, ch. 626.]

Fees in proceedings for foreclosure of liens on vessels:
For Serving WArTant........ceeseeceee reece rece er eeeene see hee ee ans
For return of same..........- a sisase  sesileuers Sisto Bsgeeadie eee Barnieonsheehete Rats
Necessary sums paid by him for the expense of keeping the vessel in

custody, not exceeding, per day [Lien Law, § 105].

Seem cere cree ee

Fees in criminal proceedings. (County charges.)

For every person committed to prisoOn.......seseesessecercecseceeee

For every prisoner discharged from prison............. cee ee 3

For summoning a grand jury for a (court of oyer and terminer or
general sessions), now Supreme Court or County Court...........

For serving a warrant or performing any other duty which may be
performed by a constable, the same fees as are allowed by law to a
constable for such service. (See Fees of Constables, ante.)

The fees herein allowed for services of sheriffs in criminal proceedings
are county charges and are to be audited by the board of supervisors of the
_ county in which such ‘services are rendered, and shall be paid in the same
manner as are other contingent charges of the county. [County Law,
§ 240.]

1107

15

1 00

2 50

37%
374%

10 00
1108 FEES OF COUNTY AND TOWN OFFICERS.

Fees for conveying convicts to state prison or penitentiary. Chargeable
to state.)
For conveying one convict to a state prison o1 penitentiary from,
for each mile actually traveled........-.:-.e see eee e erences
For conveying two convicts, for each mile so traveled..........-
For conveying three convicts, for each mile so traveled........-.
For conveying four or more convicts, for each mile so traveled,
fOr ACh CONVICT s =5.0:69 sso ais oe es hs Bie Re A Oa Ming a ine enes
For the maintenance of such convict while on the way to a state
prison or penitentiary, per day......--.. esses eect eee teens
But not exceeding for every thirty miles of travel [Prison Law,
§ 10] Candas han de ase iwlgh ooaemem tes eWeEs BEN eee ee rae de hee el sawee

The account, certified and attested as provided in the preceding sec-
tion, shall be audited by the comptroller, and paid out of the treasury,
anless otherwise provided.

All the convicts who shall be sentenced to imprisonment in the same
state prison, or in the same house of refuge, at one session of a crim-
inal court, shall be transported at the same time, unless said court
shall expressly direct otherwise. [Prison Law, §§ 14, 15.]

§ 21. Supervisors.
a, As town officers. The following are town charges:

Compensation for duties performed, generally, per day [Town
Law, $85, @ntée} es ciaxaesoos cedees crue Sheswe nese Gey eee Get eas

For each day’s services in the formation, alteration or dissolution
of school districts [Education Law, § 140, ante]................

For services as railroad commissioner, such sum as shall be fixed
by the board of town auditors [General Municipal Law, § 230.]

Supervisors can charge town for expenses necessarily incurred for
the use of the town. [Town Law, § 170, sub. 2, ante]

Town board may fix compensation for services under Highway Law,
in lieu of all other compensation and fees. [Highway Law, § 110.]

On all moneys paid out by him as such supervisor except moneys
expended for highway purposes or paid over to his successor

20
35
40

12

1 00

2 06

1 58

fTown: law:.$ 85) isec+ es besaes dak eas adeans Se oder arwane eens 1 per cent.

For list of special acts relating to the salaries of supervisors in
certain counties, see ante,
b. As county officers. The following are county charges:
Compensation while attending sessions of the board of supervisors
and board of county canvassers, or while actually engaged in
investigations or other duties committed to them by the board
(except in counties in which special provisions are made for compen-
sation), per day [County Law, § 23, ante]............ ccc cee ee eee
mileage for once going to and from place where session of board
is held, per mile [County Law, § 23, ante]
Copying assessment rolls, as follows:
For first 100 written lines, each line............. s'ertstaeWlbne'e 6 6 ba abe
For second 100 lines, each line .............ccccccucccceeee wie hear Spaiidtave
PROVISIONS RELATING TO COUNTIES AND TOWNS.

County officers—(continued) :

For each written line in excess of 200 [County Law, § 23, ante]......
Extending tax roll, for each line extended [County Law, § 23, ante]..
Supervisors, except in certain counties, while in attendance upon cer-
tain duties, five miles or more from the place of meeting of the board,
are entitled to their actual expenses [County Law, § 23, ante.]
While attending meetings of state tax commission, supervisors are al-
lowed four dollars per day, to be paid by county [Tax Law, § 173.]

§ 22. Town clerks.
The following are town charges:

Compensation for services performed for the town, each day [Town
Tidy S885, 865 ONCE] S ecais saan sosel 5 dae ster veld Gam mbavechtractlowten Sued mebiecd 2.9

For services performed in the formation, alteration or dissolution
of school districts, each day [Edutation Law, § 140, ante]........

For election services, a sum to be fixed by the other members of
the town board [Hlection Law, § 319.]

For each certified copy of jury list furnished to justices of the
peace [Code Civ. Proc., § 2990; rewritten and transferred to Justice

Gourt Act, as § 220, by L. 1920, ch. 937, in effect April 15, 1921]..
Town board may fix compensation for services under the Highway
Law, in lieu of other compensation and fees. [Highway Law,
3 110.]
The town clerk may charge individuals as follows:
Fees for filing each chattel mortgage and contract of conditional sale

For issuing a receipt for same......... if huiiath Ae ahi oraebokremis mare ste
For entering the same.........eee eee e cece e eee e eee cence eee enaes
For searching for each paper [lien Law, § 234, and Personal Property

Law, § G4]... cece cece erence ence nent e net e ener e een reaeeennas

For issuing marriage license [Domestic Relations Law, § 15]........

For hunting license. See ante, County Clerk.

For filing and entering bond of school tax collector, chargeable to
school district [Education Law, § 252].......seceeeeeeeeeeeenee

Fees for records. Town clerks are required to search the files, papers,
records and dockets of his office and make transcripts thereof upon demand,
and are entitled to the same fees therefor as county clerks. [Public
Officers’ Law, § 66.]

For searching for a paper filed with him—for each paper necessarily

opened and examined....... see eeeeeeeer ree eee nee er cere erences
For a copy of an order, record or other paper entered or filed in his
office, per folio....... f sloia 6 Wage G4 et ain A de ae saa Bree earache Sareea Gtheek oe

For a certificate other than a paper for the copying of which he is
entitled to a fee [Code Civ. Proc., § 3304; transferred to Civil
Practice Act, as § 1516, by L. 1920, ch. 925, in effect April 15, 1921.]

Strayed animals. For recording notice, for each strayed animal [Town
Law, § 381, ante, p. 455] ..-.. ce ecc eee c ere eceneneeeeeeeeeeeeees

1109

01
01

06
06

06

25

03

08

25

10
1110 FEES OF COUNTY AND TOWN OFFICERS.

Tae notices, For filing notices of nonresidents as to place where
tax notices may be sent by collectors [Tax Law, § 70, ante, p,
AID 5: HESS BEC ee a BEES ew len ha 6 ade eae wie seer a eres Heats ow 1 00

§ 28. Town superintendents of highways.

Compensation for each day’s services rendered in performing duties
prescribed by the Highway Law in respect to town highways and
bridges [Highway Law, § 45, anvte].......... cece eee cee 2 00 to 5 00
(The amount to be fixed by the town board.)

Compensation for services rendered in maintaining state and county

highways, to be fixed by the state commissioner of highways.
(Highway Law, § 175.]
PART NII.

FORMS.

FORM No. 1.
GENERAL Form or RESOLUTION or BoARD OF SUPERVISORS.

Resolution as to the water supply for the county buildings (or state gen-
erally the subject of the resolution).

Passed by the board of supervisors of ...........eee0. county, pursuant to
County Law, sections 12 subdivisions 1 and 13 (or state law authorizing board
to act), twelve supervisors voting in favor of such resolution, and three
supervisors against the same.

Whereas, the water supply for the county buildings, located in the village
Of. 2 csanaes BESS , is insufficient for the uses and purposes of such buildings
(or state specifically the reasons why the resolution is submitted), there-
fore be it

Resolved, That the committee on county buildings be, and they are hereby
directed to examine as to the present supply of water now furnished for
use in the county buildings, ascertain the cost of making such supply suffi-
cient for the uses and purposes of such buildings and report the facts con-
cerning the same to this board at its present session.

(To be certified by chairman and clerk of board.)

FORM No. 2.

RrEsoLuTION REQUESTING ACTION BY STATE LEGISLATURE,

Resolution requesting the legislature of the state of New York to appro-

priate the sum of .......... dollars for the purpose of draining the ............
creek, in the town of .............. , county of ........ cee eee ee
Whereas, for a number of vears the .............. creek, in the town of

cua ee anes tds aR Se , has annually overflowed and damaged, to a great extent, the
property and highways within such town, which overflow was caused by the

111
1112 FORMS.

construction of a state dam for the use of the .............. canal in such
creek at ........ eee , in the county of .............. 3; now, therefore, be it

Resolved, That the board of supervisors of ........... +.+e... County hereby
requests the legislature of the state of New York to appropriate the sum
of .......... dollars for the purpose of draining and cleaning out the said
aed Daten slaw iee .. creek in the town of .............., county of ..........., and
for the purpose of performing such other work as may be necessary to pre
vent in the future the overflow of such creek in such town, the sum so
appropriated to be expended by the superintendent of public works in ac-
cordance with plans and specifications to be adopted by him: and

Resolved, That we urge upon the member of assembly from this county,
and the state senator from this district, that they each of them do all in
their power to secure the passage of a bill by the legislature of the state
of New York, at its coming session, to secure the appropriation of the
amount hereby requested; and

Resolved, That the clerk of the board of supervisors transmit a copy of
this resolution to ........ «+-..., the assemblyman of ..... seeeeeeee COUNTY,
and tO ...sessseeeeee--, the state senator from this district.

FORM No. 3.

SUBPOENA BY BoaRD OR COMMITTEE.

(County Law, § 27, ante, p. 22.)

The People of the State of New York to A. B.:

We, the supervisors of the county of ............ee.... (or a committee of
the board of supervisors of the county of ................--), command you,
that (all and singular) business and excuses being laid aside you attend
before said board (or said committee), at the rooms of said board (or at
[state place]), in the .......... of the city of ...... artes wayererso'eg OD: CNG: ig: siecie< oe
day Of .........seeeee-.., 19.., at .... o'clock in the .......noon, to testify
touching (state matter), and that you produce on such examination all books,
papers and documents in your possession or under your control, relating to
(state matter) (or if any particular book or document is required, so specify
it), and for a failure to attend and to produce such books, papers and documents
you will be deemed guilty of contempt and will be proceeded against in the
manner provided by the Code of Civil Procedure.

c. D.,
Uhairman.
Dated thie .......00. GAY OF ...ccceccccccvcey 1900
FORMS. 1118

FORM No. 4.

Accounts AGAINST a CoUNTY.

(County Law, § 24, ante, p. 34.)

ALBANY, N. Y., October ...ees000+, 1899.
The County of Albany,
To MatrHew Benver & Co., Dr.

1899.
June 28. To 10 copies Gilbert’s Town and County Officers’ Manual, at
SCO: iar etangeies sinases el cee iene an oe staan tens ee ete y eeSa ss $75 0@
To 5 copies Cumming & Webster’s Annotated Tax Laws of the
State of New York, at $4.50........ e S.dlea eS aeieiewie’s occlam ta, 22 50
$97 56

STATE OF NEW YORK,
County oF ALBANY,

Matthew Bender, being duly sworn, deposes and says that he is president of
Matthew Bender & Co., a domestic corporation; that the several items charged
in the foregoing account are just, true and correct, and [if for disbursement
and services, that the disbursements (and services) charged therein have been
in fact made (or rendered) or are necessary to be made (or rendered) at the
present session of the board of supervisors of such county] and that no part
thereof has been paid or satisfied.

MATTHEW BENDER.

Subscribed and sworn to before me,
this .... day of ........ ,19..
JOHN DOE,

Notary Public in and for Albany County.

 

FORM No. 5.
ConTRACT WITH PENITENTIARY FOR SUPPORT OF PRISONERS.

(County Law, § 12, sub. 11, ante, p. 57.)

This agreement, made this ....... day of ......... : ios between ...........
keeper (or superintendent) of the ................ County Penitentiary, party
of the first part, the authorized agent of the county of ................ , Btate

of New York, and the board of supervisors of the county of ................ j
1114 FORMS.

party of the second part, the agents of the county Of ......eceesessee, State Of
New York, authorized to make this contract by subdivision 11 of section 12 of
the County Law;

Witnesseth, That the party of the first part agrees for and in behalf of the
said penitentiary, in consideration of the sum hereinafter mentioned, to safely
keep and board all prisoners legally sentenced and committed by the several
courts of the said county of ................ , and delivered by the sheriff of
such county or his deputies, or by any constable of any town in said county, for
any term not less than sixty days, and to provide all such prisoners with proper
Medical care and attention, subject however to the rules and regulations estab-
lished for the management and government of said penitentiary.

Also to give to the aforesaid sheriff or his deputies or any constable of said
county, for prisoners so delivered at such penitentiary, a receipt stating the date
and length of sentence and amount of fine, if any, imposed on said prisoner.

The party of the second part agrees to deliver to such penitentiary all
prisoners sent by the several courts of the county of .............. .. to hard
labor for a term of sixty days and upwards, from the date of this contract to
and including the thirty-first day of December, 19..

And the party of the second part further agrees to pay to the party of the
first part the sum of $2.10 per week for each and every person so kept for
the said county of .......... Seah oat at the said penitentiary, and to pay all
drafts drawn upon the treasury of the said county of ................ for the
board, care and maintenance aforesaid, when accompanied by an account for the
‘same, properly made and verified, and in accordance with the terms of this
contract, on the first day of January, 19.., for the term ending on the thirty-
first day of December, 19..

And the party of the second part further agrees to pay as above to the party
of the first part, the necessary expenses of sending back to the said county

Of ods valde «seeseee. all such prisoners whose terms have expired while at the
said penitentiary, and the party of the first part further agrees to credit to the
said county of ........ Bee ees . all moneys which shall be collected for fines

imposed on prisoners, sentenced and confined as herein stipulated at the said
penitentiary, and to make return of the same on the first day of January, 19..,
but any fines imposed and paid by labor of any convict, shall not, nor shall any
part thereof be credited to the said county of ...... oe apeieye' yielas

It is also further agreed that any convict sentenced in the said county of
Si eadhacavetoase Sete ee to said penitentiary, who may become insane while confined in
such penitentiary, must be forthwith removed from the said penitentiary, when
due notice is given to the superintendent of the poor of said county. This
clause does not apply to persons convicted of felonies.

Witness our hands and seals this day and year as above written.

Chairman of Board of Supervisors of ......cccccuce County.
FORMS. 1115

FORM No. 6.

OatTH oF OFFICE OF CLERK OF BoAkpD OF SUPERVISORS.

STATE OF NEW YORK,
CouNTY OF .......... \

I, A, B., do solemnly swear (or affirm) that I will support the constitution
of the United States, and the constitution of the state of New York, and that I
will faithfully discharge the duties of the office of clerk of the board of super-

visors of the county of .............. --, according to the best of my ability.
A. B.
Subscribed and sworn to before me,
this .... day of ........ ,19..
Cc. D.

(Title of office.)

FORM No. 7.

STATEMENT oF CouNTY AND Town Accounts.
(County Law, § 51, ante, p. 96.)
I.—Country CHARGES.
Accounts against the county of ..............+. » presented to the board of

supervisors, at its annual meeting for the year 19.., with amount claimed by and
aifowed to each person named.

 

 

 

 

: Amount Amount
CLAIMANT. Nature of Account. aimed: ailesoed.
As Biscicae bien neice en's 6G Printing... cisieiases ves Kovwrews $350 00 | $200 00

 

 

 

Abstract containing a list of claims audited by the town board (or bo«rd
of town auditors) of the town of ................, during the year ending on
the ..... Gie:s:ayal (AY 10L fies eerescisie ses , 19.., Wich the amounts claimed by and
allowed to the several persons named therein:
Claimed. Allowed.
A. L. Kellogg, services as attorney........... seccecccecees§ $275 00 $275 00
A. L. Van Duzen, town clerk............... oiteiaua-e eign te-cre'e! 29 00 29 00
(And so on for each town.)

III.—Supervisors’ ACCOUNTS.

COUNTY Of eiciws dias ca BeRe oH
To John Dooley, supervisor of the town of Stamford, Dr.
December 30, 19...

Claimed. Allowed.

To 16 days’ attendance at annual session of the board of

Supervisors; at $400. ccc ecwsee ovles ewe yeh es, Sas reas oe wea $64 00 $64 00
To 4 days’ services on the committee for the repair of the

county jail, at $4.00 ...... eiapeah Russ Shute eee 4 onan Sate use Os Beco 16 00 16 00
To making copy of assessment-roll .......... 0. ec ee eeeeeeee 15 00 15 00

To 46 miles, to and from annual session of board, at $.08.. 3 68 3 68

$98 68 $98 68
(The same for each supervisor.)

The board of supervisors of the county of ................ Was in session
during the year ending December 31, 19.., for 16 days, and the distance
necessarily traveled by each member of the board of supervisors in attending
the meetings thereof is specified in the foregoing accounts of the several
supervisors.

COUNTY OBR wa iestcceasianas Savas : ‘
OFFICE OF CLERK OF BOARD OF SUPERVISORS, ; 88:2 f

I, J. K., clerk of the board of supervisors of .......eseeeeeee... County, do
hereby certify that the foregoing statement contains the names of all persons
presenting claims against such county which were audited by such board of
supervisors at its last annual session, or by the town boards or boards of
town auditors of the respective towns in such county so far as returned to
me, together with the amounts claimed and allowed thereon; that no account
was audited at such session of the board of supervisors, unless the same had
been duly verified as required by Jaw; that the statement as to the number of
days of the sessions of such board, and the mileage charged in the several
supervisors’ accounts are true and correct to the best of my knowledge and
belief.

Dated this .............. Gay Of sosiesscrcsw- owe » AS ee
J. K.,

Clerk of the Board of Supervisors Of .sccccescesecs County.
FORMS. 1117

FORM No. 8.

County CLERK’s STATEMENT TO Boarp oF SUPERVISORS.

(County Law, § 164, ante, p. 132.)

To the Board of Supervisors, county Of ........0.0000008
TAs By, Clerk of sve sain isiekcs county, hereby submit the following annual
statement, as required by section 164 of the County Law:

Receipts.
Fees received during the year for searches and certificates thereof. $735 00
Fees received for recording documents and certificates thereof...... 826 00
Sums received for services rendered the county.........0.eescuseeees 241 00
Sums received for official services........... ee eee aadlenh ead wale 6 el athe: 318 00
$2,120 00
Payments.
Paid for clerical services to (A. B.).........esceecee seees $1,216 00
Paid. for fuel to (B. C.) sass siusesiwad cissaseseeines av wes 118 00
Paid for lights to (C. D.)...... Bie Laledheeiid in diet co aud ar ard a auayendre seveve 40 00
Paid for stationery to (E. F.)......... ea iain alae cava bugs ddcelads 320 00
Paid for incidental expenses:
To G. H. (State purpose) .....ccccssecccceccecsccecs 68 00
To H. L. (State purpose) .......ccceewccccccccrcvccees 34 00
1,796 00
ptt tate
Balance .....+...++- ais avave eiepeiaievers: are reree-axaree sie"neratennness aveanateea,s $324 00
Dated this .......... Gay: OF a} scies'e's cere eas LIne
A. B.,

County Clerk.

STATE OF NEW YORK, eer
COUNTY OF........+-++ ae

A. B., being duly sworn, deposes and says that he is county clerk of the
county of ............ , and that the foregoing account is true and correct,
and that the amounts stated therein were actually received and expended

by him.
A. B.

Subscribed and sworn to before me,

this .... day of ........ ,19..
Notary Public.
1118 FORMS.

FORM No. 9.

Report oF District ATTORNEY.

(County Law, § 201, ante, p. 139.)

A. B., district attorney, in account with the county Of .....escscccee

 

 

 

 

 

 

Dr. Cr.
To penalties recovered..... $400 00 | To amount paid county treasurer,
May 16, 1901.................. $100 00
Wane aes Dicer aia ate Niece 100: O08 rece aaa: cee ate ois ateseseigaciereie sya dale deena aaaunuon
Balance............. 300° 00" | het e cece eaw ie aw annus ease ede) whan gees
Dated this ........ ie GAY OF 6 siasicla.s. avelnmiaieates »19
A. B,

District Attorney.

STATE OF NEW YORK,
COUNTY OF sis 68 esiaeernes s8

A. B., being duly sworn, deposes and says that he is the district attorney
of the county of ................ , and that the foregoing report is a true account
of all moneys received by him by virtue of his office during the year ending
with the ......... . day of ........ ovina LO’

A. B.
Subscribed and sworn to before me,
this .... day of ........ » ADs
c. D.,
, Notary Public.
FORMS. 1119

FORM No. 10.

CALENDAR OF PRISONERS CONFINED IN CoUNTY JAIL,

(County Law, § 97, ante, p. 182.)

 

 

NAMES OF When By what } Cause of de- | By whom committed;
PRISONERS committed. | precept. tention. (if disorderly person).

 

 

 

FORM No. 11.

Form or APPLICATION AND NOTICE FOR ALTERATION OF BOUNDARIES OR ERECTION
or Towns By BOARDS OF SUPERVISORS.

(County Law, § 35, 37, ante, p. 235.)

To the Board of Supervisors of the County of ..........00042

Application is hereby made by the undersigned, freeholders of the towns
OF ai i-eOaeuee meee we for the division of (or the alteration of) the boundaries of
the towns Of .......ceeeeeee

(If the alteration of town boundary lines is desired, state as follows:)
The undersigned hereby respectfully request that the board of supervisors
of such county alter the northern boundary line of the town of ..............
so that such line shall be established and defined as follows:

(Specify by sufficiently definite metes and bounds the location of the pro-
posed new boundary line.)

And that the southern boundary line of the town of ....... sieeueseets shali
be established and defined as follows:

(State specifically by sufficiently definite metes and bounds the proposed
boundary line of such town.)

(If it is proposed to divide a town and to erect therefrom a new town, the
application should state as follows:) The undersigned applicants respect-
‘fully request that the board of supervisors of such town shall divide and
alter the bounds of the town of ............ in the county of .............. ‘
so that the boundaries of such town shall be as follows:

(Specify in detail with sufficiently definite metes and bounds the proposed
new boundary lines of the town to be divided.)

That a new town be erected to consist of that part of the former town of
1120 FORMS.

seeceeeeeeeeeses lying northerly of (specify generally a division), and that the
boundaries of such new town shall be as follows:

(Specify in detail and with sufficiently definite metes and bounds the boun-
dary lines of the proposed new town.)

The said applicants also respectfully request the said board of supervisors

that the name of the new town so erected shall be ............ ahacocatancaile a

A map and survey showing the alteration of the boundaries of the said towns
Of eetibsc aan e%s's ++... (or showing the alteration of the boundaries of the town of
oe ldsansne Natta ieretenstionsue » and the boundaries of: the proposed new town of ..........
Sit ladon s ), is attached hereto and made a part of this application.

Dated this .......... Cay 108 Sisacsaseireuae 31955

(Signed by at least twelve freeholders residing in each of the
towns whose boundaries are to be changed.)

NoTIcE oF APPLICATION.

To whom it may concern:

Take notice that the above application for the alteration of the boundary
lines of the towns of .............. nibs (or for the division of the town ot
seseeecceccesccsees. and the erection therefrom of a new town to be known as
the town of ...............--.), Will be made to the board of supervisors of the
county of ........... ...-. at the meeting of such board of supervisors at its
annual session, beginning on the ........... # Gay OF ci ciivaciavendsseasc<g 1958

FORM No. 12.

RESOLUTION OF BoArD OF SUPERVISORS DivipINc a TowN AND ERECTING THEREFROM
A New Town.

(County Law, § 35, ante. p. 235.)

AN ACT and resolution to divide and alter the bounds of the town of More-
house, in the county of Hamilton, state cf New York, and to erect a new.
town therein, to be known and named “ Inlet.”

Passed by the board of supervisors of the county of Hamilton, pursuant
to section 35 of the County Law, on the 27th day of November, 1901, all the
members elected thereto voting in favor thereof.

The board of supervisors of the county of Hamilton does enact as follows:

Section 1. From and after the passage of this act and resolution, the
bounds of the town of Morehouse, in the county of Hamilton and state of
New York, shall be as follows: Commencing at a point where the boundary
line between the counties of Herkimer and Hamilton intersects the middle
of the south branch of the Moose river, and running thence easterly along
the middle of the south branch of the Moose river to the boundary line between
the towns of Morehouse and Arietta, as heretofore established; thence starting
southerly and continuing along the said line between the said towns of More-
house and Arietta to the line between the counties of Herkimer and Hamilton;
thence northwesterly along the line between the town of Morehouse in the
FORMS. 1121

eounty of Hamilton, and the towns of Salisbury and Ohio, in the county
‘of Herkimer, to the easterly boundary of the town of Wilmurt, in the
county of Herkimer; thence northeasterly along the boundary line between the
said town of Wilmurt and the said town of Morehouse, as previously established,
to the northeasterly boundary line of Nobleboro Patent and Arthurboro Patent;
thence northerly along the boundary line between said town of Wilmurt and
the town of Morehouse, as previously established, to the place of beginning.
§ 2. From and after the passage of this act and resolution a new town is
erected to consist of that part of the former town of Morehouse lying north-
erly of the middie of the south branch of the Moose river, and the bounds
of said town shall be as follows: Commencing at a point where the middle
of the south branch of the Moose river intersects the boundary line between
the counties of Hamilton and Herkimer and running thence northerly along
said boundary line to a point where it intersects the southwesterly boundary
of Township 41, Totten & Crossfield’s Purchase; thence southeasterly along’
the southwesterly line of said Township 41 to the southerly corner thereof;
thence northeasterly along the southeasterly boundary of said Township 41
to the easterly corner thereof; thence southeasterly on the boundary line
between Township 46, Totten & Crossfield’s Purchase, and Township 5, John
Brown’s Tract, to the old or former town line of the towns of Arietta and
“ Morehouse as the same existed previous to an act of the legislature of this
state, laws of 1860, chapter 200, passed April 7, 1860; thence southerly along
the boundary line between the towns of Morehouse and Arietta, as existing
prior to the passage thereof, to a point in the middle of the south branch of-
the Moose river; thence westerly along the middle of the south branch of the
Moose river to the place of beginning.

§ 3. The name of the town erected by the last preceding section shall be
“Talet.”

§ 4. This act and resolution shall take effect immediately.

In witness whereof, I have hereunto subscribed my name and affixed

[szaL.] my official seal this 28th day of December, A. D., 1901.

THOS. J. HANDLEY,

Merk of the Board of Supervisors of the county of Hamilton.
State of New York.

FORM No. 13.

. Aor or Boargp or Supervisors ProvipInc ror ALTERING THE BOUNDARIES OF &
Town.

(County Law, §§ 35-37, ante, p. 235.)

AN ACT to alter the boundary lines of the towns of Brandon and Santa Clara,
in Franklin county. (By authority of sections 35-37 of the County Law.,
1122 FORMS.

Passed November 23, 1896, two-thirds of all the members of said board and
the supervisors of Brandon and Santa Clara being present and voting in favor
thereof. The number of votes given for the act were 17, the number of votes
given against the act were none.

Upon the application of at least twelve freeholders of the towns of Bran-
don and Santa Clara, respectively, the board of supervisors of the county of
Franklin do enact as follows:

Section 1. That the division lines between the towns of Brandon and Santa
Clara be and hereby are changed and altered as follows: By including within
the town of Brandon the whole of Township 8, Great Tract No. 1, of Macomb’s
Purchase, and that the town of Brandon consist of Township 8, Great Tract No.
1, of Macomb’s Purchase. That the town of Santa Clara consist of and that
there be included within such town of Santa Clara the following described lands:
Beginning at the southwest corner of Township No. 8, Great Tract No. 1, of
Macomb’s Purchase, and running thence southerly along the west line of Town-
ships Nos. 11, 14, 17, 18 and 23, to the northwest corner of the town of Harriets-
town; thence easterly along and upon the north line of said town of Harriets-
town to the east line of Township No. 23; thence northerly to the northeast
corner of Township No. 20; thence westerly to the southeast corner of Township
No. 17; thence northerly along the east line of Townships Nos. 17, 14 and 11 to
the southeast corner of Township No. 8; thence westerly along the south bounds
of Township No. 8 to the place of beginning, containing all the land within said
bounds. And that such towns of Brandon and Santa Clara be and hereby are
respectively erected accordingly to so exist, be and be treated from and after the
time this act shall take effect.

§ 2. This act shall take effect on the 15th day of February, 1897.

The foregoing has been compared with the original act passed by the board
of supervisors of Franklin county on the 23d day of November, 1896, and is a
correct copy of the same.

In testimony whereof, we have hereto set our hands and seal this 25th
day of November, 1896.
ALFRED C. MORSE,
[u. s.] Chairman,
M. W. HUTCHINS,
Clerk.

I, Herbert J. Wilson, clerk of the board of supervisors of the county of Frank-
lin, do hereby certify that I have compared the foregoing with the journal of
proceedings of said board for the year 1896, and that the same is a correct trans-
cript of a part of said journal of proceedings.

[SEAL.]} HERBERT J. WILSON,

Clerk of the Board of Supervisors of Franklin county, New York,
FORMS. 1123

FORM No. 14.

APPLICATION FOR SPECIAL TOWN MEETING.
(Town Law, § 46, ante, p. 253.)

To OC. D., Town Clerk of the town Of ...cccccccscecccrcecccscese im the county
Of ssscnres ones 74
The undersigned, taxpayers of said town, whose names appear on the last
assessment-roll of said town (or supervisor, town superintendent of highways,
etc., as the case may be), hereby make application and require of you to call a
special town meeting, pursuant to section 46 of the Town Law, for the purpose
of (here state the purpose for which the special town meeting:is to be called).
Dated this .......... Cay Of vsescawiare sx ee ae
(Signed by at least twenty-five taxpayers or by proper town officers.)

FORM No. 15.

Notice or SpeciAL TOWN MEETING.
(Town Law, § 47, ante, p. 255.)

Notice is hereby given that, pursuant to an application made therefor as
prescribed by statute, a special town meeting of the electors of the town

OP ecirnuts a cigecisns , county of .............. , will be held at ............ ..., in
the village of ..... eerie 7 ON THE? cosine comics day of ....... Aare evenauesd 5 ADS 5
Qt iaex o’clock in the ...... noon, for the purpose of voting upon the follow-

ing questions or propositons (stating them as contained in Town Law, § 46,
ante), and for the transaction of such other business as shall be lawfully
brought before such meeting.
Dated ..sccscccceeecseey 19..
A. B.,
Town Clerk.

FORM No. 16.

APPLICATION FOR SUBMISSION OF PROPOSITION TO BE VoTep Upon By BALLOT at
Town MEETING.

(Town Law, § 48, ante, p. 256.)

To C. D., Town Clerk of the town of ....-....... , COUNLY Of -...eeerencecreeet
The undersigned, taxpayers of the town of ......... ahise le vacihwuae (or supervisor,
commissoner of highways, or overseer of the poor of the town of ............ i)
1124 FORMS.

hereby make application pursuant to the provisions of section 48 of the Town
Law, for the submission of a proposition to be voted upon by ballot at the
biennial town meeting (or a special town meeting duly called therefor), to be
held in the town of ................ on the ............ GAY. OF isc sina « lvisive ‘
19.., for the following purposes and in the following form, to wit: (Here
state plainly the question desired to be voted upon.)

And such applicants hereby request that a vote be taken upon such proposi-
tion at such town meeting.

Dated this ........ day of ...... ite easton yD

(Signed by the proper town officers or taxpayers entitled to demand
a vote upon the proposition at a town meeting.)

FORM No. 17.

Notice or SUBMISSION OF PROPOSITION TO TowN MEETING.

(Town Law, § 48, ante, p. 256.)

Notice is hereby given that, pursuant to an application made therefor as pre-
scribed by section 48 of the Town Law, which application was filed in the office
of the town clerk of the town of ..... dives okey wee ON TNE g'siyiarere wees. Gay of
weccecceccceeccecy 19.., the following proposition will be submitted to be voted
upon by ballot at the biennial town meeting (or at a special town meeting duly
called therefor), to be held in the town of ..... Setinewes dy OM THE cicces .. day
Of) sales ase seeeeees, 19.., to wit: (state the question to be submitted to the
electors at the town meeting.)

Dated this ........ Gay Of ......ceweecccecy 19.

Cc. D.,

Town Clerk.

FORM No. 18.

APPLICATION FOR Hotpinc Town MEETINGS InN ELECTION DISTRICTS.
(Town Law, § 65, ante, p. 267.)

To A. B., Town Clerk of the town of ............ Bs imeduaaet

We, the undersigned, duly and legally qualified electors of the town of ......
eeveceeeee, County of eesti , do hereby respectfully ask that at the
Ree scat eSa8 town meeting to be held on the ........ day of .........0.. cep
19.., the question be submitted pursuant to law, as to whether, on and after
FORMS. 1125

such town meeting, the town meetings of the town of ..... +s... be held in
election districts (or [if it is desired to return to the former system of holding
but one poll] that on and after such town meeting, the town meetings of such
town be held at one place as under the former system), such election districts
to be the same as the several election districts of such town at general elections
(or in two [or more] joint election districts constituted by the town board as
provided by law).
Dated sce senses vevesey 19s
(Signed by at least twenty-five electors.)

FORM No. 19.

CrerTIFICATE oF ELECTION oF JUSTICES,

(Town Law, § 94, ante, p. 288.)

CoUNTY OF ..........

STATE OF NEW YORK, ¢ °°"
To F. G., Esq., County Clerk of .ccccccscceceaes County:

I do hereby certify that at the biennial town meeting of the town of ........
sa awe’ , held therein on the ........ day of ................, 19.., G. H. was

duly elected justice of the peace for a full term.
Dated this .......... ay Of ...cccceceseeey 19..
oo Cc. D.,

Town Clerk.

FORM No. 20.
Bonp og UNDERTAKING OF SUPERVISOR, GENERAL.

(Town Law, § 100, ante, p. 304.)

Whereas, A. B., of the town of ............00. , in the county of ............
was on the ........ Gay Of a siisie's caw sect , 19.., duly elected (or appointed)
supervisor of the town of ............... ,» in euch county;

Now, therefore, we, the said A. B. and C. D., residing at ............... , and
BE. F., residing at ..........-.se0e- . do hereby, pursuant to section 100 of the

Town Law, and other statutes made and provided, undertake and acknowledge
ourselves, our heirs, administrators and executors, firmly bound to and with the
said town of ................ , in the sum of .......... dollars, that the said
A. B. will well and faithfully discharge his duties as supervisor of such town,
and that he will well and truly keep, pay over and account for all moneys and
property, including the local school money, if any, belonging to his town and
1126 FORMS.

coming into his hands as such supervisor, in accordance with law, or in default
thereof, that we will pay all damages, costs and expenses resulting from such
default, to the amount specified in this undertaking.

Dated this ...... eves Gay Of cicewessvewviees 19s
A. B., Supervisor.
C. D., Surety.
E. F., Surety.
STATE OF NEW YORK, .
COUNTY OF .......... 88ct
On the ....... day of ....... seseeseey in the year 19.., before me, the sub-

scriber, personally came A. B., C. D. and E. F., to me known to be the persons
described in and who executed the within instrument, and severally acknowl-
edgec to me that they executed the said instrument.
G. H.,
(Official title.)

State or New York,
COUNTY OF ....--...... ‘ ss

C. D. and E. F., being severally and duly sworn, each for himself deposes and
says: C. D., That he is one of the sureties named in the foregoing undertaking;
that he is a freeholder (a house holder) within the state of New York; that he

18.8. ee cdview se eieces by occupation, and resides in .............. , county of
Shc Bie 6-8 wee 30a, BE NOs. cotakd os04 oadee eas street (and has his place of business
Ess. Sarat na een eee street, in the city of .............. ); that he is worth the
SUM Of 4... cesuvvecua dollars (twice the amount of the undertaking), over and

above all just debts and liabilities and property exempt from execution; and
E. F., that he is one of the sureties named in the foregoing undertaking; that
he is a freeholder (or house holder) within the state of New York; that he is

BD sivk aaa Gece artes S .. by occupation and resides in .............. , county of......
eee ,at No. ................. street, in the city of .............; that he is
worth the sum of ....... Sdvavinaented dollars( twice the amount of the undertaking),

over and above all joint debts and liabilities, and property exempt from

execution.
C. D.,
E. F., Sureties.

Subscribed and sworn to before me,

this canes GAY Of) ick sitio 5 owes , 19...
J. K.
(Official title.)

We, the undersigned, members of the town board of the town of ............. “
do hereby approve of the foregoing undertaking as to its form, manner of
execution and sufficiency of the sureties thereon.

Dated: ss swiss sc wseaes ,19..

(Signed by members of town board.)

(If the approval is by resolution, as prescribed by Public Officers Law, § 11,
ente, a certified copy of the resolution should be annexed to the undertaking.)
FORMS. 1127

FORM No. 21.

Justice’s UNDERTAKING.

(Town Law, § 106, ante, p. 305.)

Whereas, A. B., of the town of ...... seeeees., COUNLY Of ....... ate eDiets , was
on the ..... shaun’ eceuiy day of ..............., 19.., duly elected (or appointed )
justice of the peace of the town of ............ .. in such county.

Now, therefore, we, the said A, B., as principal, and C. D., residing at ........
ehitoiGeniuneens , and E. F., residing at ..........., do hereby, pursuant to section

106 of the Town Law, and other statutes made and provided, undertake and
acknowledge ourselves, our heirs, administrators and executors, jointly and
severally, firmly bound to and with the said town of .............. , in the sum
OF conse ovevesd: ++e++--. dollars, that the said A. B. will pay over on demand, to the
officer, person or persons entitled to the same, all moneys received by him
by virtue of his office; that he will well and faithfully discharge the duties of
his office, or in default thereof that we will pay all damages, costs and expenses
resulting from such default, to the amount specified in this undertaking.
Dated this .......... day of ............5- plone

A..B., Justice of the Peace.
Cc. D.,
E. F., Sureties.
(Acknowledgment, justification and approval as in supervisor’s undertaking
[Form No. 20, ante], except that the approval is by the supervisor, or town
clerk, when the justice is a supervisor.)

FORM No. 22.

UNDERTAKING or ToWN SUPERINTENDENT OF HIGHWAYS.
(Town Law, § 111, ante, p. 307.)

Whereas, A. B., of the town of ............ ree Of ecu ees , was
On the .ss6sesces Gay Of ssiiccess Hates ay , duly elected (or appointed)
town superintendent of highways of the he i Sa Bod a oncesaas ieee in such county.

Now, therefore, we, the said A. B. and C. D., residing at ............. , and
E. F., residing at .............. , a8 sureties, do hereby, pursuant to section 111
of the Town Law, and other statutes made and provided, undertake and acknowl-
edge ourselves, our heirs, administrators and executors, jointly and severally,
firmly bound to and with the said town of ............-..-.... in the sum of
1128 FORMS.

oes Brine ae .... dollars; that the said A. B. will faithfully discharge his duties
as such town superintendent of highways, and within ten days after the expira-
tion of his term of office, pay over to his successor all moneys remaining in his
hands as such superintendent, and render to such successor a true account of
all moneys received and paid out by him as such superintendent, in accordance
with law, or in default thereof, and that we will pay all damages, costs and ex-
penses resulting from such default, not exceeding the sum specified in this
undertaking.

A. B., Town Superintendent of Highways.
c. D.,
E. F., Sureties.

(Acknowledgment, justification and approval as in supervisor’s undertaking
[Form No. 20, ante], except that the approval is by the supervisor.)

FORM No. 23.

UNDERTAKING OF OVERSEER OF THE Poor.
(Town Law, § 113, ante, p. 307.)

Whereas, B. F., of the town of ........ weatiece O78 , in the county of ....... aie aiotecary
was onthe .......... Gay Of a iscsvedes canny , 19.., duly elected overseer of the
poor of said town;

Now, therefore, we, the said B. F., principal, and N. O., of the town of ........
panier ne , his surety, do hereby, pursuant to section 113 of the Town Law, jointly
and severally undertake that the said B. F. will well and faithfully discharge
the duties of his office, and will pay according to law all moneys which shall
come into his hands as such overseer, or in default thereof that we will pay all
damages, costs and expenses resulting from such default.

Dated this .........- day of ..........0ee000, 19..

B. F,,
Overseer of the Poor.
N. O.

(Acknowledgment, justification and approval as in supervisor’s undertaking
[Form No. 20, ante], except that the undertaking is to be approved by the
supervisor.)
FORMS, 1129

FORM No. 24.

‘own CoLLector’s UNDERTAKING.
(Town Law, § 114, ante, p. 307.)

Whereas, N. O., of the town of ........ .---, in the county of ..........605
was on the .......... Gay Ol os eskasess --.., 19.., duly elected (or appointed)
collector of said town and has received (or will receive) the assessment-roll
of said town for the year 19.., calling for the collection of .......... dollars,

Now, therefore, we, the said N. O., principal, and R. S. and T. W., of the
town of ............ .., his sureties, do hereby, pursuant to section 114 of the
Town Law, jointly and severally undertake and acknowledge ourselves firmly
bound unto the said town of .............. » pursuant to law, in the sum of
eee ee dollars, that the said N. O. will well and faithfully execute his
duties as collector, and pay over all moneys received by him as such col-
lector to the officer or person entitled thereto, and account in the manner
and within the time provided by law for all taxes upon the assessment-roll
of his town, delivered to him for the ensuing year, or in default thereof,
that we, the undersigned, will pay all damages, costs and expenses result-
ing from such default.

Dated this .......... day Of ..ccccceseesy 19..

AwZ
aZno

(Acknowledgment, justification and approval as contained in supervisor’s
undertaking [Form No. 20, ante], except that approval is by supervisor.)

FORM No. 25

CoNSTABLE’S UNDERTAKING.
(Town Law, § 116, o~te, p. 310.)

Whereas, D. E., of the town of ............ , in the county of .............. ;
was on the ........ day of .............., 19.., duly elected (or appointed)
constable of said town;

Now, therefore, we, the said D. E., principal, and N. O. and R. S., of the
town Of ........-e eee , his sureties, do hereby, pursuant to section 116 of the
Town Law, jointly and severally undertake that said D. E. will pay to each
1130 TORA!S.

and every person who may be entitled thereto, all such sums of money as
he may become liable to pay on account of any execution which shall be
delivered to him for collection; and also pay each and every person for any
damages which he may sustain from or by any act or thing done by said
D. E. as such constable, by virtue of his office.

Dated this ........ day of ...........+, 19..

~xAd
now

*

(Acknowledge, justify and approve as in form for supervisor’s undertak-
ing [Form No. 20, ante], except that the approval is by the supervisor or
town clerk.)

FORM No. 26.

RESIGNATION OF TOWN OFFICERS.
(Town Law, § 84, ante, p. 316.)

To A. B., Town Clerk (or C. D., E. F., G. H. and J. K., Justices of the Peace)
of the town Of .......eeeee eel

J, M. O., of the town of ................ 5 COUNTY Of ass saoes swanes .., having
been duly elected (or appointed) to the office of ...... +eeeeeee. in and for
the said town of .............. on the ........ ay Of we cincainewaaees fk Oty

and having duly qualified as such officer, do hereby resign such office, to
take effect upon the delivery of this resignation.
Dated. sais s ccrecuce'ey 198 M. O.

FORM No. 27.

APPOINTMENT TO FILL VACANCY IN Town OFFICE.

(Town Law, § 130, ante, p. 318.)

Whereas, a vacancy exists in the office of .............. ...., in the town of
hs Aan eras srisnal aw cu , county of .............., because of the (resignation, or as the
case may be) ............-- .... of.M. N., who was elected to such office on
the ..4..008808 day of ..... Ieraceiesabeiiee , 19..; for a term of two years from

the. csauoessers day! of seas sscinews easres #1825
FORMS. 1131

Now, therefore, in pursuance of the power vested in us by section 130 of the
Town Law, we, the undersigned members of the town board of such town,
do hereby appoint N. O. of said town to fill the vacancy existing in such
Office Of ...........0000. ; the said N. O. shall hold such office until the next
biennial town meeting (*) in such town, and until his successor is elected
or appointed and has qualified, as provided by law.

In witness thereof, we have hereunto set our hands and seals, at .........+5
in said town, on the ............ Gay OL coe ccs suse cece , 19..
B. F., Supervisor. [z. 8.J

(Add other signatures of members of the town board, with designation of
office, and seals.) :

*If town meetings are held at time of general election, the vacancy should
be filled to the first day of January following the election.

FORM No. 28.
Notice or APPOINTMENT TO TOWN OFFICE.

(Town Law, § 130, ante, p. 318.)

To N. O.:
You are hereby notified that you were appointed by the town board of the
town of ....,........., county of .............. GAAS ao ttedlere inte wont in and for

the said town to fill the vacancy in that office occasioned by the (resignation
or as the case may be) of M. N., the former incumbent of such office; such
office is to be held by you until the next biennial town meeting of such
town (for] until and including the 31st day of December succeeding the next
biennial town meeting). Such appointment was duly executed by the mem-

bers of said town board and filed in my office on the ...... day of ............ 3
19.., as provided by law.
Dated ....e.s-e-e0, 19.. Cc. Z.,
Town Clerk.
FORM No. 29.

OatH or SuPERVISOR, TOWN CLERK, SUPERINTENDENT OF HIGHWAYS AND OVERSEER
oF THE Poor, GOING ouT oF OFFICE, ON DeLiverY or Books, Recorps, ETC.

(Town Law, § 91, ante, p. 356.)

COUNTY oe .
TOWN OF......eeeeeee: a

I, M. N., of the town of...........+...., being duly sworn, depose and say
1132 FORMS.

that the records, books and papers herewith delivered, upon the demand of O. P.,
to him, as my successor in office as...... teiaatietavoseus, of said town Of........eee seers ‘

are all the records, books and papers in my possession, or under my control, belong-
ing to the said office of............ of said town, which office is to be held by you

until the next biennial town meeting, and at the time of such delivery, 1 did also
turn over to the said O. P., as my successor, the sum of......... ... dollars and
+-+-+-.. cents, which is all the money belonging to the said town remaining in
my hands.
M. N.
Subscribed and sworn to before me,
this .... day of ......., 19..
R. S.,
(Title of office.}

FORM No. 30.

NoTIce oF APPEAL TO BOARD OF SUPERVISORS FROM AUDIT OF ACCOUNTS OF JUSTICES
AND CONSTABLES.

(Town Law, § 177, ante, p. 382.)

To CO. D., Town Clerk of the town of .........08. , in the county Of ccccccccceees
and T. W., Clerk of the Board of Supervisors of said county:

Take notice that the undersigned, a taxpayer of said town of ........ceeeee
(or justice of the peace or constable), hereby appeals, pursuant to section
177 of the Town Law, to the board of supervisors of said county, from the
auditing and allowing by the town board of said town, the amount claimed by
E. F., a justice of the peace (or constable) of said town, for fees (or from
the rejection and disallowance by the town board of said town, of any claim
for fees) in criminal proceedings, as tollows: (Here state the claim allowed
or disallowed.)

Dated this ....0... Gay Of ..scececees 19..

W. S.
FORM No. 31.
Justice’s AccounT AGAINST TOWN IN CRIMINAL MATTER.
(Town Law, § 107, ante, p. 383.)
The town of ........++-. to H. F., Justice of the Peace, residing at .....0c.009

in said town, Dr.
The People v. O. O.
January 10, 19... Name of complainant, P. P., who resides at ............,
in said town.
Offense charged was grand larceny.
FORMS. 1133

Upon information taken and filed I issued a warrant for the arrest of
defendant.
Warrant was delivered to N. N., constable of said town. :

January 12, 19.. Defendant was arrested and brought before me. Defendant
demanded an examination (or as the case may be), which was had, and the
following witnesses were sworn on such examination, viz.: (Here name
them.)

Defendant was held to answer the charge of grand larceny and admitted
to bail (or as the case may be).

Administering oath to complainant ................. aetna re 10 cents.

Drawing information ......... adie eraverscere ayennise  sesee bina: lara aed San auecareiat od oucithaaD 25 cents.

(In same manner make itemized account of fees.)
E. F.
Justice of the Peace..

STATE OF NEW YORK,
COUNTY OF .......... 88

E. F., being duly sworn, says he is the claimant named in the foregoing
claim; that the items of such account as above set forth are correct, and
that the services charged therein have been in fact made or rendered, and
that no part thereof has been presented to any preceding board or audit, for
audit and allowance and that no part thereot has been paid or satisfied.

EB. F.
Subscribed and sworn to before me,
this .... day of ......... 5p AD inc
G.H.

Justice of the Peace.

FORM No. 32.

Accounts or Town OFFICERS.
(Town Law, § 175, ante, p. 386.)

John Dooley, supervisor, (overseer of the poor) of the town Of .........eeeees
fn account with said town.

 

1910. Receipts.
Jan. 28. Received of A. B., town collector, for general town purposes. $275 00
Mar. 5. Received of J. K for (state purpose and for what)..... ese 125 90
1910. Expenditures.

June 4. Paid to L. M. for (state definitely purpose for which
expenditure WaS Made) ..sccrecccccccccavcccerorsoseers $25 00

te
1134 FORMS.

VERIFICATION.

STATE OF NEW YORK,

CounTY OF ........... es

John Dooley, being duly sworn, deposes and says that he is the person
mentioned as presenting the foregoing account; that the items of such
account are correct; that the amounts stated therein to have been received
by him as supervisor (or other officer) of the town of ..........6. , are all that
he has received as such officer; that the expenditures stated therein have, in
fact, been made for the purposes specified; that all of such expenditures were
necessary and were made in good faith and for value received; and that the
balance of ............ dollars is all the money in my hands belonging to said
town.

JOHN DOOLEY.

Subscribed and sworn to before me,
this .... day of .......... > 19..

L. M.,
Justice of the Peace,

FORM No. 33.

CERTIFICATE OF EXAMINATION OF TOWN OFFICERS’ ACCOUNTS.
(Town Law, § 155, ante, p. 386.)

We, the undersigned, members of the town board of the town of ..........+. ;
county Of siscccesinewe sss , do hereby certify, pursuant to section 132 of the
Town Law, that we have examined the annexed account of John Dooley,
overseer of the poor (or other officer) of such town, and that the same is just,
true and correct, and that the balance now in the hands of such overseer of the
poor (or other officer) according to such account is ........ dollars.

Dated .......s00, 19..

E., Supervisor.

. M., Justice of the Peace.
D. Oo “ce +

Pp. R., “ “ce

F. G., Tow? Clerk.
FORMS. 1435

‘FORM No. 34.
AFFIDAVIT TO BE ANNEXED TO ACCOUNT PRESENTED TO Town BOARD FoR AUDIT.

(Town Law, § 175, ante, p. 386.)
(Attach this affidavit to itemized account.)

STATE OF NEW YORK,

COUNTY OF ...........
A. B., being duly sworn, deposes and says that he is the claimant mentioned
in the foregoing account against the town of .............. ; that the items

of such account are correct, and that the disbursements or services (or
articles specified, as the case may be) have been in fact made or rendered
(or furnished, as the case may be), (or are necessary to be made or rendered
at that session of the board), and that no part thereof has been paid or
satisfied.
A. B.
Subscribed and sworn to before me,
this .... day of ........., 19..
J.N.,;
Justice of the Peace.

FORM No. 35.

ABSTRACT OF Names or PeRsoNS WHO Have PRESENTED ACCOUNTS FOR AUDIT.

(Town Law, § 155, ante, p. 390.)

To the Board of Supervisors of the county Of .........0008

We, the undersigned, town board of the town of ...... eeeceeees DULSUAaNt
to section 155 of the Town Law, do hereby certify that the following is a cor-
rect abstract of the names of all persons who have presented to said board
accounts to be audited, the amounts claimed by each of said persons, and
the amounts audited by them respectively:

 

NAMES. Amount claimed. Amount audited.

 

 

 

Dated this ........ OAYy OF ica sana eerie 19s.
(Signed A. B., Supervisor, and other members of town board.)
1136 FORMS.

FORM No. 36.

APPOINTMENT OF Boarp OF AUDITORS BY TowN Boarp.
(Town Law, § 152, ante, p. 391.)

We, the undersigned, members of the town board of the town of ........+++e
county of .......... -., having duly met at ............ ON the: 2 sesescieeese
day of .............. , 19.., at .... M., do hereby appoint pursuant to a vote
of the electors of such town at a town meeting held therein on the ............
day of ............. , 19.., and section 152 of the Town Law, the following
named persons, to wit, A. B., C. D. and E. F., to be town auditors of such
town until the next biennial town meeting held in such town.

In witness whereof, we have set our hands and seals hereto on this ........
Day Of sciees scvaces 1e..

’

(Signed A. B., Supervisor, and by other members of town board.)

FORM No. 37.

Form or APPLICATION FoR EXEMPTION OF PENSION.
(Tax Law, § 4, sub. 5, ante, p. 477.)

To the Assessors of the town of .......-..060

The undersigned applicant, a resident of the town of ................, and
the owner of real property situated in such town as hereinafter described,
hereby makes this application to you, and respectfully states as follows:

1. That such property is situated in town of ............ , and is described
as follows: (Describe generally the real property sought to be exempted, by
street and number or otherwise.)

2g. That the assessed valuation of such property is ............... dollars.

3. That a pension was secured by the applicant (or by the applicant’s hus-
band, naming him) for military (or naval) services rendered the United
States, and that, of the proceeds of such pension, the sum of ..............
dollars was used in the purchase of such real property.

Wherefore, he requests that such property be exempted from taxation for
state, county and general municipal taxation, as provided by subdivision 5 of
section 4 of the Tax Law.

(Signature.)

STATE OF NEW YORK, i
COUNTY OF.........-55

, being duly sworn, deposes and says that he is the applicant
FORMS. 1137

for the above specified exemption; that he has read the foregoing applica-
tion and knows the contents theresf; that the facts stated therein are true
to his own knowledge, except as to the matters therein stated on information
and belief and as to those matter he believes it to be true.
(Signature. )

Subscribed and sworn to before me,

this .... day of ........ , 19..

(Signature of officer.)

FORM No. 38.

Report oF BANK ro LOCAL ASSESSORS.
(Tax Law, § 28, ante, p. 519.)

To the Assessors of the town of ............°

I, A. B., cashier (or other chief fiscal officer) of the .............. Bank,
having its principal office located in the ................ OL. a isdireies wraseiata-auding
county of ..............., N. Y., in pursuance of section 23 of the Tax Law,
do hereby make the following statement of the condition of such bank on
the first day of June, 19..:

1. The amount of the authorized capital stock of such bank is ............
thousand dollars, divided into ............ shares of the par value of ..........
hundred dollars each.

2. The total amount of the stock of such bank which has been paid in
1S: 4a s cata wenn es dollars.

3. The amount of the surplus of such bank is .............. dollars; and
the amount of its undivided profits is ............ dollars.

The following is a complete list of the names and residences of the stock-
holders of such bank, and the number of shares held by each:

Name of stockholder. Residence. No. of shares.
Dated this ........... day of ............ ,19..
A. B.,

Cashier (or other chief fiscal officer) of bank.

VERIFICATION.

STATE OF NEW YORK, .
COUNTY OF......2..555 Bee =
A. B., being duly sworn, says that he is the cashier of the ............
Bank; that he subscribed the foregoing statement as such cashier and has
read the same and knows the contents thereof, and that such statement is

in all respects true.

Signed A. B.
Subscribed and sworn to before me,
this .... day of .......... 7 19s.
ce. D.,

Notary Public ......ee0.. County.
1138 FORMS.

FORM No. 39.

STatTemENT or Levy or Tax BY BOARD OF SUPERVISORS UPON BANK ST0OK.

(Tax Law, § 24, ante, p. 520.)

To A. B., Cashier of the ............ Bank, located in the village of .....0.eecees
county Of .......0.005 nage. Yad

The board of supervisors of the county of ........ ...., from an inspection

of the assessment-roll of the town of .............005 have ascertained the

facts contained in the following statement which is hereby submitted to you
pursuant to the provisions of section 24 of the Tax Law:

1, The amount of the capital stock of the ....... +eeeeees. Bank, located in
ENE saivsecatecn OL wien wanes iS ane eases ee thousand dollars.

2. The surplus of such bank is ................ thousand dollars; and the
undivided profits thereof amount to .............. thousand dollars.

3. The number of outstanding shares of such stock are .............. , and
the value of each share of such stock, as ascertained in the manner pro-
vided by section 24 of the Tax Law, is .......... dollars.

4. The aggregate amount of tax to be paid by the ...... ssinhamtnus ioe Bank
18) wrshadines cs dollars, and such amount has been levied upon such bank

pursuant to the authority conferred by section 24 of the Tax Law.

The foregoing statement is made to you in compliance with the provisions
of section 24 of the Tax Law in pursuance of an order of the board of supervisors
of the county of ...............

Dated this ........ day of ............ , 19..
Signed D. E.,

Clerk of Board of Supervisors of .......00-+. county.

FORM No. 40.

WARRANT OR ORDER TO CoUNTY TREASURER FOR COLLECTING BANK Tax.
(Tax Law, § 24, ante, p. 520.)

To the County Treasurer Of .........005 county:
Pursuant to the authority conferred by section 24 of the Tax Law, the board of

supervisors of the county of ............ hereby orders and directs that
there be collected by you of the banks and banking associations located in
the several towns, villages and cities in the county of ................ the
amount of tax levied by this board upon such banks and banking associations,
and that such sums when so collected be paid by you, less your commission
of one per centum to be deducted for collecting and paying out such moneys,
to the proper officers in the several tax districts of the county of ..............

The number of shares of bank stock assessable in each town, city, village
and school district, the assessable value of such shares, the amount of taxes
levied upon each bank and banking association therein, the tax rate of
each of such tax districts for the year .............. , and the proportion of the
tax to which each of such tax districts is entitled under the provisions of
such section 24 of the Tax Law, will appear from the following statement:

 

 

TOWD Of cisseesssecess
No. of Assessable Amount
Bank: shares. value. of tax.
Wilbur National Bank .......:.......006 3,000 $450,000 $4,500
Tax rate for town of...............005 f anbhecsl avers sine rs wave ee Htaia 005
Tax rate for village of.......... 0... ccc ecc ence eee ee te eneeeaas 01
Tax rate for school district No. ...., town of .............. .005
OtAl TAR: TALC: tain cusses Oss ean nda clad oe waG we ee aneeen .02
There shall be paid to the town Of .......... ce cece cece eee e eee eeeeee $1,125
10 Ui VilIBEO OE ace kus Saat ha Rees oo Mee Ee RR EES 2,250
to school district No. 11 of the town of........ 1,125

(Insert other towns in same manner.)
For the payment of the above sums to the proper officers of such .tax¥
districts this shall be your sufficient warrant.
Signed Board of Supervisors of ............ county,
D. E., Chairman,
E. F., Clerk.

FORM No. 41.

STATEMENT OF INDIVIDUAL BANKER TO ASSESSORS,

(Tax Law, § 25, ante, p. 524.)

4

To the Assessors of the town Of ...-....0+608
I, L. M., individual banker doing business under the laws of this state,

as an individual banker, having my principal place of business in the
OLS: sayin te essumisas serene , county of ........2..08- , N. Y., do hereby
report, pursuant to the provisions of section 25 of the Tax Law; that the
amount of capital invested by me in such business as an individual banker
in the town of ............, on the first day of June, 19.., 18 ...-ceeeeeeeeeee

dollars.

Dated this ............ Gay Of weeeceeessos, 19..
Signed L. M.,

Individual Banker.

(Verification as in Ferm No. 38.)
114¢ FORMS.

FORM No. 42.

Notice To BANK oF ASSESSMENT,

(Tax Law, § 26, ante, p. 524.)

TO CRE cease lsasieeiees Bank:

You are hereby notified, pursuant to section 26 of the Tax Law, that the
shareholders of the .............. Bank are assessed as such shareholders, for
the sums set opposite their names in the following list:

JONN) DOG ccciv ss weica's aVieiew: ak Gisd dhe lad, wae WAS Wee wietsi piers! eres $2,000
Richard: Roe! ss cscs. scieac « aa-siaia siesan's oviaacee siammeye ore SiG ecehareieis aloes 5,000
‘ere as

Dated this ........ day of ............ , 19..

A. B.,
c. D.,
E. F.,

Assessors of the town Of cecosceccccece

FORM No. 43.
STATEMENT OF COBPORATIONS TO ASSESSORS.
(Tax Law, § 27, ante, p. 525.)

I, A. B, president (or other proper officer) of the (name of corporation)
hereby report, in pursuance of section 27, as follows:
1. The real property owned by such corporation consists of (describe 2ame),

situated in the town of .............. 9 OU deat ease es (or in the ............
ward of the city of ............-. PAU ae eden asia siaereas ). for which <he corpora-
tion paid the sum of ............... dollars.

2. The capital stock of such corporation actually paid in is ...............
dollars; the sum of .............. dollars has been paid by such corporation
for real property, and .............. dollars of the capital stock is held by

the Susquehanna Valley Home for Orphans, leaving a balance subject to

taxation of .............. dollars.
3. The principal office of such corporation is situated in the town of

A. B.
FORMS. 1141

VERIFICATION.

STATE OF NEW YORK,
COUNTY OF.........0485 ss

A. B., being duly sworn, says that he is the president of the (name of
corporation); that he subscribed the foregoing report as such officer, and has
read the same and knows the contents thereof, and that such report is in all
respects just and true.

A. B.
Subscribed and sworn to before me,
this .... day of .......... , 19..
Cc. D.,
Notary Public, ........ wee. County.
FORM No. 44.
STATEMENT oF CouNTY CLERK AS TO CORPORATIONS,
(Tax Law, § 29, ante, p. 526.)
To J. B., Town Clerk, Town Of ....cecececesecs
I, A. B., county clerk of the county of ............ , hereby certify, pursuant
to the provisions of section 29 of the Tax Law, that the records in the office of
the county clerk of the said county of .............. show that the following

named corporations have filed certificates of incorporation in such office whose
principal business offices or chief places of business are deseignated therein as
being in the town of ......++...-, and that names and addresses of the directors

are as follows:

 

 

 

 

NAME oF Place of ays Names and addresses
CoRPORATION, Business. Date of Filing. of Directors.
The Smith Manu- Smithville. Aug. 1, 1910. Paul Smith,
facturing Company.| , _ Smithville.
John Smith,
Smithville.
Laura Smith,
Smithville.
Dated, Norwich, N. ¥., June 10, 1910,
(Signed.)
A. B.

County Clerk.
1142 FORMS.

FORM No. 45.

STATEMENT OF AGENT.

(Tax Law, § 35, ante, p. 535.)

To the County Treasurer of the county Of ......ceeeeeee?

I, A. B., residing in the county of ............0005 , agent Of ....ceseccecees &
nonresident creditor, having debts owing to him therein, hereby transmit a
statement of such debts owing on May 1, 19.., in pursuance of section 35 of
the Tax Law, as follows:

 

 

 

 

 

Name or DEBTOR. Residence. Amount.
John Doe.. .......... Town of Afton........ 0c. .c cece eee eee $ 945 75
Henry Smith .... ....] City of Binghamton, tenth ward........ 1,210 15

Dated this ............. day of ............ pk Oacs

A.B

STATE OF NEW YORK,
COUNTY OF........... \ #6

A. B., being duly sworn, deposes and says that he is the agent within the
county of .............. pb ayers sche derieus ccna f that. sald) . iecccs caicas cae is a non-
resident of such county, and has debts owing to him therein; that he has
read the foregoing statement of such debts subscribed by him and knows
the contents thereof, and that the same is a true and accurate statement of
such debts.

 

 

A. B.

Subscribed and sworn to before me,

this .... day of ........ , 19..

Notary Public.
FORM No. 46.
NoTIcE oF COMPLETION OF ASSESSMENT-ROLL.
(Tax Law, § 36, ante, p. 535.)

Notice is hereby given that the assessors of the town Of ....ccccccecnccens

Cor, Of 2... .cceeceeeeee ward of the city of ............. -), have completed

their assessment-roll for the current year; that a copy thereof has been
FORMS. 1143

left with the undersigned, A. B., at his office (or, as the case may be), in
wiiie Caines bays (if in a city, specify the street number), where it may be seen
and examined by any person interested therein until the third Tuesday of
August next, and that on such day, at ........ o’clock in the ........ noon,
said assessors will meet at ............ , in the said town (or ward), to
hear and examine all complaints in relation to such assessments, on the
application of any person conceiving himself aggrieved thereby.
Dated this ........ Gay Of cccseceveeees 19:

A. B.,
c. D.,
E. F.,
Assessors.
FORM No. 47.

AFFIDAVIT ON APPLICATION TO CoRRECT ASSESSMENT,

(Tax Law, § 37, ante, p. 5387.)

STATE OF NEW YORK,
COUNTY OF....... aise? ; ae

A. B., being duly sworn, says that he is assessed on the assessment-roll of
the town of ...........0.- » for the year 19.., for ............08-- dollars;
that such assessment is incorrect and excessive for the reason that just
debts owing by him have not been deducted; that the amount of such debts
MS aide sea ctacsiacets dollars, and that there is not included in such amount any
debts contracted or incurred in the purchase of non-taxable property or.
securities owned by him or held for his benefit, nor for°or on account of
any indirect liability as surety, guarantor, indorser, or otherwise, nor for the
purpose of evading taxation (or state specifically the respect in which the
assess'aent complained of is incorrect).

A. B.
Subscribed and sworn to before me,
this .... day of ........, 19..
c. B.,
Notary Public.

 

FORM No. 48.

Novice of Firing CoMPLETED ASSESSMENT-ROLL WITH CLERK.
(Tax Law, § 39, ante, p. 543.)

Notice is hereby given that the assessment-roll (or assessment-rolls), for
the town (or city) of .............., im the county Of ....s.eseeceees for the
1144 FORMS.

year 19.., has been finally completed by the undersigned assessors, and a cer-
tified copy thereof was filed in the office of the town (or city) clerk, at the

Saara. a levahiousiso aaeseviecaiaeute Of .........seeeeeeeeee, Where the same will remain open to
public inspection for fifteen days.
Dated this ........ Gay Of ....ceseeees ,19..
A. B.,
c. D.,
E. F.

Assessors of the town Of e.ccccceccece

FORM No. 49.

APPORTIONMENT OF VALUATION OF RatLRoAp &c. COMPANIES BETWEEN SCHOOL
DISTRICTS.

(Tax Law, § 40, ante, p. 544.)

STATE OF NEW YORK, :
COUNTY OF..........4.- SEs:

We, A. B., C. D., and H. F., the assessors of the town of ........+ee..., county
Ole asics eae , pursuant to the authority conferred upon us by § 40 of the
Tax Law, do hereby apportion the assessed valuation of the property of each of
the following named corporations among the several school districts in such
town, in which such property is situated, as follows:

 

NaME OF CoMPANY. Assessed Valuation. Valuation in each School District.

 

The New York Central

 

 

Railroad Company..... $150,000 School Dist. No. 1, 50,000
“e “ “cc 7, 60,000
“ “ “cc 9, 40, 000
New York Telephone Co.. 7,500 School Dist, No. 1. 2,500
oe ee ae 3, 3, 000
“ “cs ““c 5, 2,000
Dated, this .... day of .............. ,19..
(Signed)

A. B.,

Cc. D.,

E. F.,

Assessors, Town of

Nore.—This statement must be filed with the town clerk, and he must furnish
the trustees of the several school districts with a statement of such valuations.
FORMS. 1145

FORM No. 50.
CERTIFICATE OF NEGLECT OR OMISSION or DUTY oF ONE OF THE ASSESSORS.
(Tax Law, § 41, ante, p. 545.)

STATE OF NEW YORK, \
ss

CouNTY OF............
We, A. B., and C. D., two of the assessors of the town Of ...........-.0.00- ;
in the county of ............ , do hereby certify to the board of super-

visors of such county, in pursuance of section 41 of the Tax Law, that E. F.,
the other assessor of such town, has neglected (or omitted) to verify the
foregoing assessment-roll, or (state other omission), the cause of such neglect
(or omission) being (state the same).

Dated this ........ day of ............, 19..

ie

A.B
Cc. D.

FORM No. 51.

Petition oF Town ASSESSORS TO BOARD OF SUPERVISORS FOR CORRECTION OF
ASSESSMENT-ROLL.

(Tax Law, § 56, ante, p. 562.)

To the Honorable Board of Supervisors of ............ county:

Your petitioners, A. B., C. D. and E. F., assessors of the town of .............. .
pursuant to the authority conferred by section 56 of the Tax Law, do re-
spectfully show to your board that,

I. In the assessment-roll delivered to L. M., supervisor of the town of

Vane bee ..ssse) aS provided by law, for the year .........., a mistake was'
made in transcribing so that the property therein assessed to D. F. was
Valued! at: sox ec siecwes ven s dollars; the actual value of such property as appears

upon the original roll signed by the assessors for that year was ........ iain
dollars.

II. In the assessment-roll for the year ............ delivered to such super-
visor as provided by law, taxable property owned by J. D. has been omitted
therefrom. The description and the valuation of such property for the
preceding year is as follows: (describe property, giving name of owner, num-
ber of acres, valuation, etc.)

III. Taxable property owned by A. L., consisting of (describe property);
has been omitted from the assessment-roll as prepared by your petitioners
for the current year; that the-value of such property is ...,.,....-. oe dollars.
1146 FORMS.

Wherefore, your petitioners respectfully pray that the value of the prop-
erty assessed to D. F. in the assessment-roll for the year .............. .. be
changed from .................. GOATS! tO cisescawieaeu oie ese dollars.

That the taxable property omitted from the assessment-roll of the year
wa eh ee .... belonging to the said J. D. be included in the assessment-roli for
the current year as described and for the valuation fixed as above.

That there be placed upon the agsessment-roll for the current year the
taxable property omitted therefrom belonging to A. L., at a valuation of
Speaks A wianeise dollars.

Signed A. B.,
Cc. D.,
BE. F.,
Assessors for the town Of wcsscccecccee>

VERIFICATION.
STATE OF NEW YORK,
COUNTY OF............ \ 88
The undersigned, assessors for the town of ............+.+e+-++, do severally

depose and swear that they and each of them have read the foregoing petition
and know the contents thereof; that the same is true to the knowledge of
the deponents except as to the matters therein stated to be alleged on
information and belief, and that as to those matters they believe it to be
true.

A.B
c.D
E. F.
Subscribed and sworn to before me,
this .... day of ........ 519s
N. 0.,
Notary Public of the county of .......... er

NOoTICE OF PRESENTATION OF PETITION.

To J. D. and A. L.:
Take notice, The petition hereto annexed will be presented by the under-

signed, assessors of the town of .............. , to the board of supervisors
of the county of ....... ce ee eescess , at its annual meeting to be held in the village
1) seeeee, COUNtY Of ............+-, OM the ......... Gay of..........,
19..

A. B,,

Cc. D.,

E. F.,

Assessors.

AFFIDAVIT OF SERVICE.

STATE OF NEW YORK, 2
COUNTY OF.........-6-

A. B., being duly sworn, says that he is of the age of more than twenty-
FORMS. 1147

one years, that on the ............ day of ...... axe Deeg Ab aces by Passes acecsion’s
he personally served the within petition and notice upon J. D. and A. L.
by delivering to and leaving with them true copies of the same.

He further says that he knew the persons so served as aforesaid to be the
Same persons mentioned and described in the petition hereto annexed.

A. B.

Subscribed and sworn to before me,

this .... day of ............ 6 Oss

Notary Public of ......cseere05 County,

FORM No. 52.

CoLLEcTor’s WARRANT.

(Tax Law, § 59, ante, p. 568.)

STATE OF NEW YORK,
COUNTY OF............ 88

The People of the State of New York to R. G., Collector of the town of

Auavoues ay renuee aay «, of the county of ........++0...2, greeting:

You are hereby commanded to receive and collect from the several persons
named in the assessment-roll hereunto annexed, the several sums named in
the last column thereof opposite their respective names, on or before the ist
day of February, 19..; and on all taxes paid within thirty days after giving
notice of the reception of this tax-roll and warrant, as required by section 69
of the Tax Law, you are hereby directed to receive and collect, in addition
to the taxes raised in said assessment-roll, one cent on every dollar or sum
less than a dollar of taxes, as your fee for collecting the same. (If the
aggregate amount shall not exceed two thousand dollars, two cents on every
dollar or sum less than a dollar of taxes as your fee for collecting the same.)
On all taxes remaining unpaid after the expiration of said thirty days, you
are entitled to receive and collect, in addition to such taxes remaining un-
paid, five cents on every dollar as your fees for collecting the same.

You are hereby directed, out of the money so collected, to pay over on the
first. day Of is. . aiccw ee eecine next:

1. To the supervisor of said town, the sum of ................ , assessed and
levied for the support of highways and bridges therein, pursuant to the provis-
ions of article V of the Highway Law.

2. To the overseer of the poor of said town, the sum of ............ , assessed
and levied for the support of the poor therein.
3. To the supervisors of said town, the sum of ........ ......, for the town

expenses and charges assessed and levied on such town.
1148 FORMS.

4. To the treasurer of said county, the residue of the money collected by
you.

You will proceed to collect such taxes in the manner provided by article 4
of the Tax Law.

If any person named in such assessment-roll shall neglect or refuse to pay
taxes assessed therein to him or the fees for collecting the same, you are
hereby authorized to levy and collect such taxes by distress and sale of the
goods and chattels of such person within said county, together with the
costs and charges of such distress and sale, and for so doing, this shall be
your sufficient warrant.

Given under our hands and the seal of the county, on this .......... day
OL. ie soieceisreverscssare esarnneg. LO

M. F., Chairman.

R. S., Clerk.

FORM No. 53.

-STATEMENT OF TAXES UPON CERTAIN CORPORATIONS.
(Tax Law, § 60, ante, p. 570.)

To. A. B., Treasurer of the county of ...........-.0002
I, C. D., clerk of the board of supervisors of the county of ...... saosvoe tee She ;
in pursuance of section 57 of the Tax Law, do hereby transmit the following

statement:

 

Valuation Amount

 

 

 

 

NaME OF CorPorRATION. Districts in which assessed] property, of tax.
Western Union Telegraph Co... | Townof........ ...... $8,000 00 $ 65 16
do ..- | City of...... , third ward| 7,000 00 55 16
do sau) “LOWED: Of. sicsse decease 5,000 00 40 09
Ontarioand Western Railroad Co.| Town of................ 6,000 00 290 00
do City of.. ...., first ward] 8,000 09 275 00
Dated this .........- Gay. Of G2. eraae eisteers » 19...
c. D.,

Clerk of Board of Supervisors.
FORMS. 1149

FORM No. 54.
ABSTRACT OF TAX-ROLLS.
(Tax Law, § 62, ante, p. 571.)

To A. B., Treasurer of the county of ..............2

I, C. D., clerk of the board of supervisors of the county of .............00. ‘
in pursuance of section 62 of the Tax Law, hereby transmit an abstract of the
tax-rolls of such county as follows:

 

 

 

 

 

 

 

 

Amount
NAME OF Bye Towhomto| When to
District.| to be Purpose of Taxes. . :
CoLLECToR. saiateat P be paid. be paid.
John Smith...|/Town of Highways and bridges. Feb. 1, 19..
gbama Mises Swseone a $1,000] John Brown
eevbuastoa See $ 9,000 00/Support of poor... . 3,000
Town charges..... 4,000
State tax...... ... 1,000
Michael Flood. |Town of Highways and bridges. e
alaviticeneceiss 17,000 00 we peeeeeeeee 8,000/A bram Moore
&e, &e. &e. &e.
FORM No. 55.

Notice BY COLLECTOR OF RECEIPT OF ASSESSMENT-ROLL AND WARRANT.
(Tax Law, § 69, ante, p. 583.)

Notice is hereby given that I, the undersigned, collector of taxes in and

for the town of ............ COR sextecevarees ward of the city of .............. ),
have received the tax-roll and warrant for the collection of taxes for the
present year, and that I will attend at .............. , in said town (or ward)

on (naming three days, if in a town, or five days, if in a city), in each
week, for thirty days from the date hereof, from 9 o’clock in the forenoon
until 4 o’clock in the afternoon, for the purpose of receiving the taxes
assessed upon such roll.

Dated this ...... bi GAY OT cipiecsicewsie's'e a 19s
JOHN BROWN,

Collector.
1150 FORMS.
FORM No. 56.
Notice or Tax SALE By COLLECTOR.
(Tax Law, § 71, ante, p. 585.)

By virtue of the warrant delivered to me, as collector of the town of
Seip ieud: Hievolew alee , I have levied upon and taken possession of the following goods
and chattels of R. S. (or in the possession of R. S.), (describe in detail
property seized) and I shall sell the same at public auction at ............

in the town of .............. , on the .......... day of ...... Satan vate cs next,
IG apie djccaresase epee o’clock in the ...... +eees-..n000 on that day.
Dated tis oso ise sc AY Of, sissies sisiewiss tees oo LD sie
F. M. A.,
Collector.

FORM No. 57.

AFFIDAVIT TO BE ATTACHED TO COLLECTOR’S RETURN OF UNPAID TAXES,

(Tax Law, § 82, ante, p. 601.)

STATE OF NEW YORK,
COUNTY OF............ ee

A. B., being duly sworn, deposes and says that he is the collector of taxes

fOr the: ye: scccisee cc ee esis , in the county of ................ ; that the annexed is a
true account of the taxes remaining unpaid upon the assessment-roll of said
town for the year 19..; that the sums mentioned therein remain unpaid,

and that he has not, upon diligent inquiry, been able to discover any personal
property, out of which the same might be collected by levy and sale. (If
such tax is uncollected upon lands assessed to nonresidents, also state the
reason why the same was not collected.)
A. B.,

Subscribed and sworn to before me, ' Collector.

this .... day of ........ Sis

(Signature of Notary.)

(Annex statement.)

The form of the return is to be prescribed by the state board of tax
commissioners.
FORMS, 1151

FORM No. 58.

APPLICATION OF SUPERVISOR FOR EXTENSION OF TIME FOR COLLECTION or TAXES.
(Tax Law, § 85, ante, p. 605.)

To the County Treasurer of the county of ..........00002
Application is hereby made, in pursuance of section 85 of the Tax Law, for
an extension of time until March 1, 19.., for the collection of taxes in the town
OL. fo chagte a cvasenle aya » for the reason that (state reason for delay).
Dated this ........ day of ................ , 19..
A. B.,
Supervisor of the town Of ....seeccees

FORM No. 59.

OrpeEr oF TREASURER GRANTING EXTENSION.

(Tax Law, § 85, ante, p. 605.)

Upon application made to me, in pursuance to section 85 of the Tax Law,
by A. B., supervisor of the town of ..... asd soe scant ts , for an extension of time
for the collection of taxes in such town, and the reason stated in such application
appearing to me sufficient, and proof having been made to me that J. F., the
collector ot such town, has paid over all moneys heretofore collected by him and
has made a return of nonresident taxes remaining unpaid, and renewed his
bond in a penalty twice the amount of the taxes remaining uncollected, a certi-
fied copy of which has been delivered to me, it is hereby

Ordered, That the time for the collection of taxes remaining unpaid in such
town is hereby extended until the 1st day of March, 19..

Dated this ........ day of ...........2.- anges LOGS

E. D.,
County Treasurer of the county Of .....seccccece

FORM No. 60.
Decision or Fence Viewers WHEN TRANSFER OF TITLE HAS BEEN Mabe.

(Town Law, § 362, ante, p. 639.

Whereas, a dispute has arisen between D. B. and T. W., adjoining owners of
lands in the town of ..........+., in regard to the division fence between said
1152 FORMS.

lands, caused by a transfer of title of a portion of the adjoining lands owned
by D. B. (or as the case may be);

Now, therefore, we, the undersigned fence viewers of said town, having been
duly chosen by the said owners to hear and determine the matter, pursuant to
sections 362 and 363 of the Town Law, and having given due notice to each
owner of the time and place of this meeting, and having viewed the premises
and heard the parties and evidence produced, do hereby determine and decide
that said D. B. shall maintain and keep in repair that portion of the fence
(here describe it), and that said T. W. shall maintain and keep in repair that
portion of the fence (here describe it); and we further determine that the
value of fence between said lands is $...., and that the said D. B. shall pay
to said T. W. $.... as his proportion for said fence (as the case may be), and
that each pay one-half (or as the case may be) of the costs and expenses of this
proceeding, which are $....

In witness whereof, we have hereto set our hands on this .............. day
OL Sa%neuts Sechteg Sirniesie dp A Ooas

N. 0.,
P. R.,
Fence Viewers.

FORM No. 61.

Notice To CHoosE FENCE VIEWER.
(Town Law, § 363, ante, p. 639.)

T. D. B., Esq.:

Pursuant to section 363 of the Town Law, you are hereby required to choose,
within eight days after service of this notice, a fence viewer to act with N. O.,
a fence viewer I have chosen, in determining the dispute which has arisen
between us concerning the division fence between our lands; and if you fail so
to do, I shall choose both of said fence viewers, as authorized by law.

Dated this ........ day Of ............-.00, 19..
T. W.

FORM No. 62.
CERTIFICATE OF APPORTIONMENT OF DIVISION FENCE,
(Town Law, § 363, ante, p. 639.)
COUNTY OF.........-005+ ’

TOWN OF ..-cccceeceseses
Whereas, a dispute has arisen between D. B. and T. W., adjoining owners
FORMS. 118

of land in said town, concerning the apportionment of the expenses of main-
taining (or erecting) the division fence between said lands;

Now, therefore, we, the undersigned fence viewers of said town, duly chosen
to hear and determine the dispute, pursuant to section 363 of the Town Law,
after giving due notice to said owners of the time and place of this meeting,
and having viewed the premises, heard the parties and the evidence produced,
do hereby determine that the said D. B. shall erect, maintain and keep in repair
all that portion of the fence (here describe it), and that T. W. shall erect, main-
tain and keep in repair all that portion of the fence (here describe it), and that
each pay one-half (or as the case may be) of the costs and expenses of this
proceeding, which are $....

In witness whereof we have set our hands hereto on this .............. day
WE seas deg adie vapeeen de: N.0, |

R. S.,

Fence Viewers.

FORM No. 63.
SuBPoENs BY FENCE VIEWER.
(Town Law, § 364, ante, p. 640.)

STATE OF NEW YORK,

COUNTY OF............ 88.2
TOWN OF eased 'canigaed
The People of the State of New York to L. L. and O. O.:
We, the undersigned, fence viewers of the town of ...... oeeeseeeee, COUNTY
OF tacenauedeasnoade< , command you and each of you, business and excuses being

laid aside, to appear before us, fence viewers of the said town, at (insert the
place) on the ...... vase Gay Ol vinsedeesae oeeeee, 19.., at ....0’clock in the
sean an aeets M., to be examined as a witness in regard to the matter in difference
between D. B. and T. W. as to a division fence between property owned by
them, and all matters pertaining thereto; and for a failure to attend you will
be deemed guilty of contempt, and will be proceeded against as provided by law.
Dated this ........ day Of ......-.e.eeeee-, 19...
N. O.,

R. S.,
Fence Viewers.
1lot FORMS.

FORM No. 64.

APPRAISEMENT OF DAMAGES BY FENCE VIEWERS FOR NEGLECT TO BUILD OR REPAIR
Division FENCE.

(Town Law, § 365, ante, p. 640.)

STATE OF NEW YORK,
COUNTY OF............ 88.2

Whereas, D. B. and T. W. are owners of adjoining lands in said town, and
each liable:- to make and maintain a just proportion of the division fence be-
tween said lands, which said fence has been apportioned and divided between
them; and

Whereas, D. B. has neglected (or refused) to maintain and keep in repair
his portion of said fence, by reason of which refusal or neglect his cattle (or
as the case may be), entered the premises of said T. W. on the .......... day
OP nse peak Senwie-ee , 19.., and damaged the property of said T. W.;

Now, therefore, we, the undersigned, fence viewers of said town, duly
chosen by said parties to appraise such damages, due notice of the time and
place of this meeting having been given, and after viewing the premises and
hearing the parties and evidence produced, do, pursuant to section 365 (or
368) of the Town Law, hereby appraise the damage sustained by T. W. by
reason of the refusal (or neglect) of said D. B. to maintain or repair his
portion of said division fence, at $...., to be paid by D. B. with the costs
and expenses of this proceeding, which are $....

In witness whereof, we have hereunto set our hands on this .......... day
OF vise ee nenad vaca DDG. N. O.,

R.S.,
Fence Viewers.

FORM No. 65.

Notice To BuILp og REPAIR DIVISION FENOE,

(Town Law, § 365, ante, p. 640.)

To D. B., Esq.:

You are hereby notified and required, pursuant to section 365 of the Town
Law, to build and maintain (or repair) your portion of the division fence be-
tween your lands and the lands of the undersigned, beginning (state where fence
is to be built or repaired), within one month after receiving this notice, in
default of which I shall cause the same to be built (or repaired) at your
expense. :

Dated this ........ day Of .......ccceceseo, 19...

T. W.
FORMS. 11565

FORM No. 66.
Notice To Burtp Fence DEsTROYED BY ACCIDENT.

(Town Law, § 366, ante, p. 641.)

To D. B., Esq.:

You are hereby notified and required, pursuant to section 366 of the Town
Law, to build (or repair) your proportion of the following fence, to wit:
(here describe the fence) injured (or destroyed) by (state how) within ten
days after receiving this notice; in default of which I shall cause the same
to be built (or repaired) at your expense.

Dated this ........ day Of .......ccceeeees, 19.
T. W.

FORM No. 67.

Notice or Strays To BE FILED IN OFFICE oF TowN CLERK.

(Town Law, § 381, ante, p. 645.)

To all Person Whom it may Coneern:
You are hereby notified, pursuant to section 381 of the Town Law, that the

undersigned, a resident of the town of .................. , in the county of
es Slots oe Selene melanens , N. Y., has taken and now has in his possession a strayed
horse (or other animal, as the case may be), and the following is a descrip-
tion of the said horse (or as the case may be, giving age, color, etc., as near as
may be); that such horse (or other animal) was found on premises belonging
to the undersigned more than five days since, doing damage thereon (or having
strayed thereon); that such horse (or other animal) did not come upon such
premises because of the refusal or neglect of the undersigned to make or main-
tain a division fence as required by law; and that he claims a lien on such
horse (or other animal) for his damages, charges and costs occasioned thereby.
Dated this ........ Cay Of ..ccccesecucceecy 19.

D. B.
1156 FORMS.

FORM No. 68.

Notice to Owners or STRAYS.

(Town Law, § 383, ante, p. 646.)

To T. W., Esq.:
You are hereby notified, pursuant to section 383 of the Town Law, that
the undersigned, a resident of the town of ..............5. , in the county of

ei eaters ape ge aye » has in his possession upon his inclosed lands (or in pound, as
the case may be), the following animals belonging to you (here describe them,
and that the same are being held as strays (or beasts doing damage, as the
case may be).
Dated this ........ day of ........... eee, 19.,
D. B.

FORM No. 69.
Notice or SALE oF Stray ANIMALS BY FENCE VIEWERS.
(Town Law, § 387, ante, p. 647.)

Whereas, a notice of lien was duly delivered to the town clerk of the town
OF eietsits dart sale wines , on the........ Gay Of iesaic decane oan ce 19.., by J. F., the
owner of land in such town, upon certain animals belonging to A. B., of the
same town, described as follows: (describe animals), which animals were
found by the said J. F. doing damage upon his lands (or strayed upon his
enclosed land) ;

And whereas, the said A. B. has not redeemed such animals within three
months from the delivery of such notice as provided by section 386 of the
Town Law;

And whereas, application has been duly made to me, the undersigned, a
fence viewer of such town for the sale of such animals, as provided by section
387 of the Town Law,

Notice is hereby given, pursuant to such section of the Town Law, that such
animals will be sold to the highest bidder, unless redeemed by the owner at
(name place of sale), in said town of ............ sees, On the ........ day
Of ds anes os sda tegs UOC Sy AB ayaetcens noon.

Dated this .....:.. day of ................, 19..

L. M.,
Fence Viewer.
FORMS. 1157

FORM No. 70.

Notice ro OWNERS OF FENCE Viewers’ MEETING.
(Town Law, § 389, ante, p. 648.)

To T. W., Esq.:

You are hereby notified, pursuant to section 389 of the Town Law, that the
fence viewers of the town of ................ , in the county of ................
will meet at my residence, in said town, on the ........ AY Of wos eacagers tee 5
19.., for the purpose of assessing the damages done by your beasts on my
inclosed lands in said town, and the charges and expenses for keeping the
same.

Dated this ........ day Of ........ccccceee, 19..

D. S.

FORM No. 71.

DETERMINATION BY FENcE VIEWERS AS TO DAMAGES BY STRAY ANIMALS.
: (Town Law, § 390, ante, p. 648.)

STATE OF NEW YORK,
CounrvY OF.......... ‘ee 88.2
TOWN: Of ye kieis saute 8408

Whereas, on the ........ day of ...........+e0e+, 19.., there strayed (or
was found doing damage) on the inclosed lands of D. B., in said town, the
following animals (here describe them), which said beasts belong to T. W.,
(or, and the owner of said animals is unknown). ,

Now, therefore, we, the undersigned fence viewers of said town, duly chosen
to determine the matter submitted to us, after proof of due service of a notice
of the time and place of this meeting on the owner of the animals (or on proof
that the owner of said beasts is unknown), and after viewing the premises and
hearing the parties (or after hearing the claimant) and all witnesses produced,
do hereby, pursuant to section 390 of the Town Law, determine that the said ani-
mals entered on the inclosed lands of B. D.. from the premises of T. W., over
that portion of the division fence which belongs to T. W., to maintain and keep
in repair; and that the damages sustained by D. B. are $...., and that the
charges for keeping said beasts are $...., and the costs and expenses of this
proceeding are $.... (or that the claimant’s lien is not enforceable by reason
of; state the reasons).

Dated this ........ day of Oowccocoeenney 19..

N. 0.;
R. S.,
Fence Viewers.
1158 FORMS.

FORM No. 72.

APPLICATION TO FENCE VIEWERS AS TO SHEEP KILLED oR INJURED BY Dogs.
(County Law, § 118, ante, p. 655.)

To A. B. and C. D., Fence Viewers of the town (village or city) of..........

Whereas, on the ........ day of siccesiwea niin , 19.., sheep and lambs
owned by me were attacked by dogs, and ...... killed and ...... injured.

I hereby make application to you to inquire into the matter, and issue a
certificate of the damage I have sustained thereby, in pursuance to section
118 of the County Law.

Dated this: ccsaceex Gay Of oss csaves evans sey 190

A. B.
FORM No. 73.
CERTIFICATE AS TO DAMAGES.
(County Law, § 118, ante, p. 655.)
COUNTY OF ...... diteletene .
TOWN OF........-.4.-. eee -
We, the undersigned, fence viewers of the town of ....... aR aS ++, upon

the application of A. B., residing in such town, to inquire into the killing and
injury of certain sheep and lambs owned by him, having inquired into the
matter, and examined witnesses in regard thereto, do hereby certify that such
sheep and lambs were killed and injured by dogs, and in no other way; the
number of sheep and lambs Killed was ........ ; the number injured was ......
the value of such sheep and lambs killed or ‘njured immediately previous to
such killing or injury was $...... , and the value of such sheep and lambs
after being so killed or injured was $....
We do hereby further certify that our fees herein amount to $......
In witness whereof, we have hereunto set our hands on this ............ day
Of ciswasacweswe vey 105:
Cc. D.,
E. F.,
Fence Viewers.

FORM No. 74.

Oper OF THE OVERSEERS OF A TOWN TO ReMovE a Poor Person TO THE COUNTY
Poor Houss.

(Poor Law, § 20, ante, p. 714.)

County of ....-.+- amu cards S88
A. B., having applied for relief to the overseers of the poor of the town of
FORMS. 1159

eeeeecceeeveeeeeee, WhO having inquired into the state and circumstances of the
applicant, and it appearing that he (or she) is in such circumstances as to re-
quire permanent relief and support, and can be safely removed, the undersigned
overseers hereby order the said A. B. to be removed to the county alms house,
to be relieved and provided for, as the necessities of such applicant may require,
at the expense of the said county (or town, if in a county where the towns are
required to support their own poor).

Given under our hands, at .........., this ........ day of .......... 5 19:2

C. D.,
Overseers of the Poor.

FORM No. 75.

SUPERINTENDENTS’ ORDER TO Pay EXPENSES INCURRED BY OVERSEERS PREVIOUS TO
THE REMOVAL OF A Poor PERSON.

(Poor Law, § 21, ante, p. 716.)

To the Treasurer of the County of ........00.000002

Pay to A. B. and C. D., overseers of the poor of the town of ......... ee ees ‘
in said county, ......... dollars, a sum which was necessarily paid out, or con-
tracted to be paid, for the relief or support of E. F., a pauper, previous to his
removai to the county poor house, and which sum the undersigned, super-
intendents of the poor of said county, judged was reasonably expended by the
said overseers, before the said pauper could properly be removed, and charge

the same to the county (or, if a town pauper, to the town of . Mevectarteueiios Seie in
said county).
Given under our hands, at .........., this ...... day of ..... Serres ,19..

Superintendents of the Poor.

FORM No. 76.

Surervisor’s ORDER FOR a Poor Person wHo. Requires TEMPORARY RELIEF.

(Poor Law, § 23, ante, p. 717.)

The overseers of the poor of the town of ........ ...-.» having applied to
the undersigned, a supervisor of said town, relative to A. B., a person applying
to them for relief, and having examined into the facts and circumstances, and
1160 FORMS.

it appearing that the said A. B., so applying, requires only temporary relief
(or, is sick, lame, or otherwise disabled, so that he or she can not he con-
veniently removed to the county alms-house), the undersigned hereby orders the
said overseers to apply ........ dollars per week for the relief of the said A. B.,
until they have expended the sum of ten dollars, or such sum less than that
amount as may be found sufficient for the temporary relief of the said poor
person, A. B.
Given in said town, the ........ day of ...... s avensvets seis, AOD ee
c. D.,
Supervisor.

FORM No. 77.

°

SANCTION oF CoUNTY SUPERINTENDENT FOR THE ISXPENDITURE OF A GREATER SUM
THAN TEN DOLLARS.

(Poor Law, § 23, ante, p. 717.)

County of ......45 Satan , 8S:
The undersigned, one of the superintendents of the poor of the county of

Hau Walgetoes .., having been applied to by the overseers of the poor of the town
Of sdeseeicasia ...., in said county, to give his sanction for the expenditure of a
greater sum than ten dollars for the relief of A. B., as authorized by the super-
visor’s order hereunto annexed, and having inquired into the facts of the case,
and being satisfied that the said A. B. cannot be properly removed to the county
alms-house, and that he is in need of further relief, hereby gives his sanction
to the continuance of the weekly allowance specified in said order, until the
expenditure amounts to .......... dollars over and above the sum of ten
dollars authorized by the supervisor’s order in this case and to be charged to
the county (or town), as specified in said order.

Given under my hand at .......... this .......... Cay Of yi was vexmeeks ,19..

Cc. D.,
Superintendent of the Poor.

FORM No. 78.

Orper For SUPPLIES TO Pook PERSONS AND VERIFICATION OF ACCOUNTS FOR AUDIT.
(Poor Law, § 25, ante, p. 719.) =

ETON, Ne Nop ctsdiecindes pa muutekweae ,19..

LO ies wu O88 BOE aa saeecae
Please furnish to ........ Signalbinaeie’s s , the articles named in the following

schedule, in the quantities and to the amount therein specified, not exceeding a
total of ........-.-... dollars, and charge the same to the account of the town

of Afton.

Overseer of the Poor.
FORMS. 1161

ScHEDULE.
adie = ait IDB OF TOD’ ne ateie aje-aicid araiaive-g e+ wre eta Sele Ginoee s Bawa sawed acs Bi caieencs
weesse IDS; (OL SURED .../je8 os siei e tuanoesuan ds 4 awed Meteais tadedeuds 6. lied enierics
eee ales IDS. OL MOUL ares vcietsine oarsisiow s dare Fs HOEWEERE B16d orrie see one ds a's re
etc., etc.
VERIFICATION,

oe

State or New York,
County Of .ocesesces

Cee eden e nce e sec e eee ncceesecccees, DEINE duly sworn, deposes and says that
pursuant to the order of the overseer of the poor of the town of ........... ees
the articles named in the foregoing schedule were furnished to ................
sabebilete.s Grneucnacawseae , the person mentioned in such order, and that he (or she)
actually received such articles in the amount therein specified, and that the
prices charged therefor are reasonable and not above the usual market rates.

Subscribed and sworn to before me,
this ....... day of ........., 19..

FORM No. 79.

Form or OVERSEER’s Book SHowrIne Statistics RELATING TO Poor PERSONS
R°LIEVED.

(Poor Law, § 26, ante, p. 720.)

(Note.—Section 26 of the Poor Law contemplates the keeping by overseers of
two forms of books, the one containing statistics relating to the poor persons
relieved and supported, and the other containing a statement of the amount
expended. This section also provides that the overseer shall keep in such books
a statement in regard to children placed by them in families. No form is
required for this statement, nor need a separate book be kept. Such statement
can be made in either of the books required by this section.)

 

 

 

Cause rendering Amount of

N f ,
oper Age. | Sex. | Native Country. relief necessary. relief furnished.

poor person.

 

John Smith.| 65 | Male. | United States..... Intemperance..... $

 

 
FORMS.

1162

 

 

 

 

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FORMS. 1163

FORM No. 81.

ACCOUNTS OF OVERSEERS OF THE Poor To BE RENDERED TO Town Boarps OR
Common CoUNCIL.

(Poor Law, § 26, ante, p. 720.)

To the Town Board of the town of ..... Syahiehanavalecarteuacave.o?

Account of ...............- , overseer of the town of Afton, for amounts
received and expended for the support and relief of the poor during the year
ending ..... 66s BERR ERS y £Die

Receipts.
June 10. From county treasurer ...........c ccc cece eee ene eeeeeeeeees $10 00
Sept. 15. From George L. Church, for sale of property of John Smith,
who had absconded .............ee eee eeceee g seiinee' eas 12 50
Expenditures.
June 15. To Richard Brown, for groceries..... aie haa 8 etal ores ehaneneiate' 7s $10 00
Sept. 16. To county treasurer, pursuant to Poor Law, § 139 ........ 12 50

Chenango County, ss.:

ee be EPOLYS SO Lae SERRE , overseer of the poor of the town of Afton, being
duly sworn, deposes and says that the foregoing account is just and true; that
the amount stated therein to have been received for the support and relief of
the poor is all that has been received by him during the year ending ..........
19.., and that the amount stated to have been expended were actually
and necessarily expended by him for the purposes specified, during such time.

Overseer of the Poor.
Subscribed and sworn to before me,
thisi :..5 day Of s..0sc eae ees » Dhies

Perea en ene eacceerenscesesecce

Notary Public.

‘FORM No. 82,
Report oF OVERSEERS 0: £HE Poor.
(Poor Law, § 27, ante, p. 722.)
(Notz.—The report is to contain the account prescribed in Form No. 81,

brought down from the meeting of the town board before the annual town
meeting, to the second annual meeting of the town board held before the annual
1164 FORMS.

meeting of the board of supervisors; to such account should be added the follow-
ing statement.)

There is in the town poor fund of the town of ................ , on this date,
the sum of ......... dollars and ........... cents. (Ifa deficiency exists, state
amount.)

The sum of ....... dollars and ............ cents is necessary for the tem-
porary and out-door relief and support of the poor of the town of .............. ‘
for the year beginning ............... ,19..

Such estimate is based upon the following facts. (Here state items for which
it will be necessary to raise money.)

Dated. wissersadaaacwass , 19..

Cc. D.,
Overseer of the Poor.

We hereby approve the foregoing account and estimate of the sum required
for the support and relief of the poor of the town of ................ for the year
beginning .............. , 18.,

Dated sours cua ceag Qu
D. E., Supervisor.
F

. G., Justice of the Peace.
H, te a” ” ”
J. K., ” ” ”
L. M., ” ” ”?
N. O., Town Clerk.

FORM No. 83.

REPorRT OF SUPERVISOR OF TOWN TO CLERK OF BOARD OF SUPERVISORS IN TOWNS
WHERE ALL THE POOR ARE NOT A COUNTY CHARGE.

(Poor Law, § 141, ante, p. 724.)

The supervisor of the town of .............. , in the county of ...... see aoa
reports to the clerk of the board of supervisors, pursuant to section 141 of the
Poor Law, as follows:

The number of paupers relieved or supported in said town during the

year preceding the .............. O8Y OF noc ees et Bak , 19.., as

appears from the accounts of the overseers of the poor, was .... ........
Of the persons thus relieved the number of county paupers was ..... ........
The number of town paupers ........... soe aW RS 4 len oa Gees Rergteuer bike maw’
The whole expense of such support was ...... hes’ av ucauhaah ous gia seh ew SRaee cor aaa Qsuswayes
Allowance to overseers for support of county paupers ............... 0 ceeeeeee
Allowance to overseers for support of town paupers ................ os. poe
Allowance to overseers for their services ........ Kereta aiesaretGuacaSons Jone whihees
Allowance to overseers for transportation of paupers ............2005 0  ceeeeces
Allowance made to justices ....... 0... cc cee eee c eee renee ee neee ese Rradiee es
Allowance to physicians, for medicine and attendance .............. ceeeeees
FORMS. 1165

Of the whole number of paupers relieved by the overseers during the year,

they report that there were ......... foreigners, .......... idiots, and ......
mutes. The number of paupers under their charge, at the time of auditing
their accounts. is stated at ..... eeeeeseeee, OF Which ........... Were males and
Sieaiseyhceninee erensane females.

(72 there are any other charges they should be specified.)
I hereby certify that the foregoing is a correct abstract of the accounts of

the overseers of the poor of the town of .............. , for the year ending
CHS? cscssieieud.c 3 gears GAY OL cesevcc hades: , aS the same have been settled by the board
of town auditors.
Dated this ........... day of ........ siete oe sees ecg LD Sve
2 A. B.,
Supervisor.
FORM No. 84.

Notice From OnE Town To ANOTHER (IN A COUNTY WHERE THE TOWNS ARE
LIABLE TO SUPPORT THEIR OWN Poor), REQUIRING THE OVERSEERS OF THA
Town IN WHICH THE Poor PERSON Has a RESIDENCE TO PROVIDE FoR HIs

Support.
(Poor Law, § 42, ante, p. 732.)
County Of ..... cc ccc cece cence ee ss.
To the Overseers of the Poor of the town Of ......cceeeesecs , in said county:
You are hereby notified that A. B., a poor person, who has gained a settlement
in your town, to which he belongs, is in the town of ............ aitesae ee esate » in

said county, and is supported at the expense of the said town of ..............
for which the undersigned are overseers. You are, therefore, required to pro-
vide for the relief and support of the said poor person.

Given under our hands at ........... soy THIS. oc. oss. Cay OL s.ssics-s-0-we0ay LY
E. F.,
Cc. D.,
Overseers of the Poor of the town of ......e.ccccees

(This notice should be served on one of the overseers of the poor of the town
where the poor person belongs.)

FORM No. 85.

Notice oF OVERSEERS OF THE Poor TO APPEAR BEFORE SUPERINTENDENT OF THE
Poor AND CONTEST ALLEGED SETTLEMENT OF A Poor PERSON.

(Poor Law, § 48, ante, p. 734.)

County Of .. cece cece ce cncaes $8.:
To the Overseers of the Poor of the town of ............. , in said county:
Please take notice that the undersigned, overseers of the poor of the town of
1166 FORMS.

sysees ‘a ohawen es «eess.-, in Said county, will appear before the superintendents of the
poor of said county, at-the poor house (or, other place, as may be designated),
on the .......... day Of sccasescaienwnis , at ten o’clock in the forenoon, to con-

test the alleged settlement of A. B., a poor person, as set forth in your notice
OFTHE ie cok ewe caw 51922

J. H.,

I. Si,
Overseers of the Poor of the town Of .ccccccerece

FORM No. 86.

SvuBPoENA IN CaSE oF DISPUTE CONCERNING SETTLEMENT OF Poor PERSONS.

(Poor Law, § 44, ante, p. 734.)

COUNTY OF as<cerene ens 8s.:
The People of the State of New York to C. D., greeting:

You are hereby required, personally, to appear before the undersigned,
superintendents of the poor of the said county, at the poor house (or, such

other place as is designated in the notice), on the ...... ay Of e<arguesc oa ¥
19.., at ten o’clock in the forenoon, to testify in behalf of the overseers of
the poor of the town of ............ » in said county, concerning the alleged
settlement of A. B., a poor person.

Dated at .........., this ........ Gay: Of os 66 ava es aes pb Dione

Superintendents of the Poor.

FORM No. 87.
DECISION OF SUPERINTENDENTS CONCERNING THE SETTLEMENT OF Poor PERSONS.

(Poor Law, § 44, ante, p. 734.)

County of ......-00ee 88.2
The undersigned, superintendents of the poor of said county, having con-
vened as required by the overseers of the poor of the town of .............. , in

said county, pursuant to their notice, proceeded to hear and determine a
FORMS. 1167

controversy which had arisen between the said overseers and the overseers of
the town of ............ , in said county, concerning the settlement of A. B.,
a poor person; and upon such hearing of the facts, the undersigned hereby
decide that the legal settlement of the said A. B. as such poor person, is (or,

is not) in the said town of ........... ...- And the undersigned hereby award
to the overseers of the poor of the town of ............ , the prevailing party,
the sum of ........ dollars, costs of said proceeding, by them expended.
Given under our hands and seals at ...........-.. 5 ChIS: sssionavaws day of
Sons Sate ees teuw vy 19s
sitet. Gebel vie aa Oe oe alee Sie ae [u. 8.]
ee ee Sateen ee Sie eleva asus [u. s.]
Ce ee ee ee Te [x. s.J

Superintendents of the Poor.

FORM No. 88.

SUPERINTENDENTS’ Notice THAT PoorR PERSON WILL BE SUPPORTED AT THE EXPENSE
or A TOWN IN A CouNTY WHERE THE Towns Support THEIR OWN Poor.

(Poor Law, § 46, ante, p. 736.)

County Of ...-ececeeee 88.2
To the Overseers of the Poor of the town of .......sece05 -, in said county:

A. B., a poor person, having been sent to the poor house as a county poor
person, and the undersigned, superintendents of the poor of said county,
having inquired into the fact, and being of the opinion that the said poor
person has a legal settlement in the town of ....... -+-s., in said county,
pursuant to the provisions of section 46 of the Poor Law, you are hereby
notified that the expenses of the support of said poor person will be charged
to the town of ............ , unless you, the overseers of said town, within
Pe aarrate taatites (here insert such time. not less than twenty days, as the super-
intendent shall appoint), after the service of this notice, show that the said
town of ........ .... ought not to be so charged.

Dated at ............, this ........ day Of ....ceeeeeeey 19..

. B,
. D.,
F.,

Superintendents.

QP

tal
1168 FORMS.

FORM No. 89.

DECISION oF SUPERINTENDENTS AFTER RE-EXAMINING SETTLEMENT OF PooR PERSON,
ON APPLICATION OF OVERSEERS.

(Poor Law, § 46, ante, p. 736.)

County of ........005. SS.°
The undersigned, superintendents of the poor of the said county having
on application of the overseers of the poor of the town of ...........-..5- ,» on

whom the notice of which the annexed is a copy was served, re-examined
the subject-matter of the said notice and taken testimony in relation thereto,
do hereby decide that the poor person, A. B., therein mentioned, has a legal

settlement in the town of .............. , to which, as such poor person, he
belongs (or, has not a legal settlement in said town of .............. ).
Given under our hands, at ............, this ........ day of ....... er
19..
A. B.,
Cc. D.,
E. F

FORM No. 90.

Notice oF DECISION OF SUPERINTENDENTS AS TO SETTLEMENT OF Poor PERSONS.

(Poor Law, § 49, ante, p. 737.)

WG 3 ae RaLBSE , Overseer of the Poor of the town of ............000.2
Take notice, that a decision of the superintendent as to the legal settlement
of A. B., a poor person, of which the annexed is a true copy, was on the . sinamia oes
day of ........+..- made and a duplicate thereof filed in the office of the
county clerk of .........- county, on the ........ day of .ssawiscwees » ADs
c. D.,
Superintendent (or, Overseer, as the case may be).

(There is no express requirement that a notice of the decision of the super-
intendent should be served on the defeated parties; but section 49 of the
Poor Law (ante. p. 737), authorizes an appeal within thirty days after the
service of a notice of the decision. The service of a notice similar to the
above form is, therefore, required to limit the time of appeal.)
FORMS. 1169

FORM No. 91.

Notice oF APPEAL TO CoUNTY CoURT FROM DECISION OF SUPERINTENDENTS OF THE
Poor.

(Poor Law, § 49, ante, p. 737.)

COUNTY COURT—CountTy OF ...... Rater hes

 

In the Matter of the Settlement of
A. B., a Poor Person.

 

Take notice that the undersigned, E. F., overseer of the poor of the town

OF ees See aes , appeals to the County Court of ................ county from
the decision of C. D., superintendent of the poor of such county, made as to.
the legal settlement of A. B., a poor person, on the ....... Fra iteaentarhore day of

saved sds Bae ¥ Ca eEN os , 19.., and demands a new trial of the matters in dispute as to
such settlement in the said County Court, without a jury.
Dated: icine. series 3 DOs
E. F.,
Overseer of the Poor of the town of .........065
To G. H., Overseer of the Poor of the town of .........+++ (or other party
interested therein).

FORM No. 92.

Notice or IMPROPER REMOVAL oF Poor PERSON FROM a Town, CIty or CouUNTY.
(Poor Law, § 51, ante, p. 738.)

County of ........e0ee 88.:
TO weicewdd ed ces , Superintendent of the Poor of the county OF sivas eerie seni
(or Overseer of the Poor of the town of ............

You are hereby notified that A. B., a poor and indigent person, has been
improperly sent (or, carried, transported, brought or removed, or enticed to
remove, as the case may be) from the said county (town or city) of ..........
to the county (town or city) of ...............-.0s , without legal authority,
and there left, with intent to make the said county (town or city) of ........... ‘
to which the said removal was made, chargeable with the support of the said
poor person. You are, therefore, pursuant to the provisions of section 51 of the
Poor Law of the state of New York, required forthwith to take charge of the
said poor person.

Given at .......... ...s-, in said county of .............., the ......... day
OF ss iaeeces ee x A9s2

~

Superintendents of the Poor of the county of .......... .. (or, Overseers of
the Poor of the town of ..........000005 ).
1170 FORMS.

FORM No. 93.

Novice oF DENIAL OF REMOVAL OF PooR PERSONS,
(Poor Law, § 52, ante, p. 740.)

County of .......... <i SS
To the Superintendents of the Poor of ............ county:

You are hereby notified that the undersigned, superintendents of the poor
of the county of ............ , deny the allegation contained in your notice,
of the supposed improper removal of A. B., a8 mentioned in your notice to the
undersigned, in the manner and with the intent in said notice alleged.

Given under our hands, at ............ @ RBIS: oes saves Gay Of yc. caw ewes, 19...

Superintendents of the Poor of the county Of ...sesecsecess

FORM No. 94.

Accounts OF OVERSEERS OF THE Poor FoR MONEYS RECEIVED FROM PUTATIVE
FATHERS AND PAID OUT FOR THE SUPPORT OF BASTARDS.

(Poor Law, § 68, ante, p. 748.)

To the Town Board of the town of .........05-4.? -
The following is an account of moneys received and paid out by me on
account of bastards during the year ending .............. , 19..

Receipts.

Jan. 10. From J. N., putative father of R. O., bastard.............. Postigucces
Jan. 12. From J. A., putative father of K. L., bastard.............. isewe es ‘

Expenditures.
Jan. 15. To O., for professional attendance and medicine to M. O.,
Mother of R. R., bastard ....... 0... eee eee cece eee SD cceccaeance
Jan. 16. To J. H., for groceries and fuel to M. O., mother of R. O.,
bastard .......... ia Bs echiow Vib, fa Sane, Sele eidiaie'S creswiais 6 Wee Siem eis aise

Dated ........ sietees LOA
A. B.,
Overseer of the Poor of the town of ............
Gounty Of ...---- eee 88.2
A. B., overseer of the poor of the town of ............., being duly sworn,
deposes and says that the foregoing is a true and just account of all the
FORMS. 1171

mo:eys received and expended by him for the support of bastards and the
maintenance of mothers of bastards during the year ending
19.. That the amounts therein stated to have been received by him were
all the amounts actually received, and that the amounts therein stated to
have been expended were actually and necsssarily expended by him for the
purposes therein specified.

A. B.,
Overseer of the Poor of the town of .......0..0.
Subscribed and sworn to before me, :
this .... day of ........,19..
FORM No. 95.

AGREEMENT UPON COMPROMISE WITH PUTATIVE FATHER OF BASTARD.
(Poor Law, § 74, ante, p. 752.)

Know all men by these presents, that whereas, complaint was made on the

nn AR LSS Cay OF: cases gacdeeces Ge AGG) DELOTE ase 5'e:srtina ss cece ss <p USO a
justice of the peace of the county of ................ (DY aves evenness , on
oath, charging ....... Sens areeiers with being the reputed father of a child, of
which the said ..............5. is now pregnant, and which, when born, will
be a bastard, and likely to become (or, the father of a bastard child, of which
the: said ssa. csscav ce ties x was on the ............ Cay Of ee eceaxenew ses 6 L925
delivered, and which said child is) chargeable to said county; and

Whereas, tne said .............. was arrested on said charge, and brought
DELOKE: woes osacwie ANG: crewed leconcink aes re , justices of the peace of said county,
ANG) 33: gow ie wa gies shape , the father of said child (of which the said .............
is now pregnant) (or, so born a bastard), as aforesaid; :

Now, therefore, ......seeenaes of the poor of said county, for and in con-
sideration of the sum of ............ .. dollars, to ........... ... paid, as such

superintendent (or overseer), and by virtue of the statute in such case made
and provided, do hereby compromise the said charge, and release and discharge

thé Said) sed aces asec ces we from all liability to the ................ , or to the
superintendent of the poor (or oversesr of the poor) thereof, by reason of the
liability of the said ........ sacnveeess CO SUppOrt the Sad i. s.sis ae haus os vane

(or bastard) child, or from any other cause, by reason of the birth of said
(or bastard) child.

Given under ........ hand and seal this .,...... Gay Of .....seesesceeeey 19...
Signed, delivered and duly acknowledeged

in the presence of and before ..........,

Justice of the Peace.
1172 FORMS.

FORM No. 96.

Notice or COMMANDER OF PosT OF GRAND ARMY OF THE REPUBLIC, AS TO RELIEF
OF Poor SOLDIERS, ETC.

(Poor Law, §§ 80 and 81, ante, p. 767.)

TO wevisiedes «+++, Superintendent of the Poor of the county of ..... eneale eitee
(or Overseer of the Poor of the town or city Of .....c.ceeeeeene Js
Please take notice that the ................ post of the Grand Army of the
Republic in the town (or city) of .............005 , county Of .........--.008- or
do undertake the supervision of the relief of the following named veterans of
the war of the rebellion, and their families: .............c cece cece eee ee ene
That the relief committee of such post is composed as follows: ..........++-

Dated 4 as csseeedvcnwss AD a0
A. B.,
Commander of the ......+.s00++- Post, G. A. R.

FORM No. 96-a,

REQUESTS OF OFFICERS OF GRAND ARMY POSTS FOR THE RELIEF OF VETERANS.

(Poor Law, §§ 80 and 81, ante, p. 767.)

TO. wees cn assesses, Superintendent of the Poor of the county (or Overseer of
the Poor of the LOWON) OF os sesvsesiessi ode trace eee
WNETEGS, «0. cece cece ccs , a veteran of the late war of the rebellion, is (state

reasons for necessity of relief; i. e., disability, unable to work, etc.), and is

in need of relief;
Therefore, in pursuance of section 80 of the Poor Law, and the recommenda-

tion of the relief committee of the .............. post, G. A. R., of the town
(or city) Of ........ ee eee eee , which is hereto annexed, we hereby request that
you grant the said ........ seecoeeeee relief to the amount of ........... seis

dollars per week.
Dated .......++.++, 19..
A. B.,
Commander of ............ Post, G@. A. R.
B. C..
Quartermaster.
(The recommendation of the relief committee of the post is to be attached,
and may be in the following form):
FORMS. 1173

Having examined the necessities of ................, a veteran of the late
war of the rebellion, and it appearing that the said veteran is, because of
sickness, unable to care for himself and is in actual need of assistance, we,

the undersigned, members of the relief committee of the ................ post
of the Grand Army of the Republic in the town (or city) of ................ do
hereby respectfully recommend that relief be granted to the said ............. ‘
to the amount of ................ dollars per week.
Dated .......... es , 19

Cc. D.,

D. E.,

E.F

”

Relief Committee of .....ecceeeceees Post, G. A. R.

FORM No. 97.

INVENTORY OF HiGHWAY MACHINERY, TOOLS AND IMPLEMENTS.

(Highway Law, § 49, ante, p. 822.)

DO secede aeaera Rees Supervisor of the Town Of .........e000- vies
County OF x sissies 886 eck ees :
The following is an inventory of the machinery, tools and implements belong-
ing to the town of ............028. , in my control, indicating the value thereof,

and the estimated cost of repairs thereto, which is submitted by me pursuant
to the provisions of section 49 of the Highway Law:

 

 

 

DESCRIPTION OF ARTICLE. Value. Cost of repairs.
Steam roller (give description of kind)........ $2,500 00 $300 00
3 Road machines............ ecipsicns pamaeeten Soares 450 00 75 00

T BIOWS sie. bc ase ois. acoso a eraeter ductde Pkt Bor ates 60 00 5 00

 

 

I recommend that there should be purchased for the use of the town the
following machines, tools and implements, and append thereto the probable cost
thereof:

1 road machine ..........0..000. owes RW ME s iuin ee Ra Ok a Band Oeneales $250 00
3 road SCrapeTS .......-.eeeeeeeee dil etmcaans Sarena ae piiaa a avanas Sutin tes 225 00
Dated ...cecscccesseve, 19.-

JOHN SMITH,

Superintendent of Highways.
1174 FORMS.

FORM No. 98.

Notice TO REMOVE OBSTRUCTION.

(Highway Law, § 52, ante, p. 824.)

To Simon Brown:

The undersigneu, town superintendent of highways of the town of ........6+5
county of ............ ...., hereby notifies you that the highway in such town,
adjoining the premises owned (or occupied) by you is obstructed to the extent
and in the manner following: (describe encroachment or obstruction), and you
are hereby directed to remove such construction (or encroachment) within
thirty days after the service of this notice upon you, and in case of your failure
to so remove such obstruction, J shall cause the same to be removed as author-
ized by section 52 of the Highway Law, and shall assess the cost thereof against
you as authorized by section 55 of such law.

Dated this .......... day of ........0-0.000, 5 19ss

JOHN SMITH,

Town Superintendent of Highways, Town Of .....secesene

FORM No. 99.

Notice To OccuPANT To CuT WEEDS, BRUSH AND BRIERS.
(Highway Law, § 54, ante, p. 827.)

To R. S.. owner (or occupant) of (briefly describe the premises), abutting on
the highway, (describe highway), in the town Of ....cccenscceeee, County
Of v.00 He8 ere ae ers
The undersigned, town superintendent of highways of the town of .......... ;
hereby notifies and requires you to cut all weeds, briers and brush growing
upon the above described lands within the bounds of said highway at some time
during the month of June, 19.., or (in August, as the case may be) as required
by section 54 of the Highway Law; and if you fail to do so, I shall cause the
same to be removed and assess the cost thereof against you as provided in
section 55 of the Highway Law.
Dated this .......... day Of .....ssseeeeeeeey 19..

L. M.,

Town Superintendent of Highways, Town Of ...+...cescee
FORMS. 1175

FORM No. 100.

NoTIcE oF ASSESSMENT,
(Highway Law, § 55, ante, p. 828.)

To R. 8. owner (or occupant) of (describe premises) abutting on the highway
(describe highway) in the town of .....-....04) COUNLY Of ...ccceecceeee?
You are hereby notified that, I, L. M., town superintendent of highways of
the town of .......... seeeee, Will assess the cost of removing the noxious
weeds, briers and brush (or other obstructions, describing them) within the
bounds of the highway above described abutting premises owned (or occupied)
by you, on the ........ day of ........ Sah ae pO ae Abs ecient ca nurases . in
the village of ............ ....,a8 authorized by section 55 of the Highway Law,
and you are hereby directed to attend at such time and place, where I will
hear all parties interested and make an assessment of the cost of such removal
as authorized by such section of the Highway Law.
Dated, ssi sien cecega ews ,» 19..
L. M.,
Town Superintendent of Highways, Town Of ..cssccccecces

FORM No. 101.

ASSESSMENT oF Cost or REMOVING WEEDS, Ec.
(Highway Law, § 55, ante, p. 828.)

To A. S., town clerk of the town Of .......ecceeeeee!l

The undersigned, town superintendent of highways of the town of ..........
spay Sw wikan ts » hereby certifies that he caused to be removed the noxious weeds
brush or briers (or other obstructions, describing them), in front of the lands
owned (or occupied) by the person named in the following list, as authorized
and required by section 54 of the Highway Law; that he caused due notice to
be served upon each of the persons named in such list, a copy of which with an
endorsement of the date and manner of service is returned herewith; that at the
time and place mentioned in such notice he heard such owners, (occupants) and
all others interested, and assessed the cost of cutting and removing such noxious
weeds, brush and briers (and of removing such obstructions) against the owner
(occupant) .whose duty it was, pursuant to section 54 of the Highway Law, to
cut and remove the same; that such completed assessment is as follows:

 

 

Name of owner or occupant,|Premises described. Character of work. Cost.

 

John Wing..... pices bieek'es Saw mill......... Removing lumber. . ..{ $10 00
Allan Doe...... soasicas, «oe | POIM i's eweces .| Cutting weeds, briers, etc.. 4 50

 

 
1176 FORMS.

The above is a true statement of the actual cost of the work performed as
above described.
Date, -siadsuesiatan SF auclatdeee a 5 Ls
L. M.,
Town Superintendent of Highways, Town Of ...+ecsererees

To the Board of Supervisors, County Of .....-.++seeeeee?

The foregoing assessment has been returned by L. M., town superintendent
of highways for the town of ...............- , to the town clerk of such town
and by him presented to us, as provided in section 55 of the Highway Law,

and we hereby certify such assessment to you as required by such section.
(Signed by majority of members of town board.)

FORM No. 102.
APPLICATION FoR PERMIT TO USE HIGHWAYS
(Highway Law, § 60, ante, p. 832.)
Form prescribed by State Highway Commission,

To the Town Superintendent of the Town of .........

ry

COUNTY OF scicnict Stee ARR Ss eae ames e hae ES
The undersigned (a) ........ iegatead eovaybaceereS Sueue , hereby nfakes application to
you for permission (BD) .......c. cece eee eee ee eee , within the portion of the

highway in said town hereinafter described pursuant to the provisions of Section
60 of the Highway Law.

The portion of such highway wherein such work is to be performed is de-
scribed 48 follows (C) ..adeiess vice es saeG ee hae 6c4 wane sega sa oe

Dated this ........ GAY DL +2. cher kaa boone etsy

Applicant.
P.O, AUDATOSS cacacweasa naw secures rons seas

Note.—Blank places in the following application for permit must be filled in
as follows: ;

At the blank space indicated by (a) state whether the applicant is a citizen,
a firm or a corporation and give the residence. If a corporation, state the
location of the principal place where office is located.

At the blank space indicated by (b) describe the nature of the work for which
permit is asked. Under Section 60 permits may be issued for drainage, or
sewer and water pipes. ’

At the space indicated by (c) describe the location of the highway where the
work is to be performed and state whether or not it is a road which has been
improved by state aid as a county road.

This application to be attached to the copy of Permit to be filed in the Town
Clerk's office.
FORMS. 1177

FORM No. 103.

PERMIT FOR USE OF HiGHWays
(Highway Law, § 60, ante, p. 832.)

The undersigned, the Town Superintendent of Highways, of the town of
seeeeceesceeeseey County Of ...............-, upon the written application of
ionenae veceeeess. Gated on ihe edie eese o EY: OF axciwasice estas cncus LOS
and filed with him, as provided by Section 60 of the Highway Law, hereby
grants permission to said applicant to .....ccccec ese e een e ence seccceeeeeteee

on the highway described as follows:............ eget ees ies arses ales

This permit is granted subject to the following conditions:

1, The work authorized by this permit shall be performed in a manner satis-
factory to the town superintendent.

2. The applicant is to keep in good repair all pipes, hydrants or appurte-
nances which may be placed within the bounds of the highway under terms of
this permit and is to save the town harmless from all damages which may
accrue by reason of their location in the highway, and upon notice by the town
superintendent agrees to make any repairs required for the protection and
preservation of the highway; and further agrees that upon the failure of the
applicant to make such repairs they may be made by the town superintendent
at the expense of the applicant and such expense shall be a prior lien upon the
land benefited by the use of the highway for such pipes, hydrants or appurte-
nances.

3. If the drainage, sewer or water pipes or appurtenances which are laid
under this permit are placed in a town road they shali be so placed as not to
interrupt or interfere with public travel upon the highway; and the earth re-
moved must be replaced, and the highway left in all respects in as good con-
dition as before the work was performed.

4, If the work performed is on a road which has been improved by State
aid, such drainage, sewer or water pipes must be placed at least four (4) feet
below and in such a manner as in no way to interfere with the macadam,
shoulders or drainage ditches of the highway and that portion of the trench
which passes under the macadam shall be bored or pipe-driven and in no case
shall the macadam be disturbed. Upon the completion of the work the highway
shall be left in as good condition as before the work was performed and to the

satisfaction of the county superintendent.

Ai ceaebi seeks owen ee: sich esp Wit os stepagecyva avenue. e0 sicinieveie aronaiaty eceieio esse aauane Gibeureete Naeeaasny

5. It is agreed by the applicant that any injury or disturbance of the maca-
dam portion of the highway, its shoulders or drainage ditches which may occur
hereafter by reason of the laying of said drainage, sewer or water pipes and
their appurtenances shall be repaired by and at the expense of the applicant to
the satisfaction of the county superintendent.

6. The said town superintendent may, upon the failure of the applicant to
romply with any of the conditions contained herein, revoke this permit and,
remove any pipes, or hydrants, or other appurtenances which may have been.
placed in the highway under this permit.
1178 FORMS.

7. If the road upon which this permit is issued is at the time of issuance a
town highway, and should it be thereafter improved by State aid as a State or
county highway, it is agreed that the applicant shall, before its improvement at
the applicant’s own expense remove drainage, sewer or water pipes or appur-
tenances which may be placed under this permit and will relay the same in con-
formity with the directions of the engineer in charge of such improvement and
in accordance with the rules and regulations prescribed by the State Commis-
sion of Highways.

Dated this ..... 99 ale atee 68 SateGe a Bc
Gay Of a scswsevssaceescae 19%
ikeicte@iors Seeeenes penceseees 3
Town Superintendent.
I hereby agree to conform to the conditions contained in the foregoing permit.

Applicant.
The undersigned, members of the Town Board of the Town of .........+++ 8%
hereby consent to the grant of the foregoing permit.
Dated: THis a). <coe Seceiaie e.esiarsie's «are
AY OF i530 sdsie sv vieew ss e'ermey LOe%
6 CSe CESK SC Cea tes ee cad oes eRUpervisor:
SRE Na techie ateconekeee Gane Town Clerk.

Justices of
the Peace.

Dated this ............5-e0e- asia

day’ Of scssekcssoewa scot LO
Approved.

County Superintendent.

FORM No. 104.
OrpER AUTHORIZING PLANTING OF TREES.
(Highway Law, § 61, ante, p. 833.)

STATE OF NEW YORK, \

COUNTY OF ...-..-+e5-
This is to certify that the undersigned, town superintendent of highways of
the town of .......---+--56- , county of ................ , has hereby authorized

J. S., an owner of lands adjoining the highway (give general description of
highway), at his own expense, to locate and plant trees along such highway
adjoining premises owned by him, in conformity with the typography of such
FORMS. 1179.

highway, and in accordance with a map or diagram hereto attached and made a
part thereof.
Dated this ............ GAY: Of icc et cuciiwn Gave’ 7 EDs
R. S.
Town Superintendent of Highways, Town of .........008
The undersigned, a majority of the members of the town board of the town
Of esses seereoee, hereby approve of the foregoing order.
(Signatures of majority of town board.)

FORM No. 105.

CERTIFICATE OF AUTHORITY TO CoNSTRUCT AND MAINTAIN WATERING TROUGH,
(Highway Law, § 65, ante, p. 836.)

COUNTE OP aeatersiesve: ;
TOWN OF se% oeierss ragneess i sc

This is to certify that J. D., residing in the town Of ........cseeeeecees 19
hereby authorized to construct and maintain on his own land in such town a
watering trough, in accordance with section 65 of the Highway Law, at a place
in such highway described as follows (describe place) and that if so constructed
and maintained he is entitled to the sum of three (3) dollars, which amount
is payable each year by the supervisor of such town on the order of the town
superintendent of highways.

In witness whereof I have this ........ AY. OF a iiss ewan ee sie , 19.., set
my hand.

(Signed)
A. B.,
Town Superintendent of highways.

Approved by the undersigned members of the town board of the town of
evsiGiane ee aunne Sie eield ERIS aeieiis evens “GAY IOL. Saustdvnws. erasers eves , 19..

(Signed by members of town board.)

FORM No. 106.

STATEMENT OF CREDIT ON Private Roap.
(Highway Law, § 66, ante, p. 837.)

The undersigned, town superintendent of highways of the tewn of ..........
hereby states that J. D. is a resident and taxpayer of said town; that tie
lives on a private road (give location of road); that the work necessary to be
1180 FORMS.

done on such private road during the year 19.. consists of (describe work
which the superintendent deems necessary); that the value thereof is $...... ;
and that the said J. D. is entitled to an order upon the supervisor of such
town for such amount because of such work.

Dated this .......... Cay OF si-aninad sassie ss eas Seb cts
R.S.,
Town Superintendent of Highways, Town Of .esscecceeess

FORM No. 107.
APPLICATION FOR ERECTION OF GUIDE-BOARDS.
(Highway Law, § 68, ante, p. 838.)

To J. D., Town Superintendent of highways, town of .......0ceeeeeee?t

The undersigned taxpayers of the town of ..............4. (or twenty-five
taxpayers of the county of ................ ) hereby make application to you,
as authorized by § 68 of the Highway Law, requesting the erection of guide
boards at the following intersections of highways in such town, to wit: (de-
scribe intersections where guide boards are requested). It is suggested that
such guide boards be in the following form (state inscriptions to be placed
thereon).

Dated, this ......4. GAY OF ...ccscceccecess, 19..

(Signed by taxpayers.)

FORM No. 108.
COMPLAINT THAT TOLL-BRIDGE IS UNSAFE,

(Highway Law, § 72, ante, p. 840.)

COUNTY OF ...... siguientes \ Poe

Town OF. iidgs ea shee eee aes _

L. M., being duly sworn, complains on oath to the town Buperintendent of
highways of the town of ................ , in the county of ................ é
that he believes the toll-bridge belonging to ................ situated on the

(give name of stream), at (describe place), has become and is unsafe for
public use and travel; and that the reasons for his belief are as follows (set
forth reasons).
I.M
Subscribed and sworn to before me,
this ...... day of ............, 19..
G. H.,
Justice of the Peace (or Notary Public).
FORMS. 1181

FORM No. 109.

ESTIMATE OF EXPENDITURES FOR HIGHWAYS AND BRIDGES.
(Highway Law, § 90, ante, p. 853.)

Pursuant to the provisions of section 90 of the Highway Law, I, the under-
signed, town superintendent of the town of ............... . in the county of
ants 6 bone alaveta tent akeraens hereby make the following estimate of the amount of money
which should be raised by tax for the year beginning on the first day of
November, 19.., for the purposes herein set forth. The amount’ set opposite
each item in the column which bears the heading, “Estimate of Town Super-
intendent,” is the amount which I determine should be raised by tax for the
purposes specified.

FIRST ITEM.

Estimate of Amount

HieHway Funp. Town Super- approved by

intendent. Town Board.
For the repair and improvement of town highways, in-
cluding sluices, culverts, and bridges having a span

of less than five feet........ 0... cece cece cece eee arses Dias avacereter'e asa “Diekeia’d sie rece e's

SECOND ITEM.
BripcE Funp.

For the repair and construction of the bridge on the..
duis oS RE BAR eek Sele OS road, crossing the stream
KAOWN) AS: 4.2 ected canes es and located on or

near the property Of ........... cece cece eee e eens G iss.a:5G easels oo 8@ aiace overseers!
For the repair and construction of the bridge on the
LOE Rew eeRe een Seeete road, crossing the stream
KNOWN AS 2.06 eee ss wes etek eds and located on or

near the property Of .....-...ee see e cece eee e eens Sis saeieeeen Deis wsawsan s
For the repair and construction of the bridge on the
Gin scat b'srettats chains ena ener ..-road, crossing the stream
known aS .........+.eeee++++- and located on or

near the property Of ........ eee cece cece eee e eee G ices eisvesielsG Dates. sislewiwee
For the repair and construction of the bridge on the
io tccetgriatiteeecuie ate ...... road, crossing the stream
known aS .........- weeeseee. and located on or

near the property Of ........ cece eee eee e eee e eens Dini sisicieie’ stale’ Bic o'elsinie's' ave
For the repair and construction of the bridge on: the
ehpcceihesraqatars: nina ie atSaeat een road, crossing the stream
known aS .....-.+.- Scpase coneacee and located on or

near the property Of ........ ccs eee cece eee eee eee Des wieisee's siatd Dae leiaislend wats
For the general repair of all bridges having a span of

five feet or more and not included above......... eA ee Sv tiecdiwwee

Total for bridges .......-.-..6. ee aReaer bere Pewwsews aa §
118% FORMS.

THIRD ITEM.
Estimate ot Amount
“ MACHINERY FUND. Town Super- approved b:
For the purchase and repair of machinery, tools and ‘i™tesdent. Town Board.
implements ...... ee dh Ge shsrntcsaieyecctoruveceakouas ciara avaceia aehaues MplaeuRnad were
FOURTH ITEM.
MISCELLANEOUS FUND.
For removal of obstructions caused by snow, cutting
weeds and brush, wire fencing, allowance for
shade trees, allowance for watering troughs and
other miscellaneous purpoSeS........eeeseeceeees Qi ee tapas Si iconeatacs .

Town Superintendent.
Dated wisciisssasescssavavy 190%

APPROVAL OF TOWN BoarD.

We, the undersigned, constituting a majority of the members of the town
board of the town of .................. in the county of ...... eSNG ee srr ees
do hereby approve the foregoing estimate and declare the amounts set opposite
each item in the column headed, ‘“ The amount approved by the Town Board,”
is the amount which shall be raised by tax for the specific purpose mentioned
therein.

The supervisor is hereby authorized to increase the amount of item one of
this estimate to an amount which shall comply with the requirements of
section 90, subdivision 1 of the Highway Law.

(Signed by members of town board.)

Notr.—This form is prescribed by the State Commission of Highways, and
blanks may be had on application.

FORM No. 110.

APPLICATION FOR SPECIAL TOWN MEETING TO VOTE AN ADDITIONAL Sum For HicH-
WAYS AND BRIDGES.

(Highway Law, § 92, ante, p. 856.)

To Simon Smith, Town Clerk of the Town of ..... paacestacy COUNLY OF ove weaves?

The undersigned, town superintendent of highways and members of the town
board of the town of .......... +.+..., hereby make application requesting that
you call a special town meeting of the qualified voters of such town in the
manner provided by law, for the purpose of voting upon the following proposi-
tion:

Resolved, That there be raised by tax in the town of ................ , in the
year 19.., the sum of: $.......... , for the repairs and improvement of high-
FORMS. 1183

ways (or state other purpose for which the additional sum is required) in
addition to the sum estimated for such purpose in the statement presented to
the board of supervisors of the county of ................ , by the town board
of such town, as provided by section 91 of the Highway Law, and that such
additional sum be levied and collected in such town in the same manner as
amounts are levied and collected for other highway and bridge purposes.
Dated this .......... Gay Of i coarse a takes ¢ 1D
(Signatures of town superintendent of highways and members of town board.)

FORM No. 111.

APPLICATION FOR SUBMISSION OF PROPOSITION AS TO HIGHWAYS.
(Highway Law, § 95, ante, p. 862.)

To Simon Smith, Town Clerk, Town of .........eeeeeaeld

The undersigned, town superintendent of highways and members of the
town board of the town of ............ , hereby make application, pursuant to
section 48 of the Town Law, for the submission of a proposition to be voted
upon by ballot by the qualified voters of such town, as provided in section 95
of the Highway Law, at the biennial town meeting (or at a special town
meeting duly called therefor), to be held in the town of ................ , on the
gue ekota Danae day of ................., 19.., for the following purpose and in
the following form;

(Here state the proposition desired to be voted upon.)

And such applicants hereby request that a vote be taken upon such’ propo-
sition at such town meeting.

Dated this «s.so00scweds« Gay OF is ostAwtew a slags es « 19s.
(Signatures of town superintendent of highways and members of town board.)

FORM No. 112.

Town CERTIFICATES OF INDEBTEDNESS IN ANTICIPATION or Highway Tax.

’

(Highway Law, § 96, ante, p. 862.)

Know all men by these presents, that the town of ................ County
Of sith Sot es ee sd chenasess is indebted unto and hereby agrees and promises
to pay ..... fo dees oe Hee (OP OPUS. eisie ais saeiene ee < COUlaTS, ON the 4 ssccs caadeesae
1184 FORMS.

day of .................., Mimeteen hundred and ..........ececeseseees With
interest at six per cent per annum for ...... a aii njaleieye eaunuerera s Games Shaders

eee meme mere rn eer ere meaner seat sense EES OEE ROE EH EEE Hee RE EEO Eee eee ese teserns

Town Clerk.

This certificate of indebtedness is given pursuant to a resolution adopted by
the town board on the .................00. Gay Of soi cwhosidicies score re tae » and

Town Clerk.

Nore.—This form is prescribed by the State Highway Commission.

FORM No. 113.

APPLICATION TO BOARD OF SUPERVISORS FoR AUTHORITY TO IssUE Bonps FoR Con-
STRUCTION OR REPAIR OF HIGHWAYS AND BRIDGES.

(Highway Law, § 97, ante, p. 863.)

To the Board of Supervisors of the county Gf ...........0.02

A proposition having been duly submitted at a special (or biennial) town
meeting, held in the town of ............ 9 ON The. eines: day of ............ ‘i
19.., pursuant to the provisions of sections 48, 53, 57 and 60 of the Town Law,
and § 97 of the Highway Law, providing for the construction (rebuilding, repair
or discontinuance) of a highway in such town, as hereinafter described (or
for construction, rebuilding or repair of certain bridges in such town), and for
the borrowing of the sum of ............ dollars and the issue of town bonds
therefor for the purposes aforesaid, and such proposition having been adopted by
a majority of the electors of such town voting at such town meeting, as will
appear from the proceedings of such town meeting as to such proposition
duly certified by the town clerk, annexed to this petition and made a part
hereto;

Therefore, pursuant to the authority conferred upon us by section 97 of
the Highway Law, we, the undersigned, members of the town board of the
town Of ........eseee- , State of New York, do respectfully petition your
honorable board for authority to construct (rebuild, repair or discontinue) a
highway in such town, described as fo:lows:

(Insert a detailed description of the highway to be constructed, repaired
or discontinued; if more than one highway is to be constructed, rebuilt,
repaired or discontinued, describe each of them; if authority is desired to
construct, rebuild or repair one or more bridges, give the location of each.)
FORMS. 1185

We do further respectfully petition that your honorable board authorize
the said town of ......... ... to borrow the sum of ...... sible dollars,
and to issue its bonds therefor, under such terms, conditions and restrictions
as your said board may legally impose, which sum is to be expended for the
construction (rebuilding, repair or discontinuance) of such highway (or con-
struction, rebuilding or repair of such bridges).

The fair cost and expense of the construction (rebuilding, repair or dis-
continuance) of the highway proposed to be constructed (rebuilt, etc.), is
estimated as follows:

(Insert in items the estimated cost of the proposed improvement, or if
bridges are to be constructed, rebuilt or repaired, the estimated cost of
each bridge and all matters pertaining thereto.)

Dated this ........ Cay Of iene access 5 19s

(Signed by each member of the town board.)

FORM No. 114.

CERTIFIED PROCEEDINGS oF TOWN MEETING IN RESPECT TO SuCH PROPOSITION.

(Highway Law, § 97, ante, p. 863.)

STATE OF NEW YORK,
Conmyry OF . .cucayescu 88.2

Town Of ....5. Bian Bares

Dye pareve ete eS , town clerk of the town of ................, county of
sanetwek eis ganas , state of New York, do hereby certify that at a special town
meeting (or biennial town meeting), held in the town of .......... grok gabon , at
sates, SuNedeus aie Sh , in the village of ................, in Said town, on the ........
Cay Of: cisucies secee% , 19.., the following proposition was duly submitted

thereat to the electors of such town:

(Insert proposition submitted verbatim.)

That there were 410 votes cast for and against such proposition. Upon
a canvass of the votes so cast the following result appeared and was duly
declared and entered:

Votes for such proposition ..... sepistepieleasieaw nedinaeaeeseaee. ' 840
Votes against such proposition ....... say alee wcarererst's safes sic ares 70

In witness whereof, I have hereunto set my hand and affixed the seal of
paid town of ........ , at such town, this ........ day of .......... susuy 19.

(Signed by town clerk with seal of town affixed, if any.)
1186 FORMS.

FORM No. 115.

RESOLUTION oF Boarp oF SUPERVISORS AUTHORIZING IssUE OF BoNnDS FoR Con-
STRUCTION OF BRIDGES AND HIGHWAYS.

(Highway Law, § 97, ante, p. 863.)

AN ACT authorizing the town of .............., in the county of .........--+)
state of New York, to borrow money and issue its bonds therefor, for the
purpose of paying the cost of the construction (rebuilding or repair) of 2
highway (or bridge) in such town (describe highway or bridge).

Passed on the ....... Jee. CRY OE ents ....., 19.., two-thirds of all the
supervisors elected to the board of supervisors of such county voting in favor
thereof.

The board of supervisors of the county of ..............., im pursuance of
authority conferred by section 97 of the Highway Law, and the acts amendatory
thereof, and in pursuance of the provisions of sections 12 and 14 of the County
Law and of sections 6, 7, 8, 9 and 10 of the General Municipal Law, do enact
as follows:

Whereas, the town board and commissioners of highways of the town of
Sieigiiis Mees ..... have made application to this board for authority to borrow
money in the sum of ..... «+eeee-. Gollars upon the credit of said town and to
issue town bonds therefor, to construct (repair, rebuild or discontinue) a high-
way (or for the construction, repair or rebuilding of a bridge), which highway
(or bridge) is located as follows: (Give location of bridge or highway), and

Whereas, it appears that the said highways (or bridges) were destroyed (or
damaged) by the elements to such an extent as to become unsafe for public use,
and that the estimated cost and expense of such construction (repair or re-
building) exceeds the sum of $500, and that such town should be authorized to

borrow the sum of ........... dollars upon the credit of such town and issue
its bonds therefor; now, therefore, be it
Resolved, That the town of ......... «...-, in the county of ..........00008

state of New York, be and is hereby authorized and empowered to issue its
bonds upon the credit of such town to an amount not to exceed the sum of
Meise sis ...... dollars, and to sell or cause’ the same to be sold at not less than
their par value to the highest bidder at a rate not exceeding 5 per cent. per
annum for the purpose of paying the cost and expenses of the construction
(repair or rebuilding) of such highway (or bridge); and

Resolved, That such bonds shall be signed by the supervisor and the town
clerk of the said town of ........... , and that the supervisor of such town shall
negotiate such bonds according to law and as above provided, and that he shall
apply the proceeds of the sale thereof to the payment of the cost and expense
of such construction (repair or rebuilding). That the said supervisor before
issuing or negotiating any of said bonds shall make and execute to the town
clerk of such town in behalf of and for the benefit of such town, a good and
sufficient bond or obligation in the penal sum of .............. dollars, con-
ditioned for the faithful performance of his duties in issuing such bonds, and
the lawful application of the funds which may be realized by the sale thereof,
and of the funds that may be raised by tax or otherwise for the payment of the
bonds issued in pursuance of this act, and the interest thereon, which may
come into his hands. Such bond or obligation so made by the said supervisor,
FORMS 1187 —

shall be approved by the town board of such town and filed in the office of the
town clerk; and be it further

Resotved, That such bonds shall be made payable at the ............... Bank,
in the city of ............... , and that the interest on such bonds shall be
payable at such bank, semi-annually on July ist and January 1st of each year.
That one thousand dollars of the principal sum of such bonds shall be made
payable on the ist day of January in the year 19.., and one thousand dollars
thereof shall be made payable on the 1st day of January of each and every year
thereafter up to and including the 1st day of January in the year 19..; be it
further

Resolved, That before any of the bonds authorized by this act shall be issued,
the supervisor of the town of ......... Pantera tes , Shall advertise for sealed
proposals for the amounts or part thereof, of said bonds so authorized to be
issued, but in amounts not less than five hundred dollars each, such advertise-
ment to be published for two consecutive weeks prior to such issue, in two news:
papers published in the state of New York, at least one of which shall be
published in the county of ................ ; and be it further

Resolved, that the bonds may be issued as coupon bonds or as registered bonds
in the discretion of the town board and that the registered bonds shall be in sub-
stantially the following form, to-wit:

United States of America
State of New York

County of cissasscesuces

Town of ...... Latoua ea gsauess

seis aus seeeveeeeses Bond
NO... cece eee enee Soy hi steriaioee
Know All Men by These Presents, That the Town of .............- , @ municipal
corporation, in the County of .............. and State of New York, for value
received, hereby acknowledges itself indebted and promises to pay to ...........50-
legal representatives, successors or assigns the sum of ..-........... dollars
(Sivgdewaten ety } Jone the: nds wWewawre wins, day of ....... Scare , 19...., with
interest thereon at the rate of ............. « per centum per annum, payable
semi-annually on the ............ Gays Of ics swewases ANG: sAciae oceans eee :
of each year, both principal and interest being payable at .............. Bank in

Lae Ca ae , New York, in gold coin of the United States of America of the
present standard weight and fineness, or its equivalent in lawful money in New
York exchange. ,

This bond is one of a series of bonds of like date and tenor, except as to date
of maturity, aggregating the sum of .............. dollars, and is issued for
they purpose: Of: sce sessccstad arouse oaniaGa ewe cee see Gemegea Trace eye a ae as ox sia cavautne stain estan ee a

Pe eee eer ee ee

pursuant to and in strict conformity with the Constitution and statutes of the State
of New York, including among others, Section 97 of the Highway Law, Section 14
of the County Law, and the General Municipal Law and the Town Law, and pur-

suant to acts and resolutions of the Board of Supervisors of .............- County
passed on the .............. ay Of sasesaarnees sacs , 19..., and pursuant to reso-
lutions and proceedings of the Town Board of the Town of ............-. , duly

adopted and taken.

This bond is registered in the office of the Clerk of said Town and is trans-
ferable only by written assignment duly acknowledged or proved, such transfer to
be endorsed hereon by said Clerk and entered on the books of said Clerk kept in
his office for that purpose.
1187a FORMS.

It is hereby certified, recited and declared that all acts, conditions and things
required to exist, to happen and to be performed precedent to and in the issuance
of this bond have existed, have happened and have been performed in due time,
form and manner as required by law; that the amount of this bond together with
all other indebtedness of said Town does not exceed any limit prescribed by the
Constitution or statutes of the State of New York; that provision has been duly
made for the levy and collection of an annual tax sufficient to pay the principal
and interest of this bond as they respectively become due and payable and that
the full faith, credit and resources of said Town of .............- are hereby
irrevocably pledged to the punctual payment of the principal and interest of this
bond.

In Witness Whereof, the said Town of .............. has eaused this bond
to be signed by its Supervisor and signed and sealed by the Town Clerk, and
this bond to be dated the .............. ay Of wie cajuee eames , 19....

LOW Of: jos ose ss eases ehie eh SOR OS :
BY ss vseuie sa nowss rem eer eecccee
Supervisor.

Town Clerk.
[FORM OF REGISTRATION]

No writing below except by the Town Clerk of the Town of ....... ooeevee
Signature of
Date of Registry: Name of Registered Owner: Town Clerk:

Pewter me meer ee eee ce er ene aren nr ar eae eeceraneaneses  seveseseresssenscee

If the bonds shall be issued as coupon bonds, then said bonds and coupons shall
be in substantially the following form, to-wit:
United States of America
State of New York

County OF siciceteaiuerss ae

TOWN Of iced darcne ie ie

bis harewe Sewanee. se ware Bond
No iesi.c cere vases Diane ciaisiein's icine
Know All Men by These Presents, That the Town of .............., & municipal
corporation, in the County of .............. and State of New York, for value
received, hereby acknowledges itself indebted and promises to pay to bearer the
Sum Of 6 isis ca gauss % (Bs x cavan’s }oom “ChE. ase tae sine da ace day Of siice avast sees .
19..., with interest thereon at the rate of .............. per centum per annum,
payable semi-annually on the .............. days Of ssiaeiinee dice and
sae sor wees of each year on presentation and surrender of the respective inter-
est coupons hereto annexed; both principal and interest being payable at the
Sepa Seah Bee Bank in .............., New York, in gold coin of the United

States of America of the present standard weight and fineness, or its equivalent
in lawful money in New York exchange.
This bond is one of a series of bonds of like date and tenor, except as to date

of maturity, aggregating the sum of .............. and is issued for the purpose
of

Smee meee were eter ee aer reser ase esse neseeesreseneces Cee man oresererecavesers

PaO Om ert teeta ar ee ee Ce ea gr or Ter ee Comme een eran arena sesnee

pursuant to and in strict conformity with the Constitution and statutes of the
State of New York, including among others, Section 97 of the Highway Law, See-
tion 14 of the County Law, and the General Municipal Law and the Town Law, and
pursuant to acts and resolutions of the Board of Supervisors of
County passed on the .......+.++... day of ......+.0.+..., 19..., and pursuant
°

FORMS. 1187b

to resolutions and proceedings of the Town Board of .............. duly adopted
and taken

This bond may be converted into a registered bond in accordance with the pro-
visions of the General Municipal Law.

It is hereby certified, recited and declared that all acts, conditions and things
required to exist, to happen and to be performed precedent to and in the issuance
of this bond have existed, have happened and have been performed in due time,
form and manner as required by law; that the amount of this bond together with
all other indebtedness of said Town does not exceed any limit prescribed by the
Constitution or statutes of the State of New York; that provision has been duly
made for the levy and collection of an annual tax sufficient to pay the principal
and interest of this bond as they respectively become due and payable, and that
the full faith, credit and resources of said Town of .............-.--- are hereby
irrevocably pledged to the punctual payment of the principal and iinterest of
this bond.

In Witness Whereof, the said Town of .............. has caused this bond to
be signed by its Supervisor and signed and sealed by the Town Clerk, and the
coupons hereto annexed to be signed with the lithographed fac-simile signatures of

said Supervisor and said Town Clerk, and this bond to be dated the ................
day of ..........006- pl Dees
TOWN Of sis seedix tes we yea wee eee eee ss
Bp ca schcit sais eee Sia acts’ lenge Rea er ISS
Supervisor.
Toun Clerk.

There shall be printed on the back of each bond a conversion certificate and
form of registration as follows, to-wit:
[Form of Conversion Certificate]

Upon presentation of the within bond with a written request of the owner
thereof for its conversion into a registered bond, we have this day cut off and

destroyed ............0.00000- coupons attached to said bond, numbered from
Seas ftaeds Syd, aera’ SR to ............... of the amount of $............... each, and
the interest at the rate of ............ per centum per annum, payable semi-
annually on the .............. days Of ise cscs sen ees ONE ese jene ctu ons of
each year, as was provided by the coupons, as well as the principal is to be paid
10 easaninees » legal representatives, successors or assigns, at the ............
BODE AM es <5, ce sasst aor orators oS eegac vs So aieee BM SoM AE case Ove tas ee ETE DE age eras seuenaeare ki
aro ereetec acs eles siscselaravundis acento? acre O's SPORE Aree Take se sewiewswe dace: NEW LOrk:
Dated, ..... Sore , 19
Town Supervisor of the Town of .........0000.
New York.
Town Clerk of the Town Of .........eeeseeeeees
New York.
[Provision for Registration]
No writing below except by the Town Clerk of the town of ................. :
Signature of
Date of Registry: Name of Registered Owner: Town Clerk:

Geter Sela iene’ laid east ve), 0: ‘ rr er ey ee ee ar
Diccgrers ae aerate ewe ||| ye DRE SE ES RR RE IR i Gece eree eee en WE

The coupons attached to said bonds shall be in substantially the following form,
to-wit:

NG; 33. d0ce sears Dacia eater wing

The Town of ............-. in the County of .............. , N. Y., will pay
to the bearer on the ..........+--+-4-- Gay -Of sfucies Gages execnd , 19...., at the
sok deetasse i usithaiiesescecaatiec Bank il sev ser casennaress Ne Vos oe aueccccesgeerp. dollars

se ae Rida as Bvcnees ace ) in gold coin of the United States of America of the present
standard weight and fineness, or its equivalent in lawful money in New York ex-

change. being .....----+-++: months’ interest then due on its ..............
bond, dated -..-..ee.ee0es § 19s ncig Nr vencs tame aas see
dpiaaieteve ears pr ma
alovaterale so ats es ere ree

The bonds shall be signed by the Supervisor of the Town and sealed and signed
by the Town Clerk and the coupons annexed to said bonds may be signed with
the lithographed fac-simile signature of said Supervisor and said Town Clerk.
1188 * FORMS.

coupons shall be signed by the said supervisor and the said town clerk; be it
further

Resolved, That the board of supervisors of the said county Of 6 iene ces seaseieseiaentis
shall assess and levy upon the taxable property of the said town of .........-- ‘
a sufficient sum to pay the principal and interest of said bonds from year to
year as the same shall mature, and the supervisor of said town of .......------ ;
shall report the amount of said principal and interest to the said board of super-
visors as required by law.

CERTIFICATE OF CHAIRMAN AND CLERK OF BOARD.

STATE OF NEW YORK,

COUNTY OF ..........

We, the undersigned, chairman and clerk of the board of supervisors of the
county of ............. , for the year 19.., do hereby certify that the foregoing
is a true copy of an act passed by the said board, by a two-thirds vote of all the
members elected thereto, on the ........... Gay: Of ....s6. ssAdwe es 5 A9e's

(Signed by chairman and clerk of board.)

FORM No. 116.

STATEMENT AS TO ASSESSED VALUATIONS OF TowNS AND Moneys RAISED FOR
HIcgHwWays.

(Highway Law, § 100, ante, p. 866.)

To the Comptroller of the State of New York, and to the State Commission of

Highways:

The following is a statement, submitted as required by section 100 of the
Highway Law, of the amount of tax levied by the board of supervisors of the
county of ............. upon the several towns therein, at their annual session
in the month of ..........-+. , 19.., for the repair and improvement of high-
ways, including sluices, culverts and bridges having a span of less than five
feet, pursuant to sections 90, 91, 92, 93, 94 and 95 of the Highway Law:

 

 

 

Hicuway Tax.

 

Assessed
valuation of Assessed Assessed axe
Real valuation of | valuation of
Name Property in Real Personal
or whole EFroperty ex- | Property ex- Ordi- Addi- Extraor-
Town. town, in- elusive of all | clusive of all nary tional dinary
eluding incorporated | incorporated H. L. H. L. HL. :
incorporated villages. villages. § 90. § 92. § 93. 3
villages. g

 

 

I certify that the preceding statement is correct.
Chairman, Board of Supervisors.

Clerk of Board of Supervisors.
FORMS. 1189

STATE OF NEW YORK, .
COUNTY OF .......... i ees

enhene ......., being duly sworn deposes and says that he is the chairman of
the Board of Supervisors of ............. county, that he has read the fore-
going statement and that the same is true, to his own knowledge.

Subscribed and sworn to

before me this .......... Gay Of .cecsecscccesy 19..

Poeererrercscsenacsessececes

FORM No. 117.

UNDERTAKING OF SUPERVISOR FoR HigHWwAay MONEYS.

(Highway Law, § 104, ante, p. 869.)

Know all men by these presents, that we .............-00008: , as supervisor
of the town of .................. in the county of ..............5. , and state
of New York, as principal and ................. by occupation a .............
OP airs eure S Goualtouacaeyeia NwOY, ANG cacciccss Sei dre ets by occupation a .............
OE ovat svevereiavere @ araiicrese os Ni Wey ADO. oi cae ova by occupation a .............
OE tase e255 casa bb wes a ee aaa N. Y., as sureties are held and firmly bound unto the
TOWN! Of isi vinnie c ested eeanvencsrs » COUDLY Of: oss caizioewaw ueaes , and state of New
York, in the penalty of ................... dollars to be paid to the said town
OES coeahaveealaieane aban Geaepe ,» for which payment well and truly to be made we

bind ourselves, our heirs, executors, administrators and assigns jointly and
severally, firmly by these presents.

Sealed with our seals and dated this .......... «. Gay Of oo... cece eee eee ,19..

The conditions of this obligation are such that whereas there was raised by
tax in the year 19.. upon the taxable property of the said town of .............
the sum Of .........--.0 eee dollars, for the purpose specified in section 90 of
the Highway Law of the state of New York, and whereas the amount of money
which the above bounden ................. as such supervisor wiil receive as
state aid in accordance with the provisions of sections 101 and 1038 of the said
Highway Law will aggregate the sum of ............. dollars, making the
total amount to be received by the above bounden ............. as such super-
visor for all purposes specified in section 104 of said Highway Law the sum
OF ekg dt etoentace dollars.

Now, THEREFORE, if the bounden ................---005- , a8 supervisor, as
aforesaid, shall safely keep, faithfully disburse and fully and justly account for
and pay over all highway moneys levied and collected as provided in article
V of the Highway Law aforesaid, all moneys collected as penalties under said
law, or received from any other source and available for highway, bridge and
1190 FORMS.

miscellaneous purposes and all money received from the State, as provided in
section 101 of said Highway Law, then this obligation to be void, otherwise to
remain in full force and effect.

SAG Saeco oeaniote Saeco secon ata Ls
peas oe Sabsered Maeade SB base aus ees L. §
eh ssSbuitin a pia hea owen ge oe eae Reh ade L. 8
Saeirint oe GoheRet a a eis saesale cious aiaanres L. 8.
ACKNOWLEDGEMENT,
STATE OF NEW YORK,
COUNTY. OF sence csigaginek Sees S8.¢
TOWN OF somes seeenacanaes
On this: 22scde secu. GAY. 200 dec its cecindes , 19.., before me the subscriber
personally appeared .........c cece cece eee receees ( Aen Re retaStie tease ete :

to me personally known and known to me to be the persons described in and
who executed the within instrument, and they severally duly acknowledged to
me that they executed the same.

Justice of the Peace or Notary Public.

JUSTIFICATION,

COUNTY: OF dic ssnsivnrve cay
TOWN: MOR gp iisegscras eieeaieie: 3 Wiban

sid Sima pec Oa Loteeh as Sun dsaagtaaataietarelo we , being severally and duly sworn each for
himself deposes and says: That he is one of the sureties named in the fore-
going bond or undertaking, that he is a freeholder or householder within the
state of New York, and is worth over and above all debts and liabilities which
he owes or has incurred and exclusive of property exempt from levy and sale

STATE OF NEW YORK,
ss

by virtue of execution. The said ................00.- , that he is worth the
SUM! OF isc-ccigsies pars neces Haines 3 the said ........... wveleade ae , that he is worth
the sum of ..........2200- siete ocd THO-SAId occ seicns wieiais cate -....-., that he is
WORN: « ss5 p20. 839 RES Ts Ss Bee Hee aS (Signed by all sureties.)

Subscribed and sworn to before me this ........ day of ..... ove, 19...

Justice of the Peace or Notary. Pubdlic.

APPROVAL OF TOWN BOARD.

‘We, the undersigned members of the Town Board of the town of ........ wey
do hereby approve the foregoing bond or undertaking as to its form, manner
of execution and sufficiency of sureties therein.

Dated ..cccccccccccsceser, 19..

C10) eared ale Gie’s, eieletavein s/eleie wie a Sibiesa atwiale sw ares

Ce om es ar eeaeeerereseersccerene
COCKS OREO OAD Eee oe nee reevene

Justice of the Peace.
FORMS. 1151

CrrriricaTe oF Town CLERK.

STATE OF NEW YORK,
COUNTY OF ............0005 88.2
TOWN OF ....ceeeceeee sees

Ty anatiand eodigawodeses , Town Clerk of the town of ......ccceeeeseeess. GO
hereby certify that the foregoing is a true copy of a bond or undertaking filed
in my office on the .............. day of ..... Saisie’ WRie eS okt , 19.., and the

whole thereof, together with the approval of the Town Board of said town and
all endorsements thereon.

Town Clerk.
Notr.—This form is official. Blanks are obtained on application to the State
Highway Commission.

FORM No. 118.

AGREEMENT FOR THE EXPENDITURE OF HIGHWAY MONEYS.
(Highway Law, § 105, ante, p. 869.)

This agreement entered into this ................ AY Of os scateie vieveia se sistepareteteen
19.5 DY And DEtWEED ccs vv siae se ahen se eaeess , Town Superintendent of the town
OF wseceees seeesceseseees and the undersigned members of the Town Board of the
‘Town of ...... Stolen de wieceree ee , County of .2sencecaiecavcas ves constituting a
Board for the purpose of determining the places where, and the manner in
which, the moneys levied and collected in said town and received from the State
as State Aid shall be expended for the repair and improvements of highways,

Witnesseth: That the said moneys shall be expended for the following pur-
poses, and in the following manner:

1. It is agreed that we hereby set aside for the general primary work upon
the highways in said town an average sum of .......... Sia meeees . dollars per
mile, for ....... Sones, Sars miles, which is the total mileage of highways within
the town as determined under sections 69 and 102 of the Highway Law; said
amount to be expended by the town superintendent in cleaning the ditches and
culverts and opening the outlets thereof, removing stones from the beaten track
of the highway, filling depressions and honing or rut scraping the highways as
occasion and conditions may require.

2. It is agreed that we set aside for the repair and construction of sluices,
culverts and bridges, having a span of less than five feet, and for the removal
of waterbreaks or so-called thank-you-ma’ams, the sum Of ......ceeeeseesees
dollars.

3. It is also agreed that we set aside the following sums for the permanent
improvement of highways, exclusive of sluices, culverts and bridges having a
span of less than five feet, but including tile draining at such points as may
be directed by the county superintendent upon the following named roads:
1192 FORMS.

On the road commencing at .............0++ 2 sittin Ss and leading to
Sa ee RAY OSA Ree eS esua , a distance of .......... miles there shall be expended
the sum) Ofc je.0i40 sales ces sie aes dollars for the following kind of improve-

ment (describe improvement). (Describe in same manner other places in town
where improvements are to be made.)

It is understood that the plans and specifications prepared or approved or
directions given by the county superintendent shall be in accordance with the
provisions of the highway law and the rules and regulations of the Commission,
and that in case of any question or questions which may arise pertaining to
such plans or specifications or directions furnished or given by the county super-
intendent, that such questions may be submitted to the Commission for ad-
justment.

It is understood and agreed that permanent improvement of highways shall
mean the widening of the public highways to twenty-four feet when practicable,
the establishment of new ditches, fall or early spring plowing, shaping and
crowning roads by the use of the road machine, the reduction of grades, cutting
and filling, blasting rock, eliminating sharp curves, tile draining, and such
other class of improvement as may be performed in accordance with the plans
and specifications furnished or approved by the county superintendent or
directions as he may see fit to give; and

It is also understood and agreed, that in the shaping and crowning of the
highways by the use of road machines for grading and scraping, all work of that
character performed shall be completed prior to the first day of June excepting
that a special permit is granted for certain pieces of work by the Commission
upon the recommendation of the county superintendent.

In order that the district or county superintendent may, under the rules and
regulations prescribed by the Commission, exercise the supervision required by
Section 33 of the Highway Law, it is understood and agreed that no moneys
set aside for permanent improvements as hereinbefore specified shall be ex-
pended nor shall any work be undertaken until the town superintendent has
received a written permit from the district or county superintendent approving
thereof and a copy of the same filed with the supervisor.

4. It is also agreed that there be reserved in the hands of the supervisor the
SUM Of 8! ssascdeccs eee ees (This amount must not be less than ten per cent of
the amount of money raised by tax, together with the amount of money paid as
State Aid). as a contingent fund, to be paid out upon the order of the town
superintendent in accordance with written directions of the county superin-
tendent, a copy of which must be filed with the supervisor. This fund is for
contingencies arising subsequent to October 31st, and to meet deficiencies which
may occur in numbers 1, 2 and 3.

Signed on this ............ day of ...... Sisine Rayos raters Pa ee

KKK REMERRD 8 5 Sk One eee Re Supervisor.
dfs SRA EES eeeeeceee TOWN Clerk.

be Ste G- tev atistasave aaron 9s megtes eave Justices
of the

Town Superintendent
FORMS. 1193

The foregoing agreement is hereby approved.
State Commission of Highways.
aero jad B fobraed 9 oe leer tengo cagneces ae IBY: oid 32a hat eied ness ba Sitters SU ee
County Superintendent Deputy Commissioner.
Note.—In making up this agreement the following amounts must be included,
and the items of receipts and expenditures must balance.

RECEIPTS.
Balance, highway fund, from previous year...... Deepa hee ed avenies
Town highway tax levied .............. cece eee Sete euale:
State aid to be received............. cee cece cee eee Sistine wie
Total sive vecownces din /iavelbctias'e aq aeaier & eterirana aleteilege awd Geiene ae i Pawnee aereeelee

EXPENDITURES (as agreed upon).

1—Average per mile, $........ LOR forsis-cl gece’ miles $..... eats sinters
2—For repair and construction of culverts, sluices,
and bridges having a span of less than five

feet and removal of waterbreaks ............ Dis akcadiars. cavers 5

38—Total special appropriations .................. Ge Bsitoacua ptarseae

4—Reserve fund ........ cc ccc s cece ccccvcrceveces $e Gre samaneaan
Ota: csgaace nieces aces aialg a ghaie Siete Guana ee ae Dies cnitee Sines iit wis stoees

Note.—This form is official. Blanks are obtained on application to the State
Highway Commission.

FORM No. 119.

Report OF SUPERVISOR AS TO Highway Moneys.
(Highway Law, § 107, ante, p. 871.)

To the Town Board of the Town Of .......eeeecevenl
Tis asen's Geadleyintites aeaemece , supervisor of the town of ................ , hereby sub-

mit the following report of highway moneys, as required by § 107 of the High-
way Law, for the year ending October 31, 19..

a
HIGHWAY FUND.
RECEIPTS.

Balance on hand from previous year............. eet ei
Highway tax, collected pursuant to sections 90 and

GO tiga tee bingo arise seem vactieal eh eaten saleeteteicaais
‘Received from State as State aid pursuant to sec-

+iOT 101 asset Sem wae ais wise ale a alausionece eee eeauinne 6s eee engeeece

Received from certificates of indebtedness under
SECTION 92 wc cwscccccccscccccccesccsesessecces aidipy avavereace’ara'es
1194 FORMS

Received from certificates of indebtedness under

SECTION! 193 — cries Vani Sack 2 eae Raewicree 0 eae ecesccoce
Received from certificates of indebtedness under
Section 95 sssese ss: eeavieeeas se ciecnedyeesees es savages tate sisters
Received from certificates of indebtedness under
SECtlON 96. coin catyle Mv adie eens Awe ae eee ee
Received from the sale of bonds under sections 97 ........- e's
ANG: 98) koe e Siayecdss Marina sed aunts shldee RRS Shae Gee ee Sielere ale wie
Received from penalties recovered .........-2005 0  ceeeeeeee eels
Received by transfer from.................. FUNG Ahi. sees Sits
Received from other sources not mentioned above.
Deseribe: souneé: <.sc22o.cntees sataavataee desu dae aeeas Risto
Total receipts ..........- cece eee eee eens t rer seems
EXPENDITURES.

For labor and team work for the repair and im-

provement of highways ..............eee eee Sie ve jaus se he
For rental of machinery, pursuant to section 50.. ........ Avera
For materials for highways and bridges having a

span of less than 5 feet.o..cceciwecscseeneaees: sbetnewees Be

Total expenditures for the repair and im-
provement of highways ............. Dies vaeaeds Sates? ce

Balance unexpended October 31, 19..... Z

BRIDGE FUND.

RECEIPTS.

Balance on hand trom previous year.............. $i scans scawes
Tax received from collector pursuant to sections

OO cand: Oli aca tants J caldetoe wetness dunce etiar Waanneaeeve oe
Received from certificates of indebtedness pur-

suant to section. 92 ... ce... veer tec aces Sse eee eee *
Received from certificates of indebtedness pur-

guant. to: seCtion, 93> .3cs0ssces tee Geet aes. Gawd eae edese 4
Received from certificates of indebtedness pur-

Suant to section 95: asso. cc ceicaceserseeieeee ates emes oy
Received from certificates of indebtedness pur-

guant to S6CtlON 96. 4 cece. eats oa Rea ee eRe bres Keceee en .
Received from sale of bonds under sections 97

ANG. 08. Ss esi neta y eee wens eaten s men ea Saeed es :
Received by transfer from .......-......-... TUNG: esc wept oo Gre
Received from other sources not mentioned above.

Describe SOULCE 2206s a onee tate eee dees, Pe edeaw vs lefes

Total receipts for repair and construction
of bridges ..........eeeee- $6a eee ee $ cs mah eae

——
FORMS. 1195

EXPENDITURES.

Labor and team work for repair and maintenance

Of DEIGF ES) wo were dares Sekar at mtn Panne ahve De atciies Solbiereis
Materials for repair and maintenance of bridges.. ....... ia avai
Construction ot new bridges ........... saeie eras iitete ¢ eves a
Transferred to ............ ohana aeevavens 2 a akote fUNG 2a saeeaeaes

Total expenditures for repair and mainte-
nance of bridges ............00ceeee a Sieves aces

Balance unexpended, October 31, 19..... > Ssccuee,

MACHINERY FUND.

. RECEIPTS.
Balance on hand from previous year............. Bink 0 ersininves eine
Tax received from collector pursuant to sections
Oe ENN OA | ss ie rats aeegtle caw Aa areal gaa atanarw se ee eae #8 aerate:
Received from certificates of indebtedness under
section! 92) aveactd aon Geet ster ieee Sees ees Sas talareune oe
Received from certificates of indebtedness under
SCCtion 95) ccats Fewwwed sav awe ee eae eaed se  waaee ee eta’
Received from certificates of indebtedness under :
section, 96 css.se4seceeesameakeeedamedneineen es pedeaaeaee aie
Received by transfer from ................. TUNG! hx savsianecarere m
Received from other sources not mentioned above.
DESCribe. iSOUTCE. sicieiccsuek ieee anae nies: oea cages 4
Total receipts: .45 so0e8 ss sewed aioe ge sarans Gieieis seeds
EXPENDITURES.
For purchase of machinery, tools and implements. $...... oi glavele-s
For repair of machinery, tools and implements.... ....... weties
For storage of machinery, tools and implements.. ....... aisles
Transferred to ......... i UiSiaue seaveeauacsevnate hae fund .......... te
Total expenditures .........ccc ccc eceeccccene Si wew oxen x
Balance unexpended, October 31, 19....... Bicones B

SNOW AND MISCELLANEOUS FUND.

RECEIPTS.
Balance on hand from previous year.............. Sicawe die as aeets
Tax collected pursuant to sections 90 and 91......  ....... sate

Received from certificates of indebtedness under
SECTION 92 ..ccccccccccteccenecsncsancsssssss shestestecne
1196 FORMS.

Received from certificates of indebtedness under

SOCOM 98) swcdc das Ha tsaae Deca He eed ese acacciaiece eteia wie
Received from certificates of indebtedness under
SCCtlOn: 95. wadeia seed esncad ert wat ve knee ee me shoals sigeleie’s
Received from certificates of indebtedness under
SOC ON 96> jaws ceseety Poth eens wee pew eave) cE es Sareea S
Received from sale of bonds under sections 97 and
98) iow FE ee diay Sod toate cds ange tee dues Bake RE REY Aaa siaeieie
Received from assessments for cutting and remov-
ing weeds and brush .......cccccceesccccssee seceecseeces
Received by transfer from................05- fund ws aseee. chotets
Received from other sources not mentioned above.
IDESCrIDE: SOUFCE secede rasvecii sn amend asauenes  eoaaa awe .
Total. Teceipts: soc Vus ews ees Gow Soca ey Srerieniensee
EXPENDITURES.
For removing obstructions caused by snow...... Sie ane Stacees
For cutting and removing noxious weeds and brush ....... ewe
Forwire. for Tencingy. s.< caves srogiedaisiotsanalaralets eae. Arad sais Gee ety *
For allowances for shade trees ............0. 005 cece teenies é
For allowances for watering troughs ............  secceeeeees ‘
For other miscellaneous purposes. Describe the
PUPPOSE. - Sxdcarcnca wien oskmneed Whee Sa Banat a BANA ew Se ;
Transferred to ....... Patera oR e eee Sad Fund. $a... secs oie
Total expenditures ..icacaiacaccecua venus sa Se vscuionyed we
Balance unexpended, October 31, 19...... Giga perenne

CoMPENSATION TO TOWN SUPERINTENDENT AND DEPUTY TOWN SUPERINTENDENT.

ah Ptah days at $........ per day equals ................ $. oe eee e eee
Amount allowed for OXPCNSES! s.gey ee Wes bas caw bs aenenes die he aides Di Ais Tee iere ¥0

DertutTy Town SUPERINTENDENT.

SupERVISOR AND TowN CLERK’S ALLOWANCE.

How much is allowed the supervisor pursuant to section 110 of

the Hithway Daw? ue wessadeundaeaeiee pea Sea sake wes cede bare 9% ssw ees ee
How much is allowed the town clerk pursuant to section 110 of
the Highway Liaw?! sc. 2 svases scale ex ket vn naa van weet saa’ ioe oasd ciao

Layine Out, ALTERING OR DISCONTINUING HIGHWAYS.

How much was expended during the past year for the purpose
FORMS. 1197

STATE OF NEW YORK,
COUNTY OF ........... bes

pRhieN Ts AES SRW as , Supervisor of the town of ...........e000: ale siaCeueeuere See
being duly sworn deposes and says that he is the person mentioned as sub-
mitting the foregoing report; that the amounts stated therein to have been
received by him as supervisor of such town are all that he has received as such
officer for the purposes therein stated; that the expenditures specified therein
have in fact been made for the purposes and to the persons indicated; that all
of such expenditures were made in good faith, for value received and in the
manner required by the Highway Law; that the balances therein specified are
all the moneys remaining in his hands of the moneys received by him as pro-
vided by law on account of the highways and bridges of such town.
ert etre Seatac osiarRatee is
Subscribed and sworn to before me, this
ese eee Gay Of seciesacieny 196%

Justice of the Peace.

Note.—This form is official, Blanks are obtained upon application to the
State Highway Commission.

FORM No. 120.

Orver Layine OuT HIGHWAY ON RELEASE FROM OWNERS.

(Highway Law, § 191, ante, p. 908.)

Application having been made to me, town Superintendent of highways of the
town of ............ ; by L. M., a person liable to be assessed for highway
taxes in said town, and a release from the owners of the land through which
the highway is proposed to be opened, having been given.

It is hereby ordered and determined that a highway shall be, and the same
is hereby laid out in said town as follows: Beginning (here insert the survey
bill), and the line of survey shall be the center of the highway, which shall
be esisxceess rods in width.

Dated this ........ day of ............, 19..

A. B.,

fown Superintendent of Highways.
1198 FORMS.

FORM No. 121.

DEDICATION OF LAND AND RELEASE OF DAMAGES,

(Highway Law, § 191, ante, p. 908.)

Know all men by these presents, that I, R. S., of the town of .......... Lisie eyecey
in the county of ............ , N. Y., for value received, hereby dedicate to
the town of .............. , aforesaid, a strip of land across my premises in

said town, for the purpose of a highway, described as follows: (Here de-
scribe premises dedicated.) And I also hereby release said town from all
damages by reason of the laying out and opening of said highway.
In witness whereof, I have hereunto set my hand and seal, this ...... 38
[seaL] day of .............., 19..

FORM No. 122.

Orper LAYING OvT or ALTERING A HiGHway WITH THE CONSENT OF Town BoArp.
(Highway Law, § 191, ante, p. 908.)

Written application having been made to me, town Superintendent of high-
ways for the town of .......... , by L. M., a person liable to be assessed for
highway taxes in said town, and the written consent of the town board of
said town having been given as prescribed by law, and releases from damages
having been executed by the owners of the land through which the proposed
highway is to be opened, copies of which are hereto annexed, the consideration
paid to any one claimant for such damages, not exceeding $100, and of all the
claimants not exceeding $500;

It is hereby ordered and determined that a highway shall be, and the same
is hereby laid out in said town as follows: (Here insert survey bill.) And

the line of survey shall be the center of the highway, which shall be..........
rods in width.
Dated this ........ AY Of pics ee en ed nae 5 AD ene
A. B.,

Town Superintendent of Highways,

Town Of ..ccccccccace
FORMS. 1199

FORM No. 123.

RELEASE OF DAMaGES BY OWNERS OF THE LAND.

(Highway Law, § 191, ante, p. 908.)

Know all men by these presents, that I, R. S., of the town of
county of .............. , N. ¥., for and in consideration of the sum of ........
(not exceeding $100), hereby consent that a highway be laid out and opened
(or altered) across my premises in the town of .............. «+, county of
SMieasCeecansare Sustwiees , N. Y., pursuant to the application of L. M., dated the ........
Gay Ol: a circes wesaveae , 19.., and release said town from all damages by
reason of laying out and opening (or altering) such highway through my
premises.

In witness whereof, I have set my hand hereunto, on this ........ day of
sunbidveaveceen 8 Bensuegy kOe

R. S.

STATE OF NEW YORK, i ‘
ss.c

COUNTY OF ...........

On this .......... ay OP ade iaceance owe , 19.., before me, the subscriber,
personally appeared R. 8., to me known to be the person described in, and
who executed the foregoing agreement. G. H.,

Justice of the Peace.

FORM No. 124.

Consent or Town Boarp To Lay Our on ALTER A HicHWayY.
(Highway Law, § 191, ante, p. 908.)

The undersigned, the town board of the town of ...............64. , in the
county Of ......--e.eeee: , hereby consent that the town superintendent of
highways of said town make an order laying out (or altering) the proposed
highway described in the application of L. M., pursuant to section 191 of the
Highway Law.

In witness whereof, we have hereunto set our hands on ...........+. : day of

ade swans cagaiee org LBs

iSigned by each member of town board.)
1200 FORMS.

FORM No. 125.

APPLICATION TO Lay OuT a HicHway.
(Highway Law, § 193, ante, p. 912.)

To the Town Superintendent a Highways of the town of .....-seeeee, im the
county Of .... cece cece eeel
The undersigned, an inhabitant of said town of .............., liable to be
assessed for highway taxes therein, hereby applies to you to lay out a high-
way in said town, commencing (describe the proposed highway), which pro-
posed highway will pass through the lands of R. S. and T. W. (who consent
to the laying out of the highway, or as the case may be).

Dated this ........ Cay OL. eee xcaiuiws « ,19..
L. M.
FORM No. 126.
APPLICATION TO ALTER A HIGHWAY.
(Highway Law, § 1938, ante, p. 912.)
To the Town REDE E SES of Highways of the town Of .......ceeeuee, im the
county Of ..........ee i
The undersigned, an inhabitant of said town of ................ » liable to
be assessed for highway taxes therein, hereby applies to you to alter the
highway leading from .......... CO heen ge Seacaaies , in said town as follows:

(Insert particular description of the proposed alteration by courses and
distances.) The proposed alteration passes through the lands of R. S. and
T. W. (who consent to the proposed alteration, or as the case may be).

Dated this ........ day of .............. 5 1982
L. M.
FORM No. 127.

APPLICATION TO DISCONTINUE A HIGHWAY.

(Highway Law, § 193, ante, p. 912.)
To the Town Superintendent ef Highways of the town of ..........0+.., Im the

county Of ...escceees wear’

The undersigned, an inhabitant of said town of ....... «e.es.., liable to be

assessed for highway taxes therein, hereby applies to you to discontinue the
old highway beginning (insert description), on the ground that said highway
has been abandoned.

Dated this ........ day of ............, 19..
FORMS. 1201

FORM No. 128.

APPLICATION FOR APPOINTMENT OF COMMISSIONERS.

(Highway Law, § 1938, ante, p. 912.)

COUNTY COURT—CountTy or ........... SwRI e eles

 

In the Matter }
of the
Application of L. M. to lay out (alter
-or discontinue) a highway in the
TOW Of occ aici cave eae , and the
assessment of damages therefor.

 

The petition of L. M., of the town of ...... oeeeeeseee, IN Said county, respect-
fully shows that your petitioner is a person liable to be assessed for highway
taxes in the town of .............. , said county; that on the ............ day
Ofe, <carsieaietensre a aterae , 19.., he presented an application in writing to the com-
missioners of highways of said town as follows: (Insert copy of application
to the commissioners.) That said application was in good faith made; that
the commissioners of highways have not laid out (altered or discontinued)
said highway pursuant to section 191 of the Highway Law; that the lands
have not been dedicated for the purpose of such highway by the owners
thereof, nor have such lands been released by such owners for such purpose.

Wherefore, your petitioner prays that three commissioners be appointed
pursuant to section 194 of the Highway Law, to determine upon the necessity
of the proposed highway (or altering or discontinuing the said highway), and
to assess the damages by reason of laying out and opening (or altering or
discontinuing) such highway.

Dated this ........ Gay Of vise ceweey 19 40

L. M.

STATE OF NEW YORK,
COUNTY OF ..........+.

L. M., being duly sworn, says he has read the foregoing petition by him
subscribed, and that the same is true to the knowledge of deponent, except
as to the matters therein stated to be alleged on information and belief, and
as to those matters he believes it to be true,

L. M.
Subscribed and sworn to before me,
this .... day of ........ , 19..

G. H.,
Justice of the Peace.

[Application to be accompanied by the written undertaking of the petitioner
securing payment of compensation of commissioners and costs, if unsuccessful.]
1202 FORMS.

FORM No. 129.

OrDER APPOINTING COMMISSIONERS.
(Highway Law, § 194, ante, p. 915.)

Ata..... «eeeee- term of the County Court of the county Of ........sceeus
held at ............ » in the ............, in and for said county.

Fresent—Hon. E. E., County Judge.

(Title as in Form No. 128.)

On reading and filing the petition of L. M., of the town of ............ » in
said county, dated the ........ day of ............ ,» 19.., praying for three
commissioners to be appointed, pursuant to section 194 of the Highway Law,
to certify as to the necessity of laying out and opening (altering or discon-
tinuing) a highway beginning (insert the description) and to assess the
damages by reason of laying out (altering or discontinuing) such highway.

It is hereby ordered that S. S., G. G. and J. J., of the town of ............ *
said county, be, and they are hereby appointed as such commissioners.

FORM No. 130.

Notice To COMMISSIONERS OF THEIR APPOINTMENT.
(Highway Law, § 194, ante, p. 915.)

To 8. 8., G. G. and J. J.:

Take notice, that you and each of you have — duly appointed com-
missioners, by an order of the County Court, a copy of which is hereto an-
nexed, and you are hereby required to fix a time and place at which you will
all meet to hear the town superintendent of highways of the town of ........
order.

Dated this ........ day of ............, 19..

L. M.

FORM No. 131.
NoTIcE OF MEETING OF COMMISSIONERS.
(Highway Law, § 195, ante, p. 917.)
Notice is hereby given that the undersigned has made application to the
town superintendent of highways of the town of ............ , in the county of

oad WPS ate for the laying out (altering or discontinuing) of a highway in
said town, commencing (here insert description as in application), which
FORMS. 1203

proposed (or altered) highway will pass through the lands of (describe who),
and by an order of the County Court dated the ........ day Of 2.6 ce viieineces
19.., S. S. G. G. and J. J. were appointed commissioners to examine as to
the necessity of said proposed highway (alteration or discontinuance), and to
assess the damages by reason of the laying out and opening (alteration or
discontinuance) of such highway; and that said commissioners will all mect
ALG: tere anie wees a , in said town, on the ........ day Of as cia aaed sae 5 LDleey
St ziecy WEWCK Inthe .4sca nas noon, to examine the proposed highway (or
the highway) and hear the town superintendent of highways of the town of
ya ga Ka Kee , and all others interested therein, and to assess the damages if
such highway be determined to be necessary (or is altered or discontinued).
Dated this ........ day of ..... sae bbe 5 193%
L. M.

FORM No. 132.

AFFIDAVIT OF POSTING AND SERVICE OF NOTICE.
(Highway Law, § 195, ante, p. 917.)

STATE OF NEW YORK,

COUNTY OF .......... i

L. M., being duly sworn, says that he caused notices in writing, of which
the within is a copy, to be posted up at .............. 5 SAEs castainsid nina tres and
ee ee ee ee ; three public places in the town of ............, said county,
on the ........ day of. ............ , 19.., and that he served a like notice
on (name all the owrers and occupants of the lands through which the high-
way is proposed to be laid out, altered or discontinued) on the .......... day
OF saaseidiecas , 19.., by (state how served), and that said notices were posted
at the respective places, and served on the respective persons herein named,
at least eight days before the time specified therein for the meeting of said
commissioners:

L. M.

Subscribed and sworn to before me,

this .... day of ........ jk Dice

G. H.,
Justice of the Peace.

FORM No. 133.
CERTIFICATE OF COMMISSIONERS IN Favor OF APPLICANT.
(Highway Law, § 196, ante, p. 917.)
(Title as in Form No. 128, ante.)

The undersigned, by an order of the County Court of ............ county,
dated the ...... .. day of ............, 19.., on the application of L. M.,
1204 FORMS.

having been appointed commissioners to determine as to the necessity of
laying out and opening (altering or discontinuing) a highway in the town of
pulalieyd ampiganternns , in said county, beginning (describe highway as in the appli-
cation) which proposed highway (or highways) crosses the lands of (name
the persons) and to assess and damages to be caused thereby;

Now therefore, we, the said commissioners, having given due notice of the
time and place at which we would meet, and all having met at .............. ‘
in said town on the ........ Gay’ Of wc ee sas , 19.., pursuant to such
‘notice, and having taken the constitutional oath of office, and on proof of
the service and posting of the notices by the applicant, pursuant to section
195 of the Highway Law, having viewed the proposed highway (or highway
proposed to be discontinued or altered) and the lands through which it is
proposed to be laid out and opened (altered or discontinued) and having
heard the town superintendent of highways of the town of ............ , and
the parties interested therein, and the evidence of all the witnesses produced;

Now, therefore, we do hereby determine, and certify, that in our opinion
it is necessary and proper that the highway be laid out and opened (altered
or discontinued) pursuant to the said application of L. M., dated the ....... .
Oay Of ass esieeisss , 19..; and we have assessed the damages required to be
assessed by reason of laying out and opening (altering or discontinuing) such
highway, as follows:

The damages of N. N. at $........ ; the damages of W. W. at $........
Dated this ........ day of ............, 19..

s. S.,
G. G.,
J. J.,
Commissioners.
FORM No. 134.
CERTIFICATE DENYING APPLICATION.
(Highway Law, § 198, ante, p. 919.)
(Title as in Form No. 128, ante.)
The undersigned, by an order of the County Court of ..... whee county,
dated the ........ Gay Of. cisncckiases , 19.., on the application of L. M.,

having been appointed commissioners to certify as to the necessity of laying
out and opening (altering or discontinuing) a highway in the town of
Seeft eliniassd sree , in said county, beginning (describe highway as in the appli-
cation) which proposed highway (or highways) crosses the lands of (name
the persons) and to assess the damages to be caused thereby;

Now, therefore, we, the said commissioners, having given due notice of the
time and place at which we would meet, and all having met at
in said town, on the ........ day Of) 2. cciene seas , 19.., pursuant to such
notice, and having taken the constitutional oath of office, and on proof of
FORMS. 1205

the service and posting of the notices by the applicant, pursuant to section
195 of the Highway Law, having viewed the proposed highway (or alteration
or highway proposed to be discontinued) and the lands through which it is
proposed to be laid out and opened (altered or discontinued), and having
heard all the allegations of the town superintendent of highways and the parties
interested therein, and the evidence of all the witnesses produced;

Now, therefore, we do hereby determine and certify that in our opinion
such highway, or alteration or discontinuance, is unnecessary and improper
and should not be laid out (or should not be made, or such highway should
not be discontinued).

Dated this ........ day of ............, 19..

S.S.,

G. G.,

J. J.,
Commissioners.

 

FORM No. 135.

Norrcre or Motion To ConFIRM, VACATE oR MopiFy DECISION.
(Highway Law, § 199, ante, p. 919.)

(Title-as in Form No, 128.)
To N. M. and W. W.:

Take notice that an application will be made to this court at a ........... *
term thereof, to be held at the .......... , in the escesgeces Of esi mew vex 5
on the ........ day of ............ , 19.., for an order confirming (vacating
or modifying, stating in what particulars) the decision of the commissioners in
the above entitled matter, which decision is dated the ........... . day of
sade eye ahaa ies , 19.., and for such other and further relief as to the court may
seem proper; that said application will be made upon said decision and upon
the affidavits and papers, with copies of which you are herewith served.

Dated this ........ day of sen eeeseeeeeees 19.e
L. M.
FORM No. 136.
Orper CoNFIRMING DECISION OF COMMISSIONERS.
(Highway Law, § 199, ante, p. 919.)
At a term of the ............ County Court, held at the ............, im
the usicnas chee ais (Of os aialetaeatey , on the ........ day of .....+..+.+.5 19..

Present—Hon. BE. £., County Judge._
(Title a8 in’ Form No. 128.) :
On reading and filing the décision of the commissioners, 9, S., G. G. ‘aad

J. J., in the above entitled matter, dated the ..........-- day of! isi vcowsa ces ‘
1206 FORMS.
19.., by which it appears (state substance of decision), with proof of due
service upon N. N. and W. W. of notice of this application and (state other
papers), and on motion of A. D., counsel for L. M., after hearing B. B.,
counsel for N. N. and W. W., opposed, and on reading (name the papers);
It is hereby ordered that the said decision be and the same is hereby con-
firmed (or vacated, or modified or corrected as follows: state how), with
costs amounting to $........ in favor of ....... ... and against ..........
E. E.,
County Judge.

FORM No. 137.

CoMMISSIONERS’ CERTIFICATE TO THE County Courr to Lay Out a HigHway
THROUGH AN ORCHARD.

(Highway Law, § 200, ante, p. 921.)

(Title as in Form No. 128.)

The undersigned, town superintendent of highways of the town of .........
in said county, hereby certifies that on the ........ Gay Of p2ndeiawsees Dies
L. M., who is liable to be assessed for highway taxes in said town, made a
written application to me as such superintendent to lay out a highway in said
town, passing through an orchard of T. W., of the growth of four years or
more, pursuant to section 200 of the Highway Law, as follows: (Insert a copy
of the application). And that the said T. W. does not consent thereto; that
the following proceedings were had upon such application: (Insert a history
of the proceedings up to and including the decision of the commissioners ap-
pointed by the courts.) We further certify that the public interest will be
greatly promoted by the laying out and opening of such highway through
said orchard; and commissioners appointed by this court have certified that
such highway is necessary and proper, and have assessed the damages of
T. W. by reason thereof, at $........ ;

Dated this ........ Gay of .........-.4, 19..
A. B.,

Town Superintendent of Highways.

FORM No. 138.
OrpER OF CoUNTY CourRT To Lay Out HicHway.

(Highway Law, § 200, ante, p. 921.)

At aterm ofthe ................ County Court, held at ................, in the
shear Speers of ...........--.-., om the ........ day of ..........06,19..
Present—Hon. E. E., County Judge.
(Title as in Form No. 128.)
FORMS. 1207

Upon reading and filing the certificate of A. B., town superintendent of high-
ways of the town of ................ , in the county of ................ , dated
tHe) Masai ewes Gay Of sasvtevea vex wunes , 19.., stating (here state the sub-
stance of the facts in the certificate) with proof of due service of notice of
this motion, and upon reading the (state what papers), and after hearing A. D.,
of counsel for the applicant, and B. B., of counsel for T. W., opposed;

It is hereby ordered that said highway be laid out and opened pursuant to
section 200 of the Highway Law, with ten dollars costs of this motion.

E. E.,
County Judge.

FORM No. 139.

ORDER OF THE APPELLATE DIVISION.

(Highway Law, § 200, ante, p. 921.)

In the Appellate Division of the Supreme Court, in the .............. depart-
ment, held at the court house, in the city of .............. 3 OD the .icecece
Gay Of wives ake eran s , 19..

Present—Hon. H. R., P. J.; Hon. B. D., Hon. C. E., Hon. F. G., and Hon.
A. J., Justices of the Supreme Court.
(Title as in Form No. 128.)

A. B., as town superintendent of highways of the town of ................ 5
in the county of ................-- ,» having presented to us the order of the
County Court Of 2... e..csaaees county dated the ........ DAY OL auass sau Sania cece a

19.., that a highway be laid out in said town, passing through the orchard
of T. W., of the growth of four years or more, pursuant to section 200 of the
Highway Law, the said T. W., not consenting thereto, with the certificate and
proofs upon which the said order was granted, duly certified by such court, with
proof of due service of notice of this motion on the said T. W., and after hearing
B. B., of counsel for the applicant, on the motion, and X. B., of counsel for T. W.,

opposed; ;
It is hereby ordered that the said order of such County Court be, and the
same is hereby confirmed, with $........ costs of this motion.

FORM No. 140.

APPLICATION FOR A PRIVATE Roap.
(Highway Law, § 211, ante, p. 931.)

To the Town Superintendent of Haan Of the town Of ....esceececeeee tm the
county Of ..... ccc cece eee’

The undersigned, an inhabitant of said town and liable to be assessed for

highway taxes therein, hereby makes application to you to lay out a private.
1208 FORMS.

road for his use and benefit, beginning (insert description, giving its width
and location, courses and distance) and said proposed road will run through
the land of T. W., occupied by R. S.

Dated this ...... sre MOY OL i cease jaece ce ciengy LO 6
L. M.
FORM No. 141.
DESCRIPTION oF HIGHWAY ABANDONED.
(Highway Law, § 234, ante, p. 938.)
I, the undersigned, town superintendent of highways of the town of .........
shins Giese » in the county of ................, hereby certify that the highway

(here describe it), has been abandoned by the public, and is no longer used as
a public highway; and pursuant to section 234 of the Highway Law, the same
is discontinued.
Dated this ........ Gay Of w.cccceeseeceeecy 19..
A. B.,
Town Superintendent of Highways.

FORM No. 142.

STATEMENT TO THE SUPERVISOR OF EXPENSES INCURRED IN REPAIR OF BRIDGES.
(Highway Law, § 251, ante, p. 947.)

I, A. B., supervisor of the town of ..............0..0008, , in the county of
5 (evaibriedestp ars inreneas ar , pursuant to section 251 of the Highway Law, hereby render to
the board of supervisors of said county a statement of the expenses incurred by
us in the erection and repair of the free public bridges of said town as follows:
(Here give an itemized account of the expenses incurred on each of the bridges.)
Dated this ........ AY: OL’. sieves seisae ore ,19..

STATE OF NEW YORK, oie
COUNTY OF ........6-- e

A. B., supervisor of said town, being duly sworn, says the foregoing statement,
which is subscribed by him, is true.

A. B.
Subscribed and sworn to before me,
this .... day of ........ yp B92
/ G. H.,

Justice of the Peace.
FORMS. 1309

iF FORM No. 143.

Notice to Town Boarp or ADJOINING Towns TO REPAIR BRIDGE.
(Highway Law, § 255, ante, p. 949.)

To the Town Board of the town of .............. in the county Of ...-....00008

Whereas, the bridge (here describe it) has become, and is, unsafe for public
use and travel (state in what respect), you are hereby notified and required
to direct the town superintendent of highways of your town to join with the
town superintendent of highways of the town of ....... «eeeee--, in the county
Of once isis elene she , in rebuilding (or repairing) said bridge, and to give your
consent in writing to the same within twenty days after the service of this
notice, pursuant to sectios 255 of the Highway Law.

Dated this ........ day of ................ 5 ADs

[Signed by members of town board.]

FORM No. 144.

CoNSENT TO REBUILD OR REPAIR BRIDGE.
(Highway Law, § 255, ante, p. 949.)

To the Town Board of the town of .............. in the county Of sie cciiewnd ok

Pursuant to your notice served on us, dated the ........ Gay OL sisies viesacew os ;
19.., and to section 255 of the Highway Law, we, the undersigned members of
the town board of the town of ..............-. , in the county of .............. 5

hereby consent to join with you in rebuilding (or repairng) the (designate the
pridge) it being the same bridge mentioned in your said notice, and have di-
rected, J. D., the town superintendent of this town, to join with the town super-
intendent of your town in rebuilding (or repairing) the said bridge.
Dated this ........ day of ................ , 19..
[Signatures of members of town board.)

FORM No. 145.
PETITION OF F'REEHOLDERS TO CoMMISSIONERS OF ADJOINING Towns.
(Highway Law, § 256, ante, p. 950.)

To the Town Board of the town of ......-.0.005- , in the county Of .........65- 9
and the Town Board of the town of .,.........., in the county of.........42
We, the undersigned, L. M., N. O. and R. S., do respectfully, pursuant to
section 256 of the Highway Law, petition and apply to you, and show that we are
each of us freeholders of the said town of ..............+5 , and that the high-

way bridge known as the (here designate the bridge) which crosses the (name
1210 FORMS.

the stream), a stream forming the boundary line between said towns of ......
jiniiate sane and ................, has become and is out of repair and is unsafe
for public use and travel (state in what respects), that said bridge has been
repaired and maintained at the joint expense of said towns, and said towns are
jointly liable to make and maintain a bridge at said point.

And we hereby petition and apply to you, the said town boards, to cause the
said bridge to be rebuilt (or repaired) at said point.

Dated this ....... . Gay of ...... ee ee
L. M
N. 0.
RS
—<<$<—$—$—
FORM No. 146.

Notice oF MoTIoN FoR ORDER COMPELLING CONSTRUCTION OR REPAIR OF BRIDGE.
(Highway Law, § 256, ante, p. 950.)

SUPREME COURT—County oF ............

 

In the Matter
of the
Application of L. M., N. O. and R. S. for
an order requiring the commissioners
of highways of the towns of ........
ANG, ceiewsaewie es wegen to rebuild the

 

To the Town Board of the town of .........006. +, in the county Of ....ccecceees
and the Town Board of the town of .......... » in the county of ...... wie’ $09
Take notice that an application will be made to this court at a special term
thereof, to be held at the court house, in the .............. Of gaxatiereiwisen
On the .scssevieess Cay Of aiscc. cee be to san os ,19.., at the opening of the court on

that day or as soon thereafter as the parties may be heard, for an order re-
quiring you, the said commissioners, to rebuild (or repair) the bridge men-
tioned in the affidavit hereto attached, and requiring money to be appropriated
or raised therefor, and for such other and further relief as to the court may
seem just and proper. The application will be made on affidavit and papers,
copies of which are herewith served on you.

Dated this ........ day Of ......e-..sseeee, 19,

L.
N.
R.

nox
FORMS. 1211

FORM No. 147.

AFFIDAVIT ON MoTION FoR AN ORDER TO BUILD «a BRIDGE.
(Highway Law, § 256, ante, p. 950.)

(Title as in preceding Form.)
STATE OF NEW YORK,

CouUNTY OF ..........

L. M., N. O. and R. S., being severally and duly sworn, say that they are
freeholders of the town of ................ , said county, and that said town
joins the town of ................ , in the county of ................ , and the

(name the stream) forms the boundary line between said towns; that at (de-
scribe whers) a free public bridge has been maintained at the joint expense of
said towns, and said towns are jointly liable for the building, rebuilding, re-
pair and maintenance of such bridge at such point; that such bridge is (describe
the kind of bridge fully) and has become unsafe and unfit for public use and
travel (describe fully the condition the bridge is in), and that in our opinion
it would be more for the interests of the said towns to rebuild than to repair

said bridge (or as the case may be); that on the ........ Cay Of ss sindais gee ‘
19.., the above-named affiants united in a petition to the town board of said
tOWN Of wwe eee eas ; and the town board of the said town of ............ r

pursuant to section 256 of the Highway Law, which petition was duly served
on the supervisor of each of said towns, and which requested them to rebuild
(or repair) said bridge at said point; that thereafter and on the ............

GB OL. ica ieee vo SS Sake , 19.., said town boards served on us a written refusal
as follows: (Here set forth the refusal); that in our opinion an (iron) bridge
should be built, and that the expense should be between $...... ae ONG. $08 e505

(approximate the expense as nearly as possible and insert any other facts
deemed necessary).

Subscribed and sworn to before me,
this .... day of ........, 19..
G. H.,
Notary Public.

 

FORM No. 148.

OrpeR oF CourT TO REBUILD BRIDGE.

(Highway Law, § 257, ante, p. 951.) 5
At a Special Term of the Supreme Court, held at the court house, in the
eit agnaiay Of ccc cceecececeecy OD the ........ Gay OF ..ccececeececeeeey 19...
Present—Hon. ...........+- , Justice.
(Title of case as in Form No. 146.)
1272 FORMS.

On reading and filing the affidavit of L. M., N. O. and R. S., dated the ...... ae
DAY Of ese siiniie.n vameears , 19.., setting forth that (here set forth the substantial
facts of the affidavit), with proof of due service of a copy of said affidavit and
notice of motion upon the supervisor of each of the towns of ...... se4egea eek s
and after hearing J. D., of counsel for said applicants, in favor of said motion,
and D. B., of counsel (or no one appearing) for the said town boards in opposi-
tion thereto,

It is herevy ordered, pursuant to section 257 of the Highway Law, that said
town boards cause to be built (or repaired) a (here describe the kind of bridge)
at (here describe the place), at the joint expense of said towns, not to exceed
Sse ahaa wie agtnnces dollars, and that one-half of the said expense shall be charge-
able to each of said towns, to be assessed, levied and collected thereon, as
other town charges are assessed, levied and collected.

FORM No. 149.
APPLICATION TO BoARD OF SUPERVISORS FOR LAYING OUT, ETC., HIGHWAY.
(County Law, § 61, ante, p. 980.)

To the Board of Supervisors of the county Of .........0.0 ceed

We, the undersigned, being twenty-five resident taxpayers of the county of
ee ee ee , hereby make application, in pursuance of section 61 of the
County Law, for the laying out (opening, alteration or discontinuance) of a
county highway of the width of ................ ( or the construction, repair
or discontinuance of a bridge), describe as follows:

(Insert a definite description of the proposed highway, or the location of
the proposed bridge. )

 

Dated this ........ day of .......... Sera D ee
A. B.,
C. D., ete.
FORM No. 150.
NoTIcE OF SUCH APPLICATION.
(County Law, § 61, ante, p. 980.)
To the Town Superintendents of the several towns in the county of ..........3 :
Notice is hereby given that on the ........ Cay Of is tenets Gide oe , 19.., the

foregoing application will be presented to the board of supervisors of the

county Of ......... ee ee eee eee
Dated this ........ day of ............00.2, 19...

A. B.
C. D., ete.
FORMS. ~ 3213

FORM No. 151.

Proor oF SERVICE OF APPLICATION AND NOTICE.

(County Law, § 61, ante, p. 980.)

STATE OF NEW YORK,
CouNTY OF ............ ;

C. C., being duly sworn, says that he is a resident of ...... siipaiecm a ieieace N. Y.,
and that he served the application and notice annexed hereto, personally, on
each of the following town superintendents of highways at the times and places
set opposite their names, respectively:

B: Gia, <2<idi aaa ,N. Y., May 9,19.., at .... o’clock in the ........ noon.

C.D), abs ei aarnaae.s , N. Y., May 10, 19.., at .... o’clock in the ........ noon.

By delivering to and leaving with each of them true copies thereof; and
he further says that he knew the persons so served to be the town superintend-

ents of highways of the towns of ..... coeseecseesy respectively,
: (Signed) c. C.
Subscribed and sworn to before me,
this .... day of ........ 5 LD is
G. H.,

Notary Public.

FORM No. 152.
RESoLuTIoN oF Boarp Layine Out, ETc., HigHway.
(County Law, § 61, ante, p. 980.)

Resolution for the laying out of a highway (or construction of a bridge) in

the town of ..........---55. , between (describe generally location of highway

or bridge), pursuant to section 61 of the County Law.

At a meeting of the board of supervisors of the county of ...... feces vecssg Held
OE radia ea SR 2 gp OD TNE acres neice day of ............ stidogt Obes

Whereas, application has been made for the laying out (altering or discon-
tinuing) of a highway (or the construction, repair or discontinuance of a
bridge) in said county; and thereas, satisfactory proof has been made to us
of the service of a copy of such application, together with a notice of intention
to make the same, upon the town superintendent of highways of each town in
said county; and that it seems to us that there is a necessity for the laying
out( alteration or discontinuance) of such highway (or the construction, repair
or discontinuance of such bridge);

Resolved, That a highway of the width of .......,+-..++.- be laid out in
accordance with_such application, the center of which is to commence at .
shes and run thence (insert survey).
1214 FORMS.

for, that a bridge be constructed over (state location), to be of the follow-
ing description (state kind of bridge), the cost thereof not to exceed the sum

R. S., Chairman.
~. D., Clerk.

Adopted.
Ayes ..... mm
Noes ....sc00

FORM No. 153.

Bonp oF SUPERVISOR ON ACCOUNT oF ScHOOoL MONEYS.
(Education Law, § 363, ante, p. 1008.)

Know all men by these presents, that we, A. B., supervisor of the town of
datdaaletiereseeehtaraaee , in the county of ................ and state of New York, as
principal, and C. D. and D. E., as sureties, of the same town, are held and
firmly bound unto E. F., as treasurer of the county of .............00. » in the
penalty of ............ dollars (a sum at least double the amount of school
moneys set apart or apportioned to the town), to be paid to the said E. F,,
as treasurer of said county, his successor in office. attorney or assigns, for
which payment well and truly to be made we bind ourselves, our heirs, execu-
tors, administrators and assigns jointly and severally, firmly by these presents.

Sealed with our seals and dated the ........ Gay:-0f yee case nek Sek be 5 19:

The condition of this obligation is such that if the above bounden A. B., as
supervisor, as aforesaid, shall safely keep, faithfully disburse and fully and
justly account for and pay over all the school moneys set apart or apportioned
to said town of ................ and all other moneys that may come into his
hands as such supervisor from any other source, then this obligation to be void,
otherwise to remain in full force and effect.

A. B. [zs s8.]
c. D. [L. s.]
D. BE. [z. s.]

(Acknowledgment and justification as in Form No. » ante.)

APPROVAL OF CoUNTY TREASURER.

COUNTY OF ....--++--+: » SS.
I hereby approve of the above (or within) bond as to its form and manner

of execution, and of the sufficiency of the sureties therein.

Dated .....-eeeeeeeeee » LO E. F.,
Treasurer Of .. wn. e cece eee county.
FORMS. 1215

FORM No. 154.

Report oF ScHOOL Moneys on HAnp.

(Education Law, § 365, ante, p. 1013.)

To Hon. J. K. Grant, County Treasurer of .......... wages county:
I, the undersigned, supervisor of the town of ................ , in the county
OP es au eichan ts ages , hereby return, as required by section 365 of the Education

Law, that the amounts of school moneys in my hands not paid out on the
orders of trustees for teachers’ wages, not drawn by them for library purposes,
and the districts to which they stana accredited is as follows:

District Noe dvi. veces sobs cs Gea sHaRe OOS ee oa she ba Ry counts as $100 00
District NO} 2) eimai veh disee Ga diheod 24 deep 2a a cchene ade ee ee Sea eat 75 00
District: NO:23) 2aiaiiv ss tives Beane a adew ote he cr ead eraser aerekeecedus 50 00
Total in my hands ..... PvinwesseweTeuide so eek poe Neh Ss baa ses $225 00
Dated. oisiceeasiesess cy 19s: GEO. H. HAGAN,
< Supervisor.
FORM No. 155.

ANNUAL REPORT OF TOWN INDEBTEDNESS.
(Town Law, §§ 190, 191, ante, p. 1080.)

To the Board of Supervisors Of .........0..000 county:

The undersigned, supervisor of the town of ................ , in said county,
pursuant to sections 190 and 191 of the Town Law, hereby reports the amount
of public indebtedness of said town, as follows:

 

 

 

 

 

 

 

 

et os Act under Raeated Amount of Amount
debts.cmm- | fateot |, whieh | timeiot | Mdebtetiness | coming dns
tracted in | 1beTest. e d election of : dias Bale: | 4 rE ? aa

aid of. issued. supervisor. at this date. erm of office.
Dated this ........ day of .......... sae Gee eg A Doan

A. B.,
Supervisor.
PART XIII.

Time Table for Town and County Officers.

This table shows the times when town and county officers are to
perform the duties imposed upon them by law. The text of the laws
referred to may be found in the preceding chapters. For the pages
where found, see Table of Laws, ante, p. XIII.

ALMS HOUSES.

See Board of Charities; Superintendent of State and Alien Poor;
Keeper of Alms House.

ASSESSORS.

Annually in the month of June, shall make duplicate lists of per-
sons liable to pay a dog registration fee, one of which shall be filed
with town clerk and other with department of farms and markets,
or or before July 1oth, following. (Agricultural L., § 134.)

Annually, until railroad aid bonds of a town, a portion of which has
been annexed, have been paid, shall make separate list of taxable in-
habitants and lands in territory so annexed. (Gen. Mun. L., § 222.)

Between January first and July first, in each tax district, shall ascer-
tain all the property and the names of all the persons taxable. (Tax
L., § 20.)

On or about April 15th, the comptroller shall transmit to the asses-
sors a statement of state lands. (Tax L., § 20.)

Before June 15th, individual bankers shall report to the assessors
the amount of capital stock. (Tax.L., § 25.)

On or before June 1st, every moneyed or stock corporation deriv-
ing an income from its capital or otherwise shall deliver to the
assessors a written statement showing the amount of capital stock,
the real estate owned and sum paid therefor, etc. (Tax.L., § 27.)

Within twenty days after June rst, may compel the corporation to
make a proper report. (Tax L., § 27.)

First Monday of July, every three years, the assessors, supervisor
and town clerk of each town must meet to make list of trial jurors.
(Jud. L., § 500.)

(1217)
1218 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

On or before August first, assessors of towns containing wild or
forest land within the forest preserve shall file in the office of the
comptroller and of the conservation commission a copy of the assess-
ment roll of the town. (Tax L., § 22.)

On or before September first the board of assessors shall furnish to
the clerk of the board of supervisors a list of property exempt from
taxation. (Tax L., § 15.)

On or before August first, shall complete the assessment roll, and,

Forthwith shall cause a notice to be posted in three places stating
that they have completed the assessment roll and that the same may
be examined, etc., and,

On the third Tuesday of August, shall meet to review their assess-
ment. (Tax L., § 36.)

Between August 1st and 5th, shall mail to corporations and non-
residents who have filed a written demand thereof, a notice concern-
ing assessment to such corporation or non-residents, and,

Subsequent to the third Tuesday in August, but not later than
August 31st, shall fix the time for a review of an assessment against
corporations or non-residents. (Tax L., § 36-a.)

Between September first and July first, in the year following, the
assessors of Nassau county shall proceed to ascertain the names of
the taxable inhabitants, etc. (Town L., § 108.)

On or before September 15th, shall file in the town clerk’s office a
copy of the assessment roll, and,

Forthwith upon such filing, shall post notices that such assessment
roll has been completed and copy thereof filed, and,

On or before October first, the assessment roll shall be delivered by
the assessors to the supervisors. (Tax L., § 39.)

Within fifteen days after the completion of the assessment roll, shall
apportion the assessable valuation of railroads, telegraph, telephone
and pipe line companies among school districts, and,

Within five days thereafter such apportionment shall be filed with
the town clerk. (Tax L., § 40.)

Within the time in which to complete the assesment roll, shall enter
the names of non-resident creditors pursuant to a statement from the
county clerk. (Tax L., § 35.)

ASSISTANT DISTRICT ATTORNEY.

When authorized by the board of supervisors, the district attorney
in certain counties may appoint an assistant district attorney.
(County L., § 202.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1219
ATTORNEY.
See County Attorney.
BIRTH.

Within five days after the birth of a child, certificate thereof shall
be filed with the registrar of the district. (Pub. Health L., § 382.)

BOARD OF ASSESSORS.

See Assessors.

BOARD OF ELECTIONS.

See Commissioners of Election; Custodian of Primary Records.

Within twenty-four hours after the adjournment of a meeting of
the board of elections, a record of its proceedings shall be transcribed.
(Election L., § 208.)

For not more than six months, shall be required to preserve at-:
tached stubs and unvoted ballots. (Elec. L., § 377.)

Five days before election, sample ballots shall be provided, and

Four days before election, official ballots shall be provided. (Elec.
L., § 342.)

At least six days before election, shall cause a list of nominations to
be published. (Elec. L., § 130.)

At least six days before election, shall send to the town clerk of
each town and to the alderman of each ward a list of the candidates.
(Elec. L., § 131.)

Not less than six days before election, shall print registry lists.
(Elec. L., § 157.)

In the month of December, shall make an annual report to the board
of supervisors. (Elec. L., § 192.)

On or before December 15th, shall certify to the clerk of the board
of supervisors the amount of the expenses of the board. (Elec. L.,
§ 200.)

Between first Tuesday in June and the first Tuesday in July, shall
cause to be published a transcript of the enrollment books of each
election district. (Elec. L., § 22.)

BOARD OF HEALTH.

Within five days after the birth of a child, certificate thereof shall
be filed with the local registrar of the district. (Pub. H. L., § 382.)

Between the first and tenth of each month, the board or department
of health or health commissioner of a city, village or town, shall trans-
1220 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

mit to the commissioner of labor a list of the names of children to
whom employment certificates have been issued, (Labor L., § 75.)

BOARD OF MANAGERS.
Of County Tuberculsis Hospital.
Five years is term of office of members. (County L., § 46.)
Annually shall make a detailed report to the board of supervisors.
(County L., § 47.)
BOARD OF SUPERVISORS.

See County Board of Canvassers; Fire District; Change of Location
of a County Building; see, also, Supervisors.

Annually, shall meet at such time and place as they may fix.
(County L., § 10.)
At the annual meeting, shall choose a chairman for the ensuing year.
(County L., § ro.)
Within six weeks of the close of each session all acts or resolutions
shall be published. (County L., § 17.)
Abolishment of Distinction Between Town and County Poor.

At an annual or a special meeting called for that purpose may
abolish the distinction between town and county poor. (Poor L.,
§ 138.)

Within thirty days after such determination the clerk of the board
shall serve a copy of the resolution upon the clerk of each town, vil-
lage or city and upon the superintendents and overseers of the poor.

(Poor L., § 138.)
Alteration of Bounds of Town,

Four weeks preceding the presentation of an application to alter
the bounds of a town, notice of the application shall be published.

(County L., § 35.)
Six weeks preceding the meeting of the board, such notice shall be

published. (County L., § 35.)
Fourteen days’ notice of the first election in a new town shall be
posted. (County L., 36.)

Change of Location of County Building.

At least once a week for six weeks preceding a meeting of the board
of supervisors, petition for change of location of a county building
shall be published, (County L., § 31.)

Clerk of the Board; Duties.

Immediately after passage by the board of supervisors of a resolu-
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1221

tion determining that the offices of surrogate and county judge shall
be separate, the clerk shall deliver the resolution to the county clerk.
(County L., § 231.)

Annually within twenty days after the proceedings of the board are
published, shall transmit a copy thereof to the librarian of the state
library at Albany. (County L., § 50.)

Within five days after the issuance of the annual tax warrant by the
board, the clerk shall deliver to the county treasurer a statement con-
cerning the taxes of railroad, telegraph, telephone and electric light
lines. (County L., § 53.)

Within five days aiter the completion of the tax warrant, shall de-
liver to the county treasurer a statement concerning the taxes on rail-
roads, telegraph, telephone and electric light companies, (Tax L.,
§ 60.)

On or before December 2oth, shall transmit to the county treasurer
an abstract of the tax rolls stating the names of the collectors, etc.
(Tax Law, § 62.)

Within thirty days after the adoption by the board of a resolution
abolishing the distinction between town and county poor, the clerk
shall serve a copy of the resoluton upon the clerk of each town, vil-
lage or city in the county and upon the superintendents and overseers
of the poor. (Poor L., § 138.)

Fifteen days after the accounts of the overseers of the poor have
been settled by the town board, the supervisor shall report to the
clerk of the board an abstract thereof. (Poor L., § 141.)

Within ten days after the passage of a resolution by the board stat-
ing that the public interest demands the improvement of a highwy,
shall transmit a certified copy thereof to the highway commission.
(Highway L., §- 123.)

On the second day of the annual meeting of the board next after the
receipt of an account by a state charitable institution against the
county, shall present the same to the board. (State Charities Law,
§ 452.)

As soon as the designation of a newspaper to publish the session
laws is made, the clerk shall forward to the secretary of state a notice
thereof. (County L., § 20.)

Before the first day of January the clerk in a county in which but one
newspaper is published, shall forward to the secretary of state a notice
stating the name and address of such newspaper. (County L., § 20.)
1222 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

On or before January first, shall transmit to the comptroller and to
the highway commission statements relative to the assessed valuations
of property in towns, etc. (Highway L., § 100.)

On or before January first, shall cause to be published a statement
of the county claims, the compensation audited by the board to mem-
bers and the number of days the board was in session and the distance
travelled by each member in attending the same. (County L., § 51.)

July first, if the board have resolved to appoint commissioners pt
equlization and have been unable to agree upon the commissioners,
the clerk shall apply to the county judge to appoint such commission-
ers. (Tax L., $51.)

On or before September first, shall transmit list of property exempt
from taxation to the state board of tax commissioners. (Tax L., § 15.)

On or before November fifth, county officers shall file report of
moneys received. (County L., § 243.)

On or before December tenth, shall file grand jury list in the county
clerk’s office. (Code Crim. Pro., § 229d.)

On or before the second Monday in December, shall transmit to the
state board of tax commissioners a certificate or return of the valua-
tion of property in each tax distrct. (Tax L., § 61.)

Compensation for Conveyance of Juvenile Delinquents.

Annully, shall fix compensation to be allowed to officers for the con-
veyance of juvenile delinquents to the houses of refuge and state in-
dustrial schools. (County L., § 12, subd. 20,) ,

Division of Counties into Assembly Districts.

Second Tuesday of June, 1895, and at such times as legislature shall
prescribe, divide counties into assembly districts. (N. Y. Const., Art,
ITI, § 5.)

Dog Registration,

Six successive weeks, a resolution of the board adopting dog regis-

tration shall be published. (County L., § 128.)

Three successive weeks, change of registration fee shall be pub-
lished. (County L., § 128.)

Establishment of Disputed Town Line.

Four consecutive weeks preceding a meeting of the board of super-
visors, notice of intention to apply to the board to establish a town
boundary line shall be published. (County L., § 37.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1223

Fifteen days before the meeting of the board, such notice shall be
served on the supervisor and town clerk of each town to be affected.
{County L., § 37.)

Thirty days after the adoption by the board of the resolution con-
cerning such line, a copy of the resolution shall be filed in the office of
the secretary of state. (County L., § 37.)

Highways and Bridges.

Twelve days prior to application to the board of supervisors to lay
out or discontinue a county highway or to construct, repair or
abandon a county bridge, notice of the application shall be served on
a commissioner of highways of each town. (County L., § 61.)

Payment of Fines and Penalties Collected by Justices.

On the first Monday in each month, shall have power to direct the
payment by justices of the peace of all fines and penalties imposed
received by them. (County L., § 12, subd. 21.)

And on the Tuesday preceding the annual town meeting to make a
verified report thereof to the board of town auditors. (County L., §
12, subd. 21.)

Reports to Board,

County officers shall, on or before November fifth, file with the clerk
a report of moneys received. (County L., § 243.)

On the day of the annual meeting of the board, the county clerk
shall present a statement of the fees received and the sums disbursed
for various matters. (Couny L., § 164.)

The county sealer shall report to the board annually. (Gen. Bus.

L., § 13:

ae Oe treasurer shall exhibit to the board at the annual meet-
‘ing all his books and accounts and vouchers relating thereto. (County
L., § 142.) .

The superintendents of the poor shall present to the board at its
annual meeting an estimate of the sum necessary for the support of
the county poor during the ensuing year. (Poor L., § 11.)

The keeper of the county jail shall annually account to the board for
the proceeds of the labor at which prisoners in the county jail are em-
ployed. (County L., § 93.)

The board of managers of a county tuberculosis hospital shall an-
nually make a detailed report to the board of supervisors. (County
L., § 47.)

The comptroller shall on or before October roth, transmit to the
board a statement of the account between his office and the county
treasurer. (Tax L., § 92.)
1224 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

Supervisors shall, on the first day of the annual meeting lay before
the board a certificate of the town board approving the statement and
estimate of the overseers of the poor. (Poor L., § 27.)

Taxation.

Annually, shall levy an assessment upon the taxabe property of
towns such sums of money as may be necessary to make the pay-
ments on bonds issued for local improvements. (Town L., § 437.)

Annually, shall direct the raising of sums necessary to defray ac-
counts and charges against the county. (County L., § 12.)

Annually, shall direct the raising of such sums in each town as shall
be necessary to pay its town charges. (County L., § 12.)

At its annual meeting, shall review the taxes for the county. (Tax
L., § 58.)

At its annual meeting, shall examine the assessment rolls of the tax
districts in the county for the purpose of equalization. (Tax L., § 50.)

At its annual meeting, shall examine the assessment rolls of the
several tax districts and make necessary changes in the description of
real property. (Tax L., § 54.)

On or before December 15th, or such other date as may be desig-
nated in certain counties, not later than February rst, shall annex to
the tax roll a warrant for the collection of the taxes. (Tax L., § 59.)

On or before December 15th, shall ascertain from the statement filed
with their clerk the location of mortgaged property with respect to
the several tax districts, etc. (Tax L., § 261.)

On or before December 15th, shall determine the respective sums
of the mortgage tax receipts applicable to the payment of state,
county, city, town and school expenses. (Tax L., § 261.)

On or before December 15th, shall issue warrant to the county treas-
urer for the collection of tax on bank stock. (Tax L., § 24e.)

On or before December 15th, shall ascertain the number of taxable
shares of bank stock, etc. (Tax L., § 2qc.)

BOARD OF TOWN AUDITORS.

See Town Auditors.

BUILDINGS.
See County Buildings.
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1298

CHAUTAUQUA COUNTY SHERIFF.

Once a month shall pay fees and perquisites collected to the county
treasurer. (County L., § 12, subd. 17.)

CHILDREN.

Within five days after the birth of a child, certificate thereof shall
be filed with the local registrar. (Pub. H. L., § 382.)

Between the first and tenth of each month, the board or department
of health or health commissioner of a city, village or town, shall trans-
mit to the commissioner of labor a list of names of children to whom
employment certificates have been issued. (Labor L., § 75.)

CLERK OF BOARD OF SUPERVISORS.

See Board of Supervisors.

CLERK OF TOWN MEETING.

Before entering upon his duties, shall take the constitutional oath
of office. (Town L., § 50.)

COLLECTOR.

Two years for on assessor, and four years each for two assessors
is term of office of. (Town L., § 82.)

Within eight days after receiving notice of the amount of taxes to
be collected by him, and before entering upon the duties of his office,
shall execute an undertaking. (Town L., § 114.) .

Upon receiving the tax roll and warrant, shall forthwith cause no-
tices of the reception thereof to be posted, specifying the times and
places where he will attend for the collection of taxes. (Tax L., § 69.)

Within five days after receiving from the town clerk transcripts of
notices filed by non-residents, shall mail to such non-residents state-
ments concerning the taxes against such non-residents. (Tax L. § 70.)

Ten days after the delivery to the collector of the tax roll and war-
rant, banks shall pay as much of a dividend as may be necessary to
pay any unpaid taxes assessed on the bank stock on which such divi-
dend is declared. (Tax L., § 72.)

Within one week after the time prescribed in his warrant for pay-
ment of the moneys directed therein to be paid, shall pay to the per-
sons specified therein the sums thereby required to be paid. (Tax L.,
§ 84.)

At least six days prior to sale of personal property levied upon for
payment of taxes, public notice thereof shall be given by posting the

same in three places. (Tax L., § 71.)
1226 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

Five days after demand for the payment of a dog tax, if the person
assessed therefor refuses or neglects to pay the tax, the collector shall
kill the.dog. (Agricultural L., § 139.)

COMMISSIONERS OF ALMS HOUSE.
See Keeper of Alms House.

In Newburg and Poughkeepsie.

Annually on December first, shall report to the superintendents of
the poor statistics concerning poor. (Poor L., § 145.)

COMMISSIONERS OF DEEDS.

Two years shall be the term of office of. (Executive L., § 106.)

Immediately after appointment of city clerk, in cities situate in
county of a population between 300,000 and 500,000, shall file certi-
ficate thereof with county clerk. (Executive L., § 106.)

Ten days after receiving notice of appointment in cities situate in
a county of a population between 300,000 and 550,000, commissioner
must take oath of office. (Executive L., § 106.) :

November in every even numbered year the common council in
cities situate in county of a population between 300,000 and 550,000,
shall determine the number of commissioners to be appointed. (Ex-
ecutive L., § 106.)

Thirty-first of December of the even numbered year next after ap-
pointment, the term of office of, in cities situate in a county of a popu-
lation between 300,000 and 550,000, shall expire. (Executive L., §
106.)

COMMISSIONERS OF ELECTION.
See Board of Elections.

Two years is term of office of. (Elec. L., § 191.)
At their first meeting, shall organize as a board by electing one of
their number as president and one as secretary. (Elec. L., § 192.)

COMMISSIONERS OF EQUALIZATION.

Three years is the term of office of. (Tax L., 8 51.)

On July first, if the board of supervisors have resolved to appoint
commissioners of equalization, but have been unable to agree upon
the commissioners to be appointed, the clerk of the board shall apply
to the county judge to appoint such commissioners. (Tax L., § 51.)
/
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 19297

Between September first and the time of the annual meeting of the
board of supervisors, shall examine the assessment roll of the several
towns, etc. (Tax L., § 52.)

On the tenth day of the annual meeting of the board, shall file with
the clerk their report of the equalized valuation. (Tax L., § 53.)

COMMISSIONERS OF FIRE DISTRICT.
See Fire District.

COMMISSIONER OF JURORS.
See Jurors in Kings County.

COMMISSIONERS OF LOCAL IMPROVEMENTS.
See Town Commissioners of Local Improvements.

COUNTY COMPTROLLER.

Three years is term of office of. (County L., § 234.)

Before entering upon his duties, shall take the constitutional oath
of office and execute a bond. (County L., § 234.)

At each regular meeting of the board of supervisors, shall report to
the board the balance of the appropriation to each department remain-
ing unexpended. (County L., § 235.)

For not exceeding ninety days, may employ expert accountant in
opening the proper books in his office, etc. (County L., § 235.)

CONSTABLE.
See Peace Officer. -

Within ten days after notification of his election or appointment,
and before entering upon the duties of his office, shall execute an un-
dertaking. (Town L.,, § 116.)

At any time of day or night, may arrest a person charged with a
felony. (Code Crim. Pro., § 170.)

On Sunday, or at night, cannot arrest a person charged with a mis-
demeanor, unless directed by the magistrate. (Code Crim. Pro., §
170.)

At night, may arrest, without a warrant, any person whom he has
reasonable cause for believing to have committed a felony. (Code
Crim. Pro., § 179.)

At any time, may retake an escaped prisoner, (Code Crim. Pro.,

§ 186.)
1298 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

Within ten days after date of a search warrant, it shall be returned to
the magistrate issuing it. (Code Crim. Pro., § 802.)

At least three days before the return day, shall notify the jurors to attend.
(Justice Court Act, § 227.)

Six days before return day, summons shall be served. (Justice Court
Act, § 48.)

Six days before the return day of the summons, shall execute a warrant
of attachment. (Justice Court Act, §§ 76, 78.)

Immediately upon taking property under an execution, shall post notices
of sale. (Justice Court Act, § 288.)

Not less than six days after such posting, the sale shall be held. (Jus-
tice Court Act, § 288.)

CORONER.
_See Sheriff.

Three years is the term of office of. (County L,, § 180.)

Within six days after receiving designation to act as sheriff, coroner
shall execute an undertaking. (County L., § 187.)

Within thirty days after an inquest, shall deliver to the county treas-
urer money and property found upon the body. (Code Crim. Pro.,
§ 785.)

On or before the third day of the annual session of the board of su-
pervisors, shall report the names of the coroner’s jurors. Code Crim.
Pro: § 774)

COUNTY ATTORNEY.

Two years is term of office of. (County L., § 210.)

COUNTY BOARD OF CANVASSERS.

On Tuesday after election, shall meet. (Elec. L., § 430.)

From day to day not exceeding three days in all, may adjourn for
the purpose of obtaining and receiving corrected statements. (Elec,
L., § 432.)

On the seventh Thursday after election day, shall convene for the
purpose of canvassing statements and returns of soldiers’ and sailors’
elections. (Elec. L., § 515.)

COUNTY BOARD OF SUPERVISORS.
See Board of Supervisors.
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1229
COUNTY BUILDINGS, CHANGE OF LOCATION.
Any County Building.

Once a week for six weeks preceding meeting of board of super-
visors, petition for shall be published. (County L., § 31.)

Once a week for six weeks immediately preceding general election,
notice of submission to electors of the question of removal shall be
published. (County L., § 32.)

Site of Poor House After Destruction.

Three months, if annual meeting of board of supervisors is not to
be held within three months after presentation of petition for change
of site of poor house, special meeting shall be convened. (County L.,
§ 34.)

Three days before time of special meeting, notice thereof may be
personally served on supervisor, (County L., § 34.)

Ten days before such time netice may be served by mail. (County
L., § 34.)

Within thirty days from presentation of petition, special meeting
to be called. (County L., § 34.)

At least one full week preceding town meeting shall be publshed
‘resolution concerning election for change of site. (County L., § 34.)

Ten days before town meeting in each town notice of such election
shall be posted. (County L., § 34.)

Four weeks publication of notice of special town meeting shall be
made. (County L., § 34.)

Within twenty-four hours after statements of votes have been filed
with county clerk, he shall canvass and compile a statement of vote.
(County L., § 34.)

Within twenty-four hours after making a certificate of result, county
clerk shall cause a certified copy thereof to be delivered to chairman
of the board of supervisors, (County L., § 34.)

Upon receipt of certificate from the county clerk, chairman shall
call a special meeting of the board of supervisors. (County L., § 34.)

Not more than thirty days thereafter such meeting shall be held. +
(County L., § 34.)

Ten days’ notice of such meeting shall be given. (County L., § 34.)

COUNTY CLERK.

Three years, is term of office, except in certain counties. (N. Y.
Const., Art. X, § 1; County L., § 160.)
1230 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

Before entering upon his duties, shall execute an undertaking.
(County L., § 160.)

Within fifteen days after notice of his appointment, if appointed,
shall execute an undertaking. (County L., § 160.)

Within ten days after entering upon the duties of his office, shall
appoint a deputy clerk, (County L., § 162.)

On the first day of each month, shall pay to the county treasurer
mortgage taxes. (Tax L., § 261.)

At end of each month, shall forward to commissioner of excise, a
report of all orders or judgments entered in his office during such
month in favor of or against the state commissioner of excise. (Liq.
Tax L., § 39.)

Quarterly shall transmit to the secretary of state a statement of
persons convicted of crime. (Code Crim. Pro., § 943.)

On the first day of the annual meeting of the board of supervisors,
the county clerk shall present to the board a statement of the fees
received and sums disbursed for various matters. (County L., § 164.)

On the first days of January, April, July and October, shall make re-
ports to the state comptroller of conveyances which may be subject
to the transfer tax. (Tax L., § 239.)

During the first twenty days of January, April, July and October
of each year, the county clerk shall transmit to the state department
of health copies of papers relating to marriages. (Dom. Rel. L., § 20.)

On or before January 1st of each year, shall notify the secretary of
state of number of towns, villages and cities within the county, and

As soon as practicable after the receipt of session law slips, the
secretary of state shall send the county clerk a sufficient number for
distribution to county and municipalities, and

As soon as practicable after receipt thereof, county clerk shall send
slips to such municipalities. (Dom. Rel. L., § 19.)

On or before January first report to the secretary of state the names
of all corporations whose certificates of incorporation have been filed
in his office during the previous year. (County L., § 161, subd. 5.)

On or before January fifteenth notify the governor of the names of
all persons elected or appointed to a county office in his county during
‘the preceding year. (County L., § 161, subd. 4.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1231

Between June 1st and 15th, county clerk in certain counties shall
furnish data respecting corporations to each of the town clerks in the
county. (Tax L., § 29.)

Within ten days after July first the county treasurer shall file a
special report covering moneys or securities invested for infants and
other persons. (County L., § 142, subd. 6.)

Prior to November first, shall cause to be prepared a list containing
a description of all mortgages upon which taxes have been paid, etc.
(Tax L., § 261.)

On or before November fifth, shall file with the clerk of the board
of supervisors a report of moneys received. (County L., § 243.)

Annually in December report to the various state departments the
changes in the names of persons and corporations made in pursuance
to orders filed in his office during the past year. (County L., § 161,
subd. 7.):

. | Appeal.

Within two days after the service of a notice of appeal by a defend-
ant convicted of a crime, not punishable by death, shall notify the
stenographer that an appeal has been taken. (Code Crim. Pro., § 456.)

Ten days after a notice of appeal is filed in criminal cases, shall
transmit a copy of the notice and of the judgment roll to the appellate
court. (Code Crim. Pro., § 532.)

Changing Site of Poor House.

Within twenty-four hours after statements of the vote in towns
upon the question of changing the site of the poor house after the
destruction thereof, the county clerk shall canvass and compile a
statement of the vote for the entire county. (County L., § 34.)

Within twenty-four hours after making a certificate of the result
thereof, he shall cause a certified copy to be delivered to the chair-
man of the board of supervisors. (County L., § 34.)

County Judge and Surrogate.

Immediately after the passage by the board of supervisors of a reso-
lution determining that the offices of surrogate and county judge
shall be separate, the clerk of the board shall deliver such resolution
to the county clerk, and

Within ten days thereafter the county clerk shall transmit a copy
of the resolution to the secretary of state. (County L., § 231.)

\
1232 TIME TABLE FOR TOWN AND COUNTY OFFICERS.
Court Calendars.

Five days before the commencement of a trial term, must have the neces-
sary copies of the court calendar ready for distribution. (Rules of Civil
Practice No. 151.)

Election.

Five days before the first day of registration, shall deliver registra-
tion books, etc., to the town clerks. (Elec, L., § 182.)

Within twenty days after the general election and within ten days
after a special election, shall transmit to the secretary of state the
names and residences of persons elected to certain offices. (Elec. L.,
§ 439.)

On or before December 15th, shall transmit to the secretary of
state a tabulated statement of the canvass at the last preceding gen-
eral election. (Elec. L., § 439.)

At least three days before election, shall mail to each voter a sample
ballot showing arrangement of voting machines, or shall publish a
copy of such sample ballot, (Elec. L., § 398.)

Execution Against Violation of Liquor Tax Law.

Five days after conviction and imposition of fine for violation of
liquor tax law, if not paid, county clerk shall issue an execution
against debtor. (Liq. Tax L., § 39.)

Firemen.

Within ninety days after a voluntary fire company has been dis-
banded by the organization of a paid department, a list of the exempt
volunteer firemen shall be filed with the county clerk. (Gen. Mun. L.,
§ 203.)

Insurance.

Within thirty days after a certificate of authority is issued to an in-
surance agent a copy thereof shall be filed in the office of the county
clerk. (Ins. L., § gr.) ‘

Before doing business in this state a foreign insurance company must
file a certified copy of the suprintendent’s authority to do business.
(Ins. L., § 31.)

Jail Liberties.

One week after a resolution of the board of supervisors establish-
ing or altering jail liberties has been filed in his office, shall deliver an
exemplified copy thereof to the keeper of the jail, (Prison L., § 360.)
TIME TATLE FOR TOWN AND COUNTY OFFICERS. 1933

Jury.

Not less than fourteen nor more than twenty-one days ‘before the
trial term, must draw jury. (Jud. L., § 513.)

At the time of drawing trial jurors, shall, in the presence of other
county officials, draw the grand jurors. (Code Crim. Pro., § 229-h.)

Six days, at least, before drawing a jury, county clerk must publish
notice thereof in county newspaper; if there is none, notice must be
affixed to outer door of building where drawing is to be held, also

Three days, at least, before such drawing, he shall serve notice
thereof upon the sheriff and county judge. (Jud, L., § 514.)

First Monday of August, after jury lists have been transmitted to
him, the county clerk must prepare suitable ballots. (Jud. L., § 508.)

Immediately after first Monday of August, if list of jurors is not
received or is lost, the county clerk shall notify the town clerk. (Jud.

L., §§ 510, 511.)
Notary Public.

Promptly shall pay notaries’ qualification fees to state treasurer.
(Executive L., § 53.)

Within ten days after the end of each month, the county clerk shall
pay to the state treasurer all fees received from notaries public dur-
ing said month. (Executive L., § 104.)

Forthwith, upon the receipt of the commission of a person ap-
pointed notary public, the county clerk shall mail to such person a
notice of his appointment. (Executive L., § 103.)

Sale of Lands by Comptroller.

At least one month before the sale of lands by the comptroller for
unpaid taxes shall transmit to the comptroller a certified list of all
lands the conveyances of which are on record in his office, then owned
by such county, and liable to be sold at such sale. (Tax L,, § 121.)

COUNTY COURT.
See County Judge.

From time to time county judge must appoint times and places for
holding terms of his court. (Jud. L., § 190.)

From time to time county court may require clerk to prepare and
cause to be printed copies of calendar, except in New York county.
(Jud. L., § 193.)

From time to time county judge may adjourn a term to any place
within the county. (Jud. L., § 191.)
1934 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

Immediately or before a term is held, appointment thereof must be
filed in the county clerk’s office, and

Once each week for three successive weeks, at least, before a term is
ae a thereof shall be published in the state paper. (Jud.

+» § 192.

COUNTY DEPOSITORY.

See County Treasurer.

COUNTY FARM AND HOME BUREAUS.

On or before December first, in each year, and at any other time
when requested by board of supervisors shall report in writing, a
detailed statement of its work and transactions for the year ending
November thirtieth, and for any other period which the board of
supervisors may request and in such form as said board may direct.
(County Law, § 12, subd. 28-a.)

COUNTY JAIL.
See Jail.

COUNTY OFFICERS.

See Board of Supervisors, County Treasurer, County Clerk, Sheriff,
Coroner, District Attorney, County Attorney, County Sealer, Su-
perintendent of the Poor, County Judge, Surrogate, Special
County Judge, Special Surrogate, County Treasurer, County Su-
perintendent of Highways.

COUNTY JUDGE.
See Surrogate; County Court.

Six years is term of office of. (County L., § 230; N. Y. Const., Art.
VI, § 14.)

Quarterly, shall be paid salary by the county treasurer except in
counties of Kings, Broome and Westchester. (County L., § 233.)

Monthly, shall be paid salary in Broome and Westchester
Counties. (County L., § 233.)

On January first, if school directors have failed to elect a district
superintendent, may appoint such superintendent. (Educa. L., § 383.)

On or before November fifth, shall file with the clerk of the board of
supervisors a report of moneys received. (County L., § 243.)

At the time of drawing trial jurors, shall assist in the drawing of
grand jurors. (Code Crim. Pro., § 229-h.)

COUNTY SEALER.

Forthwith on his appointment, shall give a bond. (Gen. Bus. L.,
§ 13.)
$ 13

Annually, shall report to the board of supervisors. (Id.)

At least twice in each year, and as much oftener as he may deem
necessary, Shall see that weights, etc., used in the county are correct.

(Id.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1235

Not later than the first of December, shall make an annual report
to the state superintendent of weights and measures. (Id.)

COUNTY SUPERINTENDENT OF HIGHWAYS.

Four years is term of office of. (Highway L., § 30.)

At least five days’ notice shall be given of a hearing upon charges
for removal. (Highway L., § 32.)

At least once in each year, shall visit and inspect the highways and
bridges in each town. (Highway Ln, § 33.)

On or before November 15th, shall report to the highway commis-
sion in relation to highways and bridges in his county. ' (Highway
L., § 33.)

On or before December first in each year shall submit to the board
of supervisors a statement of the amount necessary to be raised for
the construction, improvements and maintenance of county roads for
the ensuing year. (Highway L., § 33.)

COUNTY SUPERINTENDENT OF THE POOR.
See Superintendent of the Poor.

COUNTY TREASURER.

Two years from January first is the term ot office, but,

Three years from the first Tuesday in October in Monroe County is
the term of office. (County L., § 140.)

Before entering upon the duties of his office, shall give an undertak-
ing, and,

Fifteen days after notice of appointment, shall give an undertaking,
and,

Twenty days after notice to renew the undertaking if he fails to do
so, his office becomes vacant. (County L., § 140.)

Within twenty days after entering upon the duties of his office, in
certain counties, shal] designate banks of deposit. (County L., § 144.)

Annually, and at such other times as required by the commission,
shall report to the highway commission the amount received by him
on account of the maintenance and repair of county highways. (High-
way L., § 174.)

At least once a week, shall deposit moneys received in the county
depository, and

Daily in counties containing a city of over ten thousand population,
deposit such moneys in the depository, and

As often as once in six months the depository shall credit the ac-
crued interest to the account of the county treasurer. (County L.,

§ 144.)
1236 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

Quarterly, shall pay the salaries of the county judge and surrogate
except in Kings, Broome and Westchester counties, and,

Monthly, shall pay the salary of the county judge in Broome and
Westchester counties. (County L., § 233.)

‘Annually, and at such other times as the board of supervisors shall
make a statement of his accounts. (County L., § 142.)

Annually, shall report to the comptroller relative to court funds.
(Code Civ. Pro., § 753; transferred to State Finance Law, as § 44-e,
by L. 1920, ch. 929, in effect April 15, 1921.)

On the first days of January, April, July and October, in counties
in which the office of appraiser is not salaried, shall make a report to
the comptroller of transfer taxes and shall pay such taxes to the
state treasurer. (Tax L., § 240.)

On the first days of January, April, July and October, shall pay to
the state treasurer the state portion of mortgage tax. (Tax L., § 261.)

On March first and September first, shall report to the Adjutant-
General the amount of all moneys received and paid out by him on
account of and the amount remaining in his hands to the credit of
each military or naval organization, corps or artillery district. (Mili-
tary L., § 225.)

On or before February 15th, shall pay one-third of the state tax
exclusive of state tax for schools to the state treasurer, and,

On or before April 15th, shall pay a second third to the state treas-
urer. (Tax L., § 91.)

Six months from the first day of February after the levy of a tax, if
it remains unpaid, shall cause to be published a list of lands liable to
be sold for taxes, and,

Six weeks publication of such list shall be had. Tax L., § 151.)

On or before March first, shall transmit to the comptroller a state-
ment of all moneys received by him during the preceding year for
penalties belonging to the people of the state, and

On or before March first, shall pay the state treasurer collected
penalties belonging to the people of the state. (County L., § 142.)

On or before March 15th, shall pay the excess of the state tax for
schools to the state treasurer. (Tax L., § 91.)

On or before April fifteenth pay to the state treasurer one-half of
the state tax, and

On or before May fifteenth pay to the state treasurer the other half
of the state tax. (County L., § 142.)

Before May first, in certain counties embracing a portion of forest
preserves, shall transmit an account of unpaid taxes on real property
and on corporations, etc., to the comptroller, and,

One month after the return of such account to the county creasurer
for correction, he shall return the same to the comptroller. (Tax L.,
§ 100.)

To a day not later than April first, may extend time for the collec-
tion of unpaid taxes. (Tax L. § 85.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1237

Before May 15th, shall pay the balance of the state tax to the state
treasurer. (Tax L., § 91.)

June first the comptroller shall state the tax account of each county
treasurer and transmit to the county treasurer a copy thereof, and

Within thirty days, if the tax is not paid, the comptroller shall de-
liver such account to the attorney-general for collection. (Tax L.,
§ 92.)

On or before June first agents of non-resident creditors having debts
owing to them taxable in the county shall furnish a statement thereof,
and,
Immediately, upon receipt of such statement, shall send to the asses-
sors of every tax district in the county in which such debtor resides a
copy of such statement. (Tax L., § 35.)

Within ten days after July first, shall file in the county clerk’s office
a special report concerning moneys or securities invested for infants or
other persons. (County L., § 142.)

On or about September first, the comptroller shall transmit to each
county treasurer a transcript of the taxes of the preceding year in any
tax district of his county which shall have been rejected for any cause,
and the grounds of such rejection. (Tax L., § 101.)

September 15th, excise taxes to be paid. (Liq. Tax L., § 9.)

Within ten days after receipt of excise taxes, one-half thereof to be
paid to state treasurer and other half to supervisor or treasurer or
fiscal officer of city. (Lig. Tax L., § 10.)

October first, and at such other times as the commissioner of educa-
tion may require, shall report to the commissioner concerning school
moneys, etc. (Educ. L., § 495.)

On or before the first Tuesday in October, the district attorney shall
file in the county treasurer’s office an account of all moneys received.
(County L., § 201.)

At the same time the district attorney shall pay any balance to the
treasurer. (County L., § 201.)

On or before November fifth, shall file with the clerk of the board
of supervisors a report of moneys received. (County L., § 243.)

On or before December 313t, bazks pay tax on bank stock. (Tax
L., § 24-1.)

Exhibit of Accounts to Board of Supervisors.

At the annual meeting of the board of supervisors, shall exhibit to
the board all his books and accounts and vouchers relating thereto,
(County L., § 142; Poor.L., § 10.)
1238 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

Highways; Payment of Damages for Lands Taken.

Within six months after the report of commissioners for the appro-
priation of lands to be acquired for highway purposes is confirmed,
the county treasurer shall pay to the persons named therein the
amount awarded for damages with interest. (Highway L., § 153.)

Sale of Property Received from Coroner.

Within thirty days after receipt from a coroner of property found
upon a dead body, shall sell the same at public auction. (Code Crim.
Pro., § 786.)

Within six years, if the money is demanded by the legal representa-
tives of the deceased, it must be paid to them, afterwards, upon order
of the board of supervisors, it may be so paid. (Code Crim. Pro., §
787.)

Tax Sales.

Two months prior to a tax sale, the county treasurer of a county
not embracing a portion of the forest preserves, shall transmit to the
comptroller a list of all lands in such county to be sold. (Tax L.,
§ 157.)

At least two weeks prior to such tax sale, the state comptroller shall
transmit to such county treasurer a list of all lands to be sold at such
sale which the state owns or upon which it hasa lien. (Tax L., § 157.)

Within ten days after the receipt by the comptroller of a statement
made by the county treasurer showing the amount bid for such lands,
the comptroller shall draw his warrant on the state treasurer for the
amount thereof, etc. (Tax L., § 157.)

At least eighteen weeks before the commencement of a sale of lands
by the comptroller for unpaid taxes, the comptroller shall send to the
county treasurer a list of such lands in the county. (Tax L., § 120.)

On receiving such list and at least one month before the sale, the
treasurer shall send to the comptroller a certified list of all lands bid
in at any tax sale in the name of such county, etc. (Tax L., § 121.)

One year after the last date of sale of lands for unpaid taxes, said
lands may be redeemed. (Tax L., § 152.)

Within twenty days after the time for redemption from a tax sale
has expired, the county treasurer of the counties of St. Lawrence,
Lewis, Clinton and Oneida shall file with the comptroller a statement
of lands in the forest preserve which have been bid in by the county
and not redeemed, etc., and,

Six months after the filing of such statement the county treasurer
is authorized to convey the lands not conveyed to the state. (Tax L.,

§ 151.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1239

Taxes; Payment by Railroad, etc., Companies.

Within five days after the issuance of the annual tax warrant by the
board of supervisors, the clerk shall deliver to the county treasurer a
statement concerning the taxes of railroad, telegraph, telephone, and
electric light lines. (County L., § 53.)

Within thirty days after the receipt by the county treasurer of a
notice from the clerk of the board of supervisors concerning taxes of
railroads, telegraph, telephone and electric light companies, such com-
panies shall pay such taxes. (Tax L.,, § 73.)

Immediately after the receipt from a school collector of a statement
of the assessment and tax against a railroad company, shall notify
the ticket agent of such railroad company of the fact that such state-
ment has been filed, etc. (Educ. L., § 427.)

Taxes, Return of Unpaid.

Immediately after the return of taxes on resident real property, as
unpaid, shall deliver a transcript thereof to the supervisor. (Tax L.,
§ 89.)

Within twenty days after the return of a collector by which it ap-
pears that any taxes imposed. upon a debt owing to a person residing
out of the United States remain unpaid, county treasurer shall issue
a warrant to the sheriff for the collection of such tax. (Tax L., § 76.)

COUNTY TUBERCULOSIS HOSPITAL.

See Superintendent; Board of Managers.

CUSTODIAN OF PRIMARY RECORDS.

Before the first day of registration, shall cause booths to be erected,
furnish in each voting booth the articles required to be placed therein
for a*general election, provide enrollment books, etc. (Elec. L., § 6.)

Within forty-eight hours after the close of general election, inspec-
tors shall deliver in a sealed envelope the enrollment books and records
pertaining thereto, and, ;

Until the following Tuesday, such envelope shall remain sealed.
(Elec. L., § 13.)

Forthwith upon receiving from the inspectors statements of re-
sult, shall proceed to canvass the same, and,

Within one hundred and twenty hours from midnight of the primary
election day, shall complete such canvass, and file the required certi-
ficate with the secretary of state. (Elec. L., § 89.)
1240 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

For a period of not more than three years, shall retain on file the
enrollment books and other papers required to be filed with him,
unless otherwise directed by the district attorney or a judge or justice
of a court of record. (Elec. L., § 88.)

On the seventh Tuesday before the general election, an official pri-
mary election shall be held, and,

On the last Tuesday in March, in each presidential year, an addi-
tional official primary election shall be held. (Elec, L., § 70.)

At least thirty-five days before each official primary day, the chair-
man of the general committee of each party shall certify and deliver
to the custodian a statement of the time and place of holding conven-
tions, and of other matters, and,

Not more than thirty-five days nor less than thirty days prior to such
primary election shall publish a notice thereof. (Elec. L., § 75.)

Thirty days before each official primary day, shall divide cities and
villages of five thousand, or more, into primary districts. (Elec. L.,
§ 74.)

At least thirty days prior to the official primary, shall prepare new
enrollment books, when an election district is created or the bound-
ries thereof changed. (Elec. L., § 20.)

Annually shall provide true copies of the enrollment books for the
parties, and,

In February of each year deliver copy to the chairman of the proper
general committee of each party. (Elec. L., § 16.)

Within twenty-four hours after the close of the last day of regis-
tration, the sealed envelope enclosing the enrollment books and rec-
ords pertaining thereto shall be delivered to the custodian, and,

Until the following Tuesday, such envelopes shall remain sealed.
(Elec. L., §§ 12, 13.)

At the time of the final delivery of the enrollment books, the inspec-
tors shall deliver the enrollment box to the custodian. (Elec. L., § 14.)

Until the Tuesday following the general election, the éhioliment
boxes shall not be opened nor shall the enrollment envelopes be opened
or removed therefrom. (Elec. L., § 15.)

On or before September 15th, shall cause to be prepared two original
enrollment books for each election district, and,

Immediately before the first day of registration, such enrollment
books shall be delivered to the inspectors of the respective election dis-
tricts, and,

At least twenty-four hours before the first day of registration, in
election districts wholly outside of a city or village of five thousand or
more, shall deliver such enrollment books to the town clerk. (Elec.

L., § 4.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1241

On Tuesday following the general election, the enrollment boxes
and envelopes shall be opened by the custodian. (Elec. L., §. 14.)

Before February 15th, shall complete the enrollment. (Id.)

At all times except at the hours of enrollment, the enrollment boxes
shall be in the charge and keeping of the custodian. (Elec. L., § 11.)

At the time of filing designations of candidates by party committees,
the time of such filing shall be stamped or endorsed thereon. (Elec.
L., § 49.)

DEPUTY COUNTY CLERK.
See Special Deputy County Clerk.

Within ten days after entering upon his duties the county clerk
shall appoint a deputy. (County L., § 162.)

Before entering upon his duties, shall take the constitutional oath
of office. (County L., § 162.)

DISTRICT ATTORNEY.

Three years, term of office is except in certain counties. (N. Y.
Const., Art. X, § 1; County L., § 200.)

Before entering upon the duties of his office, shall execute an un-
dertaking, and

Within fifteen days, after notice of appointment, if appointed, shall
execute an undertaking. (County L., § 200.)

When authorized by the board of supervisors, the district attorney
in certain counties may appoint an assistant. (County L., § 202.)

Annually, shall make a report to the board of supervisors concern-
ing fines and penalties in school matters. (Educ. L., § 851.)

On or before November fifth, shall file with the clerk of the board of
supervisors a report of moneys received. (County L., § 243.)

At least twenty days before a trial term of the supreme court, shall
issue a precept to the sheriff. (Code Crim. Pro., § 2222.)

Within five days after the discharge of the eeand jury, shall file in
the county clerk’s office certified statement concerning persons charged
with violation of the liquor tax law. (Liq. Tax L., § 40.)

Within ten days after the adjournment of a criminal court of record,
shall furnish the county clerk a statement concerning convicted per-
sons. (Code Crim. Pro., § 941.)
1242 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

On or before the first Tuesday in October, shall file in the county
treasurer’s office an account of all moneys received by him, and,

At the same time shall pay over any balance to the county treasurer.
(County L., § 201.)

On receiving report of sheriff as to trespass committed upon Indian
lands or State lands, shall prosecute actions for such trespass. (Pub.
Lands L., § 8.)

Forthwith, when requested by attorney-general, shall report prose-
cution of crimes against elective franchise. (Executive L., § 67.)

Upon reyuest of the governor and without delay, shall furnish to
the governor a statement of the facts proved on the trial of a person
making application for a pardon. (Prison L., § 260.)

DOGS.

Three days after the seizure of a dog a representative designated by the
department of farms and markets or any peace officer may kill or sell the
same unless the registration fee is paid, ete. (Farms and Markets Law,
§ 117.)

DRAINAGE COMMISSIONERS.

Before entering upon the duties of their office, shall file an oath.
(Drainage L., § 6.)

As soon as practicable or whenever ordered by the court, the com-
missioners shall file a statement of moneys received and disbursed.
(Drainage L., § 37.)

Within ten days after the last publication of the notice of the filing
of their determination whether drainage is necessary, an appeal may be
taken’ and,

Ten days’ notice shall be given of a hearing upon the appeal.
(Drainage L., § 11.)

Within ten days of the service of notice of filing the statement of
assessments for drainage, an appeal may be taken from the determina-
tion of the commissioners. (Drainage L., §§ 33, 46.)

Within thirty days after the filing of such statement, in case the
same is not appealed from, the assessments shall be levied. (Drainage

L., § 33:-)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1943

Within thirty days after notice of the final determination of the ap-
pellate court, in case an appeal is taken, the assessments shall be levied.
(Drainage L., § 33.)

Within thirty days after the decision of the court is filed, an appeal
may be taken to the Appellate Division. (Drainage L., § 39.)

Eight days’ notice shall be given of an application to apportion
among two or more towns, the amount to be raised for drainage by
issuing bonds, and,

Ten days’ notice of the sale of the bonds shall be given. (Drain-
age L., § 16.)

Ten days’ notice shall be given of sale of bonds to pay drainage as-
sessments. (Drainage L., § 37.)

Thirty days after demand for the payment of an assessment, the
commissioners shall, if payment is not made, cause the assessment and
description of the premises to be published, and,

Six weeks’ publication is required, and,

Not less than six weeks from first publication, premises shall be sold.
(Drainage L., § 40.)

Fifteen months after the sale of the premises, they may be redeemed.
(Drainage L., § 42.)

ELECTION.

See Board of Election; Commissioners of Elections; Custodian of
Primary Records.

ELECTION COMMISSIONERS.
See Commissioners of Election and Board of Elections; Custodian of
Primary Records.

FIRE COMMISSIONERS.
See Fire District.

FIRE DISTRICT.
Outside of Incorporated Village.

Five years is the term of office of the fire commissioners. (County
L., § 38, subd. 2.)

Three years is the term of office of the treasurer. (Id.)

Before entering on the duties of his office, the treasurer shall give
security. (Id.)

Within thirty days after the establishment of a fire district, election
shall be called by town clerk. (Id.)

Not less than thirty days prior to the expiration of terms of office,
subsequent elections shall be called. (Id.)
1244 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

Within thirty days after a vacancy in office occurs, a special elec-
tion to fill the vacancy shall be called. (Id.)

For a period not to exceed five years the commissioners may con-
tract for a supply of water for fire purposes. (County L., § 38, subd. 4.)

Ten days before the holding of a meeting for the appropriation of
money, notice thereof shall be posted. (County L., § 38, sub. 5.) :

Before the annual meeting of the board of supervisors, the commis-
sioners shall present to the supervisor a statement of the amount ex-
pended. (County L., § 38, subd. 6.)

Thirty days prior to the sale of property belonging to a discon-
tinued district, notice of such sale shall be published. (County L.,
§ 38, subd. 8.)

On Friday preceding the annual meeting of the board of supervisors,
the town board and board of fire commissioners of certain fire districts
shall meet. (County L., § 38, subd. 8.)

GRAND JURY.

At least twenty days before a term for which a grand jury is or-
dered, a copy of the order must be filed with the county clerk. (Code
Crim. Pro., § 227.)

HEALTH OFFICERS.
See Board of Health.

JAIL.

At least once each Sunday, if practicable, the keeper shall cause
divine service to be conducted for the benefit of the prisoners. (County
L., § 94.)

Annually, the keeper shall account to the board of supervisors for
the proceeds of the labor at which prisoners in the county jail are
employed. (County L., § 93.)

JURORS.
See Sheriff.

Every three years on the first Monday of July, the supervisor, town
clerk, and assessors of each town must meet to make list of trial jurors.
(Jud. L., § 500.)

Within ten days after making the jury lists, one copy must be filed
with the county clerk and another with the town clerk. (Jud. L., 8
505.)

Three years trial jurors shall serve. (Jud. L., § 506.)

First Monday of August, after jury lists have been transmitted to
him, the county clerk must prepare suitable ballots. (Jud. L., § 508.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1945

Immediately after first Monday of August, if list of jurors is not
received or is lost, the county clerk shall notify the town clerk. (Jud.
L., §§ 510, 511.)

Six days, at least, before drawing a jury county clerk must publish
notice thereof in county newspaper, if there is none, notice must be
affixed to outer door of building where drawing is to be held, also,

Three days, at least, before such drawing he shall serve notice
thereof upon the sheriff and county judge. (Jud. L., § 514.)

Twenty days, at least, before the day appointed for the term, an
order for drawing additional jurors before the term must be delivered
to the county clerk. (Jud. L., § 529.)

On particular days, jurors drawn for terms of court in Albany and
Queens counties may be directed to attend. (Jud. L., § 543.)

Within thirty days after service of notice upon a delinquent juror
in a special proceeding, if the fine has not been remitted by the officer
imposing it he must make a special return to the next term of county

court. (Jud. L., § 562.)
JURORS IN KINGS COUNTY.

Between May first and July first, the commissioner must select from
the persons residing in the county suitable persons to serve as trial
jurors. (Jud. L., § 692.)

Between May first and July first, the assessors in the borough of
Brooklyn must make a return to the commissioner of all persons liable
to’serve as trial jurors. (Jud. L., § 691.)

Two days after service of subpoena is the minimum period within
which a juror may be compelled by the commissioner to report for |
examination as to his qualifications. (Jud. L., § 690.)

First Monday of August in each year, or earlier, the commissioner
must prepare a list of persons liable to serve as trial jurors. (Jud. L.,
§ 695), and,

From time to time supplemental lists may be made. (Jud. L., 696.)

Ten days, at least, notice that the list of trial jurors for the year is
ready for examination must be published in at least six daily news-
papers. (Jud. L., § 693.)

Second Monday of August, in each year, the commissioner must de-
posit the jury ballots in the box kept by him for that purpose. (Jud.
L., § 697.)

Fourteen to twenty days, before the day appointed for holding a
term of a court of record in the county, the commissioner must rea-
sonably notify justices of the supreme court and the county judges
to attend the drawing. (Jud. L., § 700.)

Immediately after each drawing of trial jurors, the commissioner or
1246 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

his chief clerk must transmit a panel of the jurors drawn to the sheriff.
(Jud. L., § 706.)

Any time during the term, the court may direct an additional num-
ber of trial jurors to be drawn for that term. (Jud. L., § 707.)

Before commencement of term, commissioner must make return of
jurors notified, (Jud. L., § 711.)

First six days of the term, the jurors first notified must attend, then
next drawn shall be present the next six days of the term. (Jud. L.,
§ 710.)

Six days is the maximum period for which a juror may be required
to serve in any one term, unless the court otherwise directs. (Jud.
L., § 715.)

Within one week after the close of each term for which trial jurors
have been drawn, the county clerk must return to the commissioner
of trial jurors the panel of trial jurors, with information as to each
juror. (Jud. L., § 718.)

Three days after service of notice upon him a juror who has been
fined must appear and show cause why the fine should be remitted.
(Jud. L., § 727.)

Ten days after the final disposition of a case the commissioner must
file in the office of the clerk of the court, a return containing the name
of each juror fined and the amount remaining unpaid, then the clerk
must issue a precept commanding the commissioner to collect the
fines, and,

Within ninety days after the receipt thereof, the commissioner must
return the precept, with his doings thereupon. (Jud. L., § 731.)

Once in each three months, at least, the commissioner of jurors must
pay to the county treasurer all moneys which he has received as com-
missioner. (Jud. L., § 684.)

Annually, the commissioner of jurors must report to the board of
supervisors. (Jud. L., § 685.)

‘JURORS IN NEW YORK COUNTY.

October first the jury year commences. (Jud. L., § 641.)

Annually in May, the commissioner of jurors must commence the
preparation of lists of trial jurors. (Jud. L., § 597.)

Three days, at least, before the drawing the commissioner of jurors
must cause written notice thereof to be served upon the county clerk
or his deputy and at least three judges of courts of record residing in
the county. (Jud. L., § 611.)

Within twenty-four hours after service of notice by commissioner,
juror must attend and testify as to liability to serve. (Jud. L., § 603.)

Three months a person liable to serve as a trial juror may be ex-
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1947

cused during a jury year, when sufficient cause is shown. (Jud, L,,
§ 631.)

Three days a juror may be temporarily excused during a term. (Jud.
L., § 630.)

Six days, at least, before the term the commissioner must notify each
trial juror drawn, (Jud. L., § 624.)

Within ten days after the close of each term, the clerk of each court
of record must make a return to the commissioner of jurors, (Jud.
L., § 134.)

Twelve days’ service within one jury year entitles a juror to a dis-
charge for the remainder of that year and for the following year; ex-
cept that he shall not be discharged until the close of the trial in which
he is serving when the twelve days expire. (Jud. L., §§ 641, 642.)

On or before October first, in each year, the commissioner of jurors
must return to the clerk of New York county certified copies of the
lists prepared by him. (Jud. L., § 604.)

Once every three months the corporation counsel of New York city
shall report to the mayor as to fines of delinquent jurors and entorce-
ment thereof, (Jud. L., § 666); and,

Within ten days after such report is received the mayor must cause
the same to be published in the city record. (Jud.,L., § 667.) ,

JUSTICE OF THE PEACE,
See Town Board.

For term of four years, commencing on January first succeeding his
election, shall hold office. (N. Y. Const., Art. VI, § 17; Town L., §
103.)

Before entering upon the duties of office, shall give a bond, and,

On or before January 15th succeeding election, shall file with the
county clerk a certificate of the town clerk that he has filed such bond,
and,

Within fifteen days after notice of his election or appointment, if
elected or appointed to fill a vacancy, he shall file such undertaking
and certificate, etc. (Town L., § 106.)

At annual town meeting or at such other time as legislature may di-
rect, electors shall elect justices of the peace. (N. Y. Const., Art. VI,
§ 17.)

Forthwith, after moving from town wherein he was elected, shall
deposit his docket book with the town clerk. (Code Civ. Pro., § 3144.)

At the expiration of term of office, shall file his criminal docket in
the town clerk’s office. (Code Crim. Pro., § 220.)

At least once a year at the last audit day of the town, shall exhibit
his docket to the auditing board. (Code Crim. Pro., § 220.)
1248 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

On the first Monday in each month, the board of supervisors shall
have power to direct the payment by justices of the peace of all fines
and penalties imposed and received by them, and,

On the Tuesday preceding the annual town meeting to make a veri-
fied report thereof to the board of town auditors. (County L., § 12,
subd. 21.)

Within ten days after a conviction for contempt of court, shall file
in the county clerk’s office a record thereof. (Justice Court Act, § 22.)

Forthwith, after accepting the resignation of a town officer, shall
give notice thereof to the town clerk, (Town L., § 84.)

Recanvass of Votes for Town Meeting.

On the day next following the town meeting at ten o’clock in the
forenoon, the justices shall meet with the town clerk and recanvass
the votes of town meeting held by election districts. (Town L., §
65), and,

On the Thursday succeeding a town meeting, held at the time of the
general election the votes shall be recanvassed. (Town L., § 67.)

Summons.

Not less than six nor more than twelve days after issuance of a sum-
mons, the same shall be returnable, and,

Immediately upon the arrest of a defendant, summons accompany-
ing order of arrest shall be returnable. (Code Civ.’ Pro., § 2877;
transferred to Justice Court Act, as § 46, by L. 1920, ch. 937, in
effect April 15, 1921.)

Six days before return day, summons shall be served. (Code Civ.
Pro., § 2878; transferred to Justice Court Act, as § 48, by L. 1920, ch.
937, in effect April 15, 1921.)

Within twenty days after the issuance of a summons returned un-
satisfied a subsequent summons may be issued. (Code Civ. Pro.,
§ 2883; transferred to Justice Court Act, as § 58, by L. 1920, ch.
937, in effect April 15, 1921.)

Joinder of Issue.

Within one hour after the time specified in the summons for the
return thereof, issue shall be joined. (Code Civ. Pto., § 2934; trans-
ferred to Justice Court Act, as § 125, by L. 1920, ch. 937, in effect
April 15, 1921.)

Within twelve hours after a defendant is brought before the justice
under an order of arrest, issue shall be joined. (Code Civ. Pro., §
2934; transferred to Justice Court Act, as § 125, by L. 1920, ch. 937,
in effect April 15, 1921.)

Commission.

Six days’ notice shall be given of an application for a commission
when made after the joinder of issue. (Code Civ. Pro., § 2982; trans-
ferred to Justice Court Act, as § 204, by L. 1920, ch. 937, in effect
April 15, 1921.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1949

Adjournment.

Not more than eight days’ adjournment shall be granted with-
out the consent of certain parties. (Code Civ. Pro., §§ 2959, 2960;
transferred to Justice Court Act, as §§ 180, 181, by L. 1920, ch. 937,
in effect April 15, 1921.)

Not exceeding five days’ adjournment may be granted where an
attachment for a witness is issued. (Code Civ. Pro., § 2967; trans-
ferred to Justice Court Act, as § 188, by L. 1920, ch. 937, in effect
April 15, 1921.)

Not to exceed ninety days’ adjournment shall be granted without
the consent of both parties, except in certain cases. (Code Civ. Pro.,
§ 2968; transferred to Justice Court Act, as § 189, by L. 1920, ch.
937, in effect April 15, 1921.)

Not exceeding thirty days, upon the application of the defendant,
may adjourn bastardy proceedings. (Code Crim. Pro., § 849.)

Jury; Failure to Agree.
Within forty-eight hours after jurors fail to agree, a new venue shall
be returnable. (Code Civ. Pro., § 3008; transferred to Justice Court
Act, as § 258, by L. 1920, ch. 937, in effect April 15, 1921.)

Judgment.

Within four days after the final submission of a cause, shall render
judgment and enter it in his docket book. (Code Civ. Pro., § 3015;
transferred to Justice Court Act, as § 270, by L. 1920, ch. 937, in effect
April 15, 1921.)

Execution

Within five years after the entry of judgment, execution may be
issued thereof. (Code Civ: Pro., § 3024; transferred to Justice Court
Act, as § 278, by L. 1920, ch. 937, in effect April 15, 1921.)

Within five years after a judgment is rendered, may issue a new
execution or renew a former one. (Code Civ. Pro., § 3027; trans-
ferred to Justice Court Act, as § 285, by L. 1920, ch. 937, in effect
April 15, 1921.)

Within sixty days after its date, an execution must be made re-
turnable. (Code Civ. Pro., § 3025; transferred to Justice Court Act,
-as § 281, by L. 1920, ch. 937, in effect April 15, 1921.)

Appeal.

Within twenty days after the entry of a judgment, an appeal may
be taken. (Code Civ. Pro., § 3046; transferred to Justice Court Act,
as § 428, by L. 1920, ch. 937, in effect April 15, 1921.)

Eight days’ notice shall be given of a hearing upon an appeal where
a new trial is not had in the appellate court. (Code Civ. Pro., § 3062;
transferred to Justice Court Act, as § 450, by L. 1920, ch. 937, in
effect April 15, 1921.)

After ten and within thirty days from the service of a notice of ap-

peal, shall make his return. (Code Civ. Pro., § 3053; transferred to
Justice Court Act, as § 438, by L. 1920, ch. 937, in effect April 15,
1921.)
"Six days’ notice shall be given of an application for restitution
upon the reversal of a judgment of justice’s court. (Code Civ. Pro.,
§ 3058; transferred to Justice Court Act, as § 458, by L. 1920, ch.
937, in effect April 15, 1921.)
4230 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

Order of Discharge.

On two days’ notice a defendant arrested may apply for an order
of discharge. (Code Civ. Pro., § 2901; transferred to Justice Court
Act, as § 68, by L. 1920, ch. 937, in effect April 15, 1921.)

Examination of Person Charged with Grand Jury Offense.

A reasonable time is allowed a person charred with a grand jury
offense in which to provide counsel. (Code Crim. Pro., § 189.)

At one session, unless for good cause, examination must be com-
pleted. (Code Crim. Pro., § 191.)

Not more than two days’ adjournment shall be had without the de-
fendant’s consent. (Code Crim. Pro., § 191.)

Within five days after the examination, shall return to the county
clerk the depositions, etc., and to the district attorney a statement
concerning the defendant, the witnesses, etc. (Code Crim. Pro., § 221.)

Within five days after the filing with him of a certificate that a crimi-
nal charge pending before him shall be prosecuted by indictment, jus-
tice shall make a return to the district attorney of the proceeding had
before him, etc. (Code Crim. Pro., § 57.)

Not less than five nor more than ten days’ adjournment shall be
granted to enable the accused to secure such a certificate. (Code
Crim, Pro., § 58.)

JUVENILE DELINQUENTS.

Annually the board of supervisors shall fix the compensation to be
allowed to officers for the conveyance of juvenile delinquents to the
houses of refuge and state industrial schools. (County L., § 12, subd.
20.)

KEEPER OF ALMS HOUSE.

On the first day of each month, shall send copies of the records con-
cerning the inmates of alms houses to the state board of charities,
(Poor L., § 142.)

Three days after the admission of a state poor person, he shall trans-
mit the name of and particulars concernng such person to the super-
intendent of state and alien poor. (Poor L., § 95.)

KINGS COUNTY.
See Jurors in Kings County.

MONROE COUNTY.

Three years from the first Tuesday in October is the term of office
of the county treasurer. (County L., § 140.)

NEW YORK COUNTY.
See Jurors in New York County.
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1251

NOTARY PUBLIC,
Two years from the thirtieth day of March of the year in which the

appointment is made shall be the term of office. (Executive L., § 101.)
Fifteen days after notice of his appointment is mailed, a notary must
file his oath of office. (Executive L., § 103.)
Forthwith, upon the receipt of the commission of a person appointed
notary public, the county clerk shall mail to such person a notice of
his appointment. (Executive L., § 103.)

OVERSEER OF THE POOR.
See Superintendent of the Poor,

Two years is term of office of. (Town L., § 82.)

Within ten days after notification of his election, shall take oath ot
office. (Town L., § 83.)

Within ten days after notification of his election or appointment,
shall execute a> undertaking for the faithful discharge of his duties.
(Town L., § 113.)

Four years after payment of usurious interest, if action has not been
brought by the party within one year, the overseer of the poor may
bring such action, and,

One year after neglect, discontinuance or delay of party to sue,
such action may be commenced. (Gen. Bus. L., § 381.)

At least once each month shall examine into the condition and neces-
sities of each person supported by the town or city out of the county
alms house. (Poor L., § 25.)

On or before the tenth day of each month shall report to the state
board of charities concerning dependent children placed out. (Poor
L., § 146.)

Within ten days after the appointment or commitment of a person
to a state charitable institution, shall make a written report thereof
to the clerk of the board of supervisors. (State Charities L., § 450.)

At its first annual meeting in each year, overseer of the poor shall
lay his books of account before the board of town auditors or the com-
mon council of a city, and,

Upon ten days’ notice being given shall present such. books at an
adjourned meeting, and,

At its second annual meeting in each year the overseers shall make
a written report to the town board. (Poor L., § 26.)

Annually, shall account to the town auditors or the auditing board
of a city for sums received from a putative father for the support of a
bastard. (Poor L., 8 68.)

Within fifteen days after the collection of moneys ordered to be paid
1252 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

by the putative father of a bastard chargeable to a county, such moneys
will be paid into the county treasury, (Poor L., § 69.)

Before confinement or at any time after two months of delivery,
the overseers of the town or city to which the mother of a bastard
belongs may take and support such mother and child. (Poor L.,
§ 70.)

At the beginning of the fiscal year of a city, if such time be fixed,
otherwise on January first, the overseer of the poor of a city shall
report to the auditing board of such city. (Poor L., § 29.)

Within ten days after granting relief in a proceeding to determine
who are county poor, the overseer shall give notice to the superintend-
ent that the person is not a charge against his town, and,

Eight days’ notice shall be given to the overseer by superintendent
before annulling a certificate that such poor person is a county charge.
(Poor L., § 47.)

Within ten days after application for relief by a person with a set-
tlement in another town in the same county, the overseer shall notify
the overseer of the town to which he belongs, requiring him to pro-
vide for the support and relief of such poor person, and,

Within ten days after service of such notice, the overseer to whom
it is directed must contest the settlement of such poor person or be
precluded from denying it, and,

Between ten and thirty days of the service of such notice appearance
may be made before the county superintendent pursuant to the service
of a notice of the contest of such settlement. (Poor L., § 42.)

Five days’ notice to be given of a subsequent meeting before the su-
perintendent, where he fails to appear at the time and place appointed
for the first meeting. (Poor L., § 42.)

Within ten days after granting relief to a person having no legal
settlement in the county, the overseer shall notify the superintendent
of the poor. (Poor L.. § 24.)

Thirty days after receiving person into the alms-house who has a
settlement in a town of the county, the superintendent shall give notice
to the overseer of such town, that the expenses will be charged against
it, and,

Not less than twenty days thereafter the overseer may show that
such town ought not to be so charged. (Poor L., § 46.)

Within ten days after acquiring knowledge of the improper removal
of a poor person, the superintendent shall notify the overseer of the
poor of the town or city from which such poor person came. (Poor
L. § $1)

Within thirty days after receiving such notice, the improper removal
may be contested by serving notice of denial thereof. (Poor L., § 52.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1253

Within three months after the service of the latter notice, an action
must be brought for the support of such poor person or the superin-
tendent will be precluded from any claim against the city, town of
county from which such poor person came. (Poor L., § 54.)

One year’s residence of a poor person in a town or city may give
him a settlement therein. (Poor L., § 40.)

On the first day of the annual meeting of the board of supervisors,
the supervisor shall lay before the board a certificate of the town board
approving the statement and estimate of the overseers of the poor.
(Poor L., § 27.) :

Within thirty days after the adoption by the board of supervisors of
a resolution abolishing the distinction between town and county poor,
the clerk of the board shall serve a copy of the resolution on the over-
seers of the poor. (Poor L., § 138), and,

Within three months after the service of such notice, the overseers
shall pay over to the county treasurer moneys, and,

Within three months after receiving moneys subsequently, they shall
be paid over. (Poor L., § 139.)

Within twenty days after an Indian has sold, exchanged or pawned
articles for intoxicating drinks, if he has not received them, the over-
seer of the poor may commence an action therefor, (I-dian L., § 4.)

PEACE OFFICES.
See Constable.

Five days after the seizure of a dog, such officer shall kill an un-
registered dog unless the registration fee is paid, etc. (Agricultural

L., § 139.)
Annually the board of supervisors shall fix the compensation to be

allowed to officer’for the conveyance of juvenile delinquents to the
houses of refuge and state industrial schools. (County L., § 12, subd.

20.)

POOR.

See Superintendent of the Poor; Settlement; Overseer of the . Poor.

POOR HOUSE, CHANGE OF SITE.
See County Buildings, Change of Location.
1254 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

PROBATION OFFICER.

Monthly to report to the court of the conduct and condition of pro-
bationers, and to make returns of moneys collected from such proba-
tioners. (Code Crim. Pro., § 11-a, subd. 2.)

PUBLIC ADMINISTRATOR.

Five years, is term of office of. (L. 1900, ch. 501, § I.)
Before entering upon the duties of his office, shall take oath of office
and execute a bond. (Id., § 2.)

PUBLIC ADMINISTRATOR OF NEW YORK COUNTY.

Before entering upon the duties of his office, shall execute a bond
to the city of New York. (L. 1898, ch. 230, § 2.)

Monthly shall pay to the city treasurer all commissions and costs
received. (Id., § 3.)

Immediately after taking perishable property into his charge, shall
sellthe same. (Id., § 11.)

Three months after the delivery of property, the proceeds thereof
shall be paid into the treasury of New York city. (Id., § 18.)

Three days’ notice shall be given of a sale at public auction of per-
sonal property of the deceased. (Id., § 24.)

Two months after letters of administration, shall sell securities.

(Id., § 24.)

Twelve weeks’ notice by publication shall be made requiring credi-
tors to present claims and parties to claim legacies or distributive
shares. (Id., § 24, subd, 6.)

Twelve weeks from the date of such notice such persons shall pre-
sent their claims. (Id., § 24, subd. 6.)

Six months after becoming vested with the right of administration,
shall account for assets. (Id., § 24, subds. 9 and Io.)

Within two days after the receipt of moneys collected and received,
shall deposit same in the depositories, (Id., § 25.)

At any time may advance to any relative of the deceased, portion
of the estate not exceeding $50, as may be necessary for the support
of such relative. (Id., § 26.).

On January first or within 14 days thereafter shall exhibit to the
municipal assembly of the city of New York a statement of receipts
and expenditures, etc. (Id., § 27.)

Three times each week for three weeks such statement shall be pub-
lished in the city record. (Id., § 27.)

Once in three months and at such other times as the mayor may
direct, make reports which shall be published in the city record. (Id.,

§ 27.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1255

Monthly shall report to the municipal assembly transcripts of ac-
counts closed or finally settled, and all those on which any money has
been received by him as part of the proceeds of any estate on which
he has administered. (Id., § 30.)

PUBLIC ADMINISTRATOR OF RICHMOND COUNTY.

Five years, is the term of office of. (L. 1899, ch. 486, § 1.)
Before entering upon the duties of his office, shall file oath of office
and execute a bond, (Id.)

REGISTER.
See County Clerk.

Three years, is term of office except in certain counties. (N. Y.
Const., Art. X, § 1.)

On the first days of January, April, July and October, shall make
reports to the state comptroller of conveyances which may be sub-
ject to the transfer tax. (Tax L., § 239.)

On the first day of each month, shall pay to the county treasurer
mortgage taxes. (Tax L., § 261.)

Prior to November first, shall cause to be prepared a list containing

a description of all mortgages upon which taxes have been paid, etc.
(Tax L., § 261.)

SCHOOL DIRECTOR.

Before entering upon the duties of his office and within thirty days
after his election, shall take the oath of office. (Educ. L., § 382.)

On the third Tuesday in May following election, shall meet for or-
ganization. (Educ. L., § 383.)

On the third Tuesday in January, on every fifth year after IgIT,
shall meet for the purpose of electing a district superintendent of
schools. (Educ. L., § 383.)

On January first, if the school directors have failed to elect a district

superintendent of schools, the county judge may -appoint such super-
intendent. (Educ. L., § 383.)

SETTLEMENT.
See Overseer of Poor.

SEWERS COMMISSIONER.
Before entering upon the duties of his office, shall take the consti-
tutional oath of office and file an undertaking, and,

At any time may be required by the town board to give a new un-
dertaking. (Town L., § 232.)
1256 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

In July of each year, the town board shall notify the commissioners
of the amount to become due for principal and interest during the en-
suing year on bonds issued for the construction of sewer system, and,

Forthwith, upon such notification, commissioners shall proceed to
assess the lands within the sewer district, and,

Six days before a hearing to consder and review such assessment,
notice thereof must be served on the land owners, and,

Forthwith upon the completion and correction of the apportionment
shall file the same in the office of the town clerk. (Town L., § 237.)

Within fifteen days after the filing of an apportionment of a local
assessment for sewer purposes, an appeal may be taken by any per-
son aggrieved thereby, (Town L., § 238.)

Not less than ten, nor more than twenty days’ notice shall be given
to bring on the appeal. (Town L., § 239.)

In July of each year, shall present to the town board an estimate of
the amount of money required for maintaining a sewer system for the
ensuing year. (Town L., § 243.)

In December of each year, shall file in the office of the town clerk
a statement of moneys received and paid. (Town L., § 244.)

SHERIFF.
See Coroner.

Three years, is term of office except in certain counties. (N. Y.
Const., Art X, § 1; County L., § 180.)

Before entering upon the duties of his office, shall execute an un-
dertaking, and,

Fifteen days after notice of appointment, if appointed, shall execute
an undertaking, and,

Within twenty days after the first Monday of January in subsequent
years, such security shall be renewed. (County L., § 180.)

On or before November fifth shall file with the clerk of the board of
supervisors a report of moneys received. (County L., § 243.)

Within twenty days after the delivery of a chattel replevied, shall
file hisereturn with the clerk. (Code Civ. Pro., § 1715; transferred
to Civil Practice Act, as § 1113, by L. 1920, ch. 925, in effect April
15, 1921.

with Tee diligence, after service of a summons, must return
it, with proof of service. (Code Civ. Pro. § 425; transferred to Civil
Practice Act, as § 220, by L. 1920, ch. 925, in effect April 15, 1921.)

Within four days after receiving a deposit in lieu of bail, must pay
the same into court. (Code Civ. Pro., § 583; transferred to Civil
Practice Act, as § 857, by L. 1920, ch. 925, in effect April 15, 1921.)

Immediately upon receipt of a precept from the district attorney,
shall cause a proclamation to be published. (Code Crim. Pro., § 222-c.)

Forthwith upon receiving execution for the collection of a fine im-
posed against a person violating the excise law, sheriff shall proceed
to collect same. (Liq. Tax L., § 39.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1957

Within fifteen days after the collection of moneys ordered to be
paid by the putative father of a bastard chargeable to a county, such
moneys shall be paid into the county treasury. (Poor L., § 69.)

Within ten days after the issuing of a warrant for the execution of
a convict, shall deliver the convict and the warrant to the warden of
the state prison. (Code Crim. Pro., § 491.)

Within ten days after the receipt of a warrant commanding him to
remove the occupant of resold public lands, the sheriff shall remove
such person. (Pub. Lands L., § 39.),

Within ten days after a sale of real property under an execution,
shall file one of the duplicate certificates of sale in the county clerk’s
office. (Code Civ. Pro., § 1439; transferred to Civil Practice Act,
as § 717, by L. 1920, ch. 925, in effect April 15, 1921.)

At any time before a sale of personal property levied upon under
an execution, shall permit the creditor to make an examination of
such property. (Civil Practice Act, § 695.)

Arrest; When May Make.

At any time of day or night, may arrest a person charged with a
felony, but,

On Sunday, or at night, cannot arrest a person charged with a mis-
demeanor, unless directed by the magistrate. (Code Crim. Pro., §
170.) '

At night, may arrest, without a warrant, any person whom he has
reasonable cause for believing to have committed a felony. (Code
Crim. Pro., § 179.)

At any time, may retake an escaped prisoner. (Code Crim. Pro., §
186.)

Attachment.

Immediately, shall execute a warrant of attachment, and,

From time to time, and as often as may be necessary, may levy
under a warrant of attachment. (Code Civ. Pro., § 644; transferred
to Civil Practice Act, as § 912, by L. 1920, ch. 925, in effect April 15,
1921.

Fe eaeiay, after levying under a warrant of attachment, shall
make an inventory, and,

Within five days after the levy, must file the inventory in the county
clerk’s office. (Code Civ. Pro., § 654; transferred to Civil Practice
Act, as § 921, by L. 1920, ch. 925, in effect April 15, 1921.)
1228 TIME TABLE FOR TOWN AND COUNTY OFFICERS.
Chautauqua County.

Once a month shall pay fees and perquisites collected to the county treas-
urer. (County L., § 12, subd. 17.)

Deputy Sheriff.

Before entering upon the duties of his office, a deputy sheriff shall take
the constitutional oath of office. (County L., § 181.)

Jurors.

At the time of drawing trial jurors, shall assist in the drawing of the
grand jurors. (Code Crim. Pro., § 229-h.)

At least six days previous to the sitting of the court, shall summon the
grand jurors. (Code Crim. Pro., § 229-j.)

At the opening of court, shall return the list of grand jurors. Code
Crim. Pro., § 229-j.)

UNDER-SHERIFF.

Within ten days after entering upon the duties of his office, the
sheriff shall appoint an under-sheriff, and,

Before entering upon the duties of his office, the under-sheriff shall
take the constitutional oath of office. (County L., § 181.)

SPECIAL DEPUTY COUNTY CLERK.
See County Clerk.

Before entering upon the duties of his office, shall file an oath of
office. (County L., § 169.)

SUPERINTENDENT OF ALMS HOUSE.
See Keeper of Alms House; Superintendent of the Poor; Board of
Charities.

SUPERINTENDENT OF COUNTY TUBERCULOSIS HOS.
PITAL.

Before entering upon the discharge of his duties shall give a bond.
(County L., § 48.)

SUPERINTENDENT OF HIGHWAYS.
See County Superintendent of Highways.

SUPERINTENDENT OF THE POOR.
See Overseer of the Poor.

Three years is term of office of. (County L., § 220.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1259

Before entering upon the duties of his office shall execute an un-
dertaking, and,

Within fifteen days after notice of appointment, if appointed, shall
execute an undertaking. (County L., § 221.)

On the first day of each month copies of the records concerning the
inmates of alms houses shall be sent to the state board of charities.
(Poor L., § 142.) ,

On or before the tenth of each month shall report to the state board
of charities concerning dependent children placed out. (Poor L., §
146.)

On or before November fifth shall file with the clerk of the board of
supervisors a report of moneys received. (County L., § 243.)

Annually shall present to the board of supervisors at their annual
meeting an estimate of the sum necessary for the support of the
county poor during the ensuing year, (Poor L., § 11.)

Annually during the week preceding the annual meeting of the
board of supervisors, in counties having an alms house and where
there are town poor, the superintendent shall apportion expenses.
(Poor L., § 9.)

Annually on or before December first, the town board shall certify
to the county superintendent the name, age, sex and native country of
every poor person relieved and supported by the overseers of the
poor together with other matters. (Poor L., § 27.)

On or before the first day of December shall make reports to the
state board of charities. (Poor L., § 12.)

Within thirty days after abolishing the distinction between town
and county poor by the board of supervisors, the clerk of the board
shall serve a copy of the resolution on the superintendent of the poor.
(Poor L., § 138.)

Within fifteen days after the collection of moneys ordered to be
paid by the putative father of a bastard, chargeable to a county, such
moneys shall be paid into the county treasury. (Poor L., § 69.)

Three days after the admission of a state poor person in a county
alms house, his name and particulars concerning him shall be trans-
mitted to the superintendent of state and alien poor. (Poor L., § 95.)

Immediately upon the removal of an Indian who is a poor person
to the alms house, the testimony taken and all facts relating thereto
with a statement of the expenses of removal, shall be transmitted tu
the state board of charities. (Poor L., § 101.)

Within ten days after granting relief to a person having no legal
settlement in the county, the overseer shall notify the superintendent
thereof. (Poor L., § 24.)

Fifteen days after expiration of his office, the superintendent shall
1260 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

pay over to the county treasurer all moneys remaining in his hands.
(Poor L., § 3.)

Thirty days after a decision is made by a superintendent of the poor,
it shall be filed in office of the county clerk. (Poor L., §§ 3, 48.)

Within thirty days after notice of a decision by a superintendent
relating to the settlement of poor persons, an appeal may be taken to
the county court, and,

Fourteen days’ notice shall be given of the hearing before the county
court. (Poor L., § 49.)

Within ten days after the appointment or commitment of a person
to a state charitable institution, shall make a written report thereof
to the clerk of the board of supervisors. (State Charities L., § 450.)

Within ten days after acquiring knowledge of the improper removal
of a poor person, the superintendent shall notify the overseer of the
poor of the town or city from which such poor person came. (Poor
L., § 51.)

Within thirty days after receiving such notice, the improper removal
may be contested by serving a notice of denial thereof. (Poor L., §
52.)

Within three months after service of latter notice, an action for the
support of such poor person must be brought or the superintendent
will be precluded from any claim against the city, town or county from
which such poor person came, (Poor L., § 54.)

Proceedings to Determine Who Are County Poor.

Thirty days after receiving into the alms house a person who has a
settlement in a town of the county, the superintendent shall give notice
to the overseer of such town that the expenses will be charged against
it. (Poor L., § 46.)

Not less than twenty days thereafter the overseer may show that
such town ought not to be so charged. (Poor L., § 46.)

Determining Who Are County Poor; No Alms House.

Within ten days after granting relief, the overseer shall give notice
to the superintendents that the person is not a charge against his
town. (Poor L., § 47.)

Eight days’ notice to the overseer shall be given by the superintend-
ents before annuling a certificate that such poor person is a county
charge. (Poor L., § 47.)

SUPERVISORS.
See Board of Supervisors ; Town Board.
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1261.

Two years is term of office of. (Town L., § 82; Second Class Cities
L., § 13.)

Annually, shall meet at such time and place as they may fix, and,

At the annual meeting, shall choose a chairman for the ensuing
year. (County L., § 10.)

On or before the fifth day of each month, the town clerk shall
remit to the county treasurer all license fees and other funds re-
ceived by him during such month for the registration of dogs. (Agri-
cultural L., § 139-h.)

At least twice in each year, shall remove grass and weeds from the
town burial ground. (Town L., § 332.)

On the first Tuesday of February, shall make a return to the county
treasurer showing the amount of school moneys in his hands, etc.
(Educ. L., § 365.)

On or before the first Tuesday of March, the treasurer of the school
district shall report to the supervisor concerning school moneys.
(Educ. L., § 255.)

First Monday of July, every three years, the supervisor, town clerk,
and assessors of each town must meet to make’ list of trial jurors.
(Jud. L., § 500.)

On the Tuesday preceding biennial town meeting, and on the cor-
responding date in each alternate year, account with the town board
for the distribution of moneys received by him, and,

On the third Tuesday of December, if the biennial town meeting is
held at the time of the general election, such account shall be rendered.
(Town L., § 98.)

On the last Tuesday of December, in Rockland, Orange, Oneida and
Sullivan counties, shall account with the justices of the peace and
town clerk for moneys received by him. (Town L., §§ 544, 585.)

Before the annual meeting of the board of supervisors the commis-
sioners of a fire district outside of an incorporated village shall present
to the supervisor a statement of the amount expended. (County L.,
§ 38, subd. 6.) .

Fifteen days before the meeting of the board of supervisors, a copy
of the notice of intention to apply to the board to establish a town
boundary lire shall be served on the supervisor of each town to be
affected, (Courty L., § 37.) |

At every annual session of the board of supervisors, shall make a
report to the board concerning the debt of the town. (Town L., §
190.)

At the expiration of his term of office, at the biennial town meeting,
shall present a duplicate copy of such report. (Town L., § 193.)

At the annual meeting of the board of supervisors, shall present to
the board a certified statement relative to certificates of indebtedness
issued to borrow money for an appropriation. (Town L., § 138.)
1462 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

At the annual session of the board of supervisors, shall present to
the board a statement specifying the amount paid during the preced-
ing year for the construction, etc., of certain public bridges. (High-
way L., § 251.)

On the first day of the annual meeting of the board of supervisors,
supervisor shall lay before the board a certificate of the town board
approving the statement and estimate of the overseers of the poor.
(Poor L., § 27.)

Fifteen days after the accounts of the overseers of the poor have;
been settled by the town board, the supervisor shall report to the clerk
of the board of supervisors, an abstract thereof. (Poor L., § 141.)

Three days after presentation of supervisor’s report concerning cer-
tain highway moneys, the same shall be filed in the town clerk’s of-
fice. (Highway L., § 107.)

Ten days’ notice of an investigation into the financial affairs of a
town, shall be given to the supervisor. (Gen. Mun. L.,, § 4.)

Within thirty days after the receipt of a license fee for public hacks
or entertainments, the same shall be paid to the supervisor. (Town
L., § 215.)

For a period not exceeding twenty-one years, may lease gospel and
school lots. (Educ. L., § 360.)

Within ten days after the appointment or commitment of a person
to a state charitable institution, shall make a written report thereof
to the clerk of the board of supervisors. (State Charities L., § 450.)

Agriculture.

Within thirty days after request by commissioner of agriculture,
shall furnish information concerning agriculture in town or ward,
(Agri. L., § 281.)

Bond of Supervisor.

Before receiving highway moneys, shall give an undertaking to the
town. (Highway L., § 104.)

Within twenty days after the passage of a resolution transferring
the duties of railroad commissioners to the supervisor, said super-
visor shall give bonds. (Gen. Mun. L,, § 227.)

Within ten days after the passage of such resolution the board of
town auditors shall meet for the purpose of fixing the penalty of the
bond of said supervisor. (Gen. Mun. L., § 229.)

Filing Undertakings.

Ten days after the execution by a constable of his undertaking,
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1263

shall cause the same to be filed in the town clerk’s office. (Town L,,
§ 116.)

Within ten days after the delivery by the town superintendent of
the undertaking for the faithful discharge of his duties, shall file the
same in the office of the town clerk. (Town L., § 111.)

Within ten days after the delivery by an overseer of the poor of an
undertaking for the faithful discharge of his duties, shall file the same
in the office of the town clerk. (Town L., § 113.)

Within six days after the delivery by a collector of an undertaking,
shall file such undertaking in the county clerk’s office. (Town L., §
115.)

Incorporation of Village.

Within ten days after the receipt of a proposition for the incorpora-
tion of a village, shall cause to be posted a notice that a hearing will
be had upon such proposition, and,

Not less than ten nor more than twenty days after the date of post-
ing such notice, such hearing shall be held. (Vill. L., § 4.)

Within ten days after such hearing is completed, shall determine
whether the proposition, etc., comply with the village law and shall
file his decision in the town clerk’s office, and,

Within ten days from the filing of such decision, if no appeal is
taken therefrom, it shall be final. (Vill. L., § 6.)

Within ten days after the filing of the decision, notice of an appeal
from the decision of the supervisor must be served, (Vill. L., § 7.)

Not less than ten nor more than twenty days’ notice is required to
bring the appeal on before the county court. (Vill. L., § 8.)

Within ten days after the date fixed in the notice of argument, the
county court shall make and file an order affirming or reversing the
supervisor’s decision. (Vill. L., § 8.) ,

Taxation.

On or before October first, the assessment roll shall be delivered by
the assessors to the supervisor. (Tax L,, § 39.)

For a period not exceeding thirty days, in certain cases, if he deems
it necessary, may extend the time for the collection of taxes, and,

Forthwith, shall give notice of such extension to the county treas-
urer. (Tax L., § 86.)

Not less than five nor more than twenty days before a tax upon a
special franchise is payable, shall make and deliver to the collector or
receiver of taxes a certificate showing the amounts which have been
paid during the year. (Tax L., § 48.)

Within thirty days after the delivery of a transcript by the county
treasurer of a tax on resident real property returned as unpaid, shall
1264 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

cause an accurate description of such property to be returned to said
treasurer, etc. (Tax L., § 89.)

Water Works; Petition for Purchase,

At the town meeting after the submission of a petition of taxpayers
for the purchase of water works by the town, shall submit the question
whether such works shall be purchased. (Town L., § 271.)

For at least four weeks immediately preceding election, notice that
such question will be submitted shall be published once a week.
(Town L., § 272.)

SUPERVISORS IN CITIES.
Two years shall be term of office. (Gen. City L., § 2.)

SURROGATE.
See Couny Judge.

Six years, is term of office, except in New York County. (N. Y.
Const., Art. VI, § 15; County L., § 230.)

Fourteen years is term of office in New York county. (N. Y. Const.,
Art. VI, § 15.)

Before entering upon the duties of his office, shall execute an un-
dertaking, and,

Within fifteen days of notice of his appointment, if appointed, shall
execute an undertaking. (County L., § 231.)

Quarterly shall be paid salary by the county treasurer except in
Kings, Broome and Westchester counties. (County L., § 233.)

On the first day of each annual meeting of the board of supervisors,
shall make a report of all fees received or charged by him and of all
disbursements. (Code Civ. Pro., § 2501; transferred to Surrogate
Court Act, as § 31, by L. 1920, ch. 928, in effect April 15, 1g2r.)

On the first days of January, April, July and October, shall make a
report to the state comptroller concerning taxable transfers. (Tax
L., § 239.)

Within ten days after admitting to probate the will of a non-resi-
dent or granting original or ancillary letters upon the estate of such
a person, shall transmit to the secretary of state a certified copy of the
will or letters. (Code Civ. Pro., § 2503; transferred to Surrogate
Court Act, as § 33, by L. 1920, ch. 928, in effect April 15, 1921.)

Immediately after the passage by the board of supervisors of a
resolution determining that the officers of surrogate and county
judge shall be separate, the clerk shall deliver such resolution to the
county clerk, and,

Within ten days thereafter, the county clerk shall transmit a copy
of the resolution to the secretary of state. (County L., § 231.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1265

TAXATION.

See Board of Supervisors; Collector; County Treasurer; Register;
Supervisor.

TOWNS.

See Under Various Town Officers.

Alteration of Boundaries.

Four weeks preceding the presentation of an application to alter
bounds of a town, notice of the application shall be posted. (County
L., § 35.)

Six weeks preceding the meeting of the board, such notice shall be
published. (County L., § 35.)

Fourteen days’ notice of first election in a new town shall be posted.
(County L., § 36.)

Establishment of Disputed Town Line.

Four consecutive weeks preceding a meeting of the board of super-
visors, notice of intention to apply to the board to establish a boundary
line shall be published, and,

Fifteen days before the meeting of the board, such notice shall be
served on the supervisor and town clerk of each town to be affected,
and,

Thirty days after adoption by the board of the resolution concern-
ing such line, a copy of the resolution shall be filed in the office of the
secretary of state, (County L., § 37.)

Investigation.

Ten days’ notice shall be given to the supervisor or to the officers
of a town or village of an investigation into the financial affairs
thereof. (Gen. Mun. L., § 4.)

TOWN ASSESSORS.
See Assessors.

TOWN AUDITORS.
See Tewn Board.

At any biennial town meeting, the electors may determine by ballot
whether a board of town auditors shall be elected. (Town L., § 150.)

At the biennial town meeing held thereafter, town auditors shall be
elected. (Town L., § 151.)

Within sixty days after the town meeting, when it is determined
to elect a board of town auditors, the town board shall appoint such
auditors. (Town L., § 152.) ,
1266 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

Within ten days after receiving notice of appointment, shall file oath
of office. (Town L., § 152.)

Within ten days after the town meeting at which the power and
duties of railroad commissioner have been transfered to the super-
visor, the board of town auditors shall meet for the purpose of fixing
the penalty of the bond of said supervisor. (Gen. Mun. L., § 229.)

TOWN BOARD.
See Town Auditors; Overseer of the Poor.

In July of each year, shall notify the sewer commissioners of the
amount to become due for principal and interest during the ensuing
year on bonds issued for the construction of sewer system. (Town L.,
§ 237.)

On or before July first, may divide the town into election districts.
(Elec. L., §§ 296, 297.)

On or before September, shall appoint inspectors for created or
altered districts. (Elec. L., §§ 296, 297.)

At any time between the general election and on or before Au-
gust fifteenth following, election districts for the use of voting ma-
chines may be created. (Elec. L., § 419), and,

On or before September first, shall appoint inspectors of election for
such districts. (Elec. L., § 419.)

On the first Tuesday of September, shall designate the places for
registry and voting. (Elec. L., § 299.)

Annually on or before December first, shall certify to the county
superintendents of poor, the name, age, sex and native country of
every poor person relieved and supported by the overseers of the poor,
together with other matters. (Poor L., § 27.)

On the last Tuesday of December, in the counties of Rockland, Or-
ange and Sullivan, shall meet for the purpose of receiving the accounts
of town officers. (Town L.. § 585.)

On December 28th, town officers of Onondaga county, shall account
to the town board for moneys received, etc., and,

Within three days, thereafter, such board shall file a statement of
such accounts with the town clerk. (Town L., § 534.)

On the Tuesday preceding the annual meeting of the board of su-
pervisors, shall hold a meeting for the purpose of auditing accounts
against the town. (Town L., § 133.)

On the Friday preceding the annual meeting of the board of super-
visors, town board and the commissioners of certain fire districts shall
meet. (County L., § 39.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1967

At the annual meeting of the board of supervisors, shall present to
the board a statement of the apportionment of amount due for the
construction of a sewer system. (Town L., § 237.)

Ten days previous to the annual town meeting, shall cancel bonds
and coupons paid. (Town L., § 194.)

On the Tuesday preceding the biennial town meeting, and on the
corresponding date in each alternate year, town board shall meet at
the office of the town clerk. (Town L.,.§ 131.)

On December 28th, in towns where the biennial town meetings are
held at the time of the general election, town boards shall meet at the
office of the town clerk. (Town L. § 131.)

Upon the Thursday next preceding the annual meeting of the board
of supervisors, the town board shall meet at the office of the town
clerk. (Town L., § 131.)

Two days’ notice shall be given of a special meeting of the town
board. (Town L., § 131.)

On the Tuesday preceding the biennial town meeting, and on the
corresponding date in each alternate year, or on December 28th, all
town officers receiving or disbursing moneys of the town shall account
to the board, and,

Within three days thereafter the board shall file with the town clerk
a statement of such accounts, etc. (Town L., § 132.)

At its annual meeting on the first Tuesday after general election,
may adopt the labor system for removing snow. (Highway L., § 78.)

At its meeting held on the Thursday succeeding general election day,
shall consider the estimates contained in the written statement fur-
nished by the town superintendent. (Highway L., § 91.)

At any regular or special meeting, may vote certain sums of money
for the purpose of defraying the expenses of the proper observance of
Memorial Day. (Town L., § 136.)

Within sixty days after the town meeting, when it was determined
to elect town auditors, shall appoint auditors, and,

Immediately, shall cause such appointments to be filed with the
town clerk. (Town L., § 152.)

Six months after town meetings concerning the disposition to be
made of town property upon the alteration of town boundaries, if no
agreement is made, the town property shall be sold. (Town L., § 30.)

At least three days’ notice to members of town boards shall be
‘given of meetings relative to the alteration of the town boundaries.
(Town L., § 32.)

Thirty days from the time an assessment for sidewalk improvement
is finally made, shall issue bonds for the amount of assessment remain-
ing unpaid, and, 3
1268 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

Annually, at its annual meeting, shall report to the board of su-
‘pervisors and submit a statement showing the amount due on cer-
tain bonds issued for sidewalk improvement. (Town L., § 253.)

From time to time may lease, for certain purposes, buildings or
parts of buildings of a town in a county adjoining or containing a city
of the first or second class. (Town L., § 135.)

Within thirty days before an election for town officers, shall appoint
inspectors of election. (Elec. L., § 311.)

For a term not exceeding five years, may lease a lockup. (Town L.,
§ 351.)

For a period not exceeding ten years, may contract for the lighting
of streets, etc., of a lighting district. (Town L., § 260.)

Not less than ten nor more than twenty days after the filing of a
petition for the establishment of a water supply district, the town
board will meet and consider the petition. (Town L., § 285.)

TOWN CLERK.
See Dogs.

Two years is term of office of. (Town L., § 82.)

On or before the fifth day of each month shall remit to the county
treasurer all license fees and other funds from any source received
»by him during such month for the registration of dogs. (Farms and Mar-
kets L., § 122.)

First Monday of July, every three years, the town clerk, supervisor, and
and assessors of each town must meet to make list of trial jurors. (Jud.
L., § 500.)

Within 30 days next preceding July first, a statement of the value
of special franchises shall be filed with the town clerk, and,

Annually between November 15th and December 15th, shall trans-
mit to the highway commission information concerning certain town
officials. (Highway L., § 109.)

Fifteen days before the meeting of the board of supervisors, a copy
of the notice of intention to apply to the board to establish a town
boundary line, shall be served on the clerk of the town to be affected.
(County L., § 37.)

On the Thursday preceding the annual meeting of the board of
supervisors, the town clerk shall present to the town board the assess-
ments made by the town superintendent of highways against owners
for the cost of removing weeds, etc., from the bounds of the highway.
(Highway L., § 55.)

?
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1269

Before the annual meeting of the board of supervisors, shall deliver
to the supervisor certified copies of all entries of votes raising money,
made since the last meeting of the board of supervisors and recorded
in the town book. (Town L., § 92.)

At least twenty days’ notice of a special’ town meeting, shall be
posted in four places, and,

Once a week for two consecutive weeks, such notice shall be pub-
lished. (Town L.,, § 47.)

Within twenty days of the holding of any town meeting, shall cer-
tify to the county clerk the names of the persons elected to office, etc.
(Town L., § 92.) ;

Within two days after the town meeting, the poll-list and minutes
‘of the proceedings thereof shall be filed in the office of the town clerk.
(Town L., § 62.)

At least one day before a town meeting, held at a time other than the
day of the general election, shall post a notice of the nominations.
(Elec. L., § 132.)

At every annual town meeting the town clerk shall produce the ac-
count of the overseer of the poor for the preceding year. (Poor L.,
§ 26.)

On the day following the town meeting, at ten o’clock in the fore-
noon, shall meet with the justices of the peace and recanvass the
votes, when the town meeting has been held by election districts.
(Town L., § 65.)

On the Thursday succeeding a town meeting, held at the time of the
general election, the votes shall be recanvassed. (Town L., § 67.)

Within ten days after the town meeting, shall transmit to any per-
son elected to a town office whose name was not on the poll-list as a
voter, notice of his election. (Town L., § 64.)

Immediately after final adjournment of the annual meeting of the
board of town auditors, shall prepare a list of all accounts, etc: (Town
L., § 133.)

Within ten days after the adoption of a proposition to change date
of town meeting to the general election day, a certificate to that effect
shall be filed in the office of the county clerk and also with the clerk of
the board of supervisors. (Town L., § 41.)

Within ten days after the election of a justice of the peace has been
declared, shall transmit to the county clerk a certificate of the result
of such election. (Town L., § 94.)

Immediately after the qualification of any constable, elected or ap-
pointed in the town, shall return to the county clerk the name of such
constable. (Town L., § 92.)
1270 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

Within ten days after the execution by a constable of his under-
taking, shall file the same in his office. (Town L., § 116.)

For a term not longer than one year nor shorter than three months,
may issue licenses for hawking and peddling. (Town L., § 211.)

Within ten days after the filing of a jury list, shall gave a certified
copy thereof to the justices. (Code Civ. Pro., § 2990; transferred to
Justice Court Act, as § 220, by L. 1920, ch. 937, in effect April 15,

1921.)
Elections.

At the opening of the first meeting for registration, shall deliver to
the inspectors copy of register and poll book of preceding election.
(Elec. L., § 183.)

At least two months before each general election, the secretary
of state shall transmit to the custodian of primary records a notice
of the town officials to be voted for at such election. (Elec. L. § 293.)

Three days before election, shall post lists of nominations. (Elec.
L., § 131.)

At least one day before an election held, not at the time of the gen-
eral election, official ballots shall be provided, and,

At least two days before such election, sample ballots shall be pro-
vided. (Elec. L., § 342.)

One half hour before the opening of the polls, shall cause ballots
and stationary to be delivered to the inspectors. (Elec. L., § 343.)

Fire District,

Within thirty days after the establishment of a fire district, an elec-
tion for commissioners and treasurer thereof shall be called by the
town clerk, and,

Not less than thirty days prior to expiration of terms of office, subse-
quent elections shall be called, and,

Within thirty days after a vacancy in such offices occurs a special
election to fill the vacancy shall be called. (County L., § 38, subd. 2.)

Ten days before the holding of a meeting of the taxpayers of a fire
district, for the appropriation of money, notice thereof shall be posted.
(County L., § 38, subd. 5.)

Improvements.

Within ten days after the filing of a certificate by town commission-
ers of local improvements relative to improvements to be made, shall
give notice of a special election upon the question of spending money
for such improvements, and,

Not less than ten nor more than twenty days prior to such election,
twelve printed notices thereof shall be posted in conspicuous places
in the town. (Town L., § 433.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1271

Incorporation of Village.

Within five days, shall give notice of an election to determine the
question of incorporating a village, and,

Not less than fifteen nor more than twenty-five days from the post-
ing of such notice the election shall be held. (Village L., § 10.)

At least ten days before the date fixed for an election to determine
the question of incorporating a village, shall serve a notice thereof
on the supervisor and town clerk of each town in which any part of
the proposed village is situated. (Vill. L., § 11.)

Within five days after the service of a notice of appeal from an elec-
tion upon the question of the incorporation of a village, shall trans-
mit to the county judge a certified copy of the notice of appeal and of
the certificate of election. (Vill. L., §§ 7, 16.)

After ten and within fifteen days from the filing of the certificate
of an election upon the incorporation of a village, shall deliver a cer-
tified copy thereof to the secretary of state and to the county clerk.
(Vill, L., § 22.)

Within five days after the right to an election of officers is com-
pleted in a village newly incorporated, the town clerk shall appoint.
a village clerk and inspectors of election. (Vill. L., § 27.)

Local Option.

Twenty days before town meeting, petition for local option election
may be filed, and,

Within five days after such filing, town clerk shall file in office of
county clerk, certified copy of such petition, and,

At least ten days before town meeting, notices of local option elec-
tion shall be posted in four places, and,

At least five days before town meeting, such notice shall be pub-
lished, and,

Within five days after filing petition and order for special local op-
tion election, town clerk shall call such election, and,

Not less than twenty nor more than thirty days after filing such
petition and order, such special local option election shall be held, and,

Immediately after submission of local option questions, a certfied
copy of result shall be filed with commissioner of excise and with
county treasurer. (Liq. Tax L., § 13.)

Marriages.

On or before the fifteenth day of each month, the town clerk shall
file in the county clerk’s office each affidavit, statement, license and
certificate which have been filed with or made before him during the
preceding month, (Dom. Rel. L., § 19.)

4
1272 TIME TABLE FOR TOWN AND COUNTY OFFICERS.

On or before the tenth day of the month succeeding the date of a
marriage, the person solemnizing the same shall return the marriage
license to the town or city clerk. (Dom. Rel. L., § 14.)

Taxes.

Within five days after the delivery of the warrants for the collection
of taxes, shall furnish to the collectors transcripts of notices filed by
non-residents. (Tax L., § 70.)

Forthwith upon receiving from the county clerk data concerning’
corporations, shall file the same in his office and mail a notice of such
filing to each of the assessors. (Tax L., § 29.)

Water Works.

One week’s notice of the filing of a petition for the establishment
of a water supply district shall be published. (Town L., § 285.)

For at least four weeks preceding an election upon the question
whether the town shall purchase water works, notice of such election
shall be published once a week, and,

At least thirty days prior to election, notice thereof shall be posted
conspicuously in the office of the town clerk. (Town L., § 272.)

TOWN COMMISSIONERS OF LOCAL IMPROVEMENTS.

One year is term of office of. (Town L., § 432.)

Within twenty days after notification of appointment, shall execute
a bond. (Town L., § 432.)

Within thirty days after appointment, shall meet and organize.
(Town L., § 432.)

Within three months after appointment and at any time thereafter
not to exceed twice a year, shall certify the nature of improvements
to be made and file such certificate in the town clerk’s office, and,

Within ten days after the filing of such certificate, the town clerk
shall give notice of a special election to vote upon the question of
spending money for such improvement, and,

Not less than ten nor more than twenty days prior to such election,
notice thereof shall be posted. (Town L., § 433.)

Annually, shall deliver to the town auditors an account of moneys
received by them from the sale of bonds for local improvements.
(Town L., § 438.)
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1273

Upon the completion of their work, or the expiration of their term
of office, shall deliver a final account of moneys received, etc, (Town

L., § 438.)
TOWN MEETING.

On the second Tuesday of February shall be held, but the board of
supervisors may fix a time for the biennial town meeting either be-
tween February first and May first or on the first Tuesday after the
first Monday in November of an odd numbered year. (Town L., § 40.)

Before entering upon his duties, the clerk of a town meeting shall
take the constitutional oath of office. (Town L., § 50.)

TOWN SUPERINTENDENT OF HIGHWAYS.

Two years is term of office of. (Town L., § 82; Highway L., § 42.)

On the Thursday succeeding his election, if he is elected at a town
meeting held at the time of the general election, his term of office shall
begin, but,

On November first, if he is elected at a town meeting held at some
other time, his term of office shall begin. (Highway L., § 42.)

Within ten days after notice of his election or appointment, shall
execute an undertaking. (Town L., § 111.)

Within ten days after the execution of contracts for the construc-
tion of highways, shall file such contracts with the town clerk. (High-
way L., § 48.)

Annually shall make a written inventory of road machinery, tools
and implements, etc. (Highway L., § 49), and,

On or before October 31st, Shall deliver such inventory to the su-
pervisor, (Highway L., § 49.)

Annually, on or before October 31st, shall make a written state-

ment in respect to the amount of money which should be raised by
tax in a town for the ensuing year. (Highway L., § go.)
Annually on or before November 15th, in towns adopting the labor
system for removing snow, shall divide the town into a convenient
number of districts and file a description thereof in the town clerk’s
office. (Highway L., § 79.)

Immediately after the division of the town into such districts, shall
appoint a foreman in each district. (Highway L., § 81.)

On or before May’ first, the district lists shall be returned by. the
district foreman to the town superintendent. (Highway L., § 81.)

Whenever the highways are obstructed by snow, the town super-
intendent shall immediately call upon the persons and corporations in
such district assessed for labor to assist in removing such obstruction,
and,
1974: TIME TABLE FOR TOWN AND COUNTY OFFICERS.

On or before September first, shall make out a list of persons, cor-
porations, etc., who failed to work out their labor assessment, etc., and,

On or before October 31st, shall file with the highway commission
a statement showing the number of days’ labor assessed, and,

On or before June first, shall file with the highway commission a
statement showing the number of days’ labor performed or commuted
for, etc. (Highway L., § 82.)

During the months of April and October of each year, or at such
other time as the district or county superintendent shall prescribe,
shall inspect the highways and bridges within the town, and,

Between April first and December first, shall cause loose stones ly-
ing in the beaten track of the highways to be removed at least three
times, and,

Once between the first and thirtieth of July, and once between the
first and thirtieth of September, shall cause noxious weeds growing
within the bounds of the highway to be cut and removed, and,

Once between the first and thirtieth of September, shall cause the
briers and brush within the bounds of the highways to be cut and
removed, and,

Annually on such date as may be prescribed by the highway com-
missioner, prior to November 15th, shall report to the district or
county superintendent in relation to the highways and bridges. (High-
way L., § 47.)

Once in June and once in August, the owner or occupant of lands
situated along the highway shall remove noxious weeds, and,

In August, such owner or occupant shall remove briers and brush,
and,

Before November first, such owner or occupant shall remove brush,
shrubbery and other obstructions within the bounds of the highway.
(Highway L., § 54.)

Eight days prior to an assessment of the cost of removing weeds
from the highways, notice of the time and place of such assessment
must be served on the owner, etc. (Highway L., § 55.)

Within ten days after the making of an order authorizing the own-
ers of property to plant trees and construct sidewalks along the high-
ways, such order shall be filed in the office of the town clerk. (High-
way L., § 61.)

Within sixty days after the service of the decision of, as to improve-
ment of highways on Indian reservation contained therein, appeal may
be taken to the county judge. (Indian L., § 12.)

TREASURER OF COUNTY.
See County, Treasurer,
TIME TABLE FOR TOWN AND COUNTY OFFICERS. 1275

TREASURER OF FIRE DISTRICT.
See Fire District.

TRUSTEES OF BURIAL GROUNDS.

Two years is term of office of. (Town L., § 330.)
Within one year after the conveyance of grounds, shall lay the same
out into burial lots. (Town L., § 331.)

TUBERCULOSIS HOSPITAL,
See Board of Managers; Superintendent.

VILLAGE TREASURER.

Monthly the village clerk shall pay over the fees and penalties col-
lected under the dog registration statutes. (County L., § 135.)

WATER COMMISSIONER.

Before entering upon the duties of his office, shall take the oath of
office and file an undertaking, and,

At any time may be required by the town board to file a new un-
dertaking. (Town L., § 286.)

Once in each of two successive weeks, an advertisement for pro-
posals for the construction of a water system shall be published.
(Town L., § 287.)

Annually, shall apportion the amount to be raised for the payment
of the principal and interest of certain bonds for water purposes.
(Town L., § 289.)

On the Thursday preceding the annual meeting of the board of su-
pervisors, shall present a statement thereof to the town board. (Town
L., § 289.)

Ditches, Repair or Enlargement.

Two weeks’ publication is required of a notice by a water commis-
sioner that he will examine a ditch which is the subject of a petition
for repair or enlargement, and,

Fifteen days before such hearing, first publication of the notice shall
be made, and,

Within ten days after receipt of such a petition, it is the duty of
the commissioner to make a personal examination of the ditch. (Drain-
age L., § 62.)

Two successive weeks’ advertisement is required for bids or pro-
posals for repairing or enlarging a ditch. (Drainage L., § 65.)

Thirty days after mailing of notice of assessment for repairing or
enlarging a ditch, the same shall be paid. (Drainage L., § 70.)

4
INDEX.

[Time Table of Town and County Officers is arranged alphabetically, and refer-
ence should be made to the proper heading in such table. See pp. 1217 to 1275.]-

A
Abatement— PaGeE.
of highway tax for planting shade trees................05 Bahr 835
on account of watering trough....... cece eee e tte tee e ee eeee 836
Abandonment—
of wives and children, by husbands.......... cc cece eee eee eee ee eens 759
seizure of property for support.......... cece eee eee eee e teens 769
Warrant: Of SeIZUTE. 6664 84 sicsu ee nine Gble deed SOS ES EHO RAEN Re 762
sale of property seized... . ccc cece cece cece eee eee eens 762
application of proceeds for support of children................ 763
redemption by superintendent...... cc. ccc cece eect cece eee e eee e eens 765
Abstract—
of county accounts to be published...... cece eee ete e cece eee eee eeee 96
of town accounts...... Aside sachesaie palmer oleic s-cuinle’s aurea s aeuae oom 390
Accounts—
against county, to be itemized...... wiser coto-appickaniie bea Gehuel a aneatiauecstaaravaaee 8 27
VETINCACION oxi eos Rea ees Hawes Sewage ea ees Oe sT ORNs 27
sufficiency of presentation..........cec cece eee cece eee e cnet enees 34
fraudulent presentation of........... 0c cece cece cece e eee ene eeee 37
additional requirements, supervisor may make.................004. 35
duties of county comptroller as to...... 0.6... ccc ce eee eee 119
against town, of town Officers........ cece cece cece e tenet nent ees 376
meeting of town board for audit............ cece ccc eee ee eee ee 377
audit by town board......... cece eee cece cece e eect eeeeee 377-382
certificate of rejection and allowance...........0. cece eee ete ees 378
ME GE eine, hvtsd scecheualiaveceucubaereve veesnaame: bik apaaarar ok dvcveuanasehndusanarnaisanan eee 377
audits how Madé .ic.c04<4 eae eon oas'g oe eae ne awed ened ene wee ge Gee 378
of justices of the peace and constables...............00cceeeeeeeee 383
What: to CONTAIN § i's sees ei wee rca gee se Ge Vita awe ees cee see ae 384
fees in criminal proceedings................ 6c c cece eee eens 384
LOTT sh Zicg's BEG eGo eae eae: ned oane sa aie eat a 386
Verification: s-i0 2 Wsisbeaies DORSET cose ARN A Dee wala henald ne aug 386
town charges .......sccereec eee e ect e reece ent eee e tent ene enes 388
audit by town auditors........ 6. cee eee eee eee eee teen eee 391
by board of supervisors.......-..-.- 0 cece cece eee eens ‘26-50
by town board......ceeeeece rece e eee ence cence eee e nee eeee 377-393
by county auditor...... 6.6 cee cece eee ene eee eet r eee enes 124

See Audit; Board of Supervisors ; Town Auditors ; Town Board.
(1277)
1278 INDEX.

Actions— PaGE.
in, Haime Of COUNEY ewisne sacieeis oelaed sie a dad eles ce sa iia savanabae« bivederesouaiieae 2
by and against a county.......... cece cece eee eee ects Shinleteshiascom ens 3
on claim against county, necessity of audit..........eeeee seen eens 5
against county, for injuries caused by defective highway............. 7
special town meeting to raise money to prosecute or defeud............ 253
prosecution or defense, town meeting to direct............20-e ee eee 248
power to borrow money for...... ce cee eee ence e eee e eee ee eee neeee 248
for penalties, to be prosecuted by supervisors...........+ sisisiaelaaie ete 323
by and against town, in name of town........... Cue SER ise hee RES 393
for trespass: on, town JandSiicd os viv ess vaae 6 MEER 4A o eaOG oa ee ST Oe 396
against officers to prevent illegal acts...... eaten ea Sines we YS a 1044-1054
An Official, CAPACitless cscs wc ote eto acanec ese ede oo SAA RE RTS 1054
for malfeasance in executing municipal bonds........... cece ee eee 1053
Agricultural Lands— '
Orainage: Of a5 245. suse: ae Siete wie 6 andes aie Aade rs Daa REA eee aati avewea 262x
PO EMOTE soy as5 sere dais ynisnbudta Gude evens ardent BS Cacnemee Sea osetia aathow es waves 462x
hearing; determination; damages.......... cece e reece cece neceece 462x
review of determination....... 0... cece cece ccc ee ne cere rerscenee 462y
payment of damages; entry....... cee eee eee eee reece enee Sacehanw 462y
Agricultural Society—
real property exempt from taxation............eeeeeeeeeee setae L asaroedoe 483
Agriculture—
improvement, board of supervisors may appropriate for......... saihews 65
Albany Post Road—
railroad tracks not to be constructed on... ....ee cece cere eee eens -. 973

Alms-Houses—See Poor Persons; Superintendents of Poor.

erection, alteration, and acquisition of lands for...................000, 58
contagious: diseases. “IMs sie. s¥ee sia ee eae desgeleded wes Go imareie aa die 452
acquisition of site and erection of buildings.............. 0.0.0... e eee 71
superintendent of poor to control.......... 0... cece eee 672
to MAKE: TUES: AS) COs. dew ees emi sonra Cg PAE ES TR ETS ONO 672
to: appoint keeper: sass cceas a vannees Ment ee ee nese beh tate hee ows 672
to purchase supplies, etc............... Co bein Bitte seeder Hd teuge pee eae 672
to prescribe allowance for bringing poor persons.................. 673
keeper, when superintendent to act as........... cece cee eee ees 675
pestilence in, inmates to be removed.............. 0.00 c cece cee e eens 677
statement of amount expended for town poor................000000eeee 677
register, what, to contaitw. cisco scime ay ee ense de ered RSS ese se Gum 680
children not to be sent to. ,..... cc ccc cece eee cece eee eee nes 682
not to be committed as vagrants............. 0.0.0.0 cece eee ae 682
relief of poor persons; removal to............ 0... c cece eee ee eee 714
expense Of TEMOVE. sis vied esidies ssa sane dw iead Genny OY EROS ye ena 716
Support Of Poor Persons... os asec era ena ver sean deveiieyes Mae edd wae eee aI 716
state board of charities, duties as to.... 0.0.20. 685
visitation and inspection.............. 0... c cece ccc eee e ee eees 685
treatment of inmates; investigation.................0.0 ccc cease 686
approval, Of plans: siecc yas ede 04 sadn aalod ened dakar a gesis en betes 686
attorney-generai and district attorneys to aid in investigation....... 687
state poor in, inspection to ascertain.............. 00.00. e cee een 687
visitation by state charities aid association.................. 000000000 687
removal of bastard and: mother to........... 000... c ccc eee cece eee eee 751
state poor maintained in.......... cece cece cece eee e eee eens 173
expense paid by state.......... ccc cee ee nese a nene 774
visitation and inspection.............. 0. cece ccc e eee e cece eee eees 775

Indian poor, maintained in.............. 0.0 eens 778
INDEX. 1279

PAGE.
American Legion—
appropriation in certain counties for rooms for use........eeceeceaeecs 399a
lease of public buildings to posts of ...........c.eceececececcceceecs 437
relief of poor veterans............ cece cee eee c cece eceeeaceeueueueucs 767
Amusements—
licenses required; regulation................eecececes Wa thoslecialesne nsec 405
Animals, Noxious—
bounties for destruction of, a county charge........... 0... cece eee e aes 43
board of supervisors may make regulations as to destruction of..... alee 56
town meetings to provide for destruction...................005- ieee ee 249
Animals, Strayed—
lien upon, when doing damage............ 0. cece ee eect ce eee e enna 644
notice: to: be! filed iis cee og tae Veg ee ae eel dea doe ee bdaunins 64d
fees! for TeCOrding. v04.065 ce ees sed ees Me esa SRR NES eee ae eee 645
impounding ......... Ddaa Waa SRR weed MA WME YE FRYER Gay ee aun 646
notice to owner...... Bie vce eco cues hi caesar aoe ti euataits oleae seem a aE AS 8 646
charge for ROUGE sic coca ex ewe atin so oak Daa wds te ese ears Dae be 646
damages, fence viewers to determine........... 0. cece cece te eee e teens 646
fees of fence VICWEISs osece es nsnes nie red sees Memd eee MEG HE eG ES 647
PLOCHRMINGS sds site seasee ieee TDed eee genera Ou ae GORE Gee 648
POTeClOSUKE: OF WEN i cies so aieveceisiee- sage Since meee Za Qubls gee ScecD deasbonew Eee Buenas 647
DY ACHON oerdsic secreted Gay Ce LAW ed pied sauna es aN Olina Beg 649
sale: by fence Viewers. i. saseek sueea eae ge Peed oe SRa ee eee 647
proceeds, disposition ..........e ee cee eee eee eee ero ie datas al cia ganas 647
surplus, when unclaimed........... 0 ccc cece e eee ee eee eens 649
pound masters, duties and fees......... 0... cece cece etree teen eeeeee 649
villages and cities deemed tOWNS...... 0.0... cece cece ete tent eeeees 650
Appellate Division—
sheriff or deputy to attend termS........... cc cece eee eee et etree eens 167
rooms, care and maintenance........ 0... cece cece cee eect eeeee 167
Assessment—
ascertainment of facts for.....-..- sce ec eee enter eee te nee 512
time Of cee 0s tes sense ean tame a4 avoir sainnadeecolandia dew es 4 eae oe weal ars 513
of state lands in forest preserve............-...0-000+ SECA RER USI aRL REY 521
eopy of assessment-roll to be filed in offices of comptroller and for-
ESET DOATG, aes ssasiap ee nore eet No gisaioieand 4 Cahn a Mavala aftawnieas 521
OF “bamle: Sha reg ssc saccranten «vials £5 wise eta Anes Rg Aree T aga et ace ea eee leh 522a-524
of- individual bankers ‘iy coe sosse eee dee nsy KORTE MER Kea ade ags GH RS 524
notice of, to bank or banking association................0. cc sees eeeee 524
of corporations, how made.......... cece eee eee eee tenn e ee big eae 525-527
county clerk to furnish data respecting..................-- See 527
of agent, trustee, guardian, executor or administrator................. 532
of property omitted in Preceding year.....s ses ee ccc ccecnnceerccces sae 533
reassessment of mapped lots illegally assessed............ a leyevend tree c aae 534
of debts owing to nonresidents of United States.......... dialed HOG 484 535
of special franchises, see Special Franchises...........c0seees fe nee 549-555

equalization by board of supervisors, see Equalization of Assessments. . 558
rents reserved, review by board of supervisors...........cee-eeeeeee0. 561
1280 INDEX.

Assessment—Continued. sail
illegal, reassessment by board of supervisOrs.............0 scene eee 366
re-assessment by tax commisSion..........-..eee eee e eee eens 577
procedure before commission.......... 0.0 cece eect eee eens 577

unpaid taxes, re-assessment on resident real property............-..50- 608
imperfectly described property, re-assessment..............-. 00 ee ee eens 608

of highway tax, see HighwayS.......... cece cece eect e eee eens 853-855

Assessment-Roll—See Assessors ; Taxes ; Taxation, ete.

extension of, allowance to supervisOrs.......... 0. cece eee ee eee eee eee 20d
preparation of, by assessors... 2... 0... cece cee eee ee eee ce eee eee 513
form, to be prescribed by tax commission.............. 0000 eee e eee 513, 517
names of taxpayers to be included. ........... 0.0... 0c cee eee eee 514
real and personal property separated.......... 0.0.00 e cece eee eee 515
description: Of TaNdS wis. 0.24904: bc nated Gamat e Rae Rea RAO Ss Dee ws wees 516
name of village and number of school district...................05. 517
exempt property to be separated.......... 0.0... cee cece eee eee 519
designation of real property of nonresidents in...................0 000% 527
to contain assessment of property omitted in preceding year............. 533
COMPLE LION OF esses wage and yeas: SA aca re, auedaveie: SxSy pices ie SoiMNle dnl dre ales 535
notice; contents of notice...... Seika helasele w OAT ea Aa Dw eas ae ae OE 536
NOLICe. FO MONTESIMENES!. 0.0 6 Saicinne canine nd yin Vea gas eis Sere aS 537
werification: Of sane vaaauw ss Saeed ewseg veeings sea gigsinda gee uP TEE ESE Res 541
sufficiency «oo sa xege sense lane ee ss eieew ss kee EEK ee eG a eee Y 542
when completed to be open to inspection................0 eee eee eee ee 543
notice that it is open to inspection...... sions! Sitast sage Pha tarry mae Suna 544
to be filed in office of town clerk... 0... ... cece eee eee 544
to be delivered to supervisor........... Lanes ie Rolans ere analeie's aaante 544
descriptions of nonresident real property changed by board of supervisors. 561
correction of errors in, by board of supervisors.....................04- 561
correction of manifest errors...... eee eee eee eee ees 563
eorrection of errors as to nonresident real property................0005 566

Assessors—See Exemptions; Taxes; Taxation; Town Officers.

Gléctiony » «<4 weed badness Gene oes aes he Rao ESR ORY ROe Ere cele aca on 281
term of office........ csc eee eee a yee a sts atid uate neni Se dysdees 8 haute s BSS ican 282
compensation ... .......-e0ee- SG eels ese pushed biarearn hana ee on mann ass aaa ey 352
town board may fix; limit... .. 0... . ccc ccc eee eee 353

in. certain Counties: caisccc cin ve Sane Gey ae de eie eee ode oae ae 353
attending conference with state tax commissioners.................. 21
Erie and Nassau counties...........0... 00sec cece ec eee ee cee eeeees 355
Glérkes salaries? cis.ccicans cae ting oh caiaind oo ddan Soraaeauaee Seaow Shenae 355
offices, to be kept open...... ayeaiaie a soto aie eateeue treet iasenese B55
Washington county.....ceeceeee cece cece eee ee eeees si s-4aae lee Sete e -. 856
fence viewers Of tOWN......-c see ee cee nee ee eens Seapetete Dae she g- 8 oon a ave 357
additional clerks and assistants............ 0. ccc ceeccccecccccsenccee 357b
powers as to exemptions........... sees eee cece cece e ence eens 473
report of exempt property by..........seee eee eee eee e eee sages 506
may divide tax district. ......... cece see e cece cece eect ee eeessencece 512
ascertaining facts for assessment.............. dG ie Hw RS A BYE Goo oD 512
majority of, must act......... a eleteton ts HSE PSMES ETE SS Meaee ewlnatde ore 512

time of making assessment........-.. cece ccece eee cee esescncesecees § 51B
INDEX. 1281

Assessors—Continued. PaGe.
assessment-roll, preparation of.......... ccc cece cee cee ee eee eee naeee 513-519
assessment of state lands in forest preserve..............00.e000s see. 521

to file assessment-roll in offices of comptroller and forestry board.. 521
FOpPOrh. of “bakes: tOs.cncGiaed ease daw aces Siew a's Sago wre cara dead Se ae 522a
statements of corporations tO.......... 0. cece e cece eet eeeeeeeees 525

penalty for omission to make...... 0... 1. cece cece cee neee 526

) GME CU, OB saa tities ce vad anit thantihss (ha hee leases reed asada dane a ese ouehees gan aro 526
county clerk to furnish data respecting corporations.................... 527
assessment of corporations, how made.............. 0.0... cee ee eee ee 525-527
to include in assessment-roll assessment of debts due to nonresidents..... 535
assessment-roll, completion Of.......... 6... cece cece cece 535

POL DIVEt AOC CE os syi gSvsueice face ct. spovin dunia duped abla, Gimue Soares aver edan ad. tnlelSie mare iaed du 536
notice to nonresidentS........ 6. cece ccc ee ee eee nes 537
grievance day, to hear complaints on............. cece eee eee eee eens 587
necessity of complaint. cic: cies. secseievisewe saee rises nei sewes 538
statement of complainants........... Sai avis Sauer Geouna tes Hava Gaasuey BcoemaaNaees 538
sufficienty OF «2042 cad ga mea deg Wav aie Ade ene Red Peheeedaeies 538
examination of claimant............ 00.2 eens 539
failure; ‘to appears. ce s.ccwas vic eens dee Sead Mane eee ees die ke aes ary + 540
notice to, of application to County Court for apportionment of taxes..... 541
oath verifying assessment-roll...... 2.0... . cece cee eee eee ee 541
to post notice that assessment-roll may be inspected.................--. 544
valuation of railroad, telegraph, telephone or pipe line companies appor-
tioned between school districts.......... 06. c cece eee eee teens 544
forms prescribed by tax commissioners............-..-... 640 Perea 545
neglect or omission of duty.......... 6. cee cece cece eee een eee e eee 546
duties of, as to special franchise assessment...............000 ee eee eee 551
petition board of supervisors for correction of errors in assessment-roll.. 561
state tax commissioners to meet with......... sainas loon ew ease seve 576

compensation while attending meetings.................ee00. wate es 21

conferences may be called............... eee eeees iWrtatevecwee: 2505

Attorney, County—
board of supervisors may appoint............ ccc cece cece eee cece ees 82, 144

Audit—See Accounts; Board of Supervisors ; Town Board.
effect. of, authorizing action against county.................ccc eee eee 5
of county accounts, what constitutes............0. 0... cece cence eee 26

jurisdiction of board of supervisors as to............... ccc eee eee 26
board: acter FUMICIANY oct. . ed ouewogiveneas taxes yeeieensoddad-seas 27
when board may use discretion.............. 0.0.00 ccceeee eee e eens 28
power not to be delegated.......... 0... cece cen eens 28
how far conclusive.......... Pe LEI REE KO Abe dean pana oanan ens 31
hearing evidence as to claimS........... 0.0... ccc cence ee eee 31
affidavit of value of serviceS............ 0.0000 c cece cece ee cence 30, 31
manner of makings «assis cee eieaind ote oe eh aise dee we HER va eee 29
compelling, by mandamus......... ccc. cece cee ee eee eee eens 33
review by cerftioraris :s sce 6 cece cae cee nde cea duid wave weet vou bes 32
elerk to designate items allowed or disallowed....................- 96
publication of abstracts........ 0.0... enee 96

duties of county comptroller’: : iisice sawing gece dain dasa d wnduersl ea marine 119

by county sauditorscrcc cence dec iayueks va ees Gas pee ewed mages 124
12582 INDEX.

Audit—Continued. Pace.
of town accounts, meeting of town board............ 0. cece cece cece eee 377
POWER OF COW. DOR G oe csrineisin dou aod eedomesve gard Spel areal dies Srdrkaelg PE Rous, va 377
how t6-bé: hadeic.caccde see taaniie- cite dada Gated tase ees 378
certificate, contents: wa ess ses eeagigh oa deeb e Hees 4s Pee gee a es Hew ae 378
duplicate, one to be filed.......... 0.6 ec ec eee eee eee 378

one to be delivered to supervisor........ 0.0.00. cece eee eee eee 378

CT OCD oc ae d 2h BRA ee PASS as RS Ro ilys es BRnGlew suead dei aisiyaenauRenS 379
when claim has been rejected.......... 0.00 ccc cece ee eee eee eee eee 380
compelling, by mandamuS.......... 00... cee eee ee cette teens 380
reviewable by certloratis. «cas dsawa cyt smedeer sags eww ns eas ee ewe = 381
concurrent jurisdiction of board of supervisors...............0.000- 581
of justices of the peace and constables, appeal............. 0.0000 382
accounts, what to contain. ........... 0. ccc cece eet eens 382
fees, in criminal proceedings............0... cece eee ee eee eens 384
salary of justice, in lieu of.......... 0... eee eee ee ee eee 384

when town or county charges............000. 0000 eee eee 384

tramps or vagrants, when fixed by town board............. 385
Vagrants: dehned: i06ccccine esas 06 saree yeaeane dan sea eie’ 385

FOPDy (Of “ACCOUN tS sia aoc praew das Gud aeeiaeeal amie we sheeted Sheu gees 386
Verification ‘by-aMidaviticssec oc darnase dane euwalonne bad aaaaue cepa 386
town Charges: iis.cy wine's ga Gees oe a Fae ee Ee SR ER 388
traveling fees for subpoenaing witnesses............0..e seen eens 391
town auditors, when elected........... ccc cee eee cece eee renee 391
number: and) terms) 1.5 6.6 ogc de Seuss os e's eGR SRB Oe a 391
temporary appointment ........ 0. cece cece eee tenes eS emne Se 392
eredit of accounts by ..............-. iNEiuagne ostnanath wiadve cde ecoyeaen 392
meetings quarterly in towns........... cece eee eee e eee eee eees 393
compensation, fixed by town board............ sii Banas Reet 393
vacancy, supervisor to fill........... ce cece ee eee ee eee Bawa ae 393
discontinuance by vote of town meeting.............ceeeeeeee 393

of illegal claim, action to restrain............eeeeeeee stove waialaue a:spahott -» 1052

Auditors, Town—See Audit; Town Auditors.

B
Bacteriologist, County—
appointment by board of supervisOrs......+.sseeeeseereeseeecesseeves 82
Ballot Clerks—
designation, number, qualifications......... Cis wier ake dea veers 208
in towns, appointment ......eeee eee e ees eee e etter eee ee eee eeeneeeee . 295
Banks—
stockholders taxable on Shares........sceeeeeececcrtceeeeerceeseeees 503
reports to assessors for purposes of taxation.............+... seseeseee 5228
Contents 2... eccces esse eer encaccenes o sisi 8s WSeesh te Nie 4 wie Sie eeeeee 519
penalty for neglect to make........... ss cece eee e cece eee eseeeees 519
assessment of shares............. aaa anauesaueilerers anehcra. ayers Pavan gute aiave esses 5220

complaints as to valuation.........sseeeeeseeeeeeeeceeeeeeeceees 522b
INDEX. 1283
Banks—Continued. PaGE.
notice to bank by assessors........ Ti oeieky Va swiee pated ar eee CO2aRy O20)
TLC OL CAR Sears ota nays cali 2 An Mise ac weans era rinses 9 eign Vie SeaRGNe Waser Serene s 522¢
levy of tax by board of supervisors.......... ccc cece eee cence seeeees 522¢
Collection: Of (tax ssa y sages pene saris ia Male Fe MOTE S 4 EEE BERLE Tania 522e
distribution of tax by board of supervisors............ 20s ccc ee eee eens 523
individual, how assessed: sci cscs eect ev eaee seaweed ceee es snae cece 525
shares of stock excluded for purpose of equalization.............+-004. 559
collection of taxes against........ cece eee cee eee e ence eet eetees 589
levy on stock. ..... cc ccee se cneeseeeencees wiSsarsseit ay ahbaa es eeNe Sree 589
Barbed Wire—
use of, for division fences.........cc cece cere ee eeeeneee Tamaya eGrauans 643
Bastards—See Poor Persons.
removal of mother; Penalties: <scee ssemincd dew ts daw ds coed es eewees ses 744
proceedings ........ tee e aac ate Tet By arldacae ANC An ark MN as AIS Sree 744
SUP POLE: OL MOC ON .o6 seca: ks caue iw. 8 -F optncs, «giataser aie Gupnerd dio lacie Boers Dowie Wavansnssssie Suess 745
GETMIGIOT) caw aessacds bie cace ses bs 8)avtanalprasonayeve boa saene: msaceuen avi. sbpansn ace uaituaederomciee eaneaatiend 745
who liable for support...............02.00. dy wieleletigibsnce igietersisionstere,e woes = 745
mother and child poor persons...............+. tsi Siess ace lakes Sa eas cows = 748
to be supported aS POOr PCTSONS......... cece c ee eee ee eee cee enee -. 746
not to be removed without mother’s consent.............eee cece 746
overseers to notify superintendent.......... cece cee eee eee eee eens 747
superintendent to provide for mother and child.................0006. 747
overseers to support, until superintendent takes charge................ 747
whether chargeable or not..........c ccc cesec eee ee er ensenreecees 747
to apply money received from father...........cceeee cece eeeees 748
compelling father to support........ ccc ccc cece cece eee e eee e een eeee 748
collection and disposition of money for support............-0eeee eee eee 749
Settlement; disputess:..: seasinssiiwnes seo 44 aCe TS WE TES cee eS date ee 750
proceedings when chargeable to another town.............e2seeeee eens 750
order of supervisor for support Of....... cc cece cee cere cece eee eeeee 751
removal of mother and child to alms-house...............0008 ee 751
compromise with father......... ccc e cece secre cree neeee sccieeind fants «== 752
Births—
registration; fees a town charge........... Svs enageuds drarcipenoseveans scacaeeuhl Rose 448
duties of certain officers 28 tO... ... ccc eee e cece ec eee nets eneeee 462a
certificates of, Form ceseccccescccceccs sever en cesceeesncceseesesees 462h
Blind—
institutions to which admitted..............ce esses eee neeekesuiees .- = 705
for relief and education of indigent, appropriations................ 66
maintenance in New York institution................... ee ee 706
board of supervisors to furnish with clothing...............ceeeee 706
State School at Batavia, admission............. 0... cece eee eee eeeees 707
clothing and traveling expenses................. gs siayajenses Sacaunatese 708
itemized accounts against counties......... 0... cece c cece eee eeeeues 708
relief of needy......seee cece eer eeeeeees Biyas eda Ss mull saa Sy faed aban lean saice Qua 71la
application for.......+6-eeeeeeeee Cee e se ewe Eee see Sake ese HRs COS 71la
CONPETES. OF arses oer eisind d: debe seein: prevent -o eetin end oiraleia wi a ajine Sree anetld evel ancien a deere 71le
partial blindness defined......-..---......00. Oe ee re Tila
when person deemed without means of support...........eceeee eee 71la
measure of relief... .s...-eeeeeeee ern bis ohavarwiorts See ee te ee eee rer Tila
eligibility for relief...........+.-..... ERR nies 8p arin ayauavann. a Pyles 68 711b
marriage as affecting................- Some Pind aS trata te x Seatac Wears +e. 711b
change of residence.......... are Seav' caterers caayereaiaa OT TS 711b
investigation by commission...... aid iaudseie esahNOsCiyana ey BOG in laBlelel oa sivee V1le
report of finding and recommendation to supervisors.............45 711le
granting of allowances by board of supervisors................00- 711d
record by commission and board of supervisors..............00000 711d
penalty .....eeeeeeeeeneee pt teeee eee etcetera renee near secon 711d
application to New York city..... Svs lave 0a iin Walib ge atang: 6's aaeee: seals 711d

Board. of Supervisors—See Audit; County Officers; Highways; Poor Per-
sons; Taxes, etc.

constitutional requirement .........0.. cece see eee e eect renee 10
in Nassau county, constitutionality of special act..... dig Siew @ Stalerw wa 10
1284 INDEX.
Board of Supervisors—Continued. Pace.
Meetings and: organizationS...........cecccecvccesecccee tet Eteeeeee 1
election of chairman............ese000 Peererrrrerr errr reer rere 12
OF GlePKE sci cas owes piawa J avammedeyaroug rere sate Kone eA E Bae Tals 13
quarterly, may be held..... ee ce eepisheioae, siete eseibieie.'o-6eaees 15
regular, in Ontario county............. a bint tig Og Gay dla labial etter wr etete's 16
majority, @ QUOTUM.......... cc cece ee ee ee nee Sra a ted Sas isha s aparsieteyss wales 12
power as to qualifications of its MeMbers........ cess eeee ee crceccveces 11
rules of conduct of proceedings..............4. 3.8, sake oaiea'evnne seas Siasavaci's oo 3 13
committees, appointment ...........eeeeeeeeeeeees cere ceenesenees 13
members, penalty for failure to perform Autied. ...ccccccccnenseccscnve 17
liability for neglect of duty ieaataurare ss (hoes BRSEE Sees Sa cateiare ¥ mate 17
compensation .. ......... Senda sedi sis Wise ds Weiss. aa Silas Pela acejis oro le-sigs 18
annual salary in lieu of per diem compensation.............-- 19
in certain counties.........eeeeeee ice prana, esis eis roe E sistete “20d
special acts relating to...... $A Ede eR SEG eS eae 19
allowance for copying assessment-roll...........-++- seater eeu ees » 20d
for services on committees......... inane eipeiaweenieiae CB0e
for attending tax meetingS......... 0... cece ec ee ee ences Se 21
acts and resolutions, form and contents..............0c eee e rece eee eee 21
PASSA Cb 25a dean easusrdien Ears: elt Seis! ek eau Soe apo tonl auton 8 Gusta IBARICE 21
Citle sy 2.9 we dinwie oeUnadssReee AaRsar eae cas Hake tate 2la
to be numbered and certified...... 00. cece eee ee ee eens 2la
VEGI ii4's aa career ees aN eH Ohh EEE Re R eee He Ree a eT 2la
publication: <4 ascvss see cas swe yea tio ve ee we Cee ta TAG Nee we eee Aw Es 21b
may be read; In-evidences <5c.5.-0 soc cede seis teed RENAME eee etwas ie 2le
proceedings to: be printed. sce. oe sis yar geese ssa wns He antes See gy aie 21b
PULCATIONS CONTAC: cuscoad nw cies dyete Pa MOR eee seonee wdeee Aeted 21b
CONTENES (ion kone oo MaeAG aul adeno aeas Pod BASS Rhee 21b
certified copy, constitutes county record...............0 ee eee eee 21d
county records, custody’. .:s02¢.ss0 cess cm sds ew Roa dE Es wee eee eee ee 21d
copies may be made; payment of cost................... 0 cee eee 22
witnesses, examination .......... See ua aed coin st Renee ats eeat 1s 22
SUDPOCN A) os te Wie be ea BART Sek inn Cone OA HEA Es uae s tole pee EES 22
administering oath osa03¢ su edelress wed eeees Bavesg SSS2 cee L Saale ee 22
powers of committees as to hearings.........-.... 6.0 eee e cece eae 23
adjournment of hearing or examination....................0.0000. 23
discharge, when arrested for failure to appear...................., 23
undertaking; enforcement .......... 0... cece cece eee tenes 23
audit of county accounts, power of board............ 0.0... cc cece eee 26, 54
what Constitutes: <2 dsc ret Re doe ceeds d0bRAl he dd Me eN ee ee ee on 26
Jurisdiction a8: tiie cine tee cide g Moms cans Meggan teh ale eee 26
meee Mana 5 cS xen dealae'nyacawnn eee eae sande vadenia: 27
when discretion may be used’.......... 0... cece cece cece cece eee 28
power may not be delegated............ 0... eee 28
how far conclusives s,s: a2.4s00d i 20 daa Gee RaW aaa Mes ewan els anees 31
Claims fOF SEFVICES sais cniele sos dons de aie dk Waar kt aoe ae ad des BE ee 30
hearing evidence as to claims............... 0... eee eee eee eee 31
affidavit of value of services....... 0... 0 ek ec eee ee 31
manner of ‘Making o...002 0c dese ss be eee cess oe sack em sewed ed mene ba 29
compelling, by mandamus.........0.0 0... cece eee eee eee ee 33
review by CEMIOPAI ecu cave Hiden eae ee end whee sa wawae sp 4OENG tes 32
presentation of accounts in Albany and Rensselaer................. 34

accounts to be iemized...........0 00.000. e een ee eees 27
NOES 1285

Board of Supervisors—Continued. PAGE.
Verification. ic. gure ge wagins cath nes Be Hew dein Sdw Gulls ed awl ded HOw eGreee 28
sufficiency of presentation............ 00.0.0. cece cece eee eee 34
additional requirements as t0.......... 0... cece eee cee ete ees 35
publication by clerk of board............ 0.00... cece eee eee 96
unlawful, felony ies cius.c me oedeok we Seba Ne Hod aga a ae seed 36
falsely making, and payment............ 0.0... ccc cece eee weenie 36
fraudulent presentation of accounts.............. 000. c cece en eee 37
of county charges, see County Charges............ 0.0.0. cece eens 37-50
levy of taxes for payment.......... 2.000. c eee eee 50
duties of county comptroller.......... 6... cece ce eee eee eee 119
county auditor to examine, etc.........- 6.66. eee eee eee 124
GENERAL POWETS soca vse rice 6 ik wegen 6 oie wiked Wak ane SEH Beane gS oe Mw AEE Gee a bw aE Ng 53
as. ‘tor county. “property”. .scec sai es erick as nee eda Meee meee ee ees 53
to direct raising of money for town charges...................005. 54
levy’ Of taxOS nye ia tadec wen dees ge eb ties idea wadGarnaaaiid a wade nee 54
to fix salaries of county officerS.............. 00 cece ee eee eee ee 54
salaries not to be increased or diminished during term.......... 54
amount of undertakings of county clerk, district attorney and
superintendent of the poor............. 0. cece eee eee ee 55
to borrow money for county buildings and other purposes........... 55
to authorize towns to borrow money........... 0. cece ee eee ees 55
to provide for destruction of weeds and animals.................... 56
to provide for protection and preservation of fish and game......... 56
to divide school commissioners’ districts.......... 0.0.0. .c cece eee 57
to regulate opening of county offices.......... 2.0... eee eee eee 57
to make contracts with penitentiary.......... 0.0... cee cece eee eee 57
to sue: on Undertakings... cc. suscsarawreccnws banged ned weed oe mens 58
as to county buildings, and the acquisition of lands therefor........ 58
heating, lighting and maintenance, advance payment........... 65e
as: to jury districtSs0 01s s0% 065 sec vek peg Reg saws hoes Sede Eee a we 59
in Chautauqua county, to make office of sheriff salaried........ anal 59
to raise money to enforce game law........... eee eee eeee ais satanetels 59
to sell or assign judgment against state.......... 00... eee ee eee 62
to fix compensation for conveyance of juvenile delinquents.......... 63
to direct justices of peace to pay fines to supervisors............ sec 63
to contract for board of civil prisoners in jails.................00- 63
to provide for maintenance of law library...........-..+005 al siatatews 63
to provide for stenographer for county court..............60- ose 63
payment of salaries and fees of stenographer........ si digsae eaaeat ee 63
to appropriate money for home defense.......... + Nese saan wisn avate 63
to authorize town, city, village or district to borrow money for streets
and highways ........+sseeeee wee ba aaeewe aubhetereli'n a ieieae 6 v's whe 64
may raise money for construction of side paths............. Sees ee . 65b
to appropriate money to aid society for prevention of cruelty to
HULL ER «aes. bis. 3 aot ecacele ea alals eee wrdaaang asa euaiiera Sianeli ora 8 OA iota 64
society for prevention of cruelty to animals.................-..  65b
farm and home bureaus and improvement of agricultural
CONGITIONS «oo cece eee e cece eee eee eeees ia/oy SAAR ES Tes 65
to purchase supplies for superintendent of schools.............405. 65d
to appoint commission to investigate as to form of government.... 65c
may legalize informal acts of town meeting or village election...... 66
designation of newspapers for publication of session laws......... 66a
to levy tax for expense of publishing local laws.......... cide anise 68

designation of newspapers for publishing election notices......... 69
1286 INDEX.

Board of Supervisors—Continued. Pace.
appropriations for improvement of agriculture............-+6+-- 65a
claims against towns and cities for inmates of state “charitable insti-

GUCIONS 4 sae: 60-24 nies cahaed AS tae pea ya SORTA Gi elye ta MO Sa SRE o -.  65b
advance payment of expenses of prosecution of criminal actions. 65b
telephone service, contracts for............ easeveneens duaisgp aie daneanisevsee .+. 65¢
contract with undertakeis in Erie county... 0c. ccc cece cece eee eee 65e
support of veterans, county charge..........ssseeeeee seen ee eeee 65d
plans for streets, avenues, etec., in certain CONG UON aos daisies bess 65d
deputy county treasurer, authorized............eeee esse eee ea owe 65f
payment for supplies in advance of audit, Ontario county........... 66
may authorize towns to raise money for damages to sheep by dogs.. 66
may make appropriations for relief and education of indigent blind. . 66
public health nurses, appointment and employnient.........e0eee ees 66a
poor persons, appropriations to societies aiding...........eeeeee- 66a
tuberculosis, organization and operation of clinics for examination of !

persons suffering from......... cece cc eee cece eee eee eens 66b
teachers, appropriations for salaries of, in pedagogical department of
Geltain Colleges, Ct... cc eee c cece eee eeee cee eeeeceeeecseseees 66D
change of location ot county buildings..... aiernaeins ia le-eovrevevai Cen aine the a: Gaernaue. 8 69
PCUItION HOM -. ascends Ae terete ee sealers yo ect ee Boe neee Peis gw Bee 70
action upon presentation of petition..... siete erste a ats tie SNES TS, Be AG 70
submission of question to vote of people.......... cece eee eee e eee 71
of poor house, after destruction of building...................4. 71
establishment of fire district outside of village....... SRR ET WEscor slick 74
discontinuance of fire district.........ceeeeeee eens S ley NS Sis, Spee: ouesGuiue.sd 78
effect of incorporation of village within limits of fire district.........- 79, 80
annexation of territory to fire district.......... ccc cece cece eee eee eees 79
appropriation of money for erection of soldiers’ monument............. 80
temporary loans, obligations therefor......... cece eee eee eee eee e eee ees 81
funds for necessaries of courts of record........ cs cece cece eee e eee eee 81
county laboratories, establishment ......... ane’ « atee er er 82
county attorney, appoinmtent ....... é news saith Ses SISO aise RS Grae dae as
duties as board of county canvassers, see Canvassers, County Board of.. 84-93
clerk, appointment of ....... sieih ois. x Shaner ess Ridie od actus Mraredewsict ere adie’ WA 94
general Guties oo c eee c eee sec nene Aieseitedare eguece es eleyaeanare avguiubea: aToi'nlehts 3a 94, 95
publish statement of accounts .......ecee cece eee e cece eee ee eeees 96
report of indebtedness of county, town, ete., to comptroller. Rate ees 97
statement as to taxes on certain corporations. save Weigle sateen oie Slow) ne'xie 97
failure or neglect to make report................ee0e. HOE4 Mw R EA 98
assistant district attorney, may authorize appointment OFS ca omer ee des . 140
appointment of person to act as surrogate.......... Peat setae dere. cows 147
to create office of surrogate in certain counties..........c cee cece eceee 146
coroners, may fix salaries of........... aatinwes ae loniss a aieH Sean Barer suas arenes 163
jails, may employ convicts in..............., tiie Mretsesvend ace\twele a acewerire ss 180
may establish houses Of detention’: siecs sve ses wea cued cau ‘eeatows os 183
work houses .......-..+. Bisidvs MAS aseueaceens ia foe WN Ghee caus aan auaRe Bx - 184
loan office mortgages, POWETS AS tO..... eee ece cece cece eee ees wot 245
tuberculosis, hospital, establishment...................06. seeeeeeeceee 216
See Tuberculosis, County Hospital.
child welfare, local boards..........ceceeeeceeeeeeoes ib ee aa diene +.» 2284

allowances for widowed mothers, appropriation.................... 2238
See Child Welfare, Local Boards.

pepente GF ean ty One es toeuesneen cient ime? see iis HDI oe denesa 224
official seal ......-.eee eens sas OTST BSG oeea 56 uals Ere Ge baeeoind “Sialinuhaoteasra cars 225
towns, proceedings for erection or alteration....... So Seaauhiial a Vent a oreunee a 235

disputed boundary lines, establishment....... aie Baa awd arate ee diwhatess 237
town meetings, biennial, may fix time........... cece eee cece eee eee ees 245
direct payment of fines, etc., collected by justice...........0...cee eee 349
banks, levy of taxX UPON......... ec cee eee cece eee eee eeeee ei tavaWiate 522¢

distribution of tax collected...............000. a eae tose dicie cas mie 2020
equalization of valuationsS............... sees cee eee cere eee Sinise Rehee ge 558

examination of assessment-rolls......... sidvamenea eens Keb eM es. “SDS
INDEX. 1287

Board of Supervisors—Continued. PAGE.
appointment of commissioners of equalization...............0-+00-- 559
report of commissioners......0.cccsececc seer cece eee neeeneenetnnee 560

tawation, duties as to generally.......... cece cece cece eee een eeeee 561-571
may change description of nonresident real property................ 561
review of assessment against nonresident owners of rents reserved... 561
correction of errors...........eeeees Siieaee Meals dae Saehenetns ya ress 562

petition by assessors........... SHEROe Ae KARAS EIST S SEES 562
refund of tax erroneously paid.........0.eeee eee e eee e eter ee eeee 563
correction of manifest ETTOTs. ...... cee eee ete cee enter et eens 563
moneys illegally collected to be ssiunded Maiev a pheig ais Rie Wealauegiagscien SES 565
errors as to assessment of nonresident real estate............00.0e eee 566
re-assessment of property illegally assessed.............---e eee ees 566
levy" Of taxes; .ciasncsein eines sg AEE Ee Meee eR AG Rate eie es 567
collector’s warrant to be attached to tax ‘roll iPMlgtenensE HERS Mineeae eS 568
CONTENU. aancad Stee eoewekiemeoa reset erased oveaeau els’ 569
clerk to render statement of taxes upon certain corporations to
county treasurer ....... cc cece eee n eee e eee e teat e ett eee eane 570
statement of equalized valuation to be forwarded to comptroller..... 570
abstract of tax rolls to be furnished to county treasurer............. 571
duties as to distribution of tax on mortgages...........-..0e sees eee 630

superintendents of the poor, to determine number...........eeeseee- -. 669

rules and regulations as to relief of poor...........5+. straineinaeeanaee 680

blind, maintained at institution, to furnish clothing...............eee 706
at state school at Batavia, clothing and traveling expenses.......... 708
itemized accounts against counties........... cece eee cece ee eeeee 708
relief of needy......ccccccccccc cece eee eee tec etee sn ecereseeene 71la

deaf and dwmb, when expense chargeable against county ............. 710
clothing charge upon COUntY...... cece eee ence eect ene eee eneees 710

soldiers, sailors and marines, to provide for burial.............. 000000 . W721
to provide for headstones for graves of....... EAE de Ree Bes Ea 771a

abolish or revise distinction between town and county poor............ -. 779

county system of roads, comstruction........c cs eee cece een cece eee eeee 963b

highways and bridges, may lay out and construct.............eeeeeeee 979

bridges, may change location............504 diseieseilawancrs a Sanath 981
destroyed by elements, may provide for construction............. 982
intersected by county or town lines, apportionment of expense...... 983
county ’s share of expense, how raised.............e cece eens sate Ba 984
may authorize construction outside of boundary.......... Poets. “O84
over county line, to provide for maintenance.......... eiscsceeees 985

survey of highway, may authorize commissioners to make............. «-. 988

toll rates regulated Dy......sccveeeeccccenscecenecs iataeae ansesesen: “98S

highways in counties containing 300,000 acres of improved lands........ 989

apportionment of nonresident highway taxes.......... eihirspaeona s emlae 989

alteration: of ‘state TOAGSsis s <ciseis sa sinaie s Vsierwrees Suse 84 tie be melee Bae OA 989

laws and regulations as to highways and berelee P844 Tew ¥ Cate Ya tees - 990
as to use of wide tired vehicles..........6.. 0. cece eee cece eect tees 990

use of abandoned turnpike and plank roads............. saotences ayaa 990

farm schools, establishment....... diovan sae ai-aieysiiaiele. be nelre-siopialeve/s ehaleserads 10254

grand jury list, preparation.......ecceeseeeeescccceectereeresee + L029, 1030
1288 INDEX.

Board of Supervisors—Continued. Pace.
allowance to grand and trial jurors.............ceeeeee eee ee ete eeeeeee 1042
resolution authorizing issue of bonds................. ee ee eee e eee ee ees 1069
office of railroad commissioner, may abolish....... .......seeeeeeeees «+» 1071
county sealer of weights and measures, appointment...........-.--+-+-- 1089

Bonds—See also, Undertakings.

of county, board of supervisors may borrow money on..........+ee-eeeees 55
issue and sale hy county comptroller... ...... cece eee cece eee e eee n eens 119
of town, board of supervisors may authorize issuance....... eiguapiers estes 55
application of surplus money in payment..........eeeeeeeeees ... 856b

for erection of town house...........ceseeeeeeeeeneees seeceeess 360

for highway purposes and support of POOr..........cce esse ee ee eens 396

for suppression of forest fires.............0. eee ee teste wend dargains 397

for other emergencies: 22s ccanasse sects t4 udu tudes een aces eee 397

for payment of charges against town. .......... 0.0. e cece ee eee e cence 398
judgments. against toWl. 0c... o.. dew seenas coeds sae pneeen nds 399a

for bridge and highway purposes......... 00.00 ccc c cece ene ene eee eees 864
issue: and: sale... swscedde couse si454hs ¥aeeNed bak ceeaees aeleR ees 865

of municipalities, power to issue. ...... 60... cee cee eens 1058
issued for specific object... .... 6c eee eee nee 1059
OW" Pad. 2:e.0.7.2-sxe Gvetnaieeng wis ov Gore Gaeegeeeangen taka ota dab avabienndliseind 1060
retirement: by New: issues og vee y ee gee gale ges Beane ye we oi 1061
How issued 3 sssctewaraeuins He eveless glade spy eresaneataduna seeks 1062
TEGiStTAllON.s @ sameness ee deeds 4d GARR eee es FEROS E cu 1063
coupon may be converted into registered........... 0.6... eee e eee eee 1064
HiMitation Of AMOUD ..6.occc8 savcdmnaricndund neh tae sete Sl oa 1065
constitutional provisions respecting. ........ 0.6.00... cece eee eee 1066
resolution of board authorizing issue.............. 0.0.0 cece eee eee 1069
legalization of issue, procedure... .........0. cece ee eee eee eee 1081
maximum rate of interest oi. .os cows secsae sey meee speneue wee ORLA 1081¢
exemption from, taxation... vasa se0 cea ss peered See eee wee esi aRE ea 478
actions for malfeasance of officers in issuing.............. 0.0.00. .00 0005 1069
railroad, PayWent 2s 92 so die voip ous we et Aed swag ame Mee RRE ded So deeuacela ss 1074
reissue of lost or destroyed 1... .. 00. ccc eee cee ee eee eee nee 1075

Borrow Money—

power of municipalities. ........ 0... c cece ccc eee cence eee ent e ee eees 1058
Boundaries—
of county, effect of alteration on debts.......... 00... cece e cee eee eee 4
of towns, disputed, establishment............. 00. cece nce eee eee 237
proceedings, disposition of property.......... 0... cece ccc c eee eee 233
alteration by board of supervisors............. 0... cece ee ee eee ne ees 236
Bribery—
OF executive OfMCET.... cece eee e eee e eee een eect c cece enebeeeeues 1082

Bridges—See Highways; Highways, Town Superintendent of.

special town meeting to raise money...................04. wre catenin 200
town contracts for, lighting improved................ a eiexreline ceil eww A2OL
supervision of state commission.................0.ceeeeee re Rae ees w 795

plans and specifications, commission to cause to be made.../........ 795
state commission to condemn unsafe............... Seta Ree daniescs 1800)
INDEX. 1289
Bridges—Continued. Pace.
liability of county for defective.......... ccc cece eee eeeeeeee b adeseies pe 7
duties of district or county superintendent............0 cece cece e eee 803
town superintendent, duties of in respect tO.......... cece eee eee e eee 816
estimate of expenditures... .... 0... cece eee teen ence eens aise ee 853
approval of modification by town board............ 2. eee e eee eee 855
contracts for repair or rebuilding.............. cece eee eee eee eee eee 861
for construction, award........... Oe 4a MW RD EA BNE tae een ces oe 821
limitation of amount to be raised........ cece cece cette eee 861
borrowing money in anticipation of taxes........ 6... cece eee een eee 862
for Construction OF TePAIT. asics sagan g Bee Does eg ei eae ng aR eA ai 864
towns to construct and maintain......... ccc cece cece ee eee eee 945
when over boundary lines.......... 0... eee e ee eee eee Hal hihie. pais Gee 945
when over county line, county to aid........ ce eee cece ee eee 946
expense of maintaining, statement of supervisor............... 00.0.0 00- 947
delivery of statement to board of supervisors..............-..-005- 947
levy by board of supervisOrs....... 6. c cece cece e cece cence nes 947
fast driving or riding, penalty....... cece eee cee eee tee e en eee 947
joint liability of towns and joint contracts.............. 0c cece cece 948
over boundary line, liability of towns........ 6. cece cece cece e eee eee 948
refusal of town to rebuild or repair.......... 0... cc cece eee eee eee 949
proceedings in court upon refusal.......... 0.0000. e cece ee eee eee 950
supervisors to institute proceedingS.................. cece eee eee 951
order to be served on town superintendent...................00004- 951
compliance with order by town superintendent..................... 951
report of town superintendent as to expenditures................... 952
appeals from Orders ......ecsec ener erent ener eee ence nee eteneas 952
COSt: Of ProceedINGS: wisi. cas aso e eed Gad EGakEe cama gies Games a 952
repair by any person OY COTpOration.... 2... eee e eee eee cece eee eee 952
cost: to: be refunded iis suiscc cs caane sewer ee Cea ae eee 953
waters between towns and cities of over 1,500,000 inhabitants...... 953
construction or improvement by county and town..........sseeeeeeeees 953
unsafe, excessive loads UPON.... 1... see cece cece eee eee erent teen ee ee 967a
toll, acquisition, see Toll Bridges ........ceseeeeeerr eter n ener eee ees 954-957
constituting part of state TOULC...... 6. cece eee eee cere eet e tees 957a
lighting Of. ....e.eee seen eee e eee e een en ent c eee n enter ttn teen enats 973
board of supervisors, POWEYS AS tO... se cece eee cece ee ee etre ene ceeees 979
may authorize change of location..........+sseseeeeee seer re ceees 981
may provide for construction, when destroyed..........++++e++5: see 982
apportionment of expense, when intersected by town or county lines 983
county’s share of expense, how raised..........seseeeeeee creer ees 984
may authorize construction outside boundary...........+++++e+ees 984
over county lincs, maintenance... ..... cece e rece renee eect eeeennee 985
“defective, liability of county.........ese eee eee eee een eens 3, 985
laws and regulations respecting. .....eeereeerer cece rece ceeneeeees 990
Building Code—
power of town board to adopt......... teeter ee eneereeesseseresees se. 899
Burial—
permits by board of health...... da duet eaeeees aes sig es cine taeglece sgt 450
Burial Grounds, Town—
trustees, election by town meeting.....-...... sees eee eee eee erences 362
term of office..... Lhe hat HEME WHEE SE MOS Ss MES eS EROS Hine sow ee 362
POWETS 6 cece cece cece centr eeeees ssa ga acel aE NSucncneta donde eee Gad ete 362
to lay out grounds....... + -eeeeeee eee eeee KC RAC RAL a a Bas 863
lots; free, and sale Of..... 1. cece eee e cece eee e eee e ete e tenes 363
when belong to toWN.......sseeee cece eee cece nee e eee n et enenenneees 363
in district annexed to CitY..... cece cece cece cece teen eee e nee e ee eanes 364
trustees, appointment, term of office.........-. esses eee eee igi Suge 364
transfer of, to cemetery corporations............ssseeeee weave ee ae ne 365
1290 INDEX.

Burial Grounds—Continued. Page.
soldiers’ plots, purchase and care by town........----- ese eee e eee e eee eee 365
transfer of bodies of soldiers. .......... 0. cece cee eee e etree erect es 365
maintenance in Broome county..........-+- sees ee cee eee teen eens 365

Burying Grounds—

laying out highways through............. 62 cee e eee eee nee eee tees 924.
€
Canal Bridges—
approaches maintained by state........ Javan Dane auaeaveeeawsseee — 902
Canvass—
of votes at town meetings, see Town Meetings.............+++. ceeceeee 265

Canvassers, County Board of—

board of supervisors to act aS..... 0.0. e eee tect e nena 84
county clerk to be secretary Of..... 2.00... ccc cece cece eee eee eee teens 84
MMEEVINGS: Of ecu 3.4 her vaioadee etd 64 ance aeeees Hy MaMe tLe he od Ayame 84
tatement of canvass to be delivered to... 1... ccc eee cece eee eens 85
correction of clerical errors in statements of inspectors.............. 85
in statement of state or county board............... 0. eee eee eee 86
Blatements OF ‘CANVASS DY so 4 5 ais. ac ciduuntniaaie! bb. oo 4G ass Aarau oo aw eau eas 88
decision as to persons elected............. cc ccc cece eee ees gfachiteimen site 90
transmission of statements to secretary of state.............2... cece eee 92
Carriages—
USE Of Highways DY sewiw disicacw ees peccndiiais veda Tada oad wana ead 65 darn 967
termi defined, o..4 ssa de aalee 3 awed ta Gudon aah eee U4 Lae eee a cana 964
Cemeteries—
exemption from’ taxationy .. - o2s.9 cseceeense oP aE o eeu GGA Vanagon dew seen 479
of municipal corporations. ........... 000.06 cece eee nee eee e eee 475
duties of county treasurers as to cemetery trusts.............00cccceeeee 112

Charitable Institutions—
board of supervisors may audit claims against towns and cities for sup-

Pore: Of INMAt ES yeeros week wna Gaara ae ates Wie sss ou caine Seeneedale 65b
money raised by towns and counties for support of inmates............... 782
reports of commitments t0......... 0... cece cece eee eee n eee eeneae 783

by officers of institUtiOns ....ccccii ceded punk gGM LES eR Lba ta aiee es 783
accounts against municipalities to be verified............. 00.00. cece eeen 784
superintendents, reports to clerks of board of supervisors................ 783
payments to, by municipalities............ 00... c cence eens 782
reports with relation to children placed in family homes.................. 782

Charities Aid Association, State—
visit of almshouses: iis ¢swsinciadlon we gece a8 ai adidas este da d4 ota hednoaadion 687

Charities, State Board—
powers and duties as to almshouses, see Almshouses...........0.0..0005 685-688
duties as Toistate poor csins 22. asses s de pce cides ea Avaule wn aa waned nave ieee 772-178
INDEX, 1°91

Chattel Mortgages— Paae.
filing in town clerk’s office. ........ 0.0.0. c cece cece ccc ceeeeeeeeeenees 339
FOOS: 3. cpa tanec y abmer ee oaadaynie din oun cscs tampa dete ental dante 341
MISCHATES OL sew ee is crawl ise ad dunnee dy aiecradia gamaned ein weg eeh yy eect 340
PONG fo. s. seiwituds Saanatuning sen gagidlans ned nae Gate uiai enue neue 340

Chautauqua County—

 

board of supervisors to fix salary of sheriff.............0 0 cece cece eevee 59
Child Welfare, Local Boards—
establishment in each county...............-.0.. Pee Red ek coed anaes 223a
members; appointment ........... 0.00: cece eee ee eee eee aie Bonauacionneans 223a
appointment: an,. CllieSs 164 ccinsicco geass censine eee eea 4 deNRReES EL ESS 223b
serve without compensation...........-.-. 20 e eee e ec ee eee eee eee ees 223b
general powers. and. dUtléS «<0... .caieucnae does Gene db eed wand nde ecole 223b
allowances to endowed mothers........... 0... c ccc e ence e eee eee eee 223d
board of supervisors to appropriate money.................- Ss areeerceel 223e
penalties for unlawfully obtaining............. 0. cece ees eee eens 223f
establishment in certain counties........... Se sige tabs ae seca ee eid = 223f-1
members; appointment............ cece eeeeee err -223f-1
CSMNIGIONS: 2.5. sia se bauowaedves one ele wae ee sls is! aiaeiensis, s etengss és ayant ves Hose - -223f-2
powers: and. duties’) iecc se sais s seals 6h soe eds aelk a BET E44 BOR TATE Re aes 223f-3
appropriations and limitations. for purposes of article................ 223-6
penalties ....... SSMS U8 5 hci Sea on ieslec g's Anatase: Wrepaveda lala gual ipo 4 avansoavanaventensteurdrorte% 223f-6
BPPOals: coins esd clade dias Gale es aoe are Aisiniays Gioia Ago os0 8 Walene fe Slava toda cies 223£-7
effect of decision as to constitutionality........... sase.g eee Se aRlales wees 223f-7
Churches— ;
dwelling houses and real property of, exempt from taxation........ ness 482
Civil Prisoners—
when arrested .....ceceeceeeecoes Bei stcoae) ars aceite’ aya Cau cicksts RUavene' Gace: @lcutounaniog » 189
how long imprisoned............ bad Glenn seasinnn Ware: Suahnina eNolenece iba dubyiacbea jwids nie 189
within ja‘l liberties.............64. bbc Snineera eye mie seatieny Pee waste Sera 190
SUPPOLt OL sciow.s-c-segte eae ys MED Ys eS Canes «8 ae eee eke eed ted oes 191
CONtLACES LOT os caesar sa Me ons Hee Ka ews Os hed tea HR e ea eS 59
sheriff not to charge for............ee eee eee eee eee cee eee eens 191
not to receive compensation for rent of room in n jail. . sacs ees - 191
in house other than jail........ sisughia\esceueaw: eleverssanaie sictade: 234 abaleisaVe oneness 191
Privileges 2.6... eee cece cece eee eee teen wees Sanspaneush Seusvane aus 191
conveyed through other counties ......... ih aia Sasa given arahe ints ad wsG alana ovate Wiehenele 192
under United States process ...... agai eve bea Dae 2 Guelade ae einen Re aeiow: -. 192
when sick, may be removed..... 6: 4a pistlosie aohayieual a Selstatelas ga alate we eased doRLiee e 192
jail Tiler tades cs sane miata cea yA aseee ok etn 4 eek 5 LL 193
boundaries ; how designated . Sih ok itiegs Gis aaa OG cha a tartans oat aaa 194
when entitled LOii sosciareee svete aerate Syayecdie 8 Seueied OS Abe HSS Sree he Bisse a 194
Tandertaking :iscgso(siase, 6:3 srdusie wai ouaid s“o.d.tuacd ere weeiace. scastragiss Saunye sa saya -. 194
execution and justification. heh Sayan ania nana scares toes ayaia ene onalgaachiou 195
effect 1... ccc ee ewes yatuse anetonaiereti Shans gf Shavarilnnyy sg sare Ses adits eee «eo. 195
when insufficient ............ Ginae hyipis ee saiege aly Seanore w susoe ROG BASS 196
surrender by sureties ............ a Grate e area ales areie ee Guat. 6 Snags s 196
escape, what comstitutes..........ceeee cece ce eee eee e eee e tener cence 196
liability of sheriff ...............- HATA OE: St AES A Sav eaTs 197
indicted, when sheriff to produce ........eseceecesecceeecsecaceeenees 198
committed for contempt... ...cceeccceccsccseseceeceteeenensenes 198

Clerk of Board of Supervisors—

to forward to secretary of state names of newspapers for publication of
concurrent resolutions......+..-+...+ TEMES PR ese one BEETS efSPo , 66e
1292 INDEX.

Clerk of Board of Supervisors—Continued. Page.
appointment of ....... ts seagate? ducts aii rcwahe Pal ahh seaiade aise. AN aalla AGES 13, 94
general duties: seu itlns wavs ea a ARG eeeead Od Ets RENEE R aca SPERMS 94, 95
to publish statement of accounts audited by board.............++eeee ee 96
report of county, town and village indebtedness to comptroller........... 97
statement of taxes on railroad, telegraph, etc., companies............-+-- 97
penalty for failure to make statement of report..............0 ee eeee eee 98
statement of taxes upon certain corporations to be delivered to county

CREASUTOR o-oo a oc cuchs a ae aberatmewaarne ayes spied dead Me oun S Sreaene Nees 570
statement of equalized valuation to be forwarded to tax commission..... 570
abstract of tax rolls to be furnished county treasurer.............0+0-0-- 571
reports of commitments to benevolent institutions..............0.000e eee 783

by superintendents of charitable institutions..................0+- 783
'

Coliector—See Taxes; Town Officers.
eloctloni ss 24 eis it eee sex say Hee SRE eLA Pe ae esha tadeeows Re eers saeee 281
CONT OF, OMe soca coi seit i aiees aausanaoner d ahsien bth. Ry dadgeaapsiae seo hed OAS A Antena ess 282
undertaking, form and condition........... 0.0. c cece eee eee eet eee 307

recorded in county clerk’s office......... 0.000 cece cece eee ee eee eee 308
lien on property of collector and sureties. ............ 0.0. c eee een uee 308
continuation and enforcement...............-...000- ine steele espe s 308
to give notice of receipt of tax roll... 6.0... cee cee eet eens 583
MOLICE: LO MONEESIM SMES. i ii sii as doe spe sit a a msdnenasrwide 4d de Rusicdse ume dna Aw Bate 584
demand payment of tax after thirty days. ........... 0. eee cece eee 585
levy on personal property....icc cise ad sous ose eas beer ee ae sa Ohm HaUS Nee 536
sale, disposition of proceedsS............. 00. cece cece eee nee eeee 588
surplus of sale, conflicting claims......... 0.6... cece cece cece eee 589
OM StOCle OF DANKS: ities aS oa s Sea cdnasuniinie ae SRB Dabo aeclinieeiiis: nb RAW 589
credit for taxes paid by railroad, telephone, etc., companies.......... 590
return unpaid taxes on debts due nonresidents.....................0000- 596
PCOS eg. wicca cisnersitrouaia aie we ole aaele-sord maremsasteen’ SERRE RAS Bae ea 601
return of unpaid. taxes ..00. sesomsdauesiack svecueees Qiadeeeeese aes 601
form and contents: <.s454seewnewemes «500064695 464 MERE SEE Rede 601
payments by, to proper officers. ......... 00. cece cece eee ee eee 603
TeCEIP ts; tO: be; PIVEN: w.cceseumecan cis ago esie Ada awaened aca eho web aanee 6%5
failure: to: make, Habihity..i:cas0cocss nde tee ca aie ds RG ee saendreenes 604
undertaking, supervisor to prosecute........... 6. c cece eee eee 604, 605
new, when time for collection of tax is extended..................004 65
vacancy in office, town board to fill............. 0. ccc eee cece eee ee eee 655
failure to execute bond, sheriff to collect tax............. ccc cece ee aae 606
undertaking, satisfaction by county treasurer............. 0.0... cee ee eee 607
losses by default, chargeable to town.............cce cece ccc eee eee e eee 611
receipts to be given to person paying taxX............ cece cece eee cece 611

duties and qualifications ........ssecee cece cccccceeeeccsceersssccee 1O87b

Commissioner of Jurors—
appointment, etc., see Jurors...... Peete e cae e ee ne cece neces e cere L036-1041

Commutation—See Highway Labor.
for performance of highway labor, rate, payment.......ssseeeeeeseeees 866
INDEX. 4293

Compensation— PAGE.
of supervisor as member Of board. .....csceececcccccceeecesvevesevees 18
special acts relating tO....... ccc cece eee cee ee ence eee or aie 19
attending conferences with state tax commissioners............+-% 21

BLS LOW OL CET so. ose. eca yoo eskvaies o 5 ai av¥ esa aenuere aeydidcas dyer daduh He tuah ele as indi 2% . 852

of assessors, attending conference of state tax commissioners..........-. 21
of county officers, county charge..... cece eee e cece eee e eee e en eeneee 38
court criers, county charge....+......esees He cdrassreeg saan s) = ulany Se ey 39
board of supervisors May fiK..... cece cece eect ete cette crete neee 54

not to be increased or diminished during term................05 38 54

of county comptroller, supervisors es TER oe eters te See B.cisepdeacs ss Areas Safi 119
of county judges and euuiee ee aes ie, 76 s5} Se bie6 9S) ile 9a Nive: ueylaca coli \epain,Ssitlayaeataen' aso 147-158
WOW Paid, oss s dieses ae cesar a dereeiees dei sar dvauavons Deane ybze beara teyera xe 151

of coroner, board of supervisors may Wie oda waerce se oltale Se ape 163.
Of, town, Officers aid sc.aieiee vanes a5 es Cees dae ee cine oes sieee Saisbiaseileg@: BOS
board of supervisors may fix at different rate..........+..-., a Sasa 353

per diem allowances........ssececesssees a eee eee oa 352, 356a

in certain towns .......-.e005 Se re cee ee ee 356b

of health officers in towns and Villages...........ceseeeeeeeeee eens 443d, 444
pay nont of salrries monthly... cece eee cece ween eee eens seeeeees 856

Concurrent Resolutions—
designation of newspapers for publication Of....-ccecsccccessesssceses  66¢

sanethod of selection; votes of members of board............000008 . 66e
failure: to: makes CMCC csi .c 55a bios aeeiew nieidee-e uGiers, 6. nae e sg sees enlert 66d
clerk of board of supervisors to forward name and address of news-
papers to secretary of state..... Sst e arate Bee Aree Ae BEARS 67
certain, published at expense of state....ccceceeesecsecceceesetes at 68
Condemnation—
of real property by municipality.......... ccc cece e cece nen eeee seovahareue 1078
Conning Towers—
appropriations by town boards for construction of...............- see. 398
Constables—See Town Officers.
attending courts, fees county charges....... Wee s2 Hewes ete os Se Se eas 40
services in certain criminal matters.......... 2. esse eee cee eee ee eneee 40
conveyance Of PYiSONETS ...... ee cceeeeeeeccces abi gialomGisie sis Beate ate 40
sheriff to notify to attend ‘courts. SRGreC ie ae Greets SApoceictaia sauna des anatense eee 159
OlOCtON, 5: 2 ssiste veces doe oe See are tes pence Blea cat Shao 5 Seo ids rearing sg ecosinsune 281
term of office .......... gird cbs Gables Gi/Seniasa apap ayers: Sltayon od ve Wl Gna ORS te 282
number, town meeting to determine...... essice a maaiy 14 Guee 4 HEE KE tates 248
undertaking, form and condition............... ise Faro caceane oa anssead esaua 310
approval and sufficiency .............. ofa aah lake (g Shinra Sta Gia acess 310
effect and liability for breach..................- siiewideecrwes 810
town clerk to certify names of, to county clerk........... aeiietacayanat Scr cyatene 336
special, supervisor and two justices may appoint........... a elateuiaatemine 292
badge, supervisor to furnish ...... seen ecceeesssecrseneseecncese 292
powers and duties .........sesseceeeeeees sesiSiclcitvernens SsaiSiRSS 5:2 Si 292
appointment in certain counties....... ae Ss aensne arrears cars a) staesce seeese 298
instituting actions a misdemeanor.......... Sere eis Wowee Sees d Wek ee ses 348
fees, attending court of record, etc. ......... GNSS ciate ie wtciaas a a-alueis aoeauere 356a
not applicable to certain counties............0.. cece ee eeeeenees 356a
fees in criminal proceedings, when town or county charge.............. 384
neglect of town clerk to return names...... eee ene eceeeceeseeeeecsss 1088

Consumption—See Tuberculosis,
cases, report of health officer.........sccsessecsceevsseevcccenccseess 451

Contempt—

prisoners confined for ........ CAs FAMERS RE Maw ses awes ee seneeeeeeeee 198
Contracts—

i NAME Of COUNEY:: wicwis davies vvlanew eseipies o4 Bee TE Siete See Se eka vaiows 2

by town officers, in name of tOWN.......... cece cece cece ee cesceteecses 895
highways and bridges, repair.............-+...- ee teewsamaceiec. - SEL
1294 INDEX.

Contracts—Continued. Page.
officers not to be interested in........ 2... eee ccc eee ee eee eee 1086
separate specifications for certain work............ 0.00. e cece eee eeee 1081d
municipal, retained percentages may be withdrawn.................... 1081d

provision as to workman’s compensation..................000 0000) 1081d
deposits, disposition of, accompanying bids..................000 08 1081d.
supplies, disposition of deposit accompanying bid...................... 1081d

Convention Expenses—
of municipal officers and employees............ 000. c cece cee eect eer eee 437

Conveyances—
by or im behalf of County: << ic. 5 cdsicage a snes og heed wielnne nareisie a wae 3

Convicts—
use of, in construction of highways............0. cece cece eee eee teense 886

in construction of county system.............00e cece e ee eee eee 963b

Coroners—See County Officers.
fees for services of, a county charge............ ccc ee ce cee eee e eee ees 43
number, Westchester county. . 2 10... 6... ccc cece eee cece eee ee eee 156
when county treasurer, Erie county, to act as................000008e 117, 157
when ‘to act as sheriff. ..cc5<. cqcs he daw oes eeee casita yaa tee CRS 161

county judge to designate. . .... cece eee cece eee eee eee eee 161
duties, when sheriff party. . ........ ccc cece eee cece eet eens coeee 162
to execute duties until vacancy is filled.................. 00. e cece eee 163
salaries, board of supervisors to fix............ cece eee ee cet ee eee 163
fees allowed for services or inquestS............0. cece eee e eens 163
inquest, see Coroner’s Inquest....... 0.0 cece cece cence teen eee 199-203
property found on deceased, disposition...............0. 0.0 cece cece eee 202
statement to board of supervisors............ 000. e ee eee eens 203
f6eg HS; WITNESS in coin bes a ohaaaneian'y ne seas Hie Era See es nece ne bar ame ees 203
may employ surgeon and stenographer. ............ 000.000 c eee cece eee 164
report to board of supervisors. ......... 00. eee eee eens 203
justices of the peace to hold inquest............. 2.0... esc e eee eee eens 203

Coroner’s Inquest—
employment of surgeon and stenographer............. 000s eee e eee eee eee 164
fees: allowed: for ServiceSs: ss cusidne s coecaG Semon se Reseed yadda de ves 163
when jury may be summoned... ........ 6c eee cece eee eee eee eee 199
coroner disqualified... icc: acesessied edie’ Goa eaamadaaie head eh aeemearal ee 200
witnesses, SUbPOChW. yi siccnwaared savteedonan4 s ormmnsded samen aaa a nates 200
verdict of jury..... $s eae Rea dae hao aahsipugnhae ed elem ere aly uentvedac ee 200
testimony in Writing. .cccsiuieneeseseeee sane teens sy es F 8S Chaka ES 6 201

to be delivered to magistrate. .......... 0.0. c cece eee ee 201
warrant; ‘When: ISslied sian nc thened sigsca oad hdaulchag hd Gad Kae Aan 201, 202
form......... Gdia se avrahiaueshid eh traaaaten Gee oun Hie ah a a cea dle eanichs Wectestan 201
OXCCULION 6. 024s sacisinwacgucae yen ina ey sacimibidcda a haar egig ing Hauguioe aa 4 202
proceedings on examination of defendant..........................2 0200, 202
disposition of property found on deceased............. 0.00.0 cece eee eee 202
statement to board of supervisors............. 0.0.00 cece cece eee uae 203
employment of SUrgeONn......... 6... e cece eee cece teen ee een e eens 164
compensation for services of coroner............. 0... ccc cece cee eens 203
COPFOUET AS WITNESS: cccereie ees senie'o ace nionso Quatted We embeds Ou Reee he whe ees 203
fees of jurors............ ee err ee 203
justices of the peace, when to hold i lia is,Nisngeuauaniet hi sera stun -c. iv aaaheyn outa aunied ed oteelaiew cts ake 203

Corporations—

names of, county clerk to report to secretary of state...............00005 128
128
INDEX. 1295

Corporations—Continued.

' Pace

place of taxation’: .¢4ssitc.giie ves oka dduew da be ba cee ee aaegeeeneeeacaaee 499

+ personal property taxed where principal office is located............. 499

taxation of corporate stock....... 0.0... cece eee cece tener ee eens 500
of railroad corporations. ..........0 000s cece ee cece cence eee enes 501
valuation of, how ascertained........... 2... ccc cece cee cece ee enee 501

statement of, to aSSCSSOPS....... ck cee tte eee 2 cs Alahdapegs 525
CONLENES: eso isaadicarakt Soden to petees Wises ao hogime Mass Reeus saauors 525
penalty for omission to make........... 0. cece ccc ee een eee 526
effect of ...... ioe Koay eu tana -e¥ Eee hE ma mks RASS a cobra 526

county clerks to furnish data respecting. ........ 0.0 cece eee eens 527

how assessed on assessment-roll......... 0.0... cece cece eee tee eee e ees «527-532

failure to pay taxes, sequestration. .......... 6.0 c cece ccc eee ee eee eee 595

supplementary proceedings for collection of tax............... cece eee e eee 598

dismissal of suit or proceeding. ..............ceeeeeeeeeeee Pash dakeeaceel Sale 599

County—

a municipal corporation. ........ccce cece cece een wees sien sale ea a ats 1
effect of declaring iis sc secs dcnwiensas cee essseumdsiane te yce ss dada aan 2
actions and contracts in name Of........... ccc cece cece ee eens 2

actions by and again&t................ PRES A eater eeu Seas 3

boundaries, effect of alteration on debts............... 00 ccc cee e eee 4

division; disposition of property ......... 0... cece eee eee eens 4
judgments of county court; executions............... 0... ee eee 5

on property of county........ 0... cece cece eee eee ee eens 4

liability for injuries caused by defective highway............... agara stew 7

Official Seals: a ctise a ete cis eines ea wages a Gl Geld alin Wieeieans aateiehy ee arsjats 225
kept by county clerk......... 6. cece eee cee ee eee eee teen eens 226

temporary’ loans! wicccaets ios aon ys toee ae pede ese eae nee ewe Ewa we 81, 1058

power to borrow mMoney........-- 2. see ee ee ee eee eee e ene 1058

funded debt, contracted for specific purpose............... 0c cece eee eee 1059

new bonds for retirement of old... 0.0... eee ce ee renee 1061

bonds; how “issuedss «ssers es ceurieis Guan sse wees cr okG Sea aaa vee wer oes Renee / 1062
Tegistration, asa weve ste ss Vee ees sme ee Eas Sawaal danas dagned 1063
coupon converted into registered........... 0... eee e cece eee eee 1064
not invalidated by certain defects............. 0 cee eee eee eee 1064

limitation of indebtedness............ ccc cece eee cc eee eee eee e nena 1065

credit not to be loaned), ¢ sicis cee ceiver: sand ee hans eay am ens sleee ee yReIA ES 1066

liability for injuries from mobs and riots.................... aa dene g 1076

County Attorney—

board of supervisors may appoint............ 2. eee ee eee eee eee 82, 144

term and salary, how fixed....... 00.0... c cece cece ence eens 144

ities may include services for town.........-....cccecceeeececececes 144
County Auditors—

appointment by board Of SUPerVISOTS sick ss Sipe ees ery see Sang ws wi ees de 124

duties in respect to county claims................. Re ee ee 124.

County Bacteriologist—
appointment by board of supervisors... 2... 06... see e eee ee ee teen eens : 82
1296 INDEX.

County Buildings— Paae.
erection, alteration and acquisition of lands for...................065 58
change of site by board of superviSOrsS..... 2.6... eee ees 69

petition of freeholders. 52: .cgeccccaos cava ten tae tees ee sede ee cd ee 70
action of board upon presentation of petition..................-00- 70
submission of question to vote of people................0. scene 71
legislature cannot change location.............. 00. cc cece eee geen 71
lighting, heating and payment, advance payment...............0eeeeee 65¢

County Charges—

SONETANY hacen cwmsae gi Pei yeoraawnsrat mo tien Geareasing dese. 37
expenses in criminal actions............ 0650: cece nee eee teen eens 37

accounts of district attorneys.......... 0... cece ee eee 37

OXPErL WILNESSER? es cd oie dete oe ane Ke aw ee ROR A Ree eee Aw DAS Bue 38
compensation of county officers........ 0. eee eee e cee  ee 38
COUTE NCTIETS cuss oe nae ios dad Ree yas yea Maeda Kens Gg RGAE Ta 39
sheriff, as to criminals and summoning constables..................... 39
constables, for attending courts of recrod............ 0. eee eee ee ee eee 40

services in certain criminal matters............ 0... c cece e eee eee 40

CONVEYANCE: OF -PNSONCTS ii. < Giese dere este base seen oda eles on Litas saad 40
support of prisoners in jails.......... cece eee eee 41
witnesses’ fees in criminal actions................ 0... cece cece eee eee 41
necessary expenditures by county officers................... o 2 eames a 42
printing calendars for courts......... 0... ccc ieee eee ete eee 43
BORVICES VOL, COTONETS) iecis ed ccc te atisaues scoih, Saeus ba ps dlealin askeainadealane CANE AAS Ral 43
GIECUION. EXPENSES 2x csienic cqnne ss mew CANOE ew Rare eas wa Ee anew Sei - 48
bounties for destruction of noxious weeds and animals................. 43
compensation of supervisOrs ........ 0. cece cece ence eee eee ener anes 43
fees' of justicesof the. peace: seuss see she See Leo daet eh ane daa eae 43
CONTIN Gent EXPENSES: edo sa.ciswis <a Aegaa ed Gnalals Se aulislard Maaaplae AMMA Aled < 44

court rooms and furniture.......... 00. cece eee cece ee eee 45

COUTE. EX PeNSES) cause wos. tes one wemea hn ewe pea on eA ges ee hs 45
costs in proceedings for removal of county officers...................00. 45
judgments against county). ...0.25 cekccadee tesa wed er sated eee dies cuss 46
damages against county officer........ 0.0... 0c cece cece eee 46
costs and expenses of litigation........ 0... eee eee 46
COUNTY AELCCEIVE, 02.5 wis oe conte sated Stak RE ON ER wee pe eRe ROA 47
stendgraphiers” fees) gigs aie aiengice Gare pla yl awake geeteGe ae Hae we See 48

supreme court; apportionment ...........0 00... 48
counsel in murder caseS...... 0.0.06. cent eens 47
CWS PRISONETS,. SUPPOTE = pew aerics dale auniitamduenes daze eaiSheiewale wade 47
notices of appointment of terms of county court...................... 50
fees of county clerk, for certifying records for state comptroller......... 50
levy of taxes for payment... 040000 cc5 cee sabes eed bee cee dae eceeuees 50
publication of local laws passed by legislature..................0.00005 68

County Clerk—See County Officers; Fees.

duties of, relating to session law slips................0.0 00. cceeeeeee 68
secretary of county board of canvassers.............0. 0.0 cee cca aaee 84
to transmit statements of canvassers to secretary of state............... 92
PlOCUION i: cca vcecue eure sen eet aus Bik Gaunt 8 TON bre x ae cones eit a Phe naan else gs 126

governor to fill vacancy............. 0. eee cece cee cece cece naes 126
INDEX. 1297

County Clerk—Continued. Pace.
Undertaking (5 3i..a.sccaoain ahivietg hk Saieragiagare Sela tee deedon eo a 126
amount, supervisors to fix ........... ccc e cece e eee e eee eees 55
general powers and duties........... 0.0... cece cece ccc eee ene eee eeaee 127
custody of books, etc...... 0... 0. eee ccc cee ence ee eenees 127
to provide books at expense of county.................... cece eee 128
to notify persons elected to office........... 000.0. cece eee eee eeee 128
to notify governor of vacancy.............0.. 00. c cece cece ee sees 128
report of names or corporations.................000.c cece eee eee 128
changes in names of persons and corporation, io report............ 128
fees, to keep book containing record of..............0.0. cece eeeee 128
when, to account: TOPs ss wsee sc cise ss secs cece nee yaune dt kawens moos 129
WEATCH Of TECOLAS) ois ond esters oo, preci ow 6 MINES Le gE Ew Kieth lee aera 8 129
clerk of county court........ 00... cece cece cee eens Soy hues 808 a 129
recording honorable discharge certificates. . 2............0e cee eee 129
deputy, appointment of. . 2... kk eee etc nee ene eens 129
ferm:OF OMCs ge yaaa wae wlgnlaau SMe ee ep apesia waned nea s 130
duties Of i:3. his seaits Gauiy bese huan es won enh wane aera meenewss 130
special, to attend upon courts; duties........... 0.0.02 cece eee 131
assistant clerk, duties, compensation. . ..............e eee e eee een eee 130
one designated as calendar clerk................0. 00sec eee dashes et oA 130
statement of receipts and expenses to board of supervisors.............. 131
business hours in office of............. 0. eee eee eee Sits thaw veel Hegel 132
records of predecessors; completion. . ............. 0. eee cece e eens 133
deposit of certain papers for safe keeping...........-. 0.2... ee eee eee 133
register of moneys paid into court............ eee cece e eee cee eens 134
records to: be Kept: DYs6 ows cee nue tae cae Saws Wied He wpe Fea Svea nei ene maene 134
marriage records, papers filed and indexed.............. 00. cece eeeeeee 134
tranmission to state department of health.......................- 135
falS@sCOTEWACAbCES  ) 6. a. ce cee st acpsin rece asa lesal hoe Aid Uae R 8 Adler: DKS Ww ice fetes aes 136
false statements in certificates. . 0... eke cece ee ees 136
filing instrument without proof of acknowledgment.................... 136
failure to publish statements. . .... 0... 0. ccc s cece eee ete e eee aee 136
to report omissions of town officers to district attorney................. 318
to furnish data respecting corporations.............. nee SEES Saintes 527
duties on taxation of mortgages, see Mortgages, Taxation of........... 621-634
County Comptroller—
petition for creation of office......... cece eee e eee e eee e eee eees ceeee 118
submission of proposition for creation of office......... ccc cece eee - 119
qualifications; term of OfffC@...... cc cece eee cece eee e eee eee teenies 119
supervisor not eligible ........-. cee ee cece eee e cece ete nett eceeeeees 119
oath and undertaking. s.2.00%6 sae ees sign ces meres smae ts view bes wre oe ears 119
salary fixed by board of supervisors......... cee ee cece e eee ee ence eecees 119
removal by governor ........-- svg hah ayer eyahs gtvedure cteeename cle pisos os tage eels ais 119
fiscal affairs of county superintended by .........cecee cece eceeeeeeees 119
warrants issued by .......+++- aia oae ava tetenees co agate nay Sseuouskanteaswunies ooo aueaeate oo 120
accounts and claims, examination .......... ccc cece cece ee eeeeeeeees 120
report to board of supervisOrs....... see eeee eee e een eee eee eeeeee 120
audit of, when rejected........ sees cece cece teen een cette eeenes 120
filing and verification...... ahukerd Gsbyatevetids S Gare Cetera ee eansaneys ine eelon 122
books, records and reports .......eeee cece erence eee eee teen eee e teenies 120
bonds of county, duties aS tO.........ee eee eee eeee Syste Se rbeast es howacheieas 120
payment of county employes........ssee cece cece cence ence eet nneaees 121
audit of records ........-06- sani alahele Gievalivie eG ayes ba awe Sates a eee Che 121
TEpOrts Of ceececrecec seers ete et eet eee ee eee eee t eee ents e ten cnnes 121
purchase of supplies for county officers............+++.- meade Tarsws ee 122
estimates submitted by county officers..............02005- Setlevinews evi 128

accounts with county treasurer.........eeeeeeee eee ones seeeececeees = 123
1298 INDEX.

County Court— Pace.
judgments, where county is divided... 00... . 00. c cece cece cece eee es 5
notices of terms, printing, county charge........... 00... ce eee eee eens 50
county ‘clerk as: clerk (Of: = icinev cade cceciks cab ehdece de Shes ewes ganese me 129

County Engineers—See Highways, District or county Superintendent of.
cCOntiniiance= in iOMiCe spss cos igs s oa laGen's ere dtayd Sua AG dies) ean i ae 975

Couny Funds—

duties of county treasurer aS tO... 0... ec eee eens 104
deposit Of, ini. banks sgn swca dhe w i ae den es caaa e Aeo See ek oe 108
depositary to give undertaking upon receipt of...................0005: 109
how drawn scowiers gow eis see y tad ee eras dees oh Gs Be ReUee Sh Ket Ease ese 110
eounty treasurer to deliver to succeSSOr.. 1... 0... cee ee eee 110
misappropriation by county treasurer............ 0... c eee eee ee eens 114

County Highways—See Highways, County.

County Judge—

election and term........ ce cece cece cee eee ence ences pee ea ere 145
@Overnor to fill Vacaney: wi 6 ccna cx dais oe saws cuss eee keene calle ae 145
constitutional provisions as t0........... 2... cece eee eee ee eee 145
compensation Of .c36c2¢ seeders ed seas mae yee Seewes eAeR See He eae Ee 147-151
how (paid. vc. sagksxnee ceed eeeers ued s aeeesi sens ash SANs Sum SR 151
County Laboratory—
establishment ....... SMO e Mele ONs StaT aa Bae Eee ee ee 82
County Officers—
necessary expenditures a county charge............ ec cece eee eee eee 42
costs in proceedings for removal, a county charge...................... 45
salaries to be fixed by board of supervisors.....................00-0005 55
elerks, assistants and employes......... 0.0.0... c cc cee cee cent eee eceeaee 55
board of supervisors may regulate hours of.......... 0.0... cc cece ees 57
undertakings, acts before executing.............. 00... cece eee eee 58
county comptroller, pay rolls to be certified to................ 000s cues 122
claims presented to, approval............... 0... c cece eee eee 122
Supplies; purchase: si. casei coeendetgnseimeeevions Aayen aule yeas 122
estimates to be submitted to..... 0.0... ieee eee ee eee 123
county clerk to notify persons elected............ 0.0.00 ccc cece eee eee 128
notice of vacancy to governor........ 0... eee cence ee naa 128
reports to board of supervisors............0. 0... c cece eee eee eee eeas 224
penalty for failure to make.............0 0000. e cece eee 225
to be filed with clerk of board................00.00.00 00 ccc eee eee 225
moneys in hands, district attorney to recover...............0.0000cceeee 225
oMicial Seals: «ee oce's siacaeys sae woe eee eg GHA. tO ten BY ded Lars ne Sea 2255
Oaths Of MGS iss cya ses vea4 WO ee ieee tay jl amoNas A od Meamatard om el duae sn frees 226
failune tor takes ec coach cw haters Gaul ata agin eden wae ounces 227
bonds and undertakings........... 0000. ecco cece eee eecees 227
Olle: s,5 oat N iene oo nth oe adhe nee dans Ae eb a rsa eda natn 223
QPPHOVal. vei ucen coaae ee eeutes Mew to aca dun ada eteanee ueew aed 228
to: be: recorded seas ee x suictad asnda maseid a cenaue Re dx Gus ealoatise a veda aud alg 228
SUTCUIES Ausawmgiecimedsen a Seaway Side, cee we eee 228
INDEX. 1299

County Officers—Continued. Pace.
expense of, when executed by surety company, a eharge against county.. 313
removal by governor .......... o's HWSO SAVES TS Hae SESE aap eas Nees «. 229

evidence in proceedings..... Sitesi S/dishaubieave canals sees acsabna @uanarmule aus. vee. 229
order, how made, where filed........... cece eee e ee cece cee eee eee - 230

for seditious or treasonable utterances............cee cee eee cesee 281
expenses a county charge..... ee sn. oa NOR ES bere wes ay aeee 45
action to prevent illegal acts..... PEASE SARS oa cots i diecavanes eves arsaeeecasay --. 1045
object of statute........ cece eect eee cece eens sie @rtid anes lala wlaiet . 1047
when maintained .............ceeeeeeeeeee eh bd melds awine ts aeucemtes 1049

to restrain award of contract......... ftewete rs snaw eeaawaw y seareaws< 1051
audit of illegal claim.......... cece ccc cece ee cece ee cee een ee 1052

to prevent Waste.........ceeeeeeeeeees acGcaasl aca yatauaas Som ocalerded a aeusad sake 1048

by and against, in official capacities...............ceeee neue ...- 1054-1056

for malfeasance in executing town bonds..............seeeeeeee eens 1053
acting without having qualified.......... Sas eRe PUNO FARE Say ISS 1082
DERDORY. 2. e200 oe cossaceiese ce ious acgeuecs Eacesele sav eutabeshactoa ra dunn te zcecauaveies waaceteas seevee 1082
prevention from performance of duties...............0-- Phalanwes ashes 1083
taking unlawful fees................ Ldsis loa waee Weasel use eee ewes seee 1083
illegal acts as to appointments.......... cece eeeeeeee isis 6 Mee Dae 1084
wrongful intrusion ............. sitiguSe Srnee eae ates Rede e eran seeeeece 1085
NESTS srciaie dace tie o siecmce ees Soha Sropeiayevevnernsve- a/aswes ideas Sones. eeeees 1085
misappropriation of public funds............. caeiasinuaean eteaieieeeienes 1085
not to be interested in contracts.......... epistagie's Scheie wares cccceeeceee 1086

County Poor—
superintendent may direct overseers to care fOr........cceeedeceeessees 676

County Roads—See Highways; Highway, County.
what constitute .......... 0. ee eee e eee eeee cnayeenas SURG coe ewase es. 489
system, establishment and construction......cccceseccsecesereesscesew  963b
taken over for maintenance as state or county highways............... 905b
construction in certain third class cities..... 0.0... eee cee ee eee teens 963g

County Superintendent of Highways—See Highways; District or County

Superintendent of.
Continuance in OfF1CC... eee e eee eee cee e ence eee cee e eee eeeeeee crt 975

County Treasurer—See County Officers; Taxation; Schools.
deputy, board of supervisors may authorize......... ccc eee eee renee ee 65f
to keep record of session law8.........cee cece ee eee ee eeees er -. 66d
election of ...........6- Oe Oe eo are OR eee re ee 100
appointment to fill vacancy......... cece eee cee eee eee cent eee eens 101
UN GET CARING ~ 5:05 ssansvecioceiere oe ound anges, lee ee oleuinS “wlade tne eareR 101, 102

additional may be requircd....... ccc cece eee e eee e cece eee eeteeenes 102
acts of deputy, covered by......... cece cece cece cece eee eeeeeeeee 103
deputy county treasurer in certain counties........... 0... e cece eee eee 103
compensation paid out of fees.......... ev ee wien iMamissiavercsess, 108
undertaking .......... cee tee eee e cere e eect e eset eeenereceeeee 103
general powers and duties......... Hoke Pevnige Te aleneetaelae Baer 104-108
to receive county MONEYS...... cece cece cece eee eee teen ence eee 104
to keep accounts ........ bie eRaeG Haslaaiay LeRe Pe Seeds Mea Ase 104
to render statements to board of supervisors........... denineieac nae 106
to render to comptroller statements of penalties.............0.0005 106
receipt and payment of state tax....... cc. cece eee eee -» 106
special report as to investment of trust moneys....... owes a eg Mee 107, 108
to exhibit books and accounts to boards of supervisors............. 108

extension of time for making reports..........cccceeecceccces

108
1300 INDEX.

County Treasurer—Continued. Pace.
‘banks of deposit, designation by.............. see ceeee ee eee cee e eee eeee 108
MDLETESt On, GEPOSItEs yaicigc x svdsien Sua eck aaua ecole gtauen ec apniaesl ed HAR wie aeuer tes 109
undertaking of depositary...........20cce cece cree ee ence teen eeee 109
designation does not affect liability of............. 00.00 cece eee ees 109
Grafts upon; how Ara Wiis suderasins oo pee conediee eased pewdis eda es 110
advancements by, to school districts, Suffolk county..............--..- 113
books and funds to be delivered to successor............0. eee eeeeee eee 110
penalty for neglect to make report of statement............22+. eee e eee 111
recovery of moneys after expiration of term...............0 0000s eee es lll
misappropriation of moneys and securities............. 0.000 114
duties in respect to cemetery trusts.........00.0 fee cc eee eee 112
failure to pay on order of court.........0 022 ee ee ees 113
duties under Liquor Tax Law............00 0.0.0 o eee eee ll4
fees for collection of liquor tax............ 0. cee eee eee 116
transfer tax; collection Ofs.s .¢son:2e:neeheas Gaye ets Hee SEE Pee eee oes S 116
receipt upon payment... ............. ghia ( Burg A Sick aijonce aun ee 116
fees for collections. 32. jcss0s ju vhs ctene SRE ak eB RLS SP Oied tb aan es 116
report of amount received to comptzoucr...... 2.26 e eee eee 117
when to act as coroner, Erie county.............. 0000... cee eee eee 117
accounts with, county comptroller to keep............ cece eee eens 123
Official ‘séal) joes. coe nae jcc aale teehee Bees Oe SNEED Lame a WORSE S wid tee 225
nob. to. be isupervisers:« < sence i coisas das ies Poet eR eae ee Se 300
collection of tax On. bankss«¢ 624 eecsce nese sa cae sea OSes tae os Hess oe 523, 524
payment of tax to, by railroad, telegraph, telephone and electric light
COM PAM IES seco: od.acevnne ie ora. aitsrand) gdihcssavaleva te Migs ear Sunes eera toe ineersecee 590
of school tax by railroad corporation............... cece ee eee eee 591
by railroad, where town was bonded.............. 00sec eee eeee 592
Cuties AS LOvs odes ee cutanw case wn Hea eaeminde 44 amin wesliny esis ners 592
to issue warrant for collection of tax on debts due nonresidents.......... 596
supplementary proceedings for collection of tax...................005. 598
dismissal of suits or proceedingS............ 60. c cece eee e eee eee ces 599
return of unpaid taxes to..... 0... ccc eee eee ... 601
collector’s failure to pay over taxes, duties.......... 0... cece eee eens 604
extension of time for collection of tax............ 6... c cece eee es 605
satisfaction of collector’s bond............ te Bans ae gi wie Ra ay waeLE 607
payments to creditors of county...........-. 22. eee c ee ee eee eee 609
state tax, comptroller to charge........ 0.0... ccc cece cee eee eee 609
payment, how made......cc.0 0.26 se tws edad vee daw ae dame ween 609
1OO8' oc adsice Ps otis sak KUO a eat sleds Jee be eee se Neder eases 609
accounts to be stated by comptroller.............. 0.00... e eee ee 610
losses by default, chargeable to county.............. 06sec eee e eee e eens 611
sales by, for unpaid taxeS.......... 0. ccc ee cece eee ee ene eee 613-620
in counties embracing no part of forest preserve..................- 614
list of property and notice to be published........................ 615
how conducted ssicsss see seawneses tend es oe odin dae heed oe dasa ted sie 615
@ales. by, redemption; wc. swiss e ewes eaten alee 's cos Gels § nails gob areas oukee 616
redemption of real property sénlaken from tax rolls................ 617
conveyance to purchaser......... Sarees eee cee cece eeenceneces 818
CH CC Sseived anions Carga ee. aae ie issues epaye eeGensec sss wiseud-arasnaeie ses 618
purehase money, when refunded.................- PGW ees eee wes 619
list of lands sold, transmitted to comptroller................. seca | O19
expense of publishing, lien on premises..............eeeeeeeeeanes 620

duties as to taxation of mortgages, see Mortgages, Taxation of........621-633
as to school moneys, see School Taxes; School Moneys.
INDEX. 1301

Court Criers— Pace.
compensation county charge........ ccc cece ence cece eee e ee eeeees aGiae 39

Court Expenses—

Bw COUDEY: CHATIOs isccusisia Suigit wraeGinley Sasa: Beigua oe mom gee slow eee eas wa : 44
Court Houses—
erection, alteration and acquisition of lands for................... 0005 58
Courts—
calendars, cost of printing, county charge.............. cece cee eee 43
deputy county clerks to attend termS............ 0. cece eee ce eee aes 131
furniture and supplies, county charge.......... 0.0... 0. cece cece eee eee 43
moneys paid into, record to be kept by county clerk................... 134
sheriffs to attend upon terms........... cece eee eee nee ene teens 167
duties as to rooms of appellate division..................0 2. eee 167

Craig Colony for Epileptics—

admission, of ‘patients: + .sc066ss02e vise ree yee ses Hee Oe esas Doe REST ve ate 701,
proceedings on commitment...... 0... cece ccc cece ee eee te eee n eee 702a
support; clothing a county charge........... 0. ccc eee cee eee eens 702b
apportionment of patients among counties............ Soe caees eeewce eve “TOL

Criminal Proceedings—

expenses, when county charge ............-.0+625 BS Silersuaashs exececsua svar 37
accounts of district attorney......... a Si Spee Sranotelcenetav aia Sg eeatiahes ) 37
advance payment, supervisors may provide for..............eeeeee 65¢

fees of justices and constables, when town or county charge.......... 384b

accounts of justices ........ cece eee eee eee e eee eens ae ereseduasianeens 384

salary of justice in lieu of fees...............05. wasianekes a esa vas seen. 384

Cruelty, Prevention of, Corporations for—
appropriation of money by boards of supervisors to aid..............64, 65b

Crushed Stone—
purchase, in certain townS...........cccceeeeeeecetceceetcecscsceses 8240

‘D

Deaf and Dumb—
appointment as state pupils to certain schools............cceceeeeeeees 705

list to be furnished to commissioner of education.............0.0005 «+. 709
indigent, admission to institutions........ cence een eer ee eeees seeesees 709
when expense chargeable against county................000. veces 710:
admission to Western New York Institution............. Piataress 710

to Northern New York Institution.................. ceeeeeee 710

clothing charge upon county ...........cecceeceesceececceereeees 710

Deaths—

registration; fees a town charge........... poseueuageepsweswsbembiead) 448

duties of certain officers aS tO 2... cecccccce ccc ccccecececccccscccecee 4628

Decoration Day—
town board may vote money fOr... ...ccc ccc ceececenccececcccsveees 398
additional appropriations for ............ce cece cece cece ee cteseeeces 399b
Delivery of Books and Papers—
by outgoing officers.....cceeeeee erent eres e eter e ete e teeta een es
proceedings to compel ...cececserccccseecrerccrccscesectenceeseeecs

Department of Highways—See Highways, Department of.

Deptty County Clerks—
appointment, qualification, term ...... BPEL SA Ries ge a Ne eis RI eS
CUEIES, sieectd dwdinchucteiees Bowed a ae bball Geedeusie sd rvetiontdtty uny.c3 iets latangl 2 aumiiete aievatewn
special, to attend upon courts........ ee ee

Deputy Sheriffs—
appointment of .......... bir 5US atRiais SvS csnai Soe wr acoaeias Roee ona dioceses arta tNone pues ees
MUMIDED assent ese ie svn wid a aye dsara eevee eid a) eG SAO Sarasa Sole Rete Bee RS
POWESIS: jooe dice Ve whiae. Vee cigies Seteuate Sia sieisioseisiaayale ola pigea eo teehee abatements
Undertaking acc vissies cages swiss yeas (eee s SENOES Sway hee BSE a a MA
sheriff to notify to attend COUrtS....... eee cece eee cee eee ene eee

Diseases—See Health.

" eontagious and infectious, duties of board of health...............0.00.
report of cases, fee..............000 {8 Meee es aded sve ew aes aor
vaccine virus to be supplied.......... cc ccc eee n ec eee eee e eee eeee

carriers, quarantine; expense of maintenance...........:....... sa eo avteiatea

District Attorney—See County Officers.
ClCCHON  svace Fea Geers G Meese Hawes soatel lar ace es eilgeur ee Gee sree game
governor to fill vacancy...............00- sAinels Na ROR- EEE as coed ae ae
funidertaking: \22..aais cia 4nd Fou iets te news CARs SAR Ta eee ented Rae

amount, supervisors to fix........ cc cece cece eee te eee
report of moneys received... 2... ccc cece cee een eee eet nent eens
conduct prosecutions of criminal actions............. 0... c cee e eee enna
assistant, board of supervisors may authorize appointment..............
Powers Of <scomy ska week sed os eae Gas a acdan dined es Jaen ne BRM
appointment in Erie, Monroe, Onondaga, Rensselaer, Niagara and
Westchester counties .......... cece eee cee eee e een eeen reece
SAlATICS COP. asian ood tka duleans saleidareumn ees aa ula wae Bae ea COe es
employment of counsel........... 0. cece cece cence ence ee een ee eeee
special appointment by court............ 0... eee eee teenies
to recover moneys in hands of county officers
expense of transferred trial of indictment....................0..00005
of prosecution of criminal actions, advance payment

District Superintendent of Highways—See Highways, District or County
Superintendent of.

District Superntendents of Schools—
not eligible to office of supervisor...........

office created ..............000008 eid eedete Sie rateieioic ts pei Subse ea ee a Sea
supervisory districts ........ Sy aesiceus 4a ev omanenScavaNS Nid Gian cate dt cameo eR a at
school directors, electors of............. Shay ota ecandee taal tia oa ad bres aeee ew tee

to elect district superintendent...............0..00 cee cee eee eee
vacancies, how filled

PaGE.

357a
357b

129
130
131

157
157
158
157
159

450
451
452
452

137
137
138

55
139
138
140
140

140
141
143
143
143
144
65b
INDEX. 1308

4, 1%
District Superintendents of Schools—Continued. BOF gra Page.
Salaries. .........60. Aiaseswiaverecs {4 LSAT HATER taveV eases aeweeces LOI
expenses, how paid ...........- nese AGuenisaaedineet sume comet emee eae LOL

supplies and furniture, supervisors may purchase........eseseceseeeees 65d

Division Engineers—
appointed by state commission of highways..... staiganagter nie tel ste paheareara 797
powers and duties. osiiic ds saee ss weiiee saaia vas ba eee ME RE TERE ET a MER ALES 797

Division Fences—

adjoining owners to maintain. ....... cece ccc eee eee eaneeee 637
owners may permit lands to lie open.......... cece eee cece tenes 638
on change of title of lands....... cece eee eee eeee 639
disagreement, determination by fence viewers..................005 639
disputes between OWNETS...... 0... cece ee cee eee eee een enes 639
proceedings of fence viewers............ 0. cece cece e ene e teens 639
witnesses, subpena and examination.................cc cece eeeeee 640
fence viewers, fees and compensation................0cc cece ee eeae 640
damages for failure to erect or repair.......... ccc ccc eee cece eee 640
appraisal by fence VieWerS........ ccc cece eect eee eee eens 640
destroyed! by accidents. ..6 ese i soda eee gaeeee Hadi aa dey ens Ge ened ened eae 641
damages by animals, where not properly maintained sigue Grav aceuata Eimvaleee ie 641
where person fails to rebuild or ‘Tepair renee Sa adie RS bya Shas Sal RT Mreeeacoea Me 642
use of barbed wire............ cc ce cece cee ceeeeecevas OAC Laben eaeNaats roe 643
fence viewers to prescribe kind........ 0.00. cece e cece cece ence nae 643
Dogs—
licensing; former laws repealed.........ceccccecesecccecccecceescsecees G51
definitions; owner; kennel; dog.........ccccecceccccccccccescccccenese 852
fees; paid to town clerk.............+40- Hisiawisioe eswie's Wee waeee sea G52
of officers and magistrates.......... eh nba eeenw ene esse see “G59
disposition by town clerk........ MCRL ERTL ae eieis ca wis s:8 dines eo 663
lists of dogs; assessors tO PrepaTe........eeeeeeeeee a celecars wile e ee aaieisie shai 654
licenses; kennel ..........-+.--5. ose SUSNe seg Wee oRRec a sind 653
issuance by town. clerk........... SEW DIRE TIS Gide: Bee Siorose 8 6: Siti te dst kplan 654
TOPISEEY: ace asuacids anion a noreeicrsce meena a Joh Diseases ee ieee 654
tags, how furnished and attached......... Pdade Sealbes gewee isan te eo RES 654
blanks and forms, by whom furnished..............00cceeeee bicduedotnca Caan 655
killing unlicensed dog ......... Ree Raat ashes Sa uete Nena ee tsie aes §=©—656
dog attacking animals...... dina. 4 RE OE Meals aie ats e's vie owe eases 657
on order of court or justice ....... alee mwas eo. ete bss Roa 4 Dace vere 659
report to town clerk ....... Ry cei Sate chee e een nse n cee eneeee 663
running at large; order.......... lastiaanene Stee ib euarer Gaal ares es catianctalaecacanctavetotare 657
when to be killed.........--0-.205, peeeee as pea aS SS Se Soest 657
damages for injuries caused by...... sieves ate Re aCace cee ents bpsugaca ati oven 661
payment and assignment of claim...... sation io eleieceae ets re ee 661
disposition of amount recovered aceite Sse ae Saale see HO OE RES 663
actions tO TeCOVET.......++-+++ Sova ahaere- ds <rereted Boeveadnes ots ois ec avereie avaraaie - « (O64
“surplus moneys; apportionment.............. so i0ie Y elewseate aba electra ctoiaie-e weal ,- 665

pounds and dog CAtCheTS... ss eeeeeeesceeec eee ceneeees mioidve wads wee. 6658
1304 INDEX.

Dogs—Continued. Pace.
registration, enforcement of provisions as to....... oa Sloss a Slarenag a alee oats 665
penalties for failure; collection; actions for damages ais Riogw wa aaa Ra 665

seizure, when not tagged... ish ald avavedeetis Adtnout Dis oreo iE Rue OS Ee DEANS 656
disposition of fees and penalties alsa pyiecap nusaa a) BUaplosanpsa Ghuatave sia soneceseretabaudy p™aGps 663
unregistered may be killed... 2... . cece eee cee cece eee tence e eee 656
application of act; saving clause......... ec eee eee cee e eee eee e eens 665
mad, persons bitten by, to be sent to Pasteur Institute................ 725

enforcement of article by village authorities..............-.0002e0000- 665b

Drainage Improvements—

proceedings for assessment and collection of cost of...........06. «ee. 1087

collectors and other officers... 00... ccc cece cece eee eee e eee e nee eens 1087b

duties and qualifications Of. .......... cece cece eee ee eee «..-- 1087b
Drains—

right of town superintendent to dig, for free passage of water......... 829

E
Election Notices—
designation of newspapers to publish.................00008 Sekeete eu 69
Election Officers—
designation, number, qualificationS........... 0.0 e ccc ce cence eee eee eens 293
compensation in certain counties.......... 0... cece cece eevee scenes 354
unless different rate is established............. cc cece eeee cece eee 354a
Elections—See Town Meetings.
expenses incurred by county clerk, a county charge..................05 43
canvass by board of supervisors............0 0. cece cece eee erence eas 84-93
Electric Light Corporation—
may pay tax to county treaSUrer...... 0... cece eee cece cere e eee ens 590
enforcement of tax, sale of instruments............. 0 ccc cee cece eceeae 594
Epileptics—
support at Craig Colony......... cece eee c cee cte steer un toes neceas 704
BEALE: EXPENSE co. oes. sapaueslaied mene te sey Wee one Pardee eemanl seas 702
payment of expense of clothing by county.................0e00008 702d
Equalization of Assessments—See Board of Supervisors ; Taxation.
board of supervisors to examine assessment-rolls for..................- 558
exclusion of parcels: purchased by county at tax sale.................... 559
shares of stock of banks............ 0.0.0... c cece cece cece eeees 559
commissioners appointed by board of supervisors................2...00 559
eligibility sc sise.'e a wate s eens SoS Rey danas aietoehdad wile aw Meade des 559
appointment of county judge in case of disagreement................ 559
examination of assessment-rolls..............00 0. cc cece cece eceees 560
equalization of valuations..............0 00.0 cc cece eee ee eeeucaee 560
report of equalized valuations to board of supervisors.............. 560
statement to be forwarded to comptroller by clerk of board............. 570
appeals from, by supervisor to state board.......... ous dle s ae oa acme 578a
how and when brought........ 00.0... c cece ccc e ce cece ceeeee 578a
petitions for, prescribed by state board...........0.. 0... cc ceeeeeee 578b
tules respecting ........ Seah a Sd SAID De Velde vestann aecad we aero drestee tes 578b
time and place of hearing.............. 0.0000. cece ce cecceeeuees 578b
determination of state board............0 0... c cece cece eee ccceeee 578d
1305
Escape— Page.
of civil prisoner, what constitutes. ............ 0. cece eee cece eect eines 196
Viability: Of sHeriit acc 3is.5. 0 saves ntieeianiane ddr Shane aisalaonieds eecaed 197
PCUIONS  1OF. Vasigeseuwina eared x laws samiininias Vo-velaee Roaguignd ye wealg ea een 197
Estimates of Expenditures—
by town officers in certain towns........... cece cece eee ee ee eee ee nee eeee 358¢e
(See Town Boards.)
Executors and Administrators—
assessment of personal property held by............ 00. c eee e eee eee eee 495, 496
assessment of, generally... .... cece cece eect eee tenet eetees 532
Exemptions from Taxation—
property exempt ....... cece ce cece eece eee eeeeee bi sad cucaalalecin een tn ert aaaa 472
Tule: of constructions iscsi Heese waeqiew Ve Nel awash a EERIE esis 473
effect as to assessments for local improvements........... 00.00.00 ee eeeee 473
POWEFS Of \ASSESSOTS. wis cidade sevens SA caa we EERSTE AG Me OETA TESS 474
property of state and United States.............. cece cece e eens 473, 474
of municipal corporations. ........ ccc ete eee n ee en tees 475
lands) for cemeteries.» ... see ccaecueds tegen seas a eiGelbhae ceases st 475
in Indian Testrvationies + scsssescedsenacasereisgsismas wisensyecees 476
exempt from execution... ...... 6. cece cece ene e een nees 476, 477
acquired by soldier’s pension........... 00.0 e cece eee een eee ee nee 477
application for exemption........... 0.0. ccc ence cence eens 478
bonds, state and municipal........... 0... c cece cece eee eens 478
of charitable, etc., corporations........... 0... cece cece te eee 479
what corporations entitled to........... ccc cee cece ene eee 479
of ‘voluntee? fifemeny .2.5 2060 xe wdedeedde ciao ead ote detas dead 482
of dwelling houses and property of religious corporations............ 482
of agricultural society . 60. ccc nese ess desdsease de ces aweeeees 483
of ministers and. priests. ..:.:..ccccses ees sev etae te anevenessoeeeuas 483
of vessels engaged in ocean commerce........... 6... c cece e een eens 483
securities of nonresidents........... 0... cece cece ee ee eee tenes 483, 484
deposits in savings banks........ ater h aasul ies age 2 sav ena cied ay eseae vias eo 435
life insurance corporation, accumulations...................0000 005 485
co-operative, moneys collected............ 2. cece cece eee eee 485
mutual, personal property....... 0... e cece cece eee eee eee 486
Medical, SOCICHES cide sa derqurimiines din dese eaENA TEND Dae LEE 486
pharmaceutical societies ........... 6. cece cece cette eee ences 486
household furniture and personal effects...... ra pepasroas Mieiiee ieeeiysta 486
of corporate StOcK....-. ss ceeee cece eee ne cence en eseneceecnevecscers 485
of plank road and turnpike corporations............... 5h e'5 idee k 8 . 487
intangible personal property....... dre cermasaaace ape ile ave or sichoiel Gioveiteteleceratatie Oe - 486
of soldiers monument association........ cece ceeeeeseeeeeesceeeeenes 487
lands planted with trees...... Betas etna 2 sioneses tas ona si anarei ee s sales 3 ai - 488
maintained as wood lots..........+... Svaewuenbsaresavaiece alae ears Sv Seaunoeres 488b
report of exempt property by asS€SSOTS........ ce ceee eee eeeeeeeereees 506
of mortgages from local taxation. «i ivcedsseresvsvewes aes cswewssesae 622
622

from mortgage taX ...ceeeere cere cece erecceneeterceneescensess
1306 INDEX.

Fe

Fair Grounds— Pace.

exhibitions on, not to require license........- spisjaai eae ssa tamescece “409
Farm Bureaus—

appropriation by board of supervisors for....... sree iaecds wiayaleta's arehaie s/s ies 65
Farm Produce—

peddling, no license required............ esas hiaaes ccureetananssee 408
Farm Schools—

establishment by board of supervisors............+++ ¢ saute sages ce eves LO2D%

erection and management.........--.eeeeeeee erg faenerers betes sesame eed er gad 1025b

courses of instruction..........---0.205 0 Sxaghiss ga) saving preached sececccseee 1025¢

state aid; admissions..............e-eeees Piateveteiolirenree'e gewstrosaescan: J025d
Federal Aid—

improvement of highways ..... OPE issd eek caves santas sek eeieden eu < 8908
Feeble-minded Children—

Craig Colony for Epileptics .........:eceeeereececreeeceseeeeceneees 701
Fees—

in criminal proceedings, when town or county charge..............00ee0 384

of officers in Ulster county: 22. 0-scc.sd. sss 5ce seaeeeued yee ce te wees 386

Fees of County and Town Officers—

ASSESSOTS 25) rip ytaeissasesaneus eye gra ebante ig ais ai geicisrng ie nica “p dtlae nlp ashi iedtieetrare lob ews oN eae 1091
AUGICONS, TOWN! seweeriss seco es aragewnred ers Sousa te geUdadnas aaeseaar eRe 1092
Collectors: s,s. s0x68 ves ote ssasGave wees soca tiws abe sebeeay Verte eee ees 1092
CONSHADIES suis: ces eet viedo Rahees-ces ayes wiaadnonanedeled Aantewad akan aw OS 1092-1094
coroners ........ Wiens, Seaver (eal a aves ovpbaiial saunt Sethekk Sapte nap ia ite We sae hlasaa Spleens 1095 .
County clerks svcwsins ise we wesnimriaunw es aye new saa Ne ae ees elele ead 1095
book ‘containing: receipts....2 2564s senew igeded cede oe aedawleliag ¢ de wees os pees 128
county {treasurer v2. is ess anewteeees ep eee terea od SRAee VE Seeds Gana. 1098
GOUT’ CHIGRS: ga wit sy ois CoRR cones Le eA e aa Mnae eds Rd oa caus 1099
election officers ....... cyst vans oaleoptge ions tard dete MEI vb Renee a natetace Cae ob Raia 1099
fences VIEW ETS ani seaseeies Wow encuons Sead aero saan yeaa Nalems 1100
health: officer’ wecc0 ss Gewaanees ee Pee een semen ne be heges nome S 1100
jurors... eee eee PAD RMUONEG ARDS ete ea pS RANARe hee ea ee ees Bau ote 1100
jurors commissioners Of......... 0.00. ccc cece cece een ete een et ennes 1101
justices of the peace....... eee a atenahs BOS Fane Ga Ge a PONSA RS. Runde 1101-1104
overseers) Of thé POOP... oi. cceeaves enchant peedewanee cee su we tw eigeey es 1104
physicians ae .eseewnsnesiee eens sees. eeere tne erases ea nek e Hees 1104
pound «masters 6... 48s saedweee ses craved noha eee sose4 Mera os 1104
‘PTINLETB: osc 884 8's Lae e ea ep eres koe hae iis eee aes es 1105
railroad commissioner ........... 0... cece cece n beeen en eeteeeenaas 1105
sheriffs .. ......- So sbch ayes yen ine ie Ae aces ie ee oceans tereroaleees death eR 1105-1107
BUPEFVISOFS a6 sre sodangge ene 46s seamunt ye Sew erdacambbemme a yas son s 1107
superintendents of highways...............0 ees eee cece eee eee e eee 1108
GOWN (CLELIR © fn'55s va SES ERS 50 SS SFG Shaieraleesead ged ae dd Qataearern Biel eee eA 1108
United States loan commissioners.............. 0.00 ccc ceccacccacccucuce 1109

Fences—See Division Fences.
rules as to, town meeting may make........... 0.0... cece cee eee e cence 251
INDEX. 1307

Fence Viewers— PAGE.
assessors tO ACt AS...... ce cece e eee e eee Sd Heese Sayeeda Siavere Hates | ODT
duties as to division fences, see Division fences............ cee eee es 637-643
as to strayed animals doing damage..............seecccceeeese + 644-650
Ferries—
County Court: to Neense csi s 6% ccd cei os3 Ou a sieinataunecedebges b4G-a4 seme 953
Mndertaking Of NeeHsees ic. cca aivaenieueied eeate ea wa verison oie eens sie wens 959
Appendages Lor TOPCscwseirsisis- wee aia gaieiwsipiews GOs ee lala Ho Hafecninmions ¢ ewes HY 959
superintendent of public works may lease right of passage............... 959
rates to be posted......... cece eee cece cee Ski siaGlepsiel avec Aetels.y W.dlena 5 ora ale 959
Fines—
TeMiIssion Of 454s .weahireeeeurs's e's seas dates ius Ne WaGAueEe AY eka Sebo 183
prisoners to be discharged if unable to pay........... 02. c cece eee ee eee 183
received by county officers, reports to board of supervisors............... 224
collected by justice, payment........... sifisie Bae Tita GeonGueInh ve hadi ae and an aehte 349

Fire Companies—

real property exempt from taxation..........0. cece cece cece tees ween 482
town board to appoint MmemberS.......... cece cece eee cece eee e eens 411
organization .. .........4.. ee ee ee reo 412
appropriations by vote of district....... eee re eee ee rc 412
in incorporated villages........... SG yee eee eR Aww HGS eaves wae 414
purchase Of fire: aPPaTv ats: nic ioe; soca wis so oi 65GB in, Old ses BS ee Be Bement 412
assessments of expenses for maintaining................ ccc eee 413
contracts with, for fire protection................ cc eee eee teens 4l4a
ordinances of water commissSionersS........... 0.0 cece eee eee e ener 4l4a
contracts with companies outside of district.................00eeeee 413

Fire Districts—

establishment of, by board of supervViSOrs............ceece ee eee ee eeeeeee 74
fire commissioners, election Of......... ccc ce ec cee ence ee tenet ee entes ni)
powers and dutie@.: .siscscscasd dace sseistisiescaasrcaniaseaar deers 76
expenditure of money without appropriation...............00 eee e eee 76
fire department; organization............. ccc ccc cece cece ene eee eee 76
appropriation of money for fire protection............:e cece cence eee eee 17
meetings for, how conducted......... WEG ed Ted Aeros eld HAc Cee dees pH 17
discontinuance by board of supervisOrs........... 00.00 cece eee e eee eens 78
levy of tax upon inhabitants......... ccc cece cece eee eee teens 78
effect of incorporation of village within limits of fire ditsrict............ 79, 80
annexation of territory, duties of board of supervisors.............-05000. 79
ordinances, adoption of, by fire commissioners..........0.eeeeee5 80
merger of, with lighting district, when boundaries substantially coter-
minous ......... dese e e'y Hee HDA MEER as eG oo Hee TS Mabe Mae 80 .
town, establishment ..........-..--eeee cece ence ete eee etteneesntees 414b
fire commissioners, appointment ........ eahigtat Wea Tonite re asia hen sewer vag 414
powers and duties ...............04. acetererane 8 at erdhn tsconelstiotet earmnans 4s .». 414b
fire towns, enumerated..........cceeeceereecees See Miaiacea wrew Scslavasarane oie 1090¢
forest rangers, employment...............66. Sd eleins 6 $.ainidee « aay Ba Sts 1090g
rebate of EXPCNSES......seeeeeeeseeceee s shateres attach ais sive Me sais seeee 10901
Fire Warden—
supervisor as superintendent of fires........... ealense eters seacesese 326
compensation a town charge..........eceseceeeneeeeeveeens seeeeeeeee 325
Fire Works—

town boards may regulate sale and us@.......scescccccccccscccesercees 407
violation, MisdeMeaNor........cceesseeccnrecccccccrvccensccesceseses 407
1308 INDEX.

Forest Fires— PacE.
supervisor to act as superintendent of fires.......eeeeeeeeerereeeeees 325
Cuties 2 wis ames se cee ee ee bedis BENERERES 6 sya a-d stsueresa's wees «825
appointment of forest rangers........-e sees eee eee e reer er eenecereeee 325
compensation, town charge .......eee eee eeeeeee whersiecgearsiels ai baja diate 325
compensation of forest rangers and others employed at .......-+--+++-+ 325
town board may borrow money to suppresS........-+-- PORE ee sewss 397
regulations for prevention...... os bSa 4 ea OROMRD CES Oe Meh ehee eae Ree 1090j
damages on account of, liability....... actietsiors ae sibs Uwe eageke eyes 1090m

Forest Lands—

acquisition and development by town or county..........--- sateseseses 438]
reforestation by town or COUNTY. ...... cece eee ence rete etter entree nets 1090£
railroads, restrictions .............. varees ists icd eee setes tree aie Oy atuannie Hee 10901

Forest Preserve—

assessment of state lands in........ Gove Reaeke se as ARAL RES SEES 581
state lands, tax to be paid by state.......csecceeeecseeeeeeeeeecrrer eens 601
dogs running at large in... .. cee eee ee eee eee eee LGcsweceetionmeeee “OCOD
Forms—
resolution of board of supervisors, general form................ seoNee Ss lll
requesting action by state legislature......... 0.0... cece ee eee eee 11ll
subpena by board of supervisors..... 22... cece eee ee ee eee eee eee 1112
accounts against w COUNLY........ ccc cece cece eee e ete cece eens ee eeenees 1113
eontracts with penitentiaries........... 0. eee eee cece teeter een enee 1113
clerk of board, oath ‘of office.ecvscseiasieccasseunnerees see us sae eneee fee 1115
statement of county and town accounts............ 0. cee eee eee eee ee eee 1115
Of County: Clerkin vaca cand eS iad Esa Rn ainsceco ne dea ad: maitgnla aes 1117
district: attorney, Teport Ofte. ccocdsass cays carntiedeessaedee dance sens . 1118
calendar of prisoners confined in county jail................0....0. 0000 1119
alteration of town boundaries, application................. 0.00. e eee 1119
resolution dividing a town and erecting a new town................. 1120
resolution providing for alteration of boundaries.................... 1121
town meetings, application for special............. 0... cece ee nee ees 1123
NOLiCe: OF SPCC aicew ve aeces dew gag soe ymnewies + beeinlek AEN Gig hAOUA’S ae 1123
application for submission of proposition to be voted upon at........ 1123
notice of submission of proposition.............. 0.0. cece eee eee 1124
application for holding, in election districts....................00., 1124
justice of the peace, certificate of election......................2...00005 1125
undertaking of supervisor, general............... 00.0 cece eect cece e ee 1125
of justice of the pede... sai vicina niiic ce oeving d gwen ea ees a0 1127
of superintendent of highways........... 0.00... cece eee eee eee 1127
of overseer of the pOOr........... cece cee cee eee e eee nee 1128
Of town ‘collector 2..ccmiscise ca sshamiamna ag ceed bids namie ra warennes 1129
GE” CONSES DIG: & 2. siickie checd eck Sid ack 600k conaeapaeutpintoredie eal ode ecb eerwouss mestnaconsescsn di eeersone 1129
resignation of town OfficerS.......... 2.0 eee c eee eee eee een een eee 1130
appointment to fill vacancy in town office............. 6.6. eee e eee eee ee 1130
notice of appointment to town office............. 0.00. cece eee cee eee 1131
oath of town officer on delivery of books.................cccccceeeeeeeee 1131
accounts of justices against town in criminal matters.................... 1132
Of town! OffGers).. eines seinen seeders a anewialeenelsd sha -» 1133

certificate of examination of............. 0.0. c cece nce een eeeee 1134
INDEX. 1309

Forms—Continued. Pace.
affidavit to be annexed when presented for audit...............+.00 1135
abstract of names of persons who have presented................0005 1135

appointment of board of auditors by town board............. 2. eee eens 1136
application for exemption of pension from taxation....................05 1136
report of bank to local asseSSOrS..... 0... cee ee cece cee e eee ene e eee 1137
statement of levy of tax by board of supervisors upon bank stock......... 1138
warrant to county treasurer for collecting bank tax...................5- 1138
statement of individual banker to assessors..........0 0.0.02 e eee ee eee 1139
notice to bank of assessment...... eh gies de Whats Sowa haw Realtones 1140
statement of corporations to aSSeSSOTS.......-.... cee eee eee eee teen eee 1140
of county clerk as to corporationS...........0. 00. ccc eee cece 1141
of agent of nonresident creditor. ......... 0. cece eee eee 1142
notice of completion of assessment-roll.......... 00s cee cee eee e eens 1142
affidavit on application to correct assessment................. 000 eee eee 1143
notice of filing completed assessment-roll... 2... 0.0. c cece cece eee eee 1143
apportionment of valuations between school districts.................... 1144
certificate of neglect of one of aSSeSSOFS......... ec cee cece eee eee eee 1145
correction of assessment-roll, petition of town assessors.................. 1145
collector’s Warrant s.2.s15anedeaes ss xa sameeoee oe ae ok eet Redonda ne aes 1147
statement of taxes upon certain corporations. .............. 0. cece cece eee 1148
abstract: Of7tax LOLS... oss scdieus gc cneaamaatscns ingeyl AGub-e Saree amram aces Here 1149
collector’s notice of receipt of roll... .... ee cee ce cece eens 1149
notice of tax sale by collector. .... 0... cece cece e een eee nents 1150
collector’s affidavit attached to return of unpaid taxes.................... 1150
extension of time for collection of tax, application of supervisor.......... 1151
order of treasurer pranting........... cc cece eee tee eee eens 1151
division fences, decision of fence viewers upon transfer of title............ 1151
notice to choose fence Viewers. ........ 6... cece c cece een eens 1152
certificate of apportionment Of........... ccc ee eee eee e eee eee 1152
subpoena by fence viewers. ........ 0... cece eee eee ee eee ees 1153
appraisement of damages for neglect to build or repair.............. 1154
notice to build or repair....... 0. ccc cece cece cece tence teen eees 1154
notice to build, when destroyed by accident....................0005. 1155
strayed animals, notice to be filed in office of town clerk.................. 1155
MOCIGE TO OWMETS: Acecv o hosts s ertaoaihae Aor w SN Senginidigcaaacend bBo gata lave Pd SiGe 1156
notice of sale by fence viewers........... 6... c cece cece e eee eee 1156
notice of fence viewers’ meeting............ 0.0.00. e cece eee ee eee 1157
determination of fence viewers as to damages..................0054- 1157
sheep killed or injured by dogs, application to fence viewers.............. 1158
certificate as to damages.......... 0... cece ee eee eee ener enter eee 1158
poor persons, order of overseers for removal to alms-house............... 1158
superintendent’s order to pay expenses incurred by overseers........ 1159
OPdEE Of SUPEVISOT 224 csasewe cy se etede eee teamtn ay Bega Mmm 1159
sanction of county superintendent for expenditure of more than ten
LOT VeUI Sasa: Socal, 855 es cs waver eiaw se wea se owi Goel WB enc aeTA Ta Rawat ed ORM LoS 1160
order for supplies, verification of accounts..................00. ee eee 1160
overseers’ book showing statistics........... 0... cc cece cece eet eens 1161
books of aecounts of oVerseeTS... 0... 1... ccc teen eens 1162
accounts of overseers to be rendered to town boards................ 1163
report of overseer of the POOr......... cece cece eee eect eee eee nes 1163

report of supervisor as to support of.......... 0... cece eee eect 1164
1310 INDEX.

Forms—Continued. PaGE.
notice from one town to another requiring support of................ 1165
notice to appear before superintendent in contest as to settlement... 1165
subpeena in case of dispute concerning settlement...............--... 1166
decision of superintendent concerning settlement..................-- 1166
notice of superintendent as to relief at expense of town.............- 1167
decision of superintendent upon re-examination as to settlement..... 1168
notice of decision as to settlement.............. 0 cee eee ene eee ees 1168
notice of appeal to County Court from decision as to settlement...... 1169
notice of improper removal........ 0. cece cece et eee eens 1169
notice of dneial of removal. ......... cece cece eee eee tee enees 1170

bastards, accounts of overseers for moneys received.............0 eee eee 1170
agreement upon compromise of putative father. .................005- 1171
soldiers, sailors and marines, notice of commander of post of G. A. R. as
TOOTOHEE so 5Gir daa ne casgeasiauch eaaa As aas asa Renew aes a Mabei—ls 1172
Tequests for Telief Of sccccaucascviesseas xs eaoonnadn eee dae ae Namen 1172
highways, inventory of machinery, etc............... 2s cece eects 1173
notice to remove obstructions. ............ 0. cece eee ee eens si aoe 1174
to cut weeds, brush and briers........... 0... e eect eee eee 1174
assessment of cost of removal........... 00. e cece cece eee eee 1175
assessment of cost .............. Sass aes pateieranomaieeds RES aoe SE ANGUS 1175
permit to use, application........06.0ceees ees sy nwt ereeengeecen nase 1176
form and. contents .cinicesie sey ee cgaesaneeben dpebeterecces cumee 1177
trees, order authorizing planting. ........... 0.06 ccc eee cence eens 117s
watering trough, certificate of authority..................2..00. Sonne LED
private road, statement of credit........... cc cece eee eee eens 1179
guide-boards, application for erection................ 0.0. e eee eee 1189
unsafe toll-bridge, complaint ........... 20. cece eee eee ee cece nee 1180
estimate of expenditures 04 sicccceevccsasssada vee ins bee e adeeb oun lld.
additional tax, application for special town meeting................. 1182
application for submission of proposition....................40. 1183
town certificates of indebtedness.............. cece c eee eee ee eens 1183
authority to issue bonds, application............. 00.00. cee eee eee 1184
certified proceedings of town board............... 00. e cece ee eee 1185
resolution of board of supervisors............. 02.2 cs ee eee eee 1186
registered bond... ...... ccc eee cece eee eter eens is gars ees crane ante 1187
coupon: bonds ois sages owee's Sake a Ge ase awe we bee eR 118748
conversion. certificate: ss sare cea cen sta sice nes Mae Redd BEETS wees 1187b
provision for registration. . ......... 2. 6c cee cece eee eee eee 1187b
statement as to assessed valuation................. 000 cess 1188
supervisor, undertaking. . . 2... .... cece eee cece tee eee 1189
report aS to MONEYS. «©... eee eee tee ee 2193
agreement for expenditures... 0.6... 06. cece eee cece ee eee ence 1191
laying out or altering highways, order upon consent of town board...... 1198
release of damages by owner of the land.......................... 1199
order, on release from Owners............ 0... cece eee eee cece ene 1198
dedication of land and release of damages.....................0.00. 1198
eonsent of town board. . ...... cece cece ete ec eee eseeenaes 1199
applications by taxpayers... 1.11... Lecce eee cette eee ne eee 1200
application for appointment of commissioners......... Fe ee 1201
order appointing commissioners. . ............... cece eee ee eee ees 1202
notice to commissioners of their appointment...................... 1202
notice of meeting of commissioners. Ra AS Aeon REMAN chal Meaigulaes 1202
affidavit of posting and service of notice......................000- 1203
certificate of commissioners in, favor of application................. 1203

certificate denying application. ............ 0. eee eee eee eee 1204
INDEX. . 1311

Forms—Continued. PaGE.
notice of motion to confirm, vacate or modify decision............... 1205
order confirming decision ............. ec cece ee eect tee e eee enes 1205
certificate of commissioners as to laying out highway through orchard 1206
order of County Court... ese. ceseceeea ses seangeaaGdee seaeeau's wes 1206
order of appellate division....... Sate ape oad An odes ousaeyeacaded 1207
description of highway abandoned........... ccc cece eee eee eee teen ees 1208
private road, application for........... 0. cece cece c ee eee eee eee eens 1207
statement of expenses incurred in repair of bridges...................... 1208
notice to town board of adjoining towns to repair bridge................. 1209
consent to rebuild or repair bridge......... 0... cc ec eee e ccc eee eee eee 1209
petition of freeholders to commissioners of adjoining towns.............. 1209
notice of motion for order compelling construction or repair of bridge.... 1210
affidavit on motion for an order to build a bridge.....................0. 1211
order of court to rebuild bridge........... cece cece cece cece eens 1211
application to board of supervisors for laying out highway............... 1212
MOUICE: @. Bede dres Madea secures ad ean ee EAS ade Sa NOARWS RARER aS 1212
proof of service of application and notice.............0.c0eeceeeeeee 1213
resolution of board of supervisors laying out highway................... 1213
bond of supervisors on account of school moneys............0.00eeeeee ees 1214
report of school moneys on hand..........seeeeeeceee ee cee e cere ee eeee 1215
annual report of town indebtedness. ........ 06. e cece e eee e eee ene 1215
G
Garbage—
collection and destruction......... Bis-eidiete Se saccacese see ce ee eeecerecceree 438
ordinances relating to, penalty for violating........ bgivligte eieiaane Saco gadiaie 438
assessment for expense of disposition........... alapere Se el etel aa eiatein ed alias 438a
Gardens—

laying out highways through.........ssesescccccccccecccecececessees 921

Gifts—
real and personal property may be given towN.......ssccecescessesecee 368

Gospel and School Lots—

supervisor to report funds to commissioner of education............... - 1011
duties of ...... see's caiele 04 haw es AMES Fe wesc eceeceeeees +1026, 1027
apportionment of fund among school districts...............5. weeeees - 1027

Grand Army of Republic—

appropriations in certain counties for rooms for use............eeeeee. 399a
lease of public buildings to..... Diana oe weiss a ariaheanaicay alah atistas oa tap aNete ava eden ae ce 437
relief of poor veterans.......... Sibietde Ha Dials Cea MUS 9 a eee bs Hew SEs eee SO 767

Grand Jury—
list prepared by board of supervisors............. iG Mee Seas 1029, 1030
number of jurors, increase..... oye aoseannvavs nin cas hs efdhave Ri buetaarag hala sae es «+ 1031
inserting new names in box....... Sirs aipiaibies se lasne wana ae aes seeenes . 1031 °
1312 ‘ INDEX.

Grievance Day—See Assessors; Taxation, etc. Pace.
meeting of assessors to hear complaint.........-...---++eeeeeeeeeeeeee 537
complaints to file statement..........0 0c eee cece eee eee eee eens .. 537
sufficiency of ‘statement: < os. sewn g anee see dion os sale ne i Re RU OO a dene 538
examination of claimant...........0. ccc e eee eee eet teen nena 539
failure to appear and testify.......... 06. cece e cece eee eee e eee 540

Guide Boards—
erection of, by town superintendent............ 0... cece eee eee ete 838

Application. fOP -s.c64 c4 cane cae dee eae eT OE ARE Ree Reese 838

by turnpike companies ............ 06 ccc cece eee eet eee eeeee 838

WHALE: tO INDICA LER. 5 ciwis a carasoae GAG Gare wee Haalad eddie alelach oO ime Eke Gleee ay 838
H

Habeas Corpus—
suspension of during term of court............ 0c cece eee cece eee teens 182

Hacks—
town board may licenses: + iacas ucts io 53 ce vas moises Weds se Oaw esaaeS s 405

rules and regulations respecting.............. cece cece eee eee eee 406

Hawking and Peddling—

town board may prohibit, without a license............... 20. cee eee ee 401

licenses issued by town clerk........ 0.0. cee cece ete eee ete enee 402

indorsed. by SUPErVISON <iaue ee Cyacees Awa Mew wea aeons oele adele 402

by soldiers, sailors and marines.............. 0c ccc e ee ccc eee 402

farm produce, no license required............ 00.0000 c ee eee eee eee 403

penalty for, without: licenSe cscs cacco caress Goce diate eae andie Seviece obs 404

for refusal to exhibit license.......... 0.0.00. ccc cece ee teen eaee 404
Health—

local board, town board a8.......... eee e eee eee eee eee etnies 442

health officer, appointment................ 0. cece eee eee eee eee 443

term, Of OMCs: oa oie dee decry ag nete se sa8 Ca ne Maen ea ges Eagles 443

removal for Cause: savers sxees scree reed hee Musee ree Seabee ee 443

compensation and allowances................. 6c e cece eae 443d, 444

enforce health ordinances, etc............ 00 0c ccc eee ee ee eens 445

general powers and duties...............0 0. ccc ee eee eee eee ee 448

orders: and regulations... 6 ccs.0%% ag so. g ou eee aes Ob bes Bee eda LS 443d

for suppression of nuisances........... 0.0.0.0... 445

penalties for violation....................... 00000. e eee 446

subpenas and warrants.........-.. 260s eee e eee cece eee 446

sewers, powers and duties as t0.......... 00.0... 447

health nurses, employment.............-- 00... eee eee e eee 450

contagious and infectious diseases............ 0.00. cece cece ee eee 450

report to health officer.............. 0... eee cece eee 451

of cases of tuberculosis.................0 0.02. cece eee 451

fee for each case reported.............. 0... cece cece eee 451

vaccine virus to be supplied.................... 0000. c ee ceca 452

carrier of typhoid bacilli, quarantine.......................0.005, 452

maintenance at expense of municipality...................... 452
INDEX. 1313

Health—Continued. PAGE.
nuisances, complaints aS tO.........eeee eee eee hee eren es ieciesteeee, 253
powers and dutieS AS tO.csee ccc ceese eee c cece cere ee ceeeeeees 453
removal; expense paid by owner............ cece eee cece cence 454
expense ‘of abatement, a) Men. ise eisit foce grein di e.a wustese-e 3,aveye dees ibos 456
removal of accumulation of water tending to breed mosquitoes.. 457
payment of CXPeMs€....seseeee cree e cece cece eee eee eee es 457
jurisdiction in combined sanitation and registration districts........ 459
expenses incurred, town charge......... sess eee ee cece eee e eee e ees 460
relief of indigent Indians in case of epidemic..............00eeeee 461
consolidated districts, establishments.......... 0... cece cece eee ene ees 443
local board of health, THCMUD CTS 's 64:54 adele. 6-4 sca 6 asb woe eeasteatareave seve bbe 443a
OPP ANIZALION: “hin co o's sis.e a erarers ia dvenetes ds Sond w a awrea es ewe Vee w giana 443a
abolishment of other boards........ec ccs eeee cece c cece eeaeees 443a
general powers and duties......... Sr ghsli uaa. c am giers oe lesle seo 443f
expenses, payment and assessment..... WG Nid MaRS nO RGSS DESH. ERS Y 443d.
estimate system may be adopted............ cece cece eee eee eee 443d
general health districtS.... ccc cece cece eee eee e ete e ete eeees 443d.
mandamus by state department........ dea ts vacue eye b pste ek ov atvncucvsuataelensraie 461
diseases affecting animals, duties as tO. ...... cc cece eee e cece tee eeeees 461
duties as to vital statistics... 0.0... . ccc cece cece ect eee eee e ere eeeeee 462a
health officer, duty as to insan€........ ec eee e cece cece rete eee 692, 693
Highway Commissioner—See Highways, Town Superintendent of.
office abolished ...ceececese cece cece ee eeeees és 6 esa 24 BE a eR Os Hae 813
Highway Law—
pending actions or proceedings under......... Si tavanga@ee aveuais lace aakstah end arene 975
Saving clause ...... sess eee e eee e cee e nent ee en tenn een cece nen eteee 975
time of taking effect ..........0.-0e- Sips oeiaeare Gad Shue Dae Mamie ease,  QET
laws repealed ...... Sle, 5 etasah wid Boye Seca oo Beene sala bee Seats Bara ces «ee = 978
Highways—
town may borrow money for.........ceeeeeers PRR BRN a ee aes Misc ehees 396
town contracts for lighting improved.......seccecseccccccscccvcrceeee 425f
term defined 3.cicevs ss cea vis cay sia ee eeeuded bas BS Bhw Sea e eee Pe ees 788
CLASSIFICATION «i ie: aaa nnied seeiesleueen. ahhse aud anaserse BSS a euatad. eodienduaad each gens peor 789
constructed or maintained by aid of state, supervision of state commission. 795
rules and regulations, relative to...... 2.60... ces eee cee ee eee ene 795
plans and specifications, commission to cause to be prepared...........- 795
duties of district or county superintendent............. 00... cece ee eee 803
town superintendent, duties of in respect to............... Seas te oan sé 815
repair and maintenance........ 60. ccc ence eee ere eee e eee eeneeees 816
employment of teams and implements.............eseeeeeeees see 818
loose stones to be removed...... ag Guan So apede aes re re eee 819
noxious weeds to be cut and removed............0ee00- ee iy ea 819
inspection of when proposed to be constructed as state or county highway. 820
stone crushers, power rollers and traction engines, purchase Ofssa kiss 822
road machines, purchase Of.........sseeeseeee eee er eee eeeserenenees 822
lease of stone crushers and traction engines............ceeeeceeeeceee 823
gravel, stone, purchase of..... sees Stes the evita Goals iste Oe Gehlenpncanene ars 824a
obstructions, what constitute..........cee eee e eee eee e eee e cere erences 825
owner or occupant to remove........ Ci eneee® GiaeRE Mee wee eed ees 825
removal from ditches, culverts and waterways.........eeeeceeeens 827
temporary, when allowed ........ecceeeee cece eee e eee renee eeees - 827

assessment of cost against owner or occupant..........-+- vcwesaw 828
1314 INDEX.

-Highways—Continued. PaGE.
SNOW, TeMOval FIOM... .... eee cece ee eee eee e eee enn e eee eenase 827
snow and ice, removal from cole and waterways ihiata daVithie Eo a/ensuele Wiwlaie te-s 827
noxious weeds and brush, removal by owner or occupant........+-.+.++: 827

assessment of cost against OWnEF OF OCCUPANt..... eee ee eee ee ene ees 828
wire fences to prevent snow blockades.........seeeeeeeneeeeeeeeeeeees 829
entry upon lands by town superintendent...........ee eee e eee eee tenes 829

damages caused thereby...... re eee ec ere 830
change of grade, damages for.........eeee eee e eee e ences ee eee eeees 830, 831

interest on award..........+e00: ery erabinoretela apretsce ee So Aas ae OOS
drainage, sewer and water PIPES Mi conta wedded yee eee eee eS TE 832
CROSSING S(URAEr OT OVC Beads ene ened ee ee ELH ROw Wad Manan Sanee ox eile Bs 832
trees: and, sidewalks cscs dann deh wire ne eas Dee Cae Raw ae RES 833
expenditures, for sidewalks. <2@<ss.0¢42s284 caagebbeegeudsere easeagtee ss 835
shade trees, allowances for.... 0.0... ec ene eee tenes 835

custody of ........... dade datas a Satie Maoh DN Seid Aad uv tiaauan is Sauce gece Rae BON 836
watering troughs, construction or maintenance............ 20... ee eee eee 836
private road, credit for work 0n....... 0... tenes 837
penalties, neglect of town superintenaent to prosecute................06, 837
guideboards, erection Ofsessxsesce.s ee vise ee ees aay eed es koe eGR REET ae Y 838
measurement by town superintendent citpbe tasardus Skea ual d AA goikD wee elis Aaeaser 839
prisoner, employment of on.... 2.0.0... cee ec eee nee 839
approaches to private lands, construction and repair................... 839
Injuries: to; actions, {oP seaweeds ce agin tee ghey OOdad eats Giese ee ay Le HES 840
defective, liability of town for............ 2... cece ee ec eee eee eens $42

action against superintendent............. 2... cece cece eee eee 843

audit of damages for injuries.,............ 00. c cece eee ee eee 844

liability of county, when highway maintained by county.......... 6
closing for repair or Construction... ...... cc eee cee cee eee eens 844
snow, labor system adopted for removal.......... 00. ccs e eee eee erence 845

assessment Of labor... isc acew ee sieete te HORE SSMS ees Sa ae eee ee Bale 846

lists of persons assesSed......sccecccercccccccccsscerceccessscssss 846

district foreman; unworked tax.............- astueeeetniewascneess S47

appeals by nonresidents..........ceccencecn er ceercscceeeecee ns 1847, 848

tenant may deduct assessment...........-.04- Te bua hae aie aves severe 848
expenditures for, estimate of town superintendent................0e200 853

approval or modification Of........2+..0+05- Ss erveRta pare we eesietuss 855

presented to board of supervisors.................- seraeeceveges 856

levy of taxes......... {oe Vee COMES sOE RTE K eee sseeees: “S56
additional tax, when authorized...........ceeeeseeee ie Receencinse ieacanae 856
extraordinary repairs, raising money fOr...........ecceecereeccceeees 857-861
limitation of amount to be raised.......... ao ee Swag o Rieie pan SiaSeaponal Gia clause te 861
submission of proposition at town meeting to authorize tax............. 862

borrowing money in anticipation of tax.......sesseeeseseeseeceeess + 862, 863
for bridge and highway purposes generally.........-ceeeseeseeeees+ 863
in certain towns in Adirondack park.........ccecceeesceceeeseeess 865

town bonds, issue and sale..... biderea ies saieWiartisfowiees MARA Meee ws caeeses. SOD
village property, assessment..... Siidia ss uksiais 0's Giese a ave © oisiouie cee s ae S00
state aid, statement of clerk of board of supervisors to secure.......... 866
amount determined ........ pi meek eka ew (etewayeeeaes eee ¥REbS 867
based upon mileage and assessed valuation........ ceeeeecccccessccs 867
determination as to mileage and assessed valuation.......... seceee 868
payment and distribution of money............. Re ee . 868
supervisor to give undertaking............ wed oigieele itereasenessan 868
moneys, custody Of......----. see eee e eee ee SRO e see Wee Teele Sieve - 869

undertaking of SUPETVISOL . 0. eee e eee s cece ee secerercrcccevesccsessess 869
INDEX. 1315

Highways—Continued. Pace,
expenditures for repair and improvement.........seeeeeeees aimee eae . 869
agreement between town board and town superintendent. ion wid aha usueaisraue 870
order of town superintendent and audit of town ‘board............ 870
audit, how made.............+.. yao ioe at guente by as Suoua EIS: Seiad aroun eee ecaecne ears 871
repair of, on island.........eceeeeeeeeee Sicise'd ovheeete) siahararics Wiereeae'rcate 870
reports of supervisors as to highway MOneyS.........e eee eee eee eee 871, 872
accounts, forms and blanks, commission to prescribe...........000eeeee 873
duty of town clerk to furnish names of town officers.............e0000 873
compensation of town clerk and supervisor........... 2. esc ee cee eeceeee 873
convicts, employment in construction.......... eee cc eee cece cen e eee 888
detours, maintenance ........ cece cece ee cece teen cee eeees ivieae ees 898t
federal aid for improvement........... cece cece cece cece tenet ee eeee 899a
construction or improvement, partly at county expense............ 899e
grade crossings; elimination........... cc cece eee eee e eee eeeeeeee 899f
through Indian Reservations. .........cccccee cece cee e eee e teens s99f
survey for the laying out of........... cece cee ee eee eee Silene athe ee 907
dedication, what constitutes... ....... cece cece cee teeseeceneeeeteees 908
laying out, altering or discontinuiNg........ eee cece eee eee cette eee 910
legislature may authorize supervisors to lay out.............-..000- 11
on ‘release of dama@esiie is. sos eis daw ne pen so gates sels ved dene oa eae 911
Application. 204.csawscivews cane oe esis c's Suaik siarduses bien aS oars eGo 911
for appointment of commissioners is oahtang od aeNe $4 Sasi e es were, eG eee 912
appointment of commissioners and their duties.................6- 915
Totled Of. MCh 5 4 /sccie 5 Siew aia dine o-6 Whinease Hs Sosa Der ee ese 917
decision of commissioners in favor of application...............005 917
damages, how ascertained...... suite. cb Leslee aces pared, Sea Syoreiekce Semiagad 919
decision denying application........... cece eee e cece teen eee n ee eeee 919
motion to confirm, vacate or modify...............e eee eee aR eME 919
through orchards, gardens, vineyards, enclosures, etc.............+-- 921
PIOCEMUIC: sees cts eee se anmoe ss aes HOSE Ss HRs RES S Soiey 921-923
through burying grounds ........... cc cece cece cee eee cece ee eenee 924
costs, by whom paid.......... ccc e cece cece eee eeee Sacwaioonaag areusvageiars 924
damages assessed and costs to be audited................05. eeeee 925
differences between officers of adjoining towns................-.- 925-927

in ‘two or more towns, notice to be served upon town superintendent
Of cach 2... cc sac vccsceracreeveees ee igtajiasl eis ecdie's sveemabe’ ha suouers aes 928
upon boundary line between towns........ss.sscsssecseecreeees «» 929
final determination, how carried out........... cece ee cece eee eeees 929
removal Of fenes. 2s 6 oss.0ss wnses one ew ees sae Read ewe teR ee we 930
papers filed in office of town, ‘clerk. . saemnrieee at Vek EGE te eee s 941
COStS OF MOON. oes vie eidae s cides ve cee ce wales Cowie ee eeee enemies. - 942
private road, laying out, ete., see “Private Road... sss. secrsserreeeee 931-935
by use for a period of twenty YOATS... cece eeeee aorta adie va aang weenie acecur 930
widening, petition for... .... cece cece cere cree eee e ence tne eee enneeee 936
powers and duties of commissioners....... og Velie ee Ray wee a eels 937
notice of decision to SUPETVISE........... cece eee e eee e cece eenes 937
construction ....... ae Rarele @ Helels 09 OR HES PRE ES Grae te EWES ERTS -» 938
action to compel ........ RR IO Ce ce ree oer 938
abandonment, what Constitutes ei.. sctwis.es cise sarsieie 6b Side isis Secure os 'ecerece.a 938
in lands “acquired by United States for fortification purposes. ee 940
construction or improvement by county or town.......cceccceccececccee 961
county system, construction or improvement............cceceeeeeee eens 963b
discontinuance im certain tOWNS.....0. cee ce cece eee e eee e eee eeeees 940, 941
description to be recorded.......seeeceseccesseeee 6s Ree Aa NE as 941
damages caused, determination............ aioe ei 8. See Wied Rca Cee Tas 941
changing location, over certain state lands. . Sas: :'agtv'ohat-ar orien acevo. Sxsueva:evbvavanie tls -. 942
state aid to counties for construction or improvement. of. t ahupagiara aon tea ecec +. 963e

county aid for construction, improvement and maintenance of connecting
highways in villages and cities in certain counties.............+ oe. 963f
construction of county roads in certain third class cities.............66. 963g
county aid for connecting highways through villages. SAE aca ea Vee 963¢

county aid for constructing highways through eities of third elass in
county of Cattaraugus.....+seeseessereceeeseeneeeeneeeee ceeeeees 963h
when commissioness do not act........ Giwibi'e sweats 'e-o Gra’s selene Waves ecoetre -- 96375
intemperate driver not to be engaged...........seeseeceees sins We 8 Guat g 9633

when to be discharged..........ecceeseeecceees haan rahe nes ewe 963]
1316 INDEX.

Highways—Continued. Pace.
leaving horse without being tied......... PAHO ESS Gras Sie aecwies 9633
owner’s liability for acts of driver... 2.2... cece eee eee eee eee eens 964
carriages, term defined.........-- 2 2c eee e cece eee eeenne econ senseees - 964
bicyeles, entitled to free use Of.........ccce cece eee eee eee e teen ee eee 964
depositing ashes, stones, etc., UPOn....... 62. eee e eee eee een eee eeee 965
steam traction engines ON........ cece eee eee ce eect cee eee eeeeeeteees - 965
lights on -vehiCléssacesixaecaxsee ee Ganeiaeeaw sewer ys eoews chew ne dies -- 966
injuries to, liability forsw.d ss sas cas cea eedvew re seae ve ewer secant eee 966
weight of load, when town not liable for injuries............00eeee eens 967
Taw Of 20802 5 nnsiioewd bcicteascige oeaee 2 MRA ead aR eae em Gne tes 967, 968
trees, to whom they belong........... SoMeitte DART a elalaleas ea iesRaavanal 969
fruit or shade trees, liability for injury...........s eee ee eee cece ences 970
penalty: for Salling: Crees sooo eisiavein:0\elsnmiersie's eiaise d's wissen a wess Sa Bes Somer es 970
fallen: ‘trees: to becreMoved éjsue’sis 'sreroiw-o s'oiwieve's-e Grains vo FeNw R wis Siar ace ae Saat 970, 971
penalties, how TECOVErCU.. cece cece cece cence nen e eee n eet eee 971
Albany post road, railroad tracks on...... ees cece cece cece eee e eens 973
lighting dangeroUs <POrtiONS...6...cesis os cess aie siaiegie we eveieus, wa subse eve peeeern s Gaee 973
COUNTY MAPS! PFESEFVEd c srsieisidereuace ea wiawa Deere OS 9 wa HE seroma Bach & weuaien 976
railroad crossings, see Railrodds........ cee eee cece teen ee ee eee 991-1000

Highways, County—
term defined ..............0005 Se Cee eee ee oe ec 789
estimate of cost of Bieib igen See so i reece ee ze 799
rules and regulations for protection............ 0. ccc eee eee eee eeeee 799
inspection by district or county superintendent.............. ce seen eee 806

of highways to be constructed as........ 0. ec ccc ccc eee eens 820
pipes in and crossings under OF OVET... 1... cee cc eee eee ences 832
construction or improvement... ..... ce ccc cece ee eee ee et eee e eee eenes 877
approval Of MAP... .. cece cess eee cence teen een ee ee eee t enter eeteeene 877f
construction of four preceding sectionS........... 0. cece cece eee renee 877f
modification Of MaPies.s saws scviow ie stew ha swans se POS sa TSS CES ora SoS 878
apportionment by state commission ........... cece eee eee eee rena 877, 878
preliminary resolution by board of supervisors..............0seseeeeee 878
examination by commission; approval or disapproval..............eee0e 878
maps, plans, specifications and estimates......s..s0ccscseccceecceeueee 879

submission to district or county superintendent............. 0. cece 881

action of commission in respect tO........ ee cece ee eee tect eeee 881
final resolution of board of supervisors......... 0... see eee eee eens 881
Order Of: CONStTUCHION: 6 esses ses 0s oa Mele owe oe Mele FES MEE EA ae See Hee 882
contracts for construction or improvement............. eee e eee een eene 882

award ........ sihraiy 5 Sia Si 0c Rye a Giorelie bes tar Sotsaes ermine < cd vein, Simca gcpa area 884

bond of contractor.......... eish Gaatisdst eve pasate BSS lauauarauend nce ee cee avons 885

estimates; amendment....... cece cece cece teeter ete ee ete eeeeee 884

POTTING soe vase ies ba terasaevece axe coxa cdceveisvens wiavanecaecbaisea Sea alters ai eit ausiianars el ates 885

Payment ON... cece cece e cece e eect ener eee e nett eee net te neces 886

contingencies arising during prosecution of work under........... - 886

award to board of supervisors or town board..........c.cceeeecee 887

suspension of work under..........ssssseeeee BoD sciuandadiereas orc -. 889

commissioner of highways, responsibilty for work. sep ates ae Walked eek 889

reletting in case of suspension............ eee e cece eee eees -- 889
proposals; advertising for................ Sig aL tenn a elena etic Perna dew dare 883

yejection ....6-- eee eee eee ee eee eens dO VER EMO Ee EEE Eee ee sie 885
convicts, use of, in construction... ... 0... cece ee cece cece eee ere eees 888
acceptance by commission......... ah aieves tustincince Sains ba SOW e AS OLE Sole ek 892-895

protest of board of supervisors................. 8 Sra tebiviar rave: Suanpuaila nd 892
entry upon adjacent lands for drainage purposes...............00..- -. 894

Gamages ....-.seeeeeeneee SOM TOT e Ramee gaina ea Boe Soest ei ate 894
in villages, construction... ........cc ccc cec cece sce e cece cee eentees . 894

connecting highways through.. ee tscavieiis co batts Da Lesh opaiss tancouaiiaMeto ce ipeunten wie 898
in certain second and third class cities........0 00.0 c cece ee cece eee ceee 897

additional width and increased cost in towns............ Satie ea Rese «se. 898b
INDEX. 1317
_Highways, County—OContinued. PAGE.
resolution of board to provide for raising money................00-00- 898d
modification of method of payment...........0..0 cece ese ceeeeees 898d
AiVision, Of COB r a6 aids Sassedaiciee heciei RRR Amawenn We ead yoguwiles duelexe 898e
payments by county treasurer.............ceeeeeeue vba ieaede - 898e
alternative method of apportioning cost.................0000 eee ee 898f
issuance of county bonds for payment................-.0c cee eeees 898g
where highway extends into cities of second or third classes......... 898i
borrowing of money for payment of county or town’s share............ 898g
abolition of railroad grade crossings..............0. sees cece cece nee 898i
street surface railroad on, restrictions............ 0.0.00 cece cece cee ee 898j
repair at railroad crossings. . 2... ..... cece cence teen nee eee 898j
right of way, acquisition of land for............ 0.0 ccc eee eee eee 8981
proceedings ‘to: acquires 6 ss isisGintcnwadl soem aige caves uad4 wes 898m-898p
right of way, payment of awards.......... 00. e cece cece eee eee ees 898p
costs and commissioners’ fees........... 000. e cece eee eee eee teens 898p
apportionment of cost of lands acquired for...................... 898q
application of provisions of labor law.........- 0.0.00 c cece eee neces 898r
on Indian reservations, «ie sacs. seen cies sie gilidse gg eee ere re ei ae a BH RS 898r
detours during construction. . ......... cece cece cee een e eens 898t
maintenance and repair, commission to provide....................005 900
appropriations; apportionment of moneys. . .............. cece eee 901
COSE TOLOWMS 66: assis nd ane eae He Cae Res Pa Eine aoa SEEM MR oe 902
eanal bridge approaches. . 2 2... cence cece ence ee nae eeereeeacn 902
disbursement of funds... sasvecsueacs paw iqes wes see ques esa ga ees vss 903
reports of county treasurer... .......--..-0005: SAA p eae Ned 903
compensation of town superintendents. .................e esses 904
liability of state for damages............. 0. ccc e eee e eee eee eee 904
in villages, portion of expense paid by village....................- 905
state to share expense in certain caseS......... 0.0... e eee cee e eee 905
sprinkling; removal of filth and refuse.............0. 0c ee eeee eee 905
alignment and dangerous conditions, improvement of.............. 905b
improved by state under special act......... 0... cece ccc eee ee ee 901
certain improved roads, by state........... eee cece eee ee eens 901
county system, establishment. .. 0.0... .. cece eee ence eee 963b
use of convicts in construction. . .......... cece eee eee 963b
maps of former highways preserved...............0c cee eeee eee e eens 976
board of supervisors may lay out, alter or discontinue.................. 979
Highways, Department of —See Highways, State Commission of.
Perm Gekneds: aj csiwad swe ge ee eens e aahwge aus she sg aes tam Gand Maaomailaaanes 788
establishments @s« Gee ya cease eae we ean Gee eee ee nante 792
Highways, District or County Superintendent of—
Pari Celnedls ook? wiv aatsunmie ped aces wade Winditee wMaasolaee a anguied. Aah G dayatte gress BORE SOS 788
state commission to A1d. 1... ccc eee eee eee e en eeee 795
appointment of county superintendent. . 0.0... cece ee eee eens 802
of district superintendent. ©. 0.2... 2. eee eee ence e eee 802
removal of county superintendent. . ......... 0.6... cece eee e eens 802
general powers and duties. ........ eee teen e eee enna t een eens 803
general charge of highways and bridges................-seeessereeees 804
visit and inspect highways. . .....- 6... e eect eee cette teen ee eens 805
establishment of grades... 0... eee cette tte eee 806
public meetings to: be called bY: css ps tidy gee pHa Shae aaa 806
inspection of county highways s. sass scaveg reseed awd s aed eee ee ees 806

preliminary maps, plans, etc., to be submitted to........... egestas

881
1318 INDEX.

Highways, State— Pace.
form, Gefiried 5425), ota dda ciahiys Wad ada ness Gnmice es eat oa ee a aysienas ate . 789
estimate of cost of maintenance............. cece cece ence eee ee eeeee 799
rules and regulations for protection........ aReas 4 deme esos seeelcaie 199
inspection of highways to be constructed as........ di iepiele Siatormeeledsce «-- 820
pipes in, and crossings under and over............4+ Sale eis Vea eee 832
construction or improvement ......... cece cece eee ee eee e ence eens 877
apportionment by commission..........-ccee sec e ee cee eee e ee eee cence 877, 878
maps, plans, specifications and estimates......... jaa rs pees - 879

submission to district or county superintendent.......... ee Saaeeks 881
commission to award contract upon return. ..... esse eee eee ee eee eee 881
contracts for construction or improvement..........0e eee rescence eeeee 882

award to board of supervisors of town board...........ceeeeeeees 887

reletting in case of failure... ...... cece cece ee eee eee teens 888
suspension of work under contract.........eeee eee eeeeeeees wabew ee ears 888
acceptance, when completed .......... 0. cece cece eee eee eee tee e eens 892
entry upon adjacent lands for drainage purposes..............seeeees 894

damaged £08 ay siaw ee dttete, i ora ea sie eee ere oS shew wos eeee FEE ESS 894
in, ‘villages; construction. 5. sé.is.ceia ssacease a vewa secede eeaees seeds on 894

connecting highways, cost of additional width..............0.ee0e. 898
in certain cities of second and third classes............ 0. ee eee eee eee 898
additional width, etc., in towns...... ae sy Aek oes Meee poate se «.. 898b
payment of cost of .............006- Sr eseisnetestie suene teres pie eoieeseenatene «.-. 898d
abolition of railroad grade crossings.............. sevens Or ore -. 898i
street railroads, construction restricted...........ccceeeee cece ee eeees 898]
Tight: of ‘way, acquisitions .aj05 sa deaec adie ds tases ase vse tear -.. 8981

purchase of lands by board of supervisors...........0...eeeeeeeee 898m
proceedings to acquire ...... cece cece cece enter eee e een neeee 898m, 898n
payment of awards ............ ss SA gine Sabeeront peer hess 898p
costs and commissioners’ feeS....... 0. cee cece cee eee ence enone 898p
sale of lands and disposition of proceeds..............- sintee 7s ati -. 898q
application of provisions of labor law............. cee ee eens seeeeeee  898r
detours during construction, maintenance.......-...se cece cere nce wees 898t
construction or improvement, partly at county expense............. 000 899e
maintenance and repair, commission to provide.............eeceeeeee -. 900

appropriations; apportionment of moneys.............2.ceeeeeeeee - 901

canal bridge approaches, state to provide.........-....eeceeeeeee +. 902

Cost to tOWN........ eee cess neon sin as Sho ote sadie Sibeecaus ev oneangse a weidee 902

disbursements of funds............ Sama Rais Ste aha Sete teins eee 904

reports of county treasurer............eeeeeeeeee afta ieSionalece: costs eee 905

compensation of town superintendents................. sya eee 4 - 905

liability of state for damages.............- cc eee cece ee eees seeeees 905

alignment and dangerous conditions, improvement.............05 «+. 905b

Highway, State Commission of —

term defined .......cscccascccccccees igre avanoras a shvanatane wraev aia aia cae coals seeee 788
consists of a single commissioner.............cecceeeeeeees saeccsecceee 792
appointment of commMissSioner.......... ccc eee eee e eset eeeeecceus 792
deputies, secretary and employees............... cece cece cccccceuee 792
commissioner, oath of office.............. ie eaietas nates se Meds Hale he Hie «ee 793
undertaking ........ eee ee eee eneeee Oe a ee Ee ee vecee 498
Ba aTy? sc:ssicis ves igsey oe eee pele wee as tees eareies ieigirivere uc rs,4eiannlee oilers 793
principal office; seal; stationery.................... sbr8 Guia Sa areldoaace wee. 793

salaries and expenses of deputies and employees......... shaestareceudesse liven «- 793
INDEX. 13819

Highway, State Commission of~—Continued. PaGeE.
deputy commissioners, secretary and chief auditor...............eee eee 794
Salaries: AUUIES, 2 esa cacao emule so Wald e dpe aielmasaaleoes aaa ean 794
general powers and duties.......... cc cece cece cece eee tenet renee neces 795
rules and. Tepulations:.s sp6 es scee ss gee de sge vee sone cee oe ASE Ewe ESE H 795
annual report to legislature... ...... ccc cece eee eee eee ee tees 796
statistics relative to public highways........... 2... cece cece cee ae 796
public meetings to be held.......... cece ccc een eee eee 796
division of state; appointment of division engineers..................-- 797
duties of division engineers ks icas isaac icawder cise cee yas caus anges 798
appointment of officers, clerks and employees............ 0.0 e eee ee ees 799
blank forms, accounts, etc., to be furnished............ 2.0.0.0. eee ee eee 798
condemnation of bridges’. ici ca cue se steecte seers caddies Py anh ee Sucda’e nw nO 800
examination of accounts and records.......... ec cece cece eee 798
cost of maintenance of state and county highways, estimate............ 800a
rules and regulations for state and county highways................... 800a
patented materials or articles, use............ 66. cece cece e ene eees 800a
federal aid for improvement of highways; duties.........e+seeeereeee . 899a
transfer of duties of state commission of........... Weiiwartiemiaces “BIE
of records of employees.........- beeen ees seccccenceeecsccceses 974

Highways, Town—See Highways.

Perm: Mefineds sis ciic xswvecw ects ara a9 dake Se who teiS sianarbite ders Ania arase rah oc aLehay SHEA SPA Oy Ans 790
contracts for construction Of........ 0. cece cece cece eee eee ete eee 821
approval by town board......... ccc cece cece cette eee e een eee 821
award by town superintendent........... 0... cee cece cece eee eee 821
damages for change of grade........ cece eee cee eee 830, 831
additional expenditure for improvement and POPAl Ee. 3c emacs asuae Gee tis 874

Highways, Town Superintendent of—See Highways.
application for submission of proposition at town meeting.............. 255

See Town Meetings.

term defined 2... cece cece cece tee eteeeseeees iisoudiare ieee G Aree ne eee 788
election .......... gid ehea sca taecbuds @ av aeainclalva areia. 1056 “abausele a aheldie- ol bponairs alee 281, 289, 810
appointment, aibeieagn of proposition for..........c.e eee eee 290a, 811, 812
in certain counties...........ccee eee ee Buea ee leroaaess sich whe Byarseeeeteim 812
term Of Off Cee .iies is euies pees raw Bai eel Gees i oeNG sie a ne Dees ae: 6 290a, 812
vacancies, how filled.......... cece eee e cence eee eet ee tenons ceeeeee -290a, 812
deputy, appointment.......... sjnlou ers weber aww allnae +d amcyeVonie, ¢ ayers i -290b, 813
undertaking ............. arenes siaime.k Ham LEME SAE Soles ED ae 307
compensation ......... Sree Ses a DD cae ant se daa Bd: aunt gisioiaetereG neat saa 353, 814
Of GEPUbY: vies sccmee salad oA Sinise 5 ease cid arose aie Wa tae eed teoevaee 814
in towns in certain counties........ Liens aie se ecavplacnete Daeek 6 wou Gress 355, 814
delivery of books and papers to successors.............. iigdinaod ga eibre ess 357a
proceedings to compel......... ec cc cece eect eect ene eeneeeeeeen 357a
removal by town board..........ceceseeeeuuee sages Wavelet cu see Eatin 814
on appeal to County Court....... cc cece ccc cece cece cree ee neee 815
powers'.and duties..... io aiebtesa nau es aaa sheets Lawes Som Tes eS ceeee 815
road machinery, tools and implements, purchase.............-see0ee- -. 822
contracts approved by county superintendent................-- «e =— 828 —
Custody aiid, CONETOL « &-sciisie eajsaise.o ieee, cae ee oon a a a een ee oes = 828
inventOTy ..sseceeeee eee cecerereeeeeece Me seine ats isateieeesncees 823

Teasing machinery ........cceeee see e eect e esc essetereeecerscssessces 824
purchase of gravel and stone.........seceeceseeceesseccerecscerecees 8248
1320 INDEX.

Highways, Town Superintendent of—Continued. Page.
obstructions, removal of .........-. cece eee cece eee teen eee n eee nnes 824b
from ditches and culverts........... 0. cece eee eee ene eee eee eeee 827
temporary, when allowed ......... 0.0... cece cece eee e ener ee ene 827
snow, removal from culverts and waterways.........0..see sees eee eee eee 827
obstructions caused by, removal........... 6.0. ce cece cece eee eens 827
noxious weeds and brush, removal of........... 0000s cece eee eee renee 827
assessment of costs of removal of obstructions and noxious weeds and brush 828
wire fences to be purchased... 0000. cco.seee oy ole 558 54 Pe ea eee ee ek ees 829
GDL: UPON Mand Sie vas. wtnavcaucn odes #88 parmoveansinne OF Ao ao ALERT DS DOTS 829
damages caused thereby ......... 0.0 cece ccc e een eee ence eens 830
pipes in highways and crossings under or over...........0.00 ee esse cere 832
trees and sidewalks, duties as tO.........0. 00s eee cece teen e eens 833
expenditures for sidewalks ..s..00s0000 os becker dee ge heeded aneeed eer ees 835
shade trees, allowances for...........- cece cece eee ete e tenn ee enene 835
CUBLODY® 5. eticdaawichimaaremaraalevanes4 ae Maki Laguna dreuk sehen By. cietleg 835
watering troughs, authority to construct............. 0002 e cece eee eee 836
eredit of taxon, private Toads cscces cis ce eeg ye rwelew ees gece uy ea tedee ra dai
neglect or refusal to prosecute for penalty......... 0... cece cence eee 837
Guideboards, EreCtiGH, OF ai... saidicicieciasset Howie dee Mande es yewiowd GOA Hae 838
measurement of highways and report............0 66 ec cee eect eee eee 839
prisoners, application for services Of........... 0006s cece cece e eee e ene 839
approaches to private lands, construction or repair...............-...005 839
unsafe toll bridge, duties as tO... .... cece cece eee ene e tte teen aee 840
actions for injuries to highways. .......... 6.666 cece eee cece eee eee 840
negligence of, liability of town........... 0.60000 cee eect eee ee 842
ACtION: by: TOWN APAINSE. 2. waco ds Meee ted oe ROOM RAS Ame 843
closing highways for repair and construction. ............ 0.000 e eee eee 844
estimate of expenditures for highways and bridges..................-55- 853
additional tax, determination as t0..... 0... 0... c ccc ce cece eee eee 856
repair of highways or bridges damaged by elements.......... imine sicagaiuses 857
expenditures for highways and bridges. ............. 0000. e eee ee eee eee 869
determination as to placeS......... 0. ce eee ee eects 870
payments On Orders: cwssawsnsawies a Vea rane iiedss See ele ae aeRO 871
sidewalk districts, supervision of sidewalks................... sha Gybvarenaleks & 434

Historian, Local—
appointment and duties .......sececsceereeeceseeeececerecssseeeees 223

Holidays and Half Holidays—

enumerated is visicsscwrcesseeesdeateee Scie iaereie eae siets meyeesennes 132

business in public offices on.......... Ow inwanin eric jimeesemasvencse 192
Home Defense Committees—

board of supervisors may appropriate money fOT..........eeeeeeecceree 63
Hospital Corporations—

exemption from taxation ............. o'disimrous cece shea sagiecevenews 279

Houses of Detention—
poard of supervisors may establish.........cscceceecccscecescecessee 183

Idiots—
" unteachable, duties of superintendents of poor........sseccocccecscssee TOL
INDEX. 1331

Indebtedness— Pace.
of county, town and village, statement to comptroller.......... brdidveie @seare 97

Indian Poor Persons— '
TOMO OR 6 vc ncchaandese es $3 Vueahiomeias bees eaiteaiceee ve de vee dlaeadaa soe 776
removal to alms-house ............... cece cece eee Paar ba aaa sees 776
contracts for support: we. s a ciw@enais s.eyoa oe Kdieuaequayane aeace generale ss 777
expenses of support paid by state......... 2... c eee eee cece eae 717
duties of superintendent of alien poor............. 22... cece eee cece eens 778
relief of indigent Indians in case of epidemic. ................ 0.00 c cece 461

Indian Reservation—

highways and bridges, supervision......... aiid Gut tah Bid- 8:8 eB vase favaorerasa tous 898r

superintendent, appointment ............. er ee ree 898r

moneys for, custody and expenditure...............64. sess 5-84 ats 899s, 899t
Indictment—

trial transferred to another county, expense................6- Paaepianes 144

Individual Banker—

taxation of .......... sis. 04 Wie e MaDe RRSERU ETE 14.44 MAORI Tare TN TaA SE 505, 524
Inquest, Coroner’s—See Coroner’s Inquest........ 000 ccc cece eee eeeaaes 199
Insane—

COMMILMENE 4/5: asad esses wneew ERS Oded ee caw aT Ee REOE SAN teed 4 SOPRA 689
costs a charge on county or tOWN.......... cee cece tenn eens 690
poor and indigent, supported by state........... 0... cee eee ee eee eee 691
relatives to: SUppPOLt!.:.... pcmcia te Lay th SoMa Bede eeeameonan th 692
proceedings: to: compel ecccssawvcce suai s ea ities wie ebiale og ere g o leliscacgiain 756-760
duties of poor officers 48 10. jis si ivae ees y aneiina ne siye eee seeds eden Kes 692
poor officers to see that relief is granted................. 0.0 c eee 693
health officers, duties as to care... 2.2... eee eee eee neces 693,
hospitals to which committed.......... 0.00... cece cece eee eee ee eee 694
dangerous, apprehension suas cavswese ea saetmieneey dean ged aa adeds 965
duties of poor officers and health officer................6....0055 695, 696
discharge from hospitals 0.0. s00cs9 3559 oesnomese os eee cee ti geneween x3 698
duties of superintendent of hospital.............. ccc cece eee eee eee 698
expenses where patient found sane or not committed............. ceseee 698

state poor, removal to hospital........ ties case ay bis Salleseeae tee seocesenese 775

Inspectors of Election—
designation, number, qualificationS.........cccseececcescscseeececeseee 293

term of office ....... pi eateneiereleievbelaize-s sions iid relatis 1e eubibra ig aus a's weg Sw oho +. 293

in towns, appointment ...... Sai cyhe areal Se Reba wiacs Fades W Ging Tse neues caeiate » 295

supplying vacancies Or ADSENCES...... cece cece cece teen ee ee esas 296a

meetings, general provision as to conduct Of........... ccc eee e wesc eee 296b
Insurance—

of town or county property. ..cesececceccseescssevees wovaield a aeassie «.-. 1079

Intemperate Drivers—

not to be employed...... bene eeneee Saileielew ei eaten asa Ge ssceisiets - 963b
to be discharged upon NOtice....eeesee ccc eecseesecsecsesseeecesssess 963b
1829 INDEX.

Islands—
town lines intersecting .........--.ee secre e erent teeter ts Sento tiie 233
Tepair of highways On.......ceeeeeeeer sere steer eee teers e cesta sere ees 870
J
Jails—
erection, alteration and lands for..........eesseee eee ee rete e rete ee eentes 58
sheriffs to have custody Of.....cceeeeeseeee reeset ence tent tetne ents ees 174
WBE OTe ais cceeiels Gh.c'.8 ererenatersions SEE Gicle ode § Ree RG ns eveierae TOF ORAS 175
number of rooms .........- weidlg otraleg PANGAN MAME GRE HELA RET SHARE Gee 1738
either of several may be used. ...... eee cece cere tener renee renee tees 178
duties of prison commissioners aS tO......... esse reer e teers tere terre es 175-177
commitments tO .......-. cee eee eee eee SaeeMigitewte. Sea msmdare nse eee 181
prisoners in, custody and control...........6.se sees eee este tree ences 178
charged with crime, support or county charge.......--+-+++eeeee eres 41
civil, to be kept separate. ...... 6... cece eee eee eee ene teen e ees 178
male and female to be kept separate...........-eeeee eee etree eee ees 178
woman with child; disposition of child.........-- 6. sees cree rere ees 179
communications With .......... cece cece ee eee ee tte eee ee eens 179
liability of sheriff for injury to.......... cece eee eee teen ees 180
to be furnished with wholesome food...........-..- esse eset eee eteeee 180
employment .. oc... cee eee cece tere renner renee etree ence ene es 180
to be furnished with reading matter......... i Wetesaees swear se LSE
chaplains in Nassau conuty..........- Es ueee Soe Uee eee eee  ILSL
record of commitments and discharges.......... cee eee ee reer e renee 181
of United States to be received..... serneciats Ss veaes Se uaeue ewes eee «=:
calendars of names to be presented to court..........+4- ast ee. 188
to be discharged if not indicted........ cece eee ee eee e cree er eeeee 182
if, unable to pay fine............eeeeeee BS vyailenalans Jor anorene Svein’ 183
remission of fines ..............0005 acl ee sala atgawdiiatn ae eawen wees 183
communications with, prohibited ........... 6. eee eee ee eet eee 184
Salécof Hquorg tO. < accesses viene ia are sG an teamorears teeta 185
ASLVICE: OF PAPOTS OMe 2 ec cere n.d 4 Seas ninincave selene 8-800, 610:5.99G aisltece Gud. Be Rin da vetncapions 186
removal in case of emergency.............+.. ee emery ie es 186
WHO MAY VISIE oy d5si8.0:5 Fatrwnera edna res Fada Ge Finches mala o wis rge eee eoeeneaetpyee 184
physician for, board of supervisors to appoint............... 0. ese eee eee 185
designation of other place a8......... 6. ccc eee eee eee ee ener e teens 186
modification or:revocation ........ Saakahierd doe Gk ARNG Gate An i th aaa optrah aang 187
effect; on jail liberties jusiieedase soe eeceas Vag aiid oe sce ba wk ers 187
when, Tevoked: cosvieeeaieseuiaegapes s Cee se itenas ine en enemies 188
civil prisoners, see Civil Prisoners....... 0.6... e ccc cece cence een ees 189
chamber rent in, sheriff not to charge for............. 0... cece eee ee ee 191
prisoners confined for contempt ............... cece cece eee e renee eens 198
Jail Liberties—
how Jong imprisoned in ...c.ceeceeee cece tee e cence cette eee teen eens 189
In CErtAlN COUNTIES és aswsionsanewweess 5204 Twat TESS eRe EATS EO 193
powers of board of supervisOrs ............ 6 cece ccc e eee e ee etter eens 193
boundaries, how designated .............--.-eseeeeee Ae cGaessen amen a wees 194

effect of designation of another place as jail............. 00 eeee ees seoee 187
INDEX

Jail Liberties—Continued.
eivil prisoner, when entitled to
MNGOE CAINE: £2 terisd speiataisine ci iowa ddan M ares eet aaraieh is tut eceatalg

execution and justification
effect ..

surrender by sureties ........... 0.0 cece eee cece e teen eee e eens
escape, what constitutes .......... cece eect terete nereeeeeees
lability of sheriff ¢ 20 .sexeeee so veeex seis seine seee ie caoee'
MOCIONS TOM creck! sa; dceczcesne O8inrs eoceasrsiens esesn ee avo oy eestonasvew eee eae dee A

Judgments—
of county courts, upon division of county..........0...0eeseeeeeeeeeeenae
against county, a county charge......... 00. cece ec e cece tee eee eee ens
against town or county, payment........... cece ete eeeee eee
town board may borrow money to pay..........e ee ee cece cece een e eens
board of supervisors may authorize town to borrow money to pay........

Junk Business—
licenses; how regulated .......eecceeecee sees eee eet e teen teen ene eeeees

Jurors—

grand, list prepared by board of supervisors.............. aetna 1029.
trial, list, how made. . 1.1... -- 2 eee eee eee e renee eee ib een hete Rae Rease eee
qualifications. igh iby p gem daylsy'g ket Saat 5) gS tore Bia eae ay enegce: oo Satan are ganas 1032,
(GCS? nog Chose oREMEND Sewanatjen kee eae ee ema sabmern ae hag 1041,
carfare, Westchester COUNEY:. 2) 6 ages ie wee ete dae eis Bae cae eeew eas
EXEMPLIONS . . woe csnccerenseec tetera rene ttre eens eerste tn neees 1033,
duplicate lists ......... co Mashewiers shes tiws sememeuesE nea negara
proceedings, where lists not received........... eee sescee ence ence ee enees
commissioners of, office established ............ 0. cece cece ee cece ee renee
APPOINtMeNt: 2.5 vi20/ baie head es Aes emnedbees hee ee Gade eeanied
termi ‘of office; salary; MOONS é:.26%-6 6.5 ois. anes Seve san aiew Ravana e Wie died ROR ratide
assistants and. Clerks 4s ssisesces secede se gnaheeuaves © obo ea ao oule Riese
selection of jurors; preparation of list............. 0 cece cece eens
lists to be filed ......... sees ee eee eee cece nee eee t eens

Of grand JUTOTS ec cec eves ceac ep deesiceiem gure eh Rae a a paunann eieve

drawing grand jurors ....... 06... cece cette reece tenet enneee
allowance by board of supervisors to grand and trial...,............056-

Jury Districts—
establishment of, by board of supervisors.......... pence cece tenn eeseeeeee

Justices of the Peace—
fees of, in certain criminal cases, a county charge...........ceceeseeeeees
fines, supervisors may direct as to payment...... sdb saad nowentasenud cnet
to hold inquest on dead body, when.. ee eee eee ee
preside at town meetings.......-. eee esse cece eee eee ee eee eee e neces

deta Ministerial sux serasennewcs ovens enn ave 1208 SepeauenTe ce ee ease
ekection of...........eeeeee SiSUe iS © Bai wrele d % <iavere Sciwia @ Serwte We leleweie's. e:sitieis oe:
vacancies, election to fill. . ial iS6 0 DTS. 6 4, elalee VE NESW Ww SLeUlITE éisiete'e'e Saleests ©
number and terms.........-+-..008 seaudee omtaratonasess acai Teese Cael ee
reduced, in Monroe county...... Sug dovislaxa: Ged: Gace se de-aopslealsce Bip DWV IaS Ore eS
ballots for full term and vacancieS...c...csscccovcsseccecescesscceces

197
197

407

1030
1032
1033
1042
1042
1034
1035
1035
1036
1036
1037
1038
1038
1039
1040
1041
1042

59

43

63
203
258
258
281
282
286
289
287
13824 INDEX,

Justices of the Peace—Continued. PAGE.
constitutional provision as to ..... 22... ec e cece ec c ccc n ene eneenes 286
power of legislature as to office of....... 20... cece cece eee 287
TOMOV AL) ita Simanvad Sembee panei thtagbond tos eects Gud noc 08: be we Wecown eaten 288
I NEW TOWNS: aihedenin anc ene Mend sONeeeeeaEnba dann ann cunaeem es 288
upon alteration of town boundaries........... 00. ccc cece eee eee eens 288
certificate, Of election: 452.004 skaqainaiacwaars “asd aut aiachiidniues ob akg avanemacaa’e * 290
special constables, appointment ............ 0.0... c cece eee eeee 202
undertaking, form and condition ............. 0.02 c eee 300

sufficiency and-approval.«<+cascsvemaceav cers creas biaetsd bad esaav nce 306
CertilcateoF Aline weesse sah au nhenaenpndie agda had Lagubenedeociae banen 306
Oath Of GME MING oi ci ocean Aa heee vin Re REN e ed ane Ate enntee es aoe ae oa 306
Bets lesAiZed .. Sicenioncs Goce aaah wulalghelon ys Veanaee selma ey y yeas ae 306
vacancy, town clerk to certify to county clerk............ 0... e eee eee 336
constitutional provisions .........6... ec cece cece eee e eee nneees 346
termi Of OMe: <4...05 aniuwwae inde decesas tp dRwAees eeeed4 emmngeein neste 346
vacancy, how filled ............... coe aida asian 'y Wika stacsmap tral eishamehs ve kaon 347
removal by appellate division, wicis seed eeceeess MOS dRE FE RA EAES RRBRER EEE S 34°
deposit of books with town clerk......... 0... cee eee e eee cee tee e eee eee 347
OC Et DOOM Fee ore. ascii @ intial esch druiysan en piatesonn eredad loads fuaslec sedumyr 6a as oRRLESeD aude Mianeonty 348
delivery of books and papers to succeSSOr.......... 0.0: eee e eee eee eee 3578
buying demands a misdemeanor. . 1.2... 0.0... eee eee eee 348
payment of fines and penalties......... 0.0.0... cee cece cee ee 349
police justices in certain towns........... 00. c cee cece eee eens 349
jurisdiction and powers, « cass. vewvncies ew ces dew eee wpa esa e Tas 349
Compensation, 6, os ocss sete ph oe AGS ate ee sees MEE DS EHS ete e ek de 352
may order vicious dog to be killed......... 0... eee eee eee ee 659
accounts, what. tO GONGAIME osc jcc kone re acdc sein besos ¢. a8 poaitogelb erdieh eng oN simu ae 383
fees in criminal proceedings, when town or county charge.............. 384b
accounts, what to contain. . 2.6... eee eee eee ene 384
Balary in Liew of feeS.osc..c cso aceaenie tenia Ga wears es sigue ear aise eg gs 384
lease of buildings for use of........... 0. cece eee eee eee ene >. 487

Juvenile Delinquents—

supervisors to fix compensation for conveyance............eceee eee eee 63
L
Laboratories, County—
establishment by board of supervisors......... edie cae? + SUSIE Sites s 82
Legalization—
by board of supervisors of acts of town meeting or village election........ 66
municipal bonds; precedure «54 ss¢esaeecnscgenecsee vsmaanesans ee cnnedes 1081

Levy—See Taxation; Taxes, etc.
of taxes by board of supervisors............. 00. c cece cee cece eee eee 567

Licenses—See Town Board.

issued. by town boards 2.1.0.2... s6 ieee ceea ene ceeenhnaadeu pecauveweenseee 401
Life Insurance Corporations—

accumulations exempt from taxation......... 0... c ccc cece ec cee eee eens 485

on assessment plan, moneys collected exempt from taxation.............. 485

mutual, personal property exempt from taxation .................-.4. 486
INDEX. 1325

Lights— Pace.
on vehicles using highways.........csecceeeececesceecececcoecseeecs 966

Lighting District—

merger of, with fire district, when boundaries substantially coterminous. . 80
Liquor Tax—
to be paid to and distributed by county treasurer.............c.ee cease 114
fees of county treasurer for collection of....... dies 8 aH Pte eae - 116
Liquor Tax Law— |
submission of propositions under, at town meeting........ shakneeeaibea ronan 263
effect of insufficient notice... .... 6 cece cee cece eee e eee e cence eee 256
sufficiency of application. ...c.. ccc e cece cece rece rece eee eeeneeene 257

Loan Associations—
accumulations exempt from taxation............e0eeee Scdisteoiekiecsewvis - ABO

Loan Commissioners—

office abolished: wich 22.504 xyes sou 4g P94 0% saws ecainaniedlee gods o4/SheAleelelenacern’ es 211
TEPOrls: TO) COMPLTPON EM: 5 oes seid hss +s Raame dee O4S aoe aA Meagan e3 211
BUG EOF, ACCOUNTS! 22.22: a vieincwnee Ges aA he au week erent Ge sverica ox Garatelapenundad Boy 210

Local Improvements—

in towns; assessment ........ 0. ccc cece cee cence er eneeentceneeenecees 369
7 form and notice of assessment............. 00. c cece cece cece eeeeees 369
hearing on assessment ........... 0. cece cece eee cece eee e en eeenceees 370
commissioners; appointment ........... 0. eee eee cece eeeec evacuees 370
Lock-ups—
town meeting may direct erection.................. 65 Pine Hind Sis aee edd es 361
use; detention of prisonerS............. 0... cece eee ees ves aawees cesses 362
M

Mandamus—
to compel audit of county claims................ eee Use eee gas eo aeass 33
audit of town claims.................0008 Sesew es ¥ oes He aA ORION 380
gainst local board of health........... ccc cseee cece ee eeeceeeesnenerces 461

Marines—Sce Soldiers, Sailors and Marines.

Marriage Licenses—

towit Clerk £0: 1SSUe... cases saves need 4s dditencireed Ae 86 poe 4s ate Malem 342
statements of parties; oath.......... cc cece e eee eee eeeeeeee 344
form and contentS ......... cc cece cece eee e eee n een ee eens Snes omannens 342
duty of town clerk as to filing. .......... 0 eee cece ee eee eee eee 343, 344
fees for issue: and flings wsdeo sess teseau a seoweres tse eetasek as HORS 344
false statements in application............. 0.0 cece eee cece eee ee 345
Pecords: t6 be: KEPti j.s6- eed eaiveutara ate parte Cinda-a arkeaauaraueleun sede waa anNaNaONNRECe > 345

fees: for search: ic. scyvonsoseusa eta ueee ns songeeeMareawaeahenetas 845

Marriages—

records in county clerk’s office........ ccc cee cece cece eee eee eee Bees 134

transmission of papers to state department of health...........--- 135
registration; fees a town charge........... 1... eee eee eee eee e eens 448

duties of certain officers aS tO... ... cece cee cece tee teen eee ee ceees 462a
1326 INDEX.

Medical Societies— Pace.

in cities of first class, real property exempt from taxation.............. 486
Memorial Buildings—

acquisition of land and erection of............. cece eee eee e eee eeee 436

construction or maintenance by county and City...... cece cere ee ee ence 436
Memorial Day

town board may vote money for............ cece cece ete eee een enee 399

additional appropriations LOWE 6 Shae tagisrecclgn Migkete tetoteeredaea Se re 399b
Military Equipment—

for local military organizations. . 2.2.0.0... eee ee cece eee teen eeee -. 437
Militia— ,

governor may order out, to assist sheriff........... 0... cece eee eee eee 166
Ministers—

real property exempt from taxation............ ccs e cece serene eee eeees 483
Mobs and Riots—

injuries, liability of county. . ........... ccc cee eee eee eee teens een 1076

Monroe County—
reduction of number of justices; election of town trustees..... oeuua ss . 289

Monument— See Memorial Buildings.

Mortgages, Taxation of—

Pefinitionss. gs. saceise sive Sige s Mhaye onl Daa wae R Swale Ceereeheed caeeee 621
exemption from local taxation. © 10... 10... ccc cece cece ete e eee veeees 622
OXOMPtIONB. 6. cos: sa ped Raced-ee at aw ocak ewe sige Egle sliie Fay audexuDaee es 623
Tecording: tax... 3 .o5.c4 ses she Ves eke bees Rewe PA ae Sea eed o8 623
optional, on prior mortgage. . ...... 0... eck ce cece eect eee teenies 624
supplemental mortgage. «6... . ieee cc een e ence eee eeeeee 625
indefinite amounts; contract Obligations < -scccoid ec esicsdswanarns Sean d os 626
PAV Went Of Taxes: ogo sci. soecs wea puis Aid Ooa' Sugald oe Gb MDE gaeie moetvSone waa 6278
on contract not acknowledged for record........... SS Raracanacuasd Guero eal 627a
effect of non-payment of taxes.......... 0. ccc cece cece eee eee eee eeee 627b
trust: morteages sence secs gpenee si 544 34ek sot ee Ke ee eee eRee 628
apportionment by state board of tax commirsioners................000005 629
computation: Of ta& w.cscaa canvases eatandu adda atnii@adie (Aas S5.44 aymaiwand 631
payment over and distribution of taxes........... 6... ee ee eee eee eee ee 633
expenses (of officers: 002 c2eu ewes se eaiee cesta ere vee einen eos eeaw epee: 634
supervisory power of state board of tax commissioners and state comp-
PROM GR i xc. eae ee FE RR eh Mie RARBG 4 Shin Geen enitonseeal seneobenient 634a
tax on prior advanced mortgages........... 0. cece e eee ee eee eee eens 634b
Mosquitoes—
removal of accumulation of water tending to breed................0.0008 457
payment. of expense scxossa chev coeg sees Wade eee Aa RES Eaa Ea 6 457

Municipal Corporation—See Bonds.

defined’ 5: kdiectonawewacadsnon as jewais Hoe aamane sae Eas eae a ae 4 ]
county declared to be......-..--.-----+. 0. eee eeee payee rere Suadea ns ts 1
Oflech: <6 desea wc casnnoeenebins pees ates ys eeegwh eas C282 aaa ‘hs 1
N
Nassau County—
board of supervisors, constitutionality of special act.................04. 10
powers and duties of asseSsors..............00.08 saul tain’. iinonameansrnvantaretets axe 357

compenation of ASseSSOTS ... 1... eee eect eee ener ees 353
INDEX. 1327

oZb
New York and Albany Post Road— Pace.
preservation .. ......cecceeesoerae Mma ee sea sMiesereseas O73
Nonresidents—
restriction as to business not to discriminate against..................-- 408
securities exempt from taxation....... 0... cc cece cece eee eee cece e eee 484
real property of, designation in assessment-roll............. 0. cece ee eeee 527
surveys and maps to be made by supervisor............... 0.0 eee een 528-532
of United States, assessment of debts owing tO............. 0. cee eee eee 525
real property, description of, board of supervisors, may change.......... 561
owners of rents reserved review of assessment by board of supervisors... 561
notice by collector of receipt of tax roll........ 21. eee ce eee 584
addresses to be filed in office of town clerk........... 0.2000. e cece eee eee 584
town clerk to furnish to collector. .......... cece cece eects 5384
debts due to, collector to return unpaid tax........... 00. c eee eee 596
duties of county treasurer........... 0c cece eee tenes 596
warrant to sheriff for collection of tax........ 0.0.0. e pec e ee eee eee ee 597
Nuisances—
orders and regulations of boards of health........... 0... cece eee ee eee 445
COMPA INES AS LO cai we deng eieced 4 Graces oe de gosta BguaMnaaor od eS ENA Aeneas 6 453
suppression by board of health.......... wehawaeewslde he whed aeaeelaoablons 454
expense paid by owner of property........... 06. c ee cece cece eens 456
abatement)-os. aes te caeg aemaeweeuie e's 0'e4 ory a aimrersivend ga a'ek we reehanesaeretnte dare 456
expense a lien on property... ...... cece eee c erect teen eee ee eennees 456

INurses—See Public Health Nurses.

oO

Official Oaths—See County Officers; Town -Officers.
validation of official acts before taking..........ccccecceceereseseses S14

Ontario County—

payment for supplies in advance of audit........ tender eneereeeeeneons 66
Orchards—
laying out highways THOUGH. occ s cowie coewe ee somes Siena Satara ws «= O21
Ordinances—
enactment by town boards, certain counties................ ceaaatet weeee 4381
building lines; character and use of buildings.................54- oeee. 438n
adoption of, by fire commissioners of fire districts......... ot Caieled a v.54 8 80
Orleans County—
town boards may rent rooms for posts.......... odie aie Se oa eavecee 398
Overseers of the Poor—See Bastards; Poor Persons.
applications for special town meeting.........-.-...+-+ dabei peeeeees 253
“Glection Of ...ssecesereccccee eee eeeeeeeeseee et sneneseneees ae eoniete. 2ST
number, determination..... Saraiew ed ca ee eee s oMOR TS Cwee eee eles sacee 290b
appointment by town board, WHEN ic ciicies Sucdhelve ae CRE Tek eess vias 201
submission Of QUueStiON........ecseeeeceeeeees di aiSasssuea Provcusede Goan 291
undertaking ....cece secede cece cece eee e eect cece eet eee ne ee eeas 291
compensation ...-+-+s++e-s0- she paeAMA MEW ae ae eateea ts teaean 291
in certain towns, fixed by town board............++ saate, Son wees = 854
not to hold any other town office........ s2iie eran ss ERE HE ESlew sem as 291
undertaking, when elected or appointed...........s.esseeee ser eeeeees 291, 307
delivery of books and papers tO SUCCESSOF....... 6. eee e ee eee eee eens 357a
proceedings to compel ....... beable. 8 Spor aieforelianee eatakten Go mein Soke ata 857b
removal of poor person to alms-house..........-.+seeseeee Sse basa veee = 714

expense to be paid by county treasurer.......-..sseeeeeeeeeeeeeee 716
1328 INDEX,

Overseers of the Poor—Continued. Paag.
temporary relief, order of supervisOr............. 0.0 cece cee eee ee eee 717
where county has no alms-house............ 0. ccs cece cece eee een ewes 718
needs of poor persons, to examine monthly...............6 00.0 cee eee ee 710
KebLlemENnt:-Of ACCOUNES. 5 /.cciedeciee a .e.5 dieid cevlemmaaeews hd darned duseetannnee hd Sa ace apie 719
books and Accounts: .scas cs qcsiw si nieawersousse wah akenesas stemmed 720
contents; how kept sccuscawesgteeseg ys ease swagongertaumdaereeews 720
presentation, to town. board: cicscocciggaseswa sees e2ciaadwsbag tee een 721
statements to be made to town board....... 0... cece ee eee ee 721
estimate of. expenditures... 2. ccccccs ccs ceeua ae es edu a Gece beet eewe aves 722
abstract of accounts, supervisor to present to board of supervisors...... 724
duties as to person bit by mad dog.......... 0.0... eee eee eee eee 725
settlement of poor persons, duties as to proceedings..................045 734
unlawful removal of poor persons, duties.............. 0000 e eee eee 738-741
to notify superintendent of cases of bastardy........ 0... cece eee eee 147
to support bastards, until cared for by superintendent.................. 747
whether chargeable or not........... ccc e cece cect tee teen eens 747
application of money received from father.................000000 748
Order Of, SUperVisOR es cic leea.pligaidvis Wow La SOA eG eae pM 751
compel relatives to support poor person............ 0.0 cece cece eee ees 755
seizure of property of absconding parents..............000cce ee eeeuus 760, 761
Sale. of property seizedis <1 vices aad wie Pad Senew By Awia VEE WaT 244 dene mtuedsewe 762
distinction between town and county poor abolished, duties as to town
MONEYS! g/ars- ines Gio ees nase rh atom souetomclee aval: vad eumimnlathwlals tae ana By 780
reports as to children placed in family homes..............0cccceeeeeee 782
COMP EN SA ELON 327i a, Aslsneusin a, Sateie wcces me eaegee aeyreason ead avarw le ees! omaha Dare WSS x 352
Washington Countyscccccscseccccccscccsccsccccesessscsccccccesccccs 356
P

Parks and Playgrounds—
in certain towns, establishment and maintenance................000.4. 462q

Pasteur Institute—
persons bitten by mad dogs, sent to........... 0... c cece ceeceeeaveaces 725

Peace Offices—
in towns adjoining cities of first class............ 0... cc ccc ceeeeeee tes 857

Peddling—See Hawking and Peddling.

Penalties—
received by county officers, reports to board of supervisors.............. 224
collected by justice, payment.............. 0.0... ccc cece eee eeuee 349
Penitentiaries—
board of supervisors may contract with.............0.0 0c. cc ceeeeeee 57
notice of contract to be published.............0.0. 000 0c cece ese ee eee 58

Pension Money—
property purchased, exempt from taxation............................ 477
application for exemption..............0.00.000.0.0.0 0000.0 eee 478
INDEX. 1329

Personal Property— PacE.
includes what, for purpose of taxation........cccccc ce eec ee eeeneceeees 469
taxation of ...........005 Sse dried Galitg Voie die ww sa Gueead Mawr war aaete 469
HAbIS to: TAXA tOM. «scare hae etea acted wa Dae tea Sea ea ded bane 471
assessment of, no deduction for certain indebtedness..............0+00- 488
placesof taxation, ines caaw es areas essed iA wee eed we Meee She Meee cons 489

of agents, trustees, guardians, executors, or adminstrators.......... 492
PENES!- FESCE VEO og.ecscd aie sasteneys weenss a eirean-nracd. said go aygutee Wesoaeane Bm eteaaes cose’ 493
residence, what constitutes......... cece eee eee eee e eee e renee os 493

Physicians—
for jail, board of supervisors may appoOint.............. cee eeee excee 185
town, appointment by town board........ cece eee ce eee eee eee eee ene 358a

Pipe Line Corrorations—
apportionment of valuation between school districts.............0 0c eee 544

Plank Road Corporations—See Turnpike and Plank Road Corporations.
exemption from taxation.......... ee a RR HES BSE ¥ aH Poa O Seow ES es 407
acquisition of rights by supervisors.......... ccc cece ee ene eee ences 971

borrowing money for........... Renee ss gies eisuarh Space eataraaue Aida, 86 4 971

Plavgrounds—
in certain towns, creation and maintenance..........ecseeeeeeeeceneeee 462q

Police Justices—
in certain towns, election, terMS......... cece eee e eect eee e eee enneees 349

jurisdiction and POWEYS....... 6c ccc eee cece cece e eect cnet teens 350
CREBEIOT: OL: Of CS aoa oor srbie tic arena le: 0:5 ayetisie, 6c eitene un Uitoxe acerbyajtece: aa: Groieww aw 351
Police Protection—
INS COWHSs 34 ames 5 dios see e seea ee eg k IS Aw ys hee ed wee er ee eee 462u, 462v
districts ; establishment ...... son iallaa cg Wa ues a vaLus Bra svaigeual dG Glaus, § Gi 462u
COMMISSIONEYS. ss winds Sine nes wine de doe Oa Cs EE EE RE ES os 462u
force; appointment and salaries......... 0. cece cece eee e ene eees 462u
CSET D1 MOs 2a yc- 5 co. dhisc vaxeyeeaov’ veces sole ate suena g teratlaneicre) a Gusnieee ein avesiens oid Shoiaueracess % 462v
expense of maintenance; property liable........... ec cece eee eee 462v
estimates levy: OF taxis sisieiaiscigiie ie ie sisiisis ee caietd goatee 6 acniine Wie etbieies 462v
temporary LOANS 6 sci vciee sie és Rew. 0 oe dee ve anon FaN A de RA SOE ERS Os ‘.. 462w
traffic policemen for unincorporated villages and hamlets.............+- 438p

Poll Clerks—
designation, number, qualificationS..........eesee ee ee cece eee n eres eens 293
in towns, appointment....... oigas<Sfatareekoesh'ss muasios\'s Scicuance hl ou wile tite nea e a siailel 295

Poor—
support, special town meeting to raise MONeY......... cece sees tenes 252, 253

town may borrow money for......... cece cece ee cc eect e eee eeenee 396

Poor House—See Alms-House.

‘acquisition of new site............ wine ars Ses aN SME De aA aw. oss ete 7 70
change of location..........6.ss005 ae Wok arpians, Sages. oncaraintererese sich Ssdvemagaeee 71

Poor Persons—See Overseer of Poor; Superintendent of Poor.
appropriations by board of supervisors to societies aiding.............. 66a
support, at alms-house, accounts with towns............ceeeeeeeeeeees 677
county superintendent may direct overseers to care for..............-4-- 676

estimate for support............. iS Ace e SINTER onkenatk nele be we & 679
town, statement of amonut expended.........ccseeccec cece eevee eennees 677
annual apportionment to towNS.......ccceccec cece c erect ccneeeees 678
rules and regulations for temporary relief............ iiiswacsneenaa, “680
failure to make reports BS: Cis sus acs eostereieee eos Dieta’ ertide Wo saat ts sennhe dian’ » 681
children, support in families or charitable institutions. PME TS a eee a 682

alien, not be admitted to certain institutions............eeeeeeceseeees 708
1330 INDEX.

Poor Persons—Continued. Pace.
when relieved in alms-house............ 0c cee eee cere e tent e ee tetees 714
care, not to be put up at auction. ......... 0. eee ee ee ee ee es 716
temporary relief prior to removal to alms-house......-...0---++ eee ere ee 716

board of supervisors may make regulations as to temporary relief.... 680
when cannot be removed to alms-house............000e serene eee 717
order Of SUPEXVISOF..... cece eee ee eee tte tenes ‘17
where county has no alms-house.......... 0000s eee ee eee eee eee 718
needs of, overseer to examine monthly............ 66.6 eee eee eee ees 719
accounts, form and settlement.......... 0... cece cece eee tet e ees 719
books to: be keptis cs ccc cea ve sie ea ass CaO eG ee UE Hm EE 720
presentation of bocxs to town board.......... 6... cece eee eee 720
estimates as to expenditures for........ 0... ce cee eee eens 722
accounts, Of Town OffCerSic cis ee ose pine SoG kee 4s Goa bEd ROS EES RO eS 724
abstracts of overseer’s accountsS.......... 0... cece eee tenets 724
treatment: im hospitals. c2cscced ss aes anne WG 6 Meee ome edie nae ees 725
settlement, how gained ain: siceee gaede a eean sev own jeep an sae eed oo Minis 729
of married, womens . c.0505 cea gee sees eek gud dae nee Rare Hee aes 731
when determined by that of parents.............-20 2 eee eter eens 731
OE MTGE CTE: 2: c souiseecsicoee Ry serrdeessceeeaqslh seataytmarer awe Zeer dane apace MaDe teens 730
OF Apprentices: wieacin oienl anes Ax acral gas oleMC RS aul ae dg gene hae atonal 731
once gained, unlawful removal.......... 0... c cece cee eee eens 732
settlement, to be supported at place of.......... 0.0... c sce e eee eee 732, 733
proceedings to determMine.......... 2... cece eee eee teens 734
county superintendents to conduct............ 0.00: cee eee eee 734
notice to appear before........... 6. cece cece ee eee oixpiuniten 734
HEATING s: CeCiSIOM << sass stds yeaa aA ween Bh ale BN ha 734, 735
decisions to be entered in books.............. 0.0.0 cece eee eee 737
appeals from deciSionS.............. 6.0 cece e eee eee 737
of mother of bastard::< ss o.ssesncrepesvest ee yt asee ing eed coe meals 746
of bastards, disputes concerning............ 0.00. c cece e ee eee eee 750
effect of failure to provide support, when overseer has been notified...... 735
board of supervisors to charge support to proper town.................. 735
county, superintendent to determine who are...............0. 500 sees 736
support in counties having no alms-house....................0000. 736
unlawful removal, a misdemeanor........... 0.00. c cece 738
PTOCEdings: in CASE Ofs vised weeks sommes sd did arse ey bates PSH eon ating 4 738
Geimials S@FVICE: ios: s acs seiced aacdvauel dod astela wire, salads Sala Pe ee aoe wn NRE 739
support a charge on town or county from which removed, unless
denial served) agi i visadk< peene se aha aos Hk eae eee SAE a 740, 741
action to recover for support............ 0. cc cece eee cee ee ees 741
foreign, penalty for bringing into state................-.. 000.20. ee eee 742
TElatwWes LO: SUpPPOLt x sie 3:5 iad heh ees hue apealace n edeg A RIS BAR Rae Danae 755
Na bility: <0, caw denen Sos bes we wet dodaas. mney akanmiy Peewee panes 755
INSANE. POOL cawiedsegugeras ema i edie Teche unde Mee ge Peale sy ome 756
overseers to apply to court........... 0. eee cece cee eee 756
hearing; order of court.......... 0.0... f occ cece een eee 756
apportionment among relatives................ 0.0 eee eee 757
order: to specify time, ete... ica ces eawiea swe navadacwreenceemres 758
in-effect a judoment. sc seers aswiecv sea y ete sexo eswaharciarnes 758
costs. of “proceedings. visas cccakvy cs wees o4 dis ka dake He aueace | melee des 758

AOLION ON; OFUE Rei cose Aicsdink od Bigath kek uk snk n GoD AA Ma dared Rod ER WBE 759
INDEX, 1331

Poor Persons—Continued. Pace.
STOLE, WHO ATC sicin sm ing s-onadin ba AEE! VMOREES HARE ET RG eldieie diet dbs aimse aa eave 772
relief of, duties of state board of matte fal dat Geter Gare aea aal 772
location of alms-houses for........ 00. ccc cece cece eee eee eees 773
to be conveyed to state alms-houses.......... 2.0.0... c eee eee ee eee 773
punishment for leaving alms-house............... 0000 e cece e ee cee 774
expenses for SUPPOLs sais dace cancrd so madeaa Wns Euadaa bee Rem Ee oe Ti4
duties of superintendent of state and alien poor................. 774, 776
visitation of state alms-houses.............. 00.0 cc cc eee 175
transfer to other states or counties....... 0.0... . eee cece eee eee 776
insane, removal to state hospital............ 0.0.2. cc cece eee eae 775
children, care and binding out......... 0... cee cece eee eens 175
Indian, relief Of ccaeis yeaa ae wade San bag Das Sato ouw teesencs saps RUSE Ges 776-778
relief of, in case of epidemic.............0ce cence nnetereesneees 461
town and county, distinction abolished or revived..............000000 ees 779
resolution of board of supervisors.............. 60.00 cece cece eens 7179
abolishing, duties of overseers........... 0. cece eect eee ene 780
investment of town poor money............ ec cece eee eee ees 781
owning property, action to recover for support............00.0c cea eeee 781
support, town board may borrow money for..............0. ce see e ee eee 396
Poundmasters—
number, town meeting to determine............ 0c cece eee ee eee eee 296
@lechlON ew 4. wis eatieees ewes gw tiw aia ave Sanh ews gee ned MOR ER BoM ad 296, 367
to care for poundSis ss sicessiewi casi aes auc eeu ve str pyemaes ais cacasnecaver ogee 296
duties and fees, as to strayed animals............ 0.0... ee eee eee eee 649
LCCS 26) eEsrsahs Said WLACRGE ONGN De hmee tO MOk ax ema) Papen das WG 367
Pounds—
erection, town meeting may provide for............ 08. ccc eee ce eee 250, 367
under control of poundmasters........... 0... cee cece eee eens 296
erection and discontinuance.......... 0... cece cece cece ee eee eee tee 367
Priests—
real property exempt from taxation.......... 0.0... e eee ee ence eee eee 483
Prisoners—See Jails; Civil Prisoners; Sheriffs.
support of, in jails, a county charge............ cece e een e cence nents 41
when unable to support themselves.............. 0.0 c cece eee eee 48
Contracts for board: OFs ia ecnGa os. dascue ls ea dies oe oeled via eo graders ena hae Gatas 59
Dns] AlIS 28d oof ena se wa araabemaiea rina ds auplonciad Rana dive sudeedsels Maa aaub oe 175, 178
Separation: Of sisiwise pase setae a pgiias eesia Poa e pew ioee noe 178
to be furnished with wholesome food...............-. 00. seer eens 180
employments Of sic cuca ae set tama hoa SaaS a HR She hes Oe BE sees 180
to be furnished with reading matter............ 0.00 cee ee eee eee 181
record of commitments and discharges...............00. cece eaeeee 181
of United States to be received....... 0... cee eee eee ~. 182
calendars or names Of; .: 002 csig ccc nee ect dese si gea eee i eeee ey See 182
discharge if not indicted........ 0... ccc eee eens 182
if unable to: pay fin@ vtec issu cicc wn yess ese nae phe ee eae 183
communications with, prohibited.............. 00.00 cece eee eee eee 184
Gale of Liquors to: i cicsaee see nes ccuee Santen bheeese aaee ser nee 185
1332 INDEX.

Prisoners—Continued. BAGH:
service of papers ON.........++.- aid SrSns iiauy'S eialone\owiauiangin ceeven ns ou atanaaig 186

removal in case of an emergency.......-.+.-+-+e+e0- Spread isesoess 186

civil, see Civil Prisoners......... sfaie 4 Se oe RB ta ea yd wae 6 Ba ee sex. ASS

Prisons, State Commission of —
duties as to jails......... j Sxdhblasg: asauta ape dia avanal ere names sue: deiamn P Rieckcaee eS AS 175-177

Private Road—

Credit: for Works ON s siseseces qaw as miieed sie aiders cd Maid seed Beas Oa Meee 837

application for ..........00. ae acerer {Seas ORES MEE Sealed es HER ae eS 931

copy to be delivered to applicant.......... 0. cece cee eee e eres 932

service of copy, on owners of lands.......... cece cee e seen e teens 932

jury to determine necessity........ cece cece cece eee r eee e eee eees seovses 932

list of jUTOTS....... 0. cece cece eee eee cere wcisle le Seen, a0 We Ne -. 932

delivery, execution and return of venire..........seeeeeeeeeeeee +. 933

damages ascertained Dy......seeeeeeee eee e center eee eres esas eevee 933

to be paid before road is opened... .. cece eee cee teen eee eees 933

VETOICE clench arson eetees ise GaN a ave Ae rane’ eval a5) SMI Sal Syaele er eeduntaSrareneun BGkeyon 933

10 be: file divas ccscsias sc asiots: sus Migs He arose ee NE OO AS HARE ele 934

motion to confirm, vacate or modify...........eeeeeeeeeeeeeee 934

fees to be paid by applicant......... cece eee e cece tenet eee neeeees 934
new hearing, costs............. sees es Tee ee ee er eee iweeecnc 98

for what purpose to be used...... cece eee cece eee ee eevee ee er 935

damages, where laid out along division line............. ademas Gerke see =—936

Propositions—

submission at town meetings, see Town Meetings.....ccccceceeecceceves 255

Public Conveyances—

intemperate drivers not to be employed.......... Sines aE Gee ees cence 963f
horses not to be left untied................ orate caeagrarn sags eas iosale Aces 963f
owners liable for acts of drivers............ Seeveieregeacevawaeccas O64

Public Health Nurses—
appointment and employment by board of supervisors...........seeee08 66a

Public Improvements in Towns—

assessments, how Made......sssseccececccesreeee Mewes. COO9
form and notice.......... cece cece ere eee eeeceece creer aceenors . 869
hearing .......... iias: we alse 6, Ss ies seeds Hoots wikiew Be eawenee ne 370
appointment of commissioners......... Pee awessamew es cna 3 sesroeees 370

Q

Queens County—

designation of newspapers for publication of session laws..........++. 67

R

Railroad Commissioner—
board of supervisors may abolish..........cccceceeccesceeresccevsceee L071
supervisor may act AS.... 66sec eee eee eee eee ences Bisa ersayore oes «. 1071
county judge may appoint.........0-... eee ee eee eee e ee eeseeencecees 1072
INDEX. 1333

Railroad Commissioner—Continued. Pace.
oath and undertaking.................0005. atone gio <o:dv ayaa ora GeO sate 1073

sale of stock and bonds.............. Vanes svaale Suse Sachnere eis shieeewace 1074
disposition of proceeds...... cece ccc cece cece eee cecuceceaeenues 1074

annual report..... adie eH RATA Ska ee sae eam yea name ted Mees ‘eeeee L074
ACCOUNTS: ANG. LOANS: oo 66 sine os pious agian ea wee 44 Soe He 8 HaKERS ese NS ececepinease 1075

Railroad Corporations—

apportionment of valuation between school districts.......... jucretiancers 544
may pay tax to county treasurer........ eee cece ence e eee 4 eee 590
school tax, payment to county treasurer....... ec cece cece eee eee e eee 591
payment of tax to county treasurer, where town was bonded............. 592
disposition of tax paid.......ccc cece seceeecceecees Bsr Fiatavaus-acsayeveve'e 593
Railroads—
grade crossings on state and county highways............ceeeeeeeeeeee 991
BILCTATION dca wane ai haw ocoais Ming wists s gieg eel aa ee oa ahaa Lace va Me 1000f, 1000¢
proceedings by publie service commission for alteration of..... seeee 1000f
street surface, on state or county highway, restrictions................+- 892
crossing highways, not to be at grade..........eeeeee si owes dain <4 991
manner, commission to determine........... cece cece ec ene tee e ene 991
laying out new highways......... ease ara tdi orate rapsudew ke eusee ONG Auate Oo enece 992
crossing highways, changes in existing.......... a acopiiae: sa aoaieierarhbauaa’ eye 994
proceedings before public service commission................ 994, 995
acquisition of land by town..... Bie Gicttia ers eats Oa wise lee a 996a
powers of COMMISSION... ... cc cee ese eee cece cece ee eeees eas Sa 760
repair Of ois< esiess es sass aces ieee wie 44 WET Eee Fe ER e a sree Sw 894i
eost of repair of bridges and subWay.........ceee eee ee cece eee eeee 996b
payment of cost of construction......... 0. cece cece eee e eee e eee 996b-1000
proceeding to compel compliance with order of commission...... +. 1000h
town bonds issued for..... Ndhieoieis one oa aver ed hayor RAEN a nigga reeorteets eee. 1000h

Real Property—

includes what, for purpose of taxation, see Taxation; Tawes............. 467
rule for determining............. Ssigua sb NGI eal deal a int os oka avisiys 466

special fratichise® a8ii.s scence sees veee ee dead Be eae Se 468, 469

lable to: taxations< iiss vase sev awed en eielod ds Qa een whiny eae es Ree EH.4S 471

place of taxation e..ss. caves saeers saves gaedyeise ere eee eee Reaer sy 496

when owned by nonresident or unoceupied.................0 0.0 eee 496
when divided by line of tax district........ 0.0.0... cee cece eee 497
of non-residents, designation in assessment-roll.................002+-0 527
surveys and maps to be made by supervisor................000e eee 529 |
Re-assessment—_

Of UNPAIG TAXED. wiess eeieies 66 bse es eae SH M Wale ie mA es we gE SSN eee eA 608
Recording Tax on Mortgages—See Mortgages, Taxation of.........0+5- 621-633
Religious Corporations—

' dwelling houses and property exempt from taxation..............005005 482
Removal—

of county officers by ZovernOTr........ eee eee eee teen eee teees 229

proceedings, evidence ...... 0... cece eet cnet eer tenet teens 229

order, how made, where filed... 0.02... cece eee eee eens 230
1334 INDEX.

Removal— Continued. Pace.
order how made, where filed..........cecccscccccccccscccvcesecss 230
costs, a county charge............2005 o husie ia: ths (alan ack otal ibe wrNieee we 45
county comptroller. .. ......... siate/oUNGaa a silaeiyeioanie’s geaeaeee~ 19
sheriff, nonpayment of money...........00seeee eee eeees satewnceee» ICL
of public officers, for seditious or treasonable utterances........eeeee0- 231
OF town officers. 4is 2g cares ce det ee gaily oe RG Hee De FRE pee ee See 315
application to appellate division, notice................ +... eee eens 315
of justice of the peace........ 6. cece cece eee eee e eee 315
Rents Reserved—
owned by nonresidents, review of assessment by board of supervisors..... 561
taxes on, collector may levy......... 00.6 cece eee eee eee eae 595
Resignation—
of town Officers igs again cece Sia aes Sel Mee aw eee de SME eS Melee 315

Richmond County—

designation of newspapers for publication of session laws............. 67
Riots.-—
liability of county for damages............ 0... c cece cece eee eee 1076, 1077
Road Machine—
purchase by tOWii x cuales an ne net aaaeneek 4 pontine Faaliee ley Wola dane aL Geared 822
eontract for ............. plats Bia yowe SibHaa Sia ante Gt DN Mad Bees anaeenere Bzu
town superintendent to make inventory............. 0. cece eee e ences 823
Rules—
of procedure of board of supervisors........... SpE A oa tetaaes ele tiawied ais as 13
s

Sailors—See Soldiers, Sailors and Marines.
Salaries—See Compensation; County Officers; Town Officers.

Savings Banks—
deposits exempt from taxation.......... 0... cece cece eee eee eee e enone 485

School Directors—
town, election, compensation, et€......... cece cece ee cence eect ee eens 1019
election of district superintendent........ 0.0.0... c ccc eee e eae 1019

School Districts—See Schools; School Moneys.
apportionment of valuation of railroad, telegraph or pipe line companies

between <svissscwnew s'scinecss ASN a8 Bi Sia So0 a utle B.S Ge-Bl nw a Sevbiie-wiwla cate eves Beery 544
apportionment of special franchise tax among...............00ceueeeee 551
officers of; bonds; penalty of....... aes Sines siatsiste''s siecemieds Aaa 4 sae ee oe 1010
alteration and erection, duties of supervisor......... ee deaiene baa wesese OLS

supervisor to be associated with district superintendent..... ciice ws
INDEX. 1335

School Districts—Continued. Pace.
dissolved, duties of SUPCTVISOT.....cesceceecccsscncccectssscrsccecees 1016
in two or more towns, equalization of taxeS........ccsseeccecsececeees 1016

School Moneys—

apportionment by commissioner of education...........--.2.c-ee eee eee 1002
for support of common schools......... d Pidiane paige -exestoG a's Hiawses 1002
conditions under which to be made...............6- SMe ace Steet aia 1005a
academic funds, how made..........c ccc e cece ere ee eeeeceeneeeee 1005a
certificates to county treaSUTeT...... ec eee eee ee cece eee eens 1006, 1007
annual report of county treaSUTer.......... cence eect eee eens .. 1006
moneys, when payable .......... ccc cece cece eect eter een eer eens 1007
BACUION A sai cc.c sew erere weds seeGieg da eiale oe Melee Neiman Ss seeeees 1003

duties of district superintendent......... 0.0... cece cece eee 1007

when district not entitled to.......... 0... cece cece eee cere eee 1008

SUPEFVISOT LO TECELVED s<6.6 isa cidsstaie Sa etackoo ae dase d Sacdiavsd eu gays bone awed vo ha 1008
undertaking to be given............ 0.0. e eee e cece eee ees 1008, 1009:
return to county treasurer of balance....................005- 1010, 1013:

supervisor, disbursements; payments to collector or treasurer............ 1013:

LIbTARY MONEYS: a. cece ca AP ESS ee anaes uae heen ae we ». 1013

MWNION, IFES: SCHOO S sc scic.cae que deacerd sais. 09 Gud tbe inanhn ge PADI A leaaee 1013
accounts, how kept and filed.......... 0.00. e cece eee eee eee 1013
payments tO SUCCESSOTS.... 2... cece eee ete eee een e eee enaas 1014
ability of town officers for loss of.......... 0... 0c eee eee ee 1025

School Taxes—
payment by railroad, telegraph, telephone and electric light company to

County treasurer 4.4 aus sydd ids sulGR eee SRE OEE Be ¥ GE ET Gul eee ne 591
unpaid, collector to return......0. 0... nee een eens 1022
county treasurer to pay to collector............ 0... ccc eee cee ee 1023
accounts of, to be laid before supervisors.............. 0.00 e ee eeeee 1024

School Trustee—

not to be supervisor........ elas V6 QalS MT As Arman clk Bela Mtey anedueew a nuege pe coeveae 300
Schools—
apportionment of public moneys.......... IeAe SaaS sesccecessees 1002
additional 2. sceccccccecccccsccseees ae yeba GUavavaualediernd.sloes Sayandeoc hae . 1003
grant, devise or bequest to town for benefit............ee cece eee secu 1010
fines and penalties for benefit, disposition........... fee eae ie ee retin 1011
district attorney to report as to......... AAP EO ELS Baas “ih lie eeu 1012
duties of town clerk in respect to....... NeGmidy c's petenaalaernee wot eeaes 1021
unpaid taxes, collector to return...... semntations ds mamas Mieeiiavs 1022
county treasurer to pay amount to collector.......... uae bhava eusog optuece 1023
account of, to be laid before supervisors............. aa sire ae otecehsie 1024
district superintendents of, election, salaries and expenses.........-. 1017-1019
supplies, etc., supervisors may furnish.....,..-.ssseseeeeeeeeenes 65d

(See District Superintendent of Schools.)

Scraper and Plow—
purchase by town superintendent..........sceeeserveeeceeececeeeeees 822

Sealer of Weights and Measures—
county, appointed by board of supervisors.........eseeeeeeeeeceecoese 1089
powers and duties..cccsseccecceccercsccscessscecccscsscscveeaes 1089
1336 INDEX.

Seals— Paces.
of counties, boards of supervisors, county treasurer.....eeseeeeceeeeses 225
how impressed. . . 1 ws. cece eesee cence pa elen Missi eeeaesececn) 220
Search—
of records by county clerk.............6+- Maubicniderwaweeiancesswede 9129
Seditious or Treasonable Utterances—
removal of public officer............. sits Ueitean nade y eaeene ee oaeeeese. wee
Settlement—
of poor persons, see Poor Persons...ccscssccccevcevcvcccccccccceesss bLO—-Tae
Sewerage—
purification, ... ......... nog aia is a tolatiaae states ijesle: 6 e's Uavasts ues lopdiiade “oiepevane  ierevolere 438a
contracts for disposal in municipalities..............ceeeeees seeeeeee 4380
Sewer System—
town board may establish...........c cece cece eee eeteeeeeeceerceecces 425F
petition; contents; signatures........... able bvealned 2 Sree era ores airareeaie 426
extension of district... 0.0.0.0... cece cece e cere e eee neces Wetec 426
direction to construct portions........ ile. Sas ieecase Mees sewsew ee aeS 426
commissioners, appointment ........... cee ec eee ee ec enee scence ee NSE 426b
oath of office and undertaking............--..00. id ssnsay pravseneaen oe eRe 427
condemnation of real property........ 0. cscs cece c eect cece teen ees 428
annual statements 6.6 :s:eeis so sonaes ig swacers Pe argon ¥ Wy sisieie vie a saURIE ES SOLA 431
map and plans........... sane ae elie beds AWE EG pew Se onem eras aevvces 4260
COMSHTUCLION, bi s36 wees oa wash oda Ras BNSF EG Cae dE oe SEE CON Mew E oa 427
portion may be constructed: .......... cece ccc ee eet e eee eens cone 426
extension, when constructed........... ccc cece eee e teen eee n ene e eens 426a
assessment Of eXpens€......... cece cece ee cece eneeane Swiss waste ee's wees 428
levy, for cost of construction...........0.eeeeeeeee ses. cmie eo ociehee ees 428-430
for cost of maintenance......... 2. ccc eee reece eee eee venctixcsaase ~430
water and sewer commission in certain towns...........seeeeeeeeeeees 431

in municipalities generally............ceesccecneeceenccccecccees 438D-438j

Sheep—
killed or injured by dogs, procedure, see Dogs..........+4 seeeeees. 655, 656
payment of damages for killing of......... Ce ee ee isis oie ete 66
Sherifi—See County Officers; Jails; Prisoners.
fees as to criminals, county charge........cceeseeeeeeee svecer eesti sisie ga 39
for summoning constables .........0... a wee RA ABER CRANE CORR 39
contracts with, for board of prisoners...............eeeeeeeeees Coates 59

election and terms .....ccecccccccccccccerensesscctcssncsestscvcsee 154
INDEX. 1337

Sheriff—Continued. PAGE.
appointment to fill vacancy by governor...............0 ec eee eee eee 155
UN er tang: ioe, eins, soiree soe a Sab boa eetedeseGubeatay b dea inteidraret sumed ALthlansee a acs 155
special acts making office salaried......... 0.0... eee eee eee eee eee 156a,
under-sheriffs, appointment. © ......... 0. eee ete eee 156b

dities:, “wcy wake vedek cadet amuse dei uag abeese eee ees 156b, 173
deputies, appointment.....< vieiancisende ner nae bar eee era dashed teeares a 157
appointment to be in writing............ 0.0... cece eee eee eee 157
MUMIDOTS se -7e- o aerk ad eaars aes eee men ggar ame orcas, TOMA Gns SED Lahn has, ibe ae ead 157
UNCERTAIN 55 caltis Gina ewig inte Qaescd bv lelalpiud.a cana 8h gm Wade aoe wrechaen ce es 157
powers atid duties. ... ..c0ss ccenai ie a eee Wee eed owed a a ean ee 158, 173
duties in assisting commissioner of agriculture as to enforcing orders rela-
tive to diseases of domestic animals.................. 0... c eee anaes 173
office, ‘where: kept, ccsas cian sess seer eie teens sees y Be Hee weLE eae 158
notice of, to be filed in office of county clerk...................... 159
hours to be kept open. ........ eect eee teens 160
fees for services for the state... 0... .. cee ccc eect eet eens 160
removal for non-payment of moneyS........... 6. cece cece eee eee 161
coroner, when designated as. 2 0... ee ee cee eee 161
when to perform duties of......... 0... c cece cece eee eee 161
to execute duties until vacancy is filled.......:.............44. 162, 162b
duties when sheriff party. . 2.02... ee eee eee ener eee 162
any one of may execute a mandate............ 0. cece ee eee eens 162
arrestiof sHerifl bys sc cues: aca c case nik Some hae one eek ERAS 162
confinement of sheriff under arrest by.......... 00.0.0. cece eee eee 162
place of confinement deemed jail.............. cece cence ene e eee 163
sheriff, how admitted to jail liberties; liability of, for escape...... 163
rights of, to prosecute upon undertaking for jail liberties.......... 163
confinement of person arrested by, when sheriff plaintiff............ 163
jail liberties, undertaking and discharge of person arrested by..... 163
undertaking required. . 1... .. lee eee cece eee eens 162b
failure to give; other coroner to be designated................- 162b
when coroner refuses to act, county judge may appoint............. 162b
mandates and process, duties in respect to service of...........--.----- 164
£0: deliver COPY. 2 scene dccneacen odes E24 snes ena Hie queied var 164
execution and return... ............. Pre err ee 165
liability for neglect in serving..........-- sec ce cence eee tenes 166
powers in case of resistance to service...........--ceee eee ee ee ee 166
attendance upon terms of courts............. eee eee eee e ee eee 167
duties in respect to courts.... 0.0... 0. ccc ccc cece eee eee 167
elaim of title to property seized, trial............-.. 66. e eee eee eee eee 168
certificate of NOW. <8 46 sac wie eck hoc ote Wen sued ines woe duels oS aren UES ace 169
powers of former sheriff to terminate on filing.................... 189
former. to deliver books and papers to NeW.......... 0.6 cece cece eee 170
duties of former, upon new sheriff taking office.................... 170, 171
injury to records. ©. 0... eee ete eee teens 172
permitting escapes or refusing to receive prisoners...................-- 172
liability of, for escape of such prisoner..........--.... 62s ee eee ee eens 164
jails, custody of. See Jails..... 2.0... cee eee eee erence eens 174
civil prisoners, duties and liabilities as to, see Civil Prisoners.......... 189
escape, liability for. . 2.66... cece cece eee ee eee eee eas 197
indicted, when to produce. . .......... cee eect e eee eee nee 198
warrant for collection of taxes on debts due non-residents.............. 596
neglect to return... 1-1... eee ete ener t etter n ees 596
when person taxed has removed from county......-.......+-+.++-5+ 597

Shows—
licenses required; regulations... ........-. sees cece nen e tence eee enee 405

Sidepaths— :
expenditure of funds, by county superintendent....................004. 65b

Sidewalk District—
establishment by town board. . - ...---e sees eee eee cence eee eet eens 431
improvements; construction. ... ....-+.-+-- ee ee ee 431
1338 INDEX.

Sidewalk District—Continued. Pace.

CONLTACHS; PayMents. cecwccsavycs sia ss vawseulee des saa soewwe setae 432

cost; apportionment by town board............ 2... cece eee ee eee eee 433

issue and sale of bonds to pay....... 0... c cece eee cence eee 433

supervision of town superintendent of highways...................-- 434

removal of obstructions, snow, etC......... 66 eee n een eee eee t teen eens 434

annial: estimate Of cOStscdiins. sas sea oe Sipe eaoiaa ae saws Amada wes 435

construction of sidewalks outside of district i guaranntnlaile tek erence guna ied apetiaeiwiave:y 435a
Sidewalks—

along highways, town superintendent may authorize construction......... 833

expenditure of money, town board may allow...........0. 6c cece cece eee 835
Smallpox—

duties of board of health.......... Stivers VANS SoeeaS OUR oa £4 450, 451

Snow—

town superintendent to remMOve........... sce eee e eect eee teen eee 816

employment of teams and implements............... 0.6.0 cee eee eee 818

removal from culverts and waterwayS........... 00 0c cece eee eee eee 827

obstruction caused bY <5 26s. ss seuneeseee suey ee esaG ss weesaw ses sees 827

sidewalks in sidewalk districts ........... 00... c cece eee eee ee 434

labor system adopted for removal........... 0... cece ec eee eens 845

asséssmenti0f labor: oii wine owecwiomins save Rea eas ARR e Ee R46

list-of persons assessed cose. hg eases Ga SS 846

ditrict foreman; unworked tax ........... 02 cece eee cece een eens 847

appeals, by nonresidents: ss: 5002 ssaceas sea dtes reas esa sanseeosaars 847, 848

tenant may deduct assessment ......... 0.6. cece cence eee e eens 848

Snow Blockade—
wire fence to prevent, expenditure of money.................. 0.00 cee 829
how constructed, sacs scons oes asgaweeeanaeds re ceeeesyes Peanuts eee 829

Soldiers—See Soldiers, Sailors and Marines.
property purchased with pension, exemption from taxation............ 330, 331

Soldiers’ Burial Plots—

town board may purchase wo... is ensnamsndecn bs oes ee eaa eu nee ye « 365
removal. .of remains: wiv vsesimancnas des VA ee RAT DAMA a ae ag sls ASRS 365, 366
expense of maintenance a town charge............. 0... c cece eee ees 366

Soldiers’ Monument—
erection of by town or county......... 0.6.0.2 escent ee eee 80
town board may acquire lands..............0 00. c cece e ee cen eee eee eee 436

Soldiers’ Monument Assoeciation—
exemption from taxation............ 0... cee cece e cece eee eee 487

Soldiers, Sailors and Marines—

not to be sent to alms-houses..... SoBe sade ees sieve 40h CES OR
relief of, duty of Grand Army of Republic, ds saeeics ie Sck Rar stasd Sree - 767
post commander to file notice.................000. Peeises Sesanew se wais 768

to give undertaking .......... erie eitee tale dense sae seeceseees 768

when county charge............ Hees ee eT Aes ee see eae. ODE
INDEX. 1539

Soldiers, Sailors and Marines—Continued. PaGE.
to be sent to Soldiers’ Home..... scouteaisia walblelsivs alates winteaisiebiateldeumtee “MLL
burial, board of supervisors to designate persons to conduct............. Tl

where to be made........ .. seececcecceeeee jodie gina vacances 771a
headstones to be provided...........ceeseeeeeeeee eBacatereralarerm doatewae. id
may peddle without license ............ ec ccc ec eee e eens vivicacewans 402

Special Franchise—

real property for purpose of taxation............ 0... cece eee eee eee 468
whit: taxed :ASi.0:donuwan new serendemens wee eee ee Kaew TERE PREM ESE aS 469
valuation in assessment-roll...... 0.00... cece cece eens 516
TAX COMMISSION. CO: VALU). os. sceceas eacgiene nee ei eet dake aubie Aan es ante yee Rae 552
report of corporation or OWNETr........ 06. cece cece eee eet eee 549
affidavit of president annexed to................. 50 cece ee eee 549.

penalty for failure to make...... 0.0... cece eee eee 552
assessment, hearing before state board............ 0. cc cece eee eee 553
determination of final valuation............ 0.0.0 c cece eee eee ee 563
certificate of valuation to be filed with town clerk................ 563
motice of determination to owner............ 00. c cece eee eee ee 554
GerlidraTi: to: KEVIEW is ncncudawarducnds aawanuiaintnadawnallaaademee 554a
defense of certiorari proceedings.................0 cece eee eens 554b
deduction from tax for local purposes.......... 0.00 cece eect eres 554b
tax not to affect other tax........ ce cece ee cece eens 555

State Aid—
for construction of highways, see Highways............cc ese ee ee eeee 866-868

State Commission of Highways—See Highways, State Commission.

State Highways—Sce Highways, State.

State Lands—
in forest preserve, tax to be paid by state.............e eee sees eee eee 601

State Poor—

relief of, see Poor P€rsonS. 0.00... c ccc eee eeeeen eee e eee eenes 772-775
Statement—

to comptroller, of county, town and village indebtedness................ 97

of taxes upon railroad, telegraph, telephone and electric light corporations, 97

penalty for failure to make........... 5. sees cece eee eect e een e eee 98

Steam Traction Engines—

use on highway regulated........-... see c eee cece eee eee tenet enes 965
Stenegraphers— i

of Supreme Court, salary and fees a county charge..........-.+-++++55- 48

apportionment among counties............-6se cece rere eee eters 48

of county court, supervisors may provide {ORG toes Re eee wine ware Rew eels 63

on coroner’s inquest, employment authorized.........--2..seeeeeee ees » 164
1340 INDEX.

Stone Crusher— PaGE.
PUTCHASErOF 2,..z0ttuse uh aoutl ites gunned fan sama tattele eaten en emanats eee 822
custody. and, use cOl. waeqacikin ves €ig env ck haha on ede 4 Wee owe Se aes 822
town superintendent may hire.......... 0.0 ccc c cece een eee ee en nents 823
borrowing money to purchase............0-0 cece cece cee eee cece e ees 863, 864

Street Lighting Districts—
fown hoard may establish .ccsise saceiee deen Seta e taeda s eae es 423
contracts. for Lighting sj cscs. ciesvuisuecisieagiadyeewud b iviavele 3 aalalele tiated aeieens 424

Streets and Avenues—

plans; board of supervisors may adOpt.......seccceecccesceccceeseesses 65C
title to lands for, in certain counties.......... Staines ake vebineinneatiercee sn OO,
Suffolk County—
tax warrant to direct payment of school taxes to district treasurers...... 570
Superintendent of the Poor—See Alms-houses; County Officers; Poor
Persons,

NOt tO; WE SUPERVISOT. << d ee dele eed inne mae Ghad meds oe eee eae da we 300
election: of appointment, o.saac csi agence coy pedis Bee dere eee ws ane 668
number of, board of supervisors to determine.............. 0.000.000 005 669
term of Office: :cordeisoekectind eesowiny Gane ehaa ber yae Awe ica le ee od 670
UNOSRCALING ec sissies orm, saat sees HAE aes on Spend 2 CAG AOE GMA dione nauade 671

AMOULt, SUpervisoTs £0: AX ..0 6c sawed ca deere een ewe nae Dewi’ Dek O 55
powers and: dutlesiisc sic sea ey San we grt nos Ge Pd RG eGk eS eee AP aG 671

as; to alms-houses,.cccseracvscerhe rvs a ueweevas Ree eEe MOR FER MORE ees 672

to decide disputes as to settlement of poor person................. 678

to direct prosecution of penalties by overseer................-.005- 673

to draw on county treasurer... .. 0. ccc eee ee ee eee 673

to settle accounts of overseers.......... 00... cece cece eee eee 673

to furnish relief to county poor........... 0. cee eee ee eee 674

to account to board of supervisors.......... 0... cee cee ee eee eee 675

to administer oaths, etc.......... ccc eee ete eee ee neee 675

pay over to county treasurer moneys received by him.............. 675
one may be appointed keeper of alms-house...............0 000 e cess eee 675
direct overseer to take charge of county poor.............. 2. eee ee eae 676
provide for support of idiots and lumatics..................0....0004. 676
removal of persons from alms-house in case of pestilence................ 677
statement of amount charged to townS............ 0... cee eee ee eee ee eu OFF
amount apportioned against towns................ cece eee eee eee 678

to be added to tax levy.................0-0- eer Te ee eee 678
estimate for support of county poor.......... 0.0... cc cece eee eee 679
reports to state board of charities.......... 0.0.0... cee eee ee eee eee 679
failure to make report, punishment.............00. 000.00 c eee eeeeeeee 681
insane poor, duties as to...............000.20004. Weed Nerdculataee ee aes 689-698
epileptics, admission to Craig Colony...........cccecceececeeceenceeee O01
proceedings before, to determine settlement..................... ++. .7384, 735
decisions to be entered and filed............ ccc cece cece ce cccaee eee 737

appeals from, to County Court............. 0c cece cece cece eeeee 737
unlawful removal of poor persons, duties................ cece eceeeee . 738-741
to provide for bastard and mother..............eesceeeeeeeeee coeces 747
compromise with father of bastard.......... siatee ib ailete’s @areeae- 2% Sane Sere «. 752
INDEX.

1341
Supervisor— Pir:
duties as to seizure of property of person abandoning wife or children... 763
reports as to children placed in family homes.......... ecreneaientec hia coos 782
member of board of supervisors, penalty for failure to perform duty as.. 17
liability for neglect of duty........ POISE MMT ae ecaa ecm awed away 17
compensation ...........005 saduoseeah ona sioieiSe atoatsiot ewe staie ecsguncaue are 18
Special acts relating tO........ cece eee ec ee cece cece eecscuus 19
attending meetings of tax commission..................00000 21
allowance for copying assessment-roll............0.cccceecceeevees 20d
application for special town meeting.............0000ccc cee ec eee eeee 253°
LECTION: COL, ssc sn tah neitoasinsnitie a eve inne Sane dats Seg A apace ato a emede wiaueseee 281
POM OL OMG ivecnianciodatconaep ann dens amUNheeUS ad HREM AY aackeside ain ie 282
in county of Erie. vis sc seeaee viwlesnae saa caena ganeeavoureryacee 284
special constables, appointment............0. 0 cece eee ec eee cence ees 292
to provide badges for......... cece cece eee e eect e eee eeeeeees 292
eligibility .........0....000. weenie for riese Seapia Moen mre sie Risa 300

county treasurer, district superintendent of schools or trustee not
eligible vseessecciwawes ce eh site Sura aya lac paafespuese s oxessuaasinar aya severe 800
undertaking, form and condition............. dundvsiaenstayseatd asceseters seeeee 304
sufficiency and approval.........cesce eee e cece etc eceeeeee seeecees. 804
bond of surety company purchased at expense of town............. 805
Penalty: Of; ou soiseewslss gine vam tenaee wae ew Derenetay «+. 1010

(See Undertakings.)

general duties ................ aks char sea canon Cai ana gn lb anita trick See ewlatal ee 320
as to Lown MONEYS wg scares caw aus eoasles sowie Heats ed Kae cars 321
as toactions for penalties jc.scnssacaerscaeday seuees pee rnaxanes 323
accounts of receipts and expenditures.............. 00 eee cee eens 323
publication in newspapers...... 2... eee cee eects 324
to account to town board...... 0... cece eee eee ete 323
certificate of bank to be attached to account................--- 323
to receive accounts against the town.............eeseeeeceaee ewes B25
to attend meetings of board of supervisors.............2ec cee eeee 325
to sell town property...... Bidsded csusicusubmase sacar growsenieeeSadvonmue UR Mins SIR eNrYS 325
to act as superintendent of fires............... wcoseGiavath Sacisdye loves S. 825
to appoint forest rangers in case of forest fires........... ce eee eee 325
to cause town survey to be made........ ccc eee ee eee eee eee eee 326-330
forest fires, to act as superintendent of fires............0eeee sees 325
appointment of forest rangers...........0e cece cece eee eeeeees 325
compensation a town Charge..........cseseccseeeeceeceeeeeenees 325
delivery of books and papers tO SUCCESSOT.........2eeeeeeeeeeeeeeetees 357a
proceedings to compel ............ jeter oraial Sains Shee Sees says seeee 857b
incorporation of villages, proceedings for.........eeeeceeeeenee eens 331
notice of hearing .....cccccccece cence scene ee eeneneeeeseeeenees 332
proceeding on hearing ........ eee cece eee cece eee cece eee nenes 332
notice of appeal from decision............cc cece cece cece eeeetees 332
hearing and decision of appeal.......... cece cece cree eee ener eens 333
COMpensation . ...sececcecseccecccereeee bdesogeishnlens lala suvesdlexetalexoten 334
justice to pay fines and penalties to...... Miia Saas Ka age zeae seas 849
clerks and assistants in certain towns...... Suatarhvenaysvecaueeraterennaceys seeeeee B57b
duties as to funds in certain towns......  ehalateotsise avert elewisiselanegaewaty DOOR:
assessment-roll to be delivered to ......... were cantata a. cyeite secaseces 54d
appeal to state board from equalization of assessments......... seeneee 574
13842 INDEX,

Supervisor—Continued. Pace.
surplus on tax sale, payment t0..........0- ccc cece eee teen ee enes 588
conflicting claims, settlement .............0: cece cence ence eens 589
may institute supplementary proceedings for collection of tax.......... 598
dismissal of suits or proceedings............-. 0 00e cece cee ence ee eee eee 599
to prosecute collector’s bond............ 000 cece ee cee eee tenet eens 604
duties as to unpaid taxes; re-assessment.......... 0.0. c cece ee ee eeeeee 608

duties as to highways, see Highways.
town boards amember Ofs sdaca ra steoe ees sad acsnears eeawid daa Res eee eee F¥ 374
preside at meetings Of......... 0.0 cece ccc cee eee e nent eens 375
special meeting, may call............. 0.0 cee cece ee eee ee eees 375
compensation as town OflicerS........ 0. ccc e eee ce ete teen teen enees 352
while attending tax meetings .......... cece eee eee teen eee renee 21
fees on money disbursed............... Pests ete kee Geese ewes 356
payment of salaries monthly............. ee eee eee ce eee eee eeee 356b
for services in respect to highways........ Peas rele dae Seapieeweeweses 873
licenses for peddling, endorsement............... 0.00 e cece eee eee 402
for transient retail business............ 0.00.0 c cece eee 405
for hacks, vendors, shows, etc.......... 6... eee e eee eee eee eee 405
for: junk, bUSINESS 1/0 egies ose arene eer cteaisian ds Gag GT Tee Mee Aa eae 407
school moneys, apportionment........ 6... e ee eee eee 1008
certificate, to be filed in office of town clerk............ 0.2.00 ae 1008
receipt on filing undertaking........... 2... cece cece ee eens 1008, 1009
undertaking, sUfMClenCy .cccccac nd sie tes ths banaue ang ee @ Saees 1008
refusal to give, a misdemeanor............ 0000 c cece eee eens 1009
gospel and school funds, report............ 0.0 e cece eee eens 1011
return to county treasurer of amount on hand................. k010, 1013
CYSHUTSEMENE: ach gieg seg craved edie said Tones LEE Cte alina pias eres ansaeerd Sa ES 1013
payments tO SUCCESSOF.... 1... eee eee eet tenet eee eenes 1014
erection or alteration of school districts........... 0.00. c cc cece ee eee 1015
dissolved school districts, duties.......... 0... cece eee ee eee ee 1016
duties as railroad commissioner........ 0... 0. ccc ccc ce eee 1071
report to board, of amount of town bonds..............0.- 0 see ee ee eee 1080
duplicate to be presented to town meeting...............--.- 200s - 1080
removal of dead bodies from one cemetery to another.................4. 1087b

Supplementary Proceedings—

for collection of unpaid tax....... cece ccc cee eee eee eee axe Saiaens 598
Surgeos—

coroner may eMPplOYne oi vse seeders cee see ete eaed erases ewe ye males ee 164
Surrogates—

election and ‘term “OF sci. nen cols Shih od Raga Ma aed Aaa oo Bea wee Nes 145

governor to fill vacancy...... oi bake “ind Boland avanti tate ausear vie ade einer Ba 145

constitutional provisions as tO...... 6... cece cece eee ee eee eee ees 145

clerk of ......-20005 {a ERA SS WRI EES Hae Kae ae VR aa eels caneaeauiecda aia 146

temporary, Who to act a8....-. 6... eee ec eee een eee 146

undertaking; approval and filing..............2.. 0. esc eee eee eee 147

board of supervisors may appoint person to act as..................04. 147

may create office in certain counties........ 0.0.0... 0 cece eee eee 146
INDEX. 1343

Surrogates—Continued. Pace.
report of fees received to board of supervisors....... MMe eCaeses., AES
compensation . ...... ina ashes ain eines a otSR ar aes icex ante Saevdeb bern uavdnarbtace eee 147-151

How’ ‘Paid. ew iswwsmiwned vies guesdiesidielenasieeuuns Astor uns Verieerwens ISL

Surveys, Town—
supervisors to make ......... ccc eee ee cece euccccececceus seen eee 326-330

Syracuse State Institution for Feeble-Minded Children—

expense of clothing pupils charge on county ...........cccccecceeececs 700
T
Taxation—See Assessment; Assessment-roll; Mortgages ; Tawes.

GEfiMitions 0.0.6... c eee finisinienabadd Giye aw Ree aN Aas Sree EAS 465
tax COMMISSION: 0 sais ioorinmm ana mpaieer Rw BRI Eidw sand Grew Gk Soe See wees 465
BISSCSSOLS) ypc sing avers Aung sh itewias aN badb teens stave sirexend jageewneeen male a thald ea 465
tax GIStriGe: scot wets dnp scenes b ectbetn hyaline Geeeiect anemia ieares che 466
COUNTY *ENEASULER api scchcecscmaninsrinm Gra eaoneiae Neieaaresnacieualnea eee eem 467
land, real estate, real property........ 20... ccc cee ce cece eee ee eee 467

rule for determining....<6 566066 s dice aes neces ens pea nee een 466
Special: Tran OWS: ws.cccasactacus cae p qharmadaon es mela ww.egiadiresemee means 468, 469
POTSONAD: SCALE jo.ci5 3 eerecivetale-ssae tha aesen gee cacsanindionguneeauatelneoesanyaislaie ben 469

property: liable: 9.2.5..2:9 satoshes ans cls eos Sauipe MORE AOR REE MER SESS 47]

exemptions, see Hwemptions.............0 0. esse eect eee een eee 472

lands sold or leased by the state........ 0.0.0 cc cece eect ne eens 488d

personal property, deduction for indebtedness.............-....200 eee 488d
no deduction permitted because of purchase of non-taxable property, 488d

place of, of property of nonresidents............ 0... ce cece eee ee eee eee 489
of personal property of nonresidents................ 00 cece eee eee 490

GEdUEbION; OF ODES... 20: dooce weaned neck aced aera eS Sow eane a Swe Te Sas 491
of personal property of residents.......... 0... ccc cece cece eee 492
residence at time of assessment............ 0000 cece cece eee 493, 495
what constitutes residence............. 0... ccc eee eee eee 492
TOA] PLO POT E  icsc uss cpuitecsy apo icatuenayeyewiua don: oNaeoaeen uve in tals Sieh pean’ laayena Ras 496
of nonresident and unoccupied lands................ 200002 ees 496
divided by line of tax district............ 00. ccc cece e eee eee 497
COLPOTAliOns. ai: veut ones soeee epee a eee RHEss AE eE ERS HeeeeK ON 499

of corporate stock of corporationS........ecceeeeeeseseeeeees seeesesee 500

capital stock, includes what...... eciiiobrealotareistasiae Bi vadteidcveais a ieez:stgiets 500

of railroad, Corporation... 066 see adieu s a oeagee aeeaen neue ee nets 501

market value ascertained. ......... cc cee cece eee eee eee eae 501
deduction on account of real property.............eceeeeeees 503

income tax on manufacturing and mercantile corporations...,.........+. 502a
disposition Of TEVENUCS..... cece eesee cece ccs r eee ee ene eeeeneeaeee 502a
Onondaga county....... ccc esses eenee aie deeds sigh g fatignern arse sees. 502b

of stockholders: of bank, sic:sie'e:s:s: sie sarers: es sonable Beeeie es Swwere ee lems Rare 503

of individual banker............. a ee ee oe a ENGR oe. =—505

report of exempt property by assessors Sinise Brava ieeaalal aunts SLMS See S HES 506

GE DADS? 5 cosavs, cited Siveiterejesersneges ical slaseeotatec ones @acavace ave aseuetecoomud sresiareees vee. 0228-524

reassessment of mapped lots ‘illegally ASSCSSEM:. covers i verre coiei ein ovonave’ siaiene Serer ~. 584

real property, subdivision of lots may be abandoned............sseeees 546

false statements by person taxed.......... 5S ahaerd enna ace waiain sors corarelerssiiare 546

special franchise, see Special Franchises. ..se+sse0rss LOT RNC TRESS 549- 555
1344 INDEX.

Tax Commissioner, State— PaGE.
forms to be prescribed by........--- cates ete ayate. al axOiasays omens BES wee = 545
assessment of special franchise by, see s pecial Franchi ROS adnan neenees - 549-555
appointment, members, term of office, compensation........++.+seeeeees 572.
general powers and duties Sg ee aiodvSidte, ola RySndied GLa SRS BARTS TRATES OGRE Oe SUNT 572
to visit counties and meet with assessors........... eee eee ee teen .. 573

compensation of assessors and SUPEIVISOTS..... 6.6 e eee eee eee eee nee 21
tax department, created............. shite Sd waits dongles facavetateie a ieiy fa seni erates 572
term and salaries. se gatad ae ead HES La Os GIS LS Sao MERE ST Heese 572
general powers and duties of tax commission...........see eee cerns 573
conduct of hearings.......... Cr ere te ee 575
conferences with assesSOrs........ecce cece eee eter eee eens eect eseees ot)
Teview by COMMISSION... .......cc eee e cece reece eee teen e seen seen eeee 575
official seal of commission........... 000 cece cece eee cee e eee ene eees 576
Counties to be visited. saw ves yee 654 S Pa di Wein ne eisoIR eee BONS Tee des vernal 576
re-assessment of property. ....ceeee eee e cece reece eee nen eneeees 577
state board of equalization.........cccceecec cece renee eee eeeeeeenees 578
equalization of valuations of counties...... tag eee s4 MSs she 4 Gates s 578
review by commission; hearing.....cesceceeeseceecceereseeeeneces 578¢
appeals from equalization by board of supervisors..........+.-+- oS aes 578a
how Drought) scscc os siiwes < sisieeis we ewGle ed sie s oe eS ge we ee ees .. 578a
form ‘Of petitions ..ccce ss ceda ss wsiewiea nies 94 & ainielee Suey see eg aie 578b
time and: place of hearing.....ceseeeeeeeceeees sus s9 see's seeees 578d
tax commissioner’s TeVieW...... cee cece eee eee tener een eeeeenens 578¢
determination of commission.......... cece cece eee e eee eect este enee 578d
costs to be fixed by commission..........seeeee cess eens ence eens 578e
method of carrying out commission’s equalization. . assidva'lan ove wheres dows 578e
transfer of powers and duties of comptroller in relation to assessment
and collection of transfer of property, transfer of stock, and income
GAXOB. £056 6's. isis eisse-sransy-0) asusm’s santos stomeue oe sess s/s \siase ora ecules oetsen, OFRE
transfer of powers and duties of secretary ‘of state in relation to motor
vehicles, 0 sais, si sswee cane aes eae baa a's.3 Wee Ya wraitere e's weiss Pere . 578f

Tax District—

CONNEC s-0si0's Stee ke 534 Kiedeiereiese seis wa sanee eas ig ooe eas eae faeces SOT
GSHESKOTS “MAY CIVICS s o35 65 a-esetuers cue aieraaionc eedcenyieaiatdie ied ctanaieietere tenes ae lew .. 512
tax map to be prepared............ sieisdee siehs rer ee ere «+ 528-532

Taxes—
assessment, see Assessment; Assessment-roll; Assessors..... asst :t 4S wecee “O12
levy by board of supervisors........ ia catouariend be Sutin @ canuorenatvenmitun ein tiayen .. 567
warrant of collector for collection Of. .... cc... cece eect cence cere eeees 568
statement of, upon certain corporations by clerk of board of supervisors, 570
collection, notice of receipt of tax roll..........0..00- eer er ee 583

notice to nonresidents............. senile’ s Sighs bie o9siel demos A aeOIe E64 584
town clerk to file address of nonresident............ eee eeeeeee . 584
to furnish transcript to collector... ...... sce eee eee ee ee teens 584

fee for filing ................00- re Bteseveunsg Sse: Sueded onavaracavetaye 584
after expiration of thirty ALY Sia es si5 ondvanchnsd ove seve € Ssoianseudve oiaiie' Wa axsubintaastins 585
sale of personal property.........cc ccc c eee nescence Sasa crese . 585
liability of collector........ ieee a ees Fa Sito aban esaiies 586

notice of time and place............ cece e ee enone «eee. 586
disposition of proceeds..... see OYA SURES ees ce 85S - 588

claims to surplus, settlement...........+.. ee eee cesses . 589

against stock in DENK Sie. 5 i astecere: Sescuceseo eS ere Wie 106 Seeman e anotannees Sikdevase de auakav iter 589
railroad, telegraph, telephone and “electric light corporations. . -. 590
payment of school taxes to county treasurer.............. » 591
payment by railroad company, where town was bonded............. 592
disposition of amount pald...........seeeeee reece cence eees 593
against telegraph, etc., companies, enforcement................45% . 594
sale of instruments, etc.......... cece cece erence uence aia ete Noe 594

on corporations, sequestration of property... pie Gene casi ep araeeeear. | 9D
INDEX. 1345

Taxes—Continued. Pace.
on rents reserved; levy by collector........... eee cece eee cece eens 595
on debts due nonresidents........ 0... cc cee cece etn c eee ees 596
collector to return unpaid, to county treasurer................ 596
duties: of: county treasurer canis teccceeeea a eadieee weRee seed ae 596
warrant to sheriff for collection............ 0... cee eee ee eee 596
warrant to sheriff, when person taxed has removed from county.... 597
supplementary proceedingS ......... 6.6 cece cece cece eee eee eens 598
dismissal of suits or proceedings................ ccc cee eee eens 599
cancellation of personal tax for want of jurisdiction................ 600
of tenant, amount to be retained............. 0... eee ee eee 600
on part of lot.............08. Sake Aina Manso vncanbihe teh anata webaniNst 600
state lands in forest preserve........ 00.6. c eee cece cents 601
fees of collectotiscasccsseseewes ceeees eee nee vat ees taerees Ter ae ey 601
unpaid, return of collector........ 0... e cece ee ete tet eee 60.
CONTENES OL TECUT Hs ise see ayeesavten cayenne inscribe & wseeseaenld hush salina ck Taw 601
Injunction; to stays etleet ec csepg ae. elercisied ee nanan anata marie warhol < 602
payments by collectorics.5 ssssontasress oar seeder eet releoes aees 603
receipts to be given collector........ 0.006. c cece eee eee ens .. 603 |
failure of collector to make............ ccc cece eee 604
sheriff to levy on property’ of collector..............-+..4- 604
extension of time by county treasurer..............---000 ee eeeeee 605
new bond. of collector. snes cccsescestoe seep ees genre pee ened os 605
by sheriff, where collector fails to give bond................+-+.--. 606
collector’s bond, satisfaction of, by county treasurer............... 607
form of satisfaction; filing............ 00. e cece cece eee wee 607
collector to give receipts............ cece eee eee eee eee biti vee se ea 611
obstructing officer in collection.......... 0... cece eee e nee ences 612
unpaid, reassessment ........ cece cece cece terete e eee ete ennee 608
county treasurer to reassess, when property imperfectly described....... 608
payments by county treasurer......... 6. cece cee cece eee e ees 609
state, payments to comptroller......... 06. c eee eee eee 609
fees of county treasurer... .. 0... eee eee teen ees 609
accounts of county treaSurer.......... cece cet eee eee eee 610
proceedings, where amount is not paid over...........-..es sere eeee 610
unpaid, sales of real property by county treasurer.................++- 613-620
in counties embracing no part of forest preserve............0---ee- 614
list of property and notice to be published...............--0 eee 615
HOW COndUCtED™ sages siaeisegaian tama canned Means SEN EMele cides 615
new certificate on setting aside sale...... 0.6... . cee eee eee eee es 616
Tedemption ...... 0. cece cence een nen eee n ene e ene e nen et eees 616
notice of, in Suffolk county........... cece cece eee eee ee 617
redemption of real property stricken from tax rolls.........---.+-- 617
conveyance to purchaser... -. 1. ee cee eee eee eee eens 618
EAT OC sec ka. sai aiaiseS ood ad Spat ludaanayinaee antnnv spice sited cae RD ARAB REM NEE 618
purchase money, when refunded. . ......... 226+ +2. eee teres reese 619
list of lands, to be transmitted to comptroller............-+--..+55 619
expense of publishing notice to redeem..........-.+++-see seers eee 620
on mortgages, see Mortgages. .. 1.0... einer teeter teen ene eee 621
Teachers—
appropriations by board of supervisors for salaries of, in pedagogical
department of certain colleges, etc........2. eee ‘cia atgiitanecalnaia nae ae 66b

Telegraph Corporations—
apportionment of valuation between school districts..... dretcuueeelpcennindet 544
may pay tax to county treasurer.....csesssecesecrecereeesseeececeess 590
1346 INDEX.

 

Telegraph Corporations—Continued. Pace.
enforcement of tax, sale of instruments, etc.......... 0... cece een ee eens 594
obstructions in highways............ cece cece eee e ence ee renee ee teee 824

Telephone Corporations—
apportionment of valuation between school districts...... agilioe se Saatonas 544
may pay tax to county treasurer.......... 6. eee ee eee eee teens 590
enforcement of tax, sale of instruments, etc...... 0.0.0.0. cece eee eee 594
poles and wires in highways.......... 0... cece cece ence e ener n tees 824

Tenant—
may retain amount of tax paid.......... 0... cece eee eee eee teens 600

Time Table—
for town and county Officers... 6.0.6.0 sees cece eee ee cee eee teen eens 1217

Toll Bridge—
unsafe, duty to réepaitis: scsi 040 sedi ouwee es a dae tus SOS ee med eee os 840
abolition, resolution of board of supervisors.................500. eee 954
investigation by state commission.......... 2... cc cece cece ee eee eens 955
acquisition by attorney-general............ 0... c cece cece seeneeee 955

payment of expense.... 0... 0. cee ccc eee ete ee ees Have enous 956
by state commissioner, when part of state route.......... aed sci enwian a8 957
maintenance, when acquired by state........ 0... cc cece cc cee eee renee 956
use by public service corporation..............eeeeeeeeeee  a¥aaee-t asta sie 957

Toll Roads and Bridges—
acquisition by board of supervisors..... sess sue Sais 971
bonds to be issued for..... 0... ee ee eee ee eee eee eee vccce O71
payment of bonds and interest............. Haig hipaa. w ela ere'e 971
roads acquired to be part of highway system............ fs cEaMOr olen Howes 972
when in two or more counties............-. Mea aponla aoc elers SO es 972

Town—

a municipal corporation.............e.e seer eee eeee aactiehe, Pa aiiacds oloeierRe 233
powers of, as corporation.......... esses ee ee ee aeee Loves Sepeayeucien es 234
alteration and erection ............ cece ete eee c ee eet ee teee aie os Slaw 8 235
application to board of supervisors............ 0. cece cece cece tence 235
Publication, sco saiey. 6s sinied eee Hinde piesa ws oated saeescnecece. 236

PEsol ution 7Ol: DOATA: ssnwis sowie ache nese 4 o idard-e BA cae oO RSS eaceaeeres 236
proceedings generally ........... sees seen eee Pace eee ceees sisavalate +. 236
disposition of property..............0.e008 Serr ree senshi tage 238
debts to be apportioned ........ cece eee c cece cette eee eeeneeenees 239
unpaid taxes, apportioned........... cece cece eee eee Ries ate ween 239
meetings of town boards.......... 0. ec cee cece cece ene ehieroussace 240
division into two towns, in certain counties................0ccc cece eee 236a
submission of proposition to electors............ 0... cc cece cence 236b
new, first town meeting................ Dus ahd Ra Fas ateorg eo eat eee REL eR RE 237
disputed lines, establishment.............0000 0000... cece cee ceeeceue 237
proceedings therefor’ « w.cccce ps veer adds dea dey sess diannewma ahve 237
disposition of property ........... 0.002 cece cc cece eee ne ees 238
debts to be apportioned... 1.2.2... 0... cece cena ee 239
boundaries, intersected by islands............ 0.0.0.0 ccc cece ec eeeuas 238
survey of boundaries; expense... 2.2... 0.0. ceucueeue ROR
bonds, surplus moneys applied in payment........................0005 356b
gifts of real and personal property to............. 0.0... cece eee eae 368
public improvements, assessments for. . ..........0.. 0c. cece eee cee eee 369
form and notice of assessments........... 0.0... cece cece eee eee 369
hearing on assessments. Sap aheleracnrare others ad nities Risasael ered auaele oases 370
commissioners, appointment. . . 1... cece cece een cece eens 370

action by and against, in name of deaisbs hie deem oahu seee-ceaincce. 303
INDEX,

Town—Continued.

contracts in name of.......... +a NG Ob WI Faas wise acters y eae aI ee eS
may borrow money for highway purposes and support of poor
to pay: judgments is. soma es se 054 a.8e eed aad wae dle bas wuts ata gees

for suppression of forest fires and other emergencies

for payment of claims against town
parks and playgrounds in certain towns
police ‘protections » « s+sseae ies saensd a See Pes AM scsi guene sm awe a deianaae
temporary loans. <i sie sis. Sor ded ae gerbe eens be @icunle eae wen ae BUR
power to borrow MONEY. . .... cece eee eee ee eee
funded debt, contracted for specific purpose.......................000.
new bonds for retirement of old........... 00... c cece cece eee eee
bonds, Row issueds a: is “geno Ss dennis ea ido kaG keine awe meas aes hes
surplus money applied in payment.............. cee cece eee eee
Tepistration: . ccs sc acece eee scene eens ick ga MSE S 8 aR Bs Maee FET
coupon converted into registered.......... 6. cece cence eee
limitation of indebtedness................0 200 eee AR Sen abie a a es
resolutions of board of supervisors authorizing...................-
report of amount outstanding............ 0. cc cece eee cece teen eee
duplicate to be presented to town meeting.....................
cancellation, town board to provide for...................00-- 008
credit: not to: be loaned... nu 6. cede eaten is ae ee ve ees ew a ee me ie essen
railroad bonds, payment.......ccccccccc cree eee e cece eee e teen eens
reissue of lost or destroyed........ 0... cece cece eee tenes
limitation of indebtedness........... cee cece ee eect cece cent enon ee tees

Town Auditors—See Accounts; Audit; Bonds, ete.
when to be elected.............- sanctus oceans cds Sa verabialeddie a Suomen Wider Sore gery
number; term of office............ WR HELe CARL S W QUOALES ew 2 HRtEG ¥ ely Seay
audit of town accounts................. sees 2 aE HER SK Grttie, B'S Gaeaas 098 Behe S
temporary appointment by town board............ce cece cece eee eee
compensation .......... cece ee eeee JANG MES SHIR e oetead oat ee
vacancies, supervisor to fill..............006+ sete Seis gis SOU wa A a eae
discontinuance ........e.eee eee e eens soOMate MEE Ea WEE Pear ea ees

Town Board—See Accounts; Audit; Bonds, ete.
county attorney to perform services for...........c cece cece nee eee ee
disposition of property and apportionment of debts where town is divided;
appointment of overseer of the POOT........... cee cece nee e ener tenes
appointment to fill vacancies in town officed.......... 0.00 c eee ee eee ee ee
clerks, assistants and stenographers to officers in certain towns..........
town physician in certain towns, appointment............-..---.++55-

overseers of the poor to present books and accounts..............--.5-
estimate of expenditures, approval.......... ccc c cece ee eee eee
how constituted ..........+. chs died oe Sie Si inate hee ne pare ead oak sale lass
meetings, regular, when held............ ccc e ccc cee cece nee eens
supervisor to preside......sseeee eee e eee eee eter eens
special, how called ......eeee cece eee ee rece rere reece eee ence eee

as governing board of town...... siaeGctecattued aii dndeal Sai ANNE aca actin eh Reale aart
special powers and duties........ A So eh Ba GR eeu A ds Gas Vedas e
meetings for receiving town accounts...........6 ssc cee cece eee eee eee
accounts of town officers......... gadget doe silaveugsSeavg sueuar dt Pacem testy
statement as to.......... Odie Danae eats Rae RRA RCIE DS OM ae Soe

for audit of accountS..........ee eee eee RG ROSE EG cele see eaoLse He

144
238
291
318
357b
358a
606
721
722
374
374
375
375
374
375
376
376
376
377
1348 INDEX.

Town Board—Continued. PaGE.
audit of town accounts, see Audit; Accounts...... Se re aneleoarg 377-382
of accounts of justices of the peace and constables............... 383
certificates to be issued......cccessect eee ec et erence etevereeence 382
abstract, town clerk to prepare... ..... cece ee ee eee ee cece e eee 382
appeal to board of supervisors.........2-- ee eee eee eee e eee eens 882
FOTN. Of ACCOUDES. ic io Va iden waina en eda a see eRe es Weed Cee ee 386
VETINCA (LOM ss: ois aadecieisin ce oils aw Cau sa Meeue Ged ves See oe 386
HOWR Chan SOS yack alas o's Guiealy xiewre £4 aKGows dlakote ees sremlsla nares alan 388
Franklin county............. pFa eRe ee eee ORS ¥ Ok BERRIES 890
traveling fees for subpenaing witnesses..............0eeeee eee 391
temporary appointment of town auditors........ cece cece ee eee eee eens 892
borrow money for highway purposes and support of poor.............-. 396
statement to be rendered to board of supervisors..........e2eeeeees 397

for suppression of fires......... Seana ees Obea Sowee esses Hes 397

for other emergencies..........cccceee cece ect eeeeeeteeeeennees 397

for payment of charges or claims against town............ eRaeies 398
judgments against town, to pay...........4. asatroliscd ar Nave povais Welatersaueiane 398
appropriation for rooms for posts in certain counties.......... eis 398
white pine blister rust, appropriation by town boards for control of...... 398
pbuilding code, power to adopt... .... cece eee ee cence eee e eter ene eenes 398
coning towers, appropriations ior construction Of.........-.. esse eee ees 298
memorial day, vote of money fOr... .. cee eee cece eee eee enne sees 9899
soldiers’ burial plots, purchase........seceeeceee cece ere eee eee eeseneee 365
removal of remains..... Bia a Macans stu aayieia 8 eG aia ia os Digakg Sieh eG OE ato 865
expense a town charge........e esse eeeeee i ara engine ald annie oe adotlia ee stigte 366
hawking and peddling, may prohibit without license...............-0005 401
licenses issued by town clerk............ ieee Spee aia Michie Sarasin eetis 402

by’ Soldiers: arid: Sailors 5 sess sceas sie ecesereievaie, oie diave, babe Scbia oe ska o gone OO 402
farm produce permitted... ..... cece eee eee teeter eee eee eeeee 403
penalties for refusal to produce license...............e seve eee eee 404
unlawful, a misdemeanor...... a selec ali hay «tas peaeh SaByr ga! aise a a Soros) Peairahsce 404
hacks, vendors, shows, etc., licenses in certain towns............0eeeeeee 405
' -pules and regulations respecting. ....... cee eee cece cece eee 406
licenses required ........... ee ee ee re aR ic 406
penalties paid to SUPETVISOT.... ccc eee e cece cette teen cette enees 406
Offenders, WHEPE ATIEM ocas cacti ead cise eo baie a suaiecnss.e wpetens a ecnw eeleiolée 406
injunction to restrain unlawful business...........-. 0 esse ee eee eens 407
fireworks, regulations as to sale and use; violation.............eeeeeeee 407
regulations not to discriminate against non-residents..............0006- 408
fire companies, appointment of members..............- & sie) SW a OMe 411
town fire districts, establishment.......... cece cece cece cee eee eeeeeee . 414b
water supply districts, establishment.................. ies 8. Sua seus eacn'g Buel 414¢
contract with water works corporation............ cece cee eee eeee 414d
purchase of water Works. .......... cece eee e eee e cece eet certeeene » 415
water districts, establishment............... Sie Son Mae aoa ee hamtne » 418
petition; map and plams......... SSK d Saute bandon be aga wa Wout amas 418
commissioners to construct WOrKS........ 0. cece eee e eee eee eens 418
contracts for construction....... sce eee eee c eee ence eens ioe cael ovesiags 419
town bonds, issue and sale........ cece cece cece eee eee eee Rcueavons 420
payment; assessment on property........ cece ee eee eee eens 420

control of water works........ bis Andere -a/a ehalele Sb ates wiaarstnaiy eostanes oalatets 421
enlarging district; approval of town board............e cece eee ee 423
joint, action by joint town boards... ...... cc cece eee e eee ete eee 425
contracts; levy Of taxeSic:.. sssead scnecsaawerseiew een eww seen 425a

street lighting districts, establishment............ 000.2 cece e ence eens 425b
petition .......... Sah GNR SB ederere OG audited d-Saseiis: Bana RUN erene siete eae eda 425b
notice of ANG. saws amici oa daweiueaicn dee aed ees wea a Sita <4 ita 425b

contract for lighting ................ Leuteaarr aatine wae ee asian’ .. 425b
consolidation by resolution...... # saitete 0 Series 8 5 Hisiwes Wah sda o- sace dis oe 425d
joint contract for lighting district and village.................... 425e
highways and bridges, town contracts for lighting improved............. 425f
sewer system, establishment.......... 0. cece cece eee cece e eee eecaeaee 425f
commissioners, appointment. ....... 0... cece cece cece nee cece ceneeee 426b
map aud. plans’ se s:s.0s shee s soak ss wae 4 Seek ee WEES A esos ee 426a
eonstruction .......... eR ee Sea SER OS Siceia-wigesvandian subs wnidutecanerseate ¢ 427
assessment of EXPeNse........ Lecce ccc nec c eect eee eaeneacscene » 428

on property benefited... 0.0... .. ccc cece cece ccc eee ve cens «- 480
INDEX. 1349

Town Board—Continued. Pace.
levy by, and supervisors, . 2.0... .. 0.0. cece cece sees Late spe Sepiste 428, 429
sidewalk districts, establishment... ......0.0.0 0c ccc eee nee e eee 43%
improvements IRE CU C5) ics jacenaeatand dudes ehuwers 5 -etatnaeaabatalalaciecoinlaune net 432
construction of improvements. ay Joi sd ahve hc gle ua fl era aii camer in Ahdetarcenecto 433
sidewalks in town outside of district............ 000. cece eee cece 435a

soldiers’ or other monument, or memorial structure, may acquire lands for 436
Grand Army of Republic and American Legion, lease of public buildings to 437

justices of the peace, lease of buildings for.............. 0.0 ceeeeeeees 437
Collection: Of GATDAGe soc. avéice spscanmievesnausuynavn ecwtia wen a Gunneade aa Wa Wiearaearaunae’ 438
penalty for violating ordinance relating to...............-+-000-- 438
assessments for expenses of disposition OP siaeistve sierra shatitatiin eatabeenidon 4384,
purification of water and sewerage......... 0... cece eee cette 438a
sewerage and sewer systemS. . ...... 6. eee cece ee ene beeen beeen es 438b
contracts for sewerage disposal... 2.0... . 0. cee ees 438b
obligations and privileges relating to..................0000005 438c
NOW EXECUCER s 24, 2 waceinissevees) siebanavecacs aeraavace guaemive weenie vend ebaue adver avanene 438d
VOGTIN AOE 5.x recauaticaspacadetenssguevsntieca, hear ach talaantd He beuammvoaeene axa a. 4886
BUPET VISION: 2.6. fy easing wierd Mia erase anew Banca arma raat sid Sesune 438¢
officers: cOf MeelIN ow, seivingcreweia gine Meee Dm Oem memes Beira 438d
proposed district meeting, by whom represented.................4. 438d
cost, apportionment. . Scoid Satine a hetheaty Wash) ae EAN Mola ee eRe 438e
bond issues and assessments. 2 @ GER RES Mev Mab hee Koei ya 438e
notes in anticipation of assessments................ 0.00 e eee eee 438f
PAY MENES: NOW MAME... oie. ceeadetsyeiara ds apeudnecarestnecenstutoeceve: Pereanei pended muetonat ieee 438f
procedure, application of other laws.............. 0... eee eens 438g
mad, plans; eee. :. caccwisincnenes: sais se xeamneeawne waning mansuteed ¢ 438
Melnitionss i: ws wick Aavd dis wariinwensciberMmeNs cee ATER ae 438h
referendum in: cities and villages....... 0.0... e eee ee ee cee eee eee 438h
rules and regulations: « «. ss aosses ieasced oe biaseaiearwaes aemeses 438]
failure:to keep in good condition, penalty..................00000-- 438]
municipalities acting jointly; powers. . . 11... . eee eee eee eee eee eee 438]
appropriation for shade tree fund........... cece eee eee eet eee eens 438]
forest: lands, ACquisitlon. 6. ciicesiciaaravisiedi ceneweig ine vais muywiedios oagreieds 438)
levy of: ‘tax: for purchases ei ccae eguisdpiciade ares oar sass eee taneeuleces 438a
ordinances, power of town boards, certain counties, to enact........... -» 4381
building lines; character and use of buildings..................65. '438n

in certain towns may require notice of construction of improvement of ~
DUNGINGS: Kiewsc cies iewrwmer ieee tiwe kad SON 4 oweese Hae OR RRL +. 4380
traffic policemen for unincorporated villages and hamlet..............5. 438p
as local board of health, see Health... .ccccce cece cecenseee cence ceece . 442
parks and playgrounds, ‘duties as to....... as alean aid va arava vexing mnroeasovesavina . 462q
cancellation of town bonds.......cccccceces ese e eee r eee eeeneenee -. 1080
limitation .of Indebtedness ses ciesioasisie diane sigieieioe diet ares spemiene ote Hele wae se 1080
special provisions as to transaction of business in certain towns.......... 358b
adoption of act at special RENE ee ee 358b
ASCE VCO: oS risieesecin eee ve tine sit ecen ene ends Pia dvasar tr ocadects aap aaninas erences .. 858¢
estimates of expenditures by, town officers......... isd chs yeni pula owe doiesGaea 358¢
annual estimate, adoption....... aaa te dic alidvataavia onsen oan darted anteater rari 358¢
hearing on proposed expenditures.......0eeeeseeeeee areaistediecess Sieagie 358d
annual appropriations; SUIPIUS....... cece cece cece ee ee eee e eens 358e
tax budget; submission to board of supervisors anage Wee acacia Sea 358f
temporary loans; 3 certificates of indebtedness...............- Pausaeunees 358f
contracts and expenditures beyond amount available..... srnaenge Dyarionsusvard 358f
payment of claims against town... ... ccc cece e cece cere teen eens 358h
town clerk to prepare warrants, CtC......... cece cece cece eee 358i
supervisor, duties as to funds......ssseeeseseeeseeeer eters rceeces 358g

Town Charges—
board of supervisors to direct raising money to Pay....e.seeeeceeeeees 54
bond of supervisor purchased of surety company.........seseeeeeereres 305
what are, generally... ... ccc cece cere eee cnn evaee Sinan carereiais RSE seeee 888
Town Clerk—See Town Board; Town Officers, ete.

post notice of special town meeting..........cececeeeeeeeeee a adancarns ee 255
as clerk of town meeting.......... sass Oe oe ee 260
notice of propositions........ aeeueas ro nied evihawiiens Semaine naire Sie cerie ei aeye tne 256
election OF os. eneeiiremeeaceeie swaes 4 Semies aieglem ese merae aia We erases es 281
term of office. s..sscscsecees Rie Aa ORAS ee 282
delivery of books and papers to SUCCESSOL........ cece cere eee ee ee ceeee 357a

proceedings to compel........csesesenees She heleaAGnoaseuneavaccmes | SOND
1350 INDEX.

Town Clerk—Continued. Page.
custody of books, records and papers........... 0. eee e cece cree eee eeee 336
to certify to county clerk names of town Officers.............00ceeeeee 336
to notify county clerk of vacancy in office of justice.................0. 336
to deliver to supervisor copies of entries of votes for raising money..... 336
furniture and blank books.......... 00.0 c cece cece eee ene ne teens 338
BIBI. ase picraitied wish anausta Sen dias agramueare & Aine a duaone Rathi Bavaaeate Raed wie Saaeon 338
deputy, appointment 1.1.0.0... 0. cece cnet eee nent nes 339

Qualifications= ce vacteays teu ivandeass see eeacobute ean eh aes itech Sma 339
filing and discharge of chattel mortgages...-........ 00.00 cee ee eee eeas 339
duties in respect to chattel mortgages..........2. 0000 ccc cece cence 340
POOR LOT sad. cics ads eh cape ine eaia ds bom astd dani aae SAN RoS Rees Bee 341
other liens on personal property.......... 0. cece cece eee eee e ees 341
Marriage. licenses; issuer widsas «adc waa Hoy cea 4s eae es cds wee hae ewes AGS 342
statement required of parties.......... 0.0... e cece cece ees 343
oaths may be administered by town clerk................220.0005 344
consent of parents of parties, when required.................0.005 344
fee: TOP MI CONS Cre ainsi gut aleuoncng eae dep he age ala pane oae Meee 344
duty as: to Tinga coves evearsus sual daR coe BoA name to's eke paced ax 345
copies of papers filed in office, evidence.............000c cece eeee iat 345
in certain towns, preparation of warrants, ete.............0000ceeeeee 358)
duty as to data furnished by county clerk respecting corporations........ 526
duties as to tax notices to nonresidents...........cececece cece ence cece 584
registration of dogs, duties as to........ Sigal a deem PoHew eed eG ssGens 654
names of town officers to be transmitted to highway corimiss’on....... 873
COMPENSALION js, csisis's’s eisieory's Sisis eis es Sirsa be ANE a se eee a do ee 352
IN Certain TOWNS so.was suas sie mae ars See oe aaaRe des wanes Hee Ee ne 356b
for attending meetings of town board in certain towns........... 356b
for duties in respect to highways..........c ccc cece cece eer eeeeee 873
duties in respect to common schools..........seeeecceeeereecteeereeee 1021
expenses a town charge........eceeeceeceneeeees dese hem ax Gas 1021
neglect to return names of constables......... eee ccc e ete e cece eeeneene 1088
undertaking Of ..... cc cece ce cece ee ree ence eee e ences eaeveeiteks 307

Town Fire Districs—See Fire Districts.
establishment ..... wleistaientets Gear oe a a ame ae eG eae aaa eey es ans 414b

Town House—

town meeting may vote money for...........--. 06sec e cece e ee eee eens 359
form ‘of proposition... ness cece eden eek ha ne tines Rails wale 6 360
special, when and how Called ieciectis Sires dou due Canon Tae 360

isstie and Sale-of hondsss. 500 scae erea seen resign carp hlawece ware vs sien a 360

purchase of site.... 2.6... eee cece cece eects 361

Srechion sand “COMETO] scseciesccsnees isk Sane h oS Vaca BS See werd aa dae eedeGie ais 361

Town Lands—
town meeting to regulate use.....-.. 0-6 eee ee eee eee eee eee eens 250
actions for trespass On.................. PPG erdsdae ace ehane coat ap Siege anand ded had 396

Town Meetings—
legalization of informal acts Ofsieds casas $44 dames a MeroK EE ESS a Mees 66

first, in MEW... 20. cece eee eee ee cn eter e eee eee e nent teenies 237
INDEX. 1351

Town Meetings—Continued. Pace.
biennial, time and place............. ccc eee eee ee vie Youlciscousyonal eizaniiene Gate 244
board of supervisors may fix time.... 0.0... cece cece eee ees 245

on general! election day scsine icc airs cummin aie pe males ya eee SERENE 245
special acts relating to.......... Nok Qunbe Be kaw ean ys See ees 247

town may vote to hold........ 0... cece eee 246

effect of change on terms of town officers............. 2.00000 sees 284
place, electors may determine.............. 6.66 cece cece eee eee 247
general. powers: ssna i. dees saree ee ase camel pen ewa Cee ee TER CaaS 247
designate number of constables........... 0.0... cee e ee eee ee 248

GlECHION Of, OMCELS 5 .6:6 5.6 davesiine yuan d ean nce hm NeaLK Ne Some aed 248
prosecution or defense of actions............ 0.0... cee eee eee 248

noxious weeds and animals............... 0.0 cece eee eee 249
establish pounds: i... sca verece tog ee esis Segue. wae semeeeeameaies 250
abatement of nuisances........... 0. e cee eee eee eee 250

TOW ANS) ions ee ciscas cine aepeninn oa eda ake walters aa ethene es 250

fences, rules and regulations........... 00. c eee e cece eens 251

SUPPOLt Of POOP’ ic awe is saaw peso cena RENEE ENS ISG SRE ES 252

gale GE, EOP CLE ses) ite sk Gs Siesie b ce avehae: d.tke dues ac ane aug Boe wrOacandee asiasbane ar 252

public records, provide for recopying, etc...........-.....0eeee 252
monuments, appropriation ......... 6. eee eee e eee eee teens 252

special, for what purposes called... 0.0... eee cee eee eee 253
application HHERELOP oc ceeik ssi ccna d eee csonce Fee eane ys eee bue ad Boasaiene BH acasne) b6 253
notices to be posted... .... eee ee eee eee Sod Meats gancdun es 254
submission of proposition under Liquor Tax Law................55. 263
presiditig officers: axs.casosauaen  mgne eoceete a eeames eapielies same soe geSiss 258
maintenance Of Orders sccscccicw evades Vee Mes Ree NNER EH RR EZR TE 258
LO WH. CLEP KAS) ClO. eicas6 ga ceuehensids ea: avave. ge vophcunne ora dav: » avacbhanese Bala davacdidad Subanie’ 260
proclamation of opening and closing........ 0.0.6.0 cece eee eee teenies 261
duration; hours during which to be kept open.............. 02. e ee eeeee 260
AAJOUTNMENT «ce vic eeaa seed sO RHEE SHO RT OU NewS SOMERS Dew EN eS 260
qualification of electors, when held at time of general election.......... 261
£0 Vote Of PFOPOSITIONS 0.0... ce cee r een ca eee ceed eee ee gale 261

to vote on proposition for site of town house............ frctasos 262
challenges Of VOteTS 21... cc cee cence eee ene e tent e ener ee eee tenses 264
Election Law to apply............+-.06- Seb gece A Saws wi oe Sialic 265
minutes of proceedingS ..........cccece ec c cece een eet eeneetenees 265
business not requiring ballot........ cece cece cece ccc ee tenet ee eeneees 263
submission Of question ......... cee cece e nec ee eee ee eee eeteenee 264
how voted ....... ACHES GANS SH DEUIR 9% Bae a srdae ae wrdeWe eciieta a's waists 264
division of electors present .......... cece cece cece eee cent eeeee 269
submission of result to canvasserS.........eeeeeeeee rere tinaenians 269

when held in separate districts.......... ccs eee e eee e cece eens 269

votes by ballot, if amount exceed $500..... iia sda vacsun ie aiecsnsaaeos tei saicbaveranete 262
elector must be taxpayer .........eee0e aiid axenae Rese a gvaertne se aaah 261
propositions determined by ballot..... Acre hieie s eabaas weateha dante wiauaece 255
application for submission ............eeeee eee e eee e eee eens oe. 255

by town officers ......-..-.-.------ eee ee 255

notice to be posted........... Sa sctitions {abate waatele es aaa ewe Ss awieie 256

pall6ts: wns iavevisenes setew cieaaes seen seaiweverees cineca somerse 258
1352 INDEX.

Town Meetings—Continued. Pace.
under Liquor Tax Law's cay si name awe eee area nein a dager 256
notice and application... ........ 0.00. eee eee eee eee ene eens 257
qualification of electors.......... 0.0 cee cence eens 261

to vote for site for town house............ 0. ee cee ee eee eee eee 262

electors in villages, when nob to vote............ 0... c cece eee ee eee 263
relating to highways, separate ballots.............. 0.0 cece eee 263
Canvass! Of Votes ioc. siade se catingiesn thew Cun oat eed Mis PERS EEE OR OER RE 265
TES ULE TO IDE TOAD... rssce ctu Sue ws igus ieee his Aeaag ig @ SNA SuaE Spee Ried 266
disposition. of ballots xan vant, cadomcedony enw annn er ae we Mabe Ree 266
application of Election Law........... 6. cece ccc cee eee n arenes 266

m election districts, proposition therefor.............. 0. e eee eee eee 266
CANVASS OF VOLES iee.3 2225.26 sressct ade PAG Faveudlane cd dhann pe ane ba be eRe saet 267
vote upon propositions not requiring ballot.......... 0.2.2 eee eeeee 267
Toticeof SUbMISSION. \c0we odin cate eh ard iw Wa Lae ears SR ew ee 267, 268

at time of general election, how conducted............. 0.00 cece ee eee 269
CANVASS: Of ‘VOLES asiasd hs tew es ese Lit anMeens thesis Gad eeeee vowed 269
DAL TE O tise 2 dabensia\ suaslensousaiceee wuncodenp ace uencuahinaytzann aig ond dees datos Cpanisane aide ane Soaps 270
DahOt bOX|B: ayo cicadas cee etew an ae Pea HO EE OSes ale Be 271
election. expenses cigs da rgshencwumiss ge Sunes gk REY PT im Sy ame ge ae 272
filing certificates of nominations.............. 0.00... c cee eee eae 273
PATS OE ce nsg: pints ais Spies word arce Gonna tcanes: dente Mrnye eee aD ge tae BOGA . 274

form of ballots for questions submitted................ 0.00 eee eee 275
number Of ballots:.: wcnvshesa et dconede ches oxen iwer aunad demal seed as 276
officers: providing: ballots occ gacs cassie hawt nie baa aerones eee eae 277
sample ballots; public inspection........... 0... cece eee ee ee eee 278
voting machines, use of.............. Bigs Raut dient. g Ritts a Ris ae ees w AM aN OS 278
TOWN, OMCETS CLECLEM AE si sci-g sie isvavra ae dctvane 9 44.duewsrd a save Slaile om sal Ganblalin wal aue eve bye 281
vacancies to be filled..... 2... cece eee e cece reece nsec sccess 282
may vote money for town house.......-....e ses eee cece eee c erect eeeees 359
for maintenance of lock-up............ 0.0 c cece cece ee cee eee eee 361
trustees of town burial grounds............ 0... 0. cesta 362
minutes, town clerk to transcribe.......... 0... eee ec eee eee ee ee eee 336

Town Moneys—
investigation into expenditure............... ec cece cee eee eee eee 1043

Town Officers—

elected at biennial town meetings............ 0.0... cece cece eee neces 281
when held at time of general election................... 00.0 c cece 281
term of offiee.... 66... ee eet ete 282
effect of change of time of holding town meeting.................... 283
extension, by act of legislature.............. 0.000 c cece cece 283
holding over after expiration................. 000... e cece eee 284
eligibility 6 ag owes Hoi pew yep ae eee Bas BEM Jaa GRRE? ae eee 299
Qualifications s s.0 wed essaceied var tees aNa yee eee se eietat econ. ew ieee be 301
athe Of ‘OfGOscsecgo8o5s wee ee OY me Ne eae EES RN be Beadle nanlaneewes 301
MOT T1335. Saint Sen cH Gosia 5 ke Bb aleve ab dh fh NOAA hae BULA hctevaaNs ee seas 302
effect of failure or neglect to take........ 0... eee eee 303
filing, deerned acceptance of office..................0....0 000.000, 303

who may administer Seed Die WD Bea SE SEs Adee bei datas 3.9.4 Seawee 6 pineal = 303
INDEX. 1353

Town Officers—Continued. Page.
undertaking, form and liability thereon (see titles of respective town
OMGETS 5 gq, wtero six Sale Sash ee sucauned awe. n wtdomageu guidua ce eemaew Deane 311, 312
expense of, a charge against town................ PUPA SiGe sveddyics Rasnaascs 313
not to perform duties until given........... 0.0. 313
TOBIN ALON, fe tei: srs mere niaine mek MEANT eanddcie. Sanetanw «hinds God amine aceon Beedle o 315
TVOULGE OL ba aial ae ts esi ttincsi sve ate heiv asda nse Gocaptctecsven Sls ectald gee ht oo tnpomescne wkercee 315
removal, application to appellate division................0....00. cee 315
TOE CO: ie, ‘et atstana periodateye lantern eqn mae teeters 3 cutis Suuatgaaca ecko Seen 315
vacancies, how created......... 2c ecccc cc ec cece cece ce eeacecaguneneees 316
by neglect to file official oath....... 0.0.0... cee ccc cece eevee 317
SPPOMEMIETICS HO AL aac x everson co uraninargeatendotepens alousewinek oh ARAB a ois so end Saksass 318
election: fo TN ac we egerss-neatee say Rie ow ROUTE LkBoine-d daiboinwnaiengee an sieare 282
omissions to transmit returns or certificates, county clerk to report...... 318
town clerk to certify names of, to county clerk.................. 0.000% 336
COMP CMSALLO Myo spesce dished as vhacap dons syenvonpccetunes Sulake agenda ahem wegen eae 352
supervisors, board of, may fix by resolution.....................04 352
in certain towns............ eh gaR nae ALN Mas bona dh hieasie dima eet 354
per diem: allowance ..ceaee dees sue camer enue roma edeuees 352, 356a
payment of salaries monthly......... SR RAR) ome Roti lane Gecaisuavers 256b
expenditures of surplus MONEYS ........ cece cece eee c ee eee eee eee 356b
delivery of books and papers to SUCCESSOYS......... cee cece eee cece eens 357a
liability for loss of school MONeYS........ eee cece eee eee rece eeeneeee 1025
clerks, stenographers and assistants in certain townS...........seeeee - 3858
investigation into expenditure of town money8............0.0 eee e eens 1044
nature and object of proceedings.............. esses sence ene e ees 1044
action to prevent illepal actds cia sc cies sient e cede eee e eines tenes 1045
OD JOCH GE SEA CULE a pesicssie:esieianevan ys avesersuaee syinteusvers: Bal wows myalgia: $s anions Tsha cna 1047
When MAINCAINED, sicsccqawewresiearntrs ese eneies acne sabia ogee ShesiaNspiniederticss 1049
to restrain award of contracts...... 0... cece cece eee ee eens 1051
audit of illegal claint. : scpocvssanes sagen sstasces weeny daseennes 1052
COL PREVENT WASH Ciaran csitce b stvennars: euiaive a sieas icsendocusdecebetsusinaiuseows easeietabes 1048
by and against, in official capacities.................00020055 .... 1056
for malfeasance in executing town bonds.................. 00s eeee 1053
acting without having qualified............ ty Gani Hawa aes eeelemD 1082
bribery? iia... vaawes day es AN Rowe eee ERENT ee OETA eee 1082
prevention from performance of duties............0 0... c cece eee cee ee 1083
taking: unla will LESS. c v0 sia wcasa as ieiiuaie Gale ia an mninead Aamenewnn cave ar on manne 1083
illegal acts as to appointments.......... 6... cece ccc cee eens 1084
wrongful intrusion into office... .......cc06s send sew eet eee ve seawe ees 1085
neglect to perform duties.............. 0... c eee eeee sin pugiiee Recess ceasstees ties 1085
misappropriation and falsification of accounts.................. ee ee eee 1085
not to be interested in contracts.......... 0... c cece eee ee eee 1086

Town Superintendent of Highways—See Highways, Town Superintendent

of.

Tramp—
CehHed. nrc coke eawais.s owed Kew eee y ee Ee ewe es SEND Te See a Gee Oe eS 386

Transfer Tax—
collection by county treaSuTer..... 0... ccc cece ete nee e eee eens .. 116
treasurer to give receipt.......... 0... c cece eee eee eens ines owes see 116
Page.

Transfer Tax—Continued.
116

fees for collection............+s5e5 sce w rece eee casero cesccccseseersens

reports to comptroller of amount received.....++s+seceereereersererers 117
Transient Retail Business— a6
license for ......... 00. cee eee eee ence eeee cece ere scence eeasecneeceeers ae
taxation of persons engaged in...... ance nee eecceceenneeressnessereace :
Trees— .
along highways, commissioner may authorize..........--++-- sess errr es 853
to whom belong..........e. cece eee e eee e eee tree eee tees een n es ano
penalty for injuring..........-. see ee eee etree tee e tet s ue
-abatement of highway tax...........c cece eect eee tener en nnee 835
appropriation by town board for shade tree fund......--+-++-s esse eeees 438)
lands planted with, exemption from taxation..........+++-+eeeeeer eres 488
CUStODY 61. eee e eee ec e eee eee eee erect eee e tenn e eee ee en teee ees 836
Trespass—

on town lands, actions for...... ce ceeee eee cece een e cence neneneee eens 396

Trustees—
assessment of personal property held by...cccscccecccccescccccscens 495, 496
assessment of, generally........ccccecceroereesereee slerbeie Soe s ore seraas 528-532
Tuberculosis— ;
cases, report of, to health officer.........0.e.eeees seeneescceccesesee 451

organization and operation of clinics by certain boards of supervisors....  66b

Tuberculosis, County Hospital—

establishment by board of supervisors........ 2... cece cess eee eee eee 216
by vote of people of county............ 0. cece eee eee teens 216
board of supervisors, purchase of site............ 00.000 c eee eee eee 217
erection of; assessment; bonds........... 0.0000 c cece eee ee eenes 217
acceptance of gifts and trusts.............. 0... ccc ccc eee ees 217
condemnation of land............ eee ccc cee cette 217
managers, board of, appointment............... 00. cee eee eee 217
general powers and duties.......... 0... cece cece eee eee e eee e ones 218
employment of county nurses.......... 0... cece c eee eee etna 218
compensation of officers and employees, supervisors’ duties.............. 54
superintendent, appointment ............ 0. e cee eee eee eee 218a
general powers and duties............ 0. ccc cece eee eee 218b
patients, Ad MISSION Gece. use de densgeascegewaaee vetoed yee uiey ee gates 220:
; maintenance, when from same county.......... 0.00.00 ces eeee neces 220
when from another county........ 20... 00.00 cece cee eee ee eeee 221
admission from other counties............. 0.0 .c cece cece eee eee Oot
visitation and inspection......... 0.0.00... cece cece ee cee cence nes 222
establishment at alms-house........00 0... ccc cece cece eee eee ee 222

Turnpike and Plank Road Corporations—

exemption from taxation................ cee c cece c eee cette eens 487
acquisition of property by county................ 0. cece eee eee eee 971
borrowing money therefor; bonds........... 0.0... cece cece eee ee 971
payment of bonds... cceig swan need ee des Saeee HEE tested end 971
roads acquired part of highway system.............-...... ee eeees 972

roads in two or more counties.......... 0... ccc cee cee cee eet eeaee 972
U
Ulster County— PAGE,
fess Oh Certain: OMChis:. ncn ivadadaen en airdareedd Boe eda chee ees 38e
Under-Sheriffs—
duties. Of 6. 68 sa ge debs RE EE AMOS EEG hed he es See ee oe ces 156b
POWOIS: Of eie sareis-2 esis ee cue dora paddle Dd Devas? dame 224 HOR ERS 156b
Undertakers—
board of supervisors in Erie county may contract with.............++-- 650
Undertaking—
of county officers, board of supervisors to sue............. cee eee eee 58
amount of, for county clerk, district attorney and superintendent of poor,
SUPETVISOTS 10 fixe cis sar ae send cw sais eae eS u ei go Neda SA Wee Ve ote 55
of county treasuretien ys. vad eo care ea ied way sane eay enon HER Tes Tee ES 101
of deputy county treasurers. i scacscices en sek ek eee ea wee odes we eee eS 103
of county clerk; amount; approval............ 0... cece cece ee eee 126
of county officers, generally... ... cece cece eee eee tee eee enes riche 22M
of town officers generally (see titles of respective town officers) ......... 311
conditions generally of official....... adoro sianerdee etiane Sale wrested dices oleate 312
form and manner of executing; justification................eeeee sees 312
liabilities of ‘sureties. co.cc csiae sc des eee cee oe eee Coe iewe wea easy 318
expense of, a charge against town or county..........eeeeeeeeeee eee 313
officers not to perform duties until given........... sees cece eee eens els
validation of official acts before executing..............--+05 ie) DER 314
penalties of certain bonds... ..ecesseccescceereerercs Goes Rares hed reese 1010
United States Deposit Fund—
Wait: CONSEILULES: cai cite ees ca eee ae Gee eu ee eae ae EG 206
loan commissioners, office abolished...............00 cc cece cece teenies 211
comptroller to have charge Of..5.:.0¢ cess hse0es Pee eae dea. de eee eeas 206
discharge and cancellation of mortgages.............. 000. c eee ee ee eee es 207
DOTS 1 rzm, tote Nios eens) eravielacale. gy thereat A ohh a RS alsdediien en hinaes ike Gunes 207
bOoKksand TECOPAS yess aca gins Wri age eA Ande See lh HAAS Renae 207
supervision of existing mortgages by comptro‘ler....................06, 207
comptroller to receive principal and interest................ 0.0006. 207
investment by comptroller............ 0... cece cee eee 208
release of part of mortgaged premises................. 00.0 cece eee eee 208
eomptroller to maintain actions......................0.00000 Sayan 209
foreclosure; redemption +: accsccsedudeueek yas Gee dtasediesyawe tee wees 209
disposition of surplus moneys............ 00000 c cece eee 209
supervision of mortgaged lands............ 60. cece cece eee 210
comptroller to audit accounts.......... 0.6. cece eee 210
Office: @bOlIshed: 4.4 09 gure Nganedg esa gees wR cha Ae de aw gute s 211
certified copy of mortgage...... 6. cece cece eee eee 211
Upon Its Borders—
definition ... ...... esaeea ee EheG rea RaN SRE Rs ea OKA eS 990
Vv
Vacancies—
in office of county treasurer; governor to fill..................00 0. eee 101
county clerk; governor to fill... 2.0.6... cece eee ce ee eee 126

‘in public offices generally, how created..............-... es. eee eee 316
13856 INDEX.

Vacancies—Continued.

for refusal to file oath or undertaking. ......... 0. cece eee eens
in. tows: offices, how Milled sy. esis c45 dais ens deiee gaa a cas waa gee Ree
in office.of supervisor ss csgici tess ca censveacs ey gee ees Be Pees aGaae dees

Vagrants—
defined... ...... saute aa Hake soa Hae sails Rea Meads RN Me eRe ois

Venders—
licenses required; regulations. .......... 20. cece cece cee cee teen eens

Vessels—
exemption from. taxation secs g0d.co.o¢eges tee se OTS ARE See awE aw

Village Elections—
legalization of informal acts of......... 0. cece cece eee ee cena

Villages—
effect of incorporation within limits of fire district.................0..
INCORPOLAT ION OF 355 ces. atialeacsyncetlse code Rb aE IE Ta he RA pa eeogeh ee een
proceedings before superviSOr...... 0.0... 0... cece ec c cee ee
notice. Of hearing ssn ce saigaicn Quis sence deen Sakae s ease Res
proceeding 00 NeATiING sss cece sas caw s seme ee eee ea Hem Sede eo te
decision of supervisor....... owe eG dames sipea ee aoe es eens and ede ae
notice of appeal from decision....... REO Ee eee ee 3
hearing and decision of appeal............eee eee eee Seduajess ase ata oO :
compensation for services of supervisors and town clerks..........
traffic policemen for unincorporated ....... eee eee eee eens Sie Sai a, Sk
jurisdiction of town board of health........... 0. cece eee eee eee eee

Vineyards—
laying out highways through...................04. dheptieieie Spee wale sae

Vital Statistics—

state department to control registration................ 000. c cece eee
registration, districts: «sa jawees ase g ee duds Fee ued edd wee leg Gees Caw:
registrar, health ofG@r: AS). j.5.62 nai cas Wie eT Cena eee
appointment in certain towns............ 0... 000s cce cece ee
still-born children, registration of birth..............00......00..005.
certificates: of deathins 6 sais cn dan sens ee RE SH TS Seed wale d a Sue ead ees
deaths, without medical attention.............0...00.0 0.0. cc eeee cause
DiRths, KemIstratiOm: sy geete.s es bsoe lan Paws be amet Ge weodde aaginn ved oes
Certificates, CONTENTS 9.2. ncawreed naa aes amw gol: shuns REE IRR E es ecg oaks
physicians, midwives and undertakers......................... eee

PAyMent Of COSbie gcegae si vege sage me oe emer we ehgeeeem ee eWay aande es
number of voters in election district..............000...0000.0....000-.

385

405

483

921

278
278
279
279
INDEX. 1257
WwW
Warrant— Pag.
of collector for collection of taxes aisieW a Sele CMEW Os arsenate saan. (OOS
Water—
purification ............. Se Gubiowne ethene widieeiats Ree Tee ws ower eae wee. 4388

Water and Sewer Commission—
in certain towns, created...... Sis Beate Fase 6 Pha OSS eee Pecsearties soceee 481

Water Supply Districts—
claims against, audit...........

in towns, establishment. . Suagenctouavenaae oa siege sie ieGs ds FretnGvns wen oa BORE . '414¢ as
petition; maps and plans. els Seatac ane 8 by eiernro alavare ys eye se a oichevessh tebe : 418
commissioners, town board to appoint................06. Ree See «o- «©418
construction Of WOrKS........ sees eee cece e cette cen e ees Sep oerrers 419
issue and sale of town bondS.........scseeesecerevcvesees Shaved ceusecra» ALO:
acquisition of rights of water works company Sd fave Sueeae Sessa eaaryaametd Be . 419
refunding indebtedness...............- oiese ae eieye 4&5 Ridin tO: begin e 2a wes ain -- 420
assessment of cost On PYOperty....... eee cece cece cece eee eeuenseeeeee 421
Control of Water WOTIS.. ¢ cscieiig 5 sake yates aielsfets oe gee nee Sees ee nees sh » 421
enlarging districts s <isjacs-o's nae vies isinelana iewia veut ne serie ek eee See ame A - 423
use of water outside of district....... 2... ccc cece cece cece eeeteeees «. 423
enlargement and extension......... cece cece cere cece eet eeeeeeenes wee 424
joint, town boards may establish.............c cece ee ee cece eens eeeas 424
PeLITION ANd “MAP so sesxce oie end tensrens dodvavann a. Savane, Gob shanes-cAieuseo-o wconeaee' » 425
contract for water supply........ 2. cece eee c cece tee eeneceeenees 425a
TOVy OL tAXCS ac eedid's, acsicd Greve nee waite oak wie eb ears anes ehahaye'ase -» 425a
Watering Trough—
abatement of highway tax... scess sss cca paee ee eew ba sees beens vee 836
Water Works Corporation—
contracts with town ............... Sa Ghat rad Se ears ee Se acieue reopens -.-. 414d
town, May .<ACGUITE: “WOTKS, vic oie d eve cierg 6 cc mute gence eb Fae gee a ase 415
submission Of PYrOpOSition.... 0... cece cece cere eee ence cece eee eees 415
purchase? asstie Of DOWVdS. nis scoiiieesacisie and eee bas Sate gece a ease 416
consent of stockholders. ........cccsccrccrscccececececretereeees 417
town: board to control ssi. oie sis aoieses seen eg aemeea Meee i ewe eet . 417
water district may acquire rights of......... Porter Tree Cree eer . #19
Weeds, Noxious—
bounties for destruction of, a county charge................. ation venous 43
board of supervisors may make regulations as to destruction of...... a 56
town meeting to provide for destruction..........0 cece cece eee ee eeeenee 249
destruction by town superintendent of highways.................--- -. 819
in highways, owners to cut.......... Wee eA STORE SG ieee 84 Mime NSS Mee 827
NOLICE tO OWES sais «esis ve seu doe VES AMR Te Tha PER ROSA ee ea 827
duty of town superintendents as to.........e.eeeeeeeee ect asieaienet 36 - 828
Weights and Measures—
duties of commissioner of farms and markets in relation to........... -. 1088
copies) of ‘standards: ssiie iv esincen piiee as cned oe es bee de Metals aoe Sas ee -.- 1089
county sealer, appointment; duty of of supervisors.................-- - 1090
séaling" of approved ssaasci ea svis a ease as Gos ws esa 00 vais ee steed oe oes «+ 1090a
false ....... aise 5: lites d soy aria ehibveriiona co euaneveue Bib id eau Cas aotah oS ponies Naseer - 1090a
container; definition.......... si bia Wibraace Sibesieze Eeadia bra ci ardiece plain ceeeeee 10908
condemnation and seizure of false... ....e cece ence eee cere tec eens . 1090a
method of sale of certain commodities.........cc see e cence eect eee eee 1090a
net contents of containers to be indicated on outside............... 1090-b-ce-d
OX CE PULOUS:. $id-5 sasersce ce aviys, sue evasteuel ner oiene. ¢ mGraus ea snann asta aehe whan ie a eles 1090-b-e
guaranty furnished by wholesaler, jobber or manufacturer..... Regie G 1090-b-c-d
1858 INDEX.

White Pine Blister Rust— Pace.
appropriation by town board for control Of.........esee eee ee reece 398
Widening Highways—
narrowed by stream or Tiver.......eee eee e eet e eee eee nent eee ee ences 936
Wide Tire—
board of supervisors may regulate US€....... cee ee eee eer eee tenes 990
Wire Fence—
purchase, to prevent snow blockade. ........e eee eee e cere cece ce eeeens 829
Witnesses—
examination by board of supcrvisOTs.......seeee eee e eter e eee eeee 22
subpena, how issued.............ee0ee- Waviagee taGiew ew yaks ke we 22
administering oath ....... ccc ccc cece cere eee teem meee e eer eenenee 22
powers of committees of board. ........ cece cece cece reece eee eeee 23
adjournment, discharge, when arrested....... 0... cece eee ee en enee 23
undertaking upon discharge ......... ee cece eee eee eee e eter eeee 23
fees of, criminal cases, a county charge........ see e cece cence rece eeeee 41
traveling fees, for subpenaing ........ ee cee cece ee eee erence ee ee eee » 3891
Woodlot—
lands maintained, exemption from taxation......... a Giese eae s Versace 488D
Work Houses—
board of supervisors may establish and maintain...............0.eeeee 184

(Total number of pages, 1602.)