Surdam v. Fuller , 38 N.Y. Sup. Ct. 500 ( 1884 )

Learned, P. J.:

There is a bridge across tbe Hoosick river, crossed by a public highway as a part thereof. The southerly end of the bridge and the highway on the south side of the river are wholly within the town of Hoosick. The northerly end of the bridge and the highway on the northerly side of the river are partly within the town of White Creek and partly within the town of Cambridge; the dividing line passing in or about the center of the bridge.

In 1879 the bridge was out of repairs, and the commissioners of highways of all the towns met and examined it, and concurred that the bridge must be repaired and determined to proceed. There was no agreement as to the proportion of the expense which should be borne by each. But they all supposed that, legally, the town of Hoosiclc was bound to pay half the expense and the towns of Cambridge and White Creek each one-quarter.

In making these repairs the total amount expended was $2,076.81; of which the commissioners of highways for the town of Hoosick paid $1,026.28; the commissioners for White Creek, $550.78; the commissioners for Cambridge, $499.75.

It appears that the commissioners purchased materials from different persons and employed laborers; some of the bills were paid by one commissioner and some by another.

It is now claimed by the town of Hoosick that the expense should be borne equally by the three towns. This action is brought against the commissioner of White Creek to recover the ratable share of the expense. The learned referee held that the money was paid voluntarily, with a full knowledge of the facts, and therefore could not be recovered back. In other respects he seems to have decided with the plaintiff.

We do not think it necessary to inquire whether this general principle that money voluntarily paid cannot be recovered back applies to the case of public officers who pay out the money of the State, or of a county or of a town. As the power of such officers is generally limited by statute, the payment of money contrary to statute might be a misappropriation by which the recipient would get no rights. Bor instance, if a county treasurer should pay jnoney on an illegal claim, we doubt whether the payee could resist a recovery upon the ground that the treasurer paid voluntarily and with knowledge of the facts. (People ex rel. Merritt v. Lawrence, 6 Hill, 244.) The. case of Supervisors v. Briggs (2 Denio, 26) involved other principles.

But it is not necessary to examine that 'point, to which the learned referee briefly alludes, because this is not a case where the principle applies. The payments were to the workmen and to those who furnished materials. Admitting that those payments could not be recovered back, that admission does not decide the question how much these three boards should contribute as between themselves, The principle referred to is that where one person makes a claim against another, and the latter, with knowledge of the facts, pays it, that payment cannot be recovered back. (See 2 Alb. Law Jour., 405, and subsequent articles.) But in the present case the three boards were engaged in a common enterprise. It is evident that it was necessary to build the bridge as a whole. It would be impossible for each board to build a third of it, or any other portion, separately. If one board paid more than its share to laborers or for materials, that was not a payment to the other board, but, as it were, money paid and advanced to its use. If the defendant’s views on this point are correct, then in case one board had paid the whole expense to the laborers and for the materials there would have been no right to be reimbursed for the share properly due from the other boards. We feel quite confident that this principle of voluntary payment does not apply to this case.

Nor is it necessary to say that this was a joint enterprise. It is enough that it was one which necessarily was to be done by united action, and, as the referee finds, was so done; and it was one as to which each board was bound to pay a certain proportion.

We pass then to consider whether the judgment can be sustained upon other grounds.

The referee finds as a matter of fact that when the repairs were completed the commissioners accounted together and had a full and final settlement on the basis aforesaid, viz.: Hoosick paying one-half and each of the other towns one-quarter. And it is insisted that this is conclusive.

It appears that after the repairs had been nearly completed the. commissioners met to see how they stood, and after looking at the. matter Mr. Fuller, the defendant, told the plaintiff to pay him eighteen dollars and thirty cents, and that Mr. Fuller would pay two men in Washington county, and the plaintiff pay the men in .Rensselaer county, and that would make it all right. Plaintiff did so and took his receipt. It appears also that after that time there was another figuring of the matter which brought out a result slightly different.

Now this, at the most, can be taken only for an agreement as to how much each of the three boards had severally paid; and as to that point no dispute arises. It is admitted that they had severally paid to the workmen and to the laborers the amounts they found and agreed upon. Suppose that one of these boards had paid the whole; and that thereupon the three boards had met and ascertained that fact and had said that this was all right; would it be claimed that such action made an account stated so as to deprive the others of their rights ? An account stated is in the nature of an admission of facts, and- it is not the facts which are in dispute in this present case. There is nothing in the way • of estoppel; because there has been no action by the defendant on the strength of the alleged settlement. And we think that there was not such a settlement of a disputed matter as prevents the plaintiffs from asserting any rights they may have.

That the three boards of commissioners, representing their respective towns, should have contributed equally to the repairs, is settled, we suppose, by Lapham v. Rice (55 N. Y., 472); and Beckwith v. Whalen (65 id., 327; S. C., 70 id., 434); unless, as is claimed by the defendant, the law has been changed by chapter 482, Laws of 1875.

The act chapter 225, Laws 1841, was “ an act relating to the joint liability of commissioners of highways.” The act chapter 383, Laws 1857, was an amendatory act simply. The act of 1875, on which the defendant relies, is the general act to confer powers of local legislation on boards of supervisors. Section 1 gives these boards authority to make and administer laws and regulations as follows : Subdivision 4 is “ to apportion, as such board may deem equitable, the expenses of the construction of any public bridge, * * and in all cases such counties shall each pay not less than one-sixth. Section 5 is to provide for the case, etc., of a bridge crossing a stream which forms the dividing line of counties and the maintenance of which is, by law, a just charge on such counties or on the towns in which the bridge may be situated, and to apportion the charges, etc.

And here we may notice that chapter 346, Laws 1883, was passed after this bridge was repaired, and this action commenced, and of course does not apply.

Chapter 77, Laws of 1878, amended subdivision 4 above cited, striking out the requirement that the county must pay one-sixth.

Taking then the law as is stated in 1879, when this work was done, we have an authority in the board of supervisors to make a certain apportionment of the expense of constructing such a bridge.. Which board of supervisors would have authority is not quite clear. And we have the further authority in certain cases, under subdivision 5, to apportion the charges for repairs. But suppose that the supervisors have not, either by general law, or by a special resolution (if that be proper), made any apportionment; is there then no law on the subject? We think that, at least in the absence of any action by the supervisors, the old law remains.' The act is permissive and authorizes the supervisors to do certain things. If they do no choose to legislate, the old rules are not changed. This is-especially true when the old law (in this case the Laws of 1841 and 1857 above cited) was a carefully prepared scheme for a special, purpose.

The remaining question is whether this action can be maintained by the commissioners of highways of one town against the commissioners of highways of the other. The defendant insists that the authority given by sections 2 and 3 of the act of 1841, as amended by the act of 1857, to bring an action, applies only to the case of a neglect or refusal to join in making the repairs. This act begins by declaring that the bridge is to be maintained at joint expense without reference to town lines. It then provides that if the commissioners of one town refuse to act the others may enter into joint contracts; “ and said commissioners (of said towns so liable) may be proceeded against jointly for any neglect of dirty in reference to such bridges.” It further provides that if the commissioners of highways of either such towns, after reasonable notice in writing from the commissioners of highways of any other of such towns, shall neglect or refuse to build or repair and such bridge, it shall be lawful for “ the commissioners so giving such notice to make or repair such bridges, and tíren to maintain a suit at law in their official capacity against said commissioners so neglecting or refusing to join in such making or reparing.” In such action there is to be a recovery for the amount which the town would be liable, to contribute.

Now the defendant insists that this provision of the statute is to be limited' to a case where the board of commissioners refuses to consent to build or refuses to build; that in this case the defendant did not refuse. But that is a very narrow construction. Suppose a board of commissioners say, we consent to build, and then do nothing. Can they thus escape liability ? The statute says that they must not only consent, but within a reasonable time thereafter must “ do the same that is, must repair.

Now the object of the notice is to give the commissioners an opportunity to act. In the present case they had actual notice and they met. Then the question must be whether their failure to pay their proper share is a neglect within a reasonable time to repair. The statute contemplates something which is to be done within a reasonable time after consent. Has the defendant then repaired the bridge as he was bound to do ? Suppose he had bought one stick of timber and put it in the bridge, could he say, I have not refused to repair ? This would be absurd. He is to do that which the law imposes on him, viz., (as we have seen) in this case, one-third. And the object of the statute is to enable the commissioners who do the work to recover the ratable portion of the commissioners who do not. To the extent to which the commissioner has not paid his proper share, he has neglected to join in the repair. This is the reasonable, and we think the proper construction of the statute; and it coincides with the view taken in Lapham v. Rice (ut supra).

The defendant insists that the action should have been brought by the supervisor of Hoosick. That argument depends on the point just discussed. If we are correct in thinking that an action, under the circumstances of this case, is authorized by the statute above cited, then the defendant is wrong on this last position, because the statutes expressly authorize an action in this form.

The judgment should be reversed, new trial granted, referee discharged, costs to abide event.

Same v. Cornell, as Commissioner, etc.

This case is similar to the preceding, and is disposed of in the same manner.