Opinion
January 25, 1907.
Nathan P. Bushnell, for the relator.
John M. Digney, for the respondent.
The relator alleges that he was retained by a resolution of the board of supervisors passed on September 12, 1904, as follows: "Whereas, at a session of this Board held August 3, 1903, Harrison T. Slosson was directed to represent Westchester County in presenting claims against the City of New York in the matter of county bridges, and, Whereas, the question of damages will arise as to change of highways in the Croton watershed by New York City, Resolved, that Harrison T. Slosson be and is hereby directed and appointed to appear for the County of Westchester in all questions involved with the City of New York in the substitution or building of highways by the City of New York;" that he rendered services from August 3, 1903, until June 13, 1905; that he submitted a claim therefor to that board which was audited and paid; that thereafter he rendered services from June 23, 1905, to November 3, 1905, for which the present claim was presented. As first presented, the claim was for "professional services * * * in the matter of substituted highways built by the City of New York." At the request of a committee of the board the claim was thereafter itemized. The return alleges that none of the services was rendered for or on behalf of the said county of Westchester; that the roads or highways referred to in the bill in connection with which the services charged were alleged to be rendered are owned by the towns in which they are located and are under the exclusive control of said towns as provided by the Highway Law and Town Law of the State; that none is a State road or a road created or improved under chapter 115 of the Laws of 1898 or chapter 240 of the Laws of 1901; that none of the services set forth was rendered in any action or proceeding brought by or against the respondent, and that none of the interviews or correspondence set forth was had with the respondent or any person authorized to represent it. The proceedings returned are that the committee of the respondent to which the claim was referred reported for disallowance on the ground that it did not present a legal charge against the county of Westchester and that the report was adopted by the respondent.
While it is true that the return is conclusive and must be accepted as true ( People ex rel. Lester v. Eno, 176 N.Y. 513), that rule does not preclude an examination of the legal conclusions that the services were not rendered to the county, and that the claim was not a legal charge against it. At the outset it must be kept in mind that the board derives all of its powers from the Legislature, and that its exercise of authority must be confined to the powers vested in it by law ( Kingsley v. Bowman, 33 App. Div. 1); that "the board of supervisors is not the county," but "an aggregate of certain town officers which for certain specified purposes is the representative of the county," and that they are "subordinate public agents." ( Board of Supervisors v. Ellis, 59 N.Y. 620.) Its resolves, therefore, cannot make a county charge of that which is not one. A county cannot incur indebtedness except for county purposes. (State Const. art. 8, § 10.)
The bill, as I have said, is for "professional services * * * in the matter of substituted highways built by the City of New York." This refers to the proceedings authorized by chapter 490 of the Laws of 1883, as amended, and especially by chapter 196 of the Laws of 1887, whereby the city of New York was empowered to increase its water supply. This act is expressly continued by section 518 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1899, chap. 313, and Laws of 1901, chap. 466). Section 24 of the said statute of 1883, as amended by the said statute of 1887, permits the city to acquire and to substitute lands for highway purposes for lands within existing highways which are taken by it for the purposes of the act. The expense, loss or damage must be borne by the city. The approval of the highway substituted by the aqueduct commissioners rests with the Supreme Court, and the commissioners of appraisal must include in their compensation awarded the expense of making such change of location. Section 23 of the original act provides that in case the real estate shall be owned, occupied or enjoyed by the People of the State, or any county, town or school district, such rights, titles, interests or properties may be paid for upon agreement respectively with the Commissioners of the Land Office, who shall act for the People of the State, and with a chairman and a majority in numbers of the board of supervisors acting for the county, and with the supervisor and commissioners of highways of any town who shall act for such town, and with the trustees who shall act for the school district. I fail to find any reference or requirement in this statute which indicates that the county necessarily has such an interest in this matter of substituted roads as would require or justify the retainer of counsel for the county. The learned counsel for the relator has attempted to meet this situation by contention that the original resolution of retainer was to present claims against the city of New York for county bridges, which involved a county interest, and that the employment never ceased, but was only thereafter increased in its scope. It is true that the matter of these bridges was a county interest perforce, however, of express provision of statutes in terms applicable to the county of Westchester (Laws of 1851, chap. 218; Highway Law [Laws of 1890, chap. 568], § 130, as amd. by Laws of 1902, chap. 321) But whether this employment as to county bridges did or did not cease is not material, for the reason that none of the services as detailed in this second bill when itemized relates in any way to county bridges. If under an employment to attend to county bridges, the relator saw fit at a later time to render other services about a different matter wherein the county was not concerned, the mere fact of such rendition and a fortiori without the authority, request, knowledge or ratification of the county or its agents, does not increase the scope of the original employment by the county or its agents so as to make the county liable under the original retainer. The services were not required perforce of any general power of the county over highways, for the return is that there were highways within the charge and control of the town under the Highway Law and Town Law of the State, and the common-law rule that the care and repair of roads is in the county does not obtain in this State. ( Markey v. County of Queens, 154 N.Y. 682.) The county as such has no peculiar interest in property in such highways for generally they are held in trust by the State for the benefit of the public and are controlled through local authorities. ( Matter of Rochester Electric R. Co., 123 N.Y. 359.) They are not the property of the county or the town ( People ex rel. Van Keuren v. Town Auditors, 74 N.Y. 315), and the right of the public is but that of an easement. ( Paige v. Schenectady R. Co., 178 N.Y. 102; Washington Cemetery v. P.P. C.I.R.R. Co., 68 id. 595.) With reference to the proceedings under the statutes of 1883 and 1887 ( supra), no duty is inferentially cast upon the county. The substituted roads are determined by the commissioners under the eye of the court. The cost thereof is defrayed by the city. It is not provided to whom the award for such expense is to be paid. Practically, however, there is indication that it was paid to the town authorities, for an item in the relator's bill is "Aug. 9. Interview with Mr. Beaudrias here in office forwarding vouchers for city moneys to proper officials in towns of New Castle, Yorktown and Cortlandt for proper signature." The board of supervisors has no power to retain counsel to look to town matters. ( Adee v. Arnow, 91 Hun, 329.)
While this particular scheme of these statutes may not be controlled positively by the provisions of the general statutes in respect to the receipt and the holding of the moneys to be applied to the new roads, yet it is significant that the Highway Law provides that the highway commissioners shall expend all moneys raised and collected from the town at large for highway purposes, and that all moneys collected for the repair and construction of highways in any town under the money system of taxation, and all moneys received from the State as provided by law under that system are to be paid to the supervisor of the town. (Highway Law, § 4, subd. 7; Id., § 53, as amd. by Laws of 1904, chap. 478.) Section 98 of the Highway Law provides: "The final determination of commissioners appointed by any court, relating to the laying out, altering or discontinuing a highway * * * shall be carried out by the commissioners of highways of the town." This seems to be a case where, under an original retainer which may have been justified as for a county purpose (the bridges), the relator rendered services for which he was fully compensated by the county, and thereafter proceeded in certain other and different matters growing out of the same public improvement in which the county had not such concern as justified its representatives in retaining counsel. The audit of the former bill by a preceding board had no significance both for the reason that the services may have been rendered in the matter of the bridges and that in any event the doctrine of estoppel does not obtain as against this board by reason of such action. ( People ex rel. Sweet v. Board of Supervisors, 101 App. Div. 327; Dillon Mun. Corp. [4th ed.] §§ 457, 936; Moore v. Mayor, 73 N.Y. 238.
It is not contended that this respondent ever in any way authorized, accepted or ratified such services or was ever apprised that the relator was performing them under assertion of the retainer or authority of the county or any of its officers, or, indeed, performing them at all.
The determination is confirmed, with costs.
HIRSCHBERG, P.J., RICH and MILLER, JJ., concurred.
Determination confirmed, with costs.