Opinion
June 27, 1906.
Henry D. Merchant and Rollin B. Sanford, for the relator.
J.M. Maybee [ George H. Carpenter of counsel], for the respondents.
It is clear that the commissioner and town board had no right to enter into the contract for these new bridges under section 10 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1895, chap. 606, and Laws of 1899, chap. 84), the old bridges not having been destroyed or damaged except by natural wear. ( Livingston v. Stafford, 99 App. Div. 108.) The relator contends, however, that the respondents are estopped from denying liability. The affirmative rests upon it to establish facts constituting such estoppel. There is an absence of all the necessary elements of an estoppel. The town never received or used the relator's property. The contract does not recite any facts bringing it within section 10 of the Highway Law, and does not by its terms purport to be authorized by that law. It does not recite any determination by the town board or the commissioner that any such facts existed. No such determination was made.
The relator does not allege that it believes such were the facts or that it was misled as to the facts existing, or that it was ignorant of the exact situation. It may fairly be presumed that before the relator undertook to erect these bridges at these different places along this brook it caused the sites to be inspected, and knew the physical situation there existing. This is somewhat confirmed by the provision of the contract giving it the right to use the old bridges. We may, therefore, assume it knew the old bridges had not been destroyed by the elements or any emergency, and that it knew their actual condition. The meeting at which the bid of the relator was accepted was called to get prices for iron bridge stringers wanted on Sprague Brook road. The commissioner gave the dimensions of the stringers required and the board adjourned until afternoon, and then bids were received from five bridge companies for building these new bridges, not for new stringers for the old bridges, and the relator's bid was accepted. It may be assumed that the relator knew the object for which the meeting was called, and the authority of the commissioners and the condition of the old bridges. It was chargeable with knowledge that the officials with whom it acted had no authority to bind the town. Apparently it took its chances on the delivery being accepted and paid for. By notice the town board challenged the legality of the contract as not authorized by section 10 of the Highway Law. The relator did not respond to this challenge by showing any authority for the contract or any facts constituting an estoppel. It is unnecessary to consider the other points relied upon by the respondents. The writ should be dismissed, with fifty dollars costs and disbursements, to be paid by the relator.
All concurred.
Writ of certiorari dismissed, with fifty dollars costs and disbursements.