App. Div.]

FIRST DEPARTMENT, JUNE TERM, 1903.

its alleged agents, the "Water Commissioners of the Water District of Blue Mountain Lake" for the construction of a water system in said town. The damages claimed are unliquidated. Three causes of action are claimed in the complaint, although there is, in fact, but one cause of action set forth therein, viz., the breach of the contract which it is claimed the defending town entered into and damages resulting therefrom.

A demurrer was interposed to the complaint and to each cause of action therein set forth, on the ground that it does not state facts sufficient to constitute a cause of action. At the Trial Term such demurrer was overruled and judgment thereon entered against the defendant, and from such judgment this appeal is taken.

In Colby v. Town of Day (75 App. Div. 211) this court held that an action could not be maintained against a town for an unliquidated claim arising from a breach of a contract; and I am unable to discover any feature in this case which distinguishes it from that one.

Concede that the water commissioners are the officers of the town, and that they might lawfully contract on behalf of the town, yet the breach of such a contract does not give a cause of action against the town upon which the court could render a judgment. The plaintiffs' right to recover in this action against the town, on the facts stated in the complaint, was raised by the demurrer, and, therefore, on the authority of the case above cited, the demurrer should have been sustained and the complaint should have been dismissed.

But further than this, the act under which these water commissioners became officers of the town, if they did become such, to wit, chapter 451 of the Laws of 1900, provides the method by which the money was to be procured to pay the plaintiffs for their work under the contract, and also the part which the town was to take in procuring it. It seems to me that such commissioners had no authority to bind the town to any greater obligation than was imposed upon it by such act. Clearly it was not intended that the town was to raise money for the purpose of meeting semi-monthly payments to the plaintiffs as the work progressed, by taxation or from any source other than by the issuing of the bonds provided for by such act, and I do not understand wherein the commissioners

THIRD DEPARTMENT, JUNE TERM, 1903.

[Vol. 85. obtained any authority to contract for the town that it would do so. They might contract with the plaintiffs, for and on behalf of the town, that it would issue the bonds provided for in the statute, and would, to the best of its ability, negotiate them upon the terms therein required; and that the money obtained from the sale thereof should be applied to paying for their work; and they might further agree that, if so obtained, they should be paid every two weeks at the rate provided for in the contract before us, but they had no authority to bind the town to an absolute payment at the times and in the amounts therein specified. I know of no general law that would authorize any of its officers to make such a contract for it, and I can discover nothing in the act in question which gave them such authority.

The complaint proceeds upon the theory that the town was liable to perform the contract which the commissioners made. That contract was much broader than they had authority to make. Hence an averment that it has not been performed by the town does not show a cause of action against the town. As made by the commissioners, the town was under no obligation to perform it.

If the complaint had alleged that the town refused to issue and negotiate the bonds, or that having sold them and collected the money thereon, it had refused to apply it to the payment of the amount due on their contract, as by its terms it had through its officers agreed to do, then it might be considered that it had broken a contract that the commissioners were authorized to make for it. But no such action on its part is averred, nor is there any statement or suggestion in the complaint as to why the payments were not made. For aught that appears the town may have issued the bonds and diligently attempted to sell them, and may not have been able to do so under the terms imposed by the statute. For this reason it may have been unable to raise the money, and, therefore, the payments were not made. If such were the facts the town had fully performed its obligation under the statute, and the commissioners could not contract that it would do more.

Therefore it is apparent that the facts stated in the complaint do not show that the town has neglected to perform any contract for which it is liable, or that it has not fully performed every obligation imposed upon it by the statute.

App. Div.]

THIRD DEPARTMENT, JUNE TERM, 1903.

For this further reason the demurrer should have been sustained, and the plaintiffs should have been allowed to amend their complaint. But, inasmuch as in no event could an action be maintained against the town, the complaint should be dismissed, with costs.

All concurred; SMITH, J., in result.

Judgment reversed, with costs, and complaint dismissed, with

costs.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM N. COURTNEY, Respondent, v. GEORGE UNGER and Others, Acting Board of Inspectors and Canvassers of the Town of Arietta, Hamilton County, N. Y., and OSCAR L. HOWLAND, Town Clerk of said Town of Arietta, Appellants. (No. 1.)

Mandamus - an order to show cause requiring the production of a ballot before the court, and its examination by the court, without objection made. it presents only a question of law — failure to produce the ballot on appeal from an order directing that the ballot be counted.

An order to show cause why a peremptory writ of mandamus should not be granted, requiring a board of town canvassers to count a ballot which they had rejected as void, contained a clause directing the ballot box to be produced before the court at which the order to show cause was returnable. Upon the return day the justice opened the ballot box and examined the ballots, and thereupon made an order directing the board of canvassers to reconvene and count the ballot in question.

No motion was made to strike out the clause contained in the order to show cause directing the ballot box to be produced before the Special Term, nor was any objection made upon the argument of the motion to the action of the judge in inspecting the ballot.

Upon an appeal from the order directing the ballot to be counted, it was Held, that, as the ballot in question was before the court at Special Term, all questions of fact upon the affidavits as to what was the form of the ballot were immaterial and did not raise an issue requiring the granting of an alternative writ, the only question being one of law as to what were the rights of the parties in regard to the ballot before the court;

That, as the ballot in question or a copy thereof had not been produced before the Appellate Division, that court was powerless to determine whether or not the judge at Special Term properly decided that the ballot was valid, and that the appeal should, for this reason, be dismissed.

PARKER, P. J., dissented.

THIRD DEPARTMENT, JUNE TERM, 1903.

[Vol. 85. APPEAL by the defendants, George Unger and others, acting board of inspectors and canvassers of the town of Arietta, Hamilton county, N. Y., and another, from so much of an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Hamilton on the 9th day of April, 1901, as directs that a peremptory writ of mandamus issue to compel the said board of inspectors and canvassers to recount the votes cast at a certain election and upon such recount to recount the votes upon an original count.

Eugene D. Scribner, for the appellants.

Frank L. Anderson and Andrew J. Nellis, for the respondent. SMITH, J.:

Upon the canvass of the votes cast at a town meeting in the town of Arietta on March 19, 1901, the board of canvassers rejected one vote as being void, and indorsed the same "Marked for identification." This application was made for a peremptory writ of mandamus compelling the board to count the said ballot. In the order to show cause why the peremptory writ should not be granted, the justice granting the same directed the ballot box to be presented to the court at which the said order was returnable. Upon the return of the order the justice opened the ballot box and examined the ballots, and thereupon made the order directing the board to reconvene and count the said ballot. From this order this appeal is taken.

The power of the judge at Special Term, upon the hearing of this motion, to open the ballot box and inspect the ballots cannot here be challenged. The order directing that the ballot box be produced for opening having been included in the order to show cause, and no motion having been made to strike this provision therefrom, the question is not here for review. Nor does it appear that upon the argument of the motion any objection was made that the judge at Special Term make inspection of the ballot.

The ballot then being before the court all questions of fact upon the affidavits as to what was the form of the ballot are immaterial and do not raise an issue which requires the granting of an alternative writ. The question then was a question of law, as to what

App. Div.]

THIRD DEPARTMENT, JUNE TERM, 1903.

were the rights of the parties upon the ballot which was before the court. If this question had been improperly decided by the learned judge at Special Term, this court would have the power, upon this appeal, to review his decision; but we are confronted with the difficulty that the ballot has not been produced before us, nor have we any copy thereof from which we can determine whether or not the judge properly decided that this ballot was valid. If we assume for the argument that a ballot so marked as to be void should not be counted, although indorsed "Marked for identification," we are required upon this appeal to assume in support of the order appealed from that the ballot was not so marked as to be void in the absence of the ballot itself or of a copy thereof. As we are unable then from the lack of a proper record to consider this appeal upon its merits, the appeal itself should be dismissed, with ten dollars costs and disbursements.

All concurred, except PARKER, P. J., dissenting.

Appeal dismissed, with ten dollars costs and disbursements.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM N. COURTNEY, Respondent, v. GEORGE UNGER and Others, Acting Board of Inspectors and Canvassers of the Town of Arietta, Hamilton County, N. Y., and OSCAR L. HOWLAND, Town Clerk of said Town of Arietta, Appellants. (No. 2.)

Mandamus — where, after a board of canvassers has been directed to count a ballot, an opposing candidate obtains an alternative writ directing that it reject the ballot, the board is not entitled to appeal from an order setting aside such alternative writ.

In a proceeding instituted on the relation of one William N. Courtney, a peremptory writ of mandamus was issued directing the board of canvassers of the town to reconvene and count as valid a ballot which they had previously rejected as void. After the board of canvassers had obeyed the command of the writ, one Foote, who was a candidate for office at the election in question and who had not been made a party to the prior proceeding, instituted a proceeding entitled in the same manner as the previous proceeding to procure a writ of mandamus requiring the board of canvassers to again reconvene and reject the ballot in question. An alternative writ of mandamus was there.