Bell v. Town of Esopus

49 Barb. 506, 1867 N.Y. App. Div. LEXIS 92

Opinion

By the Court, Ingalls, J.

In my judgment there is an insurmountable obstable in the way of a recovery by the plaintiffs in this action, which is that the action cannot be maintained against the town of Esopus to recover the money in question. Neither the statutes of 1853 or 1854 provide a remedy by action against the town ; and the current of judicial determination in this state has been nearly, if not wholly, unbroken against the maintainance of such an action. It rests upon principle ; for to allow actions of this nature to be prosecuted to recover claims arising upon contract, against towns or counties, would create endless litigation. Certainly there is no serious hardship in adhering to a rule so well established and so wise in itself. Parties who contract to render services for either town or county do it with a knowledge that their remedy to procure payment is through the action of the board of supervisors. Where such body neglect or refuse to discharge a duty fairly imposed by law, performance may be compelled by mandamus. (Brady v. Supervisors of New York, 2 Sandf. 460; affirmed by Court of Appeals, 10 N. Y. Rep. 260. The People v. Supervisors of Ulster County, 3 Barb. 332. The. People v. Edmonds, 15 id. 529. The People v. Supervisors of Livingston Co., 43 id. 298. The People v. Supervisors of New York, 32 N. Y. Rep. 473. Martin v. Supervisors of Greene Co., 29 N. Y. Rep. 645.)

If we are correct in this position it is conclusive in this case, and renders the examination- of the other questions raised upon the trial unnecessary. A new trial must be denied, with costs.

[Albany General Term, May 6, 1867.

Peckham, Ingalls and Hogeboom, Justices.]