Donnelly v. Town of Ossining

25 N.Y. Sup. Ct. 352

• Court: New York Supreme Court
• Decided: July 15, 1879
• Status: Published

Opinion

Barnard, P. J.:

The town of Ossining was under no obligation to build the bridge in question in the absence of legislative enactment. Neither the common law of the highway acts impose this duty upon a town. (Barker v. Loomis, 6 Hill, 463; Morey v. The Town of Newfane, 8 Barb., 645.) A contract to build abridge was not, therefore, a contract “ necessary to the exercise of its corporate or administrative powers.” (1 R. S., 337, § 1, sub. 3.) A town has no power beyond those given by the Revised Statutes, or by law, or necessary to the exercise of the power given by law. (1 R. S., 337, § 2.)

While, therefore, the complaint is faultless in form and avers a, contract made between the plaintiff and the town “ by their undersigned committee duly authorized,” the averment must be construed with reference to the laws governing the contracts of towns. No suggestion is made in the complaint that the contract was exe-cutecl under power given by an act of the Legislature. Without such an act, the contract mentioned in the complaint could not bind the town.

Judgment affirmed, with costs.

Present — BarNard, P. J., and Gilbert, J.; Dykmast, J., not sitting.

Order sustaining demurrer affirmed, with costs.