Parker, J.
Assuming but not deciding the existence of a liability on the part of the towns of Iloosick, Cambridge and White Creek, to maintain the bridge in question, and that because of such liability the statute imposed upon each of said towns the duty and obligation of bearing one-tliird of the expense thereof, we are nevertheless of the opinion that plaintiff cannot prevail in this action.
The recovery sought to be upheld, is not for moneys paid to the defendant, but for moneys paid by the plaintiff to other parties in excess of the sum he was legally bound to pay. Each commissioner was legally obligated to pay one-third of the expense of the repairs. They however did not so interpret the statute. According to their understanding of their respective obligations the duty of Iloosick’s commissioner was to pay one-lialf, and the commissioners of each of the other towns one-fourth. What they understood to be
their legal duty each of them did. The plaintiff paid out for materials and labor one-half of the total expense. Subsequently they accounted to and with each other and adjusted their accounts on that basis. The board of town auditors of each town audited the accounts of their respective commissioners, and thereafter they were reimbursed from moneys levied and collected from the taxable property of the town. The excessive payment made by the plaintiff was not made at defendant’s request. It was not induced by any fraud or improper conduct on the part of the defendant, but on the contrary, was made with full knowledge of all the facts and circumstances growing out of and connected with the repair of the bridge. The error on the part of the plaintiff was one of law, not of fact. In the words of Judge Bronson in
Silliman
v.
Wing,
(7 Hill, 159,) the plaintiff commissioner “settled for himself a question of law and concluded to pay the whole amount * * * I take the general rule to be well settled that money paid under such circumstances cannot be recovered back.”
Judge Danforth, in
National Bank
v.
Board of Supervisors
(106 N. Y. 488.) states the rule as follows: “Ho person can make himself a creditor of another by voluntarily discharging a duty which belonged to that other; and no obligation can be implied in law from a voluntary payment of the debt of another, without his request, by one who is under no legal liabilty or compulsion to make it.”
This doctrine has been frequently asserted and is well settled.
(Mowatt
v.
Wright,
1 Wend., 355; Vanderbeck
v. Rochester,
46 Hun, 87;
Supervisors of Onondaga Co.
v.
Briggs,
2 Denio, 26;
Doll v. Earle,
65 Barb. 298.)
The rule was applied to a corporation seeking to recover back moneys paid by one of its officers for an illegal tax.
(N. Y.
&
H. R. R. Co.
V.
Marsh,
12 N. Y. 308.)
It was held to apply to a guardian, who under a mistake of law paid out the money of his ward.
(Flower
v. Lance, 59 N. Y. 609.)
Ho reason suggests itself for refusing to apply the doctrine
to a commissioner of highways under the circumstances here disclosed. Plaintiff was not an agent of the town possessing generally authority to disburse its moneys. He did not have the power to represent or affect the town otherwise than in the manner provided by statute. The statute did not confer upon him the authority to burden his town with a greater proportion of the expense of repair than one-tliird. He could not have enforced reimbursement from the town of Hoosick for the excess. When he exceeded the statutory limit the act was individual and not official. Such act subjected him, in respect thereto, to the legal application of the rule relating to voluntary payments. The town could not, and did not, by subsequently reimbursing the plaintiff in the amount expended by him in excess of his authority, alter or effect the legal status of the parties as it existed prior to such reinbursement.
Again, the action is not maintainable because the require- • ments of the statute establishing the precedent condition upon which the liability of a town is created and enforcable has not been complied with. By means of a judgment, declared to be rendered against the defendant commissioners of highways in his official capacity the plaintiff seeks to enforce the payment of a sum of money, claimed to have been expended for the benefit of defendant’s town. In the administration of the highway system, the commissioner of highways is an independent public officer, exercising public power and charged with public duties, specially prescribed by law. While acting in that capacity, by virtue of powers conferred by statute he proceeds independently of any direction on the part of the town. On the other hand, he is without power to represent or affect the rights of the town in any other manner than prescribed by statute.
(People ex rel. v. Board of Supervisors,
93 N. Y. 397.)
Previous to the enactment of chapter 700 of the Laws of 1881, towns were exempt from the burden of any general duty in respect to roads and bridges. Neither were the highway commissioners'cliarged with any duty unless provided with
funds by their towns, or especially commanded and empowered by statute.
(Town of Galen
v.
C. & R. P. R. Co.,
27 Barb. 543.)
The imposition of liability upon towns for the repair of roads and bridges in any other maimer than provided by statute, is contrary to the settled policy of the law, and not permissible.
(People ex rel.
v.
Board of Supervisors, supra.)
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Parker, J.
Assuming but not deciding the existence of a liability on the part of the towns of Iloosick, Cambridge and White Creek, to maintain the bridge in question, and that because of such liability the statute imposed upon each of said towns the duty and obligation of bearing one-tliird of the expense thereof, we are nevertheless of the opinion that plaintiff cannot prevail in this action.
The recovery sought to be upheld, is not for moneys paid to the defendant, but for moneys paid by the plaintiff to other parties in excess of the sum he was legally bound to pay. Each commissioner was legally obligated to pay one-third of the expense of the repairs. They however did not so interpret the statute. According to their understanding of their respective obligations the duty of Iloosick’s commissioner was to pay one-lialf, and the commissioners of each of the other towns one-fourth. What they understood to be
their legal duty each of them did. The plaintiff paid out for materials and labor one-half of the total expense. Subsequently they accounted to and with each other and adjusted their accounts on that basis. The board of town auditors of each town audited the accounts of their respective commissioners, and thereafter they were reimbursed from moneys levied and collected from the taxable property of the town. The excessive payment made by the plaintiff was not made at defendant’s request. It was not induced by any fraud or improper conduct on the part of the defendant, but on the contrary, was made with full knowledge of all the facts and circumstances growing out of and connected with the repair of the bridge. The error on the part of the plaintiff was one of law, not of fact. In the words of Judge Bronson in
Silliman
v.
Wing,
(7 Hill, 159,) the plaintiff commissioner “settled for himself a question of law and concluded to pay the whole amount * * * I take the general rule to be well settled that money paid under such circumstances cannot be recovered back.”
Judge Danforth, in
National Bank
v.
Board of Supervisors
(106 N. Y. 488.) states the rule as follows: “Ho person can make himself a creditor of another by voluntarily discharging a duty which belonged to that other; and no obligation can be implied in law from a voluntary payment of the debt of another, without his request, by one who is under no legal liabilty or compulsion to make it.”
This doctrine has been frequently asserted and is well settled.
(Mowatt
v.
Wright,
1 Wend., 355; Vanderbeck
v. Rochester,
46 Hun, 87;
Supervisors of Onondaga Co.
v.
Briggs,
2 Denio, 26;
Doll v. Earle,
65 Barb. 298.)
The rule was applied to a corporation seeking to recover back moneys paid by one of its officers for an illegal tax.
(N. Y.
&
H. R. R. Co.
V.
Marsh,
12 N. Y. 308.)
It was held to apply to a guardian, who under a mistake of law paid out the money of his ward.
(Flower
v. Lance, 59 N. Y. 609.)
Ho reason suggests itself for refusing to apply the doctrine
to a commissioner of highways under the circumstances here disclosed. Plaintiff was not an agent of the town possessing generally authority to disburse its moneys. He did not have the power to represent or affect the town otherwise than in the manner provided by statute. The statute did not confer upon him the authority to burden his town with a greater proportion of the expense of repair than one-tliird. He could not have enforced reimbursement from the town of Hoosick for the excess. When he exceeded the statutory limit the act was individual and not official. Such act subjected him, in respect thereto, to the legal application of the rule relating to voluntary payments. The town could not, and did not, by subsequently reimbursing the plaintiff in the amount expended by him in excess of his authority, alter or effect the legal status of the parties as it existed prior to such reinbursement.
Again, the action is not maintainable because the require- • ments of the statute establishing the precedent condition upon which the liability of a town is created and enforcable has not been complied with. By means of a judgment, declared to be rendered against the defendant commissioners of highways in his official capacity the plaintiff seeks to enforce the payment of a sum of money, claimed to have been expended for the benefit of defendant’s town. In the administration of the highway system, the commissioner of highways is an independent public officer, exercising public power and charged with public duties, specially prescribed by law. While acting in that capacity, by virtue of powers conferred by statute he proceeds independently of any direction on the part of the town. On the other hand, he is without power to represent or affect the rights of the town in any other manner than prescribed by statute.
(People ex rel. v. Board of Supervisors,
93 N. Y. 397.)
Previous to the enactment of chapter 700 of the Laws of 1881, towns were exempt from the burden of any general duty in respect to roads and bridges. Neither were the highway commissioners'cliarged with any duty unless provided with
funds by their towns, or especially commanded and empowered by statute.
(Town of Galen
v.
C. & R. P. R. Co.,
27 Barb. 543.)
The imposition of liability upon towns for the repair of roads and bridges in any other maimer than provided by statute, is contrary to the settled policy of the law, and not permissible.
(People ex rel.
v.
Board of Supervisors, supra.)
A commissioner of highways is powerless to burden the town he represents beyond the statutory limitations. Certainly he cannot affect the rights and obligations of other towns unless the statute so provides. When it does so provide, he may, if he follows the letter and spirit of the statute, but not otherwise. Had this plaintiff repaired the bridge without giving any notice to the other towns, would it have been urged for a moment that an action could be maintained against the other towns for two-tliirds of the expense? Assuredly not, because the commissioner of highways of one town can not create a liability on the part of another town, except he obey the statutory conditions which authorize it. The court below, in its argument supporting the liability of defendant, said that one commissioner had no right to “ contribute more than one-third of the expense, and to contribute less was the non-performance of the full duty. * * * It was not the less the non-performance of a legal duty on the part of those who paid too little, because made through their mistake of the law. The obligation remained to perform the unperformed duty, and the way to perform that obligation was to be found by paying the money to the officer whose receipt of it would be effectual to discharge it, namely, to the commissioner of the town of Hoosick. His right to receive was the reciprocal of their right to pay, and when they refused to do this duty, an action accrued to him to whom the duty was due, to enforce it.” It will be observed that the argument quoted is not applicable to the case suggested, because, while it is true the duty to unite in making the repairs exists, the liability to respond to the commissioner making them is nevertheless dependent upon the giving of the notice required by statute.
It is obvious, therefore, that the duty to repair does not of itself authorize the maintenance of an action.
The right of recovery is further made dependent upon the performance or non-performance of certain statutory conditions. The conditions precedent to the maintenance of such an action, are provided in section 3 of chapter 225 of the Laws of 1841, as amended by chapter 383 of the Laws of 1857, which reads as follows: “ If the commissioners of highways of either of such towns, after notice in writing from the commissioners of highways of any other of such towns, shall not within twenty days give their consent in writing to build or repair any such bridge, and shall not within a reasonable time thereafter do the same, it shall be lawful for the commissioner so giving such notice to make or repair such bridge, and then to maintain a suit at law in their official capacity against said commissioners so neglecting or refusing to join in such making and repairing.”
It is apparent, from the section quoted as we have already observed, that if a commissioner repair a bridge, without giving notice to the commissioners- of the towns jointly liable, he ■ cannot recover their proportion of the expense because of his failure to comply with the requirements of the statute. So, too, if the commissioners notified consent to the maldng of the repairs, and thereafter unite in their making, he cannot maintain an action, because their compliance with the statute deprives him of a basis for its maintenance.
The referee has found, as a fact, that the original defendant commissioner “ did not refuse to unite in making the repairs, but did so unite,” and that he “ did his full duty to the public in providing the repairs in question.”
The evidence did not permit a different finding in that respect. It is undisputed that the three commissioners worked together until the repairs were completed. Each paid in behalf of liis town for labor and materials. The plaintiff paying one-half, and the commissioners of the other towns each one-fourth. That which they mutually regarded to be their duty under the law they did. After a final adjustment of
their accounts on such basis they respectively submitted tlieir accounts for audit. The accounts as presented were audited and each of the commissioners were thereafter reimbursed by taxes collected from such towns.
In view of the finding that the defendant did unite in making the repairs, and that he did bis full duty in that respect it is obvious that the court cannot give to a voluntary payment made by one of the commissioners with full knowledge of all the facts the force and effect necessary to over-ride such finding. There cannot be predicated upon such fact, under the circumstances proven to have existed, a holding that the defendants neglected to repair. "
It follows that the liability of tlie defendant in this action has not been established.
The judgment should be reversed and a new trial granted, costs to abide event.
All concur, except Potter, J., not sitting.
Judgment reversed.