Van Kirk, J.:
The construction, maintenance and control of highways is a governmental function. For convenience of administration, counties and towns were organized and to them were delegated certain powers and duties well defined and limited by statute, among which are some duties in the construction, maintenance and control of highways, in discharging which they are performing a governmental duty and their officers acting therein are the agents of the public or the State. The towns and counties are as exempt from liability for the unauthorized or wrongful acts or contracts of their officers in this respect as is the State. The towns and counties and their respective officers can raise and expend public moneys for such purposes, and in such manner only, and can obligate the town and county on such contracts only, as the statute specifically authorizes. They have no general powers to make contracts. If a contract is not within the power granted by statute to the town or county to make, the action of the town board or the board of supervisors authorizing, or assenting to, it does not render it a binding obligation on the town or the county. (Acme Road Machinery Co. v. Town of Bridgewater, 185 N. Y. 1, revg. 104 App. Div. 597; County of Albany v. Hooker, 204 N. Y. 1; Wells v. Town of Salina, 119 id. 280; People ex rel. Everett v. Board of Supervisors, 93 id. 397; People ex rel. Van Keuren v. Town Auditors, 74 id. 310.)
Article 8, section 10, of the State Constitution contains the fol- . lowing: “ No county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation * * * nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes.”
The superintendent of highways of a town or of a county, or a supervisor of a town, has no authority to subject the town or county to a contract liability unless so specifically authorized by statute. (It may be noted that the town board of the town of Lloyd did not authorize the town superintendent of highways or the supervisor to execute this contract, nor has it in any form assented to the contract.)
The contract for the construction of this county highway was made by the State Commission, which retained full control of the contract and the work thereunder. The contractor performed solely under the direction of the Commission. The court has found [238] that the plans as prepared show that the plaintiff’s track was to be relocated on the northerly side of the highway within the limits of the highway; that it was in fact relocated outside the bounds of the highway and in part on lands of Daley. Section 148 of the Highway Law then provided that, if a county highway proposed to be constructed or improved shall deviate from the line of a highway already existing, the board of supervisors of the county where such highway is located shall acquire land for the requisite right of way prior to the actual commencement of the work of construction. Subsequent to the construction of the present highway but prior to the judgment in the Daley action said section 148 was amended so as to require the right of way prior to the advertisement for proposals. (See Laws of 1917, chap. 261; Laws of 1918, chap. 326.) This statute was not complied with. The Daley lands were not acquired by the board of supervisors of Ulster county. The contractor, therefore, when he placed the railroad line in part upon the Daley lands was a trespasser, but for his trespass neither the State, county nor town is liable. (See Konner v. State of New York, 227 N. Y. 478.)
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Van Kirk, J.:
The construction, maintenance and control of highways is a governmental function. For convenience of administration, counties and towns were organized and to them were delegated certain powers and duties well defined and limited by statute, among which are some duties in the construction, maintenance and control of highways, in discharging which they are performing a governmental duty and their officers acting therein are the agents of the public or the State. The towns and counties are as exempt from liability for the unauthorized or wrongful acts or contracts of their officers in this respect as is the State. The towns and counties and their respective officers can raise and expend public moneys for such purposes, and in such manner only, and can obligate the town and county on such contracts only, as the statute specifically authorizes. They have no general powers to make contracts. If a contract is not within the power granted by statute to the town or county to make, the action of the town board or the board of supervisors authorizing, or assenting to, it does not render it a binding obligation on the town or the county. (Acme Road Machinery Co. v. Town of Bridgewater, 185 N. Y. 1, revg. 104 App. Div. 597; County of Albany v. Hooker, 204 N. Y. 1; Wells v. Town of Salina, 119 id. 280; People ex rel. Everett v. Board of Supervisors, 93 id. 397; People ex rel. Van Keuren v. Town Auditors, 74 id. 310.)
Article 8, section 10, of the State Constitution contains the fol- . lowing: “ No county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation * * * nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes.”
The superintendent of highways of a town or of a county, or a supervisor of a town, has no authority to subject the town or county to a contract liability unless so specifically authorized by statute. (It may be noted that the town board of the town of Lloyd did not authorize the town superintendent of highways or the supervisor to execute this contract, nor has it in any form assented to the contract.)
The contract for the construction of this county highway was made by the State Commission, which retained full control of the contract and the work thereunder. The contractor performed solely under the direction of the Commission. The court has found [238] that the plans as prepared show that the plaintiff’s track was to be relocated on the northerly side of the highway within the limits of the highway; that it was in fact relocated outside the bounds of the highway and in part on lands of Daley. Section 148 of the Highway Law then provided that, if a county highway proposed to be constructed or improved shall deviate from the line of a highway already existing, the board of supervisors of the county where such highway is located shall acquire land for the requisite right of way prior to the actual commencement of the work of construction. Subsequent to the construction of the present highway but prior to the judgment in the Daley action said section 148 was amended so as to require the right of way prior to the advertisement for proposals. (See Laws of 1917, chap. 261; Laws of 1918, chap. 326.) This statute was not complied with. The Daley lands were not acquired by the board of supervisors of Ulster county. The contractor, therefore, when he placed the railroad line in part upon the Daley lands was a trespasser, but for his trespass neither the State, county nor town is liable. (See Konner v. State of New York, 227 N. Y. 478.)
The contract on which this action is based purports to assure to the plaintiff that it shall have absolute, indefeasible and perpetual right to enjoy and use the lands to which the railroad tracks shall be removed, with the same exemptions as now enjoyed by it in the land now used by it. There is no statutory authority for making such a contract given to either the county or the town. Section 148 of the Highway Law above mentioned simply requires the board of supervisors to acquire any added land necessary for the proposed highway; and it was held in People v. Town of Frankfort (182 App. Div. 431) that, where this duty had not been performed, the sole remedy of the State to recover moneys for such added lands taken is through the board of town auditors and that a complaint in an action against the town directly should be dismissed. This section evidently gives no aid to the appellant’s contention. Section 138-a of the Highway Law (as added by Laws of 1911, chap. 375) provides: “ Whenever the Commission shall have determined upon the construction or improvement of a State highway or section thereof, or shall have approved a resolution adopted by the board of supervisors in any county requesting the construction or improvement of a county highway, or section thereof, and shall have had prepared the preliminary maps, plans and specifications, the Commission shall cause notice thereof and of the proposed width and kind of construction of such road to be given the town board of every town into or through which any such highway passes. If it is desired to construct or improve a portion of a State or county highway within [239] any such town at a greater width or in a manner involving greater cost, or both, than that provided in the plans and specifications therefor, the town board may petition the Commission for an estimate of the additional cost of constructing or improving the same to a width or in a manner, or both, specified in such petition. The Commission shall as soon as practicable make an estimate of such additional cost and send the same to the town board. The town board may thereupon determine, by a resolution duly adopted by a vote of a majority of all the members of such board, that such portion of highway shall be constructed or improved to the additional width or in the manner, or both, specified in its petition, at the expense of the town. * * Intermediate the making of the contract of November 11, 1913, and the completion of the construction of the improvement, the phraseology of said section 138-a of the Highway Law, so far as here material, was amended by chapter 461 of the Laws of 1916, to read as follows: “ Whenever the Commission shall have determined upon the construction or improvement of a State or county highway or section thereof and it is desired by any town in which such proposed highway is situated to construct or improve the same at a greater width or in a manner involving greater cost, or both, than that provided in the plans and specifications as prepared by the Commission, the town board may petition the Commission for an estimate of the additional cost of constructing or improving the same to a width or in a manner, or both, as desired by such board. The Commission shall as soon as practicable make an estimate of such additional cost and transmit the same to the town board, and the town board may thereupon by resolution petition the Commission to provide the width and type of construction desired. The additional expense caused by the increased width or different type of construction, or both, shall be borne wholly by the town. * * This section merely authorizes a town to bear the expense of procuring an increased width in a proposed highway, or a more costly construction. The proceedings provided for in this section have not been followed and, except the statute be followed, no liability can rest upon the town thereunder. The fact that under the statute towns and counties are to bear certain expenses in acquiring lands for a highway does not put upon towns or counties an implied liability for contracts made without authority of the statute. Our attention is not called to any statute, nor have we after careful search found any, under which a liability may rest against either the town of Lloyd or the county of Ulster under the contract sued upon; under it there exists no obligation to discharge which the funds of the county or of the town can be lawfully used.
The judgment dismissing the complaint against the county of [240] Ulster should, therefore, be affirmed, with costs against the plaintiff. The judgment against the town of Lloyd should be reversed and the complaint dismissed, with costs against the plaintiff.
All concur.
Judgment dismissing complaint against the county of Ulster is affirmed, with costs against the plaintiff, and judgment against the town of Lloyd is reversed and complaint dismissed, with costs against the plaintiff.