Chester, J. :
The defendants seek to justify their rejection of the relator’s claim upon the ground that the construction of the new bridge was not authorized by law.
Section 10 of the. old Highway Law (Laws of 1890, chap. 568), as amended by chapter 606 of the Laws of 1895, which was in force at the time of the construction of this bridge, related to extraordinary repairs of highways or bridges and provided as follows: “ If any highway or bridge shall at any time be damaged or destroyed by the elements or otherwise, or become unsafe, the commissioner of highways of the town in which such highway or bridge may be situated may, with the consent of the town board, cause the same to be immediately repaired or rebuilt, although the expenditure of money required may exceed the sum raised for such purposes as [170]*170hereinbefore provided; and the commissioners' of highways shall present the proper" vouchers for the expense thereof to the town board at their next annual meeting, and the same shall be audited by them and collected in the same manner as amounts voted at town' meeting's.”
Section 130 of said Highway Law, as amended by chapter 416 of the Laws of 1895, provided that when public free bridges are constructed over streams forming the boundary line of towns such towns “ shall be jointly liable ” to pay the expenses of such construction. This means at the equal expense of the towns. (Lapham v. Rice, 55 N. Y. 472.)
Section 134 of said Highway Law, which, related to joint liabilities of towns and their joint contracts, provided that “whenever any. two or more towns shall be liable tó make or maintain any bridge' or bridges, the same shall be built and maintained at the joint expense of such towns, without reference to town lines. The commissioners of highways of all the towns, or of one or more of such towns, the others refusing to act, may enter into a joint' contract for making and repairing such bridges.”
Section. 135 of said Highway Law, with respect to refusal to-repair, provided that “ 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, the-commissioners of highways giving such notice may make or repair such bridge,, and then maintain an action in the name of the town, ■ against the town whose qommissioners neglect or refuse to join in such making or repairing, and in such action the plaintiffs shall be entitled to recover so much from the defendant, as the town would be liable to contribute to the same, together with costs and interest.”
The defendants seek the benefit of the rule- laid down by us in a number of recent casés, where we have held that said section 10 of the Highway Law does not authorize the rebuilding of a bridge which has become defective by ordinary wear and tear or the natural decay of the -materials of which it was constructed, at a cost exceeding the moneys appropriated for highway purposes, and that it only authorizes such construction where - the bridge has become [171]*171destroyed by some emergency or by some extraordinary cause. (Livingston v. Stafford, 99 App. Div. 108; People ex rel. Fellows v. Early, 106 id. 269; People ex rel. United Construction Co. v. Voorhies, 114 id. 351.)
The Livingston Case (supra) was a taxpayers’ action brought to restrain the construction of a new bridge in place of one which the highway commissioner determined had become unsafe from natural wear and decay, and thereupon had obtained the consent of the town board to its construction, and had entered into a written contract therefor. The Fellows case was one where the relator sought to compel the town board of the town of New Lebanon and its highway commissioner by mandamus to build a bridge that had been destroyed, and the United Construction Co. case was a writ of certiorari to review the action of a town board in rejecting the relator’s claim for damages for not accepting six bridges contracted for by the commissioner of highways with the consent of the town board. The material for one bridge had been shipped when the relator received a letter from the supervisor, sent by direction, of the town board, refusing to accept the bridges and canceling the contract. In the first two cases mentioned the question of liability was raised before any money had been expended. In the last case, while the contract had been entered upon, it was promptly canceled before execution. Besides this there was an element of bad faith on the part of the relator, as it went ahead chargeable with knowledge that the officials of the town with whom it had acted had no lawful authority to bind the town.
These cases, therefore, are not controlling in support of the defendants’ contention, even if it be conceded that authority for the construction of the bridge in question is to be found in said section 10. These cases, moreover, all related to bridges wholly within a town and not to bridges crossing town lines, and it is more than doubtful if section 10 has any relation to or was intended to apply to a bridge or its approaches partly in two towns.
The town of Chester was evidently proceeding under sections 134 and 135 of the Highway Law above referred to, and was putting itself in a position to charge one-lialf of the expense of its building the bridge upon the town of Horicon, in case that town refused to join therein. These sections seem to make the town upon which [172]*172the -notice provided for in section Í35 is served, liable for its part of the expense of such a bridge whether the town has funds or not properly applicable for that purpose, and may make it liable therefor even against its protest.
In the case under review'there is nothing impugning .the good faith ^either of the relator, the commissioner of highways or the town board of either town. So far as appears the contract in-question was entered into in entire good faith by all parties. • The' bridge was constructed, in accordance with the terms Of the contract; it was accepted by the commissioners of highways of both-towns, and ever since its acceptance has been in constant use by the citizens of both towns and by the .public generally, and forms a part of one continuous highway partly in each town.
It was a part of a much traveled highway in a- much patronized summer resort. It wms over a river from 200 to 250 feet wide, which could not be crossed by teams or pedestrians at that point without a bridge. The members of the town-board, of each town after the span had- fallen met at the bridge and inspected it, and each board passed a resolution reciting, after inspection, that it was in an. unsafe and dangerous condition, and directed its commissioner of highways in conjunction with the commissioner of the other town to- cause a new bridge to be built immediately. These officers evidently acted under the belief . .that the law devolved the obligation upon the. two towns jointly to repair or rebuild the bridge. They determined that .it should be rebuilt.
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Chester, J. :
The defendants seek to justify their rejection of the relator’s claim upon the ground that the construction of the new bridge was not authorized by law.
Section 10 of the. old Highway Law (Laws of 1890, chap. 568), as amended by chapter 606 of the Laws of 1895, which was in force at the time of the construction of this bridge, related to extraordinary repairs of highways or bridges and provided as follows: “ If any highway or bridge shall at any time be damaged or destroyed by the elements or otherwise, or become unsafe, the commissioner of highways of the town in which such highway or bridge may be situated may, with the consent of the town board, cause the same to be immediately repaired or rebuilt, although the expenditure of money required may exceed the sum raised for such purposes as [170]*170hereinbefore provided; and the commissioners' of highways shall present the proper" vouchers for the expense thereof to the town board at their next annual meeting, and the same shall be audited by them and collected in the same manner as amounts voted at town' meeting's.”
Section 130 of said Highway Law, as amended by chapter 416 of the Laws of 1895, provided that when public free bridges are constructed over streams forming the boundary line of towns such towns “ shall be jointly liable ” to pay the expenses of such construction. This means at the equal expense of the towns. (Lapham v. Rice, 55 N. Y. 472.)
Section 134 of said Highway Law, which, related to joint liabilities of towns and their joint contracts, provided that “whenever any. two or more towns shall be liable tó make or maintain any bridge' or bridges, the same shall be built and maintained at the joint expense of such towns, without reference to town lines. The commissioners of highways of all the towns, or of one or more of such towns, the others refusing to act, may enter into a joint' contract for making and repairing such bridges.”
Section. 135 of said Highway Law, with respect to refusal to-repair, provided that “ 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, the-commissioners of highways giving such notice may make or repair such bridge,, and then maintain an action in the name of the town, ■ against the town whose qommissioners neglect or refuse to join in such making or repairing, and in such action the plaintiffs shall be entitled to recover so much from the defendant, as the town would be liable to contribute to the same, together with costs and interest.”
The defendants seek the benefit of the rule- laid down by us in a number of recent casés, where we have held that said section 10 of the Highway Law does not authorize the rebuilding of a bridge which has become defective by ordinary wear and tear or the natural decay of the -materials of which it was constructed, at a cost exceeding the moneys appropriated for highway purposes, and that it only authorizes such construction where - the bridge has become [171]*171destroyed by some emergency or by some extraordinary cause. (Livingston v. Stafford, 99 App. Div. 108; People ex rel. Fellows v. Early, 106 id. 269; People ex rel. United Construction Co. v. Voorhies, 114 id. 351.)
The Livingston Case (supra) was a taxpayers’ action brought to restrain the construction of a new bridge in place of one which the highway commissioner determined had become unsafe from natural wear and decay, and thereupon had obtained the consent of the town board to its construction, and had entered into a written contract therefor. The Fellows case was one where the relator sought to compel the town board of the town of New Lebanon and its highway commissioner by mandamus to build a bridge that had been destroyed, and the United Construction Co. case was a writ of certiorari to review the action of a town board in rejecting the relator’s claim for damages for not accepting six bridges contracted for by the commissioner of highways with the consent of the town board. The material for one bridge had been shipped when the relator received a letter from the supervisor, sent by direction, of the town board, refusing to accept the bridges and canceling the contract. In the first two cases mentioned the question of liability was raised before any money had been expended. In the last case, while the contract had been entered upon, it was promptly canceled before execution. Besides this there was an element of bad faith on the part of the relator, as it went ahead chargeable with knowledge that the officials of the town with whom it had acted had no lawful authority to bind the town.
These cases, therefore, are not controlling in support of the defendants’ contention, even if it be conceded that authority for the construction of the bridge in question is to be found in said section 10. These cases, moreover, all related to bridges wholly within a town and not to bridges crossing town lines, and it is more than doubtful if section 10 has any relation to or was intended to apply to a bridge or its approaches partly in two towns.
The town of Chester was evidently proceeding under sections 134 and 135 of the Highway Law above referred to, and was putting itself in a position to charge one-lialf of the expense of its building the bridge upon the town of Horicon, in case that town refused to join therein. These sections seem to make the town upon which [172]*172the -notice provided for in section Í35 is served, liable for its part of the expense of such a bridge whether the town has funds or not properly applicable for that purpose, and may make it liable therefor even against its protest.
In the case under review'there is nothing impugning .the good faith ^either of the relator, the commissioner of highways or the town board of either town. So far as appears the contract in-question was entered into in entire good faith by all parties. • The' bridge was constructed, in accordance with the terms Of the contract; it was accepted by the commissioners of highways of both-towns, and ever since its acceptance has been in constant use by the citizens of both towns and by the .public generally, and forms a part of one continuous highway partly in each town.
It was a part of a much traveled highway in a- much patronized summer resort. It wms over a river from 200 to 250 feet wide, which could not be crossed by teams or pedestrians at that point without a bridge. The members of the town-board, of each town after the span had- fallen met at the bridge and inspected it, and each board passed a resolution reciting, after inspection, that it was in an. unsafe and dangerous condition, and directed its commissioner of highways in conjunction with the commissioner of the other town to- cause a new bridge to be built immediately. These officers evidently acted under the belief . .that the law devolved the obligation upon the. two towns jointly to repair or rebuild the bridge. They determined that .it should be rebuilt. The statute (§ 34) -gave the commissioners of highways power to enter into a joint contract for building the new bridge, and they having done so, and having acted in.good faith, and no steps -having been taken .to review or "question their action,, or tlieir power to act, we think under the circumstances presented here, and under the authorities, their action' is not now subject to review or question in this proceeding. (People ex rel. Graham v. Studwell, 91 App. Div. 469, 474; Govers v. Board of Supervisors, 55 id. 40, 43; Hines v. City of Lockport, 50 N. Y. 236 ; People ex rel. McCabe v. Matthies, 179 id. 242.).
It may be; in view of the fact that the old bridge was sufficiently ' repaired at .small, cost to permit of its being used during the construction of. the new bridge on a slightly ^hanged location at one end, that the town authorities erred in their judgment as to the [173]*173necessity of the new bridge, but if they did that error cannot now be corrected. The defendants, I think, are not now in a position to test that question or to deny the validity of the contract under which the bridge was built or the lawfulness of the relator’s claim. The town board of the town of Horicon after inspecting the old bridge in its damaged condition gave its consent to its commissioner of highways to join with the commissioner of highways of the town of Chester in building the new bridge at the joint expense of the two towns. Pursuant to this authority the contract was made and the bridge built. The new bridge was then open to public use and the old bridge removed. During- all that time and down to the time the relator tried to enforce collection of its claim no proceeding or action was brought to test the necessity for the new bridge, the legality of the acts of the town officers in respect to the matter or of the contract under which it was built or to restrain the relator and these commissioners from constructing the bridge. It is now too late to raise these questions. (People ex rel. Groton Co. v. Town Board, 92 Hun, 585.)
The defendants further urge that no part of the bridge in question is in the town of Horicon, their claim being that the east bank of the Schroon river, rather than its center, is the town line. We think it _ is unnecessary to determine this question, as it appears clearly that one of its approaches is in each town. It also appears that there are two other bridges crossing the Schroon river between these towns, botli of which, as well as the bridge in question, have long been'maintained at the joint expense of . both towns. Hnder section 134 of the Highway Law I think it is unimportant on the question of joint liability whether the town line was in .the center of the stream or upon its east bank. It has even been held under a statute (Laws of 1865, chap. 180, as amd. by Laws of 1866, chap. 106) providing that a bridge between two towns should be kept in repair at an equal expense to each town, that the approaches to the bridge were a part thereof,, and that both towns were liable .for the maintenance thereof. (Edwards v. Ford, 22 App. Div. 277.) The town of Horicon has even paid one-half of the expense of repairing one of the approaches to the bridge in question incurred the following year after it was open for public travel.
I think under the facts presented here the town of Horicon is [174]*174liable for its half of the expense of the bridge under the contract made by its commissioner of highways by authority of the majority vote of its town board, and that it cannot permit its officers to have the bridge constructed and completed pursuant thereto and reap the benefits, past and prospective, of the structure, without paying the amount it contracted to pay therefor.
' I have not come to this conclusion without having in mind section 68 of the County Law (Laws of 1892, chap. 686, as amd. by Laws of 1896, chap. 995), which section is entitled “Bridges over county lines.” That was a re-enactment, with some Change in verbiage, of subdivision 4 of section l of chapter 482 of the Laws of 1875, which provided that the board may apportion the expense of the construction of a public bridge over a stream, forming the boundary line of counties, between the towns at such point. From this fact, and the fact that the building of a bridge between two towns in .the same county is fully provided for in the Highway Law, and that the other sections of article 4 of the County Law, in which said section 68 is found, relate more particularly to bridges intersecting the county line, we may fairly infer that those provisions were not intended to repeal or destroy the effect of'sections 134 and 135 of the Highway Law, which provide the manner in which bridges shall be built across the dividing lines of towns situated in the same county.
The determination of the defendants should, therefore, be reversed, with fifty dollars.costs and disbursements to the relator, and the matter remitted to the town board, with direction to audit and'allow the relator’s claim at the amount properly due ■thereon.
Sewell, J., concurred; Coohbane, J., dissented, in opinion; Smith, P. J., not voting.