Wrought Iron Bridge Co. v. Town of Attica

• Decision Date: 28 January 1890
• Citation: 119 N.Y. 204,23 N.E. 542
• Parties: WROUGHT IRON BRIDGE CO. v. TOWN OF ATTICA.
• Court: New York Court of Appeals Court of Appeals

119 N.Y. 204

23 N.E. 542

WROUGHT IRON BRIDGE CO.

v.TOWN OF ATTICA.¹

Court of Appeals of New York.

Jan. 28, 1890.

Appeal from supreme court, general term, fifth department.

Wadsworth & Loveridge, (George Wadsworth, of counsel), for appellant.

Tyrrell & Ballard, for respondent.

O'BRIEN, J.

This action was brought by the plaintiff to recover of the defendant the sum of $4,064.61 and interest, the cost of constructing an iron bridge across Tonawanda creek, in one of the public highways of the village and town of Attica. In July, 1884, a special meeting of the town board, composed of the supervisor, town-clerk, and justice of the peace of said town, was called and held for the purpose of examining and inspecting the bridge leading over the creek in the highway called ‘Main Street,’ in the village of Attica, and determining the question of the sufficiency and safety of the same for public travel. Upon such inspection by such board it was ascertained and determined that the bridge was unsafe, and the same was condemned as such; and the commissioner of highways of the town was directed to construct, or to procure to be constructed, a new iron bridge in the place of the one so condemned, at the expense of the town. On the 7th of August, 1884, the commissioner of highways entered into a contract in writing with the plaintiff for the furnishing of the material and the construction of a new bridge, at the price of $3,975. It was also agreed between the commissioner and the plaintiff that the plaintiff should remove the old bridge, and should be paid for the expense thereof by the town, and the old bridge was accordingly removed by the plaintiff at an expense of $89.61. The new bridge was completed in February, 1885, and was accepted by the commissioner of highways, opened to the public, and has ever since been used for travel as a part of the public highway in that town. Thereafter, in the same month of February, the commissioner of highways presented to the auditing board of the town his account for the erection and completion of the bridge at the sum of $3,975, and also the sum of $89.61, the expense of removing the old bridge, and the auditing board allowed the same, so far as it had power to do so. At the annual town-meeting, in the same month, a resolution was presented to the electors of the town, voted upon, and passed, in substance and effect authorizing the supervisor of the town to either raise the amount due the plaintiff for the construction of said bridge, and the expense of removing the old one, or to make arrangements to extend the time for the payment thereof; and to that end he was authorized to give the obligations of the town to secure such payment, with interest. At the same town-meeting a new commissioner was elected to succeed the one who was a party to the contract and proceedings referred to. The plaintiff demanded payment of the amount claimed to be due it under the contract, but payment was refused. In October, 1885, the plaintiff commenced an action in the supreme court against the new commissioner of highways to recover the amount due for the contract price of the bridge, and the expense of removing the old one. Issue was joined, and the action was tried in March, 1886. The jury rendered a verdict for the amount of the plaintiff's claim, but subsequently, upon a motion for a new trial, the judge presiding at the circuit set aside the verdict, and held that the contract with the plaintiff for the construction of the new bridge was made without authority; that all the proceedings above stated were unauthorized and ineffectual to bind the town; and that the plaintiff could not recover. It does not appear that this judgment defeating plaintiff's claim was ever disturbed by appeal or otherwise, but the plaintiff seems to have had resort to the legislature for relief. For this purpose, chapter 205 of the Laws of 1887 was passed, entitled ‘An act to legalize the acts and proceedings of the town board and the town board of auditors of the town of Attica, Wyoming county, in relation to the erection of a certain iron bridge over the Tonawanda creek, on Main street, in the village of Attica, in said town, and the acts and proceedings of the annual town-meeting of said town, held on the twenty-second day of February, eighteen hundred and eighty-five, in relation to said bridge, and the acts and proceedings of George D. Miller, as highway commissioner of said town, in relation to said bridge.’ By the first four sections of the act, all the proceedings heretofore stated of the town board of the town, the town auditors of the town, the electors at the town-meeting, and the commissioner of highways who made the contract, were legalized and confirmed in all respects, and made binding on the town of Attica. The fifth and the last section provided that the act should not be so construed as to require the town to pay the amount...