
    John Flynn et al., as Com’rs of Highways of the Town of Hoosick, etc., Resp’ts, v. Albert J. Hurd, as Com’r of Highways of the Town of White Creek, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 10, 1889.)
    
    
      1. Highways—Towns—Action by commissioner.
    In repairing a bridge connecting the town of A with the towns of B and 0, whose dividing line was the centre of the highway, by agreement, A paid one-half and B and 0 each one-quarter of the expense, Held, that the commissioners of highways of A could not afterwards sustain an action to compel the towns of B and 0 to pay the balance of one-third each.
    2. Same.
    Such payment cannot be recovered unless the plaintiff wave the statutory notice, .and the defendant refused to repair.
    Appeal by defendant from a judgment of the general term of the supreme court, third department, affirming a judgment for plaintiffs, as modified by stipulation, on the report of a referee.
    The referee found among other facts that the Hoosick river divides the towns of Hoosick, in Rensselaer county, from the towns of Cambridge and White Creek, in Washington county. That a bridge forming part of a public highway extended across said river from the town of Hoosick to the towns of Cambridge and White Creek. The dividing line between the two last mentioned towns being the center of the highway and bridge on the Washington county side of the river. That in the summer of the year 1879 the commissioners of highways met and determined to repair said bridge. That subsequently and prior to the first day of November of that year they duly and lawfully caused the necessary repairs to be made to the satisfaction of the commissioners of highways of said towns. The total cost thereof was $2,076.81. The commissioner of highways of the town of, Hoosick paid out and disbursed for materials and labor the sum of $1,026.28.
    The commissioner of highways of the town of White Creek paid out the sum of $550.78, and the commissioner of the town of Cambridge, $499.75, for a like purpose. When the repairs were completed the several commissioners accounted with each other, the Hoosick commissioner assuming and paying what was then understood and agreed to be one-half, and the other commissioners each what was then understood and agreed to be one-quarter of the net expenses. Ho part of the moneys expended by the plaintiff in making the repairs came to or went through the hands of the commissioner of highways of Cambridge, and only two items of Hoosick’s funds came to the hands of the White Creek commissioner; one placed in his hands for the purpose of paying a certain designated bill, and the other in payment of balance on final settlement. That, during all the time the repairs were being* made, up to and including the final settlement, the commissioners of highways of each of the towns supposed that, under the law, one-half of the expenses of the repairs was to be defrayed by the Hoosick commissioner, and one-quarter thereof by the commissioner of each of the towns of White Creek and Cambridge. That the commissioners of these towns had a settlement and accounting of such expenditures with full knowledge of all the facts, and mutually agreed upon the amount thereof and the amount to be paid by each, and the same was paid accordingly. That the original defendant commissioners did their full duty to the public, in providing the repairs in question, and did not refuse to unite in making the repairs but did so unite.
    
      N. C. Moak, for app’lt; R. A. Parmenter, for resp’ts.
    
      
       Reversing 40 Hun, 637, mem.
      
    
   Parker, J.

Assuming, but not deciding the existence of a liability on the part of the towns of Hoosick, 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-third 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 Hoosick’s commissioner was to pay one-half, 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 him-' self 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; 11 N. Y. State Rep., 150, states the rule as follows: “ No 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 liability or compulsion to make it.”

This doctrine has been frequently asserted, and is well settled. Mowatt et al., v. Wright, 1 Wend., 355; Vanderbeck v. Rochester, 46 Hun, 87; 15 N. Y. State Rep., 148 ; 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. No reason suggests itself for refusing to apply the doctrine to a commissioner of highways under the circumstances here disclosed.

He 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-third. 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 affect the legal status of the parties as it existed prior to such reimbursement.

Again, the action is not maintainable because the requirements of the statute establishing the precedent condition upon which the liability of a town is created and enforceable has not been complied with. By means of a judgment, declared to be rendered against the defendant commissioner 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. Hr 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. Everett 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 charged with any duty unless provided with funds by their towns, or expressly commanded and empowered by statute. Town of Galen v. Clyde & R. P. R. R. Co., 27 Barb., 543.

The imposition of liability upon towns for the repairs of roads and bridges in any other manner than provided by statute is contrary to the settled policy of the law, and not permissible. People ex rel. Everett 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 follow 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 thirds of the expense ? Assuredly not, because the commissioner of highways of one town cannot 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 § 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 commissioners, 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 or 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 making 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 his 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 their accounts for audit The accounts, as-presented, were audited, and each of the commissioners were thereafter reimbursed by taxes collected from such town.

In view of the finding that the defendant did unite in making' the repairs, and that he did his 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 the defendant in this action has not been established.

The judgment should be reversed and a new trial granted, with costs to abide event.

All concur, except Potter, J., not sitting.  