
    Matter of the Application of the Business Men’s Association of the City of Newburg for a Peremptory Writ of Mandamus, to the Board of Supervisors of Orange County.
    (Supreme Court, Orange Special Term,
    April, 1907.)
    Highways — State improvement — Expense of construction — Duties of hoards of supervisors.
    Under L. 1898, ch. 115, relating to the construction of State roads, the hoard of supervisors is not required to apportion fifteen per centum of the cost of construction upon the town in which an improved highway or section thereof is located until after a contract is let or it is definitely known what the cost of the work will he.
    Application for a peremptory writ of mandamus,
    Graham Witschief, for relator.
    Joseph W. Gott, for respondent.
   Tompkins, J.

The relator asks for a peremptory writ of mandamus, directing the board of supervisors of Orange county to apportion to the town of Highlands fifteen per cent, of the expense of the construction of the Highland lake — Fort Montgomery road, in the town of Highlands, Orange county.

The answer to .the' application is that the construction work has not been done; that no expense has been incurred, and that no contract for the work has been let; and that a contract may never be let, for the reason that it is possible that no bid within the amount of the estimate may be made.

My conclusion is that the motion is premature; that the supervisors are not required to apportion the fifteen per cent, to the town until after a contract is let or it is definitely known what the cost of the work will be. Indeed, it is a serious question whether the board of supervisors can be compelled by mandamus to make the apportionment until after the county has paid to the State fifty per cent, of the cost, for the .reason that the law makes fifty per cent, of the cost “ a county charge in the first instance.”

Section 9 of chapter 115 of the Laws of 1898, as amended by chapter 468 of the Laws of 1906, which relates to such road construction as is contemplated in this case, reads as follows: “ Except as otherwise provided one-half of the expense of the construction thereof shall be paid by the state treasurer upon the warrant of the comptroller, issued upon the requisition of such engineer, out of any specific appropriations made to carry out the provisions of this act. And one-half of the expense thereof shall be a county charge in the first instance, and the same shall be paid, except as hereinafter provided, by the county treasurer of the county in which such highway or section thereof is, upon the requisition of such engineer, but the amount so paid shall be apportioned by the board of supervisors, so that thirty-five per centum of the cost of construction shall be a general county charge; and fifteen per centum shall be a charge upon the town in which the improved highway or section thereof is located.”

It seems- very clear to me that the intention of the Legislature was that the county should first pay to the' State fifty per cent, of the cost of construction, or become obligated by a contract, and then levy and collect from-the town fifteen per cent., and that the town apportionment cannot be made until the exact amount paid or to be paid for the work is known; and section 11 of the same act, relating to the same work and requiring that the county’s half of the cost shall be appropriated and made “ immediately available,” provides “ that the county shall be charged annually by the comptroller with the proper amount to-be paid into the redemption fund, to meet the one-half of the total cost payable by the county and town.”

And, following the provision just quoted, Thereafter, it shall be the duty of the board of supervisors to apportion the said amount, as provided in section 9.”

It is not until after the contract has been let, or the county has been charged by the Comptroller with the amount to be paid to meet the one-half of the total cost, that the town’s share can be known and apportioned.

Motion denied.  