
    Barker v. Town of Oswegatchie et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    November 30, 1891.)
    1. Costs—Extea Allowance—Definite Sum in Controversy.
    The supervisor of a town and a committee appointed by the board of supervisors of a county entered into a contract for building a bridge at an expense of $5,670 in pursuance of authority conferred by resolution of the board of supervisors. Plaintiff brought an action, as tax-payer, to enjoin performance of the contract, on the ground of want of power in the board of supervisors to authorize the contract, and succeeded in the action. Held, that the court erred in refusing plaintiff’s motion for an additional allowance for costs, on the ground that there was no definite sum in controversy, and that the contract price of the bridge—$5,670—should have been taken as a basis for such allowance.'
    
      2. Same—Appropriation in Controversy—Sum Actually Used.
    In such case, the hoard having authorized the issue of bonds to the extent of §10,-000 to defray the expense of building the bridge, plaintifi was entitled only to an allowance computed on the amount actually required for that purpose, to-wit, the contract price,—§5,670.
    Appeal from, special term, St. Lawrence county.
    Action by Mathew Barker against the town of Oswegatchie and others. From an order denying an application for an additional allowance for costs, plaintiff appeals. Reversed. For former reports, see 10 R". Y. Supp. 834, and 11 N. Y. Supp. 942.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      A. D. Wales, for appellant. Daniel Magone, for respondents.
   Mayham, J.

The plaintiff and appellant prosecuted this action as a taxpayer of the town of Oswegatchie to restrain the defendants, and each of them, from taking any further action under or in pursuance of an act, bill, or resolution of the board of supervisors of Lawrence county passed February 8, 1890. The wrongful act alleged in the complaint, and which the plaintiff in this action sought to restrain, was the carrying out or performance of an alleged contract, made by the town of Oswegatchie, through the agency of its supervisor and a committee (who are named as defendants) appointed by the board of supervisors of St. Lawrence county, with the defendant the King Iron Bridge Company for the construction of a bridge in that town, which the town was liable to build, and by which contract the town was to pay the bridge company the sum of $5,670. The plaintiff succeeded in the action, and by the judgment perpetually enjoined the performance of the contract or the payment of the contract price. The court, at special term, held that the action was difficult and extraordinary, but that there was no definite sum in controversy upon which an additional allowance can be computed. We think that was error. The subject-matter directly in valved in this action was the right of the defendants to perform a contract by which a direct pecuniary liability wo'uId be or was created against the town to protect whose interests this plaintiff, as a tax-payer, was authorized to maintain an action. It is quite true that in determining the question whether or not this town should or could be liable for the contract price agreed to be paid for the construction of this bridge the court had to inquire whether the board of supervisors had power to appoint the commissioner, and put in motion the train of events which led up to the creation of the liability. But the same would be true if a party sued or defended an action upon a contract made with an agent. If A. sued B. on a contract made with B.’s agent for $1,000, and B. defends on the ground that the alleged agent has no power to contract, and succeeds in his defense, I think it would not be doubted that, if the action were in other respects one in which an additional allowance would be proper, an extra allowance would be granted, estimated upon the $1,000, which was the real subject-matter of the suit, although all the litigated controversy was upon the authority of the agent, and the $1,000 in the case supposed would be the subject in controversy, and it is difficult to see why the $5,670 in the contract under consideration may not equally be taken as a basis for an additional allowance. The appellant insists that this additional allowance should be computed upon the $10,000, which it is alleged the town voted. But the commissioners and the supervisors only sought to use the $5,670. It is true that $10,000, according to resolution and the contention of the defendants, was the maximum sum which they were authorized by the resolution to use; but they could also by the resolution use a less amount, and that they undertook to do, and were prevented by the judgment in this action. We are of the opinion that the $5,670 embraced in the contract constituted the subject-matter of this suit, and, as the plaintiff has succeeded in the action, he is entitled to an additional allowance of 5 per cent, on that amount. Order must be reversed, with $10 costs and printing disbursements. All concur.  