
    Buyce v. Buyce, Commissioner of Highways.
    
      (Supreme Court, General Term, Third Department.
    
    May 17, 1888.)
    1. Office and Officer—Action against, before Justice—Naming Defendant in Complaint.
    A summons in a justice’s court described defendant as “ commissioner of highways in the town of Wells.” In the title of the written complaint he was described in the same manner, but in the body he was called “ defendant, ” not mentioning name or title. There was also a special allegation that “the board directed that money should be raised to pay plaintiff, and that the same was paid defendant to pay plaintiff. ” Helci, that the action was brought against defendant in his official capacity.
    3. Bridges—Contract to Repair—Authority of Commissioners.
    In an action against a commissioner of highways for repairing a bridge, where the contract was let under the authority of Laws 1858, c. 103, as amended by Laws 1863, c. 443, which provides that, where a bridge is damaged by the elements oi" otherwise, after a town meeting, the commissioners, with the consent of the board of town auditors, may immediately cause it to be repaired, the commissioner cannot set up the defense that the bridge was not damaged after the town meeting.
    Appeal from Hamilton county court; Clarence W Smith, Judge.
    Action brought by Nelson Buyce against George Buyce, as commissioner of highways of the town of Wells. The ease was originally begun in justice’s court, where plaintiff had judgment, and defendant appealed to the county court. On trial in that court plaintiff again obtained a judgment, from which, and from an order denying a new trial, defendant appealed.
    Argued before Learned, P. J., and Ingalls and Landon, JJ
    
      Lee 8. Aníbal, for appellant. McKnight & Boyce, for respondent.
   Learned, P. J.

The plaintiff commenced his action in justice’s court by summons against “George Buyce as commissioner of highways of the town of Wells.” He filed a written complaint, in which the defendant was described in the same manner in the title. In the body of the complaint he speaks of the “defendant,” not mentioning either name or title. But just as the word “plaintiff” in the complaint refers to the name in the title, so does the word “defendant.” It is as if the complaint read: “Nelson Buyce, in complaint, * * * alleges that * * * by direction of George Buyce, as commissioner of highways of the town of Wells,” etc. We think that the complaint distinctly shows that the action is against the defendant in his official capacity. There is a special allegation, viz., that “the board directed the money should be raised to pay plaintiff, and that the same was paid to defendant to pay plaintiff.” This indicates that the action was against him in his official car pacity. We have examined the cases which defendant cites, (Gould v. Glass, 19 Barb. 179,) and similar cases, and they go far in support of his position; but in Boots v. Washburn, 79 N. Y. 214, the court say that defendants were not named in the summons or complaint as commissioners of highways. Here defendant is so named in the summons and in the title. In Smith v. Levinus, 8 N. Y. 472, the title of the complaint described plaintiff as supervisor, and then the complaint said: “The complaint of the plaintiff above named as supervisor,” etc. And upon the whole we think that it is plainly shown by the summons and complaint in this case that the action was against the defendant in his official character.

Another point is that the commissioners had no authority to repair the bridge. By chapter 103, Laws 1858, amended chapter 442, Laws 1862, where a bridge is damaged, by the elements or otherwise, after any town meeting, the commissioner, with the consent of the board of town auditors, may immediately cause it to be repaired, though the expenditure exceed $250. In the present case the work done was in repairing the pier of a bridge. The consent of the board was given. But defendant urges that the bridge had not been damaged after the town meeting. It is not in evidence that it did not become damaged after the town meeting. But who is to determine when a bridge becomes damaged. Is it not plainly that of the commissioner and the board of auditors? They are the persons to whom the statute intrusts the duty of deciding. . To say that the board and the commissioner may determine that a bridge has become damaged after the town meeting, and may cause repairs to be made, and then that, when the commissioner is called upon to pay for these repairs, he may ask a jury to decide that the bridge was not so damaged,—to say this would be unreasonable and unfair. Boots v. Washburn, 79 N. Y. 213; Clute v. Robison, 38 Hun, 283. The commissioner must have the right to cause work to be done in such case. The person who does it need only see to it that the board of town auditors consents. He is not to investigate the question at what time the bridge was damaged,—whether before or after the town meeting. If his right to be paid were to depend on the decision of a jury upon that question, he could not safely do the work. We think the judgment should be affirmed, with costs.

Ingalls and Land on, JJ., concurred.  