
    James Morrissey, Plaintiff, v. The Sewer, Water and Street Commission of Saratoga Springs, New York, Defendant.
    (Supreme Court, Saratoga Trial Term,
    September, 1911.)
    Municipal corporations: Contracts—Contracts in which officers interested: Officers and agents — Officers and employees or agents other than mayor and common council — Liabilities of officers and interest in municipal óontracts.
    The provision of section 332 of the Village Law that an officer shall not he interested in a contract which he or a board of which he is a member is authorized to make on behalf of the village nor'in furnishing work or. materials is not applicable to the street superintendent of the village of Saratoga Springs, as to ivhom a different restriction contained in the law creating the'office is applicable; and the street superintendent of Saratoga Springs may recover the reasonable value of the use of a horse and wagon furnished by him to convey the sewer, water . and street commissioner about the village in the discharge of his duties. . .
    Action to* recover for services.
    Slade, Harrington & Goldsmith, for plaintiff.
    Frank Gick, for defendant.
   Kellogg, J. A., J.

From the 15th. day of July, 1910, to the 1st day of March, 1911, the plaintiff furnished to one John E. Gaffney, sewer, water and -street commissioner of the village of Saratoga Springs, H. Y.', a horse and wagon, for the purpose of conducting the said Gaffney about the village in the discharge of his duties.

The use of said horse and wagon was reasonably worth $225.

At the time, the plaintiff was acting street- superintendent. ■ His title to the office, however, was, during this* time, disputed; and by a decision of the Court of Appeals his appointment was declared illegal. People ex rel. Qua v. Gaffney, 201 N. Y. 535, affg. without opinion, 142 App. Div. 122.

The horse and wagon were furnished during the period in which the plaintiff assumed to act as street superintendent.

The defendant disputes the legality of the claim because off a provision in section 11 of chapter 50'6 of the Laws of 1902 creating the office. This section provides as to the street superintendent, after placing him under the direction and control off the sewer, water and street commission: —

“He shall not be directly or indirectly interested in any contract to which the village or any of its boards or officers is a party; nor in any contract made under or by virtue of this act.”

The provision off section 332 off the Village Law upon this subject is as follows: ■—•

“An officer shall not be directly or indirectly interested in a contract which he or a board of which he is a member is authorized to make on behalf off the village ; nor in furnishing work or. materials.”

The Legislature, therefore, saw fit to materially alter the phraseology applicable to village officers in general, when it provided for the creation of the subsidiary office of street superintendent of village off Saratoga Springs, and omitted as to. him the restriction applicable generally to village officers, prohibiting them from furnishing work or materials to the village.

It would seem clear that the law-making power, by such omission, intended that such restriction should not apply to this officer, who was placed entirely under the control off the commission and had no independent powers.

There can, therefore, be no legal objection to his recovering in this action for providing a horse and wagon to convey the commissioner about the village in the discharge of his duties.

This conclusion renders unnecessary a consideration of the other contention made by plaintiff that, at the tinie the services were rendered, he was not a de jure official, properly acting as such, and, therefore, the prohibition of the section is inapplicable.

Judgment may be entered for the plaintiff for the relief demanded in the complaint.

Judgment accordingly.  