
    Charles E. Griffith, Respondent, v. The City of New York, Appellant.
    
      Health board of a 'milage — expenses incurred by it must be paid, although the appropriation therefor has been exhausted.
    
    Section 30 of the Public Health Law (Laws of 1893, chap. 661, as amd.), which provides: “All expenses incurred by any local board of health in the performance of the duties imposed upon it or its members by law shall be a charge upon the municipality, and shall be audited, levied, collected and paid in the same manner as the other charges of, or upon, the municipality are audited, levied, collected and paid,” must be regarded as having been an amendment to, or at least as a part of, section 17 of the charter oí the former village of Port Richmond, which provided: “Money cannot be borrowed on the credit of, nor can any debt be created in behalf of the village, payable at a future time, nor can any debt or liability be incurred by the village except for the ordinary expenses of the village, within the income of the current year applicable to that purpose, nor can any money or property of the village be appropriated or applied for any purpose except as authorized by this act, except that when the raising of money for a special purpose shall be ordered, as provided in this act, the amount may be borrowed or a liability by contract for the special purpose may be incurred, not exceeding the expense ordered, until the amount can be raised by tax as before provided.”
    Consequently where a person who had been employed as clerk of the board of health of the village of Port Richmond from September 1 to December 30, 1897, brings an action against the city of New York to recover upon warrants issued to him directing the treasurer of the village to pay him the amount of his salary during that period, the fact that prior to September 1, 1897, the amount appropriated for the purposes of the board of health had been expended, is not a defense to the action.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 13th day of February, 1902, upon the decision of the court rendered after a trial at the Richmond Trial Term before the court without a jury-
    
      James McKeen, for the appellant.
    
      James Burke, Jr., for the respondent.
   Goodrich, P. J. :

In this action, tried before the court without a jury, the following facts were found : The defendant, by the Greater Hew York charter (Laws of 1897, chap. 378), which took effect January 1, 1898, has become liable for the legal obligations of the village of Port Richmond. Between September 1 and December 30, 1897, one Humphreys was employed by the board of health of said village as clerk to the board at a salary of $75 per month, and the board of trustees, on December thirtieth and thirty-first, audited and allowed the claim and issued and delivered to Humphreys warrants directing the treasurer of the village to pay him $300 out of the moneys in his hands on account of the board of health. Such warrants were indorsed and delivered to the plaintiff, who, in March, 1898, filed his claim on said warrants with the deputy auditor of the city of Hew York, for the borough of Richmond, and such claim has not been paid. Prior to September 1, 1897, the village had expended on account of the board of' health $1,141.55 for the year 1896 and $1,226.91 for the year 1897, leaving no money in the hands of the treasurer on account of the board of health.

The court found as conclusions of law that the Public Health Law (Laws of 1893, chap. 661, as amd.) supersedes the village charter (Laws of 1866, chap. 792), and that the fact that the amount expended by the village on account of the board of health prior to the rendering of services by Humphreys exceeded the amount permitted by the charter of the village, was not a defense to the action. Judgment having been directed and entered for the plaintiff, the city appeals.

The question involved is whether section 30 of the Public Health Law repealed section 17 of the village charter. Section 17 of the village charter reads as follows :

“ § 17. Money cannot be borrowed on the credit of, nor can any debt be created in behalf of the village, payable at a future time, nor can any debt or liability be incurred by the village except for the ordinary expenses of the village, within the income of the cuiv rent year applicable to that purpose, nor can any money or property of the village be appropriated or applied for any purpose except as authorized by this act, except that when the raising of money for a special purpose shall be ordered, as provided in this act, the amount may be borrowed or a liability by contract for the special purpose may be incurred, not exceeding the expense ordered, until the amount can be raised by tax as before provided.”

Section 30 of the Public Health Law reads thus : § 30. Expenses, how paid. All expenses incurred by any local board of health in the performance of the duties imposed upon it or its members by law shall be a charge upon the municipality, and shall be audited, levied, collected and paid in the same manner as the other charges of, or upon, the municipality are audited, levied, collected and paid. The taxable property of any village maintaining its own board of health shall not be subject to taxation for maintaining any town board of health, or for any expenditure authorized by the town board of health, but the costs and expenditures of the town board shall be assessed and collected exclusively on the property of the town outside of any such village.”

In Kent v. Village of North Tarrytown (50 App. Div. 502) we affirmed an interlocutory judgment of the Special Term, Mr. Justice Hibsohbeeg presiding, sustaining a demurrer which raised the question whether the complaint stated a cause of action. Mr. Justice Hatch wrote the opinion for this court, which adopted the opinion of the Special Term. That opinion cited the case of Matter of Taxpayers of Plattsburgh (157 N. Y. 78). Both cases involved the question whether the Public Health Law repealed sections of village charters analogous to that here presented ; and it was held that the provisions of the Public Health Law must be regarded as in the nature of an amendment or at least a part of all municipal charters, and that it becomes the duty of the municipal authorities to comply with the orders of the local board of health whether there is any provision to that effect in the charter or not.

The services of Humphreys were rendered in pursuance of the order of the local board of health, and the claim has been.audited and allowed by the village board of trustees.

Following the authorities cited, we' hold that the judgment must be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  