
    Bell and others, executors, &c. vs. The town of Esopus.
    An action will not lie against a town, to recover a claim arising upon contract.
    Parties who contract to render services for either town or county do it with a knowledge that their remedy, to'procure payment is through the action of the board of supervisors. Where that body neglect or refuse to discharge a duty fairly imposed by law, performance Will be compelled by mandamus.
    
      THIS is a motion for a new trial, upon exceptions ordered to be heard in the first instance at general term. The action was tried at the Ulster circuit on the 27th day of of March, 1865, and the plaintiffs were nonsuited.
    
      T. R. Westbrook, for the plaintiffs.
    
      J. Hardenbergh, for the defendants.
   By the Court, Ingalls, J.

In my judgment there is an insurmountable obstable in the way of a recovery by the plaintiffs in this action, which is that the action cannot be maintained against the town of Esopus to recover the money in question. Neither the statutes of 1853 or 1854 provide a remedy by action against the town ; and the current of judicial determination in this state has been nearly, if not wholly, unbroken against the maintainance of such an action. It rests upon principle ; for to allow actions of this nature to be prosecuted to recover claims arising upon contract, against towns or counties, would create endless litigation. Certainly there is no serious hardship in adhering to a rule so well established and so wise in itself. Parties who contract to render services for either town or county do it with a knowledge that their remedy to procure payment is through the action of the board of supervisors. Where such body neglect or refuse to discharge a duty fairly imposed by law, performance may be compelled by mandamus. (Brady v. Supervisors of New York, 2 Sandf. 460; affirmed by Court of Appeals, 10 N. Y. Rep. 260. The People v. Supervisors of Ulster County, 3 Barb. 332. The. People v. Edmonds, 15 id. 529. The People v. Supervisors of Livingston Co., 43 id. 298. The People v. Supervisors of New York, 32 N. Y. Rep. 473. Martin v. Supervisors of Greene Co., 29 N. Y. Rep. 645.)

If we are correct in this position it is conclusive in this case, and renders the examination- of the other questions raised upon the trial unnecessary. A new trial must be denied, with costs.

[Albany General Term,

May 6, 1867.

Peckham, Ingalls and Hogeboom, Justices.]  