
    The New York Central Railroad Company, Formerly The New York Central and Hudson River Railroad Company, Respondent, v. County of Westchester, Appellant, and Frank J. Hoyle and Others, Together Constituting the Bronx Valley Sewer Commission, Defendants.
    Second Department,
    June 9, 1916.
    County of Westchester —construction of Bronx Valley sewer — liability of county to railroad for expenses of protecting roadbed during sewer construction — statutes authorizing said improvement construed — failure of county to advertise construction contracts — action at law to recover for breach of contract by sewer commissioners—burden of proof — stare decisis — Federal decisions.
    Section 15 of chapter 646 of the Laws of 1905, as amended, relating to the construction of the Bronx Valley sewer and providing that all work done involving an expenditure of over $1,000 shall be procured by contract made in tho manner required by the act, refers only to contracts for construction and has no relation to a contract made between the sewer commissioners and a railroad corporation by which easements were acquired in the railroad roadbed under which the sewer was to be constructed. Hence, the fact that the sewer commissioners did not publicly advertise for bids, etc., is no bar to an action by the railroad company to recover the cost of protecting its roadbed during the sewer construction pursu•ant to an agreement that the railroad company should be reimbursed for such expense in consideration of easements granted by it.
    Although section 13 of said act provides that the expenses of the construction of the sewer shall be paid by the treasurer of the county of Westchester out of funds realized by the sale of bonds, the railroad company may maintain an action at law against said county to recover the expenses of protecting its roadbed under the agreement aforesaid, where the sewer commissioners refused to give certificates to the county treasurer for the payment of the claims as required by said act and there is nothing to show that the payment of the claim will make the total cost of the sewer exceed the statutory limitation.
    In such action the burden is not upon the plaintiff railroad to prove that the county treasurer has funds applicable to the payment of its claim.
    A decision by a United States Circuit Court of Appeals is not binding upon the courts of this State, though our courts may approve of the reasoning of the opinion and follow it.
    Appeal by the defendant, County of Westchester, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of Westchester on the 13th day of November, 1915, upon the decision of the court after a trial at the Westchester Special Term.
    
      Arthur M. Johnson [Charles A. Van Auken with him on the brief], for the appellant.
    
      John F. Brennan, for the respondent.
   Carr, J.:

The defendant, the county of Westchester, appeals from a judgment against it in the sum of $18,092.50. The.plaintiff’s claim arose out of the construction of the Bronx Valley sewer, which was constructed under the provisions of chapter 646 of the Laws of 1905, as amended. There is no dispute as to the facts. The important question presented upon this appeal is whether the plaintiff may maintain an action at law to recover the amount of its claims against the county of Westchester. The appellant’s contention is that section 13 of the statute provides a specific method for the payment of all claims arising from the construction of the sewer therein authorized, and that this method is exclusive and no remedy at law exists. The sewer commissioners appointed under that statute were authorized to acquire any land and easements inland that might be required in the prosecution of the work of construction, and they were further authorized to acquire such lands or easements by mutual agreement with the respective owners, and in the event that no agreement could be made, to prosecute the necessary condemnation proceedings. The sewer commissioners made agreements with the plaintiff and its assignors, other railroad corporations, by which easements were acquired in the roadbeds of various steam railroads under which the sewer was to be constructed according to the provided plan of construction. The consideration for the grants of these easements was the reimbursement to the railroad corporations of the actual cost and expenses of the various railroad companies in protecting their roadbeds during the prosecution of the work of sewer construction at the various points where the sewer crossed under the beds of the railroads. These claims of the plaintiff are made up of various independent items, several of which exceed the sum of $1,000. The appellant claims that there is no liability for these items, as there was no public advertisement for bids and letting of contracts as to these items as required by section 15 of the statute. If that section applies to the situation at bar then these items set forth in the 1st, 5th and 7th causes of action of the amended complaint do not constitute legal charges against the county of Westchester. Section 15, as aforesaid, provides as follows: “All work hereby authorized to be done, and all materials hereby authorized to be furnished, involving an expenditure of over one thousand dollars, shall be procured by contract made in the manner required by and pursuant to the provisions of this act.” I think this section of the statute had no application to contracts made for the acquisition of real property or easements in real property required by the definite plan for the construction of the sewer. These contracts in their very nature could not be subject to advertisements for bids and a public letting. It is true that the agreement for acquisition of the easements in question required as a consideration the payment of an amount to be ascertained, and not a then fixed purchase price. But the amount to be ascertained was fixed upon the actual cost of certain things necessary to be done by the various railroad companies, and was readily fixable when such things were done. I think this point of contention, as set forth in the appellant’s point IV, is not well taken. This brings us to the serious point of this appeal. Can the plaintiff maintain an action at law in view of the provisions of section 13 of the act of 1905 ? That section provides that the expenses of" the construction of the sewer “shall be paid by the county treasurer on the certification of the said sewer commissioners, * * * out of money or funds which shall come into his hands 'as provided in this act and which under the provisions of this act shall be applicable for that purpose. And all moneys which may become due and payable by virtue of the provisions of this act shall be paid by the county treasurer of Westchester county out of funds by this act applicable to that purpose.” The funds “by this act applicable to that purpose ” were the proceeds of the sale of bonds of Westchester county authorized by section 14 of the act. In that section the entire cost of the sewer was limited to $2,000,000, but the amount of the limited total cost of the construction was subsequently increased to the sum of $3,866,170 by amendments of this section of the statute. (Laws of 1907, chap. 747; Laws of 1911, chap. 869; Laws of 1912, chap. 550; Laws of 1914, chap. 487.)

It was held practically by this court in Matter of Andrus v. Burling (144 App. Div. 805) that no claims against the county, which would render the cost of the construction of the sewer greater than the total amount authorized by the statute, could be enforced against the county under the terms of this statute. But that question is not involved in this appeal. Such would be a matter of defense to be pleaded and proved. (People ex rel. Gleason v. Scannell, 172 N. Y. 316.) It was not pleaded, and no offer was made to prove it, and for the purposes of this appeal we must assume that the plaintiff’s claims were within the amount authorized by statute for the total cost of the improvement. The sewer commissioners gave no certificates to the county treasurer for the payment of the plaintiff’s claims, as required by section 13 of the act. They were requested to do so, but refused. In other words, they refused an audit of what was, under the statute, a county charge. Under such circumstances an action at law could be maintained, generally, against the county. (New York Catholic Protectory v. Rockland County, 212 N. Y. 311.) There is nothing in this record that discloses whether the county treasurer has, or not, funds applicable to the plaintiff’s claim. It was not incumbent upon the plaintiff to prove the existence of such funds, if it had the right to maintain an action at law. The legal question involved on this appeal has been considered recently by the United States Circuit Court of Appeals, Second Circuit, with reference to this very statute, in American Pipe & Construction Co. v. Westchester County (225 Fed. Rep. 947) where it was held that an action at law could be maintained against the county of Westchester for work done under the provisions of this statute. That decision is not binding upon this court, as an authority, but we approve of the reasoning of the opinion.

The judgment is affirmed, with costs.

Jenks, P. J., Thomas, Stapleton and Putnam, JJ., concurred.

Judgment affirmed, with costs.  