
    In the Matter of the Application of the Town of Ridgeway for a Writ of Mandamus, v. Charles E. Treman, as Superintendent of Public Works of the State of New York.
    (Supreme Court, Erie Special Term,
    June, 1911.)
    Highways — Obstructions, encroachments and unauthorized use of highway — Obstruction. by canal board.
    Mandamus — Mandamus against public officers — State officers — Canal board.
    Where the canal board adopts a resolution providing for a lift bridge instead of a fixed bridge at a highway crossing, on condition that the expense and maintenance of the bridge be borne by the locality, and the town board of the town in which the bridge is situated passes a resolution that the town will pay the expense of operating the lift' bridge, providing, however, that the resolution shall be operative only in the event that the town board can obligate the town to pay such expense; and where the State authorities thereupon erect a lift bridge, but the town takes no valid action to charge it with the expense of operation, the State authorities are not justified in permanently raising the bridge or refusing to operate it; and a writ of mandamus will issue against them.
    Upon an application for a mandamus in such a case, an allegation in the papers read in opposition, upon information and bélief, that no funds are available for the operation of the bridge, is in the nature of a conclusion and not a statement of fact.
    Application for peremptory writ of mandamus commanding that the Superintendent of Public Works of the State of Mew York lower the lift bridge across the Erie canal at Knowlesville in the town of Ridgeway, Orleans county, 1ST. Y.; and to thereafter operate said bridge at the expense of the State of Hew York.
    Irving L’Hommedieu, for motion.
    Henry W. Killeen, opposed.
   Pound, J.

It appears from the papers that in constructing the barge canal a highway bridge at Knowlesville was removed, and was to be replaced. It may be' assumed, although that does not definitely appear, that the bridge was a fixed bridge. The barge canal plans for the work at the point in question called for another fixed bridge. The citizens and officers of the town of Ridgeway were desirous of having a lift bridge in place of a fixed bridge, and represented to the Canal Board that the town would pay the expense of maintenance, or at least pay the bridge tenders to operate a lift bridge. The highway was in existence before the Erie canal was built.

The reason for the preference for a lift bridge appears to be the fact that a fixed bridge would have to be at a high elevation with approaches on each side at a steep grade; whereas, the lift bridge would permit the crossing of the canal on the same grade as the existing highways.

On September 22, 1909, the State Engineer presented a communication to the Canal Board setting forth that the town would provide the necessary power to operate the lift bridge if one should be installed, and practically advising the change. Thereupon and on the same day the Canal Board passed a resolution providing for the substitution, on condition “ that the expense and maintenance of such bridge be borne by the locality.” This resolution was communicated to the supervisor of the town of Ridgeway, and thereupon, and on October 30, 1909, the town board of Ridgeway duly passed the resolution appearing in the moving papers, which resolution in teims recited that the town board " hereby undertakes that the said town of Ridgeway will pay the expense of operating a lift bridge.” The resolution, however, recognized the doubt as to the legality- of the action of the town board by providing that it was to be operative only in the event that the town board could obligate the town to pay such expense.

Thereupon plans for the change were prepared and, in November, 1909, the change was formally recommended by the Canal Board, the “ recommendation being predicated on the adoption by the town board of the town of Eidgeway of a resolution pledging such town to the operation of such lift bridge during the open season of navigation.” In other words,. it appears that the State officials acted upon the belief and assumption that the town of Eidgeway would take such steps.as might be necessary to clothe itself with the power to pay the bridge tenders and, acting upon that belief and assumption, changed the plans and contracted and paid for a bridge more expensive to the State than the fixed bridge originally planned and contracted for. Proof of the increased expense is the statement to that effect of the Superintendent of Public Works. The town of Eidgeway has not undertaken to procure the funds with which to pay bridge tenders, and refuses to pay the money, and alleges a want of power. Finding that the town would not pay the bridge tenders, and would not reimburse the State for the pay of the bridge tenders who were put on by the Superintendent of Public Works at the opening of navigation in May, 1911, the Superintendent laid off the bridge tenders and raised the bridge, leaving it up in the air.

The expenses and wages of bridge tenders appointed by the Superintendent of Public Works to work a lift bridge over the Erie canal, constructed at the request of the town board for the convenience of the town public, may be made a town charge, although the bridge tenders are State employees. The burden of erecting and operating a bridge more costly for the State and more convenient for the town 'than -the ordinary road bridge may be so divided between the ‘State and the town. This is frequently done, both by general -and special act of the Legislature, and I see no constitutional difficulty in the way. Canal Law, § 126; Sun Printing & Pub. Assn. v. City of New York, 152 N. Y. 257, 264, 265; Gilligan v. Town of Waterford, 91 Hun, 21. If a town builds a lift bridge wholly or partly at its own expense, under section 126 or section 127 of the Canal Law, the wages of bridge tenders are directed by law to be paid by the town.

This statute has been upheld in Failing v. City of Syracuse, 4 Misc. Rep. 50. See also 21 id. 145.

The question is whether the expense of the operation of the Knowlesville lift bridge has been made a town charge.

The expense of operating a lift bridge built at State expense may be made a town charge either by express legislative direction or by vote of the town.

The Town Law (§ 48, subd. 11) authorizes the electors of each town at town meeting to determine any question lawfully submitted to them; and (§ 170, subds. 3, 4) provides that town charges shall include the moneys authorized to be raised by the vote of the town for any town purpose, and every sum directed by lato to be raised for any town purpose.

Ho direction of law requires the money to pay bridge tenders to be raised by the town of Eidgeway in this case, nor has the town authorized the moneys to be raised by the vote of ■ a town meeting for that purpose. The town board had no authority to bind the town to pay the bridge tenders, and its resolution was a nullity on its face. The expense has, therefore, not been made a town charge under the Town Law (§ 43, subd. 11, and § 170, subds. 3, 4), and funds for the reimbursement of the State for the payment of these bridge tenders have not been provided.

But it does not follow that the Superintendent of Public Works is thereby justified in permanently raising the bridge or refusing to operate it. Such act, done without legislative authority, obstructs the town’s highway and interferes with the right of the public freely to travel thereon, and technically creates a nuisance. People v. Horton, 64 N. Y. 610, 620.

In the absence of legislative authority or binding agreement to the contrary, as the situation now presents itself, the Superintendent of Public Works is required by section 121 of the Canal Law to maintain and operate this bridge at public expense as a lift bridge, so long ,as it forms a part of the existing highway.

If the town does not act in this matter, a legislative remedy may be sought or the lift bridge be replaced by the ordinary road bridge.

It is alleged in the papers read in opposition to this motion, upon information and belief, that no funds are available out of which the Superintendent of Public Works may pay these bridge tenders. This allegation is in the nature of a conclusion merely. The court will take judicial notice that the canal is being operated and it will assume that the appropriations therefor are not exhausted. But, if the money cannot be legally expended by the Superintendent, he may lower the bridge until funds are available.

Ordered accordingly.  