
    The People ex rel. John Slater, Resp’t, v. Jacob Smith et al., as Town Board, etc., App’lts.
    
      Supreme Court, General Term, Fifth Department,
    
    
      Filed December 26, 1894.)
    
    1. Bridges—Authority to re-build.
    A resolution of a town hoard that the commissioner of highways “is
    
      hereby authorized to repair the bridges that may have gone down since the annual town meeting, to the best of his judgment,” authorizes such commissioner to rebuild a bridge which had fallen by reason of the decay of its timbers.
    2. Mandamus—Auditing claim.
    Where, in such case, the town board erroneously rejects the claim of such commissioner for moneys expended in rebuilding a bridge, on the ground that the resolution did not authoriz; such expenditure, mandamus will lie to compel the audit of such claim on the merits.
    Appeal from a final order, directing a peremptory writ of mandamus to issue.
    
      Roy C. Webster and John Desmond for app’lts; John Van Voorhis, for resp’t.
   Bradley, J.

The relator was commissioner of highways of the town of Greece, county of Monroe, in the year 1891 and until March, 1893. On April 25, 1891, he appeared before the board of town auditors, and called its attention to the condition of what was known as the “ Little Pond Bridge ” and another bridge in the town; and thereupon the board passed the following resolutions:

“ Resolved, that the commissioner of highways (John Slater) of the town of Greece is hereby authorized to repair the bridges that may have gone down since the annual, town meeting, to the best of his judgment.”
Resolved, that it is the sense of this board that John Slater, commissioner of highways, should be reimbursed for moneys expended by him for the benefit of the town of Greece.”

■ The relator thereafter, in that year, constructed a new Little Pond bridge, at the expense of $291 for the abutments, and $800 for the iron superstructure. The board audited and allowed to the commissioner the amount of such expense for abutments, and rejected- his claim for the superstructure: Upon' his petition, an alternative writ was issued, requiring the defendants, as such board, to audit the claim or account for such amount, with interest, or show cause why the command of the writ ought not to be obeyed. By their return to the writ, the defendants admit the adoption of the resolutions before mentioned, and deny that the relator had, by such resolutions or otherwise, any authority to build the bridge so constructed, or that they, by any action on their part, ever accepted the bridge. They admit that the relator presented such claim to the board, and that the audit of it was refused, but deny that the refusal to audit the claim was arbitrary, illegal, and in violation of their duty. The trial of the issues resulted in a verdict for the plaintiff, followed by a final order of the court that a peremptory writ of mandamus issue, commanding the members of the board of town auditors to assemble as such, and audit and allow such claim of the relator. The old bridge was a wooden one, constructed on log abutments and pier, and was about 45 feet in length. The logs had become somewhat decayed, as had also some of the stringers. After the town meeting in that year, and on April 24th, one end of the bridge fell down, and it was thus rendered impassable. The next day the resolutions above set forth were adopted by the town board.

The leading question is whether,-by those, resolutions, the board consented to the construction of the bridge as it was constructed, within the meaning of the statute which provides that:

“ If any highway or bridge shall at any time be damaged or destroyed by the elements, or otherwise, the commissioner of highways of the town in which such highway or bridge may be situated, may, with the consent of the town board, cause the same to be repaired or rebuilt, although the expenditure of money required may exceed the sums raised, or authorized to be raised, for such purpose as hereinbefore provided; and the commissioners of highways shall present the proper- vouchers for the expenses thereof, to the town board at their next annual meeting and the same shall be audited by them and collected in the same manner as amounts voted at town meetings.” Laws 1890 c. 568, § 10.

The statute also provides for calling special meetings of the board to audit commissioners’ accounts for such expenses (Id. § 11), and for verification of such accounts (Id. § 12). There was in the consent given by the resolution no restriction as to the manner in which the commissioner should proceed to provide a bridge at the place in question, unless it is found in the use of the word “repair, and what was reasonably essential to the purpose was expressly left “to the best of his judgment.” It would therefore seem .that if, in his judgment, it was deemed best or necessary to its reparation to remodel or reconstruct the bridge, to do so would apparently come within such consent. Mather v. Crawford, 86 Barb. 564; Huggans v. Riley, 125 N. Y. 88; 34 St. Rep. 458. And inasmuch as the commissioner was the officer having the care and superintendence of the highways and bridges in the town, and was charged with the duty of keeping them in repair (Laws 1890. c. 568 § 4), the board were lawfully permitted to make his judgment the measure of their consent. He had been placed, pursuant to the statute, in that relation to the public, and in that view the board were at liberty to assume that he would faithfully ex: ercise his judgment and perform his duty in that behalf. If,the reparation in material and structure of the passageway made by him over the stream or waterway was the product of his judgment, it is not seen that the commissioner of highways exceeded the consent granted to him by the town board. It may be assumed that, in the exercise of his official functions, the commissioner acted in good faith, and therefore according to the best of his judgment, in the matter, unless the contrary appears. This is the rule applicable to the action of officers clothed with discretionary or judicial powers. The old bridge had been supported by log abutments at the ends and a wooden pier in the center, consisting of posts supporting a crib of logs. The floor of the bridge rested upon wooden stringers. The logs of the southerly abutment had gone out, and that end of the bridge dropped down. It appears that the other abutment was in a bad condition, and that the pier and substantially all the timbers of the bridge had become somewhat decayed. It cannot well be said that the commissioner was not justified in his conclusion that the repair of the bridge required its reconstruction. He accordingly let the work of putting in stone abutments to the lowest bidder, and in like manner contracted for the iron superstructure. Before that was supplied, he put plank upon stringers temporarily for the use of the bridge. It is urged that, as in that condition it could have been used by the public, the expense of the iron superstructure was unnecessary and unauthorized. It appears that the highway embracing the bridge is a throughfare upon which there is much travel and transporation, with teams and vehicles heavy as well as light; and the relator may, having in view the safety and durability of the bridge, have deemed the reconstruction of it as it was accomplished more economical for his town than the restoration of the wooden bridge would have been. This, within the meaning of the consent of the town board, given as before mentioned, was a matter to be determined by the exercise of the relator’s judgment.

The contention on the part of the defense is that the controversy has relation only to the exercise of power judicial or discretionary in character of the town board, and that, as the board has acted in rejection of the claim, there is no support for the remedy of mandamus. The legal proposition so stated is substantially correct. It is not the province of the writ to review the exercise of such power, or to direct what the result of its exercise shall be; and, if that is the only purpose it can serve in the present case, the relator is not entitled to it. People ex rel. Hammond v. Leonard, 74 N. Y. 443 ; People ex rel. Francis v. Common Council of Troy, 78 N. Y. 33 ; People ex rel. Millard v. Chapin, 104 N. Y. 96f5. St. Rep. 588; People ex rel. Myers v. Barnes, 114 N. Y. 317; 22 St. Rep. 164. But that is not the situation. The town board did not audit the relator’s account, and the main ground of its rejection was that no consent or authority had been given to him to build the iron bridge. In this, as viewed here, the board did not give the effect to the resolutions to which they were entitled; and, as he had such consent, it became the duty of the board to aud it his bill on the merits, when duly presented for the purpose.

The question whether the consent expressed in the resolution of the board was broad enough to authorize the relator to proceed in the manner he did to provide the bridge was one of construction, in view of the circumstances as they then existed. Its interpretation or effect was not necessarily a matter to be controlled by the judgment of the board when the relator’s claim was presented, and, so far as there was any facts legitimately bearing upon that question, they properly were the subject of consideration upon the trial of the issues made by the return of the alternative writ

The position urged that the purpose or measure of the consent was a matter necessarily to be determined by the judgment of the board is not sustained, and therefore the construction and effect given to the consent is the subject of review in this proceeding. As the board erred in that respect, the rejection of the account on that ground did not conclude the relator in seeking to require that his account be audited. People ex rel. Bliss v. Board of Sup'rs of Cortland Co., 39 St. Rep. 313.

The relator incurred some expense in providing and erecting "the iron superstructure of the bridge, and, by reason of the consent so given him, is entitled to payment of the amount reasonably, incurred by him in that behalf. His bill for it is $800, exclusive of interest; and, so far as it appears here, that sum was the amount of the expense actually incurred by him. But that question is not here for consideration. It is properly the subject of inquiry by the town board, in the determination of which its action will be judicial in character; and, as before stated, the result of its audit of the claim upon the merits is not the subject of direction by the peremptory writ.

The suggestion that the matter of the account had passed from the jurisdiction of the town board when this proceeding was commenced, and therefore it was instituted too late for the purpose of any relief, requires no consideration. It does not necessarily so appear in respect to the account which the relator seeks to have audited; and no such question seems to have been specifically raised at the trial or pointed to by any exception. The purpose of the writ is to require the officers constituting the town board, as such, to act, and any change in the personnel may be disregarded. People ex rel. Case v. Collins, 19 Wend. 56.

There was no error in any rulings on the trial bearing upon questions essentially pertinent to those before the court for consideration, and none to the prejudice of the defendants. The order appealed from, among other provisions, directed that the peremptory writ command the town board to “ audit and allow the claim of the relator,” etc. ■ This may be susceptible of a construction which would give to it an import broader than that intended by the court. The order should therefore be modified by striking •out the words “ and allow,” and by inserting in the place thereof the words “ on the merits; ” and, as so modified, the order should be affirmed, with costs to the relator.

All concur.  