
    In the Matter of the Application of Martin Niland, Petitioner, for a Writ of Certiorari to John W. Bowron, Supervisor, and Ogden S. Bradley and Others, Constituting the Board of Auditors of the Town of New Castle, Westchester County, New York, Respondents.
    Second Department,
    June 15, 1906.
    Town — highway commissioner—.powers in laying out highway — ultra vires contract void and cannot be ratified by town board.
    One dealing with a municipal corporation whose powers, are limited and defined by law must take notice of such limitation.
    Where, on a petition for the laying out of a highway, commissioners appointed by the court have reported in favor of the highway and that the probable cost would be about §1,000, which report has been duly confirmed, a contractor who constructed a highway at a cost of §6,000 under a contract made by the highway commissioner cannot compel the audit of his claim.
    A highway commissioner is only authorized by section 98 of the Highway-Law to take steps necessary to lay out a highway as defined in the petition therefor, and has not an unlimited discretion to pave and macadamize a newly- ' opened highway.
    As such contract is ultra vires it is void and there can be no ratification thereof by the town board, for, as the mode of contracting is limited by the statute, an implied contract cannot be raised.'
    Certiorari issued out of the Supreme Court and attested on the 30th day of January, 1905, directed to John W. Bowron, supervisor, and others, constituting the board of auditors of the town of Mew. Castle, Westchester county, Mew York, requiring them to certify and, return to the office of the clerk of the county of Westchester all and singular their proceedings had in disallowing the claim of the petitioner,-a contractor, for his compensation for building a public highway. ' .
    
      Pierre Reynolds, for the petitioner.
    
      Joseph E. Merriam, for the-respondents.
   Woodward, J.:

Aaron Lewis, a taxpayer of the town of Mew Castle, on the 19th day of July, 1902, presented a petition to the County Court ofWestchester county, under-.the provisions of the Highway Law,, praying for the appointment of three commissioners to determine upon the necessity of laying out a road in the town of Mew Castle, pursuant to- the terms of said petition. 'The commissioners were duly appointed, and upon viewing the locality and hearing-the evidence, reported in favor of the'roadway, and that the probable cost would be about $1,000. This report was duly confirmed, and David L. Barnum, as Sole highway commissioner of the town, blaiming to act under the authority of section 98 of the Highway Law (Laws of 1890, chap. 568), entered into a contract with the r.elator, under the provisions of which'the relator has constructed a permanent road- • way . at a cost of $6,000 with some.extra work. The town board at meetings héld subsequent to ■ the making, of .this contract took action apparently with the intention of giving sanction to the same, but at a subsequent date, when the relator’s .bill was offered for audit, the board , of tpwn auditors rejected the samó, and this proceeding is brought to review the action of the board in thus rejecting the claim.

The law is wéll established tha't persons dealing with 'municipal Corporations whose powers are defined and limited by law are bound to take notice-of these limitations, and if the relator lias entered into-a contract for the performance of work which is not authorized by law or by the proceedings which have been taken, he- is in no posi- i tion to insist upon the audit of' his bill. Article 4r of the Highway Law provides .for, “ laying out,, alterihg and discontinuing high-ways, and laying out private roads.” , Sections 80 to 97, both inclusive, as amended, provide the proceedings, and section 93 (as amd. by Laws of 1898, chap. 106) specially provides the method of ¡laying the damages and costs where a highway is laid out under the provisions of the statute. Section- 98 then provides that “ the final determination of commissioners appointed by any court, relating to the laying out, altering or discontinuing a highway, and all orders an'd other papers filed or entered in the proceedings, or certified. copies thereof from the court where such determination, order and papers are filed and entered, shall be forthwith filed and recorded in the town clerk’s office of the town where the highway is located, and every such decision shall be carried out by the commissioners of highways of the town the same as if they 'had made an order to that effect.”

_ Where is the authority to be found in this provision in reference to the laying out of a new highway for the construction of an expensive roadway for which the town has provided no means of payment and for the payment of which there is no provision in the statute % The fair and only reasonable construction of this language, it seems to us, is that the highway commissioners are to take the steps necessary to lay out the highway as defined in the petition, not that they are given an unlimited discretion to macadamize or pave a newly-opened highway, and as this is the only pretended authority for the contract which the relator has made and per- ^ formed for the sole commissioner of highways of the town, we are clearly of opinion that he is not entitled to the relief which he seeks on this review. ISTor is there any authority on the part of the town board to authorize the construction of this expensive piece of highway work in so far as our attention is called to the statute, and as neither the commissioner nor the town board, had any authority to make the contract in the first -instance, the alleged ratification of the town board could not give forcé to the contract, the law being well settled that when the act is done ultra vires it is void and there can be no ratification, and when the mode of contracting is limited and provided' for by statute an implied contract cannot be raised. (Kramrath v. City of Albany, 127 N. Y. 575, 581.)

'We have examined the authorities.,to which our attention is called by the relator, but they do not appear to bear out his contentions, and we aré of opinion' that the board of auditors of the .town, of New Castle.were justified in refusing to audit the relator’s claim.

The writ of certiorari should be dismissed, with costs.

Hirschberg, P. J., Jenks, Gaynor and Rich, JJ., concurred.

' Writ of certiorari dismissed, with costs.  