
    Peter Bruner et al., App’lts, v. Michael Lewis et al., as Highway Commissioners, Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    1. Highways—Repair op—Consent op board op auditors a pre-requisite—Laws 1865, chap. 442.
    Under Laws 1865, chapter 442, which provides that in case roads shall be destroyed after the regular town meeting the commissioners of highways may, “ by and with the consent of the town auditors," cause the repair of the roads to he immediately made, and that the expense, with the: proper vouchers, shall be presented at the next annual meeting for audit, and the amount collected as other highway taxes are. Held, that under this act the board of auditors are hound to consent before the repair is. made.
    3. Same—When evidence will sustain pinding.
    Evidence that the roads were not in good condition before the town meeting, and, afterwards, became much worse, and in places dangerous, and that the stone and sand and everything was completely washed out, and that you had to get into the gutter to pass through, will sustain the finding that the moneys were expended in repairing holes, gutters and washouts.
    Appeal from a judgment dismissing the plaintiff’s complaint.
    
      Baker & Risley, for app’lts; Martin J. Keogh, for resp’ts.
   Barnard, P. J.

—The defendants, as commissioners of the highways of the town of Westchester, applied to the board of town auditors for leave to expend the public money in repairing roads destroyed by storms after the date of the regular town meeting in the year 1888. The-board of town auditors gave leave to expend $4,300 on the-roads of the town, specifying the roads and the amount to be expended on each. This action is brought by the plaintiffs as taxpayers to prevent the expenditure of this, money.

The statute under which the town auditors acted is-chapter 442, Laws of 1885. This provides that in case roads shall be destroyed after the regular town meeting the-commissioners of highways may, <l by and with the consent of the town auditors,” cause the repair of the roads to be immediately made, and that the expenses, with the proper vouchers, shall be presented at.the next annual meeting for audit, and the amount of the audit shall be collected as other highway taxes are required to be.

The board of auditors, under this law, were bound to consent before the repair was made. Boots v. Washburn, 79 N. Y., 207.

The bills were to be audited after the expense was incurred. The consent was not improper because it limited the expense of the repairs. Such action was proper, and no-expenditure would be authorized beyond the actual necessary cost of the repair, although the appropriation or consent was for a larger expenditure. The only remaing question is, whether the evidence justifies the finding of the "trial'judge that the moneys were all expended in repairing “ holes, gutters and washouts,” which were made after the •annual town meeting held in March, 1888. The evidence is not very conflicting, except in one particular, all the witnesses testify to the bad condition of the roads, but the main point of dispute seems to be this: they were as bad before town meeting as they were after. In the case above ■cited, the expenditure was permitted to construct a bridge which had been carried away before the town meeting. The bulk of the evidence shows that the roads were injured greatly by the rain which followed the severe snow storm which occurred before the town meeting, and about the middle of March, 1888. The supervisor of the town, the ■commissioner of highways and one of the town auditors went over the roads after the rain storm, and inspected the ■condition of the same before permission was given. The ■expenditure has been made as permitted by the town auditors, and the evidence seems to show that the roads are not in good condition yet.

One of the commissioners, Flynn, testifies that the roads were not in good condition before the town meeting, and became much worse, and, in places, dangerous, after the rain storm which followed the snow storm, as they were not so before the town meeting, he says: The testimony he gave as to the White Plains road, which was one where expenditures of money was permitted, “the stone and sand and everything was completely washed out, and you had to get into the gutter to pass through.” Under this state of the evidence, the findings of the judge seem to be well supported, and the judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman* «L, not sitting.  