
    Samuel P. McConnell, Appellant, v. S. Fletcher Allen and Others, as and Constituting the Town Board of the Town of Cortlandt, in Westchester County, New York, and the Town of Cortlandt, Respondents.
    Second Department,
    June 7, 1907.
    Municipal corporations highways in town of Cortlandt — expenditure ■'of moneys received from city of New York.
    The moneys paid by the city of Now York to the .town of Cortlandt in settlement of the damage caused to the town by the maintenance of highways substituted for those submerged by the city were paid as •damages for the increased obligation and not for .the purpose of creating a trust fund to provide for the maintenance of the new highways.
    The.authority of the town officers to expend-said moneys must be determined by chapter 396 of the Laws of- 1905, which requires^ that the income therefrom ■ . shall he expended in such manner as the town board and highway commissioners may direct., ■ ' ' .
    Although the language of the act as' to the investment of said moneys is . permissive, it will be construed to be mandatory.
    The principal of said moneys cannot be expended in the improvement of public highways in the town as surplus moneys. Under chapter 164 of the Laws óf 1899. ' '
    The court cannot.direct upon what highways the income of said fund shall be expended, for the determination of -that question lies with the town board and . highway commissioner, but said officers will he enjoined, from expending the principal
    Rich, J.; and Hirschbebq, R. J., dissented, with opinion.
    . Appeal by the plaintiff, Samuel P. McConnell, from a judgment of the Supreme Court in. favor of the defendants, entered in the office of the clerk of the county of Westchester on the 23d day of July, 1906, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the complaint upon the merits. ■
    This action .was brought under the provisions of chapter 301 of the Laws of 1892 to restrain the proposed expenditure by the defendants, composing the town board of the town of Cortlandt, of a sum of money in. the improvement of a public highway in said town. The money was paid to it by the city of Mew York for damages sustained by the taking of highways flooded and rendered useless by the construction of a dam.
    
      Edward M. Grout [Deam Potter with him on the brief], for the appellant.
    
      Nathan P. Bushnell [Clinton F. Ferris with him on the brief], for the respondents.
   Miller, J.:

I think it reasonably clear that the moneys which are the subject of this controversy were paid to the town by the city of New York as damages for the increased obligation imposed upon the town for maintenance of the highways substituted for those submerged, and not for the purpose of creating a trust fund to provide for said maintenance, as contended by the appellant. The town and the city recognized that the latter was .not bound to maintain said substituted highways, and it had so been held (Matter of Gilroy, 43 App. Div. 359; affd., 164 N. Y. 576), but the increased expense of maintaining guardrails and a greater length of highway was deemed sufficient to support a claim for damages. The method of determining said damages cannot change the fact that the money was paid in settlement of a claim, from which the city was released in consideration of such payment. When said settlement was consummated the city had no further interest in the matter, because it was not concerned in how the town obtained the money to discharge the obligation of maintaining said substituted highways. The cases relied upon by the appellant to show that a trust was impressed upon the fund are not in point, if I am right in what has already been said, for in each it appeared that authority had been given the municipality to acquire property for a specific purpose. However, the authority of the town officers to expend said moneys, presents a different question. Manifestly, we must look to the statute for that authority, and, as it seems to me, to the particular statute passed for the specific purpose of conferring it. That statute is chapter 396 of the Laws of 1905, which authorizes the supervisor, by and with the consent of the town board, to invest said moneys in a specified class of securities, and to collect the interest from said investments., and ip mandatory ternas directs -that the income therefrom shall be expended in such manner as the town board and highway commissioner may direct. The language of the. act conferring authority to invest is permissive, but it is not necessary to cite authority upon the proposition that where a public body or officer . is clothed by statute with power to do an act concerning the public interest, the execution of the power may be insisted upon as a duty ■ though the statute be only permissive in terms, nor does it seem necessary to argue' that the statute requires the consent of the town board to the manner, not to the fact, of investment. I do not see, therefore, how chapter 164 of the Laws of 1891 can apply, but if there were 'otherwise, room for argument on the question, it is set at rest- by the express provision of the latter statute, by which it is made applicable only to “ surplus moneys- for which no provision for expenditure is made.” • • ■ . .

1 do -not think that the courts can direct.- upon' what' highways said income shall be expended, for the statute provides for the determination of that question by the town board and highway commissioner, but as the defendants propose to expend .the principal,' the ¡fiaintifl: was entitled to an injunction restraining them from sc doing. .

■ Woodwaed and Jenks, JJ., concurred; . Rich, J., read for affirmance, with whom Hibsohbeeg, P. J., concurred.

Rich, J. (dissenting):

I dissent. The evidence abundantly sustains the findings of .fact made by the learned trial' court, and the only question meriting serious consideration is whether the town -board has authority to expend the money in question for the purpose intended. It is argned that such authority does not exist for the reasons, first, that the moneys proposed to be expended.are not surplus moneys; second, that the town board is merely a governing board, possessed only of such ¡lowers as are.specifically conferred upon it by statute, and that the making of contracts for and improving of roads is not a governmental but á corporate function, and, third, that -the jurisdiction' of the highway commissioner in repairing and improving the public highways of the town is exclusive. . S

All of these questions are disposed of by chapter 164 of the Laws of 1891 if the fund proposed to he expended is “surplus money”. and the work intended to be done is an ■ “ improvement in said town ” within the meaning of those words as used in the statute cited. Chapter 396 of the Laws of 1905 is merely permissive, the trial court having found that said moneys are not required, either by contract or law, to be invested for any specific purpose. The stat-e ute referred to provides: The supervisor, town clerk and justices of the peace, or a majority thereof, in any town in this State, may expend any surplus moneys for which no' provision for expenditure, is made, belonging to said town, for the purposes of redemption of outstanding bonds or for improvements in 'said town.” In its limited use, as applied to a fund raised by taxation for a specific purpose, the word “surplus” unquestionably means that portion of such fund remaining after the completion or accomplishment of the purpose for which it was raised ; but I apprehend that it may properly be given a broader and more comprehensive definition when occurring iu a statute like the one under consideration. Any 'money owned by and in the possession of a town, not raised by taxation for a specific purpose, not impressed by a trust, or required by contract to be used for a particular purpose, is, in my judgment, surplus ” money—an excess beyond what is wanted or required for immediate town necessities — and if no provision exists for its expenditure, its use is authorized by the statute for improvements. If it be true, as is urged, that such construction vests concurrent power in the town board and highway commissioner as to a highway proposed to be improved by the use of money not raised by taxation for road purposes, such condition involves a question of wisdom and expediency, to be determined by the Legislature and not by the courts.

The judgment should be affirmed, with costs.

Hieschbeeg, P. J., concurred.

Judgment reversed and new trial granted, costs to abide the event. ‘  