
    Edward Henry Kent, Respondent, v. The Village of North Tarrytown, Appellant.
    
      The sufficiency of a complaint considered on a demurrer to the answer—pleading the presentation of a bill to a milage — employment of assistants by a milage hom'd of health — charge therefor, how audited—authoi'ity of the pn'esident of the milage to contract for services.
    
    Upon the hearing of a demurrer to an answer .the defendant may attack the sufficiency of the complaint.
    A complaint in an action against a village, which alleges the rendition of services for which the village is liable, the presentation of the bill to its board of trustees for audit, the rejection of the bill by the board of trustees and the lapse of thirty days after the rejection, constitutes a good pleading.
    Under section 21 of the Public Health Law (Laws of 1893, chap. 661), authorizing a village board of health to suppress nuisances, and to make and publish orders and regulations in connection therewith, and to employ and fix the compensation of such persons as may be necessary to carry such orders and regulations into effect, the right to employ assistants is not limited to commence upon the making of a valid regulation or order, but extends to the right to employ a person to inspect and report to the board upon a given situation, although no rule or regulation has been made in respect thereto.
    The provision of section 21, authorizing the board of health to fix the compensation of a person so employed, refers to a hiring for a specific period and to the fixing of a per diem or other compensation measured by the length of service and its character, and does not relate to the auditing of a bill for the aggregate amount of charges for services rendered by a surveyor to the board of health, extending over a considerable period of time.
    Under section 30 of . the Public Health Law, such a bill is a village charge and must be audited by the trustees thereof before it constitutes a legal charge.
    The fact that at the time the services were rendered to the board of health, the village did not have on hand funds sufficient to pay therefor, does not constitute a defense to an action brought against the village to recover the value of the services.
    
      ’ Where the president of a village board of trustees, who was authorized by the board to resist an application for land under water within the corporate limits of the village, employs a surveyor to make a map showing how the village would be affected if the grant were made, and the village accepts the services and promises and agrees to pay the surveyor a certain sum therefor, it is liable to him for that amount.
    Appeal by the defendant, The Village of North Tarrytown, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the Ifth day of September, 1899, upon the decision of the court rendered after a trial at the Orange Special Term, and also from an order entered in said clerk’s office on the 27th day of January, 1899, sustaining the plaintiff’s demurrer to the third and separate defense to the first cause of action, and the demurrer to the third and separate defense to the second cause of action contained in the defendant’s amended answer.
    
      Henry O. Griffin, for the appellant.
    
      0. 8. Davison, for the respondent.
   Hatch, J.:

So far as the plaintiff’s demurrer to the separate answers of the defendant is concerned, the opinion which was delivered by the learned court below is entirely satisfactory upon such question. We adopt it as the opinion of this court in answer to the claim in this respect made by the defendant. The defendant, upon this appeal, however, attacks the complaint, and claims that it is bad in that it does not state a cause of action. The right to attack the complaint for insufficiency is clearly given. (Baxter v. McDonnell, 154 N. Y. 432.) The learned court below, in disposing of the demurrer, did not consider the question of the sufficiency of the complaint, and we are, therefore, called upon to make disposition of that branch of the controversy.

In substance, the complaint avers that the defendant is an incorporated village; that during the month of March, 1896, a local board of health was duly appointed as provided by the Laws of 1893, known as the Public Health Law; that such local board of health duly elected one of its number president, and appointed a health physician; that such local hoard of health employed the-plaintiff to carry into effect its orders and regulations, and having received numerous complaints made by the inhabitants of the defendant, concerning nuisances which caused danger and injury to' life and health within the municipality, employed and designated the plaintiff to inspect and examine premises where nuisances or conditions dangerous to life and health were known or believed to* exist; that under such employment thé plaintiff performed work, labor and services —• giving the dates — concerning nuisances within such village, and made a sanitary map, surveys and field books which located and described the nuisances and causes of danger; that by reason of the premises and in consideration of the said work, labor and services, the said local board of health fixed the qfiaintiff’s compensation at the sum of $250; that a copy or account of the bill, together with the particulars of the labor and services, was thereafter presented to the board of trustees of the defendant for audit; that on or about the 27th day of December, 1897, audit and allowance were refused by the said board and the claim rejected ■ that more than thirty days have elapsed since such rejection ; that thereafter the defendant appointed a committee to procure the said maps, surveys, drawings and field books relating to such service as set forth in the bill presented, and the plaintiff and defendant thereupon effected a settlement and compromise of the matters of difference and dispute between them; that the defendant, on the 18th day of April, 1898, passed a resolution accepting said surveys, maps, etc., for which it was to pay the sum of $250 upon the execution by the plaintiff of a general release of such claim and of the matters in difference between them; that the plaintiff was advised of the passage of such resolution by the defendant, and surrendered the surveys,, drawings and field books to it; offered to withdraw all suits and claims and demands, and to execute a general release in such form as the defendant might require to effect a settlement pursuant thereto; that the defendant refused to consummate or carry out its agreement of settlement or to pay the said sum of $250, and that the defendant is indebted to the plaintiff in such sum.

As a second and separate cause of action, the plaintiff avers that-Howard H. Morse, president of the defendant’s board of trustees, was authorized by the board to resist ■ an application by certain named parties to obtain a grant of land under the waters of the Hudson river, within the corporate limits of the defendant; that plaintiff was employed in connection therewith by the said Morse to make a map of the river front of the defendant in the matter of said application, showing how it would be affected if the grant of land was made; that plaintiff accepted and performed said services in connection therewith, which were of the reasonable value of $50, for which the defendant promised and agreed to pay; that a copy of the account or bill of particulars of such work, labor and services was made out and presented for audit to the board of trustees of the defendant on or about the 27tli day of December, 1897; that audit thereof was refused by the said board and the claim was rejected, and that the defendant has failed and neglected to pay such sum. Judgment was demanded for the sum of $300, with interest thereon at the respective dates named.

It is claimed by the defendant that' the averment that plaintiff was employed by the local board of health to carry into effect its orders and regulations is the statement of a mere conclusion and not of a fact. Assuming that the statement “ that such local board of health employed plaintiff to carry into effect its orders,” is the statement of a mere conclusion which, standing alone, would be quite insufficient as an allegation of fact, it is, however, followed by an averment as to what the plaintiff did in connection with such employment, and the averments in this respect are allegations of fact and are not subjects of criticism. By virtue of section 21 of the Public Health Law (Chap. 661, Laws of 1893), the board of health is authorized to make and publish orders and regulations for the suppression of nuisances. It is also authorized to carry into effect and execute the Public Health Law in the municipality and to suppress nuisances. To carry into effect the orders and regulations which it may make, the said board is authorized to employ such persons as shall be necessary for the purpose and to fix their compensation. The criticism is that it nowhere appears that any legal regulation or order was made by the board of health; that, without such preliminary step, it was not authorized to employ any person, and that the complaint should have contained an averment of the regulations and orders as made by the board of health before any legal employment would be shown.

We think this construction of the powers and duties of the board of health is much too narrow, within the scheme of the Health Law. It is required to execute the laws, suppress nuisances, and to make rules and regulations in connection therewith ; but it is quite evident that in order to properly discharge its duties in this connection, an examination and determination of the specific conditions must be made before it would be established that a nuisance in fact existed. ' The mere complaint of a nuisance would not have the effect of determining that a nuisance existed; neither would a declaration of the board of health establish a given condition to be a nuisance when in fact it was not só. ( Village of Flushing v. Carraher, 87 Hun, 63.) If the thing declared a nuisance was not such in fact, no complaint or declaration of the board would make it so. It is evident that before a nuisance could be declared, the board must at least be possessed of such information as would enable it to determine that the thing was in fact a nuisance and so declare it to be. Then would follow the rules and regulations for its suppression.

In the execution of the statute, therefore, we think it would be quite within the powers of the board to make employment of persons when necessary to inspect, report and describe a given situation, in order that the board of health might intelligently act thereon, and that the language of the statute that it could employ persons to carry into effect its rules and regulations is not necessarily limited to the right to employ after the nuisance has been declared, but that it is broad enough in its scope, when taken in connection with the purposes and objects of the law, to authorize the employment of necessary persons in connection with the whole subject-matter, as well as the duties which they are obligated to perform. Construed in this light, the averment of fact in the first cause of action shows that the employment and the acts performed were of a character within the contemplation of the statute, the performance of which was devolved upon the board of health. We conclude, therefore, that this averment of the complaint, taken in its entirety, is an allegation of the fact of employment and the performance of service, within the power of the board of health to engagé.

By the express provision of the statute the board was authorized to fix the compensation of the plaintiff. We do not think, however, that this has reference to the audit of a bill of an aggregate amount fcr services extending over a considerable period of time, but that it rather refers to a contemplated hiring for a specific period, and relates to the fixing of a per diem or other compensation, measured by the length of service and its character. It is quite clear that in any event the board of health was not the auditing body; but the value of the service became a charge against the corporation, and as such was to be audited by the board of trustees of the village before it would constitute a legal charge. This is the express provision of section 30 of the Public Health Law, and the proposition that it is properly applicable to such a case as this has the support of authority. (People ex rel. McGovern v. Trustees, 2 App. Div. 29; affd. on appeal, 153 N. Y. 643.) The complaint, however, is not bad by reason of this averment. Other allegations therein show the proper presentation of this bill to the board of trustees of the corporation and its entire rejection by the board more than thirty days before the commencement of the action. The subsequent averments of the complaint may be treated as surplusage. They were proper allegations, perhaps, as setting out the facts in connection with the subsequent action of the board of trustees, but no liability is created by reason of any acts which the board afterwards took, either of commission or omission. As, however, the complaint sufficiently averred the rendition of services for which the corporation is liable, the presentation of the bill to the board for audit, refusal to audit and rejection by it, and the lapse of more than thirty days after such action, constituted a good pleading and alleged a cause of action, and if the services were of the value stated, entitled the plaintiff to recover. (Port Jervis Water Co. v. Village of Port Jervis, 151 N. Y. 111.) The distinction between the cases and principles relied upon by the appellant in connection with this matter is set forth in the opinion in the case' last cited, and authorizes the maintenance of this action.

So far as the second cause of action is concerned, the criticism is that the employment was not shown to have been by the defendant, but by the president of its board of trustees. We think such criticism may not be upheld. The interest of the defendant in the subject-matter is clearly averred, and the services which were performed are shown to have been for the interest of the corporation; further, that on account of the rendition of the service the defendant agreed to pay therefor the sum of fifty dollars. .It was perfectly competent for the corporation to ratify the act of the president and board of trustees in employing the plaintiff, and as the corporation accepted the service and promised and agreed to pay therefor, it became bound. (Kramrath v. City of Albany, 127 N. Y. 575.)

We reach the conclusion that the complaint is good in its statement of causes of action, and that the demurrer to the answers and separate defenses interposed by the defendant was properly sustained.

. The interlocutory judgment should, therefore, be affirmed.

All concurred, excej)t Hirschberg, J., not sitting.

Interlocutory judgment affirmed, with costs.

The following is the opinion of the court below :

Hirschberg, J.:

The demurrer should be sustained. It is interposed to similar separate answers to the 'two. causes of action set up in the amended complaint and which separate answers plead in effect “ no funds ” as a defense.
The services rendered to the board of health and embraced in the first cause of action are within the powers conferred by the Public Health Law. By section 21 of this act (Chap. 661, Laws of 1893) the board is authorized to employ such persons as shall be necessary to enable it to carry into effect its orders and regulations and fix their compensation. The orders and regulations referred to are such as the board may deem necessary and proper for the preservation of life and health, the suppression of nuisances, and the execution and enforcement of the Public Health Law in the municipality. These may be either of general application or in individual, cases. Whenever such board in any incorporated village shall deem the sewers insufficient to protect the public health, it shall certify the fact to the board of trustees with its recommendations of additions and alterations and a statement of its reasons therefor. By section 21 it is made the duty of the hoard to guard against the introduction of contagious and infectious diseases, and to require the isolation of persons and things infected and exposed. By section 25 the board is required to receive and examine into all complaints made by any inhabitant concerning nuisances or causes of danger or injury to life and health within the municipality, and may enter upon or within any place or premises where nuisances or conditions dangerous to life and health are known or believed to exist, and, by its members or other persons designated for that purpose, inspect and examine the same. These powers are broad and general and should be interpreted in the light of the beneficial purposes to be subserved. They include constant and necessary inspection and supervision with the view of anticipating, suppressing and preventing all dangers which may threaten the public health.
The first cause of action alleges that plaintiff was employed by the defendant’s board of health to carry into effect its orders and regulations and to inspect and examine premises of which complaint had been duly made where nuisances or conditions dangerous to life or health were known or believed to exist, and that he performed work under such employment and under the direction of the health officer in such inspection and examination and made a written report with a sanitary map, surveys, field books and data, locating and describing the nuisances and.causes of danger. It further alleges that the board of health fixed his compensation at the sum of §250, but that the board of trustees rejected his claim when presented, but at a subsequent meeting passed a resolution accepting the map, surveys and field books referred to for said sum of $250 upon his withdrawing all suits, claims and demands against the village and executing a general release, and that he thereupon delivered to the defendant the papers referred to and offered to withdraw all suits and demands and to execute the release, but that the defendant refused, upon his demand, to pay the money.
The defendant contends that the absence of funds is a sufficient defense; that the theory of the Village Law, in operation at the time the services were rendered (Chap. 291, Laws of 1870), is that the money expended by the village must be on hand before the obligation can be incurred. I am unable to adopt that view. Many of the expenditures of the board of health can never be foreseen, and the usefulness of the hoard would be seriously impaired if no obligation could be incurred for necessary services in the line of its official duty beyond such service as could be anticipated annually. The Health Law provides (§ 30) that all expenses incurred by any local board of health in the performance of the duties imposed upon it or its members by law shall be a charge upon the' municipality, and shall be audited, levied, collected and paid in the same manner as the other charges of, or upon, the municipality are audited, levied, collected and paid. The Health Law is to taken in connection with the Village Law. Referring to the section just cited the Court of Appeals said in Matter of Taxpayers of Plattsburgh (157 N. Y. 86): This provision of the general law must be regarded as in the nature of an amendment or at least a part of all municipal charters. The charter of this village, it is true, contains no provision authorizing the trustees to raise money or to contract debts for the purpose of suppressing disease or preserving the public health, but the general laws of the State make it their duty to comply with the orders of the local board of health in this respect, and when that board incurs expense in the performance of its duty in guarding against the introduction into the village of contagious or infectious diseases or in the isolation of persons or things infected with or exposed to such diseases, or in providing suitable places for the treatment and care of the sick who cannot otherwise be provided for, it becomes the duty of the municipal authorities to comply with the order whether there is any provision to that effect in the charter or not”
If it is incumbent upon the municipal. authorities to raise money to defray expenses incurred by the- board of health, although no provision exists in the village charter for that purpose, it can hardly be contended that want of funds is a sufficient answer in an action for services lawfully performed under employment by the board in the direct discharge of its official duties, and expressly adopted and ratified by the municipality. The restrictions of the charter as to expenditures for general municipal purposes do not, and from the peculiar and uncertain nature of the requirements of the case cannot, apply to expenditures in the prosecution of the work of the health department. The defendant is subject to the statutory liability, and while there may be no funds because there has been a failure to levy and collect the necessary amount, or to appropriate a sum to meet the liability, such action is not a condition precedent to a light of recovery. As was said of the Civil Service Law in the case of Kip v. City of Buffalo (123 N. Y. 160): “ The proper enforcement of this general law cannot be made to dejiend upon the conduct of the common council, or upon its consent to appropriate a sum sufficient to carry it into effect. The city may raise the proper amount if it choose so to do. It has the necessary machinery at hand for that purpose. If it choose otherwise the law must still be executed, and there is no other way so adequate or effectual for that purpose as to permit the institution of an action like this, and the recovery of a judgment with the inevitable costs and expenses which accompany, such a proceeding. The result will probably be that members of a common council will, in the end, see that the laws of the State are certainly to be enforced, although they may run counter to their views or wishes, and that the only effect of a persistent attempt on their part to obstruct or prevent their enforcement will be added expense to the municipality whose interests they misrepresent.”
The second cause, of action is for fifty dollars as the value of services rendered at the request of the president of the village in its interests in proceedings before the Commissioners of the Land Office, the president being duly authorized by the board of trustees to represent the village in certain applications then and there pending, and to do or cause to be done any and all acts necessary for the due protection and preservation of the rights and interests of the defendant in the matter. The item covers an ordinary governmental expense payable from the general fund, and assuming that title 8, section 10, of the then Village Act related to such an incidental matter, it is sufficient to say that the answer does not assert that the village had no money at its command at the time the plaintiff was employed by its president.
The plaintiff is entitled to judgment on the demurrer as to the-defenses affected, with costs. 
      
       This opinion will be found on page 508.
     