Opinion
Cause argued June 24, 1869
Decided September 25, 1869
Lyman Tremain, for the appellants. John H. Reynolds, for the respondent.
A commissioner of highways has no general authority, as such commissioner, to borrow money, or to give promissory notes, and thereby to bind his successors in office.
In respect, therefore, to the first alleged cause of action in the complaint herein referred to, there is an entire failure to show facts sufficient to charge the defendants with a liability to the plaintiff, or to establish a liability of the town of Canajoharie for the moneys alleged to have been lent and advanced by plaintiff to Garlock, the predecessor of the defendants in office.
No extended discussion is necessary to support the proposition, that unless the borrowing of the money, or the giving of the note was within the official power of Garlock, his successors in office are not bound thereby; and unless, also, the town itself is bound, no recovery can be had against the defendants, for the reason, that on a recovery from the defendants, the statute makes it peremptory that the amount recovered shall be allowed to them in their official accounts. (2 Rev. Stat., 476, § 108.)
It does not help the case, on this appeal, to say that there may, out of the original claim which Garlock paid with the money borrowed from the plaintiff, arise some ground, legal or equitable, upon which he is entitled to be reimbursed. That may probably be so. The circumstance, that the defendants offered to allow judgment to be entered for this first claim, strengthens that probability. But none of the facts showing any such original claim, or indebtedness of the town, appear in the complaint, and the motion below deals with the pleadings as they are, and not with a possible cause of action, legal or equitable, which the pleadings do not disclose.
It follows, that the plaintiff has recovered a judgment summarily, on motion, for an alleged or supposed first cause of action, when his complaint does not show title to recover. Whether the answer of the defendant is sufficient or not, the objection, that the complaint does not state facts sufficient to constitute a cause of action, is a valid objection, whenever the plaintiff moves for judgment thereon.
The judgment must, therefore, be reversed, whatever view be taken of the defence to the other claims of the plaintiff.
It is, however, proper to say, that when the commissioner of highways attempts to alter or lay out a highway, and make compensation to owners of lands taken thereby, the town is entitled to some permanent record of the act, and the statute contemplates a formal official order for that purpose. And although it may not be essential that such order be avowed in a complaint for the agreed damages, it is by no means a frivolous answer to say, that no such order was made. Before the town should be subjected to payment for the damages, enough should be done to assure to the public the use of the land as a highway. Even if the order was made and filed, and the damages had been agreed upon or assessed, the statute points out the mode of collection; and it is, in my judgment at least, doubtful, whether any action will lie to collect them.
The order and judgment appealed from must be reversed.
DANIELS, J., also wrote an opinion for reversal upon the same grounds, substantially, as to the first count, as WOODRUFF. He further discussed the sufficiency of the answers to the allegation of the Cornue indebtedness, coming to the conclusion, that those portions of their answers alleging that the Cornue claims had never been presented to the town board for audit and allowance, or audited, or money raised by taxation, or received by the defendants, to pay them, and alleging that the order of the commissioner widening the street in front of the Cornues had been on appeal reversed, should not have been stricken out, and were not frivolous or false.
None of the other judges expressed any opinion on these points.
GROVER, MASON, JAMES and LOTT, JJ., concurred for reversal, with WOODRUFF and DANIELS, JJ., on the point discussed in WOODRUFF'S opinion. HUNT, Ch. J., and MURRAY, J., were for affirmance.
Judgment reversed.