The People of the State of New York ex rel. The United Construction Company, Relator, v. William B. Voorhies, Supervisor, and Others, Composing the Town Board of the Town of Rockland, Respondents

The People of the State of New York ex rel. The United Construction Company, Relator, v. William B. Voorhies, Supervisor, and Others, Composing the Town Board of the Town of Rockland, Respondents. Third Department, June 27, 1906. Highway Law — when town board has no authority to build new bridges — certiorari to compel audit of claim for building unauthorized bridges dismissed — failure to show estoppel. When the electors of a town have not authorized the raising of money for the building of new bridges, the commissioner of highways and the town board have no right to contract for the building of new bridges in the place of old bridges not damaged except by natural wear, and a contractor contracting to erect such new bridges is charged with a knowledge of the want of authority. When bridges constructed under such unauthorized contract are tendered by the contractor and refused, he cannot compel the audit of his claim on the theory of estoppel when he does not show that he was misled as to the facts or was ignorant of the situation existing. Cebtioeabi issued out of the Supreme Court and attested on the 26th day of August, 1905, directed to William B. Yoorliies, supervisor, and others, composing the town board of the town of Rockland, requiring them to certify and return to the office of the clerk of the county of Sullivan all and singular their proceedings had in relation to their refusal to audit the claim of the United Construction Company. This is a certiorari to review the action of the town board in rejecting the relator’s claim for damages for not accepting six bridges contracted for by the commissioner of highways with the -consent of the town board. By the contract of October 6, 1903, said bridges were to be erected for use by December 6, 1903, for $3,769, the company not to be responsible for delays in delivery of material from the rolling mills, strikes, nor for circumstances beyond its reasonable control. One bridge was fabricated and shipped January 19, 1904. A letter refusing to accept the bridges and canceling the contract was mailed the relator January 28,1904, by the supervisor, by direction of the town board, and was duly received. The other bridges were shipped later. The delay is properly •accounted for, but the five bridges were of a twelve-foot span instead of a fourteen-foot span as agreed. It is conceded that none of the town bridges intended' to be replaced by this contract had been destroyed or become damaged by any cause except natural wear and decay,- and that the electors of the town had not voted upon the question of raising money for these new bridges. Henry D. Merchant and Rollin B. Sanford, for the relator. J. M. Maybee [George H. Carpenter of counsel], for the respondents. [MAJORITY — Kellogg, J.:] Kellogg, J.: It is clear that the commissioner and town board had no right to enter into the contract for these new bridges under section 10 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1895, chap. 606, and Laws of 1899, chap. 84), the old bridges not having been destroyed or damaged except by natural wear. (Livingston v. Stafford, 99 App. Div. 108.) The relator contends, however, that the "respondents are estopped from denying liability. The affirmative rests upon it to establish facts constituting such estoppel. There is an absence of all the necessary elements of ah estoppel. The town never received or used the relator’s property. The contract does not recite any facts bringing it within section 10 of the Highway Law, and does not hy its terms purport to be authorized by that law. It does not recite any determination by the town board or the commissioner that any such facts existed. Ho such determination was made. The relator does not allege that it believes such were the facts or that it was misled as to the facts existing, or that it was ignorant of the exact situation. It may fairly be presumed that before the relator undertook to erect these bridges at these different places along this brook it caused the sites to be inspected, and knew the physical situation there existing. This is somewhat confirmed by the provision of the contract giving it the right to use the old bridges. We may, therefore, assume it knew the old bridges had not been destroyed by the elements or any emergency, and that it knew their actual condition. The meeting at which the bid of the relator ivas accepted was called to get prices for iron bridge stringers wanted on Sprague Brook road. The commissioner gave the dimensions of the stringers required and the board adjourned until afternoon, and then bids were received from five bridge companies for building these new bridges, not for new stringers for the old bridges, and the relator’s bid was accepted. It may be assumed that the relator knew the object for which the meeting was called, and the authority of the commissioners and the condition of the old bridges. It was cliargéable with knowledge that the officials with whom it acted had no authority to bind the town. Apparently it took its chances on the delivery being accepted and paid for. By notice the town board challenged the legality of the contract as not authorized by section 10 of the Highway Law. The relator did not respond to this challenge by showing any authority for the contract or any facts constituting an estoppel. It is unnecessary to consider the other points relied upon by the respondents. The writ should be dismissed, with fifty dollars costs and disbursements, to be paid by the relator. All concurred. Writ of certiorari dismissed, with fifty dollars costs and disbursements.