and 114 New York State Reporter in connection with the water supply of the city of New York. From an order taxing the fees, the city of New York appeals. Affirmed. Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ. James McKeen (George Landon, on the brief), for appellant. WILLARD BARTLETT, J. This is an appeal from an order taxing the costs of commissioners of appraisal, under the amended act, which provides for the acquisition of property in connection with the water supply of the city of New York. The statute provides that the commissioners appointed in pursuance thereof "shall receive as compensation the sum of ten dollars per day for each day actually employed." Laws 1897, c. 713. The fees were taxed upon an affidavit by each commissioner to the effect that he was actually employed as a commissioner of appraisal in this proceeding for 141 days between the 1st day of December, 1901, and the 19th day of May, 1902, both inclusive. In an opposing affidavit the corporation counsel states that he has no facts in his possession to enable him to determine whether this allegation is true or not, except that it appears from the stenographer's minutes that the commission held, during the period mentioned, eighteen sessions at which testimony was taken, two public hearings at which testimony was not taken, two hearings where counsel argued the subject of costs, one meeting to view the property, and eight executive meetings. This averment falls far short of being a denial of the fact alleged by the commissioners, that each was actually employed 141 days. It would be preferable, of course, in a proceeding of this character, to have a more definite statement of just what was done by the commissioners on each day for which they seek compensation. In the Matter of Acquiring Title to a Public Park Lying between Spuyten Duyvil Park, etc. (opinion filed December, 1902) 79 N. Y. Supp. 192, the appellate division in the First department held that, where the court was the taxing officer under section 998 of the Greater New York Charter, the proof should be something more than a mere statement in general terms, giving the number of days upon which the commission to acquire park lands had been employed. The charter provision, however, which was there under consideration, is much more specific than the statute which applies to the present case. It provides that upon the taxation due proof of the nature and extent of the scervices rendered and disbursements charged shall be furnished, and that no unnecessary cost or charges shall be allowed. It further provides that each of the commissioners "shall receive ten dollars for each day upon which he attends a meeting of the said commissioners and is actually and necessarily employed in the performance of the duties imposed upon them" by the act. Here, however, we have only the general provision that the commissioners shall receive as compensation the sum of $10 per day for each day actually employed. I am inclined to think that if they bring themselves within the terms of the statute, by swearing to actual employment for a given number of days, they make out a prima facie case for compensation at the prescribed rate, in the absence of any evidence. which would warrant the taxing officer in rejecting their statement as untrue. Hence it follows that the order appealed from should be affirmed. Order affirmed, with $10 costs and disbursements. All concur, except GOODRICH, P. J., dissenting. PEOPLE ex rel. MOREY v. TOWN BOARD OF OYSTER BAY. (Supreme Court, Appellate Division, Second Department. February 11, 1903.) 1. TOWNS-BRIDGES-REPAIRS-SUPERINTENDENCE-COMPENSATION-Audit. Under Laws 1890, c. 568, § 10, as amended by Laws 1895, c. 606, and Laws 1899, c. 84, authorizing the commissioners of highways in towns to cause damage to unsafe bridges to be repaired, with the consent of the town board, the work, when the expense exceeds $500, to be under a written contract approved by the board,-and to present vouchers for the expense to the board, to be audited by it, where the town board have consented to the repair of a bridge, and approved the contract therefor, the commissioners, without the approval of the board, may employ a person to superintend such work; and it is the duty of the board to allow his claim for the reasonable, agreed compensation. 2. SAME-PROOF-KNOWLEDGE OF BOARD. In auditing the claim of a person employed by the commissioners of highways to superintend the repair of a bridge, the town board are not restricted to the proofs submitted by the claimant, but may act on their own knowledge of the facts. 3. SAME REJECTION OF CLAIM-BAR. Where the highway commissioners, as required by Laws 1890, c. 568, § 10, as amended, presented to the town board a claim for the services of a person employed to superintend the repair of a bridge, the action of the board in rejecting such claim is not a legal bar to subsequent proceedings by the claimant to procure audit and payment. Certiorari by the people, on relation of Augustus Morey, to the town board of the town of Oyster Bay, to review the action of such board on the audit of a claim of relator for services rendered in repairing a bridge. Matter remitted, with directions. Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ. Joseph Steinert, for relator. George B. Stoddart, for respondent. WILLARD BARTLETT, J. Section 10 of the highway law authorizes the commissioners of highways in towns to cause damaged or unsafe bridges to be repaired, with the consent of the town board. If the expense exceeds $500, the work must be done under a written contract, to be approved by the town board. "The commissioners of highways shall present the proper vouchers for the expense thereof to the town board, at their next annual meeting, and the same shall be audited by them and collected in the same manner as amounts voted at town meetings." Laws 1890, c. 568, as amended by Laws 1895, c. 606, and Laws 1899, c. 84. Under this authority and law the relator was employed by the commissioners of highways of the town of Oyster Bay, in Nassau county, to perform certain services and 114 New York State Reporter in connection with the repair of a damaged bridge. These services consisted of superintending the mixing of the concrete which was used, the driving of the piles to a proper depth, and the construction of a temporary support for the draw which was to be used on the structure when rebuilt. The relator also appears to have been employed generally to superintend the proper construction of the bridge. in accordance with the terms of a contract for the repairs, which was made in writing, inasmuch as the total expense of the work exceeded the sum of $500. The relator alleged in his petition in this proceeding that he performed the contemplated services upon 93 days in all, and he claims thereby to have become entitled to receive payment at the rate of $3 a day, which was to be his compensation under his agreement with the highway commissioners. Upon the audit of the account the town board determined to disallow the whole claim, and the writ of certiorari has been sued out to review the determination to that effect. The return states that the town board not only heard the relator personally in his own behalf, but also "the statements of several members of said board to the effect that work was not commenced upon the bridge, whereon the said relator claims to have performed service, for a period of at least thirty days after the first item of service set forth in the relator's said claim." The return also states that the board were advised by their counsel that the claim was not a lawful charge, inasmuch as the town had authorized the highway commissioners to enter into a written contract with the American Bridge Company to make the repairs upon said bridge for the sum of $10,300, and that, having expended such sum under said contract, the board was without power to expend any further or additional sum on account of the repairs. It is apparent from the record that the relator was really employed by the highway commissioners as an inspector in behalf of the town, to see to it that the work undertaken under the contract for repairing the bridge was thoroughly and properly performed. I find nothing in section 10 of the highway law which prohibits the employment of a competent person for this purpose, irrespective of any consent in advance by the town board. The only consent prescribed by that section appears to be a consent in general terms to the immediate repair or rebuilding of the unsafe or damaged structure. If it is found that the expense would exceed $500, so that a written contract is requisite, this must also receive the approval of the town board; but neither any prior consent or approval appears to be necessary in order to justify the highway commissioners in incurring such reasonable pecuniary obligations as may be necessary to insure, by supervision and inspection, that the work shall be done in a suitable manner, so as to carry out the object sought to be obtained. Under the section cited, it seems quite clear that, with the consent of the town board that the repairs should be made, the highway commissioners might lawfully have employed the relator to act as inspector, if the amount to be expended upon the bridge did not exceed $500, so that the labor could be performed without any written contract; and I can see no good reason why the fact that the proposed expenditure would exceed that amount should be held to restrict the authority of the commissioners so that they could not still legally employ an inspector to examine and supervise the work as it went on. If this view is correct, the relator became entitled to compensation at the agreed rate of $3 a day, if he had actually performed the services alleged in his claim. This allegation, however, was not unquestioned when the claim came up for audit. Several members of the town board stated that the work had not been commenced upon the bridge until a month later than the time specified by the claimant. An examination of the items of the claim shows that, if these members were right, the relator claimed compensation for services upon 27 days when no work at all was prosecuted upon the bridge; and this fact would not only warrant, but require, the rejection of those items. In making the audit the members of the town board were not restricted to the relator's proof in regard to the validity of the claim, but might act upon their own knowledge, acquired from their actual observation of the facts and circumstances concerning the work. People ex rel. Oppenheimer Publishing Co. v. Pople, 81 Hun, 381, 30 N. Y. Supp. 878; People ex rel. Cochran v. Town Auditors, 74 Hun, 83, 26 Ñ. Y. Supp. 122. Hence it cannot be held, upon this record, that the board erred in refusing to audit the relator's claim at its full amount. On the other hand, it seems clear that he should have been awarded something for his services, although it is impossible to say from the papers now before the court how much. Under these circumstances, we cannot modify the determination under review so as to accord with the facts, as we might otherwise do, under section 2141 of the Code of Civil Procedure. The proper course seems to be to remit the matter to the town board, on account of their error in rejecting the entire claim, with directions to reaudit the claim, and allow the relator his stipulated compensation for as many days' service as he may establish to their satisfaction. It is suggested that the relator's only remedy was under the final clause of section 10 of the highway law, which provides that the commissioners of highways shall present the proper vouchers for the expense of these extraordinary repairs upon a bridge to the town board at their next annual meeting, and that the same shall be audited by them and collected in the same manner as amounts voted at town meetings. It appears that the commissioners of highways did include the relator's claim with other accounts in claims which they presented to the town board on December 28, 1901, when it was rejected. That demand, however, was in behalf of the highway commissioners themselves, and not directly in behalf of the relator. I do not think that its rejection was a legal bar to subsequent proceedings by the relator personally and directly to procure audit and payment. All concur. and 114 New York State Reporter FRENCH v. NEW YORK MERCANTILE EXCHANGE. (Supreme Court, Appellate Division, First Department. February 6, 1903.) 1. CORPORATIONS-BY-LAWS-RIGHT TO ADOPT-REASONABLENESS. A corporation was organized under Laws 1874, c. 86, its object, as prescribed by its charter, being to provide an exchange for merchants engaged principally in the butter, cheese, and egg business. By Laws 1882, c. 302, its charter was amended so as to add provision for the widows and families of deceased members. The members were then divided into two classes, one participating in its beneficiary provisions and one nonparticipating. By the act under which the company was incorporated it was authorized to adopt by-laws, and change them from time to time, and all applicants for membership stipulated that their rights were subject to future amendments of the by-laws. The benefit fund paid to the widows and families of deceased members consisted of the amount raised by an assessment of $3 at each death on all participating members. Many of the participating members became dissatisfied, and were rapidly withdrawing, when the by-laws were amended so as to authorize participating members to change to the nonparticipating class on payment of all assessments due. Held, that the corporation had the right to adopt such amendment, and that it was reasonable. Appeal from special term, New York county. Action by Walter G. French against the New York Mercantile Exchange. From a judgment in favor of defendant, plaintiff appeals. Affirmed. Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ. John J. Crawford, for appellant. LAUGHLIN, J. This is a suit in equity to have an amendment to one of the by-laws of the defendant declared null and void, and to enjoin the defendant from taking any action pursuant to the provisions thereof. The preliminary steps required previous to bringing the amendment to a vote at a meeting of the stockholders were duly taken and had, and it was duly adopted by the necessary vote at a meeting of the stockholders duly convened for that purpose on the 28th day of December, 1900. The only question presented is whether the corporation had power to enact the amendment. At the time of the adoption of the amendment the objects of the corporation as prescribed by its charter were twofold: First, to provide an exchange for merchants engaged principally in the butter, cheese, and egg business; and, second, to provide for the widows and families of deceased members. It had two classes of members, known as "participating" and "nonparticipating" members. Both classes of members were interested in the objects of the corporation so far as they related to the objects of the exchange, but the participating members only were interested in the objects of the corporation so far as they related to making provision for the widows and families of deceased members. The object and effect of the amendment to the by-laws was to permit participating members to withdraw from. that class and become nonparticipating members. There were at this time 212 nonparticipating members and 281 participating mem |