vouchers thereof, and also an account of the improvements made upon the roads and bridges. 1 R. S., m. p. 502, § 3, amended chap. 396, Laws 1884.

It will thus be seen that the commissioners of highways are charged with the care, superintendence, repairs and improvement of highways and bridges within their respective towns and with the custody and disbursement for the purpose of whatever money is provided for the same. No other officers are by state enactment in like manner charged with respect to bridges within the town. It seems irresistibly to follow that in the absence of any other valid provision for the erection of this bridge the commissioner of highways was charged with the power and duty to erect it.

Cases are cited by the commissioner tending to show various limitations of his power. Of course he has no power except that conferred by statute, either expressly or by fair implication, and his power is strictly limited within his means. He can only obtain the means permitted by the several statutes. His power, duty and liability are all measured by what he may do, and ought to do, within the means at his aisposal. Given the means he could build this bridge, and ought to build it. Mather v. Crawford, 36 Baro., 564; Huggans v. Riley, 21 N. Y. State Rep., 706; People v. Meach, 14 Abb. N. S., 429.

He would, therefore, have the power to employ agents or servants to prosecute the work, and to procure the necessary materials. This involved the power to make appropriate contracts for the same. Boots v. Washburn, 79 N. Y., 207. His contract with the plaintiff was within his powers, unless the facts next to be noticed took the power from the commissioner and lodged it elsewhere. At the opening of the special town meeting above mentioned, a resolution was offered to the effect that application be made to the board of supervisors of the county of St. Lawrence at the next session to authorize the town of Oswegatchie to borrow money to build the bridge, and for the appointment of commissioners to build it. The resolution after some discussion was laid upon the table by a viva voce vote of the electors present, and the voting by ballot upon the resolution to raise and appropriate money proceeded until about the time appointed for closing the polls, and until such voting by ballot ceased, when the resolution for the aforesaid application to the board of supervisors was again offered and concurred in with substantial unanimity by a viva voce vote of those present, about twenty-five in number.

At the next session of the board of supervisors an application was made in pursuance of such resolution and the board of supervisors in compliance therewith on the 21st day of November, 1889, passed a law authorizing the town to borrow $10,000 upon its bonds, and appointing five commissioners to construct the bridge, prescribing details. On the 18th day of February, 1890, the board of supervisors repealed the said law and passed another in place thereof. The second law was in intent and scope like the first, and was passed to obviate or cure supposed defects or ilegalities in the first.

N. Y. STATE REP., VOL. XXXII.

52

The details of this law need not be given. We assume that in every respect it is valid and transfers the power to erect the bridge from the commissioner of highways to the commissioners named in the law, provided the board of supervisors had jurisdiction to enact it. Between the passage of the first and second law the plaintiff and defendant entered into a contract whereby the plaintiff agreed to erect the bridge for the price of $9,200, one-half of which was to be paid upon delivery of the iron joist material of the bridge at the place of its erection. This the plaintiff has done and if the contract is valid, $4,600 are now due to it. The supervisors' bill was passed in supposed pursuance of chap. 482, Laws 1875, and amendatory acts. The title of the bill so recites, and such recital is required by the second section of the act of 1875.

The sixth subdivision of § 1, as amended by chap. 451, Laws 1885, forbids the board of supervisors to pass the law in question, except as follows: "But no authority shall be exercised under this subdivision except upon the application of a town liable to be taxed for such purpose, to be made by a vote of a majority of the electors thereof, voting at a regular town meeting, or at a special town meeting called for the purpose, or upon the application of the supervisor, by and with the consent of the commissioner of highways, town clerk and justices of the peace of such town."

The special town meeting in this case was not called for the purpose of making any application to the board of supervisors. It was called in pursuance of the section of the Revised Statutes first cited in this opinion. That section does not embrace any provision for such an application. It specifies various other objects, and concludes as follows: "And no special town meeting shall have power to act on any subjects other than such as are specified in this section."

As there was no power to make the application at the special town meeting, as no other valid application was made, and as power to the board of supervisors to pass the law depends upon an authorized application, it necessarily follows that the power did not exist.

We are cited to Town of Kirkwood v. Newbury, 45 Hun, 323; 12 N. Y. State Rep., 420. In that case, the authority of the special town meeting to pass a somewhat similar resolution was not challenged, and therefore was assumed. The meeting probably was held in pursuance of a law or resolution which boards of supervisors are authorized to make by subdivision 19 of § 1, of chap. 482, Laws 1875, as follows: "To provide for the calling and holding of special town meetings to consider and decide any question upon which the electors of the town may be called to take action in accordance with the provisions of this act."

The special town meeting, in Bergen v. Gubna, 10 Hun, 11, was held under authority conferred by the board of super

visors.

The case of Barker v. Com'rs, decided by the special term, arose under the facts in this case. It was an action by a tax

payer to restrain the commissioners from building the bridge. The learned judge assumed that the board of supervisors had the proper application before them.

It needs no authority for the proposition that when the performance of a condition precedent lies at the foundation of the existence of a power, its non-performance leaves the assumption of the power without foundation.

The learned counsel for the plaintiff argues with force that, assuming the existence of the proper application, boards of supervisors have no power to appoint commissioners in such cases. We incline to the opinion that the weight of authority is the other way. Chapter 482, Laws 1875, is an enactment in pursuance of the constitutional authority to confer on boards of supervisors "further powers of local legislation and administration." The legislature has legislative power, and hence may confer administrative power, and boards of supervisors may, under the constitution, if conferred, receive both legislative and administrative power. The power conferred upon boards of supervisors is a conferrence of the power appropriate to its execution, except as statutory or constitutional provisions limit or conflict. Same chap., § 6.

The appointment of commissioners to build bridges has long been regarded by the legislature and the courts as an appropriate means to their erection.

Upon the case as submitted, as between the parties to the record, the plaintiff is entitled to judgment for $4,600: and such judgment is ordered against the defendant.

tני'

LEARNED, P. J. (concurring).—If the vote of the town meeting, authorizing an application to the board of supervisors, was not a vote "on the question of raising and appropriating moneys for the construction and maintenance" of this bridge, then, under chap. 259, Laws 1886, amending § 7, art. 1, tit. 2, chap. 11, part 1, Rev. Stat., the special town meeting could not vote upon it legally.

If it was a vote on that question of raising money or incurring any town liability, then it should have been by ballot. Chapter 122, Laws 1883.

Judgment ordered for plaintiff on submission.

MAYHAM, J., concurs.

GEORGE W. COONLEY, App'lt, v. THE CITY OF ALBANY, Resp't.

(Supreme Court, General Term, Third Department, Filed July 7, 1890.) 1. MUNICIPAL CORPORATIONS— -NOT LIABLE FOR NON-ENFORCEMENT OF ORDINANCE-SUNKEN VESSELS.

A vessel having sunk at plaintiff's dock, obstructing access thereto, he notified defendant to remove the same pursuant to an ordinance relating thereto, and upon its failure and refusal to do so, caused it to be removed, and brought action to recover the expense incurred in so doing. Held, that defendant was not liable therefor; that the fact that it had adopted an ordinance providing a method for the removal of sunken vessels at docks did not make it liable for the non-enforcement thereof.

2. SAME-ORDINANCE.

The ordinance in question, so far as it directs the sale of private property, is void.

APPEAL from a judgment sustaining the defendant's demurrer to the complaint.

The complaint alleges that the plaintiff was the owner of a dock upon the Hudson river within the city of Albany, adapted to, and valuable for the lading, unloading and storing of merchandise from vessels. That on the 26th day of September, 1888, a canal boat, loaded with iron while navigating the river, sunk at the said dock, and thereby obstructed its use, to plaintiff's damage. That the defendant assumed the duty of keeping the river free from obstructions by § 10, chapter 42 of the ordinances of the city of Albany, which reads as follows:

"Whenever any vessel, loaded or empty, shall, by accident or otherwise, be sunk at any dock, wharf or slip, or anywhere in the Hudson river, opposite to the city of Albany, and within jurisdiction thereof, it shall be the duty of the street commissioner, under the direction of the mayor, to give notice to the owner, proprietor or other person sailing such vessel, to remove the same within twenty-four hours; and in case the owner or proprietor is unknown, and there is no one that sails the same, to give notice in one of the newspapers printed in the city of Albany, at least one week, directing the removal of such vessel as aforesaid; and if the said notice is not complied with, then it shall be lawful for the street commissioner to take possession of such vessel, craft, boat or flat, and to remove the same, and at public auction to sell such vessel, or as much of the loading thereof as will pay the eurenses of such removal."

That on the 28th and 29th days of September, 1888, written notices of such facts, stating the name and owner of the boat, and requesting the removal of the same, were served upon the street commissioner and the mayor, a copy of which notice is annexed to the complaint. That on the 29th day of September, 1888, the mayor gave the street commissioner written directions to remove said boat; that said street commissioner took the preliminary steps, as provided by the city ordinance, to accomplish that result, and notified the owner to remove the boat, but finally, on or about the 26th day of October, 1888, declined to remove the same, or to do anything more towards that end; that thereupon plaintiff employed the firm of Payne & Co. to remove the said boat, and paid them for the work $314.79, besides having suffered other damage to the amount of $1,000 by reason of said sunken boat not being removed by said street commissioner within a reasonable time.

By reason of said facts plaintiff asks for judgment against the city of Albany for $1,414.79.

The defendant demurred upon the ground that the facts stated did not constitute a cause of action.

Ward & Cameron, for app'lt; D. C. Herrick, for resp't.

LANDON, J.-The fact that the defendant has adopted an ordinance providing a method for the removal of vessels sunken at any of the docks of the city does not charge it with the duty of enforcing the ordinance, nor make it liable for its non-enforcement.

Section 44 of title 3 of its charter, chapter 298, Laws of 1883, reads as follows: "Nothing contained in this act shall be so construed as to render the city of Albany or any of its officers liable in any damages, or otherwise, to any person, or persons or corporations, for any omission to pass any ordinance, regulation or resolution, pursuant to the provisions hereof, or for a failure to enforce the same."

That a city does not enforce its own ordinances does not render it liable. Its liability must arise from its failure of duty with respect to the subject matter in question. Stillwell v. Mayor, 17 J. & S., 360; S. Č., 96 N. Y., 649.

The present charter of the city, § 14, subdivision 27, title 3, chapter 298, Laws 1883, makes the common council commissioners of highways for said city, with power to make ordinances "In relation to the construction, repairs, care and use of the markets, docks, wharves, piers, slips and squares of the city."

Obstructions in the river itself are not here embraced. But the learned counsel for the appellant cites chap. 185, Laws 1826, § 15, which declares that the common council are constituted commissioners of highways with power to pass ordinances, "To prevent all obstructions in the river near or opposite to such wharves, docks or slips," and alleges that it is still in force.

Assuming this claim to be true, it will be observed that the act of 1826 does not require the city of Albany to keep the navigable waters within the city free from obstructions, but vests it with the legislative power to enact an ordinance to that end. Winpenny v. Philadelphia, 65 Penn. St., 135, is cited. There the statute required the city to keep the navigable waters within its limits free from obstruction, and the city was held liable for injuries consequent upon its neglect to observe the requirements. In Ilart v. Mayor, etc., of Albany, 9 Wend., 571, an ordinance like the one in question was held void, for the reason, among others, that the power given to the city to enforce its ordinances was limited to a penalty upon the violators, not exceeding twenty-five dollars, whereas the ordinance then, like the ordinance now, provided for the removal and sale of the sunken boat, that is, its confiscation. The present charter confers no power to authorize or direct the sale of the boat, but does confer power upon the city to enforce its ordinances by ordaining penalties for each and every violation, not exceeding $100. Sec. 14, tit. 3.

An ordinance in excess of the legislative power of the common council is void. This ordinance, so far as it directs the sale of private property, is therefore void. It is urged that the sunken canal boat was a nuisance in that it obstructed navigation. No doubt it was, and if there was no other practicable way to abate it except by its destruction, it might have been destroyed. But whoever undertook to act for the public and to destroy it, must be prepared to show that he did it under the requirement of a great and overruling public necessity. Hicks v. Dorn, 42 N. Y., 47. So far as the case shows, the necessity for its destruction was rather private than public. It injured the business usually coming to the plaintiff's dock. The People v. Corporation of Albany, 11