Opinion
May 8, 1907.
John Cadman, for the appellant.
Frank H. Osborn, for the respondent.
This complaint presents no cause of action against the town, for the simple reason that the statute provides otherwise, and provides the method of procuring pay for furniture purchased for the use of the town clerk.
The statute under which this safe was purchased is section 85 of the Town Law (Laws of 1890, chap. 569). That section provides that "The town clerk of any town may, with the consent of the town board of his town, purchase or furnish for the town clerk's office all necessary bound blank books for the entering and keeping of the records of his town, and also necessary book and office cases, tables and other funiture for the use and convenience of the office and the safe-keeping of the books and papers of the town, and the expense thereof shall be a town charge, to be audited and paid as other town charges."
No question is raised here by the respondent that the safe was not necessary for the use of the town clerk and the safekeeping of the books and papers of the town. The claim of the appellant appears to be that because the price of the safe was agreed upon, and because it was purchased with the consent of the town board, that the amount of the claim is liquidated, and, therefore, there is no necessity of an audit by the auditors of the town, and some authorities are cited where actions had been permitted directly against a town or county on bonds or other evidences of debts issued pursuant to statute. These cases proceeded upon the theory that when obligations of that character have been issued pursuant to law it becomes the duty of the officials of the town or county to provide means for the payment thereof when they become due. But no such reason exists here, and the statute here clearly provides that the expense of articles purchased by the town clerk with the consent of the town board, pursuant to the section quoted, shall be a town charge, to be audited and paid as other town charges. The statute having provided the method to be pursued in procuring payment for such charges, the plaintiff is not authorized to pursue any other remedy, and the town is only liable in the way and by the method pointed out by the statute and not by a suit against it in the first instance, which would have the effect, if allowed, to nullify the statute itself and prevent an audit by the town board. ( Bragg v. Town of Victor, 84 App. Div. 83.)
The interlocutory judgment should be affirmed, with costs.
All concurred; COCHRANE, J., not sitting.
Interlocutory judgment affirmed, with costs.