Claim of Clarke v. Town of Russia

Hill, P. J. I favor an affirmance of the award. The decedent was employed by the authority of the superintendent of highways of the town of Russia. He was a member of the town board. It is the duty of the town superintendent of highways of a town to “ employ such persons with teams and implements, as may be necessary for the proper maintenance and repair of town highways and bridges, * * * subject to the approval of the town board, as hereinafter provided, and provide for the organization and supervision of the persons so employed. He shall file a list of the names of the persons so employed, with the compensation paid to each, and the capacity in which they were employed in the office of the town clerk.” (Highway Law, § 140, subd. 4.) The supervision by the town board is the subject of section 284 of the Highway Law. It provides in substance that the moneys levied and collected by taxation, together with those received from the State, “ shall be expended for the repair and improvement of such highways, sluices, culverts, and bridges and walks, at such places and in such manner as may be agreed upon by the county superintendent of highways, the town board and town superintendent. * * * Such moneys [704] shall be paid out by the supervisor on the written order of the town superintendent.” Employment of laborers by a town superintendent of highways is not subject to approval by the town board. (Matter of Hiscox v. Holmes, 237 App. Div. 240.) The town superintendent acts in his official capacity, independent of control and direction on the part of the town, and owes it no duty or obligation except to disburse the moneys which are supplied by the town and the State wisely and in good faith, under the agreement and allocation made by the county and town superintendents and the town board. (People ex rel. Morey v. Town Board, 175 N. Y. 394; People ex rel. Everett v. Board of Supervisors, 93 id. 397; People ex rel. Van Keuren v. Town Auditors, 74 id. 310.) The town superintendent and his employees are entitled to the benefits of the Workmen’s Compensation Law. (Matter of Dann v. Town of Veteran, 254 App. Div. 462; affd., 278 N. Y. 461.) Decedent, as a member of the town board, participated with his fellow members and the town and county superintendents of highways in allocating the funds to the different highway and bridge projects within the town, and the town board could exercise a limited supervision as to the individuals employed to work upon these projects, but this did not make it illegal for the superintendent of highways to employ decedent to shovel gravel. He was still an employee of the town in spite of a possible theoretical incompatibility between his official functions and the employment. (Wolfe v. Trask, 249 App. Div. 11; Matter of Mayor of Village of Lake George, 242 id. 723; Matter of Luce v. Beiter, 239 id. 23; Matter of Slack, 234 id. 7.) The award should be affirmed. Crapser and Heffernan, JJ., concur; Bliss, J., dissents, with an opinion, in which Schenck, J., concurs.