Buyce v. Buyce

Learned, P. J. The plaintiff commenced his action in justice’s court by summons against “George Buyce as commissioner of highways of the town of Wells.” He filed a written complaint, in which the defendant was described in the same manner in the title. In the body of the complaint he speaks of the “defendant,” not mentioning either name or title. But just as the word “plaintiff” in the complaint refers to the name in the title, so does the word “defendant.” It is as if the complaint read: “Nelson Buyce, in complaint, * * * alleges that * * * by direction of George Buyce, as commissioner of highways of the town of Wells,” etc. We think that the complaint distinctly shows that the action is against the defendant in his official capacity. There is a special allegation, viz., that “the board directed the money should be raised to pay plaintiff, and that the same was paid to defendant to pay plaintiff.” This indicates that the action was against him in his official car pacity. We have examined the cases which defendant cites, (Gould v. Glass, 19 Barb. 179,) and similar cases, and they go far in support of his position; but in Boots v. Washburn, 79 N. Y. 214, the court say that defendants were not named in the summons or complaint as commissioners of highways. Here 643 defendant is so named in the summons and in the title. In Smith v. Levinus, 8 N. Y. 472, the title of the complaint described plaintiff as supervisor, and then the complaint said: “The complaint of the plaintiff above named as supervisor,” etc. And upon the whole we think that it is plainly shown by the summons and complaint in this case that the action was against the defendant in his official character. Another point is that the commissioners had no authority to repair the bridge. By chapter 103, Laws 1858, amended chapter 442, Laws 1862, where a bridge is damaged, by the elements or otherwise, after any town meeting, the commissioner, with the consent of the board of town auditors, may immediately cause it to be repaired, though the expenditure exceed $250. In the present case the work done was in repairing the pier of a bridge. The consent of the board was given. But defendant urges that the bridge had not been damaged after the town meeting. It is not in evidence that it did not become damaged after the town meeting. But who is to determine when a bridge becomes damaged. Is it not plainly that of the commissioner and the board of auditors? They are the persons to whom the statute intrusts the duty of deciding. . To say that the board and the commissioner may determine that a bridge has become damaged after the town meeting, and may cause repairs to be made, and then that, when the commissioner is called upon to pay for these repairs, he may ask a jury to decide that the bridge was not so damaged,—to say this would be unreasonable and unfair. Boots v. Washburn, 79 N. Y. 213; Clute v. Robison, 38 Hun, 283. The commissioner must have the right to cause work to be done in such case. The person who does it need only see to it that the board of town auditors consents. He is not to investigate the question at what time the bridge was damaged,—whether before or after the town meeting. If his right to be paid were to depend on the decision of a jury upon that question, he could not safely do the work. We think the judgment should be affirmed, with costs. Ingalls and Land on, JJ., concurred.