Marsh v. Town of Little Valley

E. Darwin Smith, J. The circuit judge, we think, correctly held that the bonds in suit were valid obligations against the defendants. These bonds were payable to bearer and are valid commercial instruments, and it appearing that the plaintiff was a bona fide holder of them for value, and as they appeared on their face to be issued in pursuance of the express authority of the legislature, they were not open to any defense in respect to their validity, within the case of St. Joseph Township v. Rogers (U S. Supreme Court), 16 Wall. 644. As is stated in the points of the appellant’s counsel neither the town nor its officers nor the board of supervisors controverted or disputed this claim. Nothing is really presented for our consideration but the single question, whether the remedy of the plaintiff for the recovery of said bonds was by action or mandamus. The judge, at special term, held that the plaintiff could maintain this action and gave judgment therein accordingly. The towns of this State are invested, to a certain extent, with the rights and duties of corporations, and may sue and be sued in the manner prescribed by law. 1 R. S. 337, § 1. [119] They may sue to enforce corporate rights, and be sued for the enforcement of their corporate liabilities, when the assertion of such rights or the enforcement of such duties shall require such a proceeding. Lorillard v. Town of Monroe, 11 N. Y. 394. It is undoubtedly true that in respect to all that class of claims, accounts or demands against a town, which come within the scope of the powers and duties conferred upon the board of town auditors, to examine, settle, adjust and allow; no action at law will lie against the town, certainly till they become .fixed, recognized and admitted debts. The case of Bell v. Town of Esopus, 49 Barb. 506, asserts this doctrine, and, I think, the court, in that case, did not intend to assert any other. That case should be limited to the large class of unliquidated charges against towns which rest in claim and demand until passed upon, audited and adjusted by some lawful authority. All such claims may be properly termed claims arising upon contract, and for which an action will not lie, within the intent and meaning of that case. But clearly the rule of that case does not apply to settled and admitted debts resting on bond or upon other adjusted, liquidated, admission or obligation binding on the towns. In such cases as in this, the preliminary stages of dispute, contestation and settlement and adjustment, have all been duly passed. The bonds in this action are the clear, undisputed, liquidated debts of the town, and we have no doubt that the action was properly brought thereupon as held by the judge at the circuit, and was rightfully sustained within the cases of Brown v. Town of Canton, 4 Lans. 418; Hathaway v. Town of Homer, 5 id. 273; St. Joseph Township v. Rogers, 16 Wall. 645; Northrup v. Town of Pittsfield, 2 N. Y. Sup. 108. The repeal of the act of 1869, by chap. 21 of the Laws of 1873, could not take away or affect the plaintiff’s vested rights as a Iona, fide purchaser of these bonds. The judgment should be affirmed. Judgment affirmed.