§ 90. Estimate of expenditures for highways and bridges. The town superintendent shall annually, on or before the thirtyfirst day of October, make a written statement in respect to the amount of money which should be raised by tax in the town for the ensuing year, beginning on said first day of November, for the purposes therein set forth which shall be filed with the town clerk. Such statement shall specify:

1. The amount of money necessary to be levied and collected for the repair and improvement of highways, including sluices, culverts and bridges having a span of less than five feet, and board walks or renewals thereof on highways less than two rods in width, and also the amount necessary to construct or repair any public roads, walks, places or avenues on any sand beach separated by more than two miles from the main body of the town. Such amount shall not be less than an amount which when added to the amount of money to be received from the state, under the provisions of section one hundred and one, will equal thirty dollars for each mile of highways within the town, outside the limits of incorporated villages, except that no town having an assessed valuation. of three thousand seven hundred and fifty dollars or less per mile outside of incorporated villages shall be required to levy and collect a tax under this subdivision in excess of four dollars on each thousand dollars of assessed valuation.

Amended by L. 1914, ch. 84 and L. 1915, ch. 322.

2. The amount of money necessary to be levied and collected for the repair and construction of bridges, having a span of five feet or more.

3. The amount of money necessary to be levied and collected for the purchase, repair and custody of stone crushers, steam rollers, traction engines, road machines for grading and scraping, tools and implements.

4. The amount of money necessary to be levied and collected for the removal of obstructions caused by snow and for other miscellaneous purposes.

The amounts specified in such statement shall not exceed the limitations prescribed in section ninety-four. If the town superintendent is of the opinion that an amount in excess of the limitations therein prescribed be raised by tax he shall include in his statement his reasons therefor in detail.

Change in method of highway taxation. One of the objects sought by this law is the abolishing of the old labor system of taxation and substituting in place thereof in all towns the money system of raising highway taxes. This has affected the method of highway taxation in less than three hundred of the nine hundred and thirty-three towns of the State. In other towns the money system is in force when this chapter takes effect. In towns adopting the money system, under the former law, the amount of the tax to be levied and collected in the town was to be determined by the commissioner or commissioners of highways and the town board. See former Highway Law, § 53. The minimum amount to be collected in such towns for the repair of highways was required, by that section, to at least equal one-half the value of the commutation rates, of the highway labor which should be assessable under the labor system. This section of the former law did not, nor does the present law, prescribe the maximum amount which could be raised by tax for the repair and maintenance of highways.

If it became necessary to raise money by tax upon the town for other purposes than the repair and maintenance of highways, authority therefor, either expressed or implied, had to be found in the various more or less conflicting provisions of the former law. The new law seeks to eliminate this confusion by placing the initiative with the town superintendent, making it his duty to present to the town board in a formal statement, the amount, which in his opinion, should be raised in the town during the ensuing year for the purposes specified therein. This statement is in the nature of a highway budget. It becomes effectual and binding upon the town when finally approved by the town board. Upon such approval it is to be submitted to the board of supervisors who thereupon must cause the amounts specified in the statement to be levied and collected in the town in the same manner as other charges against the town are levied and collected. It is thus provided that an amount sufficient to properly administer highway affairs in the town for the ensuing year will be collected and ready for use in the hands of the supervisor. This statement must be submitted on or before the thirty. first day of October, which brings it to the attention of the town board so that the town board may act upon it at its regular meeting on the Thursday preceding the annual meeting of the board of supervisors. The levy is made by the board of supervisors at its annual meeting and when the tax warrant reaches the hands of the collector it provides for the collection of money sufficient to take care of highway matters during the ensuing year. Such moneys will be paid over to the supervisor, for the most part, in the months of January, February or March, prior to the time when active opera. tions upon the highways are required to be begun.

91. Duties of town board in respect to estimates; levy of taxes. The town board, at its meeting held on the Thursday succeeding general election day in each year, shall consider the estimates contained in such statement. It may by a majority vote of the members thereof, approve such statement, or increase or reduce the amount of any of the estimates contained therein, subject to the limitations prescribed in section ninety-four. The

statement as thus approved, increased or reduced shall be signed in duplicate by a majority of the members of the town board, one of which shall be filed in the office of the town clerk, and the other shall be delivered to the supervisor. The town clerk shall make and transmit a copy of such statement to the commission. The supervisor shall present such statement to the board of supervisors, and such board shall cause the amounts therein, subject to the limitation requiring a vote of the electors as hereafter provided, to be assessed, levied and collected in such town in the same manner as other town charges, and such amounts shall be expended for the purposes specified in such statement. The warrant for the collection of taxes in such town shall direct the payment of the money so collected to the supervisor of the town, to be held by him and paid out for the purposes specified in such statement, as provided in this chapter.

Insufficient appropriations. In the absence of authority conferred upon him the town superintendent has no power to proceed with the improvements, and apply in payment therefor the appropriation for the succeeding year, and expenditures so made create no legal claim against the town. People ex rel. Peterson v. Clark, 45 App. Div. 65, 60 N. Y. Supp. 1045 (1899). The town superintendent of highways cannot of his own volition bind the town for a greater amount than that estimated, levied and collected. Mather v. Crawford, 36 Barb. 564 (1862); Barker v. Loomis, 6 Hill, 463 (1844).

§ 92. Additional tax. Whenever the town superintendent and the town board shall determine that the sum of one thousand five hundred dollars will be insufficient to pay the expenses actually necessary for the removal of obstructions caused by snow and the prevention of such obstructions, and whenever they shall determine that the amounts levied and collected for any of the purposes mentioned in the statement presented to the board of supervisors, as provided in the preceding section, are insufficient to pay the expenses necessarily incurred for any of the purposes therein specified they may cause a vote to be taken by ballot at a biennial town meeting or at a special town meeting duly called therefor, authorizing such additional sum to be raised as they may deem necessary for such purpose, not exceeding one-third of one per centum upon the taxable property of the town as shown by the last assessment-roll thereof.

Amended by L. 1918, ch. 147.

93. Extraordinary repairs of highways and bridges. If any highway or bridge or the board walk on any highway less than two rods in width, or a walk built to replace the same under section

sixty-two, shall at any time be damaged or destroyed by the elements or otherwise, or become unsafe for public use and travel, or if any bridge or the board walk on any highway less than two rods in width, or any such walk built to replace the same, be condemned by the commission, as provided in this chapter, the town superintendent shall cause the same to be immediately repaired or rebuilt, with the approval of the town board. Such highway or bridge or walk shall be so repaired or rebuilt in accordance with the directions or the plans and specifications prepared or approved by the district or county superintendent; except if the bridge or walk to be repaired or rebuilt is one which has been condemned by the commission, as provided in this chapter, the same shall be repaired or rebuilt in accordance with plans and specifications to be prepared or approved by the commission. The town clerk shall prepare a statement showing the probable cost of improving, repairing or rebuilding such highway or bridge or walk, which statement shall be signed in duplicate by a majority of the members of the town board, one of which duplicates shall be filed with the town clerk and one be delivered to the supervisor. The town clerk shall make a copy of such statement and transmit the same to the commission. The supervisor shall present such statement to the board of supervisors, who shall cause the amount contained in such statement to be assessed, levied and collected in the same manner as amounts levied and collected for other highway and bridge purposes, as provided by law. The amount so raised shall be paid to the supervisor to be expended for the purposes specified in such statement.

Amended by L. 1913, ch. 621, L. 1915, ch. 322 and L. 1917, ch. 261.

Application. This section does not authorize the rebuilding of a bridge which has become defective by ordinary wear and tear or the natural decay of the materials of which it was constructed, at a cost exceeding the moneys appropriated for highway purposes; it only authorizes such construction where the bridge has become destroyed by some emergency or by some extraordinary cause. It is more than doubtful if this section has any relation to or was intended to apply where a bridge or its approaches are partly in two towns. People ex rel. Canton Bridge Co. v. Town Auditors, 136 App. Div. 166 (1909), 120 N. Y. Supp. 696.

The amounts to be

§ 94. Limitations of amounts to be raised. raised by tax upon the vote of a town board, as provided in this article, shall be subject to the following limitations:

1. The amount to be levied and collected in each year for the repair and improvement of highways, including sluices, culverts

and bridges having a span of less than five feet and board walks or renewals thereof, on highways less than two rods in width, shall not be less than the amount prescribed under subdivision one of section ninety.

2. Not more than fifteen hundred dollars shall be levied and collected in any one year in any town for the repair and construction of a bridge unless by unanimous consent of all members of the town board, but in no case shall more than three thousand dollars be levied and collected unless duly authorized by the vote of a town meeting.

3. Not more than ten hundred dollars shall be levied and collected in any one year in any town for the purchase or repair of stone crushers, steam rollers, motor trucks, scarifiers, concrete mixers, traction engines or road machines for grading and scraping, tools and implements, unless duly authorized by the vote of a town meeting except, however, in a town in a county having a population of more than three hundred thousand and less than three hundred and fifty thousand according to the last preceding state enumeration and in such a town not more than fifteen hundred dollars may be levied and collected in any one year for such purpose, unless by unanimous consent of all members of the town board, but in no case shall more than two thousand five hundred dollars be levied and collected in such a town for such purposes unless duly authorized by vote of a town meeting.

Amended by L. 1918, chs. 320, 329, and L. 1919, ch. 376.

4. Not more than fifteen hundred dollars shall be levied and collected in any one year in any town for the repair or construction of any highway or bridge which has been damaged or destroyed as provided in section ninety-three or which has been condemned by the commission as provided in this chapter, unless by unanimous consent of all members of the town board, but in no case shall more than three thousand dollars be levied and collected unless duly authorized by the vote of a town meeting.

Amended by L. 1916, ch. 578.

Debts in excess of limitation. A town superintendent has no general authority to bind the town by his contracts. He must find his authority in the statute, and those who deal with him, and with the other officers of the town are presumed to know this limitation of power. See People ex rel. Everett v. Supervisors, 93 N. Y. 397 (1883); Berlin Bridge Co. v. Wagner, 57 Hun, 346, 10 N. Y. Supp. 840 (1890). If he and the town board attempt to raise by tax more money than the limit prescribed by this section, the levy would be invalid, and the collection of the tax might be legally prevented.