#### Albert Gaffey and John P. Byrnes, Appellants, *v.*Town of Newfield, Respondent.

Third Department,

July 1, 1914.

Highways — claim against town for building bridge with a span of ' more than five feet should be presented to town board for audit — action against town improper — judgment dismissing complaint modified by striking out words *“*upon the merits.”

Under the provisions of section 106 of the Highway Law a claim against a town for the contract price of building a bridge with a span of more than five feet over a creek in said town, and for extra work, should be presented to the town board for audit.

A judgment dismissing the complaint in an action against the town to recover upon such claim should be modified by striking therefrom the words “upon the merits,” as it may in the future be urged that there was no merit to the claim.

Appeal by the plaintiffs, Albert Gaffey and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tompkins on the 18th day of December, 1913, dismissing plaintiffs’ complaint on the merits upon the pleadings, and also from the order entered in said clerk’s office on the 17th day of December, 1913, directing such dismissal.

*Hitchcock & Murphy [Charles A. Hitchcock*of counsel], for the appellants.

*David M. Dean,*for the respondent.

*67Kellogg, J.:

The plaintiffs brought this action against the town to recover the contract price for building a bridge, or concrete arch, with a span of more than five feet, over Newfield creek in the town of Uewfield, and to recover for fifty-two yards of extra concrete work at a price of ten dollars per cubic yard as fixed by such contract.

The defendant answered, denying some of the allegations of the complaint, And alleging that the work was not done according to contract, and alleging as a counterclaim that on account of the improper construction of the bridge it was unsuitable for the purposes contemplated and the defendant had suffered damages thereby. Plaintiffs replied to the alleged counterclaim.

Upon the trial the defendant moved to dismiss the complaint upon the ground, among others, that the plaintiffs’ only remedy was to present their claim to the town board. The court dismissed the plaintiffs’ complaint upon the authority of *Colby*v. *Town of Day*(75 App. Div. 211).

Section 106 of the Highway Law provides that all moneys raised for the construction or repair of a bridge, with a span of over five feet, shall be paid out by the supervisor upon the written order of the town superintendent after audit of the town board. This case seems to fall within that provision. *(Colby*v. *Town of Day, supra; Peck*v. *Town of Catskill,*119 App. Div. 752; *People ex rel. McCabe*v. *Matthies,*179 N. Y. 242.)

The appellants urge that recoveries have been sustained in actions against towns upon bonds and coupons providing for the payment of a fixed sum, and that such cases permit a recovery here. We need not refer to the cases as the statute cited seems to dispose of the question. The plaintiffs seek to recover the contract price and also for extra work. The claim for the contract price and for the extra work constitute one claim, and the amount to be paid the plaintiffs is not, therefore, definitely fixed by the contract but depends upon the amount of extra work and whether the contract was performed. The claim is, therefore, one which should properly be presented to the town board for audit.

The order and judgment recite that the dismissal is *“*upon *68the merits.” That recital was unnecessary and improper, as it may in the future he urged that there was no merit to the plaintiffs’ claim that they should be paid for constructing the bridge.

The order and judgment are, therefore, modified by striking therefrom the words “upon the merits,” and as modified affirmed, without costs.

All concurred.

Order and judgment modified by striking therefrom the words “upon the merits,” and as modified affirmed, without costs.