#### The People *ex rel.*George J. Penfield, App’lt, *v.*Robert George, Com’r of Highways, Resp’t.

*(Supreme Court, General Term, Second Department,*

*Filed May 11, 1891.)*

Towns—Highway moneys.

At a town meeting certain moneys were voted for the purpose of working an unpaved street or highway. The moneys were expended in the general repair of the highways of the. town and nothing was done as to said road, which is now embraced within the limits of a village which is given exclusive control of its streets. Defendant’s accounts have been audited and allowed. *Held,*that the moneys were subject to the general direction of the commissioner of highways, notwithstanding the vote of the town meeting, and that a taxpayer of the town could not compel the commissioner to expend such money upon the road in such village.

Appeal from judgment of special term, denying application for a *mandamus.*

Application by relator as a taxpayer of the town of Eastcbester for a *mandamus*to compel defendant as commissioner of highways of said town to expend certain moneys in working a highway in the village of South Mount Vernon in said town.

*John F.*Brennan, for app’lt; *Pelham L.*McClellan, for resp’t.

Barnard, P. J.

On the 23d day of December, 1887, the commissioners of highways of Eastchester laid out a road, being an extension of Third street, in the village of Mt. Vernon, from the village limits to the westerly boundary of the town. At the town meeting preceding, held in March, 1887, there was raised for general highway purposes the sum of $1,700, and $900 for working this then unpaved street or highway. The tax was all collected out of the taxable property of Eastchester, outside of Mt. Vernon village. After the road was opened in December following, the damages for land taken were assessed, but nothing was ever done in respect to opening or working the road. The moneys in question' have been expended in the general repair of highways in the town of Eastchester. The road in question is now entirely embraced within the corporate limits of South Mt Vernon, which was incorporated in 1889 under the general act in relation to formation of villages. By the charter the village has exclusive control of its streets within the corporate limits. The defendant received the $900 from his predecessor in office. Mr. Fisher, with full knowledge that it was raised for a specific purpose, in the spring of 1889. The defendant expended all the money in gen*346eral highway and bridge repairs in the town, and his accounts were audited according to law; and there was left eighty dollars on hand unexpended only. These repairs were necessarily made. I am of the opinion that the relator has no right to compel the commissioners of highways to expend the $900 upon the road in South Mt. Yernon. First, the moneys were subject to the general direction of the commissioners of highways notwithstanding the vote of the town meeting. Second, the moneys have been necessarily expended in the performance of the general duty of the commissioners of highways in respect to the town roads and bridges. Third, the expenditure has been audited and allowed by the town auditors, all of which happened before South Mt Yernon was incorporated, and possibly this section had its proportion of benefit.

Lastly, it is now too late to compel the commissioners to go into the corporate limits of South Mt. Yernon and repair one of its roads. Chapter 377, Laws of 1878. Chapter 67, Laws of 1860.

These laws require the expenditure to be made in the town.

The judgment should, therefore, be affirmed with costs.

Dykman and Pratt, JJ., concur.