#### The People of the State of New York ex rel. David E. Burns, Relator, *v.*Chester A. Painter, Supervisor, and Others, Composing the Town Board of the Town of Oyster Bay, County of Nassau and State of New York, Respondents.

Second Department,

October 9, 1908.

Public health — ituisance — resolution of health board construed — abating nuisance on private property — liability of town.

A resolution of a local board of health to the effect that the health officer is empowered to take all necessary measures to abate nuisances in and about certain ponds, and to take all necessary legal measures to that end, and that the counsel for the health officer shall furnish the legal aid to abate said nuisances, is not effective as a determination that nuisances exist.

A resolution of such board of health that certain ponds are a menace to public health, declaring them to be public nuisances and empowering the health officer to abate the same, is not sufficient to entitle a contractor employed by the health officer for the purpose of improving the ponds to charge the town with sums expended in working upon ponds belonging to private owners who were not given the notice required by sections 31 and 36 of the Public Health Law and did not appear.

Such resolution should be construed as authorizing only the improvement of ponds belonging to the municipality, not those upon the lands of private owners, for, by virtue of sections 31 and 36 of the Public Health Law, such owners ' are personally, chargeable with the expense of abating such nujsance if they fail to do so after receiving the notice required by the statute.

As a contractor working under the direction of the health officer is conclusively presumed to know the law, he cannot charge the town for work done in abating a nuisance upon private property.

Certiorari issued out of the Supreme Court and attested on the 12th day of March, 1908, directed to Chester A. Painter, supervisor, and others, composing the town board of the town of Oyster Bay, etc., commanding them to certify and return to the office of the clerk of the county of Nassau all and singular their proceedings had in relation to the audit of an account presented by the relator for labor and materials furnished.

*John J.*Graham, for the relator.

*George B. Stoddart,*for the respondents.

*70Woodward, J.:

The relator seeks by a writ of certiorari to review and reverse the determination of the town board of audit of the town of Oyster Bay, made upon an audit of a claim presented by him against the town for services rendered in connection with the abatement of a nuisance. It appears that certain ponds in the town of Oyster Bay were in an unsanitary condition in 1907, and that on the twenty-seventh day of April in that year the local board of health adopted a resolution to the effect that.“ the Health Officer be authorized and empowered to take all necessary measures to suppress and abate nuisances in, upon and about the ponds at Glen Cove, and to take all necessary legal measures to that end; and that the counsel to the Board furnish the Health Officer with all necessary legal aid to suppress and abate said nuisances.” Clearly here was no determination that there were nuisances to be abated, and this resolution was of no legal effect, so far as any matter relating to the present review is concerned. On the 11th day of Máy, 1907, the counsel of said board was instructed to notify tenants occupying property bordering upon the Glen Cove ponds to cease draining sewage from cesspools and privies into said ponds within ten days, and in default thereof the said counsel was instructed to proceed on behalf of said board to cause the nuisances created thereby to be abated in the manner prescribed by law. Hothing appears to have been done under this-instruction, and on the 10th of July, 1907, it being reported that there was an epidemic of malarial fever, at Glen Cove, the following resolution was adopted: *“ Resolved:*That the present conditions of the ponds at Glen Cove are a menace to the public health, and are hereby declared to be public nuisances; and that the Health Officer be, and he hereby is, authorized and empowered to take all necessary means to suppress and abate the same.”

Acting under the authority of this resolution the health officer employed the relator to do such work and furnish such material's as should be necessary, and it is not disputed that the relator furnished the materials and performed the labor to the satisfaction of the health officer. The relator presented a bill to the town board for audit amounting to $3,498.25,. this sum including work and materials furnished by the relator in making changes and improvements upon two ponds which belonged to a private corporation, *71which does not appear to have had any notice, such as is required by sections 21'and 26 of the Public Health Law* to impose the burden upon such corporation. The town board of audit allowed the claim of the relator for $623, this sum it being estimated having been legitimately expended upon the two ponds alleged to be the property of the township, and to which it is claimed the resolution of-July tenth related, and rejected the balance of the claim. The relator claims that the resolution authorized the work as to all the ponds at Glen Cove, including those on private property, and that, having performed the work to the satisfaction of the health officer, and to the benefit of the town, he is entitled to have the full amount of his claim audited.

A reading of the statute, iñ harmony with well-established principles of law, convinces us that the relator has no ground for complaint. The resolution of July tenth, passed without notice to anyone, so far as appears, could have no binding effect on any ponds belonging to private individuals or corporations at Glen Cove. The statute clearly provides for giving notice to owners and occupants, and provides that if there is a failure on the part of such parties to abate any nuisance the same may be abated by the public authorities, the owner or occupant of the premises to be charged with the payment of the expenses (§§ 21, 26), which clearly precludes the idea that the board of health may declare the premises a nuisance without notice and impose the burden upon the community. The town of Oyster Bay has long claimed title to two.' of these ponds; the entire proceeding of the board of health, in so far as it indicates anything definite, points to the conclusion that it was dealing with the ponds which were claimed to belong to the township, and as to which it probably had authority to deal without notice. It certainly had no authority for declaring a nuisance upon private property without notice, and as there could be no authority for abating a nuisance not legally established, there could be no authority in the general resolution of July tenth in relation to “the ponds at Glen Cove ” for intruding upon private property and making improvements aggregating nearly $2,000 and imposing this burden *72upon the community. If the private corporation owning the premises where this important work was done was maintaining a, nuisance it was its duty to abate the same, and upon being legally notified and Upon proper proceedings being taken, this duty could be enforced without expense to the public. The board' of health having failed to take these steps,, there is no way in which the cost of' the work can be placed where it belongs — assuming that the corporation’s'ponds did, in fact, constitute a nuisance -—and the relator could not gain any rights by doing the Work tinder the direction of the health officer, for he was bound to know the limitations upon the authority of that officer'; he was conclusively presumed to know the law, and the l.a.w clearly did not authorize the doing of work upon private property for the abatement of a nuisance without conforming to- the provisions of the statute, and giving the party notice and an opportunity to be heard and to abate: the nuisance.

The. determination of the town board should be affirmed, and the Writ of certiorari dismissed, with costs.

Jenks, Hooker, Gaynor and Rich, JJ., concurred.

Determination of town board affirmed and writ of certiorari dismissed, with fifty dollars costs and disbursements.

*

 See Laws of 1893, chap. 681, '§§ 21, 26, as respectively amd. by Laws of 1907, chap. 189, and Laws of 1903, chap. 383.— [Rep.