The Village of Seneca Falls vs. Matthews, 9 Paige Ch. 504

The Chancellor. The vice-chancellor erred in refusing to permit the defendant to read affidavits in opposition to the application for the injunction. Where a preliminary injunction is granted absolutely in the first instance, and the defendant asks to have it dissolved upon the ground that the whole equity of the bill is denied by the answer, it is not the practice to allow him to read affidavits in support of his answer, except in those cases where the answer itself is not conclusive, under the last clause of the 37th rule.

But where the complainant is directed to give notice of his application for an injunction, or where the defendant is required to show cause why a preliminary injunction should not be granted, whether a temporary injunction is or is not allowed in the meantime, the defendant has a perfect right to introduce his own or any other affidavits for the purpose of showing that the injunction should not be granted as asked for.

And he may use such affidavits, in a case of that kind, although he has put in his answer denying the whole equity of the complainant’s bill; or has neglected to answer the bill fully, so that his answer is liable to exceptions for insufficiency. For upon an order to show cause why an injunction should not be granted, the answer, if put in, is only used as a sworn statement or affidavit, on the part of the defendant, in opposition to the complainant’s application.

Whether this is a proper case for the interference of this court by injunction, even if the complainants are right in their construction of the village charter, is a question which it is not necessary now to determine. For I am satisfied, from an examination of the provisions of the statute, that the street commissioner of the second ward was the proper officer to superintend the building of the bridge, and to make contracts for the work and materials therefor, subject, however, to the ratification of the trustees. This power is expressly given to him by the 30th

section of the village charter. (Laws of 1837, p. 240.) The 39th section, which gives to the trustees the general power of commissioners of highways, ftiakes such powers subject to the provisions of that act. Their powers, therefore, are subject to the provisions of the 30th section, which

section gives to the street commissioner of each ward the superintendence of all public improvements ordered by the trustees in his ward, and the right to contract for labor and materials therefor subject to the ratification of the board. Having the general powers of commissioners of highways, the trustees are unquestionably authorized, in ordinary cases, to direct what improvements shall be made, the form and manner of the improvement, and the nature of the materials to be used in making the same ; subject to the special provisions of the 41st

section of the village charter in relation to improvements made by an assessment upon a particular ward. But after they have done so it is the duty of the street commissioner of the ward in which such improvement is ordered to be made, to superintend the making thereof in conformity with such determination of the trustees. All his contracts for labor and materials, however, .in order to be binding upon the corporation, and to enable the persons with whom he contracts to obtain compensation therefor out of any funds in the hands or under the control of the trustees, must be ratified by the board of trustees.

And if he thinks proper to make contracts for labor and materials upon his own authority exclusively, or to expend his own money in making the improvement, or in paying the contractors, without the previous sanction of the board of trustees, he must of course bear the loss.

Where the street commissioner neglects his duty, however, by refusing to superintend the improvement, and to make it in the manner previously directed by the trustees, or neglects to make contracts for the labor and materials and to lay them before the board of trustees for their approval, the remedy is by an indictment, for a neglect of his duty in this respect, or by an application to the supreme court for a mandamus to compel him to do his duty.

But the trustees have no right to restrain him by injunction from making the improvement at his own expense, and without any valid contracts for labor or materials, if he is unwise enough to do so. Being satisfied that the claim of the trustees to contract for the work and materials and to assume the exclusive control of the building of this bridge themselves, cannot be sustained, and that there were no sufficient grounds for the interference of this court by injunction, the order appealed from must be reversed.

And the order to show cause must be dismissed with costs to be taxed, including the costs on this appeal; and the temporary injunction must be dissolved.