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$43. Witnesses may be examined by the fence-viewers on all ART. 5 questions submitted to them, and either of such fence-viewers shall Powers of have power to issue subpoenas for, and to administer oaths to, such fence-viewwitnesses.

ers.

ses damages

covered.

S44. Whenever the electors of any town shall have made any rule In certain ca or regulation, prescribing what shall be deemed a sufficient fence in not to be resuch town, any person who shall thereafter neglect to keep a fence according to such rule or regulation, shall be precluded from recovering compensation in any manner, for damages done by any beast lawfully going at large on the highways, that may enter on any lands of such person, not fenced in conformity to the said rule or regulation, or for entering through any defective fence.

of fence.

$45. When the sufficiency of a fence shall come in question in Sufficiency any suit, it shall be presumed to have been sufficient, until the contrary be established. 39

ARTICLE FIFTH.

Of the Board of Auditors of Town Accounts.

SEC. 46. Supervisor, town clerk and justices to be auditors of certain accounts.
47. Board of auditors to meet on the Tuesday preceding annual town-meeting.
48. Accounts audited to be filed with town clerk, and read at town-meeting.
49. Justices and town clerk to audit supervisor's accounts.

stitute board.

[See Ch. 16,

$ 46. In each town, the supervisor and town clerk, together with Who to con the justices of the town, or any two of such justices, shall constitute a board of auditors, to examine the accounts of the overseers of the Title 1, 3, poor, the commissioners of common schools, and the commissioners of Title 1, § 48.] highways of such town, for monies received and disbursed by them.40

and Ch. 20,

to meet.

$47. The board of auditors of town accounts shall meet for the Board when purpose of examining the same, annually, in each town in this state, on the Tuesday preceding the annual town-meeting to be held in such town.40

when audit

posed of.

348. The accounts so audited, shall be delivered, with the certifi- Accounts cate of the auditors, to the town clerk, to be by him kept on file, for ed, how disthe inspection of any of the inhabitants of the town. They shall also be produced by the town clerk, at the next annual town-meeting, and shall be there read by him, if the same shall be required by the meeting.40

supervisor's

S49. The justices of the town, or a majority of them, and the Auditors of town clerk, shall, on the Tuesday preceding the annual town-meet- accounts. ing, in each year, examine and audit the accounts of the supervisor, for monies received and disbursed by him. The accounts, so audited, shall be filed in the office of the town clerk, as above provided.40

(39) Compiled with some variations and additions from 2 R. L. 133, § 17 and 18. (40) 1 B. L. 290, § 28 ; 2 R. L. 138, § 2; ib. 280, § 31; Laws of 1819, p. 196, § 17.

TITLE 5.

Daily pay of assessors, &c

Pay of town

clerk.

Pound-masters' fees.

ARTICLE SIXTH.

Of the Compensation of Town Officers.

SEC. 50. Certain officers to receive $1 25, and others $1 per day.
51. Compensation of town clerk to be fixed by board of supervisors.
52. Fees of pound masters.

$ 50. The following town officers shall be entitled to compensation at the following rates, for each day actually and necessarily devoted by them to the service of the town, in the duties of their respective offices:

1. Assessors and inspectors of elections, and clerks of the poll, one dollar and twenty-five cents a day.

2. Commissioners of highways, commissioners and inspectors of common schools, and overseers of the poor, one dollar a day.

$51. The town clerk shall be entitled to such compensation for his services, including those performed as clerk of the commissioners of common schools, as the board of supervisors of his county shall allow.

S52. The pound-masters shall be allowed the following fees for their services, to wit: For taking into the pound and discharging therefrom, every horse, ass or mule, and all neat cattle, twelve and a half cents each; for every sheep or lamb, three cents; and for every hog, six cents.4

41

Proceedings

to try controversies be

tween towns, &c.

TITLE V.

OF LEGAL PROCEEDINGS IN FAVOR OF AND AGAINST TOWNS. SEC. 1. The like proceedings allowed in controversies with and between towns, as between individuals and corporations.

2. Towns to sue or be sued by their names, except where town officers are authorised té

sue.

3. Process to be served on supervisor; his duty.

4. Inhabitants when competent witnesses and jurors.

5. Towns may sue before justices of the peace; regulations concerning such suits.

6. In actions to recover for trespasses to town lands, if damages exceed penalty, the amount of such damages to be recovered.

7. Partition of town lands, when to be decreed.

8. Costs recoverable in favor of or against towns; judgments against towns and town officers, to be a town charge.

§ 1. Whenever any controversy or cause of action shall exist between any towns of this state, or between any town and an individual or corporation, such proceedings shall be had, either at law, or in equity, for the purpose of trying and finally settling such controversy, and the same shall be conducted in like manner, and the judgment or decree therein shall have the like effect, as in other suits or proceedings of a similar kind, between individuals and corporations. 42

(41) As to this Article, see 2 R. L. 134, § 21 ; ib. 282, § 35; Laws of 1819, p. 192, § 11. (42) Laws of 1820, p. 175, § 1 and 2.

§ 2. In all such suits and proceedings, the town shall sue or be sued by its name, except where town officers shall be authorised by law to sue in their name of office, for the benefit of the town.

TITLE 5.

Town how to sue.

Served on su

$ 3. In all legal proceedings against towns by name, the first pro- Process to be cess, and all other proceedings requiring to be served, shall be served pervisor. on the supervisor of the town; and whenever any such suit or proceeding shall be commenced, it shall be the duty of the supervisor to attend to the defence thereof, and to lay before the electors of the town, at the first town-meeting, a full statement of such suit or proeeeding, for their direction in regard to the defence thereof.

Inhabitants

es and jurors.

vor of a town

$ 4. On the trial of every action in which a town shall be a party when compeor be interested, the electors and inhabitants of such town shall be tent witnesscompetent witnesses and jurors, except that in suits and proceedings by and against towns, no inhabitant of either town shall be a juror.43 S 5. Any action in favor of a town, which, if brought by an indi- Actions in favidual, could be prosecuted before a justice of the peace, may be pro- may be bro't secuted by such town, in like manner, before any such justice; but tice. no action to recover a penalty given to a town, shall be brought before any of the justices of the peace residing in the town, for the benefit of which the same is prosecuted; but all such actions may be brought before any one of the justices of the peace residing in any other town in the same county."

44

before a jus

penalties for

town lands.

[See ante, p.

$ 6. Whenever any action shall be brought to recover a penalty, Actions for imposed for any trespass committed on the lands of a town, if it shall trespass on appear, on the trial thereof, that the actual amount of injury to such town lands, in consequence of such trespass, exceeded the sum of 341.1 twelve dollars and fifty cents, then the amount of the actual damage, with costs of suit, shall be recovered in such action, instead of any penalty for the same trespass, imposed by the town-meeting; and such recovery shall be a bar to every other suit for the same trespass.45

may order

$ 7. Whenever, by any decree or decision in any suit or proceed- When court ing, brought to settle any controversy in relation to town commons, partition. or other lands the common property of a town, or for the partition thereof, the rights of any town shall be settled and confirmed, the court in which such proceedings shall be had, may partition such lands, according to the right, as decided and settled.46

ments when a

S 8. In all suits or proceedings prosecuted by or against towns, or Costs. Judg by or against town officers in their name of office, costs shall be reco-town charge. verable as in the like cases between individuals. Judgments recover-. ed against a town, or against town officers in actions prosecuted by or against them in their name of office, shall be a town charge, and when

(43) 2 R. L. 132, § 14. (44) Ib. 131, § 12. (45) Laws of 1823, p. 207, § 5. (46) Laws of 1820, p. 176, § 2.

TITLE 6. levied and collected, shall be paid to the person to whom the same shall have been adjudged.

Pounds.

Town charges.

town charges.

TITLE VI.

MISCELLANEOUS PROVISIONS OF A GENERAL NATURE.

SEC. 1. Pounds to be kept in each town; but town-meeting may discontinue them.
2. What shall be deemed town charges.

3. Accounts for certain town charges to be presented to the board of supervisors.
4. Monies to defray town charges, how raised.

5 & 6. Certain town officers required to demand the records, books and papers belong-
ing to their office, of their predecessors.

7. Such predecessors to deliver over records, &c. on oath: certain town officers to pay over monies in their hands.

8. If officer be dead, demand to be made of his executors or administrators, who are to comply therewith.

9. Penalty for refusing to deliver records, &c. ; mode in which delivery is to be compelled.

$1. Whenever the inhabitants of any town shall determine, at an annual town-meeting, to erect one or more pounds therein, and wherever a pound shall now be erected in any town, the same shall be kept under the care and direction of such pound-master as shall be chosen or appointed for that purpose. The inhabitants of any town may, at any annual town-meeting, discontinue any pounds therein."7 $ 2. The following shall be deemed town charges:

1. The compensation of town officers for services rendered for their respective towns;

2. The contingent expenses necessarily incurred for the use and benefit of the town;

3. The monies authorised to be raised by the vote of a town-meeting, for any town purpose; and,

48

4. Every sum directed by law to be raised for any town purpose.* Accounts for $3. Accounts for the compensation of town officers, and the contingent expenses of towns, (except for monies received and disbursed which are to be settled by the board of town auditors,) shall be presented to the board of supervisors of the county.

Monies to defray town

Certain town

$ 4. The monies necessary to defray the town charges of each charges, how town, shall be levied on the taxable property in such town, in the raised. manner prescribed in the twelfth and thirteenth Chapters of this act. $5. Whenever the term of office of any supervisor or town clerk officers to de- shall expire, and another person shall be elected or appointed to such predecessors. office, it shall be the duty of such succeeding supervisor or town clerk immediately after he shall have entered on the duties of his office, to demand of his predecessor all the records, books and papers under his control belonging to such office; and whenever the term of office of

mand records

&c. of their

(47) 2 R. L. 134, § 21. (48) 2 R. L. 137, § 2; Laws of 1819, p. 192, § 11; 1823, p

the commissioners of highways, or of common schools, or of the over- TITLE 7. seers of the poor of any town shall expire, and another or others shall be elected or appointed, it shall in like manner be the duty of the persons so elected or appointed, to make such demand of their predecessors or predecessor.

S 6. Whenever either of the officers above named, shall resign, Iь. and another person shall be elected or appointed in his stead, the person so elected or appointed shall make such demand of the person so resigning.

over records,

$7. It shall be the duty of every person so going out of office, Persons ge whenever thereto required pursuant to the foregoing provisions, to fice to deliver deliver upon oath all the records, books and papers in his possession, &c. or under his control, belonging to the office held by him; which oath may be administered by the officer to whom such delivery shall be made. It shall also be the duty of every supervisor, commissioner of highways, or of common schools, and of every overseer of the poor, so going out of office, at the same time to pay over to such successor the balance of monies remaining in his hands, as ascertained by the auditors of town accounts.

made of exe

cutors, &c.

$ 8. Upon the death of any of the officers above enumerated, the In case of death, desuccessors or successor of such officer shall make such demand as mand to be above provided, of the executors or administrators of such deceased officer; and it shall be the duty of such executors or administrators to deliver upon the like oath all records, books and papers in their possession, or under their control, belonging to the office held by their testator or intestate.

refusing to

cords, &c.

to compel de

$9. If any person so going out of office, or his executors or admi- Penalty for nistrators, shall refuse or neglect, when thereunto lawfully required, deliver reto deliver such records, books or papers, he shall forfeit to the town. for every such refusal or neglect, the sum of two hundred and fifty dollars; and it shall also be the duty of the officer or officers entitled Proceedings to demand such records, books and papers, to proceed to compel the livery. delivery thereof in the manner prescribed in the sixth Title of the (See ante, p. fifth Chapter of this act, and to that end the fiftieth, fifty-first, fifty-second, fifty-third, fifty-fourth and fifty-fifth sections of that Title, shall be deemed to apply to the officers above enumerated, and their exeeutors or administrators.

124.]

TITLE VII.

LOCAL AND SPECIAL PROVISIONS.

SEC. 1. Title to lots used for a certain time as burying grounds, vested in towns.

2. Trustees in Huntington, Brookhaven, Rochester and Marbletown, to be elected.
3. Trustees in the town of Westchester to be chosen; their powers.

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