The opinion
By the Coukt :
A question is presented in this case which does not arise in the cases of similar character argued at this term.
The relators have only a judgment against the commissioners of highways. This is not a judgment against the town. (People ex rel. Van Keuren v. Auditors, 74 N. Y., 311 ; Laws 1880, chap. 554; 2 R. S., m. p. 474, § 102, etc.)
The judgment is to be collected from the commissioners (2 R. S., m. p. 476, § 108, as modified by section 1931, Code of Civil Procedure). When they shall have paid it, it may be allowed in their accounts. We cannbt determine whether or not these commissioners will have any claim against the town upon their accounting. *186 There is nothing in the remark to which we are referred, made in Van Alstyne v. Freday ( 41 N. Y., 177 ), which should change the principle above stated. At present there is no judgment against the town and no allowance of the claim by the town auditors.
For these reasons, without passing on the other questions, the order should be reversed, with costs of appeal, and motion for mandamus denied, with fifty dollars costs, under section 2086 of the Code.
Present — Learned, P. J., Boardman and Bocees, «TJ.
Order reversed, with costs of appeal, and motion for mandamus denied, with fifty dollars costs, under section 2086 of the Code of Civil Procedure.