dissent">Rich, J. (dissenting):

I dissent. The evidence abundantly sustains the findings of .fact made by the learned trial' court, and the only question meriting serious consideration is whether the town -board has authority to expend the money in question for the purpose intended. It is argned that such authority does not exist for the reasons, first, that the moneys proposed to be expended.are not surplus moneys; second, that the town board is merely a governing board, possessed only of such ¡lowers as are.specifically conferred upon it by statute, and that the making of contracts for and improving of roads is not a governmental but á corporate function, and, third, that -the jurisdiction' of the highway commissioner in repairing and improving the public highways of the town is exclusive. . S

All of these questions are disposed of by chapter 164 of the Laws of 1891 if the fund proposed to he expended is “surplus money”. *551and the work intended to be done is an ■ “ improvement in said town ” within the meaning of those words as used in the statute cited. Chapter 396 of the Laws of 1905 is merely permissive, the trial court having found that said moneys are not required, either by contract or law, to be invested for any specific purpose. The stat-e ute referred to provides: “ The supervisor, town clerk and justices of the peace, or a majority thereof, in any town in this State, may expend any surplus moneys for which no' provision for expenditure, is made, belonging to said town, for the purposes of redemption of outstanding bonds or for improvements in 'said town.” In its limited use, as applied to a fund raised by taxation for a specific purpose, the word “surplus” unquestionably means that portion of such fund remaining after the completion or accomplishment of the purpose for which it was raised ; but I apprehend that it may properly be given a broader and more comprehensive definition when occurring iu a statute like the one under consideration. Any 'money owned by and in the possession of a town, not raised by taxation for a specific purpose, not impressed by a trust, or required by contract to be used for a particular purpose, is, in my judgment, “ surplus ” money—an excess beyond what is wanted or required for immediate town necessities — and if no provision exists for its expenditure, its use is authorized by the statute for improvements. If it be true, as is urged, that such construction vests concurrent power in the town board and highway commissioner as to a highway proposed to be improved by the use of money not raised by taxation for road purposes, such condition involves a question of wisdom and expediency, to be determined by the Legislature and not by the courts.

The judgment should be affirmed, with costs.

Hieschbeeg, P. J., concurred.

Judgment reversed and new trial granted, costs to abide the event. ‘

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