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of the clerk of the county, wherein such work or contract is to be ART. 2. performed. And when such work shall be partly in two or more counties, there shall be such a bond filed in the clerk's office of each county. [1850, ch. 278, § 1].


S52. Suits may be commenced on said bond before a justice of When the peace, when the amount claimed shall not exceed the jurisdicdiction of a justice of the peace, and a transcript of such bond, duly authenticated by the county clerk, may be used in evidence in such suit. [Same ch., § 2.]


S53. The bringing of a suit by one or more laborers, upon Show such bond, shall not operate as a bar to the bringing of other suits thereon, by any of the parties for whose benefit such bond was taken, and to whom such contractor shall be indebted for labor. But no recourse shall be had to the sureties upon such bond, unless proceedings shall be commenced within thirty days after the completion of the labor, the payment of which is secured by such bond. But nothing in this act contained shall prevent or bar a suit against such contractor within the time limited by law. [Same ch., § 3]


$ 54. [Sec. 40.] No canal commissioner shall be allowed as such, Adonis to have in his hands at any one time, more than ten thousand dollars; sioners. and every sum advanced to, or received by him, shall be deemed to remain in his hands until its application shall have been properly accounted for to the comptroller.1

Drafts for

*S 55. Either of the acting canal commissioners may draw upon payment of the commissioners of the canal fund for any sum to be advanced engineers. to an engineer to meet the expenses of the engineer department; and if the bond of said engineer shall have been duly filed in the office of the comptroller, and a receipt of the engineer for such draft shall also be filed in the same office, it shall be the duty of the commissioners of the canal fund to pay the draft; provided the advances to an engineer unaccounted for, shall at no time exceed the sum of five thousand dollars. [1837, ch. 451, § 1.]


*S 56. Before any advance shall be made to an engineer, he shall Engineer to execute and file in the office of the comptroller, a bond to the people bond. of this state for the faithful expenditure of the moneys which shall be entrusted to him, in such penalty and form as the canal board shall direct, and with such sureties as the comptroller shall approve; upon which said bond the said engineer and his sureties shall be responsible to the state for moneys advanced to him as aforesaid. [Same ch., § 2]

To account once

*S 57. Such engineer shall, as often as once in ninety days, ren- The in der his account to the comptroller, who shall audit the same; and ninety days. if he shall omit to render his account, or his accounts as rendered be not satisfactory, the comptroller shall notify the canal commissioners and the commissioners of the canal fund thereof; and no further advances of money shall be made to such engineer. [Same ch., § 3.1

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be certified

$ 58. Before any engineer's account for expenditures shall be Accounts to presented to the comptroller, the canal commissioner having charge by a canal

1 Laws of 1826, p. 361, § 20; 1827, p. 229, § 36.


TITLE of that part of the canal on which such engineer is employed, shall certify on such account that he has examined the same; that the several disbursements specified therein were made under his direction on the canal, or for payments necessary to be made thereon; and that he believes such disbursements to be proper and reasonable, and to have been made as charged. [Same ch., § 4.]





$59. [Sec. 41.] In all cases in which suits shall be brought by the canal commissioners, or under their direction, for the recovery of penalties or damages under the provisions of this title, it shall be their duty to keep an accurate account of the recoveries, and of the costs and expenses, and after deducting such costs and expenses, to pay over the residue of the sums received, [into the state treasury, or account for the same with the comptroller. [As modified by ch. 162 of 1848, § 8.]

$60. [Sec. 42.] It shall be the duty of the canal commissioners to account and settle with the comptroller1 on or before the fifteenth day of January in each year, for all moneys received by them, and each of them, from the commissioners of the canal fund, or belonging to that fund; and such settlement, specifying the sums respectively paid to all contractors, engineers, agents and servants of every description, employed on the canals, and to all persons having received a compensation for damages, and the names of such persons shall, without delay, be reported by the comptroller to the legislature.2

$61. [Sec. 43.] No acting commissioner, superintendent of officers not repairs, collector or lock keeper, on any canal, shall be held to bail, or taken by warrant, in any civil suit, for any act done, or omitted to be done by him, in the exercise of his official duties.s

to be held to bail.


report to legislature.


Boats, implements and materi

ed for repairs.

S 62. [Sec. 44.] Within twenty days from the commencement of each annual session of the legislature, the canal commissioners shall make their report to the legislature; and in such report shall state the condition of the canals, and all the works and improvements connected therewith, the improvements and repairs made during the past year, or contemplated to be made, and the amount of moneys, during the same period received and expended by them, and each of them, in the discharge of their duties, and shall recommend such measures, in relation to the canals, as they shall deem the public interest to require.*

$63. Each canal superintendent under such regulations as shall be prescribed by the canal board, shall procure all boats, als, how to wheelbarrows, tools and implements, lumber, stone and other mabe furnish terials required for the ordinary repairs of the canals, by giving notice for two weeks in two papers designated to publish the laws in each county through which his section of the canal passes, of the day and hour when sealed propositions will be received for the supply of the articles required. In addition to the requirements of sections thirty-four and thirty-five, article two, title nine of chap[ante, $$ 39 ter nine of the first part of the Revised Statutes, the canal board shall prescribe such rules in regard to the notice to be given, and the time and manner of receiving and opening proposals as will

and 40.]

1 See Laws of 1848, ch. 162,, § 2 in relation to duties and powers of auditor. 2 Laws of 1819, p. 124, § 6. 3 Laws of 1820, p. 190, § 22. Laws of 1817, p. 302, § 2; Laws of 1827, p. 239, § 37.

effectually secure the rights of the bidders and the interests of the ART. 2. state, and in rebuilding locks, bridges and other structures on the finished canals, the canal commissioners shall contract for the same on sealed propositions, except during the season of navigation. [1847, ch. 278, § 5.]

how to be

$ 64. Every person proposing to become a contractor for fur- Proposals, nishing materials or tools under this act shall accompany his propo- made. sals by an engagement, substantially in such form as said canal board shall prescribe, signed by some responsible person or persons guaranteeing that said person or persons making such proposal shall within ten days after the acceptance of his or their proposals by said commissioners, enter into a contract in writing with said commissioners and their successors in office for the faithful performance of such proposals; and if any person or persons to whom any contract may be awarded shall neglect or refuse to enter into such contract, within such time as is herein prescribed for that purpose, it shall be the duty of said commissioners to receive further proposals for furnishing such materials and tools as remain uncontracted for by reason of such neglect, and to prosecute the person or persons so neglecting to enter into contract according to their proposals and their sureties for such damages as the state may have sustained by reason of such neglect or refusal. [Same ch. § 6.]

to give

S65. Every contractor shall give satisfactory security to the Contractors canal commissioners for the faithful performance of his contract, security. and if any person or persons having entered into any such contract shall fail, neglect or refuse to perform his contract or the requisitions of the canal commissioners or superintendent having the oversight and charge thereof, made in conformity with such contract, such contract may, by said canal commissioners, be declared abandoned, and such person or persons shall be thereafter excluded from any interest in any future contract in relation to the same and all similar objects. [Same ch., § 7.]

refusal to


66. If any contractor for the furnishing of any tools or Penalty for materials upon any section or sections of any of said canals shall neglect or fail, neglect or refuse to perform his contract relative thereto, or perform to comply with any requisition made in accordance therewith of any acting canal commissioner or superintendent in charge of any such section or sections, it shall be the duty of such commissioner or superintendent under his order to procure all such tools and materials as may be necessary for immediate use and until such * contract shall be relet; and such contractor and his sureties shall be liable for all damages which may result from such neglect or refusal, together with all necessary extra cost of materials and tools over and above the contract price, rendered necessary to be purchased or procured by any commissioner or superintendent by reason of such neglect or refusal. [Same ch., § 8.]


&c., defi

ciencies to

$67. In the event of any breach or other extraordinary event In case of rendering necessary an increased quantity or amount of materials or tools upon any section of said canals, the supply of which can not be supplied. consistently with the safety and requisite good reparation or con- See, post, dition of said canals be obtained under and by virtue of the contracts herein required to be made in season for the exigencies of

§ 71.

TITLE 9. the occasion, any canal commissioner or superintendent in charge of any portion of said canals where such necessity may exist, is hereby authorized and required to supply any deficiency that may be found to exist upon the best practicable terms for the interest of the state, rendering to the canal board, as soon as consistent thereafter, a just and true detailed statement of the materials or tools purchased and of the circumstances rendering such purchase necessary, which statement, or a copy thereof, shall be communicated to the legislature at its next session. But nothing herein contained shall be so construed as to permit the purchase of any materials or tools for the supply of which contracts are in existence in any other manner than by contract, whenever the same can be procured by contract without delay to the navigation of the canals or injury to the interest of the state. [1847, ch. 278, § 9.]

Materials and tools furnished,

to be examined by

missioner in


*S 68. All materials and tools purchased by and delivered or offered for delivery in pursuance of any contract made under the provisions of this act shall be carefully and thoroughly examined canal com and inspected by an acting canal commissioner or superintendent in charge of the section where the same may be delivered for such use, and such examination and inspection is hereby required to be made by the commissioner in person as far as shall be consistent with the discharge of his other necessary official duties; and the officer making such examination and inspection shall immediately thereafter make a report to the canal board of such examination and inspection, in which he shall state the quantity, quality and amount or number of the materials or tools examined and received or rejected as being or not being in conformity with the contract under which they may be offered for acceptance; and when any portion of such materials or tools shall be rejected as not in conformity with the contract, the reasons for such rejection shall be stated and set forth in such report, which shall contain an account of the time when and place where such examination was made, and the section or sections for which such materials or tools were designed for use so far as the same are accepted, specifying the quantity, number and amount by items, of all maierials and tools for each and every of said sections for repairs, and which said report shall be made under the oath or affirmation, before some proper officer authorized to administer oaths, of the person or persons making the same. [Same ch. § 10.]


in contracts.

Money when and

paid for

$69. All contracts made in pursuance of this act shall contain a provision for the speedy and equitable adjustment of all questions that may arise relative to the performance or otherwise of any of said contracts. [Same ch, § 11.]

*S70. The commissioners of the canal fund are hereby authohow to be rized and required to pay from the moneys in their hands which repairs, &c. may at the time be appropriated for the reparis of the canals of the state, all such sums of money as shall from time to time become due to contractors by reason of the performance of any contract entered into in pursuance of this act, but no such payment shall be made for any materials or tools except such as shall have been accepted as being in conformity with the contract under which they were delivered, and of which acceptance the report required

by the tenth section of this act shall have been duly filed with the __ART. 2. canal board or in the office of the clerk of the canal department, and when such report shall have been made by a superintendent of repairs and not by the commissioner having charge of that portion of the canals where such materials or tools were delivered and accepted, it shall be the duty of the commissioner so in charge, and he is hereby required to state that such materials and tools were in his judgment necessary for use upon the section where delivered, or would become necessary within a period in such statement to be specified, that the purchase thereof is in his belief in pursuance of some contract, specifying with whom and the reasons why such examination was not made by himself in person; which statement shall be verified by the oath or affirmation of the commissioner making the same, annexed to such report and filed therewith. [1847, ch. 278, § 12.]

and tools,


Locks on

when to be

on the Erie

*$71. The canal commissioners are hereby authorized to direct Materials the superintendents of canal repairs to purchase materials and tools how purfor the ordinary repairs of the canals, without advertising for the same, whenever in their opinion the interests of the state will be promoted thereby; and shall not be bound to accept proposals unless they deem it for the interests of the state. [1849, ch. 363.] $ 72. Whenever, in the opinion of the canal commissioners, it the enlarg becomes necessary to substitute new locks for the old locks on the ed plan, Erie canal, the commissioners shall cause minute estimates to be constructed made of the cost of rebuilding the lock or locks on the old plan, canal. and also the cost of constructing the same on the enlarged plan, and adapting the work to the enlarged Erie canal; which estimate shall be submitted to the canal board, and when approved by that board, the canal commissioners shall proceed to construct the lock or locks on the enlarged plan; and all sums expended by them on such work over and above the cost of reconstructing the lock or locks on the old plan, shall be paid out of moneys appropriated by this act for the enlargement of the Erie canal; and the balance of the cost thereof shall be charged to ordinary repairs. [1847, ch. 259, § 1.]

rule to

other struc

S73. The rule established in the preceding section, in relation The same to locks, may be applied to all structures on the Erie canal; when- apply to ever, in the opinion of the canal board, the interest of the state, tures. in reference to the enlargement and improvement of the Erie canal, renders such works necessary; Provided the commissioners of the canal fund have in their hands moneys appropriated by the legislature sufficient to pay the additional expense beyond the sum which would be required for the ordinary repairs, in building the structures on the original plan. [Same ch., § 2.]

*74. All work connected with the enlargement and improvement of the Erie canal done under contracts made by the canal commissioners shall be kept distinct as far as practicable from the ordinary repairs of the canal by superintendents. The regulations of the canal board made in compliance with the provisions of the preceding sections of this act shall apply to all proceedings of the canal commissioners and engineers in giving notice and receiving

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