Myers v. Barnes

• Decision Date: 19 March 1889
• Citation: 114 N.Y. 317,20 N.E. 609
• Parties: PEOPLE ex rel. MYERS v. BARNES et al., Board of Auditors.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 317

20 N.E. 609

PEOPLE ex rel. MYERS

v.BARNES et al., Board of Auditors.¹

Court of Appeals of New York,

Second Division.

March 19, 1889.

Appeal from supreme court, general term, Third department.

Application of Abel S. Myers for a writ of mandamus to John Barnes and others, as the board of town auditors of the town of Highland. Writ refused. Relator appeals.

BROWN, J., dissenting.

T. F. Bush, for appellant.

John F. Anderson, for respondents.

POTTER, J.

This is an appeal from a judgment rendered at general term of the Third department. The issue arose upon the answer to an alternative writ of mandamus, requiring the respondents, as the board of town auditors, to audit three claims in favor of the relator against said town, and to certify the same to the board of supervisors of the county. These claims are for the costs awarded in a judgment against the relator in an action commenced by the relator, as commissioner of highways in said town, against one Charles Hickok, to recover penalties incurred by him, as one of the overseers of highways, in said town, amounting to $76.10, which the relator paid, with interest, on the 3d day of November, 1883; for the necessary costs and disbursements incurred and paid by said relator in the conduct of said action, and in two other actions against the said Hickok for the same or a similar purpose, but withdrawn before judgment therein, and amounting to the sum of $80.15; and for moneys expended in the year 1881, after the annual town meeting in said town, and in excess of the moneys which came into the relator's hands for the repairing of bridges in said town, with the alleged consent and approval of the board of town auditors, and amounting to $128.17. The return to the writ contained allegations that these claims were unlawful, and the town was not legally liable therefor, and that these identical claims had been presented by the relator in the year 1883, and again on the 5th day of November, 1883, and upon both occasions the same had been audited and rejected by the respondents as the board of town auditors.

Upon the trial, after the introduction of evidence of the judgment awarding costs against the relator, and of the character and consideration of the other two bills, the admissions hereinafter referred to were made, and the evidence was closed; the respondents made a motion for the dismissal of the complaint and writ of mandamus, and the same was granted over relator's exception, and the exceptions were ordered to be heard in the first instance at the general term. The exceptions were heard and overruled, and the order of dismissal affirmed.

I propose to consider, first, these admissions, and their effect upon this proceeding. The admissions were as follows: ‘It is admitted that the bills were presented to the board of town auditors of 1885; that they examined them, and decided that the town was not legally liable to pay for the whole or any part of them, and rejected them. The same admission was made as to the action of the board in the year 1883.’ ‘And it is further admitted that the bills presented to said board of town auditors in November, 1883, were for the same claims as those presented in November 1885.’ Does not this admission constitute and auditing and a rejection of the claims? To ‘audit’ is to hear, to examine an account, and, in its broader sense, it includes its adjustment or allowance, disallowance, or rejection. People v. Board, 52 N. Y. 227. The statute has created a board of town auditors to examine and decide upon claims made and presented against a town. 1 Rev. St. 358, 359; or 1 Rev. St. 330, 331; also, 328, 461, 479; Laws 1881, c. 701, in relation to judgments against towns or highway commissioners. Such board is a statutory tribunal or court to hear and to allow or reject any claims presented against the town. The examination of the account is the trial, and its allowance or disallowance is the judgment of this tribunal.

No claim against a town is obligatory upon or is enforceable against a town until it has been audited or examined and allowed. Its jurisdiction over claims against the town is not only original, but it is conclusive until brought under review in another court in the manner prescribed by law. Osterhoudt v. Rigney, 97 N. Y. 234. The board of town auditors is to determine whether a claim presented is a town charge, and the amount of it or the protion of it which is a town charge. The claims presented generally involve questions of mixed law and fact. In some instances the board will have nothing to examine as to the amount of the charge, but simply whether the prosecution or defense was conducted upon reasonable grounds and in good faith. In certain classes of town charges, the amount is fixed by statute, by agreement, or by the judgment of a court. Such are claims for salaries fixed by law, or the amount of damages or costs awarded by the judgment of a court. In some cases, where the rate of compensation by the day is fixed by the law, the board determine the amount by ascertaining the number of days of service; for instance, a claim presented by highway commissioners that a judgment recovered against them for injuries arising from a defective bridge or highway. In such a case, a board of town officers shall have power to audit and pay, if they shall deem it just so to do. Laws 1881, cc. 700-704.

This board must determine the legality of the claim, and whether it is a town charge. Oftentimes the legality, and not the amount, of the claim, is the main, if not the only, question for examination. Tenney v. Mautner, 24 Hun, 340; People v. Board, 90 N. Y. 403. I think that it may be stated as a general, if not universal, proposition, that no claim can be collected of or enforced against a town until it has...