Equitable Trust Co. of New York v. Hamilton

• Decision Date: 22 April 1919
• Citation: 226 N.Y. 241,123 N.E. 380
• Parties: EQUITABLE TRUST CO. OF NEW YORK v. HAMILTON, County Treasurer.
• Court: New York Court of Appeals Court of Appeals

226 N.Y. 241

123 N.E. 380

EQUITABLE TRUST CO. OF NEW YORK

v.HAMILTON, County Treasurer.

Court of Appeals of New York.

April 22, 1919.

Appeal from Supreme Court, Appellate Division, Second Department.

Mandamus on the relation of the Equitable Trust Company of New York against Walter G. Hamilton, as County Treasurer of the County of Rockland. From an order of the Appellate Division (177 App. Div. 390,164 N. Y. Supp. 58), affirming an order of the Special Term denying, as a matter of law, and not in the exercise of discretion, the application, relator appeals. Affirmed.

Lloyd P. Stryker, of New York City, for appellant.

E. W. Hofstatter, of Nyack, for respondent.

CARDOZO, J.

Charges preferred against the district attorney of Rockland county were followed by the appointment of a commissioner (Public Officers Law, § 34, Laws 1909, c. 51 [Consol. Laws, c. 47]), and a hearing on the merits. The complainant had an attorney, who prosecuted the proceeding. At its close, a claim for services and expenses was submitted to the board of supervisors. The attorney gave credit for $3,300 received from private subscriptions. He asked the allowance of the unpaid balance. On May 1, 1916, the board of supervisors adopted a resolution that the ‘unpaid balance of service item be audited and allowed at $3,000, and that the same be paid from the 1916 county audit appropriation.’ The clerk of the board delivered to the attorney a certified copy of the bill as audited. County Law, § 50, subd. 5 (Laws 1909, c. 16 [Consol. Laws, c. 11]). At the end of the same month, on May 31, 1916, the board revoked its action. No appropriation had yet been made. The resolution recites that the bill ‘as audited for future payment’ was ‘apparently in excess of a reasonable charge,’ and was audited ‘without full consideration of the facts.’ The audit and allowance were therefore rescinded, and the matter left open for future consideration. Two days before this resolution, the attorney made an assignment of his claim to the Equitable Trust Company. The assignee has petitioned for a mandamus directing that the claim as audited be paid. The Special Term refused the writ, and at the Appellate Division the refusal was unanimously affirmed.

We think that the audit and allowance were lawfully rescinded. The appellant concedes that this would be so if the claim were fraudulent or illegal. Smith v. Hedges, 223 N. Y. 176, 119 N. E. 396. The argument is, however, that there can be no rescission for mere error. In such circumstances, action once taken it is said, is final, no matter how inconsiderate or hasty. We think that precedent and policy demand another ruling. Undoubtedly the audit, unless fraudulent or illegal, is not subject to revision by some other board of supervisors. Osterhoudt v. Rigney, 98 N. Y. 222, 234;People ex rel. Smith v. Clarke, 174 N. Y. 259, 66 N. E. 819. Action ceases to be tentative or provisional when there is an end to the official life of those who are authorized to act. Gulnac v. Board of Freeholders, 74 N. J. Law, 543, 64 Atl. 998,122 Am. St. Rep. 405. ‘Subsequent adverse action by a different body is repeal rather than reconsideration.’ Swayze, J., in Gulnac v. Board of Supervisors, supra. But a different situation is presented when the same board which has considered once elects to consider again. The rule then is that until audit has been followed by payment or appropriation, the whole transaction is in fieri. The board may disallow to-day, and on further consideration allow to-morrow. It may allow to-day, and to-morrow disallow or reduce. That has been the rule since the decision in People ex rel. Hotchkiss v. Supervisors of Broome County, 65 N. Y. 222. The appellant argues that the decision in that case might have been put upon the ground that the audit was voidable for fraud. But that is not the ground on which the court did put it. The rule was broadly announced that an audit by a board of supervisors is quasi judicial only ‘in a very largely qualified sense,’ and ‘not in any such sense as render an erroneous or improper audit or allowance incapable of correction by the body committing the error.’ Even later boards may rescind for illegality or fraud. Osterhoudt v. Rigney, supra. Only the same board may rescind for misconception of the merits. People v. Stocking, 50 Barb. 573, 583; People ex rel. Smith v. Board of Town Auditors, 5 Hun, 647; Matter of Bell v. Webb, 4 App. Div. 614,36 N. Y. Supp. 1132;People ex rel. Francis v. Cahill, 5 App. Div. 570, 574,39 N. Y. Supp. 372, affirmed, on opinion below, 158 N. Y. 708, 53 N. E. 1130;People ex rel. Caldwell v. Bd. Supervisors, Saratoga County, 45 App. Div. 42, 48,60 N. Y. Supp. 1122;Adams v. Town of Wheatfield, 46 App. Div. 466, 469,61 N. Y. Supp. 738;People ex rel. Laurence v. Bd. Supervisors, Delaware County, 48 App. Div. 428,63 N. Y. Supp. 317;Matter of Weeks, 97 App. Div. 131,89 N. Y. Supp. 826;Id., 106 App. Div. 45,94 N. Y. Supp. 468;People ex rel. Chase v. Wemple, 144 N. Y. 478, 482,39 N. E. 397;State ex rel. Minden E. L. & P. Co. v. City of Minden, 84 Neb. 193, 120 N. W. 913,21 L. R. A. (N. S.) 289. Nothing to the contrary was held in People ex rel. Myers v. Barnes, 114 N. Y. 317, 20 N. E. 609,21 N. E. 739, and People ex rel. McCabe v. Matthies, 179 N. Y. 242, 72 N. E. 103. In the one case, the board that made the audit had ceased to exist; in the other, it was content with its ruling, and the attempt was made to procure revision by mandamus. The appellant would have us obliterate the distinction between the powers of the same board and the powers of another. If the rule...