59 N.Y. 620, Richmond County Sup'rs v. Ellis

• Citation: 59 N.Y. 620
• Party Name: THE BOARD OF SUPERVISORS OF RICHMOND COUNTY, Respondent, v. GEORGE W. ELLIS, Appellant.
• Case Date: February 02, 1875
• Court: New York Court of Appeals

Page 620

59 N.Y. 620

THE BOARD OF SUPERVISORS OF RICHMOND COUNTY, Respondent,

v.

GEORGE W. ELLIS, Appellant.

New York Court of Appeal

February 2, 1875

Argued Jan. 25, 1875.

Page 621

COUNSEL

Wm. Henry Anthon for the appellant. The bills in question having been audited, allowed and paid by the board of supervisors, their action is final and cannot, in the absence of proof of fraud, be questioned by a subsequent board. (Jackson v. Hartwell, 8 J. R., 422; Suprs. of Chenango v. Birdsall, 4 Wend., 453; People v. Suprs. of Dutchess, 9 Id., 508; Suprs. of Onondaga v. Briggs, 2 Den., 26; Phil. Ev., 118; Clarke v. Dutcher, 9 Cow., 674, 681; Brisbone v. Dakers, 1 Taunt., 144; Monat v. Wright, 1 Wend., 355; Bilbie v. Lumley, 2 East, 469; Gower v. Popkin, 2 Stark., 85; Clinton v. Strong, 9 J. R., 370; Jacob's L. D., Extortion; 2 Burr., 1012; People v. Suprs. of Warren, 1 How. Pr., 116; People v. Suprs. of St. Lawrence, 30 Id., 173; 20 Id., 26; 1 Hill, 279; Union Bk. v. Mayor of N.Y. , 51 Barb., 159; Meyer v. Clark, 2 Daly, 477.) The charges in the bills audited and allowed for committee meetings were proper county charges and were properly audited and allowed. (1 R. S. [ 5th ed.], 853, § 22; Id., 854, § 25; Id., 703; People v. Suprs. of Albany, 12 Wend., 257; Bright v. Suprs. of Courtlandt, 18 J. R., 242; Doubleday v. Suprs. of Broome, 2 Cow., 531, 533; Laws of 1869, chap. 855, § 8; Laws of 1870, chap. 242.)

Tompkins Westervelt for the respondent. The charges audited and allowed were not proper charges against the county. (Laws of 1869, chap. 855, § 8; 7 Edm. Stat. at L., 488; People v. Lawrence, 6 Hill, 244; People v. Harris, 12 Abb. Pr., 192-199; Halstead v. Mayor, etc., 3 Comst., 430; People ex rel. v. Stout, 23 Barb., 349, 353, 354; People v. Stocking, 50 Id., 574, 585; Chemung Co. Bk. v. Suprs. of Chemung, 3 Den., 517, 521.) Defendant cannot derive any

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benefit or protection from the fact that the money in suit has been paid by the board of supervisors. (1 R. S., 364, pt. 1 chap. 12, tit. 1, § 1; Id., 384, pt. 1, chap. 12, tit. 3, § 2; Story on Ag. [ [4th ed.], § 307, a; Roberts v. Ketcham, 11 Barb, 652-655; U.S. v. City Bk., 6 McL., 130; Baltimore v. Eschback, 18 Md., 276; Hall v. Marshall, 12 Iowa, 142; Van Dyke v. State, 24 Ala., 81; People v. Suprs. of Oneida, 19 J. R., 259; 6 Hill, 244.)

FOLGER, J.

The evidence is slight, if any, that there was ever any legal and proper audit and allowance of these bills. But as we do not put our decision upon the lack of a formal audit, it may be assumed that there was one. The inquiry, then, is, whether the charges in them, now objected to, were legal charges against the county and such as it could be compelled or ought to pay.

The charges for per diem and mileage, while serving upon a committee appointed by the board of supervisors, could not be enforced against the county. The law is plain, that a supervisor may not claim from the county, for services other than attendance at the sessions of the board and mileage thereon. (Laws of 1869, chap. 855, p. 2060, § 8.) He is confined in amount to the rate of three dollars per day; and limited...