Meyers v. Barnes

• Decision Date: 04 June 1889
• Citation: 21 N.E. 739
• Parties: PEOPLE ex rel. MEYERS v. BARNES et al., Board of Town Auditors.
• Court: New York Court of Appeals Court of Appeals

21 N.E. 739

PEOPLE ex rel. MEYERS

v.BARNES et al., Board of Town Auditors.¹

Court of Appeals of New York, Second Division.

June 4, 1889.

Appeal from supreme court, general term, Third department.

T. B. Bush, for appellant.

Lewis E. Carr, for respondents.

PER CURIAM.

The relator was the sole commissioner of highways of the town of Highland from the annual town meeting in March, 1881, to the annual town meeting in March, 1883. On the Tuesday preceding the annual town meeting boards of town auditors are required to audit the accounts of ‘all town officers who receive or disburse any moneys belonging to their respective towns.’ 2 Rev. St. (8th Ed.) 908. On the last Thursday preceding the annual meeting of the board of supervisors boards of town auditors are required to meet and audit ‘the accounts of all charges and claims payable by their respective towns,’ and certify all claims allowed to the board of supervisors, which body is required to levy the sums certified upon the taxable property of the town. Chapter 305, Laws 1840; 2 Rev. St. (8th Ed.) 907. On the last Tuesday preceding the town meeting of 1882 the board of auditors met, examined the accounts of the relator as commissioner, and certified in due form that $128.17 was due him from the town. Why this claim was not certified to the board of supervisors by the board of town auditors when they met on the last Thursday preceding the annual meeting of the board of supervisors in 1882 does not appear. When the annual town meeting for 1882 was held there were 33 road-districts in the town. A commissioner of highways is required, (chapter 503, Laws 1880; 2 Rev. St. 8th Ed. 1354,) within one week after the annual town meeting, to appoint as many overseers of highways as there are road-districts in the town, which duty the relator duly performed March 24, 1882. Charles Hickok was appointed overseer of district No. 3. On the same day the relator duly assessed the highway labor, made out and certified the lists or warrants for the several road-districts, which were delivered to the several overseers, as prescribed by the statute. 2 Rev. St. (8th Ed.) 1358, §§ 24, 25. May 1, 1882, the overseers of districts Nos. 12, 18, and 27 resigned, and their resignations were accepted by the relator. May 3, 1882, he made an order by which he assumed to abolish districts Nos. 12, 18, and 27, and added the territory embraced within them to district No. 3. The assessment lists or road-warrants which had been issued to the overseers of districts Nos. 12, 18, and 27 were returned to the relator, who delivered them to Hickok, the overseer of No. 3, and directed him to execute them. Subsequently Hickok refused to obey the commands of the relator, and enforce the assessments against persons and property in districts Nos. 12, 18, and 27, alleging as his justification that the attempted abolition of those districts, and the addition of the territory within them to his district, was in violation of the statute authorizing a sole commissioner of highways to divide his town into as many road-districts as he shall think convenient, by a written order made at least 10 days before the annual town meeting. Subd. 5, § 1, 1 Rev. St. 501; 2 Rev. St. (8th Ed.) 1347. June 28, 1882, the relator began an action against Hickok in a justice's court in the town of Highland, alleging as a cause of action that Hickok, by refusing to obey the commands of the relator, and enforce the assessments, had incurred the penalties imposed by statute upon overseers who unlawfully refuse to perform their duties. 1 Rev. St. 504, § 16; 2 Rev. St. (8th Ed.) 1350. The action was twice tried, resulting in disagreements of the juries, and was discontinued. A second action was begun in a justice's court of the town of Bethel, which was tried and resulted, in August, 1882, in a judgment for the defendant of no cause of action, with costs. The relator appealed to the county court, demanding a retrial, which was had, resulting, April 28, 1883, in a judgment of no cause of action, with $76.10 costs, which the relator paid November 3, 1883. Assuming that the litigation was proper, the relator necessarily expended $80.15 in conducting it. On the last Tuesday (February 27) preceding the annual town meeting of 1883, the relator presented his accounts for moneys received and disbursed as commissioner for the preceding year to the board of town auditors, but the claims now sought to be recovered were not included therein, and thereupon his account was audited, and it was found that he had received $134.37 more than he had paid out, which sum was adjudged to be due from him to the town. In July, 1883, the supervisor of the town brought an action in a justice's court against the relator and his sureties upon his official bond, for the recovery of this sum, which action the relator settled July 30, 1883, by paying the amount claimed. On the last Thursday (November 8, 1883) preceding the annual meeting of the board of supervisors in 1883 the relator presented to the board of town auditors his claim, audited in 1882, for $128.17;...