People ex rel. Desiderio v. Conolly

• Decision Date: 03 June 1924
• Citation: 238 N.Y. 326,144 N.E. 629
• Parties: PEOPLE ex rel. DESIDERIO et al. v. CONOLLY et al.
• Court: New York Court of Appeals Court of Appeals

238 N.Y. 326

144 N.E. 629

PEOPLE ex rel. DESIDERIO et al.

v.CONOLLY et al.

Court of Appeals of New York.

June 3, 1924.

Action by the People of the State of New York, on the relation of Nicola Desiderio and another, against Henry Conolly and others, constituting the Board of Sewer Commissioners of Sewer District No. 1, in the Town of Brighton, and others. From an order of the Appellate Division of the Supreme Court (207 App. Div. 886,201 N. Y. Supp. 934), which affirmed an order of Special Term granting a peremptory order of mandamus to compel audit of claims of relators against their objection that they were entitled to trial of issues under an alternative mandamus order and thereby to additional relief, plaintiffs appeal by permission.

Orders reversed.

Hiscock, C. J., and McLaughlin, J., dissenting.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Clarence W. McKay, of Rochester, for appellants.

Percival D. Oviatt, Walter A. Swan, and Edwin C. Smith, all of Rochester, for respondents.

CARDOZO, J.

The town board of the town of Brighton established a district for the construction of a sewer system (Town Law [Cons. Laws, c. 62], § 230), and appointed sewer commissioners (Town Law, § 231) to build the system and maintain it. The commissioners employed as their contractor (Town Law, § 234) Nicola Desiderio, one of the relators in this proceeding, but later, while he was in the course of performance took the work out of his hands, and still later abandoned it altogether. He claims that there remains due to him a balance of $23,638.29, partly for work done under the contract, partly for extra work, partly for damages. The commissioners, after due demand, have refused to pay this balance or any part of it. They have refused to file with the town board the notices or other documents necessary to enable payment to be made out of the proceeds of bonds issued to defray the cost of the improvement. They have taken the position that the contractor is in default, and that for this reason and for others there is nothing to be paid.

[1] In this situation the contractor applied for a mandamus directed to the board and the commissioners. He joined with him as relator the Traders' National Bank of Rochester, which held an assignment of his claim as collateral security. The prayer of the petition is that the claim be paid forthwith out of moneys, the proceeds of bonds, alleged to be on hand and available therefor; and, if the money be not on hand, that the commissioners audit the demand and serve upon the town board the notice requisite under the statute to cause the money to be raised. There is a final prayer that both commissioners and board be required to do such other acts and things as may be essential to secure to the relators the payment of the claim in full. On this petition there was issued an alternative mandamus order to which the respondents made return contesting the relators' claim and disowning liability. On the eve of trial they procured against the protest of their adversaries an order which turned the alternative mandamus into a peremptory one, but with a scope and operation narrower by far than the relief prayed for in the petition. The commissioners were directed to audit the claim upon the merits, but they were left free upon such audit to approve or to reject. Neither against them nor against the board does the order embody the declaration of a duty to pay. Whether such a duty may be declared in this proceeding is the question to be answered. If sewer commissioners, in acting upon a demand for payment, are invested by statute with quasi judicial functions, mandamus, though competent to compel them to act, is not competent to prescribe the manner of their acting. People ex rel. McCabe v. Matthies, 179 N. Y. 242, 72 N. E. 103. Relief must then be sought by certiorari when their ruling is announced. On the other hand, if the functions of the commissioners in this regard are ministerial or administrative, then, since an action will not lie (People ex rel. Farley v. Winkler, 203 N. Y. 445, 96 N. E. 928), they may be constrained by mandamus, peremptory where the facts are undisputed, but otherwise alternative, to cause payment to be made.

The courts below classified the functions as judicial. They did so believing that two opinions of this court dictated that conclusion. Holroyd v. Town of Indian Lake, 180 N. Y. 318, 73 N. E. 36;People ex rel. Farley v. Winkler, 203 N. Y. 445, 96 N. E. 928. No doubt there was much said in each of these opinions to give support to this belief. If we separate, however, things said from those decided, the question, supposed to be foreclosed, is seen to be open. In the first of the two cases (Holroyd v. Town of Indian Lake, supra) the plaintiff had built waterworks under a contract with water commissioners. Town Law, §§ 270-280. Upon their refusal to make payment he sued the town for their default. We held that an action would not lie against the town, and sustained a demurrer interposed to the complaint. The one defendant before us being absolved, there was no occasion to consider the precise limitations to be imposed upon the liability of others. At the same time we said that the remedy was by writ of mandamus against the * * * commissioners, to be followed by proceedings in certiorari if a review was necessary. What was said as to certiorari was unnecessary to the decision, and foreign to any question considered in the briefs. In the second case (People ex rel. Farley v. Winkler, supra) the relators prayed for a mandamus. The commissioners opposed the writ, and contended that there was a remedy by action. In overruling this contention we said again, as we had said in the Holroyd Case, that, if the claim was rejected, there might be review by certiorari. Once more, however, the remark was foreign to the controversy. Since the relator in that case did not ask for a mandamus that the commissioners be directed to pay, but was content with one directing them either to accept or to reject, there was no occasion to go farther. ‘The opinion must be read in the light of the facts before us.’ People ex rel. City of New York v. Nixon, 229 N. Y. 356, 361, 128 N. E. 245, 247;Colonial City Traction Co. v. Kingston City R. Co., 154 N. Y. 493, 48 N. E. 900.

[2][3] We think the functions of these commissioners are administrative, not judicial. People ex rel. Corwin v. Walter, 68 N. Y. 403;People ex rel. Second Ave. R. Co. v. Board of Com'rs of Department of Public Parks of City of New York, 97 N. Y. 37;People ex rel. Schau v. McWilliams, 185 N. Y. 92, 77 N. E. 785;People ex rel. Finnegan v. McBride, 226 N. Y. 252, 123 N. E. 374. They represent, not the town, but a special administrative area, the sewer district. Holroyd v. Town of Indian Lake, supra, at p. 322 (73 N. E. 37). Their contracts duly made will charge the town board with a duty to issue the necessary bonds and raise the necessary moneys. The proceeds, however, when gathered in, are to be turned over to the commissioners, and are by them to be expended. 180 N. Y. at page 323 (73 N. E. 38). They are not auditors or assessors, passing judgment as judges do upon the acts or liabilities of others. The...