People ex rel. McCabe v. Matthies

• Decision Date: 18 October 1904
• Citation: 72 N.E. 103,179 N.Y. 242
• Parties: PEOPLE ex rel. McCABE et al. v. MATTHIES et al., Town Auditors.
• Court: New York Court of Appeals Court of Appeals

179 N.Y. 242

72 N.E. 103

PEOPLE ex rel. McCABE et al.

v.MATTHIES et al., Town Auditors.

Court of Appeals of New York.

Oct. 18, 1904.

Appeal from Supreme Court, Appellate Division, Second Department.

Application by the people, on the relation of William F. McCabe and others, for writ of mandamus to Charles A. Matthies and others, as the board of town auditors of the town of White Plains. From an order of the Appellate Division (87 N. Y. Supp. 196) reversing an order of the Special Term granting a peremptory writ, relators appeal. Affirmed.

Bartlett, J ., dissenting.

L. Laflin Kellogg and Alfred C. Petté, for appellants.

Henry T. Dykman and Charles Wesley, for respondents.

MARTIN, J.

Although there were many important and interesting questions presented upon the argument of this appeal which relate to the rights and liabilities of the parties, still, with our view of the case, its present determination rests upon the question of remedies rather than the ultimate rights of the parties. It seems quite plain that the appellants have mistaken their remedy, and that the court below properly so held. ‘The remedy by mandamus is of an exceptional character, and the writ issues only in that class of cases where a clear legal right is made to appear and there is no other adequate and legal means to obtain it.’ People ex rel. McMackin v. Bd. of Police, 107 N. Y. 235, 239,13 N. E. 920. If a relator may obtain relief by appeal, writ of error, or certiorari, he will not be entitled to mandamus. 2 Spelling on Extraordinary Remedies, § 1374.

The town of White Plains entered into a written contract with the relators for the improvement of certain roads in that town outside of the village of White Plains. In doing this work they used several thousand cubic yards of stone more than at the time of the contract they contemplated would be necessary. For the value of such stone they filed a claim with the town board of the town of White Plains, which by statute is the board of town auditors. This body refused to audit the claim, and the relators procured a peremptory writ of mandamusdirecting its examination and audit. Pursuant to the mandate of that writ, the respondents met as the town board of the town of White Plains, the town clerk produced the record touching the matter in controversy, together with the original notice of claim verified by the relators, and the terms of the contract between the relators and the town were then discussed and considered by the board. An examination of the papers presented disclosed that in the contract between the parties it was, among other things, agreed and recited that the quantities of materials stated in the estimate of the engineer were given with as much accuracy as possible; that such quantities were approximate only, and that bidders were required to form their own judgment of the quantities and character of the work by personal examination of the ground and of the specifications and drawings relating to such work; that the price agreed to be paid per lineal foot for the completed road must include the cost of all excavations, of all materials of whatever nature, and the furnishing of whatever labor was necessary for its full completion in the man ner stated therein; that the prices named by the contractors were to cover the cost of furnishing all labor and materials, and performing all the work under the contract in accordance with the plans and specifications, and every expense incidental to the execution of the work; that there should be no allowance for extras in any account, or for any extra work or materials, except where there was a special agreement made before said extra work was done or materials furnished; that the contractors declared in writing over their signatures that the prices named in the contract were intended to cover all labor, materials, and expenses of every kind necessary to the completion of the contract, including all claims that might arise through damage or any other cause whatever, and they also agreed that they would make no claims on account of any variation between the quantities of the approximate estimate and the quantities of the work as done, nor on account of any misconception or misunderstanding of the nature and character of the work to be done or the character or place where it was to be done. At a meetingof the town board the bids of the appellants for such work were opened, their bids or proposals were accepted, and a contract was ordered prepared for the completion of the work in the manner and form set forth in and by the said specifications, and the said contractors signified their willingness to accept such contract, and do and perform every act and thing, and furnish all labor and materials necessary, for the proper completion of the work in accordance with the plans and specifications as prepared by the engineer employed by the town board. The said contract was signed and executed by the said relators on August 8, 1899. The appellants thereby agreed to carry out and perform said agreement as set forth in their bid or proposal to the satisfaction of the engineer in charge of the work, and to the satisfaction of the town board of the town of White Plains, and agreed to furnish all labor and material necessary for the proper and complete performance of said work to the satisfaction of the board. It was likewise further agreed and distinctly understood between the parties that no claim for extra work of any kind should exist in favor of the appellants unless the same had been ordered by the town board at a meeting duly called for the purpose, or a regular meeting of such town board, and that no such claim should then exist until a certified copy of the resolution duly passed authorizing such extra work should have been served upon the appellants. This provision was never complied with as to the extra material claimed to have been furnished, and for which the relators recovered at Trial Term. It was also agreed that the work covered by the specifications and plans, not only during its progress, but on its final completion, must conform truly to the lines and levels as given by the engineer, and must be built according to the plans and specifications furnished.

This brief statement as to some of the material terms, conditions, and agreements which, under the contract, were to be kept and performed by the relators, discloses quite plainly that the question whether, under the contract, they had any legal claim against the town of White Plains for excess of material used by them, if the amount used was in excess of the amount originally contemplated, was presented to the board for its determination. On the presentation of the relators' claim to the board, it became its duty, especially under the mandate of the writ of mandamus first served, to examine that claim under and in view of the terms and provisions of the contract, and to first determine whether such claim was a proper one against the town, and, if so, then to determine the amount to be allowed thereon. So that the first question which the board was called upon to determine related to the propriety or legality of the claim against the town. That question the board of auditors passed upon, and held that under the provisions of the contract the relators had no valid or proper claim against the town, and we are now called upon to determine whether that decision could be properly reviewed and reversed in a proceeding or action instituted by a writ of alternative mandamus.

In compelling the performance of a public duty by an inferior officer or tribunal, the question arises whether the duty is of a judicial or of a merely ministerial character. ‘If the duty be of a judicial character, a mandamus will be granted only where there is a refusal to perform it in any way; not where it is done in one way rether than another, erroneously instead of properly. In other words, the court will only insist that the person who is the judge shall act as such, but it will not dictate in any way what his judgment should be.’ Shortt on Mandamus, 276 (*256). ‘To audit is to hear, to examine an account, and in its broader sense it includes its adjustment or allowance, disallowance or rejection.’ People ex rel. Myers v. Barnes, 114 N. Y. 317, 323,20 N. E. 609, 610;People ex rel. Brown v. Board of Apportionment, 52 N. Y. 224, 227.

The board of town auditors were authorized and required by statute to examine and decide as to the claims made and presented against the town by the relators. It is a statutory tribunal or court to hear and allow or reject any claims presented. ‘The examination of the account is the trial, and its allowance or disallowance is the judgment of this tribunal. As a general rule, no claim against a town is obligatory upon or is enforceable against the town until it has been audited or examined and allowed.’ People ex rel. Van Keuren v. Bd. of Town Auditors, 74 N. Y. 310. Moreover, the jurisdiction of such board over claims against the town is not only original, but its determination is conclusive until brought under direct review in another court in the manner prescribed by law. People ex rel. Myens v. Barnes, supra; Osterhoudt v. Rigney, 98 N. Y. 234. It was the duty of the board to decide as to the legality of the relators' claim, and whether it was a town charge. Tenney v. Mautner, 24 Hun, 340; People ex rel. Everett v. Board of...