People ex rel. Smith v. Clarke
| Decision Date | 31 March 1903 |
| Citation | 66 N.E. 819,174 N.Y. 259 |
| Parties | PEOPLE ex rel. SMITH v. CLARKE, Mayor, et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Application by the people, on the relation of James H. Smith, for writ of mandamus to Henry S. Clarke, mayor of the city of New Rochelle, and others. From an order of the Appellate Division (79 N. Y. Supp. 1111) reversing an order of the Special Term granting the writ, relator appeals. Reversed.
Michael J. Tierney, for appellant.
Hugh M. Marmer and Thomas Sproull, for respondents.
The relator instituted this proceeding to compel the payment to him, by the city of New Rochelle, of the sum of $654.15, upon a claim for the printing and publication of notices of tax sales and other municipal printing. The respondent Chamberlain, as comptroller of the city of New Rochelle, disputed the relator's claim upon the ground that it was illegal, in that he had charged more than the amount fixed and allowed for such printing by the ordinances and charter of the city.
By section 62 of the charter of New Rochelle (chapter 128, L. 1899) it is made the duty of the common council, at its first meeting in each official year, to fix the legal fee per folio of all notices which it shall direct to be published in the official newspapers of the city, and to designate the newspapers in which such notices shall be published. In pursuance of this provision of the charter the common council, on February 19, 1901, passed a resolution fixing the legal fee for publishing notices and other matter required to be published at 50 cents per folio, and duly designated two newspapers, one of which was the New Rochelle Press, a newspaper owned by the relator. Pursuant to this designation the relator, between the 19th of November and the 17th of December, 1901, published in his paper notices of tax sales and other matter, for which he presented a bill to the common council for the sum of $654.15. The bill was referred by the council to its auditing committee, which found the same to be correct, and so reported to the council. There were then no funds in the city treasury applicable to the payment of this bill, and it was not paid.
On January 1, 1902, the city administration changed hands, and on February 4, 1902, the relator's claim was again presented to the auditing committee of the common council, and was again audited for the full amount, but, for reasons which are not material here, payment was again deferred.
This was the situation on April 2, 1902, when chapter 288 of the Laws of 1902 went by providing for the appointment of a by providing for the appointment of city comptroller; directed that all claims presented against the city should be referred to that officer for examination and report; abolished the auditing committee of the common council, and vested its powers in the comptroller. This new officer refused to audit the relator's claim at the amount for which it had twice been presented and audited, but offered to audit the same at $427, which he claimed was all that the relator was entitled to receive. Thereupon the relator instituted this proceeding.
At Special Term the Supreme Court granted a peremptory writ of mandamus directing the defendants, as the designated officers of the city, to forthwith draw, sign, countersign, and deliver to the relator a warrant or draft on the city treasurer in favor of the relator for the amount of his claim and directing payment to him. At the Appellate Division the order of the Special Term was reversed, and the writ denied upon the ground that relator's claim was illegal because he had charged more than 50 cents a folio for the publication of the notices in question, and therefore the common council had no legal right to audit the same.
It is too obvious for discussion that, if there is evidence in the record from which it can be fairly said that the auditing committee, in passing upon the relator's claim, allowed more than the legal rate of 50 cents a...
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... ... Osterhoudt ... v. Rigney, 98 N.Y. 222; People ex rel. Myers v ... Barnes, 114 N.Y. 317, 20 N.E. 609, 21 N.E. 739; ... People ex rel. Smith v. Clarke, 174 N.Y. 259, 66 ... N.E. 819. But, where the auditing body ... ...
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...enable the audit to be attacked and the good separated from the bad. People v. Sutherland, supra. See, also, People ex rel. Smith v. Clarke, 174 N. Y. 259, 263,66 N. E. 819. Mr. Hofstatter, we are confident, believed his actions to be legal, especially as he was told to make the charges and......
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