People ex rel. Vill. of Brockport v. Sutphin

• Decision Date: 08 March 1901
• Citation: 166 N.Y. 163,59 N.E. 770
• Parties: PEOPLE ex rel. VILLAGE OF BROCKPORT v. SUTPHIN et al.
• Court: New York Court of Appeals Court of Appeals

166 N.Y. 163

59 N.E. 770

PEOPLE ex rel. VILLAGE OF BROCKPORT

v.SUTPHIN et al.

Court of Appeals of New York.

March 8, 1901.

Appeal from supreme Court, appellate division, Fourth department.

Certiorari by the people of the state of New York, on relation of the village of Brockport, against John Sutphin and others, constituting the town board of the town of Sweden, county of Monroe. From an order of the appellate division (66 N. Y. Supp. 49) reversing in part the determination of the town board, and dismissing the writ as to the remainder of the relator's claim, both parties appeal. Reversed in part, and in part modified and affirmed.

Cross appeals from an order of the appellate division of the supreme court in the Fourth judicial department reversing in part the determination of the town board of the town of Sweden, and dismissing the writ of certiorari, as to the remainder of the relator's claim, upon the merits. The village of Brockport is in the town of Sweden, county of Monroe. Originally incorporated in 1829, an attempt was made to reincorporate it in 1872 pursuant to chapter 291 of the Laws of 1870, and, as it is claimed, certain alleged defects in the proceedings to reincorporate were cured by an act passed in 1873. Laws 1873, c. 84, § 5. According to the general village law, villages incorporated or reincorporated under the act of 1870 are subject to the provisions of the former as if incorporated thereunder. Laws 1897, c. 414, § 341. It is provided, in substance, by sections 185 and 190 of the general village law, that ‘claims for fees in criminal actions and proceedings which would be payable to a police justice or policeman if he were not paid a salary, and which are a town or county charge, are required to be presented to the town or county to which they are chargeable for audit, and all orders or warrants therefor are to be made payable to the treasurer of the village, who is authorized to collect the amount thereof.’ Pursuant to this statute, separate claims were presented by the village for services performed by its police justice, acting police justice, and policemen in criminal actions and proceedings during the years 1898 and 1899 to the town board of the town of Sweden, which rejected them in bulk, without specifying any reason therefor. The claim for the year 1898 was rejected at the annual meeting held on the 10th of November of that year, but no certificate of the audit and rejection was then filed with the town clerk as required by law. Laws 1897, c. 481, § 19. The claim for 1899 was rejected on the 13th of November, 1899, and the proper certificate was filed one week later. On the 20th of November, 1899, the claim for the year 1898 was reconsidered and disallowed, and a certificate to that effect, signed by a majority of the members of the board, was duly filed. On the 30th of December, 1899, the village procured a writ of certiorari to review these determinations of the board, and the appellate division unanimously reversed as to the claim of 1898, and readjusted and allowed the same, but as to the claim of 1899 the writ was dismissed on the merits by a divided vote. Each party appealed from that portion of the order which sustained the contention of the other.

John D. Burns, for plaintiff, village of Brockport.

Delbert A. Adams, for defendant, board of town of Sweden.

VANN, J. (after stating the facts).

It is claimed by the counsel for the village that the appeal brought by the town board should be dismissed, because the decision of the appellate division, so far as it reversed the proceedings sought to be reviewed, was unanimous, and, according to the presumption required by section 1338 of the Code, this was, in effect, a determination that there was evidence supporting, or tending to sustain, a finding of fact. It is insisted that we are thus deprived of jurisdiction to review that part of the order appealed from. Const. art. 6, § 9; Code Civ. Proc. § 191. We think this section simply requires us to assume, when the record is silent upon the subject, that the reversal was not founded upon a question of fact, so as to enable us to review the questions of law, and that the presumption was not intended to deprive this court of jurisdiction by requiring us to assume that the appellate division actually decided that there was evidence to support the facts found. The section was enacted, substantially in its present form, before the constitution was so amended as to prohibit the review of a unanimous decision as to the sufficiency of the evidence. It was not intended to limit, but to extend, our jurisdiction. The presumption is artifical, and should not be pushed beyond the single purpose for which it was prescribed. A unanimous reversal differs from a unanimous affirmance, in that the latter necessarily involves the conclusion that there was sufficient evidence to sustain the facts, whereas the former may be based upon the facts as well as the law, although, if the decision does not so state in express terms, we are obliged to presume, for the sole purpose of reviewing the questions of law, that it was on the law only.

Moreover, section 1338 applies only to an appeal from ‘a judgment entered upon the report of a referee, or a determination in a trial court, or from an order granting a new trial.’ A town board is not a court. Its members are not referees, and they did not attempt to grant a new trial. The appeal, therefore, of the town of Sweden should not be dismissed.

The point is made by the counsel for the town that it does not appear by the return that the village officials, for whose services the claims in question were presented, were each paid a salary, and that hence there was no foundation for the claims under the statute. It is distinctly alleged in the petition that these officers received a salary for their services, which was paid by the village. The writ recites the same allegation, and the return does not deny it, although it denies certain other allegations of the petition and writ. Thus the question is presented whether the material allegations of fact contained in a petition for a writ of certiorari, which are not denied directly or indirectly by the return, are to be taken as true. Section 2138 of the Code provides that a certiorari to review must, except in one instance not now important, be heard ‘upon the writ and return and the papers upon which the writ was granted.’ This provision is new, and indicates that the petition has a function to perform aside from merely authorizing the issuance of the writ. The section was construed by Judge Earl, speaking for all the judges, in People v. Commissioners Dept. Fire & Buildings, 106 N. Y. 64, 67,12 N. E. 641. After recognizing the former practice as limiting the hearing to the return, and quoting the material part of the section, he said: ‘Under this section, where the return meets all the allegations of fact contained in the writ and the papers upon which it was granted, and traverses them, then the hearing must be confined to the facts stated in the return. But where the return admits the facts stated in the writ, or the papers upon which it was granted, or is silent as to them, then such facts become important, and must be considered and have effect upon the hearing. People v. French, 25 Hun, 111.’

This section was further considered in People v. Wurster, 149 N. Y. 549, 554,44 N. E. 298, where we said: ‘It does not mean that the court is at liberty to look beyond the return, and to consider the facts stated in the petition and accompanying papers, unless the return made by the respondent should be an admission of those facts or the equivalent...