Fitch v. Hay — 112 A.D. 736

Majority

p. 736

Wilmer H. Fitch, Respondent, v. Wellington Hay and Others, Comprising the Board of Auditors of the Town of Mooers, Appellants, Impleaded with James H. O’Neil and Others, Defendants.

Third Department,

May 2, 1906.

Headnote

Town — when hoard of auditors may appeal from judgment charging them with costs — when costs not allowed tó either party in action to restrain audit of claims.

Although the members' of ,a town board of auditors- enjoined from auditing cer- . tain claims have no interest which allows-them-to appeal upon the merits; yet when they defend a charge that the proposed audit was fraudulent and collusive, and the fraud is disproved, they may appeal from a judgment charging, them with costs. x

When the plaintiff has succeeded in restraining some audits, while other audits have been confirmed, costs should not he awarded to either party.

Appeal by the defendants, Wellington Hay and others, from a judgment of the Supreme Court in favor of the plain tiff,'entered ¡m the office of the clerk of the county of Clinton on the IOth day of July, 1905, upon the report of a referee.- . ■

These defendants, with James H. O’Heil, Owen W. O’Heil, Heb son Duval, Harvey S. Haff, George Gray and the board of supervisors of the county of Clinton were made defendants in an action by the plaintiff.to restrain the payment.of certain claims audited by the- appellants against the town of Mooers, in the said county of Clinton; James H. O’Heil, Owen W. O’Heil, Helson Duval, Han,véy S. Haff and George Gray were the claimants whose bills were audited, the,audit of which is made the basis of this action/ George Gray was overseer of the poor of said town. ' J. H. and Owen W.. O’Heil were physicians, who claimed compensation for services. Helson Duval was the. town clerk. Harvey S. Haff was an .attorney, who claimed- compensation for services. The action was brought under Chapter 301 of' 'the .Laws of 1392 to. enjoin the payv ment of said .claims upon the ground of their illegality. In the complaint it. was charged that the, appellants, the town board, colluded with the several claimants to secure to them payment of their claims ,which were illegal. Issue was joined by the service of answers by the appellants 'as the. town board, by Gray, the overseer of the

p. 737

poor, and by J. H. and Owen W. O’lSTeil. Upon the trial -part of the claims so audited were held to have been lawfully audited and part were held to have been illegally áudited and their payment was enjoined. The defendant appellants and George Gray were charged with costs of'the action, amounting to upwards of $250. From the judgment thus entered the town board alone has appealed.

'D. II. Agnew, for the appellants.

• W. H. Dunn, for the respondent.

In People ex rel. Steward v. Railroad Comrs. ( 160 N. Y. 212 ), Chief Judge Parker, writing for the Court of Appeals, says: “ It is the general rule that a court or board exercising judicial functions by permission of some statute, has no interest in maintaining its determination, and, therefore, can neither appeal from an order of the court reversing the proceedings, nor be heard on the appeal.” Within this rule of practice it is difficult to see what interest these appellants have in reversing this judgment upon the merits. They are not affected whether the judgment stands or falls. The parties aggrieved by the judgment are the claimants' whose bills have been found illegal ]and their payment enjoined.

By the judgment, however, these appellants are charged with upwards of $250 of costs. To review the equity of that charge they have a standing' in cotirt upon this appeal.

If this question could have' been raised by a writ of certiorari, issued at the instance of the plaintiff, under the authority cited these appellants would not be interested in contesting the issues upon that writ. If the charge had been made that the audits were illegal, simply, the appellants could well have been charged with costs for making a contest at the Trial Term. They were charged, however, by plaintiff’s complaint as having acted fraudulently and in collusion with these claimants. After having made this charge in liis complaint it does not lie with the plaintiff to say that the defendants improperly took issue with the charge made. On this issue, the only one in which they were in fact interested in any way in the trial court, these appellants succeeded. The referee -has

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found that their acts were all in good faith and without fraud. Under these circumstances we are of opinion that they should not have been charged with the costs of this action. The judgment should,, therefore, be modified by striking out the provision charging them with the costs of the action, and as so modified affirmed. We are of opinion that, neither party should have costs of this appeal. This plaintiff acted not for himself so much as in behalf of the people whose representative he was. He was the supervisor of the town. He warned the town board of the illegality of some, at least, of these claims, and had substantial ground for his action. The appeal of the town board was from the whole judgment so that upoh this appeal he is required to defend the judgment in each and every particular. The modification of the judgment, therefore, indicates only partial success for the appellants, which, as we have stated, should not in our judgment, carry costs of the appeal. This affirmance of the judgment as modified should be without costs to either party.

All concurred, except Parker, P. J., not voting.

Judgment modified by striking therefrom the provision charging defendants with costs, and as thus modified affirmed, without costs to either party.