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In re Mefford

113 A.D. 529 Court Fourth Department, Decision date 1906-05-16 English

Delivered by Spring, J.:

Contents

Majority

p. 529
In the Matter of the Application of Charles Mefford, Appellant, for a Writ of Peremptory Mandamus Commanding Charles H. Swarts, Respondent, to Pay to the Said Charles Mefford Certain Moneys.
Fourth Department,
May 16, 1906.

Headnote

Town — audit of town board conclusive unless reversed by competent tribunal— when supervisor cannot refuse payment of audited claim — not reviewable by mandamus when board is not made party—when peremptory writ of mandamus will issue.
When a claim against a town for work done upon a highway has been audited by the town hoard which by resolution has directed a levy and assessment to meet the claim, and the entire audit of the town, including the amount allowed to the claimant, has been duly paid to the supervisor of the town by the collector with a direction to pay the claimant, such supervisor cannot refuse payment on the ground that he believes that the audit was too large. The audit of the town board is conclusive and of the nature of a judgment unless reversed by a competent tribunal.
Moreover, when the town board is not made a party to a proceeding of mandamus brought to compel payment of an audited claim, the audit cannot be reviewed in such proceeding.
A peremptory writ of mandamus ordering the payment of an audited claim will issue when neither the jurisdiction of the town board nor the legality of its action upon the relator’s claim is contested.
Appeal by the petitioner, Charles Mefford, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Livingston on the 12th day of April, 1906, denying the relator’s motion for a peremptory writ of mandamus directed to Charles H. Swarts.
Newton B. Gorham, for the appellant.
Robert Pratt, for the respondent.

The relator, pursuant to a contract with the defendant as supervisor of the town of Sparta in the county of Livingston, made in September, 1904, performed services in excavating earth in constructing a subway railroad crossing in one of the highways of said town. The contract price for the excavating was twenty-six cents per cubic

p. 530
yard,, and the relatpr- ceased work in August, 190.5. He; and the defendant, as supervisor,-thereafter agreed'to submit the question of tlie quautity of earth removed to one Morris,.a surveyor. Morris’ computation showed the removal of 2,416 cubic yards of earth, amounting to $628.16. -. The relator thereupon^ in November, 1905, presented to the town board a vérified claim for such stun, which •the board at its annual session that month duly audited and allowed at .the sum of $622.59,.together with another account allowed-at-$13.35, making the full sum allowed to the relator by the board on the two claims $635.94; and a resolution was formally adopted by s'aid town board directing the levy and assessment to meet , said claim “ and that an order be drawn in favor of Charles H.' Swarts, supervisor, for the same.” Said resolution was presented to the board' of supervisors of the county of Livingston by the defendant and a similar resolution Was passed by that body. The entire audit of said town, including the claim -of the relator, Was $3,205.22; and the samé was duly levied and assessed upon the- taxable .property of said town, and a warrant was issued to the collector directing .him to pay to the defendant ont of the moneys collected pursuant to the assessment roll the'said sum of $3,205.22,. which was done before the commencement of this proceeding, The defendant' refused upon •demand to pay over said -sum to the-relator, claiming that a subsequent investigation satisfied him that the amount allowed' the relator by the town, board was in excess of the sum. to which lie was entitled. This proceeding was -thereupon, commenced in Special Term for a writ of peremptory mandamus, requiring the defendant to pay to the relator the sum awarded "to him on the audit, ajnd-the motion was denied.

We think, the claim -of the defendant is no answer to the application for -the writ, and that lie had no right to withhold the payment of the sum- awarded to the relator by the town board and collected by. virtue of the authority and direction of the board of supervisors. The auditing of accounts ágainst a town is committed to its town' board. (Town Law [Laws of 1890, chap. 569], § 162, as amd. by Laws of 1897, chap. 481, and Laws of 1905, chap. 89.)

The town board is a tribunal authorized to investigate, examine and pass upon, according to itá own mode of procedure the.accounts against, the town presented, to it. Its original jurisdiction over the

p. 531
claims presented is plenary and its determination is conclusive until reviewed by another competent tribunal, and even the board of supervisors cannot review or reverse the action of the town board, but must direct the sums specified in the certificate of audit to be levied upon the property in the town. (Osterhoudt v. Rigney, 98 N. Y. 222 , 234 et seq.)

There is no suggestion that the audit was not properly made and the determination of the board certified in proper form to the board of supervisors, and the jurisdiction of the town board to pass upon the claim is unassailéd. It acted upon the claim presented, disallowed it in part, and determined the validity of the balance. This determination has all the verityof a judgment, unless reversed in a proper action or proceeding. (Osterhoudt v. Rigney, supra ; People ex rel. Myers v. Barnes, 114 N. Y. 317 ; People ex rel. McCabe v. Matthies, 179 id. 242 ; People ex rel. Smith v. Clarke, 174 id. 259 ; Bank of Staten Island v. City of New York, 68 App. Div. 231 ; affd., 174 N. Y. 519 ; People ex rel. Hamm v. Town Auditors, 43 App. Div. 25 .)

In People ex rel. Myers v. Barnes (supra) three claims of tlie_ relator as commissioner of highways had been. presented to the town board and rejected by it. The relator obtained an alternative writ of mandamus requiring the respondents, who comprised the town board, to audit and certify said claims. In the return to the writ the respondents alleged the audit and disallowance of the claims, and upon this fact being stipulated the writ was dismissed and the judgment w-as affirmed by the Court of Appeals. The court, after showing the creation of the board, say (at p. 323): “Such board is a statutory tribunal or court to hear*and to allow or reject any claims presented against the town. 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. Its jurisdiction over claims against the town is not only original, • but it is conclusive until brought under review in another court in the manner prescribed by law. * * * The board of town auditors is to determine whether a claim presented -is a town charge, and the amount of- it or the portion of it which is a town charge.”

p. 532
ln People ex rel. McCabe v. Matthies (supra) a similar proceeding was- commenced to require the tovitn board to reconsider the claim of the relators which had been disallowed for the reason, that it was invalid. The court, in.passing upon the extent of the authority of the board and- the effect of its determination, say .(at pi 247-): “ 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 Tear 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, ágainst the town is not only original, but itg determination is conclusive until brought under direct review in another court in .the manner prescribed by law. * * It was the duty of the board to decide as to the legality of' the relators’-claim and whether it was a town charge. * * - * ' The determination of the town auditors by which they decided that the claim presented by the relators was mot a valid claim, against the town and should be rejected, was a judicial -determination and is conclusive until reversed or modified in proceedings by certiorari. * * * Again-, it is well established that where a matter has been submitted' to an authorized judicial tribunal its decision is final between the parties until it has been reversed, set aside or rejected, and the rule of res aeljudicata applies to all judicial determinations, -whether ihade in actions, or in summary 'or special proceedings, ■ or by judicial officers - in matters properly r submitted for their determination.” . '„

. It is to be noted that the relator had a legal claim against the town. Giving full weight to the position; of the defendant, the town board- allowed the claim for a greater, quantity of earth than was actually removed; that is, „they made an- erroneous conclusion of fact. The rate per cubic yard was not disputed.

In People ex rel. Smith v. Clarke (supra), the relator had published certain. notices till -the city of New Rochelle, the legal - rate 'being fifty cents per folio. By the charter of the city claims

p. 533
against it were audited by the auditing eommittee of the common council. In February, 1902, the relator’s claim was audited and allowed at the amount presented. In April, 1902, and before the warrant for the claim had been signed, the.auditing committee was abolished by an act of the Legislature and its powers vested in the comptroller of the city. The latter officer refused to audit the claim of the relator at the amount previously allowed, but offered to audit it at a less sum, claiming that the'allowance was in excess of the legal rate. _ The Special Term granted a peremptory writ requiring the proper officers of the city to “ draw, sign, countersign and deliver ” the warrant or draft for the sum awarded by the committee. The order was reversed by the Appellate Division ( 79 App. Div. 78 ), but the Court of Appeals reversed the order of the-Appellate Division and affirmed that of the Special Term. The court say (at p. 263) : “ An illegal audit can, of course, be attacked either directly or collaterally because it is void, but not so in case of an audit that is based upon a legal power to act, but is erroneous as' to some matter of fact or law. The rule which forbids the reopening of a matter once judicially determined under competent jurisdiction applies as well to decisions of special and subordinate tribunals ás to the decisions of courts exercising general judicial powers; * .* * and decisions of boards of audit have been considered as embraced within the principle.”

It does not rest with the defendant t,o overrule the determination of the town board. The resolution directed the collector to pay the money collected to the defendant for the specific purpose of meeting the charges against the town contained in the audit of the town board, and which had been made the basis of the tax levy and the warrant to the collector by the board of supervisors. The order was delivered to the defendant for convenience in distributing .the money to the several people entitled and named in the certificate of the auditing board. The duty of the defendant was explicit to pay over the money and was ministerial at best. He cannot refuse to apply the money for the purpose for which it was appropriated. He is merely the disbursing officer of this fund. (People ex rel. Sage v. Schuyler, 79 N. Y. 189 , 201.)

We certainly do not decide that the town of Sparta or its 'taxpayers are without remedy if the town board has audited the claim

p. 534
of the relator at an excessive sum. It may be that relief can be afforded in a taxpayer’s action (Code Civ. Proc. § 1925 ; Weston v. City of Syracuse, 158 N. Y. 274 , 287 ; Bank of Staten Island v. City of New York, supra), or that some other remedy may be available. The town board is not a'party to this proceeding, and its decision cannot be impeached indirectly as the defendant is endeavoring to do. If án xalternative, writ should issue, the only questions which could be tried would be the jurisdiction of the town board and whether that body acted upon and determined the relator’s, claim, -and there is no controversy over -these questions.. The merits of the relator’s claim could not be again reviewed Upon a hearing in that proceeding.

. 'The-order should be reversed, with' costs and disbursements of this appeal, and the motion for a peremptory writ granted.

All concurred, except Williams, J, not voting.

Order reversed, with costs, and motion for peremptory writ granted, without costs. ...

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