In re Comesky — 114 A.D. 834

Majority

p. 834

In the Matter of the Application of Frank Comesky, of the Village of Nyack, Rockland County, New York, Respondent, for a Peremptory Writ of Mandamus against Augustus M. Blackledge, Supervisor of the Town of Orangetown, Rockland County, New York, Appellant.

Second Department,

July 24, 1906.

Headnote

Town — counsel employed by independent town board of auditors—. mandamus to compel payment of sums allowed for services.

A town board of auditors established independent of the regular town board by virtue of section 173 et seq. of the Town Law, has by section 174 of said act the same power to employ counsel to resist claims against the town as that possessed by the regular town board had no independent board of auditors been created.

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Hence when such board of auditors has employed counsel and allowed his claim for services, a supervisor to whom the money has been paid for the settlement of the claim will be ordered by mandamus to pay over the same to the claimant, although his employment was not authorized by the regular town board.

Appeal by the defendant, Augustus M. Blacldedge, as supervisor, etc., from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Bockland on the 19th day of February, 1906.

Abram A. Demarest, for the appellant.

Frank Comesky, respondent, in person.

This is an appeal from an order of the Special Term directing that a peremptory writ of mandamus issue requiring the defendant Blacldedge to pay to the petitioner certain claims, audited and allowed by the board of town auditors of the town of Orangetown, Bockland county, of which town the defendant Blacldedge was the supervisor. The town of Orangetown had, pursuant to section 172 et seq. of the Town Law, established for itself a board of town auditors independent of the town board "of that town. The petitioner, in the year 1904, had been employed by the board of town auditors to act as counsel for the board at an annual town audit. At that meeting several claims against the town, aggregating large sums, were presented. Upon the advice of the relator the board of -town auditors audited the claims and rejected the major part thereof. Thereafter the claimants or their assignees brought writs of certiorari to review the action of the town board in that respect. The relator appeared for the board of town auditors and caused all of those proceedings to be dismissed. For such services as he rendered to the board of town auditors the relator presented claims aggregating $650, which were, at its annual meeting of 1905, audited by the board of town auditors and allowed, and a tax for the payment of this amount was levied by the board of supervisors. The collector collected the tax and turned the same over to the supervisor, the appellant herein, of whom the relator demanded payment of the amount allowed him by the board of town auditors. Blackledge, the supervisor, refused to pay, and this writ was sued out.

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The appellant Blackledge quotes section 180 of the Town Law, and asserts that inasmuch as the relator’s retainer to act for the board of town auditors was not authorized by the town board, the sum he has claimed by way of compensation is not a proper town charge. The section provides: “ The following shall be deemed town charges: * * * 7. The costs and expenses, lawfully incnrrecbby any town officer, in prosecuting or defending any action or proceeding brought by or against the town or such officer for an official act done, shall be a town charge in all cases where the officer is required by law to so prosecute or defend, or to do such act, or is instructed to so prosecute or defend, or do such act, by resolution duly adopted by the town board, or at a town meeting duly held. * * The appealing supervisor herein adds that nowhere by law is the board of town auditors required to defend certiorari proceedings brought against it to review its audit, and points to the fact, established by the affidavits, that there was no resolution duly adopted by the town board, or at a town meeting duly held, instructing this board of town auditors to defend the certiorari proceedings referred to. Hence, he says, that the claim of the relator is not a valid charge against the town, and that the moneys he held, raised by taxes on the taxable property of the town, should not be dissipated by payment to the relator.

We find, however, a provision in another section of the Town Law which it seems to us gave to the board of town auditors abundant authority to employ the relator for the purpose of contesting what later developed to be unlawful claims against the town. Section 174 of the Town Law^[1] enumerates the powers conferred upon town auditors, and provides that with respect to auditing, allowing or rejecting accounts, charges, claims or demands against the town, and in collateral matters, the powers of the town board shall be exercised by the board of town auditors, “ and with respect to the powers so conferred, and the duties so imposed, they shall be the town board of the town during their continuance. * * *.” It can hardly be denied that had there been no board of town auditors the town board itself had the power to employ counsel to resist proceedings to compel payment of claims which had,been rejected by

* See Laws of 1890, chap. 569, as amd. by Laws of 1896, chap. 85.— [Rep,

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it; especially in cases where the appointment of the attorney had been made by resolution duly adopted by the town board. As we read section 174, the board of town auditors had, in this regard, the same power as would have been possessed by the town board in case no board of town auditors had existed, for it is there provided that “ with respect to the powers so conferred, and the duties so imposed, they (the board of town auditors) shall be the town board of the town during their continuance; ” these powers and duties are specifically enumerated in that section to be “ the powers of the town board of that town, with respect to auditing, allowing or rejecting ” claims, etc., and the “ examination, auditing and certification of accounts of town officers.” The board of town auditors had the same power with respect to this matter as those possessed by the town board, and its resolution to employ an attorney to resist allowances of these claims against the town was quite as valid as a resolution of the town- board itself would have been, in case no board of town auditors had existed, to employ an attorney to resist claims against the town.

The views that we have expressed lead us to the conclusion that the charge was valid against the town, and the supervisor should pay over to the party for whom it was intended the money that has been collected and placed in his hands.

The order appealed from'must, therefore, be affirmed.

Hirschberg, P. J., Gayeor, Bich and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.