Peck v. Town of Catskill — 119 A.D. 752

Majority

p. 752

Willard Peck, Appellant, v. The Town of Catskill, Respondent.

Third Department,

May 8, 1907.

Headnote

Town—sale of office furniture to town clerk — town cannot .be sued on . unaudited claim.

One who sells office furniture, for. the use of a town clerk must enforce his claim against the town under section 85 of the Town Law, which requires that the claim be audited. The seller, cannot sue the town directly in the first instance without an audit.

p. 753

Appeal by the plaintiff, Willard Peck, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Greene on the 10th day of October, 1905, upon the decision of the court, rendered after a trial at the Columbia Special Term, sustaining the defendant’s demurrer to the complaint on the ground' that it does not state facts sufficient to constitute a cause of action.

The amended complaint, which has been demurred to for insufficiency,' alleges that the defendant is a domestic municipal corporation ; that the town clerk of the defendant town, with the consent' of the town board thereof, purchased of one Spencer an iron safe of the value and for the agreed price of $700 and the old safe then belonging to the town; that such new safe was delivered to and accepted bymaid town clerk with the consent of the' town board, and has ever since been and now is in the town clerk’s office in said town and in the possession and use of said town clerk; that Spence'r assigned his claim against the town therefor to the plaintiff ; that the plaintiff presented his claim for payment to the supeivisor of the town and demanded payment thereof, which was •refused, and that the same has not been paid. The court sustained the demurrer and the plaintiff appeals.

John Gadman, for the appellant.

Frank U. Osborn, for the respondent.

This complaint presents no cause of action against the town, for the simple reason that the statute provides otherwise, and provides the method of procuring pay for furniture purchased for the use of the town clerk. - • -

The statute under which this safe was purchased is section 85 of the Town Law (Laws of 1890, chap. 569). That section provides; that “ The town clerk of any to'wn may, with the' consent of the town board of his town, purchase or furnish for the town clerk’s office all necessary bound blank books for the entering and keeping of the records of his town, and also necessary book' and office Cases, . tables and other funiture for the use and convenience of the office

p. 754

. and the safe-keeping of the books and papers of the town, and the expense thereof shall be-a town charge, to be audited and paid as other town charges.” . ' ’ .

Ho- question -is raised here by the respondent that the safe was not necessary for the use of the town clerk and the safekeeping, of the books and papers of the town. The claim of the appellant appears to be that because the price of the safe was agreed upon, and because it was purchased with the consent of the town board, that the amount of the claim is liquidated, and, therefore, there is no necessity of an audit by the auditors of the town, and some authorities are cited where áctio'ns had been permitted directly against a town or county on bonds or other evidences of debts issued pursuant to statute. These cases proceeded upon the theory that when obligations of - that character have been issued pursuant to -law it becomes the duty of the officials of the town' or county to provide means for the payment thereof when they become: due. But no such reason exists here, and the statute here clearly provides that the expense of -articles purchased by the town clerk with the consent of the town board, pursuant to the section quoted, shall be a town charge, -to be audited and paid .as other town charges. The statute having provided the method to be pursued in procuring payment for such charges, the plaintiff is not authorized to pursue ■ any other' remedy, and the town is only liable in the way and by the method pointed out by the statute and not by a suit against it in the first instance, which would have.the effect, if allowed, to nullify the . statute itself and prevent an audit by'the .town board. (Bragg v. Town of Victor, 84 App. Div. 83 .)

The interlocutory judgment should be affirmed, with costs.

All concurred; Cochrane, J., not sitting.

Interlocutory judgment affirmed, with:costs.