In re Lanehart — 32 A.D. 4

Majority

p. 4

In the Matter of the Application of Louis N. Lanehart, Appellant, for a Writ of Certiorari Directed to The Board of Supervisors of the County of Queens, Respondent.

Headnote

Audit by a bow'd of supervisors — the boan'd is not concluded by the claimant’s uncontradicted affidavit' as to the value of his services.

Where a claim for services rendered presented for audit to a board of supervisors, which has authority to exercise its judgment in reference to the amount to be allowed, is sustained only by the affidavit of the claimant, the board of supervisors is not compelled to accept his statement, which is governed by the same rule that would be applicable in the consideration of the testimony of an interested witness by a court or jury, although it is uncontradicted, but may award- such sum as in its judgment seems proper compensation for the services; and it was considered in this case that its action in such respect should not be reviewed by the courts.

Appeal by the petitioner, Louis N. Lanehart, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 31st day of March,. 1898, denying his motion for a writ of certiorari directed to the board of supervisors of the county of Queens, commanding them to certify and return to the court all and singular their proceedings had in the matter of the audit of the claim of Louis N. Lanehart against the county for $800 for medical services performed for one Frank Larsen, a juror, at a Criminal Trial Term

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of the Supreme Court held in and for the county of Queens in the month of November, 1897.

Henry A. Monfort, for the appellant.

Isaac P. Ooale, for the respondent.

It is well settled that where a claim is presented to a hoard of supervisors for audit, which the board is required by law to allow at the sum presented, and its audit is refused, or it is arbitrarily reduced, mandamus is the proper remedy. (People v. Supervisors of Delaware Co., 45 N. Y. 196 ; People ex rel. Morrison v. Supe rvisors, 56 Hun, 489 .) But where the claim presented vests the auditing body with authority to exercise judgment, and requires a determination based upon conflicting testimony and inferences arising therefrom, whatever right of review exists must be by certiorari, and mandamus is improper. (People ex rel. Myers v. Barnes, 114 N. Y. 317 .) In the present case, assuming, but not deciding, that the claim presented was a proper charge against the county of Queens, yet it clearly appears that the amount to be paid for the service rendered was not a sum agreed upon between the parties, either express or implied ; consequently the measure of compensation for the service was what the same was reasonably worth. (People v. Supervisors of Delaware Co., supra.) The board of supervisors was, therefore, called Upon to pass upon the claim, and reject or allow it, in the exercise of judgment and discretion, and their determination will not be reviewed by a court upon certiorari, unless it appears to have been clearly erroneous and against the weight of the testimony upon which the board acted. In the present case it appeared that the only testimony before the board in support of the claim for its full amount was the affidavit of the claimant, supported by no other proof. The statement contained therein was the statement of an interested witness, and is governed by the same rules as would be applicable in consideration of his testimony by a court or jury, and being so interested the board were not compelled to accept his statement, although uncontradicted. (Elwood v. Western Union Tel. Co., 45 N. Y. 549 ; Canajoharie National Bank v. Diefendorf, 123 id. 191.) The board were, therefore, 'authorized to act upon

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their knowledge of such question, and award such sum as in their judgment seemed proper compensation for the service rendered, and this court would have no authority to review such action.

The motion for the writ was, therefore, properly denied, and the order should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

People ex rel. Johnson v. Board of Supervisors 45 N. Y. 196 N.Y. 1871-03-21 p. 5
People ex rel. Myers v. Barnes 114 N. Y. 317 N.Y. 1889-03-19 p. 5
Elwood v. Western Union Telegraph Co. 45 N. Y. 549 N.Y. 1871-05-23 p. 5